Environmental Resource Permitting (ERP) and Sovereign Submerged Lands (SSL) Rules
The wetland resource permitting program described herein was
originally authorized pursuant to the Warren S. Henderson Wetlands
Protection Act in 1984, found in Sections 403.91 - 403.929, Florida
Statutes (F.S.). The wetland resource program is effective only in the
panhandle of Florida to permits issued or application determined
complete before November 1, 2010, within the jurisdictional area of the Northwest
Florida Water Management District. The Environmental Resource Permitting
rule is effective in the rest of the state, although the wetland
resource program is used for activities which are grandfathered
according to Sections 373.414(11), (12)(a), (13), (14), (15), and (16).
The following statutes and rules govern activities regulated by the wetland resource permit program:
Permits are required for dredging, filling and construction of
structures within the landward extent of wetlands and other surface
waters unless the activity specifically qualifies for one of the
exemptions described here. This includes the excavation (dredging) of
channels, canals, ditches, lakes; deposition of fill; construction of
docks, fishing and observation piers, wharves, mooring piles, dolphins,
boardwalks, platforms, artificial reefs, navigational markers and signs,
boat ramps, fences, dams, jetties, groins, dikes, bridges, utility
lines, mines, salvage operations, including treasure salvage; or other
dredging or filling activities in or connecting to jurisdictional
It is suggested that the following sequence of events be followed when considering the need for a wetland resource permit:
The above issues will be discussed briefly below, along with the evaluation criteria which are used to evaluate individually-processed permit applications.
Once it has been determined that the activity consists of
dredging or filling, the next step is to determine whether or not the
activity is located within the landward extent of wetlands or other
surface waters. The methodology for making this determination changed,
effective July 1, 1994. The new methodology is contained in Chapter
62-340, F.A.C., which was adopted pursuant to Section 373.421, F.S., and
became effective upon the effective date of the legislative ratification
of the rule in Section 373.4211, F.S. This new methodology, which
delineates the landward extent of all wetlands and other surface waters,
including isolated wetlands, is applicable throughout the state, except
within the Jurisdictional limits of the Northwest Florida Water
Management District (NWFWMD) until July 1, 1999, and except for
activities, project areas, and former wetland delineations which meet
the criteria in Sections 373.414(12)(b) or (c), (13), (14), (15), or
(16), F. S.
Once an activity is determined to consist of dredging or filling within the landward extent of wetlands or other surface waters, the next step is to determine whether the activity qualifies for any of the exemptions contained in Section 403.813(1), F.S., and Section 62-312.050, F.A.C. Such a determination can be made by a permit applicant simply by reviewing the criteria in the applicable statute and rule. An application is not required, but it is suggested because a determination that an activity qualifies for an exemption under Chapter 403, F.S., does not necessarily mean that the activity does not need other state, federal, or local authorizations. Through the submittal of an application, the application is distributed to other agencies so those agencies can make their own determination regarding the need for other authorizations. The submittal of such an application does not require the submittal of an application fee. In any case, a determination that an activity qualifies for an exemption does not relieve the requirement that water quality standards must be maintained during the performance of the work, nor from the requirement to obtain all other needed Federal, State, and local approvals.
Once it is determined that an activity located within the landward extent of wetlands or other surface waters does not qualify for one of the exemptions described above, the next step would be to determine whether the activity qualifies for any of the general permits contained in Sections 62-312.801 - .822, F.A.C. A general permit is a self-executing permit which does not undergo individual review by the Department or District. If the activity meets all the criteria of the applicable listed general permit, a Notice of Intent to Construct Works Pursuant to Wetland Resource General Permit must be provided to the Department or District at least 30 days prior to initiating activity. Once the notice has been submitted, an applicant may presume they qualify for the general permit unless notified by the Department or District that the activity does not qualify 30 days after notice was received by the Department or District. The notice requires the submittal of a $100.00 application fee. As with exemptions, an activity which qualifies for a wetland resource general permit still is also subject to any other state, local and federal authorizations which may be required.
For those activities which require permits but which do not qualify for a general permit, an individual permit is required. To apply for an individual permit, a Joint Application for Works in the Waters of Florida must be submitted to the appropriate Department or District office in accordance with the activity based division of responsibilities discussed below, and in accordance with the procedural rules of the Department and District. A copy of the joint application form may be obtained by contacting the local office of the Department or District. To be considered by the Department or District, the application must be submitted with the complete, appropriate processing fee. For the Department, the list of such processing fees is contained in Chapter 62-4, F.A.C. Fees for applications to the Districts are contained in the appropriate procedural rules of the Districts. In general, permit fees range from $300 to $4,000 (depending on the size of the project) for a five-year permit, and $6,000 to $25,000 (depending upon the duration of the permit) for permits of between six years and 25 years in duration.
