§ 373.4211 — Ratification of chapter 17-340, Florida Administrative Code, on the delineation of the landward extent of wetlands and surface waters

Florida § 373.4211

• Jurisdiction: Florida
• Title: XXVIII
• Ch. 373: WATER RESOURCES

Text

Pursuant to s. 373.421, the Legislature ratifies chapter 17-340, Florida Administrative Code, approved on January 13, 1994, by the Environmental Regulation Commission, with the following changes:

(1) The last sentence of rule 17-340.100(1), Florida Administrative Code, is changed to read: “The methodology shall not be used to delineate areas which are not wetlands as defined in subsection 17-340.200(19), F.A.C., nor to delineate as wetlands or surface waters areas exempted from delineation by statute or agency rule.”

(2) The introductory paragraph of rule 17-340.300, Florida Administrative Code, is changed to read: “The landward extent (i.e., the boundary) of wetlands as defined in subsection 17-340.200(19), F.A.C., shall be determined by applying reasonable scientific judgment to evaluate the dominance of plant species, soils, and other hydrologic evidence of regular and periodic inundation and saturation as set forth below. In applying reasonable scientific judgment, all reliable information shall be evaluated in determining whether the area is a wetland as defined in subsection 17-340.200(19), F.A.C.”

(3) The introductory paragraph of rule 17-340.300(2), Florida Administrative Code, is changed to read: “The landward extent of a wetland as defined in subsection 17-340.200(19), F.A.C., shall include any of the following areas:”

(4) Rule 17-340.300(2)(a), Florida Administrative Code, is changed to read: “(a) Those areas where the areal extent of obligate plants in the appropriate vegetative stratum is greater than the areal extent of all upland plants in that stratum, as identified using the method in section 17-340.400, F.A.C., and either: “1. The substrate is composed of hydric soils or riverwash, as identified using standard U.S.D.A.-S.C.S. practices for Florida including the approved hydric soil indicators, except where the hydric soil is disturbed by a nonhydrologic mechanical mixing of the upper soil profile and the regulating agency establishes through data or evidence that hydric soil indicators would be present but for the disturbance; “2. The substrate is nonsoil, rock outcrop-soil complex, or is located within an artificially created wetland area, or “3. One or more of the hydrologic indicators listed in section 17-340.500, F.A.C., are present and reasonable scientific judgment indicates that inundation or saturation is present sufficient to meet the wetland definition of subsection 17-340.200(19), F.A.C.”

(5) Rule 17-340.300(2)(b), Florida Administrative Code, is changed to read: “(b) Those areas where the areal extent of obligate or facultative wet plants, or combinations thereof, in the appropriate stratum is equal to or greater than 80 percent of all the plants in that stratum, excluding facultative plants, and either: “1. The substrate is comprised of hydric soils or riverwash, as identified using standard U.S.D.A.-S.C.S. practices for Florida, including the approved hydric soil indicators, except where the hydric soil is disturbed by a nonhydrologic mechanical mixing of the upper soil profile and the regulating agency establishes through data or evidence that hydric soil indicators would be present but for the disturbance; “2. The substrate is nonsoil, rock outcrop-soil complex, or is located within an artificially created wetland area; or “3. One or more of the hydrologic indicators listed in section 17-340.500, F.A.C., are present and reasonable scientific judgment indicates that inundation or saturation is present sufficient to meet the wetland definition of subsection 17-340.200(19), F.A.C.”

(6) Rule 17-340.300(2)(c), Florida Administrative Code, is deleted.

