§ 27-337. Criteria for issuance or denial of an environmental resource license.

(a)

Application Requirements: A license shall be granted only after the applicant provides EPGMD with reasonable assurances that the license is not contrary to the public interest. In determining whether a project is not contrary to the public interest, EPGMD shall consider and balance the following criteria:

All Projects:

(1)

Whether the activity will adversely affect the public health, safety, or welfare or the property of others.

(2)

Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats.

(3)

Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling.

(4)

Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity.

(5)

Whether the activity will be of a temporary or permanent nature.

(6)

Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of § 267.061, F.S., as amended.

(7)

The current condition and relative value of functions being performed by areas affected by the proposed activity.

(8)

Whether the activity will adversely affect the Everglades as defined by the Everglades S.W.I.M. Plan, or Comprehensive Everglades Restoration Plan, as adopted by state and federal agencies.

(b)

Design Criteria: In addition to the general criteria, for all projects, a license shall not be issued for specific activity unless all the following criteria are met:

(1)

No permanent mooring of vessels will occur over seagrasses unless the water depth is three (3) feet or greater at mean low water.

(2)

No construction shall occur over seagrasses unless the vertical separation between the construction and the substrate is equal to or greater than five (5) feet.

(3)

Permanent terminal platforms, roof structures, or decks shall not be located over seagrasses or significant benthic communities.

(4)

Permanent access piers shall not be licensed over seagrasses or significant benthic communities unless the pier is four (4) feet wide or less, or six (6) feet wide or less and elevated five (5) feet or more above mean high water.

(5)

All vertical bulkheads or seawalls constructed in marine waters where no previous seawall existed shall be provided with natural limerock rip-rap, or other approved habitat enhancement, at the waterward face of the bulkhead or seawall.

(6)

Wetland impacts will not be licensed where an upland alternative is practicable or economically feasible.

(7)

Wetland impacts will be avoided or minimized to the greatest extent practicable.

(8)

Wetland losses which are unavoidable shall be replaced by compensatory mitigation such that ecological functional values provided by the subject wetland area are not lost as a result of the project.

(9)

There shall be a presumption that higher quality wetlands shall receive greater protection and enhancement than lower quality wetlands.

(10)

Mangrove alteration shall be licensed only if the alternation is in conformity with Chapter 373, Pt. IV, F.S. (§ 373.403, F.S. et seq.), and Chapter 403, F.S., as amended.

(11)

Any lake excavation shall meet design criteria that provides a minimum slope of one (1) foot vertical to every four (4) feet horizontal between the ordinary high water line to two (2) feet below the average dry season low water table elevation as demonstrated by water management district or county maps.

(c)

The Comprehensive Everglades Restoration Plan (CERP) includes numerous components across multiple counties in South Florida. It does not lend itself to licensing in the manner of associating mitigation to impact like typical development projects. Accordingly, CERP projects will be licensed based on reviewing and minimizing only the design and construction impacts and ensuring consistency with the conceptual design originally acknowledged by the County Commission.

(d)

Mitigation Functional Assessment Methods.

(1)

For all Environmental Resource License applications received by EPGMD on or after February 2, 2004, mitigation requirements shall be determined using the Uniform Mitigation Assessment Method, as described in Chapter 62-345, F.A.C., as amended.

(2)

For Environmental Resource License applications received by EPGMD prior to February 2, 2004, mitigation requirements and license modifications shall be determined using the Wetland Benefit Index as described herein.

a.

Should an applicant choose not to conduct a wetland benefit evaluation, the applicant shall comply with the following base replacement ratios for mitigation; and the WBI of the impacted area will be considered to be 1.0. Compensatory mitigation ratios shall be based upon the following criteria for each type of mitigation and wetland when performed concurrently with impacts (ratios are expressed as acres of compensatory mitigation required versus acres of impact):

TABLE II. BASE REPLACEMENT RATIOS FOR MITIGATION

	Wetland Type	Creation	Enhancement Higher Quality* (≥ 0.52 WBI)	Enhancement Lower Quality* (< 0.52 WBI)
1.	Tidal wetlands	3.0:1	2.5:1	2.0:1
2.	Forested freshwater, noncypress	3.5:1	3.0:1	2.5:1
3.	Forested freshwater, cypress	3.0:1	2.5:1	2.0:1
4.	Herbaceous freshwater	2.0:1	1.5:1	1.0:1

 

b.

The following modifiers will be used to calculate the final acreage requirements:

1.

Off-site, same basin × 1.2

2.

Off-site, different basin × 1.5

3.

Compensatory mitigation performed and completed prior to impacts occurring to subject wetland × 0.95

4.

Where it is determined by EPGMD that compensatory mitigation performed off site in the same basin or off site in a different basin is ecologically preferable to mitigation on site, and where the applicant has agreed to either have such mitigation performed in a mitigation bank licensed by EPGMD or if the applicant has provided assurances that other proposed off site mitigation will be performed in accordance with federal, state and EPGMD mitigation banking laws and rules and standards, the modifier will be × 1.0.

c.

Formula for determining final requirement for compensatory mitigation amount:

Acres × WBI IMPACT AREA × BASE REPL. RATIO × MODIFIER(S) = ACRES NEEDED × (1.0-WBI OF MITIGATION AREA)

*Higher/lower quality is determined whether above or below median (0.52 WBI).

d.

