Wetlands Regulations

Wetlands is a term used to describe transitional lands between terrestrial (upland) and aquatic (bottomland) systems where the water table is usually at or near the surface, or the land is covered by shallow water.  According to the U.S. Fish and Wildlife Service definition, wetlands have one or more of the following three characteristics:

  • The land supports predominantly hydrophytes (aquatic plants). 
  • The land is composed predominantly of undrained hydric soil. 
  • The land is saturated with water or covered by shallow water at some time during the growing season of each year.

Wetlands include marshes, swamps, bogs, and similar areas found in a variety of vegetated conditions, in depressions, and along edges of streams, rivers, lakes, and coastlines. 

Why all the Attention?

For many years wetlands were considered to be low quality land that needed to be drained and converted to other more "productive" uses. However, after much study it is now understood that wetlands provide many important environmental functions and societal values that are lost when they are converted.  Some of these important functions are outlined below:

  1. Wetlands are the only home to many rare plant and animal species.
  2. One-third of all endangered and threatened species in this country depend on wetlands for at least a portion of their habitat.
  3. Wetlands filter and cleanse sediments and other pollutants from runoff from upland areas.
  4. Wetlands provide storage and improve the quality of flood waters, thereby minimizing flood damage in several ways.
  5. Wetlands are the home and/or breeding ground for many  economically-important species of fish and wildlife.
  6. Wetlands protect shorelines from erosion.
  7. Forested wetlands provide timber to help meet the growing need for forest products.
  8. Wetlands provide diversity and beauty in our landscape.

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Federal Law

The federal government implements wetland regulations through section 404 of the Clean Water Act, which is now subject to reauthorization by Congress.  The Corps of Engineers (COE) and the Environmental Protection Agency (EPA) both have active roles in implementing the Clean Water Act.

Section 404 of the Clean Water Act regulates the discharge of dredged or fill material into waters of the United States. The goal of this section is to "restore and maintain the chemical, physical, and biological integrity of the nation's waters", which includes all rivers, streams, lakes, wetlands, and coastal waters. 

Before conducting any activity that will result in discharge of dredged or fill material, a Section 404 Permit usually must be obtained from the U.S. Army Corps of Engineers prior to beginning the activity.  See the "State Law" section for exemptions. 

The best way to comply with the standards oulined in the Clean Water Act is to adopt Florida's Silviculture Best Management Practices.

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State Law

Florida passed legislation in 1984 known as the Warren S. Henderson Wetland Protection Act.  Exemptions for most agricultural and silvicultural activities were maintained under Chapters 373 and 403 of the Florida Statutes.  These exemptions read as follows:

Chapter 373, F.S. -- "Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to affect the right of any person engaged in the occupation of agriculture, silviculture, floriculture, horticulture to alter the topography of any tract of land for purposes consistent with the practice of such occupation.  However, such alteration may not be for the sole or predominant purpose of impounding or obstructing surface waters." 

Chapter 403, F.S. -- "'Agricultural activities includes all necessary forestry and farming operations which are normal and customary for the area, such as site preparation, clearing, fencing, contouring to prevent soil erosion, soil preparation, plowing, planting, harvesting, construction of access roads, and placement of bridges and culverts, provided such operations do not impede or divert the flow of surface waters." 

The forestry community, with general support of the Water Management Districts (WMDs), which regulate agricultural and silvicultural fill and dredge activities, has interpreted these exemptions to mean that harvest, site preparation, and planting are exempt from regulation.

For an activity to be exempt, three condtions must apply:

  1. It must be a part of an established, ongoing silvicultural operation.
  2. It must be considered "normal silviculture", or customary to the practice of forestry.
  3. It must not significantly change wetland use or impair the flow and circulation of water on, around, or across a wetland.

1. An Established Ongoing Operation: 

This condition requires that the site must have been managed for forest products in the past and that it will continue to be managed for that purpose.  Frequently used indicators for this condition include: 

  1. Existence of a management plan
  2. Records of past forestry operations
  3. Contracts for future activities (e.g., tree planting, harvesting)
  4. Physical evidence of past management such as old stumps, skid roads, or firelines.

The Division of Forestry or a private consultant can be very helpful in identifying or locating these indicators.  Remember that any subsequent change in land use (i.e., row crops, urban commercial development, residential development) negates the silviculture exemption.

2. Normal Silvicultural Activities

"Normal" silviculture includes but is not limited to harvesting, thinning, planting, seeding, plowing, cultivation, and minor drainage for the production of forest products. Most of the activities outlined in the "Timber Management" section of this site fall under the "normal" silviculture category.  However, a professional forester should be consulted when there is a question about whether a planned wetland forestry activity would be considered "normal" silviculture.

