373.414 Additional criteria for activities in surface waters and wetlands.—
(1) As part of an applicant’s demonstration that an activity regulated under this part will not be harmful to the water resources or will not be inconsistent with the overall objectives of the district, the governing board or the department shall require the applicant to provide reasonable assurance that state water quality standards applicable to waters as defined in s. 403.031 will not be violated and reasonable assurance that such activity in, on, or over surface waters or wetlands, as delineated in s. 373.421(1), is not contrary to the public interest. However, if such an activity significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the proposed activity will be clearly in the public interest.
(a) In determining whether an activity, which is in, on, or over surface waters or wetlands, as delineated in s. 373.421(1), and is regulated under this part, is not contrary to the public interest or is clearly in the public interest, the governing board or the department shall consider and balance the following criteria:
1. Whether the activity will adversely affect the public health, safety, or welfare or the property of others;
2. Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
3. Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
4. Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;
5. Whether the activity will be of a temporary or permanent nature;
6. Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
7. The current condition and relative value of functions being performed by areas affected by the proposed activity.
(b) If the applicant is unable to otherwise meet the criteria set forth in this subsection, the governing board or the department, in deciding to grant or deny a permit, must consider measures proposed by or acceptable to the applicant to mitigate adverse effects that may be caused by the regulated activity. Such measures may include, but are not limited to, onsite mitigation, offsite mitigation, offsite regional mitigation, and the purchase of mitigation credits from mitigation banks permitted under s. 373.4136. It is the responsibility of the applicant to choose the form of mitigation. The mitigation must offset the adverse effects caused by the regulated activity.
1. The department or water management districts may accept the donation of money as mitigation only where the donation is specified for use in a duly noticed environmental creation, preservation, enhancement, or restoration project, endorsed by the department or the governing board of the water management district, which offsets the impacts of the activity permitted under this part. However, this subsection does not apply to projects undertaken pursuant to s. 373.4137 or chapter 378. Where a permit is required under this part to implement any project endorsed by the department or a water management district, all necessary permits must have been issued prior to the acceptance of any cash donation. After the effective date of this act, when money is donated to either the department or a water management district to offset impacts authorized by a permit under this part, the department or the water management district shall accept only a donation that represents the full cost to the department or water management district of undertaking the project that is intended to mitigate the adverse impacts. The full cost shall include all direct and indirect costs, as applicable, such as those for land acquisition, land restoration or enhancement, perpetual land management, and general overhead consisting of costs such as staff time, building, and vehicles. The department or the water management district may use a multiplier or percentage to add to other direct or indirect costs to estimate general overhead. Mitigation credit for such a donation may be given only to the extent that the donation covers the full cost to the agency of undertaking the project intended to mitigate the adverse impacts. However, nothing herein may be construed to prevent the department or a water management district from accepting a donation representing a portion of a larger project, provided that the donation covers the full cost of that portion and mitigation credit is given only for that portion. The department or water management district may deviate from the full cost requirements of this subparagraph to resolve a proceeding brought pursuant to chapter 70 or a claim for inverse condemnation. Nothing in this section may be construed to require the owner of a private mitigation bank, permitted under s. 373.4136, to include the full cost of a mitigation credit in the price of the credit to a purchaser of said credit.
2. The department and each water management district shall report by March 1 of each year, as part of the consolidated annual report required by s. 373.036(7), all cash donations accepted under subparagraph 1. during the preceding water management district fiscal year for wetland mitigation purposes. The report must exclude those contributions pursuant to s. 373.4137. The report must include a description of the endorsed mitigation projects and, except for projects governed by s. 373.4135(6), must address, as applicable, success criteria, project implementation status and timeframe, monitoring, long-term management, provisions for preservation, and full cost accounting.
3. If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the governing board or the department must consider mitigation measures proposed by or acceptable to the applicant that cause net improvement of the water quality in the receiving body of water for those parameters which do not meet standards.
4. If mitigation requirements imposed by a local government for surface water and wetland impacts of an activity regulated under this part cannot be reconciled with mitigation requirements approved under a permit for the same activity issued under this part, including application of the uniform wetland mitigation assessment method adopted pursuant to subsection (18), the mitigation requirements for surface water and wetland impacts are controlled by the permit issued under this part.
(c) Where activities for a single project regulated under this part occur in more than one local government jurisdiction, and where permit conditions or regulatory requirements are imposed by a local government for these activities which cannot be reconciled with those imposed by a permit under this part for the same activities, the permit conditions or regulatory requirements are controlled by the permit issued under this part.
(2) The governing board or the department is authorized to establish by rule specific permitting criteria in addition to the other criteria in this part which provides:
(a) One or more size thresholds of isolated wetlands below which impacts on fish and wildlife and their habitats will not be considered. These thresholds shall be based on biological and hydrological evidence that shows the fish and wildlife values of such areas to be minimal.
(b) Criteria for the protection of threatened and endangered species in isolated wetlands regardless of size and land use.
(3) It is the intent of the Legislature to provide for the use of certain wetlands as a natural means of stormwater management and to incorporate these waters into comprehensive stormwater management when such use is compatible with the ecological characteristics of such waters and with sound resource management. To accomplish this, the governing board or the department is authorized to establish by rule performance standards for the issuance of permits for the use of certain wetlands for stormwater management. The compliance with such standards creates a presumption that the discharge from the stormwater management system meets state water quality standards.
(4) It is the intent of the Legislature to provide for the use of certain wetlands to receive and treat domestic wastewater that at a minimum has been treated to secondary standards. The department may by rule establish criteria for this activity, which criteria protect the type, nature, and function of the wetlands receiving the wastewater.
(5)(a) It is the intent of the Legislature to protect estuaries and lagoons from the damage created by construction of vertical seawalls and to encourage construction of environmentally desirable shore protection systems, such as riprap and gently sloping shorelines which are planted with suitable aquatic and wetland vegetation.
(b) No permit under this part to create a vertical seawall may be issued by the governing board or the department unless one of the following conditions exists:
1. The proposed construction is located within a port as defined in s. 315.02 or s. 403.021;
2. The proposed construction is necessary for the creation of a marina, the vertical seawalls are necessary to provide access to watercraft, or the proposed construction is necessary for public facilities;
3. The proposed construction is located within an existing manmade canal and the shoreline of such canal is currently occupied in whole or in part by vertical seawalls; or
4. The proposed construction is to be conducted by a public utility when such utility is acting in the performance of its obligation to provide service to the public.
(c) When considering an application for a permit to repair or replace an existing vertical seawall, the governing board or the department shall generally require such seawall to be faced with riprap material, or to be replaced entirely with riprap material unless a condition specified in paragraph (b) exists.
(d) This subsection shall in no way hinder any activity previously exempt or permitted or those activities permitted pursuant to chapter 161.
