62-343.040. Formal Determinations of the Landward Extent of Wetlands and Other Surface Waters (Transferred)  


Effective on Wednesday, February 19, 2003
  • 1(1) Pursuant to Section 5373.421(2), F.S., 7a real property owner, an entity that has the power of eminent domain, or any other person who has legal or equitable interest in real property may petition the Department for a formal determination of the landward extent of wetlands and other surface waters for that property. A formal determination means the Department will determine or verify the locations on the property of the landward extent (boundaries) of wetlands and other surface waters as delineated using the methodology authorized by Section 88373.421(1), F.S.

    90(2) Petitions for a formal determination, except as provided in subsection (3), shall be processed as follows:

    107(a) The petitioner shall submit:

    1121. One copy of completed Form 11862-343.900(2), 119including copies of all items required by that form to the Division of Water Resource Management, Bureau of Submerged Lands and Environmental Resources; and

    1432. A non-refundable formal determination fee prescribed in Rule 15262-4.050, 153F.A.C.

    154(b)1. Within thirty days of receipt of a petition for a formal determination, the Department shall notify the petitioner of any additional information which may be necessary to complete the review of the petition. The petitioner shall have ninety days from the date the Department mails a timely request for additional information to submit that information to the Department. If a petitioner requires more than ninety days in which to respond to a request for additional information, the petitioner may notify the Department in writing of the circumstances, at which time the petition shall be held in active status for one additional period of up to ninety days. Additional extensions shall be granted for good cause shown by the petitioner. A showing that the petitioner is making a diligent effort to obtain the requested additional information shall constitute good cause. Failure of a petitioner to provide the timely requested information by the applicable deadline shall result in denial of the petition. The Department shall complete the determination and shall issue a notice of intended agency action within sixty days after the petition is deemed complete. The petitioner shall publish, at his own expense, the notice of proposed agency action in a newspaper of general circulation in the affected area. The petitioner shall provide a copy of the proof of publication of the notice of intended agency action to the Department using the format prescribed in subsection 39062-110.106(5), 391F.A.C.

    3922. The provisions of Sections 397120.569 398and 399120.57, F.S., 401apply to formal determinations made pursuant to this section. Any person whose substantial interests will be affected by the Department’s proposed action on the petition may request an administrative hearing under Rule 43362-110.106, 434F.A.C.

    435(c) A formal determination in the form of a certified survey, an approximate determination, or combinations thereof, as described below.

    4551. When a certified surveyed delineation of the extent of wetlands and other surface waters is used, the survey shall be certified as required by Chapter 472, F.S., to meet the minimum technical standards in Chapter 61G17-6, F.A.C. A petitioner seeking a certified surveyed delineation shall have a land surveyor registered in the State of Florida or the surveyor’s representative accompany the Department representative on the delineation verification as described in subsection (5), and shall have the land surveyor survey the verified boundaries of wetlands and other surface waters. The certified survey shall include a legal description of, and acreage contained within, the boundaries of the property for which the determination is sought. The boundaries of wetlands and other surface waters must be witnessed to the property boundaries, and shall be capable of being mathematically reproduced from the survey. The petitioner must submit to the Department five copies of the survey, along with five copies of the survey depicted on aerial photographs to complete the petition.

    6212. When an approximate delineation is used, it shall consist of a boundary produced by using a global positioning system (GPS), a boundary drawn on rectified aerial photographs, a geo-referenced image produced from a boundary drawn on a non-rectified aerial photograph, or any combination thereof. The approximate delineation shall be subject to the following:

    675a. A range of variability shall be determined for all approximate delineations by comparing a number of specific boundary points indicated on the aerial photograph, or located by GPS, to field located boundary points. The Department shall determine the number and location of comparison sites using the total linear feet of delineated boundary such that the total number of sites reflects at least one site for every 1000 feet of delineated boundary. No fewer than three boundary point comparisons shall be performed for each approximate delineation. For GPS approximate delineations, the petitioner shall conduct a specific purpose survey, as defined in Chapter 61G17-6, F.A.C., to show the relationship of field located boundary points to the GPS located boundary points. The range of variability shall be the greatest deviation measured at the comparison boundary points. An approximate delineation method cannot be used if the range of variability is equal to or greater than plus or minus 25 feet.

    832b. An aerial photograph shall serve as the basis for an approximate delineation only when the boundaries of wetlands and other surface waters are accurately depicted on the aerial photograph by the clear expression of vegetative or physical signatures as verified by groundtruthing. If a submitted aerial photograph does not provide an accurate depiction, then the landward extent of wetlands and other surface waters shall be delineated by flagging the boundary, and the formal determination shall be produced using a GPS or certified survey.

    916c. Subsequent to any verification and adjustment as required in subsection (5) the petitioner shall submit five copies of the following to complete the petition: a hand drawn delineation on a rectified aerial photograph; the geo-referenced image of the delineation and an aerial photograph with the delineation; or the GPS depiction of the delineation on an aerial photograph.

    974d. When a subsequent permit application includes regulated activities within 200 feet of the landward extent of the range of variability of an approximate delineation at a given location, the applicant shall establish in the field the exact boundary of the wetlands and surface waters at that location.