3. Practices that Can Change Wetland Use or Alter Site Hydrology

Drainage must never result in conversion of the site to an upland or significantly alter its overall hydrologic functions.  Large drainage systems can cause these alterations, and should not be constructed before consulting a professional forester to validate the need for such a system.  The Corps of Engineers (COE) should also be consulted to ensure that the planned drainage is considered "minor".  These steps should avoid after-the-fact problems and potentially costly site restoration.

Note: Activities which impede, impound, or divert flow in wetlands such as drainage ditches or fill roads will fall under a permit system with the WMDs.

The Florida Department of Environmental Protection (DEP) and/or the WMDs hold the right to enforce the State's water quality standards.  Turbidity, an optical measurement of the relative clarity of water, is the major standard that affects silvicultural operations on wetland sites.

Best Management Practices - New Rule and Notice of Intent

The Division of Forestry (DOF) serves as the implementing agency for the silvicultural element of the State Water Quality Plan by agreement with DEP.  The DOF strongly encourages the use of Forestry Best Management Practices (BMPs) through training sessions and technical assistance.  The DOF also conducts biannual aerial and on-the-ground surveys to assess the success of the program. 

The new BMP Rule aims to acheive pollutant reduction through the implementation of non-regulatory and incentive based programs which may be determined to have minimal individual or cumulative adverse impacts to the water resources of the state. 

The document titled "Best Management Practices for Silviculture (2003)" is incorporated and adopted by reference in this rule. Copies of the document may be obtained from the Department of Agriculture and Consumer Services, Division of Forestry, 3125 Conner Boulevard, Tallahassee, Florida 32399-1650 (850) 414-9935 or FAX (850) 488-0863.

In order to obtain the presumption of compliance with state water quality standards and release from the provisions of s. 376.307 (5), F.S. for those pollutants addressed by the practices the applicant must:

  1. Conduct an assessment of the subject properties using the document titled Best Management Practices for Silviculture (October, 2003)
  2. Submit a Notice of Intent to Implement as outlined in 5I-6.004.
  3. Implement the non-regulatory and incentive-based BMPs identified as a result of the assessment of the subject properties and listed in the Notice of Intent to Implement.
  4. Maintain documentation to verify the implementation and maintenance of the non-regulatory and incentive-based BMPs as outlined in 5I-6.005.

Additional Resources

Florida Forestry Information

State & Federal Agencies

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Local Ordinances & Contacts

Many local governments have developed their own wetland protection programs.  The majority of these programs have traditionally focused on development activities, but some programs can affect forestry practices.

The potential impact of local wetland protection programs to the forestry community can be significant since no state or federal exemptions apply to local regulations.  It is extremely important that land managers become aware of any such local ordinances in jurisdictions where silivicultural activities are conducted.

Click on the links below for contacts you can reach for more information:

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New BMP Rule & Notice of Intent

The Division of Forestry (DOF) serves as the implementing agency for the silvicultural element of the State Water Quality Plan by agreement with DEP.  The DOF strongly encourages the use of Forestry Best Management Practices (BMPs) through training sessions and technical assistance.  The DOF also conducts biannual aerial and on-the-ground surveys to assess the success of the program. 

The new BMP Rule aims to acheive pollutant reduction through the implementation of non-regulatory and incentive based programs which may be determined to have minimal individual or cumulative adverse impacts to the water resources of the state. 

The document titled "Best Management Practices for Silviculture (2003)" is incorporated and adopted by reference in this rule. Copies of the document may be obtained from:

  • Florida Department of Agriculture and Consumer Services
    Division of Forestry
    3125 Conner Boulevard
    Tallahassee, Florida 32399-1650
  • Phone: (850) 414-9935
    Fax: (850) 488-0863.

In order to obtain the presumption of compliance with state water quality standards and release from the provisions of s. 376.307 (5), F.S. for those pollutants addressed by the practices the applicant must:

  1. Conduct an assessment of the subject properties using the document titled Best Management Practices for Silviculture (October, 2003)
  2. Submit a Notice of Intent to Implement as outlined in 5I-6.004.
  3. Implement the non-regulatory and incentive-based BMPs identified as a result of the assessment of the subject properties and listed in the Notice of Intent to Implement.
  4. Maintain documentation to verify the implementation and maintenance of the non-regulatory and incentive-based BMPs as outlined in 5I-6.005

Additional Resources

Florida Forestry Information

State & Federal Agencies

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Circumstances in Which Site Preparation Activities Require a Permit

It has been recognized that mechanical site preparation activities may have  significant, measurable impacts on aquatic ecosystems when conducted in wetlands that are permanently flooded, intermittently exposed, and semi-permanently flooded.  Also, some wetland communities have aquatic functions and values that are more susceptible to such activities.  