(7) Rule 17-340.300(2)(d), Florida Administrative Code, is changed to read: “(c) Those areas, other than pine flatwoods and improved pastures, with undrained hydric soils which meet, in situ, at least one of the criteria listed below. A hydric soil is considered undrained unless reasonable scientific judgment indicates permanent artificial alterations to the onsite hydrology have resulted in conditions which would not support the formation of hydric soils. “1. Soil classified according to United States Department of Agriculture’s Keys to Soil Taxonomy (4th ed. 1990) as Umbraqualfs, Sulfaquents, Hydraquents, Humaquepts, Histosols (except Folists), Argiaquolls, or Umbraquults. “2. Saline sands (salt flats-tidal flats). “3. Soil within a hydric mapping unit designated by the U.S.D.A.-S.C.S. as frequently flooded or depressional, when the hydric nature of the soil has been field verified using the U.S.D.A.-S.C.S. approved hydric soil indicators for Florida. If a permit applicant, or a person petitioning for a formal determination pursuant to subsection 373.421(2), F.S., disputes the boundary of a frequently flooded or depressional mapping unit, the applicant or petitioner may request that the regulating agency, in cooperation with the U.S.D.A.-S.C.S., confirm the boundary. For the purposes of section 120.60, F.S., a request for a boundary confirmation pursuant to this subparagraph shall have the same effect as a timely request for additional information by the regulating agency. The regulating agency’s receipt of the final response provided by the U.S.D.A.-S.C.S. to the request for boundary confirmation shall have the same effect as a receipt of timely requested additional information. “4. For the purposes of this paragraph only, ‘pine flatwoods’ means a plant community type in Florida occurring on flat terrain with soils which may experience a seasonable high water table near the surface. The canopy species consist of a monotypic or mixed forest of long leaf pine or slash pine. The subcanopy is typically sparse or absent. The ground cover is dominated by saw palmetto with areas of wire grass, gallberry, and other shrubs, grasses, and forbs, which are not obligate or facultative wet species. Pine flatwoods do not include those wetland communities as listed in the wetland definition contained in subsection 17-340.200(19) which may occur in the broader landscape setting of pine flatwoods and which may contain slash pine. Also for the purposes of this paragraph only, ‘improved pasture’ means areas where the dominant native plant community has been replaced with planted or natural recruitment of herbaceous species which are not obligate or facultative wet species and which have been actively maintained for livestock through mechanical means or grazing.”

(8) Rule 17-340.300(2)(e), Florida Administrative Code, is changed to read: “(d) Those areas where one or more of the hydrologic indicators listed in section 17-340.500, F.A.C., are present, and which have hydric soils, as identified using the U.S.D.A.-S.C.S. approved hydric soil indicators for Florida, and reasonable scientific judgment indicates that inundation or saturation is present sufficient to meet the wetland definition of subsection 17-340.200(19), F.A.C. These areas shall not extend beyond the seasonal high water elevation.”

(9) Rule 17-340.300(2)(f), Florida Administrative Code, is deleted.

(10) Rule 17-340.300(3), Florida Administrative Code, is added to read: “(3)(a) If the vegetation or soils of an upland or wetland area have been altered by natural or human-induced factors such that the boundary between wetlands and uplands cannot be delineated reliably by use of the methodology in subsection 17-340.300(2), F.A.C., as determined by the regulating agency, and the area has hydric soils or riverwash, as identified using standard U.S.D.A.-S.C.S. practices for Florida, including the approved hydric soil indicators, except where the hydric soil is disturbed by a nonhydrologic mechanical mixing of the upper soil profile and the regulating agency establishes through data or evidence that hydric soil indicators would be present but for the disturbance, then the most reliable available information shall be used with reasonable scientific judgment to determine where the methodology in subsection 17-340.300(2), F.A.C., would have delineated the boundary between wetlands and uplands. Reliable available information may include, but is not limited to, aerial photographs, remaining vegetation, authoritative site-specific documents, or topographical consistencies. “(b) This subsection shall not apply to any area where regional or site-specific permitted activities, or activities which did not require a permit, under sections 253.123 and 253.124, F.S. (1957), as subsequently amended, the provisions of Chapter 403, F.S. (1983), relating to dredging and filling activities, Chapter 84-79, Laws of Florida, and Part IV of Chapter 373, F.S., have altered the hydrology of the area to the extent that reasonable scientific judgment, or application of the provisions of section 17-340.550, F.A.C., indicate that under normal circumstances the area no longer inundates or saturates at a frequency and duration sufficient to meet the wetland definition in subsection 17-340.200(19), F.A.C. “(c) This subsection shall not be construed to limit the type of evidence which may be used to delineate the landward extent of a wetland under this chapter when an activity violating the regulatory requirements of sections 253.123 and 253.124, F.S. (1957), as subsequently amended, the provisions of Chapter 403, F.S. (1983), relating to dredging and filling activities, Chapter 84-79, Laws of Florida, and Part IV of Chapter 373, F.S., has disturbed the vegetation or soils of an area.”

(11) Rule 17-340.300(4), Florida Administrative Code, is created to read: “17-340.300(4) The regulating agency shall maintain sufficient soil scientists on staff to provide evaluation or consultation regarding soil determinations in applying the methodologies set forth in subsections 17-340.300(2) or (3), F.A.C. Services provided by the U.S.D.A.-S.C.S., or other competent soil scientists, under contract or agreement with the regulating agency, may be used in lieu of, or to augment, agency staff.”

