§ 6.2. Existing Regulatory Framework

This section focuses on the environmental resources that are regulated throughout the development review process at the local, state, regional and federal levels within Santa Rosa County. Santa Rosa County currently relies on state and federal programs for environmental regulation and review for the most part.

However, these reviews and regulations are complimented locally by County requirements found within this Plan, the Land Development Code and the vast conservation lands located within the County. Additional regulatory information is also found within the Supporting Documentation for the Infrastructure Element, specifically pertaining to stormwater management and water quality protection measures.

6.2.1 Wetlands and Water Quality—Florida's Environmental Resource Permitting (ERP)

Florida law requires environmental resource permits for many types of work within wetlands and surface waters, such as dredging or filling; construction of dams, impoundments, docks or other structures; the construction of stormwater management systems that discharge to those waters; and other kinds of land disturbance activities. For development activities in Santa Rosa County, the ERP program regulates stormwater runoff in certain new developments to protect water quality, prevent flooding and to avoid adverse impacts to off-site property.

Rule 62-330.020, F.A.C., describes activities that require a permit. In general, as it relates to land development, a permit is required prior to the construction, alteration, operation, maintenance, removal, or abandonment of any new project that, by itself or in combination with an activity conducted after [October 1, 2013], cumulatively results in any of the following:

(a)

Any project in, on, or over wetlands or other surface waters;

(b)

A total of more than 4,000 square feet of impervious and semi-impervious surface areas subject to vehicular traffic;

(c)

A total of more than 9,000 square feet impervious and semi-impervious surface area;

(d)

A total project area of more than one acre;

(f)

Any dam having a height of more than 10 feet, as measured from the lowest elevation of the downstream toe to the dam crest;

(g)

Any project that is part of a larger common plan of development or sale;

(h)

Any dry storage facility storing 10 or more vessels that is functionally associated with a boat launching area;

(i)

Any project exceeding the thresholds in section 1.2 (District-specific thresholds) of the applicable Volume II; or

(j)

Any modification or alteration of a project previously permitted under Part IV of Chapter 373, F.S.

The types of permits available are general permits, individual permits (which include mitigation bank permits), and conceptual approval permits. The ERP program issues general permits that are commonly known as "ten-two" general permits. In 2012, the Florida Legislature adopted a general permit that allows for the construction, alteration and maintenance of certain smaller projects without agency review or action. Under this law, Section 403.814 (12), F.S. projects involving less than two acres impervious surface and less than 10 acres of total project area that are located within state lands or water with no wetland impacts, may proceed subject to the conditions of the general permit.

The permit process includes coordination with other state agencies including Florida's approved Coastal Zone Management Program (FDEP), the Florida Fish and Wildlife Conservation Commission, and the Florida Department of State, Division of Historical Resources. Those agencies may comment on the application as it is being processed, and may request additional information be provided to them so that they may fully evaluate the application. The Agencies shall consider comments that are timely received in the course of processing the application. As provided by Section 373.428, F.S., these agencies also may object to issuance of the project under the Coastal Zone Management Act.

The need for a wildlife survey will depend upon the likelihood that the site is used by listed species and the bald eagle, considering site characteristics and the range and habitat needs of such species, and whether the proposed activity will impact that use such that certain criteria are not met.

ERPs also regulate dredge and fill activities in tidal and freshwater wetlands, including contiguous and isolated wetlands. The ERP program operates independently of the federal dredge and fill permitting program, which is regulated by the US Army Corps of Engineers, although a joint application process has been developed between the State and Corps.

Criteria for determination of State of Florida jurisdictional wetlands are set forth in Rule 62-340, Florida Administrative Code. Federal jurisdiction under the Federal Clean Water Act is limited to "waters of the United States". What waters constitute "Waters of the United States" was the subject of a recent U.S. Supreme Court decision commonly referred to as the SWANCC (Solid Waste of Northern Cook County) decision. This decision, as currently interpreted (it's subject to a pending Federal rule making initiative), results in a lack of Federal jurisdiction over certain isolated wetlands. State jurisdiction in Peninsular Florida under the Part IV, Ch. 373, F.S., ERP program extends from property line to property line of the project area. However, within the project area only those areas that are delineated as wetlands (including all isolated wetlands) under the State methodology are subject to the environmental provisions of s. 373.414, F.S. The remainder of the project area is considered uplands and subject only to the "stormwater" quality and quantity provisions of the ERP program.

In summary, both Florida and the Federal government have methods to delineate the boundaries of areas considered wetlands although there are differences in the methods that may produce different wetland boundaries in some situations. However, not all areas that are delineated as wetlands are subject State and Federal jurisdiction as noted above. Further within those areas that are subject to State or Federal jurisdiction certain activities are not regulated due to a variety of statutory and rule exemptions from regulation.

The U.S. Army Corps of Engineers regulatory program considers waters of the United States to be all tributary streams to navigable waters to a point where flows are less than 5 cubic feet per second. In general, this criterion is being interpreted as the uppermost 5 square miles of all watersheds, but actual determination is made on a case-by-case basis. The determination of federal jurisdiction of a proposed project will be made by the Corps of Engineers. All proposed development actions by private individuals or public agencies are subject to Corps of Engineers regulatory review.

The U.S. Army Corps of Engineers regulates activities in open waters and wetlands under the following four separate but related laws:

1.

The Rivers and Harbors Act of 1899 which requires authorization for activities such as constructing piers, bulkheads, subaqueous pipelines, filling, dredging, stream channelization, and similar works in navigable waters of the United States. In response to 1968 court rulings, permit application reviews, now include protection of fish and wildlife, conservation, pollution, aesthetics, ecology, and general public interest;

2.

The Federal Water Pollution Control Act of 1972 requiring the restoration and maintenance of the chemical, physical, and biological integrity of the nation's waters. Section 404 of the Act established the permit program to regulate discharges of dredge or fill material into waters of the United States;

3.

The Clean Water Act of 1977 expanded the Corps Section 404 authority to include, but not be limited to, all coastal and inland waters, lakes, tributaries to navigable waters, wetlands adjacent to navigable waters, and certain isolated wetlands and water bodies;

4.

The Marine Protection Research and Sanctuaries Act of 1972 authorizes the Corps of Engineers, under Section 103, to issue permits for the transportation of dredged material for ocean disposal.

In general, Corps of Engineer permits are required for any construction in all tidal areas channel ward of mean high water lines.

6.2.2 Flora and Fauna

Article IV, Section 9, of the Florida Constitution and Chapter 372, F.S., designates the Fish and Wildlife Conservation Commission (FWC) [previously Game and Fresh Water Fish Commission (FGFWFC)] as the agency with the authority to exercise all the non-judicial powers of the state with respect to wild animals and freshwater aquatic life. As part of its total program, the Commission administers wildlife and fish management areas on state, federal and privately owned lands. The fish management program includes maintaining boat ramps, stocking game fish, installing fish attractors, and controlling undesirable aquatic plants. The Commission receives funds for the preservation, restoration and enhancement of Florida's fish and wildlife resources from the Federal government. The Commission also manages a nongame fish and wildlife program funded by the Nongame Wildlife Trust Fund.

The Florida Endangered and Threatened Species Act and the Preservation of Native Flora of Florida Act established criteria for the listing, protection and management of plant and animal species considered to be endangered, threatened or species of special concern.

Chapter 68A-27, F.A.C. restricts the pursuit, molestation, harm, harassment, capture, or possession of a listed species. The Code establishes a permitting program for such activities, including permits for the "incidental take" (unlawful killing "incidental to" otherwise allowable activities) of individual animals.