(6)(a) The Legislature recognizes that some mining activities that may occur in waters of the state must leave a deep pit as part of the reclamation. Such deep pits may not meet the established water quality standard for dissolved oxygen below the surficial layers. Where such mining activities otherwise meet the permitting criteria contained in this section, such activities may be eligible for a variance from the established water quality standard for dissolved oxygen within the lower layers of the reclaimed pit.
(b) Wetlands reclamation activities for phosphate and heavy minerals mining undertaken pursuant to chapter 378 shall be considered appropriate mitigation for this part if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities.
(c) Wetlands reclamation activities for fuller’s earth mining undertaken pursuant to chapter 378 shall be considered appropriate mitigation for this part if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities, unless the site features make such reclamation impracticable, in which case the reclamation must offset the regulated activities’ adverse impacts on surface waters and wetlands.
(d) Onsite reclamation of the mine pit for limerock and sand mining shall be conducted in accordance with the requirements of chapter 378.
1. Mitigation activities for limerock and sand mining must offset the regulated activities’ adverse impacts on surface waters and wetlands. Mitigation activities shall be located on site, unless onsite mitigation activities are not feasible, in which case, offsite mitigation as close to the activities as possible shall be required. However, mitigation banking may be an acceptable form of mitigation, whether on or off site, as judged on a case-by-case basis.
2. The ratio of mitigation-to-wetlands loss shall be determined on a case-by-case basis and shall be based on the quality of the wetland to be impacted and the type of mitigation proposed.
(e) The Legislature recognizes that the state’s horticultural industry contributes to the economic strength of Florida and that high-quality peat is a limited resource that is an important component of horticultural production. The Legislature further recognizes that obtaining high-quality peat typically and uniquely requires the mining of wetlands and other surface waters and that the use of recycled and renewable material to replace or reduce the use of natural peat is necessary for the future of the horticultural industry.
1. As used in this paragraph, the term:
a. “High-quality peat” means peat from a freshwater herbaceous wetland that grades H1 to H4 on the von Post Humification Scale and has a pH less than 7.
b. “Horticultural industry” means the industry that cultivates plants, including, but not limited to, trees, shrubs, flowers, annuals, perennials, tropical foliage, liners, ferns, vines, bulbs, grafts, scions, or buds, but excludes turf grasses grown or kept for or capable of propagation or distribution for retail, wholesale, or rewholesale purposes.
2. The department shall develop rules for permitting and mitigation of peat mines in herbaceous or historically herbaceous wetlands where high-quality peat is extracted predominately for use in the horticultural industry provided:
a. The permitting and mitigation rules shall be applicable where no less than 80 percent of the extracted peat is high-quality peat and 80 percent of the high-quality peat is used by the horticultural industry in products that incorporate other renewable or recycled materials to replace or reduce the use of natural peat;
b. No extraction is occurring in the underlying sand or rock strata;
c. No portion of the extraction or mitigation area is part of an existing or proposed larger plan of development; and
d. No portion of the mine is located in a body of water designated as Outstanding Florida Waters.
3. In adopting rules as directed in subparagraph 2., design modifications shall not be required to reduce or eliminate adverse impacts to herbaceous wetlands that score below a specific value, as provided by rule using the uniform mitigation assessment method of evaluation, except to require that the project meet water quality standards, not cause adverse offsite flooding, not adversely impact significant historical and archaeological resources pursuant to s. 267.061, and not cause adverse impacts to listed species or their habitats. In assessing mitigation for mines that are not required to reduce or eliminate adverse impacts, retaining a percentage of the reclaimed wetland as open water shall be deemed appropriate wetland mitigation. The rules must establish the amount of open water allowable as mitigation based upon a consideration of the type and amount of other wetland mitigation proposed, the value of those wetlands as evaluated using the uniform mitigation assessment method, and the amount of preservation of wetlands. The amount of open water shall not exceed 60 percent of the premining wetlands within the extracted area.
4. Rule 62-345.600, Florida Administrative Code, shall not be applied to mitigation for mines qualifying under this paragraph.
5. The department shall initiate rulemaking within 90 days after July 1, 2007, and water management districts may implement the proposed rules without adoption pursuant to s. 120.54.
(7) This section shall not be construed to diminish the jurisdiction or authority granted prior to the effective date of this act to the water management districts or the department pursuant to this part, including their jurisdiction and authority over isolated wetlands. The provisions of this section shall be deemed supplemental to the existing jurisdiction and authority under this part.
(8)(a) The governing board or the department, in deciding whether to grant or deny a permit for an activity regulated under this part shall consider the cumulative impacts upon surface water and wetlands, as delineated in s. 373.421(1), within the same drainage basin as defined in s. 373.403(9), of:
1. The activity for which the permit is sought.
2. Projects which are existing or activities regulated under this part which are under construction or projects for which permits or determinations pursuant to s. 373.421 or 1s. 403.914 have been sought.
3. Activities which are under review, approved, or vested pursuant to s. 380.06, or other activities regulated under this part which may reasonably be expected to be located within surface waters or wetlands, as delineated in s. 373.421(1), in the same drainage basin as defined in s. 373.403(9), based upon the comprehensive plans, adopted pursuant to chapter 163, of the local governments having jurisdiction over the activities, or applicable land use restrictions and regulations.
(b) If an applicant proposes mitigation within the same drainage basin as the adverse impacts to be mitigated, and if the mitigation offsets these adverse impacts, the governing board and department shall consider the regulated activity to meet the cumulative impact requirements of paragraph (a). However, this paragraph may not be construed to prohibit mitigation outside the drainage basin which offsets the adverse impacts within the drainage basin.
(9) The department and the governing boards, on or before July 1, 1994, shall adopt rules to incorporate this section, relying primarily on the existing rules of the department and the water management districts, into the rules governing the management and storage of surface waters. Such rules shall seek to achieve a statewide, coordinated and consistent permitting approach to activities regulated under this part. Variations in permitting criteria in the rules of individual water management districts or the department shall only be provided to address differing physical or natural characteristics. Such rules adopted pursuant to this subsection shall include the special criteria adopted pursuant to s. 403.061(30) and may include the special criteria adopted pursuant to s. 403.061(35). Such rules shall include a provision requiring that a notice of intent to deny or a permit denial based upon this section shall contain an explanation of the reasons for such denial and an explanation, in general terms, of what changes, if any, are necessary to address such reasons for denial. Such rules may establish exemptions and general permits, if such exemptions and general permits do not allow significant adverse impacts to occur individually or cumulatively. Such rules may require submission of proof of financial responsibility which may include the posting of a bond or other form of surety prior to the commencement of construction to provide reasonable assurance that any activity permitted pursuant to this section, including any mitigation for such permitted activity, will be completed in accordance with the terms and conditions of the permit once the construction is commenced. Until rules adopted pursuant to this subsection become effective, existing rules adopted under this part and rules adopted pursuant to the authority of 2ss. 403.91-403.929 shall be deemed authorized under this part and shall remain in full force and effect. Neither the department nor the governing boards are limited or prohibited from amending any such rules.
