Florida Wetlands and Waters

Why are Waters Defined Differently by State?

In the U.S., the Clean Water Act (CWA) protects waters. Jurisdictional Waters of the United States (WOTUS) are given extensive protection under this act. However, this act provides vague definitions for these waters, leading to the ambiguity of interpretations of these waters. States have added additional definitions to waters to gain clarity and protect waters that do not fall under the CWA jurisdiction as interpreted by different administrations.

Additionally, water use and needs vary by state—the different biogeographic regions in each state impact primary water sources and regulations are regionally specific. Protected waters serve as a wildlife habitat for many protected fish, plants, and other species that vary significantly by state. This variety of life and water use creates the need for state-specific regulations.

Florida Environmental Agency

The Florida Department of Environmental Protection protects the state's natural resources and enforces the state's environmental laws regarding water quality, air quality, conservation, and other state standards. This agency is divided into ecosystem restoration services, land and recreation, and regulatory programs. Additionally, the agency manages six district programs for local regulations throughout Florida. These statewide offices ensure developers uphold state and federal standards.

Florida Administrative Code 

The Florida Administrative Code contains all the statewide rules and regulations. Within the code are all of Florida statutes and regulations around water.

Florida Surface Water Quality Standards

The Environmental Protection Agency (EPA), a federal agency, sets the Surface Water Quality Standards that the states uphold. These standards guide the regulations for surface waters, such as lakes, ponds, wetlands, and other waterways. Surface water quality is detrimental to the health of the environment and individuals. Therefore, extensive regulations and multi-level agencies work to protect these waters. 

Water Management Districts in Florida

Florida has five Water Management Districts. These districts maintain water quality and quantity, manage floodplains and flood protection, and manage natural resources. The state of Florida oversees these districts. The districts are the following:

• South Florida Water Management District

• St. Johns River Water Management District

• Southwest Florida Water Management District

• Suwannee River Water Management District

• Northwest Florida Water Management District

Florida Rivers and Streams

Importance of Florida Rivers and Streams

The streams, rivers, and waterways in Florida cover over 11,000 miles. These water bodies feed into other surface waters, impacting the environment's overall health. These waterways range from large rivers to temporary streams, requiring individual attention. 

Protection for Florida Rivers and Streams 

In addition to federal and state water quality standards, the water districts mentioned above establish minimum flow and minimum water levels (MFLs) for rivers and streams. The state legislature shows a need for these levels. 

These MFLs regulate how much water can be taken or withdrawn from the waterbody before impacting the wildlife and ecosystem. Though this is regulated, a concrete definition for "significant harm" is not provided when discussing the impacts. Each district has created regulatory criteria for establishing its MFLs. These criteria are based on scientific research of the water body and are peer-reviewed by independent scientists and agencies at the local, state, and occasionally federal levels. Developers should stay updated with these established levels and regulations when interacting with waters in their district.

Florida Wetlands

Wetlands are a significant water storage source for Florida watersheds, with plants filtering pollutants from the waters. Additionally, these wetlands aid in flood protection for the state.

Waterways that do not classify as federal wetlands may be under state wetland protection.

Florida Wetland Definition

Florida’s wetland definition is regions inundated or saturated by surface water or groundwater at a frequency and a period able to support, and under ordinary circumstances do support, a prevalence of vegetation adapted for life in saturated soils.

There is still debate over the state definition of "wetland" and "delineation." Rule 62-340 of the Florida Administrative Code provides a specific methodology for identifying Florida wetlands. 

Florida Wetlands Protections

The Florida Environmental Resources Permit (ERP) Program is the standard for wetlands protection. This state regulation requires an ERP for developers in addition to those required by the federal government. When compared at the state level to the other Gulf Coast States, it is considered one of the most combative programs. The focus of this program is to ensure that negative impacts on water resources do not occur. These protections regulate water quantity and quality, and the ways wetland and surface water habitats serve fish and other wildlife. 

Florida Wetlands Permits

In addition to obtaining a 404 permit, developers must also receive an ERP. This permit is regulated by the Florida Department of Environmental Protection (FLDEP) and five regional divisions, Water Management Districts (WMDs), which work jointly with the state. The United States Corps of Engineers, who independently process the permit, must approve some of these permits. The Corps cannot issue a 404 permit without a state permit.

