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STATE MANGROVE REGULATIONS

403.9322 Legislative findings.--

(1) The Legislature finds that there are over 555,000 acres of mangroves now existing in Florida. Of this total, over 80 percent are under some form of government or private ownership or control and are expressly set aside for preservation or conservation purposes.

(2) The Legislature finds that mangroves play an important ecological role as habitat for various species of marine and estuarine vertebrates, invertebrates, and other wildlife, including mammals, birds, and reptiles; as shoreline stabilization and storm protection; and for water quality protection and maintenance and as food-web support. The mangrove forest is a tropical ecosystem that provides nursery support to the sports and commercial fisheries. Through a combination of functions, mangroves contribute to the economies of many coastal counties in the state.

(3) The Legislature finds that many areas of mangroves occur as narrow riparian mangrove fringes that do not provide all the functions of mangrove forests or provide such functions to a lesser degree.

(4) The Legislature finds that scientific studies have shown that mangroves are amenable to standard horticultural treatments and that waterfront property owners can live in harmony with mangroves by incorporating such treatments into their landscaping systems.

(5) The Legislature finds that the trimming of mangroves by professional mangrove trimmers has a significant potential to maintain the beneficial attributes of mangrove resources and that professional mangrove trimmers should be authorized to conduct mangrove trimming, under certain circumstances, without prior government authorization.

History.--s. 2, ch. 95-299; s. 1, ch. 96-206.

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403.9323 Legislative intent.--

(1) It is the intent of the Legislature to protect and preserve mangrove resources valuable to our environment and economy from unregulated removal, defoliation, and destruction.

(2) It is the intent of the Legislature that no trimming or alteration of mangroves may be permitted on uninhabited islands which are publicly owned or on lands set aside for conservation and preservation, or mitigation, except where necessary to protect the public health, safety, and welfare, or to enhance public use of, or access to, conservation areas in accordance with approved management plans.

(3) It is the intent of the Legislature to provide waterfront property owners their riparian right of view, and other rights of riparian property ownership as recognized by s. 253.141 and any other provision of law, by allowing mangrove trimming in riparian mangrove fringes without prior government approval when the trimming activities will not result in the removal, defoliation, or destruction of the mangroves.

(4) It is the intent of the Legislature that ss. 403.9321-403.9333 shall be administered so as to encourage waterfront property owners to voluntarily maintain mangroves, encourage mangrove growth, and plant mangroves along their shorelines.

(5) It is the intent of the Legislature that all trimming of mangroves pursuant to this act conducted on parcels having multifamily residential units result in an equitable distribution of the riparian rights provided herein.

(6) It is the intent of the Legislature to grandfather certain historically established mangrove maintenance activities.

History.--s. 3, ch. 95-299; s. 2, ch. 96-206.

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The Florida Legislature has pre-empted the regulation activities affecting mangroves to the Florida Department of Environmental Protection. The following statutory provision controls the trimming and removal of mangroves.  It is recommended to consult with a State certified professional mangrove trimmer before considering any work which will affect mangroves.

403.9324 Mangrove protection rule; delegation of mangrove protection to local governments.--

(1) Sections 403.9321-403.9333 and any lawful regulations adopted by a local government that receives a delegation of the department's authority to administer and enforce the regulation of mangroves as provided by this section shall be the sole regulations in this state for the trimming and alteration of mangroves on privately or publicly owned lands. All other state and local regulation of mangrove is as provided in subsection (3).

(2) The department shall delegate its authority to regulate the trimming and alteration of mangroves to any local government that makes a written request for delegation, if the local government meets the requirements of this section. To receive delegation, a local government must demonstrate that it has sufficient resources and procedures for the adequate administration and enforcement of a delegated mangrove-regulatory program. When a county receives delegation from the department, it may, through interlocal agreement, further delegate the authority to administer and enforce regulation of mangrove trimming and alteration to municipalities that meet the requirements of this section. In no event shall more than one permit for the alteration or trimming of mangroves be required within the jurisdiction of any delegated local government.

(3) A local government that wants to establish a program for the regulation of mangroves may request delegation from the department at any time. However, all local government regulation of mangroves, except pursuant to a delegation as provided by this section, is abolished 180 days after this section takes effect.