When submitting an application for an individual permit to the Department, the fee for the permit is dependent upon whether the activity is a "short form" application, which would be processed by one of the six Department district offices, or a "standard form" application, which would be processed by the Bureau of Submerged Lands and Environmental Resources in Tallahassee. Most applications are processed as "standard form" (District Review) projects by the Department district offices. Projects which do not meet the short form criteria are processed by the Bureau of Submerged Lands and Environmental Resources in Tallahassee as "standard form" (Bureau Review) applications. The following projects qualify for processing as "short form" applications:
The Department and the Northwest Florida Water Management District share responsibilities for implementing the wetland resource permitting program and stormwater program. The division of responsibilities occurs in accordance with Operating Agreements which have been executed between the Department and the District. In essence, these agreements provide that the Department and the District have permitting, enforcement, and compliance responsibilities for certain activities, as summarized. The division of responsibilities generally is further organized so that for activities which require other permits (i.e. a hazardous waste permit or a solid waste permit), the application would be submitted to the one agency that has the responsibility for those other, related permits. When submitting an application, this list of activities should be reviewed to determine whether to submit the application to the Department or to the District. Applications which are submitted to the incorrect agency will be returned to the applicant unprocessed.
Both the Department and the District staff are available for pre-application meetings to discuss applications prior to their submittal. Through such a meeting, staff can help the applicant through the large number of options that exist regarding whether a permit is needed, whether the activity is located within the landward extent of surface waters and wetlands, whether the activities may qualify for an exemption or general permit, which agency to whom the application should be submitted, and the proper fee for the application. Further, staff can help recommend ways for applicants to minimize project impacts prior to the submittal of an application. Therefore, it is recommended that agency staff be consulted prior to preparing the permit.
The application process described herein summarizes only the wetland resource permit program. Prior to construction or any dredging and filling in surface waters and wetlands, an applicant is required to obtain all necessary State, federal and local authorizations, The Department, the Districts, and the U. S. Army Corps of Engineers (Corps) have developed a joint application process. Under this process, the Department or the District (again, depending upon the activity based division of responsibilities) will serve as the initial agency to whom the application should be submitted. Once received, the agency will distribute a copy of the application to the Corps. Both the Corps and the Department or District will independently process the application, including separate requests for additional information and separate evaluation processes. Generally, the Corps will not issue their permit until the Department or the District issues the required state authorization under Chapter 403, F.S., because issuance of such a Chapter 403, F.S., permit will also constitute state water quality certification under Section 401 of the Clean Water Act. The Corps cannot issue their corresponding federal permit without a state water quality certification.
Activities that are located on sovereign submerged lands may also require a corresponding authorization from the Board of Trustees of the Internal Improvement Trust Fund (BOT). When a wetland resource permit application is received for activities which appear to be located on sovereign submerged lands, a copy of the application and drawings is forwarded to the Division of State Lands in the Department for determination of ownership. In the event the activity is located on state-owned submerged lands, the appropriate type of authorization is processed by the Department.
In addition to the above, a separate permitting process exists for altering mangroves when the mangrove alteration does not occur as part of a wetland resource permit or exemption. The law which covers mangrove alterations is Chapter 403.9321 – 403.9333, F.S.
As throughout the rest of the state, stormwater is reviewed using the criteria of the water management district rules which cover the area in which the project is located. The ERP stormwater rules of the Northwest Florida Water Management District are effective October 1, 2007 as part of Phase 1 of the ERP rulemaking process. When stormwater permits are required as part of an activity that also requires a wetland resource permit under review by the Department, the stormwater authorization is reviewed and approved or denied as part of the wetland resource permit. Grandfathered stormwater permits are reviewed pursuant to Chapter 62-25, F.A.C.
A. Evaluation. Additional information must be requested within 30 days of receipt of application. Further processing is usually suspended until the additional information submitted. Additional requests for information are prepared as necessary within 30 days of receipt of information submitted after first R.A.I. An application is determined to be complete when all information is submitted. A permit must be issued or denied within 90 days of receipt of a complete application, unless this time period is waived by the applicant. The overall time to process an application is determined by how long it takes to submit a complete application, which is largely dependent upon the level of detail submitted by the permit applicant, and the responsiveness of the applicant to submitting requested information.