    1022(d) Prior to the Department’s inspection of the site, the petitioner or their agent shall initially delineate the boundaries of wetlands and other surface waters by either flagging the boundary for a certified survey or GPS survey or estimating the extent of wetlands and other surface waters on aerial photographs. A Department representative will then verify the location of the boundary line and indicate any necessary adjustments of the petitioner’s initial determination to reflect an accurate delineation.

    1099(3) Within the geographical territory of the South Florida District Office of the Department, formal determinations for a single-family residential property of five acres or less shall be processed as follows, unless the petitioner elects to petition for a formal determination using subsection 114262-343.040(2), 1143F.A.C.

    1144(a) For the purposes of this subsection, a single-family residential property means an entire parcel that is for one single-family dwelling unit and is not part of a larger plan of common development proposed by the petitioner.

    1181(b) The following items are required for a petition under this subsection:

    11931. One copy of completed Form 119962-343.900(2);

    12002. The fee required by paragraph 120662-4.050(4)(h), 1207F.A.C.;

    12083. A location map of sufficient detail to allow someone unfamiliar with the site to locate the property;

    12264. A determination, using Chapter 62-340, F.A.C., of the boundary of wetlands and other surface waters depicted on a survey that is certified as required by Chapter 472, F.S., to meet the technical standards in Chapter 61G17-6, F.A.C. If the property contains wetlands or other surface waters, the survey must reflect the field-flagged delineation of the boundaries of the wetlands and other surface waters. In such a case, the flags delineating the boundaries shall not be removed until the formal determination is issued or denied by the Department. If the property does not contain wetlands or other surface waters, the survey shall only depict the property boundaries.

    13335. A written description on the data sheet provided as Attachment 1 in Form 134762-343.900(2), 1348of the vegetation, hydrologic indicators and soil characteristics of both the wetland and upland conditions for one site, every 1,000 feet along the delineated boundary of the wetlands and other surface waters on a property.

    1384(c) The petition under this subsection shall be submitted to the district office of the Department covering the geographical limits where the property is located;

    1409(d) Within thirty days of receipt of a petition for a formal determination, the Department shall notify the petitioner of any additional information that may be necessary to complete the review of the petition. The petitioner shall have ninety days from the date the Department mails a timely request for additional information to submit that information to the Department. If a petitioner requires more than 90 days in which to respond to a request for additional information, the petitioner may notify the Department in writing of the circumstances, at which time the petition shall be held in active status for one additional period of up to 90 days. Additional extensions shall be granted for good cause shown by the petitioner. A showing that the petitioner is making a diligent effort to obtain the requested additional information shall constitute good cause. Failure of a petitioner to provide the timely requested information by the applicable deadline shall result in denial of the petition.

    1570(e) The petition shall be denied if the Department determines that the materials submitted to the Department under this subsection do not contain all the information required in paragraph 159962-343.040(3)(b), 1600F.A.C., or do not correctly delineate the landward extent of wetlands and other surface waters in accordance with Chapter 62-340, F.A.C. The Department shall issue or deny the formal determination for a petition submitted under this subsection within 45 days of the petition being deemed complete unless the petitioner provides the Department with a written waiver of this time.

    1659(f) The provisions of Sections 1664120.569 1665and 1666120.57, F.S., 1668apply to formal determinations made pursuant to this section. Any person whose substantial interests will be affected by the Department’s proposed action on the petition may request an administrative hearing under Rule 170062-110.106, 1701F.A.C.

    1702(g) Petitioners may, but are not required to, publish at their expense a notice of proposed agency action in a newspaper of general circulation in the affected area.

    1730(4) A formal determination shall be binding for five years provided physical conditions on the property do not change, other than changes which have been authorized by a permit issued under Part IV, Chapter 373, F.S., so as to alter the delineated wetland and surface water boundaries during that period.

    1780(5) A petition for a new formal determination for a property for which a formal determination issued pursuant to this rule already exists shall require the reduced fee set forth in paragraph 181262-4.050(4)(i), 1813F.A.C., provided:

    1815(a) Physical conditions on the property have not changed, other than changes which have been authorized by a permit issued under Part IV, Chapter 373, F.S., so as to alter the wetland and surface water boundaries during that period;

    1854(b) The petition is submitted 60 days prior to the expiration of the existing determination; and

    1870(c) The methodology for determining the landward extent of wetlands and other surface waters authorized by Section 1887373.421(1), F.S., 1889has not been amended since the previous formal determination.

    1898(6) Pursuant to Section 1902373.421(4), F.S., 1904the Department shall revoke a formal determination upon finding that the petitioner has submitted inaccurate information to the Department such that a substantially different delineation of the wetlands or other surface waters would have resulted if the correct information had been submitted.

    1946Rulemaking Authority 1948373.026(7), 1949373.043, 1950373.421(2), 1951403.0877 FS. 1953Law Implemented 1955120.54(5)(a), 1956373.421(2) FS. 1958History–New 7-4-95, Amended 8-14-96, 8-16-98, 2-19-03.

     

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