For the wetland types identified below, it is most effective to evaluate proposals for site preparation and associated environmental effects on a case-by-case basis as part of the individual permitting process. 

A permit will be required in the following areas unless they have been so altered through past practices (including installation and maintenance of water management structures) that they no longer exhibit the distinguishing characteristics described.

1. Permanently Flooded, Intermittently Exposed, and Semi-Permanently Flooded Wetlands

  • a - Permanently flooded wetlands have water that covers the land surface throughout the year in all years.
  • b - Intermittently exposed wetlands have surface water that is present throughout the year except in years of extreme drought.
  • c - Semi-permanently flooded wetlands have surface water that persists throughout the growing season in most years and, when it is absent, the water table is usually at or very near the land surface.

Examples of these wetlands include cypress-gum swamps, muck and peat swamps, and cypress domes and strands.

2. Riverine Bottomland Hardwood Wetlands

These are seasonally flooded (or wetter) bottomland hardwood wetlands on the floodplains of river systems.  Site specific characteristics of hydrology, soils, vegetation, and the presence of alluvial features are given below:

  • a - Include floodplain sites where overbank flooding has resulted in well-defined floodplains, bottoms and terraces, natural levees, and backswamps.  Seasonally flooded bottomland hardwood wetlands are characterized by surface water that is present for extended periods, especially during the growing season, but is absent at the end of the season in most years.  When water is absent, the water table is often very near the land surface.  Indicators of the presence of surface water include water-stained leaves, drift lines, and water marks on trees.
  • b - Hardwoods dominate the canopy.  For our purposes, these wetlands do not include sites on which greater than 25% of the canopy is pine.
  • c - The soil characteristics are hydric soils that are poorly drained or very poorly drained.

3. White Cedar Swamps

These are wetlands with greater than one acre in headwaters and greater than 5 acres elsewhere.  They are underlain by peat of greater than 1 meter, and vegetated by natural white cedar representing greater than 50% of the basal area, where the total basal area for all tree species is 60 square feet or greater.

4. Carolina Bay Wetlands

These are elliptical depressions with a sand rim, underlain by:

  • Clay-based soils and vegetated by cypress or
  • Peat of greater than 1/2 meter and typically vegetated with an overstory of red, sweet, and loblolly bays (Persea borbonia, Magnolia virginiana,and Gordonia lasianthus)

5. Non-Riverine Forest Wetlands

These are rare, wet forests with mature vegetation, located on the Southeastern coastal plain.  2 community types are in this group:

  • a - Non-riverine wet hardwood forests - poorly drained mineral soil flats comprising 10 or more contiguous acres, typically on the margins of large peatland areas, seasonally flooded or saturated by high water tables.  Vegetation dominated by swamp chestnut oak (Quercus michauxii), cherrybark oak (Quercus falcata var. pagodaefolia), or laurel oak (Quercus laurifolia).
  • b - Non-riverine swamp forests - very poorly drained flats comprising 5 or more contiguous acres, with organic or mineral soils with high organic content, seasonally to frequently flooded or saturated by high water tables.  Vegetation dominated by bald cypress (Taxodium distichum var. distichum), pond cypress (Taxodium ascendens), swamp tupelo (Nyssa sylvatica var. biflora), water tupelo (Nyssa aquatica), or Atlantic white-cedar (Chamaecyparis thyoides).

These forests are generally undisturbed and their character has not been significantly affected by human activities.  Non-riverine forest wetlands dominated by red maple (Acer rubrum), sweetgum (Liquidambar styraciflua), or loblolly pine (Pinus taeda) are not considered to be of high quality and do not require a permit.

6. Low Pocosin Wetlands

These wetlands are in the central parts of domed peatlands on poorly drained flats, underlain by peat soils greater than 1 meter deep.  They are typically vegetated by a dense layer of short shrubs. 

7. Wet Marl Forests

These are hardwood forest wetlands with poorly drained soils that are marl-derived and of high pH.

8. Tidal Freshwater Marshes

These are wetlands that are regularly or irregularly flooded by freshwater with dense herbaceous vegetation, on margins of estuaries or rivers and creeks.

9. Maritime Grasslands, Shrub Swamps, and Swamp Forests

These are barrier island wetlands in dune swales and flats, underlain with wet mucky or sandy soils, vegetated by wetland herbs, shrubs, and trees.