(12) Rule 17-340.400, Florida Administrative Code, is changed to read: “17-340.400 Selection of Appropriate Vegetative Stratum. “Dominance of plant species, as described in paragraphs 17-340.300(2)(a) and 17-340.300(2)(b), shall be determined in a plant stratum (canopy, subcanopy, or ground cover). The top stratum shall be used to determine dominance unless the top stratum, exclusive of facultative plants, constitutes less than 10 percent areal extent, or unless reasonable scientific judgment establishes that the indicator status of the top stratum is not indicative of the hydrologic conditions on site. In such cases, the stratum most indicative of onsite hydrologic conditions, considering the seasonable variability in the amount and distribution of rainfall, shall be used. The evidence concerning the presence or absence of regular and periodic inundation or saturation shall be based on in situ data. All facts and factors relating to the presence or absence of regular and periodic inundation or saturation shall be weighed in deciding whether the evidence supports shifting to a lower stratum. The presence of obligate, facultative wet, or upland plants in a lower stratum does not by itself constitute sufficient evidence to shift strata, but can be considered along with other physical data in establishing the weight of evidence necessary to shift to a lower stratum. The burden of proof shall be with the party asserting that a stratum other than the top stratum should be used to determine dominance. Facultative plants shall not be considered for purposes of determining appropriate strata or dominance.”

(13) Rule 17-340.450(1), Florida Administrative Code, is changed by deletion of the following plant species: Habenaria repens , Schoenus nigricans , and Ulmus americana .

(14) Rule 17-340.450(2), Florida Administrative Code, is changed by deletion of the following plant species: Bucida buceras , Bumelialycioides , Conoclinium coelestinum , Coreopsis tripteris , Erithralis fruticosa , Eryngium baldwini , Eustachys petracea , Helianthus floridanus , Muhlenbergia expansa , Myrsine quianensis , Peperomia floridana , Scutellaria floridana , Scutellaria integrifolia , Stillingia sylvatica var. tenuis , Tripsacum dactyloides , Verbesina virginica , and Wisteria frutescens , Aletris spp. , Alopecurus carolinianus , Carphephorus odoratissimus , Carphephorus paniculata , Chasmanthium spp. , Elytraria caroliniensis , Euthamia spp. , Flaveria spp. , Gratiola spp. , Habenaria spp. except Habenaria repens (OBL), Hibiscus tiliaceus , Ilex opaca var. opaca , Lilium catesbaei , Metopium toxiferum , Morus rubra , Nephrolepis spp. , Oplismenus setarius , Panicum tenue , Vaccinium elliotti , Fimbristylis spathacea , Guapira discolor , Jacquinia keyensis , Morinda royoc , Schizachyrium maritimum , Schizachyrium rhizomatum , Strumpfia maritima , Baccharis glomeruliflora , Lachnanthes caroliniana , Liatris spicata , Lyonia ligustrina , Michella repens , Sambucus conadensis , Sebastiana fruticosa , and Setaria geniculata .

(15) Rule 17-340.450(2) is changed by adding the following species: Chasmanthium spp. except Chasmanthium latifolum (FAC) and Chasmanthium sessiliflorum (FAC), Flaveria floridana , Flaveria linearis , Gratiola spp. except Gratiola hispida (FAC), and Habenaria spp. , Schoenus nigricans , and Ulmus americana .

(16) Rule 17-340.450(2) is amended by adding, after the species list, the following language: “Within Monroe County and the Key Largo portion of Miami-Dade County only, the following species shall be listed as Facultative Wet: Alternanthera maritima , Morinda royoc , and Strumpfia maritima .”

(17) Rule 17-340.450(3) is changed by deleting the following species: Bischofia javanica , Dioclea multiflora , Canella alba , Ernodea littoralis , Eugenia axillaris , Eugenia foeteda , Eugenia rhombea , Eugenia uniflora , Manilkara bahamensis , Musa spp. , Pisonia rotundata , Psidium guajava , Randia aculeata , and Reynois septentrionalis , Terminalia catappa , Paspalum bifidum , Ligustrum spp. , and Urena lobata .

(18) Rule 17-340.450(3) is changed by adding the following species: Bucida buceras , Bumelia lycioides , Conoclinium coelestinum , Coreopsis tripteris , Erithralis fruticosa , Eryngium baldwini , Eustachys petracea , Helianthus floridanus , Muhlenbergia expansa , Myrsine quianensis , Scutellaria floridana , Scutellaria integrifolia , Stillingia sylvatica var. tenuis , Tripsacum dactyloides , and Verbesina virginica, Aletris spp. , Alopecurus carolinianus , Carphephorus odoratissimus , Carphephorus paniculata , Chasmanthium latifolum , Chasmanthium sessiliflorum , Elytraria caroliniensis , Euthamia spp. , Fimbristylis spathacea , Flaveria bidentis , Flaveria trinervia , Gratiola hispida , Heliotropium polyphyllum , Hibiscus tiliaceus , Ilex opaca var. opaca , Jacquinia keyensis , Lilium catesbaei , Metopium toxiferum , Morus rubra , Nephrolepis spp. , Oplismenus setarius , Panicum tenue , Schizachyrium spp. , Vaccinium elliotti , Baccharis glomeruliflora , Lachnanthes caroliniana , Liatrius spicata , Lyonia ligostrina , Sambucus canadensis , Sebastiana fruticosa , and Setaria geniculata .