Outstanding Florida Water

These waters hold special significance to the state, such as a vital source of drinking water, and have additional regulations. Outstanding Waters can be lakes, rivers, a spring, wildlife refuges, or national parks. 

The Indian River Lagoon

The Indian River Lagoon is an estuary system home to over 2000 animal species. This area ranges across six counties on Florida's east coast. The health of these waters impacts the surrounding life and other waters, such as Lake Okeechobee and The Florida Everglades. 

Indian River Lagoon Act

This act protects the Indian River Lagoon System from pollution via wastewater discharge. This regulation protects the 156 miles of waters from pollutants harmful to the lagoon's biodiversity and surrounding and downstream waters.

Permitting for the Indian River Lagoon

Developers must obtain all permits required to comply with the federal Clean Water Act and the state water quality standards. Notably, developers must comply with the National Pollutant Discharge Elimination System (NPDES) stormwater permitting process. This federal permit is required to maintain the health of the Indian River Lagoon.

Florida Everglades

Florida Everglades Definition

The Florida everglades are a 2 million acre south Florida wetland water system that serves as a vast ecosystem and water resource for the state. The Everglades' waters begin as overflow from Lake Okeechobee that travel across marsh-filled rivers, into the Everglades National Park, and eventually, deposit into the Florida Bay. Irrigation for most of the state and drinking water for about 33% of people come from the Everglades. These waters play a critical role to humans and wildlife alike. The Everglades are home to many species, including over 360 species of birds, crocodiles, and some of the 100 endangered Florida panthers left in the world. Human interaction and invasive species threaten the Everglades.

Everglades Forever Act

Passed in 1994, the Everglades Forever Act aims to ensure the water quality of the Everglades. This act regulates materials discharged into the Everglades and ensures the EPA and state water quality standards are upheld.

Comprehensive Everglades Restoration Plan

This plan is an effort by the federal and Florida state governments for Everglade restoration and protection. Congress authorized this restoration plan in 2000. Evaluations and changes to regulations for Everglades are to occur to meet restoration goals. The main focus of this plan is to regulate Lake Okeechobee's overflow. Rules will maintain water quality by managing the discharge of pollutants, such as excess phosphorus, into the waters.

How Do Protected Florida Waters Impact Land Developers?

Protected waters fall under many federal, state, and local regulations. These waters can be challenging to identify, as in the case of temporary waters, and have consequences later in development. Delaying or incorrectly identifying waters can result in project delays and expensive recovery efforts. 

Additionally, Florida water serves as a habitat for many protected species, such as fish and vegetation. Due to this, developments will be subject to other federal and state regulations, such as the Endangered Species Act. Additional rules may apply for individual wetlands, which can in project failure. Proper environmental due diligence aids in the identification of these waters and navigations of regulations.

How to Identify Protected Florida Waters

Environmental Consultants

Environmental consultants are experts trained to survey sites for potential environmental impacts. These consultants are experts in the federal and their respective region's regulations. The consultant can recommend necessary permits and steps to ensure environmental compliance if they find an environmental risk-such as protected water. This traditional process is completed manually by an environmental consultant over weeks or months. 

Florida Department of Environmental Protection Open Data Administrator

This tool is a statewide mapping dataset composed of Geospatial Information Systems (GIS) Data regarding statewide protected waters available for public use. Though this data is frequently updated, it cannot provide site-specific information regarding protected waters and their required permits and next steps. This tool can be combined with other due diligence tools when selecting and developing a project site.

National Hydrography Dataset

This data depicts the nation's water drainage network. Software platforms use this data, which is available for download by the public. As the USFWS source, this tool does not outline permits needed, the jurisdiction of waters, and other regulations. Though these diligence tools are helpful, one of the easiest ways to identify wetlands is to use environmental due diligence software like Transect.

Transect Protected Waters Mapping Tool

Transect uses machine learning and integrated datasets, such as the National Hydrography Dataset, to automate the mapping of WOTUS. This software uses prior and current data about water locations to assess a specified region. The software provides the area and likelihood of regulated water appearing on a site in the jurisdiction of the water and includes a corresponding confidence level in its occurrence. Additionally, Transect will also provide a site-specific list of permits and next steps required to comply with federal, state, and local laws. This mapping tool can aid in selecting the right site for a project by generating this report in minutes.

Transect Software helps land developers discover these waters on any given parcel of land.