If you are in the process of land development or obtaining a building permit in Florida, chances are your city or county planning departments will require some form of wetland approval. It is possible that the Florida Department of Environmental Protection (FDEP) or one of the five Florida Water Management Districts will also be involved and may have their own permitting requirements.
A wetland delineation report includes the delineation methods, findings, photographs, results, soils, hydrology and vegetation data, climate conditions during the survey, as well as other relevant information that supports the delineator’s decision on where the water body/upland boundary is located.
Wetland Identification Using Soil Types
When the upper part of the soil is saturated with water, soil organisms consume the oxygen in the soil and cause conditions unsuitable for most plants. Such conditions also cause the development of soil characteristics (color, texture, etc.) of so-called "hydric soils." Hydric soil is soil that is saturated, flooded, or ponded long enough during the growing season to develop anaerobic conditions in the upper part of the soil profile that favor the growth and regeneration of hydrophytic vegetation.
The Natural Resources Conservation Service (NRCS) recognizes four of the hydric soil indicators that are evidence of a water table. The hydric soil indicators are muck, mucky texture, gley colors, and sulfidic odor.
Wetland Boundary Determination Methods
Florida wetlands are determined using the Florida Unified Wetland Delineation Methodology detailed in Chapter 62-340 of the Florida Administrative Code (F.A.C.). All three of the below elements must be present during the growing season to classify a wetland area.
- Vegetation – Wetlands have hydrophytic vegetation, which are plants that grow on or in water or saturated soil conditions.
- Hydric Soils – As mentioned above, hydric soils exhibit identifiable physical properties that exist from prolonged saturation conditions.
- Hydrology – Wetland hydrology maintains wetlands. It provides conditions that develop the hydric soils that support wetland vegetation. Although hydrology is the most important factor when classifying a wetland area and boundary, it is also the most challenging to identify. Seasonal water level fluctuations can make a determination of the presence of wetland hydrology rather difficult.
The Significance of Wetland Delineation
Wetlands are protected by law because they serve as a filter, trapping pollutants as they move through the ecosystem, much like our own kidneys. Wetlands also provide flood protection and help protect against erosion from storms and shoreline stabilization, especially in urban areas. Wetlands assist in recharging groundwater through aquifers (where many of us get our drinking water).
Wetlands are also essential living spaces for many species and serve as shelters for nesting birds, fish, mammals, and reptiles, and are ideal nursery areas for a wide variety of animals.
The Regulatory Framework for Wetlands Delineation
Wetlands are defined jointly by the U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) as “those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support a prevalence of vegetation typically adapted for life in saturated soil conditions.” Wetlands include swamps, marshes, bogs, and similar areas.
Federal regulations outlined in the Rivers and Harbors Act of 1899 (U.S.C. 403) and the Clean Water Act (CWA) (U.S.C. 1251-1387) govern land-use activities within "waters of the United States". The United States (US) Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps) have federal regulatory authority over water bodies deemed jurisdictional. Waters of the US and the extent of federal jurisdiction are defined within (33 CFR 328); "waters of the United States" specifically encompasses wetland areas. However, although some wetlands are included in this definition, not all wetlands within the landscape of the U.S. are "waters of the United States," and therefore are not subject to federal regulations.
The Corps is the primary regulatory authority with respect to the determination of the presence of jurisdictional wetlands on non-agricultural lands of the US and the extent of federal jurisdiction, which is determined by conducting wetlands delineation boundaries.
The United States Department of Agriculture—Natural Resource Conservation Service (USDA-NRCS) determines the presence or absence of wetlands on land under agricultural production for the purpose of implementing provisions of the Food Security Act of 1985 (Swampbuster Act). The Swampbuster Act provisions prohibit landowners, or lessees, from participating in USDA-NRCS benefit programs if agricultural activities conducted after December 23, 1985, result in conversion of wetlands to commodity crop production without providing mitigation for impacts to wetland function and loss of acreage.
The State of Florida administrative code defines wetland areas under state jurisdiction within Section 19 of Title 28 of the Florida Statutes, Chapter 373. The Department of Environmental Protection and the Water Management Districts are the primary agencies with regulatory authority over wetlands in Florida. Review of the state administrative code, as well as county and local municipality codes and ordinances, should occur prior to initiation of any activities within or adjacent to landscape features that may potentially be wetlands.
The Importance of Hiring Professionals
Wetlands delineation is an entangled process that often leaves land developers frustrated and confused. Dealing with local, state, and federal agencies can be exasperating. While wetland conservation is important, government agencies sometimes make mistakes or overstep their authority. What if you don’t agree with the results of your wetlands delineation, or just don’t know where to begin?
I’m Rob Robinson, and as a Board Certified City County and Local government attorney, I have spent a large part of my professional career guiding clients through every stage of the residential and commercial development process in Florida. I can provide strategies for navigating the complex permitting process for wetlands delineation at both the federal and state levels. I can assist you in identifying and overcoming a host of regulatory obstacles blocking the development of projects, including wetland delineation appeals.
Please contact my office if you have any questions about environmental and permitting issues.