(19) Rule 17-340.450(3) is amended by adding, after the species list, the following language: “Within Monroe County and the Key Largo portion of Miami-Dade County only, the following species shall be listed as facultative: Alternanthera paronychioides , Byrsonima lucida , Ernodea littoralis , Guapira discolor , Marnilkara bahamensis , Pisonis rotundata , Pithecellobium keyensis , Pithecellobium unquis-cati , Randia aculeata , Reynosia septentrionalis , and Thrinax radiata .”

(20) Rule 17-340.500, Florida Administrative Code, is changed to read: “The indicators below may be used as evidence of inundation or saturation when used as provided in section 17-340.300, F.A.C. Several of the indicators reflect a specific water elevation. These specific water elevation indicators are intended to be evaluated with meteorological information, surrounding topography, and reliable hydrologic data or analyses when provided, to ensure that such indicators reflect inundation or saturation of a frequency and duration sufficient to meet the wetland definition in subsection 17-340.200(19), F.A.C., and not rare or aberrant events. These specific water elevation indicators are not intended to be extended from the site of the indicator into surrounding areas when reasonable scientific judgment indicates that the surrounding areas are not wetlands as defined in subsection 17-340.200(19), F.A.C. “(1) Algal mats. The presence or remains of nonvascular plant material which develops during periods of inundation and persists after the surface water has receded. “(2) Aquatic mosses or liverworts on trees or substrates. The presence of those species of mosses or liverworts tolerant of or dependent on surface water inundation. “(3) Aquatic plants. Defined in subsection 17-340.200(1), F.A.C. “(4) Aufwuchs. The presence or remains of the assemblage of sessile, attached, or free-living, nonvascular plants and invertebrate animals (including protozoans) which develop a community on inundated surfaces. “(5) Drift lines and rafted debris. Vegetation, litter, and other natural or manmade material deposited in discrete lines or locations on the ground or against fixed objects, or entangled above the ground within or on fixed objects in a form and manner which indicates that the material was waterborne. This indicator should be used with caution to ensure that the drift lines or rafted debris represent usual and recurring events typical of inundation or saturation at a frequency and duration sufficient to meet the wetland definition of subsection 17-340.200(19), F.A.C. “(6) Elevated lichen lines. A distinct line, typically on trees, formed by the water-induced limitation on the growth of lichens. “(7) Evidence of aquatic fauna. The presence or indications of the presence of animals which spend all or portions of their life cycle in water. Only those life stages which depend on being in or on water for daily survival are included in this indicator. “(8) Hydrologic data. Reports, measurements, or direct observation of inundation or saturation which support the presence of water to an extent consistent with the provisions of the definition of wetlands and the criteria within this rule, including evidence of a seasonal high water table at or above the surface according to methodologies set forth in Soil and Water Relationships of Florida’s Ecological Communities (Florida Soil Conservation Staff 1992). “(9) Morphological plant adaptations. Specialized structures or tissues produced by certain plants in response to inundation or saturation, which normally are not observed when the plant has not been subject to conditions of inundation or saturation. “(10) Secondary flow channels. Discrete and obvious natural pathways of water flow landward of the primary bank of a stream watercourse and typically parallel to the main channel. “(11) Sediment deposition. Mineral or organic matter deposited in or shifted to positions indicating water transport. “(12) Vegetated tussocks or hummocks. Areas where vegetation is elevated above the natural grade on a mound built up of plant debris, roots, and soils so that the growing vegetation is not subject to the prolonged effects of soil anoxia. “(13) Water marks. A distinct line created on fixed objects, including vegetation, by a sustained water elevation.”

(21) Rule 17-340.600(2)(e), Florida Administrative Code, is changed to read: “(e) the seasonal high-water line for artificial lakes, borrow pits, canals, ditches, and other artificial water bodies with side slopes flatter than 1 foot vertical to 4 feet horizontal along with any artificial water body created by diking or impoundment above the ground.”