(10) The department in consultation with the water management districts by rule shall establish water quality criteria for wetlands, which criteria give appropriate recognition to the water quality of such wetlands in their natural state.
(11)(a) In addition to the statutory exemptions applicable to this part, dredging and filling permitted under rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, or exempted from regulation under such rules, shall be exempt from the rules adopted pursuant to subsection (9) if the dredging and filling activity did not require a permit under rules adopted pursuant to this part prior to the effective date of the rules adopted pursuant to subsection (9). The exemption from the rules adopted pursuant to subsection (9) shall extend to:
1. The activities approved by said chapter 403 permit for the term of the permit; or
2. Dredging and filling exempted from regulation under rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, which is commenced prior to the effective date of the rules adopted pursuant to subsection (9), is completed within 5 years after the effective date of such rules, and regarding which, at all times during construction, the terms of the dredge and fill exemption continue to be met.
(b) This exemption shall also apply to any modification of such permit which does not constitute a substantial modification. For the purposes of this paragraph, a substantial modification is one which is reasonably expected to lead to substantially different environmental impacts. This exemption shall also apply to a modification which lessens the environmental impact. A modification qualifying for this exemption shall be reviewed under the rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, in existence prior to the effective date of the rules adopted under subsection (9).
(12)(a) Activities approved in a conceptual, general, or individual permit issued pursuant to rules adopted pursuant to this part and which were either permitted under rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, or exempt from regulation under such rules, all prior to the effective date of rules adopted pursuant to subsection (9), shall be exempt from the rules adopted pursuant to subsection (9). This exemption shall be for the plans, terms, and conditions approved in the permit issued under rules adopted pursuant to this part or in any permit issued under rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, and shall be valid for the term of such permits. This exemption shall also apply to any modification of the plans, terms, and conditions of the permit, including new activities, within the geographical area to which the permit issued under rules adopted pursuant to this part applies; however, this exemption shall not apply to a modification that would extend the permitted time limit for construction beyond 2 additional years, or to any modification which is reasonably expected to lead to substantially different water resource impacts. This exemption shall also apply to any modification which lessens the impact to water resources. A modification of the permit qualifying for this exemption shall be reviewed under the rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, and this part, as applicable, in existence prior to the effective date of the rules adopted under subsection (9), unless the applicant elects to have such modifications reviewed under the rules adopted under this part, as amended in accordance with subsection (9).
(b) Surface water and wetland delineations identified and approved by the permit issued under rules adopted pursuant to this part prior to the effective date of rules adopted pursuant to subsection (9) shall remain valid until expiration of such permit, notwithstanding the methodology ratified in s. 373.4211. For purposes of this section, the term “identified and approved” means:
1. The delineation was field-verified by the permitting agency and such verification was surveyed as part of the application review process for the permit; or
2. The delineation was field-verified by the permitting agency and approved by the permit.
Where surface water and wetland delineations were not identified and approved by the permit issued under rules adopted pursuant to this part, delineations within the geographical area to which such permit applies shall be determined pursuant to the rules applicable at the time the permit was issued, notwithstanding the methodology ratified in s. 373.4211. This paragraph shall also apply to any modification of the permit issued under rules adopted pursuant to this part within the geographical area to which the permit applies.
(c) Within the boundaries of a jurisdictional declaratory statement issued under s. 403.914, 1984 Supplement to the Florida Statutes 1983, as amended, or pursuant to rules adopted thereunder, in which activities have been permitted as described in paragraph (a), the delineation of the landward extent of waters of the state for the purposes of regulation under the rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, as such rules existed prior to the effective date of the rules adopted pursuant to subsection (9), shall remain valid for the duration of the permit issued pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, and shall be used in the review of any modification of such permit.
(13) Any declaratory statement issued by the department under s. 403.914, 1984 Supplement to the Florida Statutes 1983, as amended, or pursuant to rules adopted thereunder, or by a water management district under s. 373.421, in response to a petition filed on or before June 1, 1994, shall continue to be valid for the duration of such declaratory statement. Any such petition pending on June 1, 1994, shall be exempt from the methodology ratified in s. 373.4211, but the rules of the department or the relevant water management district, as applicable, in effect prior to the effective date of s. 373.4211, shall apply. Until May 1, 1998, activities within the boundaries of an area subject to a petition pending on June 1, 1994, and prior to final agency action on such petition, shall be reviewed under the rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, and this part, in existence prior to the effective date of the rules adopted under subsection (9), unless the applicant elects to have such activities reviewed under the rules adopted under this part, as amended in accordance with subsection (9). In the event that a jurisdictional declaratory statement pursuant to the vegetative index in effect prior to the effective date of chapter 84-79, Laws of Florida, has been obtained and is valid prior to the effective date of the rules adopted under subsection (9) or July 1, 1994, whichever is later, and the affected lands are part of a project for which a master development order has been issued pursuant to s. 380.06(9), the declaratory statement shall remain valid for the duration of the buildout period of the project. Any jurisdictional determination validated by the department pursuant to rule 17-301.400(8), Florida Administrative Code, as it existed in rule 17-4.022, Florida Administrative Code, on April 1, 1985, shall remain in effect for a period of 5 years following the effective date of this act if proof of such validation is submitted to the department prior to January 1, 1995. In the event that a jurisdictional determination has been revalidated by the department pursuant to this subsection and the affected lands are part of a project for which a development order has been issued pursuant to s. 380.06(4), a final development order to which s. 163.3167(5) applies has been issued, or a vested rights determination has been issued pursuant to s. 380.06(8), the jurisdictional determination shall remain valid until the completion of the project, provided proof of such validation and documentation establishing that the project meets the requirements of this sentence are submitted to the department prior to January 1, 1995. Activities proposed within the boundaries of a valid declaratory statement issued pursuant to a petition submitted to either the department or the relevant water management district on or before June 1, 1994, or a revalidated jurisdictional determination, prior to its expiration shall continue thereafter to be exempt from the methodology ratified in s. 373.4211 and to be reviewed under the rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, and this part, in existence prior to the effective date of the rules adopted under subsection (9), unless the applicant elects to have such activities reviewed under the rules adopted under this part, as amended in accordance with subsection (9).