(4) Within 45 days after receipt of a written request for delegation from a local government, the department shall grant or deny the request in writing. The request is deemed approved if the department fails to respond within the 45-day time period. In reviewing requests for delegation, the department shall limit its review to whether the request complies with the requirements of subsection (2). The department shall set forth in writing with specificity the reasons for denial of a request for delegation. The department's determination regarding delegation constitutes final agency action and is subject to review under chapter 120.

(5) The department may biannually review the performance of a delegated local program and, upon a determination by the department that the delegated program has failed to properly administer and enforce the program, may seek to revoke the authority under which the program was delegated. The department shall provide a delegated local government with written notice of its intent to revoke the authority to operate a delegated program. The department's revocation of the authority to operate a delegated program is subject to review under chapter 120.

(6) A local government that receives delegation of the department's authority to regulate mangroves shall issue all permits required by law and in lieu of any departmental permit provided for by ss. 403.9321-403.9333. The availability of the exemptions to trim mangroves in riparian mangrove fringe areas provided in s. 403.9326 may not be restricted or qualified in any way by any local government. This subsection does not preclude a delegated local government from imposing stricter substantive standards or more demanding procedural requirements for mangrove trimming or alteration outside of riparian mangrove fringe areas.

History.--s. 4, ch. 95-299; s. 3, ch. 96-206.

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403.9325 Definitions.--For the purposes of ss. 403.9321-403.9333, the term:

(1) "Alter" means anything other than trimming of mangroves.

(2) "Local government" means a county or municipality.

(3) "Mangrove" means any specimen of the species Laguncularia racemosa (white mangrove), Rhizophora mangle (red mangrove), or Avicennia germinans (black mangrove).

(4) "Mangroves on lands that have been set aside as mitigation" means mangrove areas on public or private land which have been created, enhanced, restored, or preserved as mitigation under a dredge and fill permit issued under 1ss. 403.91-403.929, Florida Statutes (1984 Supplement, as amended), or a dredge and fill permit, management and storage of surface waters permit, or environmental resource permit issued under part IV of chapter 373, applicable dredge and fill licenses or permits issued by a local government, a resolution of an enforcement action, or a conservation easement that does not provide for trimming.

(5) "Professional mangrove trimmer" means a person who meets the qualifications set forth in s. 403.9329.

(6) "Public lands set aside for conservation or preservation" means:

(a) Conservation and recreation lands under chapter 259;

(b) State and national parks;

(c) State and national reserves and preserves, except as provided in s. 403.9326(3);

(d) State and national wilderness areas;

(e) National wildlife refuges (only those lands under Federal Government ownership);

(f) Lands acquired through the Water Management Lands Trust Fund, Save Our Rivers Program;

(g) Lands acquired under the Save Our Coast program;

(h) Lands acquired under the environmentally endangered lands bond program;

(i) Public lands designated as conservation or preservation under a local government comprehensive plan;

(j) Lands purchased by a water management district, the Fish and Wildlife Conservation Commission, or any other state agency for conservation or preservation purposes;

(k) Public lands encumbered by a conservation easement that does not provide for the trimming of mangroves; and

(l) Public lands designated as critical wildlife areas by the Fish and Wildlife Conservation Commission.

(7) "Riparian mangrove fringe" means mangroves growing along the shoreline on private property, property owned by a governmental entity, or sovereign submerged land, the depth of which does not exceed 50 feet as measured waterward from the trunk of the most landward mangrove tree in a direction perpendicular to the shoreline to the trunk of the most waterward mangrove tree. Riparian mangrove fringe does not include mangroves on uninhabited islands, or public lands that have been set aside for conservation or preservation, or mangroves on lands that have been set aside as mitigation, if the permit, enforcement instrument, or conservation easement establishing the mitigation area did not include provisions for the trimming of mangroves.

(8) "Trim" means to cut mangrove branches, twigs, limbs, and foliage, but does not mean to remove, defoliate, or destroy the mangroves.

History.--s. 5, ch. 95-299; s. 4, ch. 96-206; s. 215, ch. 99-245.

1Note.--Sections 403.91-403.925 and 403.929 were repealed by s. 45, ch. 93-213, and s. 403.913, as amended by s. 46, ch. 93-213, was transferred to s. 403.939 and subsequently repealed by s. 18, ch. 95-145. The only section remaining within the cited range is s. 403.927.