There are three major components to the evaluation of a permit application. These are:
B. Mitigation. If a project has adverse impacts which render it unable to meet the permitting criteria, the applicant, the Department, or the District may propose measures which will mitigate for the otherwise unpermittable adverse impacts. If the Department or District determines that the proposed mitigation will offset or compensate for the adverse impacts to an extent which will make the project not contrary to the public interest, or clearly in the public interest if in an OFW, the project may then receive a permit.
Mitigation may not be considered "up front" or until project determined not to be permittable without mitigation, except for mining applications. Mitigation will not be evaluated until the Department or a District have first considered practicable alternatives to reduce or avoid the unpermittable aspects of a project, although the "the no project alternative" is not an acceptable modification. Mitigation is defined as measures which compensate for or enhance aspects of projects which do not meet permitting criteria. Appropriate mitigation proposals can consist of one or a combination of
However, mitigation may not be able to offset impacts in some cases, such as to offset significant degradation to Outstanding Florida Waters, when endangered species are adversely affected, or when there is a likelihood that the mitigation will not be able to successfully create, restore, or enhance a particular wetland type.
For projects which cannot meet the public interest or water quality criteria, an applicant may propose mitigation to offset the adverse impacts which otherwise make the project ineligible for a permit, in accordance with section 373.414(l)(b), F.S. Florida has a state-wide uniform wetland mitigation assessment method to determine the amount of mitigation needed to offset adverse impacts to wetlands and other surface waters and to determine the number of mitigation bank credits awarded and debited. The Unified Mitigation Assessment Method (UMAM) is described in Chapter 62-345, Florida Administrative Code. The method is binding on the department, the water management districts, local government and other governmental entities, in the form of an “exclusive and consistent process” for the evaluation of wetland and determination of mitigation amount. The type of wetland mitigation used to offset a project’s impact depends greatly upon the type of permitted impact and what wetland functions have been impacted. The mitigation plan for a permitted project often involves multiple types of mitigation
The procedures for evaluating mitigation proposals are contained in Sections 62-312.300 - .390, F.A.C. In all cases, reasonable assurance must be provided that mitigation can be successful, as determined on a case by case basis (see Sections 62-312.340 and 350, F.A.C.). When mitigation is determined to be appropriate, the mitigation proposal from an applicant must be in writing, and will not restart the 90 day processing time clock.
Off-site mitigation is appropriate in some instances, such as road corridors and utility alignments, but typically requires higher mitigation ratios than on-site mitigation. In addition, off-site mitigation must be determined to offset the otherwise unpermittable aspects of the project, which typically requires that the mitigation be as close as possible to the site of impact and within some waterbody or same drainage basin as affected waters.
Preservation of mitigation sites may be required to ensure that the site will remain undisturbed for a time period sufficient to ensure that the site can become successful. Long term mitigation may be required to prevent future cumulative impacts and to provide r reasonable -assurance that the functions which are designed to be offset by the mitigation activity will continue into the future. Conservation easements and land conveyances may be considered as mitigation if they offset impacts that otherwise make the project unpermittable. Property restrictions on uplands can be appropriate when they will protect wetland functions.
The rule (Section 62-312.390, F.A.C.) contains detailed information which is required for applicants to provide reasonable assurance of financial responsibility sufficient to ensure the success of the mitigation activity, including monitoring and contingency efforts when the estimated cost of the mitigation is $25,000 or more. The amount of the financial assurance must be 100% of the estimated cost of the mitigation.
The success criteria which must be met include:
When making a success determination, climatic conditions will be considered. A comparison to reference waters is required when insufficient information exists to judge success. Reference waters must be sufficiently similar to mitigation site, but do not need to exactly duplicate conditions at the mitigation site.
Permits are usually good for 5 years, but the length of the permit may be extended up to 25 years. Permits with a 5 year or greater duration are reviewed and updated at 5 year increments. A permit may not be extended or renewed once expired. Permits are issued to a specific person and do not "run with the land". Transfer of a permit is possible only when approved in writing by the Department or District.
Modifications of permits can be made, and are evaluated with respect to whether the modification is considered minor or major. Minor modifications do not have the potential to change the environmental impact of a project, and can be evaluated for a $250 processing fee. Major modifications have the potential to have new environmental impacts and are evaluated upon payment of a complete new application fee equivalent to a new permit application. The submittal of a major modification request and application fee will restart the 90 day time clock and will be evaluated as a new application, including the potential for new public notices.
Last updated: September 21, 2011
2600 Blair Stone Road M.S. 3500
Tallahassee, Florida 32399
850-245-8336 (phone) / 850-245-8356 (fax)