Additional Resources

State & Federal Agencies

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Circumstances in Which Site Preparation Activities Do Not Require a Permit

Mechanical site preparation activities do not require a permit if they: 

  • are in wetlands that are seasonally flooded
  • are in wetlands that are intermittently flooded
  • are in wetlands that are temporarily flooded
  • are in existing pine plantations or other silvicultural areas (except as listed under circumstances requiring a permit)
  • minimize impacts aquatic ecosystems
  • are conducted according to BMPs

See our Best Management Practices page for more information.

Seasonally flooded wetlands have surface water that is present for extended periods early in the growing season, but is absent by the end of the season in most years.  The water table is often near the surface. 

Intermittently flooded wetlands have a substrate that is usually exposed, but surface water is present for variable periods (without a detectable seasonal pattern of flooding). 

Temporarily flooded wetlands have surface water that is present for brief periods during the growing season and have a water table lying well below the surface for most of the season. 

Saturated wetlands have a substrate that is saturated for extended periods of the growing season but surface water is seldom present. 

Examples of these wetlands include pine flatwoods, pond pine woodlands, and wet flats (certain pine/hardwood forests).

Additional Resources

State & Federal Agencies

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1996 Farm Bill Swampbuster Provisions

Revisions to the Swampbuster

The 1996 Farm Bill changed Swampbuster to give producers greater flexibility in complying with wetland conservation requirements and to increase the value and function of wetlands.  The 1996 Farm Bill changed the following Swampbuster provisions:

Wetland Determination

Upon request, the U.S. Department of Agriculture's (USDA) Natural Resources Conservation Service (NRCS) will determine if a producer's land has wetland areas subject to Swampbuster. The NRCS maintains a list of the plants and combinations of soils and plants found in wetlands and uses this as a guideline, along with an area's hydrology, to conduct determinations. These determinations remain in effect as long as the land is used for agricultural purposes (unless a violation occurs) or until the producer requests a review because of natural events. The NRCS certifies previous wetland determinations upon request.

Mitigation (offsetting losses)

Landowners now have more opportunities to work with the USDA, conservation districts, or others to choose the best methods to mitigate wetlands.  There are also more options for mitigation, including:

  • the methods and locations restoration
  • methods of enhancement
  • creation activities that maintain a wetland's functions and values

Landowners who wish to convert or alter wetlands may enhance existing wetlands, restore former wetlands, or create new wetlands to offset the functions and values lost from conversions or alterations.  Wetland conversions authorized by Section 404 of the Clean Water Act will be accepted if the conversion activities are properly mitigated.

To help you determine what activities constitute wetland conversion, two tables were prepared which give examples of manipulations that convert wetlands and those activities that are not considered to convert wetlands.

"Minimal Effect" Determination

Practices that alter wetlands can now be placed on a "fast track" for approval if NRCS determines that a planned activity is on the list of "categorical minimal effects".  Activities on this list have a relatively insignificant impact on the functions and values of wetlands.

Abandonment

As long as land is used for agriculture and met the converted cropland criteria on December 23, 1985, the designation remains in effect.  When there is an approved plan, landowners with farmed wetlands may allow an area to revert to wetland status and convert it back to a farmed wetland for agricultural purposes without violating Swampbuster.  Also, areas that met converted cropland criteria on December 23, 1985 may be certified as prior converted cropland upon request of the landowner.

Authority of the Secretary of Agriculture

The Secretary of Agriculture now has the authority to waive ineligibility status, grant time to restore converted wetlands, and identify which USDA programs are affected by Swampbuster violations and the amount of sanctions to be assessed.

Maintaining USDA Program Eligibility

To maintain eligibility, participants must certify that they have not produced crops on converted wetlands after December 23, 1985, and did not convert a wetland after November 28, 1990 to make agricultural production possible.

If Swampbuster is violated, USDA farm program benefits may be lost. If participants produce a crop on a converted wetland, they may lose benefits for the year the crop was produced. If participants convert a wetland after November 28, 1990, they risk loss of benefits for the year the conversion took place, and for years that follow until the wetland's functions and values are restored.

Contact information for the participating organizations:

Application of Silviculture BMPs to Mechanical Site Preparation Activities

As you may know, forested wetlands exhibit a wide range of water regimes, soils, and vegetation types that provide many functions and values (visit our bottomland forest ecosystems of Florida section to learn more). In the Southeastern U.S., forested wetlands are in many cases subject to ongoing timber operations. In developing silviculture Best Management Practices (BMPs), States have identified specific forestry practices that will help protect water quality.

See our Best Management Practices page for more information.

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