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403.9326 Exemptions.--

(1) The following activities are exempt from the permitting requirements of ss. 403.9321-403.9333 and any other provision of law if no herbicide or other chemical is used to remove mangrove foliage:

(a) Mangrove trimming in riparian mangrove fringe areas that meet the following criteria:

1. The riparian mangrove fringe must be located on lands owned or controlled by the person who will supervise or conduct the trimming activities or on sovereign submerged lands immediately waterward and perpendicular to the lands.

2. The mangroves that are the subject of the trimming activity may not exceed 10 feet in pretrimmed height as measured from the substrate and may not be trimmed so that the overall height of any mangrove is reduced to less than 6 feet as measured from the substrate.

This exemption applies to property with a shoreline of 150 feet or less. Owners of property with a shoreline of more than 150 feet may not trim, under an exemption, more than 65 percent of the mangroves along the shoreline.

(b) Mangrove trimming supervised or conducted exclusively by a professional mangrove trimmer, as defined in s. 403.9325, in riparian mangrove fringe areas that meet the following criteria:

1. The riparian mangrove fringe must be located on lands owned or controlled by the professional mangrove trimmer or by the person contracting with the professional mangrove trimmer to perform the trimming activities, or on sovereign submerged lands immediately waterward and perpendicular to such lands.

2. The mangroves that are the subject of the trimming activity may not exceed 24 feet in pretrimmed height and may not be trimmed so that the overall height of any mangrove is reduced to less than 6 feet as measured from the substrate.

3. The trimming of mangroves that are 16 feet or greater in pretrimmed height must be conducted in stages so that no more than 25 percent of the foliage is removed annually.

4. A professional mangrove trimmer that is trimming red mangroves for the first time under the exemption provided by this paragraph must notify the department or delegated local government in writing at least 10 days before commencing the trimming activities.
This exemption applies to property with a shoreline of 150 feet or less. Owners of property with a shoreline of more than 150 feet may not trim, under an exemption, more than 65 percent of the mangroves along the shoreline.

(c) Mangrove trimming in riparian mangrove fringe areas which is designed to reestablish or maintain a previous mangrove configuration if the mangroves to be trimmed do not exceed 24 feet in pretrimmed height. The reestablishment of a previous mangrove configuration must not result in the destruction, defoliation, or removal of mangroves. Documentation of a previous mangrove configuration may be established by affidavit of a person with personal knowledge of such configuration, through current or past permits from the state or local government, or by photographs of the mangrove configuration. Trimming activities conducted under the exemption provided by this paragraph shall be conducted by a professional mangrove trimmer when the mangroves that are the subject of the trimming activity have a pretrimmed height which exceeds 10 feet as measured from the substrate. A person trimming red mangroves for the first time under the exemption provided by this paragraph must notify the department or delegated local government in writing at least 10 days before commencing the trimming activities.

(d) The maintenance trimming of mangroves that have been previously trimmed in accordance with an exemption or government authorization, including those mangroves that naturally recruited into the area and any mangrove growth that has expanded from the area subsequent to the authorization, if the maintenance trimming does not exceed the height and configuration previously established. Historically established maintenance trimming is grandfathered in all respects, notwithstanding any other provisions of law. Documentation of established mangrove configuration may be verified by affidavit of a person with personal knowledge of the configuration or by photographs of the mangrove configuration.

(e) The trimming of mangrove trees by a state-licensed surveyor in the performance of her or his duties, if the trimming is limited to a swath of 3 feet or less in width.

(f) The trimming of mangrove trees by a duly constituted communications, water, sewerage, electrical, or other utility company, or by a federal, state, county, or municipal agency, or by an engineer or a surveyor and mapper working under a contract with such utility company or agency, when the trimming is done as a governmental function of the agency.

(g) The trimming of mangrove trees by a duly constituted communications, water, sewerage, electrical, or other utility company in or adjacent to a public or private easement or right-of-way, if the trimming is limited to those areas where it is necessary for the maintenance of existing lines or facilities or for the construction of new lines or facilities in furtherance of providing utility service to its customers and if work is conducted so as to avoid any unnecessary trimming of mangrove trees.

(h) The trimming of mangrove trees by a duly constituted communications, water, sewerage, or electrical utility company on the grounds of a water treatment plant, sewerage treatment plant, or electric power plant or substation in furtherance of providing utility service to its customers, if work is conducted so as to avoid any unnecessary trimming of mangrove trees.