(22) The first sentence of subsection (1) and paragraphs (1)(a) and (b) of rule 17-340.700, Florida Administrative Code, are changed to read: “(1) Alteration and maintenance of the following shall be exempt from the rules adopted by the department and the water management districts to implement subsections 373.414(1) through 373.414(6), 373.414(8), and 373.414(10), F.S.; and subsection 373.414(7), F.S., regarding any authority to apply state water quality standards within any works, impoundments, reservoirs, and other watercourses described in this subsection and any authority granted pursuant to section 373.414, F.S. (1991): “(a) Works, impoundments, reservoirs, and other watercourses constructed and operated solely for wastewater treatment or disposal in accordance with a valid permit reviewed or issued under sections 17-28.700, 17-302.520, F.A.C., Chapters 17-17, 17-600, 17-610, 17-640, 17-650, 17-660, 17-670, 17-671, 17-673, 17-701, F.A.C., or section 403.0885, F.S., or rules implementing section 403.0885, F.S., except for treatment wetlands or receiving wetlands permitted to receive wastewater pursuant to Chapter 17-611, F.A.C., or section 403.0885, F.S., or its implementing rules; “(b) Works, impoundments, reservoirs, and other watercourses constructed solely for wastewater treatment or disposal before a construction permit was required under Chapter 403, F.S., and operated solely for wastewater treatment or disposal in accordance with a valid permit reviewed or issued under sections 17-28.700, 17-302.520, F.A.C., Chapters 17-17, 17-600, 17-610, 17-640, 17-650, 17-660, 17-670, 17-671, 17-673, 17-701, F.A.C., or section 403.0885, F.S., or rules implementing section 403.0885, F.S., except for treatment wetlands or receiving wetlands permitted to receive wastewater pursuant to Chapter 17-611, F.A.C., or section 403.0885, F.S., or its implementing rules;”

(23) The first sentence of rule 17-340.700(2), Florida Administrative Code, is changed to read: “(2) Alteration and maintenance of the following shall be exempt from the rules adopted by the department and the water management districts to implement subsections 373.414(1), 373.414(2)(a), 373.414(8), and 373.414(10), F.S.; and subsections 373.414(3) through 373.414(6), F.S.; and subsection 373.414(7), F.S., regarding any authority to apply state water quality standards within any works, impoundments, reservoirs, and other watercourses described in this subsection and any authority granted pursuant to section 373.414, F.S. (1991), except for authority to protect threatened and endangered species in isolated wetlands:”

(24) Rule 17-340.700(7), Florida Administrative Code, is changed to read: “(7) As used in this subsection, ‘solely for’ means the reason for which a work, impoundment, reservoir, or other watercourse is constructed and operated; and such construction and operation would not have occurred but for the purposes identified in subsection 17-340.700(1) or subsection 17-340.700(2), F.A.C. Furthermore, the phrase does not refer to a work, impoundment, reservoir, or other watercourse constructed or operated for multiple purposes. Incidental uses, such as occasional recreational uses, will not render the exemption inapplicable, so long as the incidental uses are not part of the original planned purpose of the work, impoundment, reservoir, or other watercourse. However, for those works, impoundments, reservoirs, or other watercourses described in paragraphs 17-340.700(1)(c) and 17-340.700(2)(a), F.A.C., use of the system for flood attenuation, whether originally planned or unplanned, shall be considered an incidental use, so long as the works, impoundments, reservoirs, and other watercourses are no more than 2 acres larger than the minimum area required to comply with the stormwater treatment requirements of the district or department. For the purposes of this subsection, reuse from a work, impoundment, reservoir, or other watercourse is part of treatment or disposal.”

(25) The first sentence of rule 17-340.750, Florida Administrative Code, is changed to read: “17-340.750 Exemption for Surface Waters or Wetlands Created by Mosquito Control Activities. “Construction, alteration, operation, maintenance, removal, and abandonment of stormwater management systems, dams, impoundments, reservoirs, appurtenant works, or works, in, on, or over lands that have become surface waters or wetlands solely because of mosquito control activities undertaken as part of a governmental mosquito control program, and which lands were neither surface waters nor wetlands before such activities, shall be exempt from the rules adopted by the department and water management districts to implement subsections 373.414(1) through 373.414(6), 373.414(8), and 373.414(10), F.S.; and subsection 373.414(7), F.S., regarding any authority granted pursuant to section 373.414, F.S. (1991):”

(26) Any future amendments to chapter 17-340, Florida Administrative Code, shall be submitted in bill form to the Speaker of the House of Representatives and to the President of the Senate for their consideration and referral to the appropriate committees. Such chapter amendments shall become effective only upon approval by act of the Legislature.

Legislative History

s. 1, ch. 94-122; s. 101, ch. 96-410; s. 46, ch. 97-96; s. 85, ch. 2008-4.