EPGMD shall evaluate wetland quality in accordance with Table II, Wetland Benefit Index. The Board requires and delegates the authority for EPGMD to develop a standard operating procedure for the Wetlands Benefit Index. The standard operating procedure shall be based upon commonly accepted scientific criteria and methodology and used by EPGMD to evaluate the categories of Table III.

TABLE III
WETLAND BENEFIT INDEX

(1)

Fish and Wildlife Values/Diversity (Select as many as apply):

Points Earned

Fish or shellfish ..... 1

Waterfowl or wading birds ..... 1

Furbearer ..... 1

Amphibians, aquatic macroinvertebrates, and aquatic reptiles ..... 1

Endangered and threatened fauna ..... 2

Apply to freshwater, saltwater, brackish and mitigation systems.

(2)

Hydrophyte Dominance     Points Earned

≥ 80% ..... 3

≥ 65% < 80% ..... 2

≥ 51% < 65% ..... 1

Apply to freshwater, saltwater, brackish and mitigation systems.

(3)

Intactness of Wetland Community (Select one category)

Points Earned

Unaltered ..... 5

Altered hydrology:

a. Slight ..... 4

b. Moderate ..... 3

c. Extreme ..... 2

Apply to freshwater, saltwater and brackish systems.

Alternate to (3) for mitigation/voluntarily created systems only:

Intactness of Mitigation System (Select one category)

Points Earned

Mitigation area complies with mitigation proposal and drawings for required hydrophytic vegetative association and hydrology ..... 5

Mitigation complies with the proposal and drawings for an alternate hydrophytic vegetative association and required hydrology ..... 4

Mitigation complies with the proposal and drawings for an alternate hydrophytic vegetative association and an alternate yet wetland hydrology ..... 3

Mitigation area complies with wetlands hydrology, but hydrophytic vegetative association is lacking or overgrown with nuisance species ..... 2

Mitigation area lacks hydrology and vegetative association ..... 0

(4)

Connectedness, Surface Water hydrology (Select one category)

Points Earned

Major connection (flowing water or floodplain) ..... 5

Minor connection (runoff collection point, etc.) ..... 3

Isolated from surface water system ..... 2

Apply to freshwater, saltwater, brackish and mitigation systems.

(5)

Connectedness, Location in Landscape (Select one category)

Points Earned

Located within or directly contiguous to a significant natural area over greater than 25% of the parcel boundary ..... 5

Located directly adjacent to a significant natural area by less than 25% of the parcel boundary ..... 3

Located within 3,000 feet of a significant natural area and separated by suitable natural lands, or forming a direct corridor with or between other significant natural lands ..... 2

Located more than 3,000 feet from a significant natural area and separated by unsuitable lands or developed areas only ..... 1

Apply to freshwater, saltwater, brackish and mitigation systems.

(6)

Hydroperiod:      Points Earned

≥ 5 Months Inundated or Saturated ..... 3

≥ 3 Months < 5 Months ..... 2

< 3 Months ..... 1

Apply to freshwater systems.

Alternate to (6) for saltwater, brackish (tidal) systems only:

Hydroperiod (Select one category)     Points Earned

Inundated by ≥ 90% high tides ..... 3

Inundated by "spring" tides only ..... 2

Saturated by normal tidal action ..... 1

(7)

Soils:     Points Earned

Organic soil classified hydric soil, or required replacement soil in mitigation areas ≥ 12 inches or any thickness over bedrock/caprock ..... 5

Organic soil classified hydric soil, or required replacement soil in mitigation areas ≥ 6 < 12 inches ..... 4

Soil classified hydric soil, or required replacement soil in mitigation areas ≥ 1 < 6 inches ..... 3

Organic soil classified hydric soil, or required replacement soil in mitigation area < 1 inch ..... 2

Apply to freshwater, saltwater, brackish and mitigation systems.

(8)

Native, Nonexotic or Mitigation Plant Cover (Current):

Points Earned

≥ 95% ..... 4

≥ 75% < 95% ..... 3

≥ 25% < 75% ..... 2

≥ 10% < 25% ..... 1

< 10% ..... 0

(9)

Habitat Diversity:     Points Earned

≥ 3 communities embedded in site ..... 5

2 or 3 communities ..... 3

1 community, mosaic ..... 2

1 community, monoculture ..... 1

Apply to freshwater, saltwater, brackish or mitigation systems.

(10)

Habitat Diversity Within 1,000 Feet:     Points Earned

≥ 3 alternative habitats available ..... 3

2 or 3 alternative habitats ..... 2

1 alternative habitat ..... 1

Apply to freshwater, saltwater, brackish or mitigation systems.

The WBI value is calculated by adding total points (maximum of 44) and dividing by 44. The maximum value would then be 1.0.

(Ord. No. 90-49, § 1(27-11.05), 12-18-90; Ord. No. 93-49, § 4, 11-23-93; Ord. No. 95-3, § 1.01, 1-24-95; Ord. No. 1999-55, § 1, 10-12-99; Ord. No. 2004-39, § 6, 11-09-04; Ord. No. 2005-11, § 9, 5-24-05; Ord. No. 2007-34, § 3, 11-27-07; Ord. No. 2009-56, § 1, 8-25-09)

Note— Formerly, § 27-335; former § 27-337 is now § 27-335.