(2) Any rule, regulation, or other provision of law must be strictly construed so as not to limit directly or indirectly the exemptions provided by this section for trimming in riparian mangrove fringe areas except as provided in s. 403.9329(7)(b). Any rule or policy of the department, or local government regulation, that directly or indirectly serves as a limitation on the exemptions provided by this section for trimming in riparian mangrove fringe areas is invalid.

(3) The designation of riparian mangrove fringe areas as aquatic preserves or Outstanding Florida Waters shall not affect the use of the exemptions provided by this section.

History.--s. 6, ch. 95-299; s. 5, ch. 96-206; s. 1012, ch. 97-103.

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403.9327 General permits.--

(1) The following general permits are created for the trimming of mangroves that do not qualify for an exemption provided by s. 403.9326:

(a) A general permit to trim mangroves for riparian property owners, if:

1. The trimming is conducted in an area where the department has not delegated the authority to regulate mangroves to a local government;

2. The trimming is supervised or conducted exclusively by a professional mangrove trimmer;

3. The mangroves subject to trimming under the permit do not extend more than 500 feet waterward as measured from the trunk of the most landward mangrove tree in a direction perpendicular to the shoreline;

4. No more than 65 percent of the mangroves along the shoreline which exceed 6 feet in pretrimmed height as measured from the substrate will be trimmed, and no mangrove will be trimmed so that the overall height of any mangrove is reduced to less than 6 feet as measured from the substrate; and

5. No herbicide or other chemical will be used for the purpose of removing leaves of a mangrove.

(b) A general permit for the limited trimming of mangroves within existing navigational channels, basins, or canals to provide clearance for navigation of watercraft, if:

1. The trimming is conducted in an area where the department has not delegated the authority to regulate mangroves to a local government;

2. The trimming is supervised or conducted exclusively by a professional mangrove trimmer;

3. The mangroves are located on lands owned or controlled by the professional mangrove trimmer or by the person contracting with the professional mangrove trimmer to perform the trimming activities, or on sovereign submerged lands immediately waterward and perpendicular to such lands;

4. The trimming is limited to those portions of branches or trunks of mangroves which extend into the navigation channel beyond a vertical plane of the most waterward prop root or root system; and

5. No herbicide or other chemical will be used for the purpose of removing leaves of a mangrove.

(2) The department may establish additional general permits for mangrove trimming.

(3) The general permits under this section are subject to the following conditions:

(a) A general permit may be used only once on any parcel of property to achieve a mangrove height of no less than 6 feet;

(b) Trimming must be conducted in stages so that no more than 25 percent of the foliage is removed annually; and

(c) The height and configuration of mangroves trimmed under these general permits may be maintained under s. 403.9326(1)(d).

(4) Notice of intent to use a general permit must be made in writing to the department and must contain sufficient information to enable the department to determine the scope of the proposed trimming and whether the activity will comply with the conditions of this section.

(5) The department shall grant or deny in writing each request for a general permit within 30 days after receipt, unless the applicant agrees to an extension. If the applicant does not agree to an extension and the department fails to act on the request within the 30-day period, the request is approved. The department's denial of a request for a general permit is subject to review under chapter 120. The department's action may not receive a presumption of validity in any administrative or judicial proceeding for review.

(6) Trimming that does not qualify for an exemption under s. 403.9326 or a general permit under this section requires a permit as provided in s. 403.9328.

(7) If a local government receives delegation of the department's authority to regulate mangroves, the delegated local government shall issue permits for mangrove trimming in lieu of a general permit from the department, but the local government may not directly or indirectly limit the use of the exemptions in s. 403.9326. A delegated local government may impose stricter substantive standards than those of the department for the issuance of a permit authorized by this section; however, such regulations may not prohibit all mangrove trimming.

History.--s. 7, ch. 95-299; s. 6, ch. 96-206.

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403.93271 Applicability to multifamily residential units.--

(1) When trimming under s. 403.9327(1)(a) occurs on property developed for multifamily residential use, the 65-percent shoreline trimming limit must be equitably distributed so that each owner's riparian view is similarly affected.

(2) If it is necessary to trim more than 65 percent of the mangroves along the shoreline in order to provide a water view from each unit, the department or delegated local government may authorize a greater percentage of trimming under s. 403.9327(1)(a). This subsection applies only to property on which multifamily residential units exist as of June 1, 1996.

History.--s. 7, ch. 96-206.