(14) An application under the rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, or this part for dredging and filling or other activity, which is pending on June 15, 1994, or which is submitted and complete prior to the effective date of rules adopted pursuant to subsection (9) shall be:
(a) Acted upon by the agency which is responsible for review of the application under the operating agreement adopted pursuant to s. 373.046(4);
(b) Reviewed under the rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, and this part, in existence prior to the effective date of the rules adopted pursuant to subsection (9), unless the applicant elects to have such activities reviewed under the rules of this part, as amended in accordance with subsection (9); and
(c) Exempt from the methodology ratified in s. 373.4211, but the rules of the department and water management districts to delineate surface waters and wetlands in effect prior to the effective date of s. 373.4211 shall apply, unless the applicant elects to have such ratified methodology apply.
(15) Activities associated with mining operations as defined by and subject to ss. 378.201-378.212 and 378.701-378.703 and included in a conceptual reclamation plan or modification application submitted prior to July 1, 1996, shall continue to be reviewed under the rules of the department adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, the rules of the water management districts under this part, and interagency agreements, in effect on January 1, 1993. Such activities shall be exempt from rules adopted pursuant to subsection (9) and the statewide methodology ratified pursuant to s. 373.4211. As of January 1, 1994, such activities may be issued permits authorizing construction for the life of the mine. Lands added to a conceptual reclamation plan subject to this subsection through a modification submitted after July 1, 1996, which are contiguous to the conceptual reclamation plan area shall be exempt from rules adopted under subsection (9), except that the total acreage of the conceptual reclamation plan may not be increased through such modification and the cumulative acreage added may not exceed 3 percent of the conceptual reclamation plan area. Lands that have been mined or disturbed by mining activities, lands subject to a conservation easement under which the grantee is a state or federal regulatory agency, and lands otherwise preserved as part of a permitting review may not be removed from the conceptual reclamation land area under this subsection.
(16) Until October 1, 2000, regulation under rules adopted pursuant to this part of any sand, limerock, or limestone mining activity which is located in Township 52 South, Range 39 East, sections 1, 2, 3, 10, 11, 12, 13, 14, 15, 22, 23, 24, 25, 26, 27, 34, 35, and 36; in Township 52 South, Range 40 East, sections 6, 7, 8, 18, and 19; in Township 53 South, Range 39 East, sections 1, 2, 13, 21, 22, 23, 24, 25, 26, 33, 34, 35, and 36; and in Township 54 South, Range 38 East, sections 24, and 25, and 36, shall not include the rules adopted pursuant to subsection (9). In addition, until October 1, 2000, such activities shall continue to be regulated under the rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, as such rules existed prior to the effective date of the rules adopted pursuant to subsection (9) and such dredge and fill jurisdiction shall be that which existed prior to January 24, 1984. In addition, any such sand, limerock, or limestone mining activity shall be approved by Miami-Dade County and the United States Army Corps of Engineers. This section shall only apply to mining activities which are continuous and carried out on land contiguous to mining operations that were in existence on or before October 1, 1984.
(17) The variance provisions of s. 403.201 are applicable to the provisions of this section or any rule adopted pursuant to this section. The governing boards and the department are authorized to review and take final agency action on petitions requesting such variances for those activities they regulate under this part and s. 373.4145.
(18) The department and each water management district responsible for implementation of the environmental resource permitting program shall develop a uniform mitigation assessment method for wetlands and other surface waters. The department shall adopt the uniform mitigation assessment method by rule no later than July 31, 2002. The rule shall provide an exclusive and consistent process for determining the amount of mitigation required to offset impacts to wetlands and other surface waters, and, once effective, shall supersede all rules, ordinances, and variance procedures from ordinances that determine the amount of mitigation needed to offset such impacts. Once the department adopts the uniform mitigation assessment method by rule, the uniform mitigation assessment method shall be binding on the department, the water management districts, local governments, and any other governmental agencies and shall be the sole means to determine the amount of mitigation needed to offset adverse impacts to wetlands and other surface waters and to award and deduct mitigation bank credits. A water management district and any other governmental agency subject to chapter 120 may apply the uniform mitigation assessment method without the need to adopt it pursuant to s. 120.54. It shall be a goal of the department and water management districts that the uniform mitigation assessment method developed be practicable for use within the timeframes provided in the permitting process and result in a consistent process for determining mitigation requirements. It shall be recognized that any such method shall require the application of reasonable scientific judgment. The uniform mitigation assessment method must determine the value of functions provided by wetlands and other surface waters considering the current conditions of these areas, utilization by fish and wildlife, location, uniqueness, and hydrologic connection, and, when applied to mitigation banks, the factors listed in s. 373.4136(4). The uniform mitigation assessment method shall also account for the expected time-lag associated with offsetting impacts and the degree of risk associated with the proposed mitigation. The uniform mitigation assessment method shall account for different ecological communities in different areas of the state. In developing the uniform mitigation assessment method, the department and water management districts shall consult with approved local programs under s. 403.182 which have an established mitigation program for wetlands or other surface waters. The department and water management districts shall consider the recommendations submitted by such approved local programs, including any recommendations relating to the adoption by the department and water management districts of any uniform mitigation methodology that has been adopted and used by an approved local program in its established mitigation program for wetlands or other surface waters. Environmental resource permitting rules may establish categories of permits or thresholds for minor impacts under which the use of the uniform mitigation assessment method will not be required. The application of the uniform mitigation assessment method is not subject to s. 70.001. In the event the rule establishing the uniform mitigation assessment method is deemed to be invalid, the applicable rules related to establishing needed mitigation in existence prior to the adoption of the uniform mitigation assessment method, including those adopted by a county which is an approved local program under s. 403.182, and the method described in paragraph (b) for existing mitigation banks, shall be authorized for use by the department, water management districts, local governments, and other state agencies.
(a) In developing the uniform mitigation assessment method, the department shall seek input from the United States Army Corps of Engineers in order to promote consistency in the mitigation assessment methods used by the state and federal permitting programs.
(b) An entity which has received a mitigation bank permit prior to the adoption of the uniform mitigation assessment method shall have impact sites assessed, for the purpose of deducting bank credits, using the credit assessment method, including any functional assessment methodology, which was in place when the bank was permitted; unless the entity elects to have its credits redetermined, and thereafter have its credits deducted, using the uniform mitigation assessment method.
(19)(a) Financial responsibility for mitigation for wetlands and other surface waters required by a permit issued pursuant to this part for activities associated with the extraction of limestone and phosphate are subject to approval by the department as part of the permit application review. Financial responsibility for permitted activities that will occur over a period of 3 years or less of mining operations must be provided to the department before the commencement of mining operations and must equal 110 percent of the estimated mitigation costs for wetlands and other surface waters affected under the permit. For permitted activities that will occur over a period of more than 3 years of mining operations, the initial financial responsibility demonstration must equal 110 percent of the estimated mitigation costs for wetlands and other surface waters affected in the first 3 years of operation under the permit. For each year thereafter, the financial responsibility demonstration must be updated, including providing an amount equal to 110 percent of the estimated mitigation costs for the next year of operations under the permit for which financial responsibility has not already been demonstrated and to release portions of the financial responsibility mechanisms in accordance with applicable rules.
