Section 403.061(27), Florida Statutes, grants the Department of Environmental Protection (DEP) the power to establish rules that provide for a special category of waterbodies within the state, to be referred to as “Outstanding Florida Waters,” which shall be worthy of special protection because of their natural attributes.
DEP is the agency that designates a waterbody as an OFW; however, each OFW must be approved by an arm of DEP known as the Environmental Regulation Commission (ERC). The ERC is a seven-member citizens body appointed by the Governor.
Projects regulated by the department or a water management district (WMD) that are proposed within an OFW must not lower existing ambient water quality, which is defined for purposes of an OFW designation as the water quality at the time of OFW designation or the year before applying for a permit, whichever water quality is better. In general, DEP cannot issue permits for direct discharges to OFWs that would lower ambient (existing) water quality. In most cases, this deters new wastewater discharges directly into an OFW and requires increased treatment for stormwater discharging directly into an OFW. DEP also may not issue permits for indirect discharges that would significantly degrade a nearby waterbody designated as an OFW.
In addition, activities or discharges within an OFW, or which significantly degrade an OFW, must meet a more stringent public interest test. The activity or discharge must be “clearly in the public interest.” For example, activities requiring an Environmental Resource Permit (ERP), such as dredging or filling within a wetland or other surface water or construction/operation of a stormwater system, must be clearly in the public interest instead of not contrary to the public interest.
In determining whether an activity or discharge that requires an ERP permit is not contrary to the public interest or is clearly in the public interest, DEP or a WMD must consider and balance the following factors:
Whether the activity will adversely affect the public health, safety, welfare or the property of others;
Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;
Whether the activity will be of a temporary or permanent nature;
Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of S. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
Rulemaking procedures pursuant to Chapter 120, F.S., must be followed;
At least one fact-finding workshop must be held in the affected area;
All local county or municipal governments and state legislators whose districts or jurisdictions include all or part of a water body proposed for Special Water designation must be notified at least 60 days prior to the workshop in writing by the Secretary of DEP;
A prominent public notice must be placed in a newspaper of general circulation in the area of the proposed Special Water at least 60 days prior to the workshop;
An economic impact analysis, consistent with Chapter 120, must be prepared that provides a general analysis of the effect of OFW designation on local growth and real estate development, including such factors as impacts on planned or potential residential, industrial, agricultural or other development or expansion; and
The Environmental Regulation Commission may designate a water of the state as a Special Water after making a finding that the waters are of exceptional recreational or ecological significance and a finding that the environmental, social and economic benefits of the designation outweigh the environmental, social and economic costs (Rule 62-302.700(5), F.A.C.).
December 19, 2017 - 12:44pm
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The Florida Department of Environmental Protection is the state’s lead agency for environmental management and stewardship – protecting our air, water and land. The vision of the Florida Department of Environmental Protection is to create strong community partnerships, safeguard Florida’s natural resources and enhance its ecosystems.