403.9328 Alteration and trimming of mangroves; permit requirement.--

(1) A person may not alter or trim, or cause to be altered or trimmed, any mangrove within the landward extent of wetlands and other surface waters, as defined in chapter 62-340.200(19), Florida Administrative Code, using the methodology in s. 373.4211 and chapter 62-340, Florida Administrative Code, when the trimming does not meet the criteria in s. 403.9326 or s. 403.9327 except under a permit issued under this section by the department or a delegated local government or as otherwise provided by ss. 403.9321-403.9333. Any violation of ss. 403.9321-403.9333 is presumed to have occurred with the knowledge and consent of any owner, trustee, or other person who directly or indirectly has charge, control, or management, either exclusively or with others, of the property upon which the violation occurs. However, this presumption may be rebutted by competent, substantial evidence that the violation was not authorized by the owner, trustee, or other person.

(2)(a) The department, when deciding to issue or deny a permit for mangrove alteration or trimming under this section, shall use the criteria in s. 373.414(1) and (8). If the applicant is unable to meet these criteria, the department and the applicant shall first consider measures to reduce or eliminate the unpermittable impacts. If unpermittable impacts still remain, the applicant may propose, and the department shall consider, measures to mitigate the otherwise unpermittable impacts. A request for a permit to alter mangroves must be submitted in writing with sufficient specificity to enable the department to determine the scope and impacts of the proposed alteration activities.

(b) The department shall issue or deny a permit for mangrove alteration in accordance with chapter 120 and s. 403.0876.

(3) The use of herbicides or other chemicals for the purposes of removing leaves from a mangrove is strictly prohibited.

(4) If a local government receives delegation of the department's authority to regulate mangroves, the delegated local government shall issue permits for mangrove trimming when the trimming does not meet the criteria in s. 403.9326 or for mangrove alteration in lieu of a departmental permit. A delegated local government may impose stricter substantive standards than those of the department for the issuance of a permit authorized by this section but may not prohibit all mangrove trimming.

(5) A permit is not required under ss. 403.9321-403.9333 to trim or alter mangroves if the trimming or alteration is part of an activity that is exempt under s. 403.813 or is permitted under part IV of chapter 373. The procedures for permitting under part IV of chapter 373 will control in those instances.

History.--s. 8, ch. 95-299; s. 8, ch. 96-206; s. 38, ch. 97-98.

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403.9329 Professional mangrove trimmers.--

(1) For purposes of ss. 403.9321-403.9333, the following persons are considered professional mangrove trimmers:

(a) Certified arborists, certified by the International Society of Arboriculture;

(b) Professional wetland scientists, certified by the Society of Wetland Scientists;

(c) Certified environmental professionals, certified by the Academy of Board Certified Environmental Professionals;

(d) Certified ecologists certified by the Ecological Society of America;

(e) Persons licensed under part II of chapter 481. The Board of Landscape Architecture shall establish appropriate standards and continuing legal education requirements to assure the competence of licensees to conduct the activities authorized under ss. 403.9321-403.9333. Trimming by landscape architects as professional mangrove trimmers is not allowed until the establishment of standards by the board. The board shall also establish penalties for violating ss. 403.9321-403.9333. Only those landscape architects who are certified in the state may qualify as professional mangrove trimmers under ss. 403.9321-403.9333, notwithstanding any reciprocity agreements that may exist between this state and other states;

(f) Persons who have conducted mangrove trimming as part of their business or employment and who are able to demonstrate to the department or a delegated local government, as provided in subsection (2) or subsection (3), a sufficient level of competence to assure that they are able to conduct mangrove trimming in a manner that will ensure the survival of the mangroves that are trimmed; and

(g) Persons who have been qualified by a delegated local government through a mangrove-trimming qualification program as provided in subsection (7).

(2) A person who seeks to assert professional mangrove trimmer status under paragraph (1)(f) to trim mangroves under the exemptions and general permits provided in ss. 403.9326 and 403.9327, in areas where a local government has not established a professional mangrove trimmer qualification program as provided in subsection (7), must request in writing professional mangrove trimmer status from the department. The department shall grant or deny any written request for professional mangrove trimmer status within 60 days after receipt of the request. If professional mangrove trimmer status has been granted by the department, no additional requests for professional mangrove trimmer status need be made to the department to trim mangroves under the exemptions provided in s. 403.9326. Persons applying for professional mangrove trimmer status must provide to the department a notarized sworn statement attesting:

(a) That the applicant has successfully completed a minimum of 10 mangrove-trimming projects authorized by the department or a local government program. Each project must be separately identified by project name and permit number;

(b) That a mangrove-trimming or alteration project of the applicant is not in violation of ss. 403.9321-403.9333 or any lawful rules adopted thereunder; and

(c) That the applicant possesses the knowledge and ability to correctly identify mangrove species occurring in this state.