(b) The mechanisms for providing financial responsibility pursuant to the permit shall, at the discretion of the applicant, include the following:
1. Cash or cash equivalent deposited in an escrow account.
2. Irrevocable letter of credit.
3. Performance bond.
4. Trust fund agreement.
5. Guarantee bond.
6. Insurance certificate.
7. A demonstration that the applicant meets the financial test and corporate guarantee requirements set forth in 40 C.F.R. s. 264.143(f).
8. A demonstration that the applicant meets the self-bonding provision set forth in 30 C.F.R. s. 800.23.
The form and content of all financial responsibility mechanisms shall be approved by the department. When utilizing an irrevocable letter of credit, performance bond, or guarantee bond, all payments made thereunder shall be deposited into a standby trust fund established contemporaneously with the posting of the financial assurance instrument. All trust fund agreements and standby trust fund agreements shall provide that distributions therefrom will be made only at the request of the department and that the trustees of such funds shall be either a national or state-chartered banking institution or a state-regulated trust company.
(c) The provisions of this subsection shall not apply to any mitigation for wetlands and other surface waters that is required pursuant to a permit or permits initially issued by the department or district prior to January 1, 2005.
(d) Nothing provided in this subsection supersedes or modifies the financial responsibility requirements of s. 378.208.
2Note.—Sections 403.91-403.925 and 403.929 were repealed by s. 45, ch. 93-213, and s. 403.913, as amended by s. 46, ch. 93-213, was transferred to s. 403.939 and subsequently repealed by s. 18, ch. 95-145.
Cited 32 times | Published | Florida 1st District Court of Appeal | 25 Fla. L. Weekly Fed. D 2747
...The Save the Manatee Club filed a petition with the Division of Administrative Hearings on September 17, 1999, to invalidate the material parts of rule 40D-4.051. Among other points made in the petition, *597 the Club argued that the grandfather provisions in the rule were invalid because the enabling statute, section 373.414(9), Florida Statutes, does not authorize exemptions from the permitting requirements based solely on prior governmental approval....
...e basis. *600 Here, we conclude that the disputed sections of rule 40D-4.051 are an invalid exercise of delegated legislative authority because they do not implement or interpret any specific power or duty granted in the applicable enabling statute. Section 373.414(9), Florida Statutes, grants the District authority to issue environmental resource permits according to the statutory criteria established in the Florida Water Resources Act of 1972. [2] However, it expressly limits the District's authority to grant exemptions from the permitting requirements. In this regard, section 373.414(9) states, "Such rules may establish exemptions and general permits, if such exemptions and general permits do not allow significant adverse impacts to occur individually or cumulatively." The exemptions granted by rule 40D-4.051 are not based on the absence of a potential impact on the environment. Instead the rule allows exemptions from the environmental resource permitting requirements based entirely on prior approval. Because section 373.414(9) does not provide specific authority for an exemption based on prior approval, the exemptions in the rule are invalid. The District argues that section 373.414(9) expressly authorizes the re-adoption of rules that existed under prior laws, and that rule 40D-4.051 was originally adopted under a valid grant of legislative power contained in a previous environmental statute. This argument must fail, because the power to promulgate all new rules is limited by the statement in section 373.414(9) that the exemptions may be granted only if they do not "allow significant adverse impacts." Regardless of the history of rule 40D-4.051, the statute does not provide specific authority for an exemption based on prior approval....
Cited 12 times | Published | Supreme Court of Florida | 1998 WL 732936
...e citizens of this state should be afforded reasonable protection from the dangers inherent in the release of toxic or otherwise hazardous vapors, gases, or highly volatile liquids into the environment. § 403.021(1)-(3), Fla. Stat. (1993). Further, section 373.414, Florida Statutes (1993) [8] (formerly *207 section 403.918, Florida Statutes (1991)) [9] lists several criteria for DEP to consider in determining whether a proposed activity contradicts the public interest....
...tside the state; (4) Shipments by any method of transportation by "gift fruit shippers," as defined by the Department of Citrus, but such shipments shall not be for the purpose of resale by the consignee thereof.... § 601.50, Fla. Stat. (1977). [8] Section 373.414(1) enumerates numerous criteria for DEP to consider: (a) In determining whether an activity, which is in, on, or over surface waters or wetlands, as delineated in s....
...Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and 7. The current condition and relative value of functions being performed by areas affected by the proposed activity. § 373.414, Fla. Stat. (1993). [9] In 1993, the Legislature repealed section 403.918, see ch. 93-213, § 45, at 2157, Laws of Fla., which originally listed the criteria for DEP to consider in issuing permits. Under the same law, the criteria were transferred to section 373.414(1)....
Cited 10 times | Published | Florida 1st District Court of Appeal | 2006 WL 3371566
...One of the ten policies listed with respect to water sets forth that it is the policy of the Legislature "[t]o promote recreational development, protect public lands, and assist in maintaining the navigability of rivers and harbors." § 373.016(3)(i), Fla. Stat. (2005). Section 373.414(1)(a), Florida Statutes (2005), provides that in determining whether a proposed activity which is in, on, or over surface waters or wetlands is in the public interest, the Department shall consider: 1....
...and set for hearing. Prior to the hearing, IMC filed what was essentially a motion in limine seeking to exclude any evidence of the cumulative impacts of this project and others on the Peace River and the Peace River basin based on the provisions of section 373.414(8)(b), Florida Statutes (2004)....
...ver, the ALJ noted that the issue was moot because the Authority had fully participated in all the proceedings. The ALJ also reaffirmed his ruling that IMC was not required to address the cumulative impacts of the project under the plain language of section 373.414(8)(b)....
...er. Thus, according to IMC, the Authority was not "adversely affected" by the agency action. However, interpreting section 120.68(1) in this manner would result in a situation in which a party who unsuccessfully challenged a permit application under section 373.414 could never appeal a final order issued by DEP because the permit cannot issue if there are adverse effects that are not mitigated....
...hat the ALJ and DEP erred by refusing to consider its proffered evidence concerning the cumulative impacts of phosphate mining on Horse Creek and the Peace River. The Authority contends that the ALJ was required to consider this evidence pursuant to section 373.414(8)(a). DEP contends that the ALJ was not required to consider such evidence because the project fell within the "exception" to section 373.414(8)(a) found in section 373.414(8)(b). Given the factual findings of the ALJ in this case, we are constrained to agree with DEP. Section 373.414(8)(a) requires DEP to consider the cumulative impact of regulated activities that will occur in wetlands when determining whether to issue a permit for mining activities. However, section 373.414(8)(b) limits the circumstances under which section 373.414(8)(a) applies. Section 373.414(8)(b) provides: If an applicant proposes mitigation within the same drainage basin as the adverse impacts to be mitigated, and if the mitigation offsets these adverse impacts, the governing board and department shall consider the regulated activity to meet the cumulative impact requirements of paragraph (a). (Emphasis added.) Under the plain language of section 373.414(8)(b), DEP must consider evidence of cumulative impacts either when the proposed mitigation is not in the same drainage basin as the adverse impacts or when the proposed mitigation does not offset the adverse impacts....