(3) A person asserting professional mangrove trimmer status who wishes to use a general permit authorized under s. 403.9327 must complete and sign a notice of intent to use the general permit, along with the individual who owns or controls the property, and provide a copy of the department's qualification of professional mangrove trimmer status as provided for in subsection (2). A professional mangrove trimmer signing a notice of intent to use the general permit must conduct or supervise the trimming at the site specified in the notice.

(4) The department may deny a request for professional mangrove trimmer status if the department finds that the information provided by the applicant is incorrect or incomplete, or if the applicant has demonstrated a past history of noncompliance with the provisions of ss. 403.9321-403.9333 or any adopted mangrove rules.

(5) A professional mangrove trimmer status granted by the department may be revoked by the department for any person who is responsible for any violations of ss. 403.9321-403.9333 or any adopted mangrove rules.

(6) The department's decision to grant, deny, or revoke a professional mangrove trimmer status is subject to review under chapter 120.

(7)(a) A local government that receives delegation of the department's mangrove regulatory authority may establish criteria for qualification of persons as professional mangrove trimmers working within the jurisdiction of the local government. A delegated local government that establishes a program shall provide procedures and minimum qualifications and may develop training programs for those persons wishing to become qualified as professional mangrove trimmers. A delegated local government may establish criteria for disciplining persons qualified as professional mangrove trimmers working within its jurisdiction.

(b) A delegated local government may require that any person qualifying as a professional mangrove trimmer within the jurisdiction of the local government:

1. Be registered with the local government.

2. Pay an annual registration fee that may not exceed $500.

3. Provide prior written notice to the delegated local government before conducting the trimming activities authorized under the exemptions provided by s. 403.9326.

4. Be onsite when mangrove-trimming activities are performed.

(c) The department may require a person who qualifies as a professional mangrove trimmer and works in an area where a local government has not received delegation to provide written notice to the department 10 days before conducting trimming activities under the exemptions and general permits provided in ss. 403.9326 and 403.9327 and to be onsite when mangrove-trimming activities are performed.

(d) Any person who qualifies as a professional mangrove trimmer under this subsection may conduct trimming activities within the jurisdiction of a delegated local government if the person registers and pays any appropriate fee required by a delegated local government. A delegated local government that wishes to discipline persons licensed under part II of chapter 481 for mangrove-trimming or alteration activities may file a complaint against the licensee as provided for by chapter 481 and may take appropriate local disciplinary action. Any local disciplinary action imposed against a licensee is subject to administrative and judicial review.

(e) A locally registered mangrove trimmer may use the exemptions and general permits in ss. 403.9326 and 403.9327 only within the jurisdiction of delegated local governments in which the mangrove trimmer is registered. Nothing in ss. 403.9321-403.9333 shall prevent any person who qualifies as a professional mangrove trimmer under subsection (1) from using the exemptions and general permits in ss. 403.9326 and 403.9327 outside the jurisdiction of delegated local governments.

(f) Any local governmental regulation imposed on professional mangrove trimmers that has the effect of limiting directly or indirectly the availability of the exemptions provided by s. 403.9326 is invalid.

History.--s. 9, ch. 95-299; s. 9, ch. 96-206.

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403.9331 Applicability; rules and policies.--

(1) The regulation of mangrove protection under ss. 403.9321-403.9333 is intended to be complete and effective without reference to or compliance with other statutory provisions.

(2) Any rule or policy applicable to permits provided for by s. 403.9327 or s. 403.9328 which establishes a standard applicable to mangrove trimming or alteration is invalid unless a scientific basis for the rule or policy is established. Such rules or policies shall not receive a presumption of validity in any administrative or judicial proceeding for review. Any such rule or policy must be demonstrated to substantially advance a fundamental purpose of the statute cited as authority for the rule or policy or shall be invalid.

History.--s. 10, ch. 95-299.