...rd. To the extent that DEP has found IMC's mitigation efforts sufficient to support the issuance of the permit based on the factual finding that no adverse impacts will remain postmitigation, DEP has properly exercised its statutory discretion under section 373.414(1)(b) to determine whether the proposed mitigation is sufficient. *1087 See 1800 Atl. Developers v. Dep't of Envtl. Regulation, 552 So.2d 946, 955 (Fla. 1st DCA 1989) (analyzing the statutory predecessor to section 373.414(1)(b) and holding that "[i]t is the responsibility of DER ......
...2d DCA 1997) ("The DEP has the exclusive final authority to determine the sufficiency of the proposed... mitigation."). In either event, this court may not substitute its judgment for that of the ALJ or DEP on this issue. In this appeal, the Authority argues that section 373.414(8)(b) should be interpreted to mean that the mitigation must "fully offset" the adverse impacts created by IMC's mining activities and that IMC did not establish that its proposed mitigation would fully offset the adverse impacts....
...en avoids the cumulative impacts provision. However, as noted, the rule of law prevents us from thwarting this methodology. Second, even if we were to interpret the statute as suggested by the Authority, we would nevertheless be compelled to affirm. Section 373.414 does not require a permit applicant to mitigate every potential impact to waters, wetlands, and wildlifeit must only mitigate adverse impacts....
...Moreover, the focus of wetlands reclamation activities after phosphate mining must be on whether those activities "maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities." § 373.414(6)(b)....
...is no "de minimis" exception being applied. In the absence of a finding that IMC's activities would result in some unmitigated adverse impacts, IMC was not required to put forth, nor was DEP required to consider, evidence of cumulative impacts under section 373.414(8)(b)....
...der the Peace River Cumulative Impacts Study. That said, however, we agree with the Authority and the Fifth District in Sierra Club v. St. Johns River Water Management District, 816 So.2d 687, 692 (Fla. 5th DCA 2002), that the exception set forth in section 373.414(8)(b) essentially eviscerates the cumulative impacts assessment provided for by section 373.414(8)(a)....
...That reduced streamflow, standing alone, may not be an "adverse impact." However, if every project in the Horse Creek basin results in a slightly reduced streamflow, the cumulative impact of those projects will, at some point, become adverse. Despite this, section 373.414(8)(b) permits the DEP to examine each project's impacts in isolation....
...Thus, despite the legislature's apparent intent to force DEP to consider the cumulative impacts of multiple projects when making permitting decisions, the actual legislation does not effectuate this intent. Nonetheless, despite our misgivings, we cannot rewrite section 373.414(8) or overrule DEP's discretionary determinations to prevent this bit-by-bit accumulation of adverse impacts....
...te and then reclaim those lands postmining. It is not within our province to challenge the priorities set by the legislature or to judicially amend the statutes adopted by it in furtherance of those priorities. Therefore, given the plain language of section 373.414(8)(b) and the findings of fact made by the ALJ and adopted by DEP, we are compelled to affirm on this issue....
Cited 5 times | Published | Florida 5th District Court of Appeal | 1988 WL 96447
...Appellants appeared at the public hearings held by the District prior to its adoption of the rule. They timely appeal from an order of the District which adopted the rule [1] and take the position that none of the exemptions contained in the rule are valid or authorized by section 373.414. We agree in part. Section 373.414(1) required the District to "adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department [Department of Environmental Regulation] for purposes of dredging and filling. Section 373.414 provides: 373.414 Wetlands....
...As part of its enforcement tools, the District was empowered to measure and regulate dams, impoundments, reservoirs, and appurtenant works (§ 373.409), to require permits for the construction or alteration (§ 373.413), maintenance and operation of such structures (§ 373.416). In contrast with section 373.414, all three of these earlier sections employ precatory rather than mandatory directions to the District; e.g., "the governing board ......
...ctober 1, 1986. The developer has until July 1, 1987 to notify the District in writing of its intention to rely upon this provision. Appellants argue that none of the exemptions to the isolated wetlands permitting criteria are valid or authorized by section 373.414....
...Nor can the agency, without sufficient statutory criteria expressed in the statute, vary the impact of a statute by restricting or limiting its operation, through creating waivers or exemptions. 1 Am.Jur.2d Administrative Law § 124 at 932 (1977). The isolated wetlands law, section 373.414, contains only one express exemption: wetlands within the jurisdiction of the DER for the purposes of regulation of dredging and filling. To the extent any of the twelve challenged exemptions are based on that statutory exemption, they could be found authorized and valid. However, none appear related to this provision in section 373.414....
...water management facilities to waters that are incidental to the construction of such facilities. With regard to the exemptions in section 373.406, since they are part of Part IV of Chapter 373, it is logical to assume they were intended to apply to section 373.414, even though not expressly referenced in the isolated wetlands law....
...2d DCA 1986), rev. den., 504 So.2d 767 (Fla. 1987). However, we can find no basis to support the exemption for the activities specified by section 403.812. That provision is not part of Chapter 373; and the language of the isolated wetlands statute (§ 373.414) does not give the District any discretion not to include all isolated wetlands in its rule, in contrast with the language in sections 373.416 and 373.413....
...ining and mining related surface water management systems), and (10) (phosphate mine reclamation and restoration), we can find no basis for the exemptions of these activities from the isolated wetland rule. The primary legislative concern in passing section 373.414 appears to have been to preserve wildlife and fish in small isolated wetlands because they are unique as to both their ecosystems and species....
...d therefore affirm. Procedural History A brief history is helpful to understanding the issue. In 1995, the District promulgated rules 12.2.8 through 12.2.8.2 of its Administrative Handbook, implementing the cumulative impacts doctrine embodied in subsection 373.414(8), Florida Statutes (1995)....
...impact analysis would not be required because there would be no "leftover" unmitigated impacts in the basin that could cumulate. The Sierra Club was unhappy with the District's position and filed a challenge claiming the District's interpretation of section 373.414(8), Florida Statutes, and the cumulative impacts rule in section 12.2.8, Applicant Handbook, was an unadopted rule that violated section 120.54(1)(a), Florida Statutes. [3] The Statutory Amendment During the 2000 session of the Florida Legislature, section 373.414(8) was amended to incorporate the District's methodology....
...ed and contravened the statute. The parties agreed to submit the issue to the ALJ for determination without a formal hearing. In his final order upholding the rule amendment, the ALJ analyzed the issue as follows: 44. Under the current version of Subsection 373.414.(8), Florida Statutes (2000), in deciding whether to grant or deny an ERP, the District is required to consider the cumulative impacts on surface water and wetlands within the same drainage basin of certain existing and future activities....
...It requires cumulative impacts to be considered when mitigation is either not in the same drainage basin as the impact or does not offset the impact, as does the statute. 46. Petitioner basically contends that despite the clear and specific language in Section 373.414(8)(b), an applicant who proposes a project with wetland or surface water impacts and mitigation in the same drainage basin should perform an in-depth cumulative impacts analysis because of the more general language in Section 373.414(8)(a). Such a contention, however, ignores Section 373.414(8)(b), which explicitly provides that when such impacts and offsetting mitigation are in the same drainage basin, the District's Governing Board "shall consider the regulated activity to meet the cumulative impact requirements of paragraph (a) [373.414(8)(a)]." In other words, if an applicant meets the criteria of Section 373.414(8)(b), then it would be superfluous to require the applicant to perform a cumulative impacts analysis which evaluates past, present, and future activities in subparagraphs (8)(a)2 and 3. This is because Section 373.414(8)(b) provides that such a project meets the requirements of Section 373.414(8)(a), that is, there are no unacceptable cumulative impacts....
...Because the proposed rule neither expands nor reduces the cumulative impact consideration beyond that specified in the statute it implements, it does not enlarge, modify, or contravene that statutory authority. The petition should accordingly be denied. The Appeal On appeal, the Sierra Club argues that section 373.414(8)(a) requires the District to assess cumulative impacts in all permit applications affecting surface waters or wetlands. It suggests that the newly-created section 373.414(8)(b) "simply establishes criteria for determining when a permit applicant's mitigation is sufficient" and does not exempt the District from considering cumulative impacts as required by section 373.414(8)(a)....
...If the mitigation does not fully offset the adverse impacts, then the District assesses cumulative impacts to determine if the project will create unacceptable cumulative impacts. Consequently, the Sierra Club argues, the rule modifies and/or contravenes section 373.414(8), Florida Statutes, in violation of section 120.52(8), Florida Statutes, by eliminating the requirement of considering cumulative impacts in many cases. The District counters these arguments and notes that section 373.414(8)(b) established a short-cut cumulative impacts assessment *692 procedure and that its rule amendment merely incorporated this short-cut procedure....
...sin as the project's adverse impacts. If the mitigation falls within the same drainage basin, then the District considers whether the mitigation offsets the project's adverse impacts. If the mitigation offsets the project's adverse impacts, then the section 373.414(8)(a)'s requirement to consider cumulative impacts is deemed met....
...See Southwest Florida Water Management Dist. v. Save the Manatee Club, Inc., 773 So.2d 594, 599 (Fla. 1st DCA 2000). The Sierra Club fails to acknowledge the strong similarity of language between the rule amendment and the statute. The Sierra Club also fails to acknowledge that it was section 373.414(8)(b), the statutory amendment, not the rule amendment, that short-circuited the cumulative impact assessment. The ALJ found that under section 373.414(8)(b), if a permit applicant proposes mitigation within the same drainage basin and the mitigation offsets the adverse impacts, "the consideration of cumulative impacts mandated by paragraph (a) is deemed met. No further consideration of cumulative impacts is either necessary or allowed". As the ALJ concluded, the Sierra Club's interpretation of section 373.414(8)(b) as not having any effect on the cumulative impact requirement in section 373.414(8)(a) is contrary to the statute's "clear and specific" language. The Sierra Club contends that section 373.414(8)(b) merely "allows for mitigation" and "establishes a criteria for determining when a permit applicant's mitigation is sufficient ..." but does "not eliminate the need for cumulative impacts to be considered" under section 373.414(8)(a). It argues that this interpretation of the statute is logical because the District must necessarily consider "or identify the impact before it is possible to conclude whether mitigation will offset the impact". The Sierra Club's interpretation of section 373.414(8)(b) is flawed for several reasons. First, the Sierra Club fails to acknowledge that in section 373.414(1)(b), Florida Statutes, the legislature previously allowed for mitigation and established criteria for determining when mitigation is sufficient. The Sierra Club's reading of section 373.414(8)(b) would make it redundant in light of section 373.414(1)(b)....
...Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another. Forsythe v. Longboat Key Beach Erosion Control District, 604 So.2d 452, 455-456 (Fla.1992). Second, the Sierra Club's interpretation renders the majority of section 373.414(8)(b) meaningless....
...As the ALJ *693 found, the Sierra Club's position ignores the explicit language in subsection (b) that when mitigation in the same drainage basin offsets the adverse impacts, the District "shall consider the regulated activity to meet the cumulative impact requirements of paragraph (a)." Under the Sierra Club's position, section 373.414(8)(a) cannot be satisfied until the District considers cumulative impacts. Their position also renders the distinction in section 373.414(8)(b) between mitigation within the same drainage basin and mitigation outside the drainage basin meaningless....
...It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole; courts should avoid readings that would render part of a statute meaningless. Forsythe at 455-456. Third, the Sierra Club's position leads to an unreasonable, even absurd, result. Examining section 373.414 as a whole, the Sierra Club's position would lead to the conclusion that the District, in a case involving a mitigation plan, would be required to engage in a four part analysis, as follows: (1) assess individual adverse impacts under section 373.414(1)(a); (2) assess whether proposed mitigation offsets individual adverse impacts under section 373.414(1)(b); (3) assess cumulative impacts under section 373.414(8)(a); and (4) assess whether proposed mitigation offsets cumulative impacts under section 373.414(8)(b)....
...Courts must avoid any construction of a statute that would produce an unreasonable, absurd, or ridiculous consequence. E.M.A. v. Department of Children and Families, 795 So.2d 183 (Fla. 1st DCA 2001). Fourth, the Sierra Club's argument improperly equates the terms "cumulative impacts" in section 373.414(8)(a) with "adverse impacts" in section 373.414(8)(b). As the District notes, the legislature used the term "cumulative impacts" in section 373.414(8)(a), but not in section 373.414(8)(b)....
...ulative" adverse impacts. For example, in sections 373.406(6) and (10), Florida Statutes, the legislature uses the phrase "individual or cumulative adverse impacts." Section 373.406(9) contains the phrase "individual and cumulative adverse impacts." Section 373.414(9) contains the phrase "if such exemptions and general permits do not allow adverse impacts to occur individually or cumulatively." In section 373.414(8)(b), the term "adverse impacts" is not modified by either "individual" or "cumulative." Nor is it modified by the terms "all" or "any," which would include both individual and cumulative *694 adverse impacts. Significantly, however, the term is modified by the phrase "to be mitigated." Section 373.414(1)(b) describes mitigation as "measures proposed by or acceptable to the applicant to mitigate the adverse effects that may be caused by the regulated activity." (Emphasis added). Thus, mitigation is related to individual adverse impacts, or those caused by the proposed activity. Because mitigation refers to measures to counteract individual adverse impacts and the term "adverse impact" in section 373.414(8)(b) is modified by the terms "to be mitigated," the adverse impacts of section 373.414(8)(b) must necessarily refer to individual adverse impacts. Conclusion We conclude, as the ALJ did, that the rule amendment tracks section 373.414(8); it does not enlarge, modify or contravene the statute....
...mplemented, citation to which is required by s. 120.54(3)(a)1. [2] To mitigate means: "to cause to become less harsh or hostile; 2: to make less severe or painful." MERRIAM WEBSTER'S COLLEGIATE DICTIONARY (10th ed.2002) available at http:// m.w.com. Section 373.414(1)(b), Florida Statutes, describes mitigation as "measures proposed by or acceptable to the applicant to mitigate the adverse effects that may be caused by the regulated activity." [3] Section 120.54(1)(a), Florida Statutes (1999) provides: Rulemaking is not a matter of agency discretion....
Ms. Noreen Dreyer Martin County Attorney 2401 Southeast Monterey Road Stuart, Florida 34996 Dear Ms. Dreyer: You ask substantially the following question: Does section 373.414 (1)(b), Florida Statutes, prohibit a local government from prohibiting development of wetland areas under its county comprehensive growth management plan when the water management district or the Department of Environmental Protection has granted a permit that would allow development of the wetlands subject to mitigation requirements? In sum: Section 373.414 (1)(b), Florida Statutes, does not preempt the ability of a local government to prohibit development of wetland areas under the county comprehensive growth management plan when the Department of Environmental Protection or the appropr...
...development of viable wetland areas except in certain circumstances. Such circumstances include, for example, when no upland alternative exists, for certain riparian uses, and to avoid a total taking of property. A question has arisen as to whether section 373.414 (1)(b), Florida Statutes, preempts a local government from prohibiting the development of wetland areas if the Department of Environmental Protection (department) or the appropriate water management district (district) has issued a pe...
...Persons seeking to construct or alter such a system are required to apply to the department or governing board of the district. 1 Provisions for mitigation and mitigation banking are provided in section 373.4135 , Florida Statutes, as means of offsetting or minimizing the adverse impacts of such construction or alteration. Section 373.414 (1)(b), Florida Statutes, which provides additional criteria for such activities in surface waters and wetlands, states in pertinent part: If mitigation requirements imposed by a local government for surface water and wetland impacts...
...ssued under this part, the mitigation requirements for surface water and wetland impacts shall be controlled by the permit issued under this part. While there are provisions in Part IV, Chapter 373 , Florida Statutes, that are preemptive, nothing in section 373.414 , Florida Statutes, indicates an intent to preempt local governments from prohibiting or regulating the development of wetlands or from imposing mitigation requirements when such development is permitted. The language of section 373.414 , Florida Statutes, itself recognizes that the statute is not preemptive by stating that those local mitigation requirements that cannot be reconciled with the requirements of the Part IV, Chapter 373, Laws of Florida, must give way to the state requirements....
...ation methodology to implement the definition and determines that the exclusive definition and delineation methodology for wetlands shall be that established pursuant to s. 373.019 (17) and this section. . . . 3 No such preemptive language exists in section 373.414 , Florida Statutes, nor does the statute or chapter appear to be so pervasive as to completely occupy the field, thereby preventing local regulation....
...llowing: 1. Existing and planned waterwells and cones of influence where applicable. 2. Beaches and shores, including estuarine systems. 3. Rivers, bays, lakes, flood plains, and harbors. 4. Wetlands. 5. Minerals and soils. . . . 8 I find nothing in section 373.414 (1)(b), Florida Statutes, that seeks to alter the power of a local government pursuant to its comprehensive plan to control growth and development within its boundaries. Rather, the provisions of section 373.414 , Florida Statutes, would appear to apply only to those instances in which development of wetlands is permitted subject to mitigation....
...ehensive plans. In addition, section 373.441 (2), Florida Statutes, provides that "[n]othing in this section affects or modifies land development regulations adopted by a local government to implement its comprehensive plan pursuant to chapter 163." Section 373.414 (1)(b), Florida Statutes, thus appears to apply when local government regulations permit the development of wetlands and there is a conflict between state and local mitigation requirements....
...er 373 , Florida Statutes. Where, however, as in the instant inquiry, development of wetlands is not permitted under the local government's comprehensive growth plan, the statute would appear to be inapplicable. Accordingly, I am of the opinion that section 373.414 , Florida Statutes, does not prohibit a local government from prohibiting development of wetland areas under its comprehensive growth management plan....
...2d DCA 1992), in which the court recognized two types of preemption, an express preemption by a specific statement of preemption and an implied preemption whereby the legislative scheme must be so pervasive that it completely occupies the field. 5 See, e.g., s. 373.414 , Fla....
...ALJ’s erroneous interpretation of water quality standards
In applying for the permit, the FDOT and the County were required to
provide reasonable assurances that all state water quality standards
applicable to Grassy Waters would not be violated by the project. See §
6
373.414, Fla....
...quality does not meet standards, the governing board or the department
shall consider mitigation measures proposed by or acceptable to the
applicant that cause net improvement of the water quality in the receiving
body of water for those parameters which do not meet standards.” §
373.414(1)(b)3., Fla....
...es is that construction in wetlands is regulated by section 373[.]413, Florida Statutes, because wetlands are waters of the state and a “work” is construction in “waters of the state[.]” Additionally, the District claims the authority, under section 373.414, Florida Statutes, entitled “Additional criteria for activities in surface waters and wetlands,” to require permitting for dredge or fill of wetlands: (1) As part of an applicant’s demonstration that an activity regulated under...
...A modification qualifying for this exemption shall be reviewed under the rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, in existence prior to the effective date of the rules adopted under subsection (9). Under the terms of section 373.414, Florida Statutes, the governing board (the District) is authorized to require a permit applicant to provide reasonable assurances that the activity regulated under Chapter 373, Part IV, for which the permit is sought is not contrary...
...ther the property qualified as an “exempt closed system” under section 373.406(3), Florida Statutes, are issues for the administrative proceeding. REVERSED and REMANDED. COHEN and JACOBUS, JJ., concur. . The District likely intended to reference section 373.414, Florida Statutes....
This Florida statute resource is curated by Graham W. Syfert, Esq., a Jacksonville, Florida personal injury and workers' compensation attorney. For legal consultation, call 904-383-7448.