403.9332 Mitigation and enforcement.--

(1)(a) Any area in which 5 percent or more of the trimmed mangrove trees have been trimmed below 6 feet in height, except as provided in s. 403.9326(1)(c), (d), (f), (g), and (h), destroyed, defoliated, or removed as a result of trimming conducted under s. 403.9326 or s. 403.9327 must be restored or mitigated. Restoration must be accomplished by replanting mangroves, in the same location and of the same species as each mangrove destroyed, defoliated, removed, or trimmed, to achieve within 5 years a canopy area equivalent to the area destroyed, removed, defoliated, or trimmed; or mitigation must be accomplished by replanting offsite, in areas suitable for mangrove growth, mangroves to achieve within 5 years a canopy area equivalent to the area destroyed, removed, defoliated, or trimmed. Where all or a portion of the restoration or mitigation is not practicable, as determined by the department or delegated local government, the impacts resulting from the destruction, defoliation, removal, or trimming of the mangroves must be offset by donating a sufficient amount of money to offset the impacts, which must be used for the restoration, enhancement, creation, or preservation of mangrove wetlands within a restoration, enhancement, creation, or preservation project approved by the department or delegated local government; or by purchasing credits from a mitigation bank created under s. 373.4135 at a mitigation ratio of 2-to-1 credits to affected area. The donation must be equivalent to the cost, as verified by the department or delegated local government, of creating mangrove wetlands at a 2-to-1, created versus affected ratio, based on canopy area. The donation may not be less than $4 per square foot of created wetland area.

(b) In all cases, the applicant, permittee, landowner, and person performing the trimming are jointly and severally liable for performing restoration under paragraph (a) and for ensuring that the restoration successfully results in a variable mangrove community that can offset the impacts caused by the removal, destruction, or defoliation of mangroves. The applicant, landowner, and person performing the trimming are also jointly and severally subject to penalties.

(c) If mangroves are to be trimmed or altered under a permit issued under s. 403.9328, the department or delegated local government may require mitigation. The department or delegated local government shall establish reasonable mitigation requirements that must include, as an option, the use of mitigation banks created under s. 373.4135, where appropriate. The department's mitigation requirements must ensure that payments received as mitigation are sufficient to offset impacts and are used for mangrove creation, preservation, protection, or enhancement.

(d) Any replanting for restoration and mitigation under this subsection must result in at least 80 percent survival of the planted mangroves 1 year after planting. If the survival requirement is not met, additional mangroves must be planted and maintained until 80 percent survival is achieved 1 year after the last mangrove planting.

(2) The department or delegated local government shall enforce the provisions of ss. 403.9321-403.9333 in the same manner and to the same extent provided for in ss. 403.141 and 403.161 for the first violation.

(3) For second and subsequent violations, the department or delegated local government, in addition to the provisions of ss. 403.141 and 403.161, shall impose additional monetary penalties for each mangrove illegally trimmed or altered as follows:

(a) Up to $100 for each mangrove illegally trimmed; or

(b) Up to $250 for each mangrove illegally altered.

(4) In addition to the penalty provisions provided in subsections (1)-(3), for second and all subsequent violations by a professional mangrove trimmer, the department or delegated local government shall impose a separate penalty upon the professional mangrove trimmer up to $250 for each mangrove illegally trimmed or altered.

(5) This section does not limit or restrict a delegated local government from enforcing penalty, restoration, and mitigation provisions under its local authority.

History.--s. 11, ch. 95-299; s. 10, ch. 96-206.

403.9333 Variance relief.--Upon application, the department or delegated local government may grant a variance from the provisions of ss. 403.9321-403.9333 if compliance therewith would impose a unique and unnecessary hardship on the owner or any other person in control of the affected property. Relief may be granted upon demonstration that such hardship is not self-imposed and that the grant of the variance will be consistent with the general intent and purpose of ss. 403.9321-403.9333. The department or delegated local government may grant variances as it deems appropriate.

History.--s. 55, ch. 84-338; s. 44, ch. 93-213; s. 12, ch. 95-299.

Note.--Former s. 403.938.

403.9334 Effect of ch. 96-206.--Nothing in chapter 96-206, Laws of Florida, shall invalidate any permit or order related to mangrove activities which has been approved by the department or any other governmental entity, nor shall it affect any application for permits related to mangrove activities deemed sufficient and substantially complete prior to July 1, 1996.

History.--s. 11, ch. 96-206.

           

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Presented as a Public Service by
  David M. Levin, Esq.
Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A.
Offices in Sarasota and Punta Gorda, Florida

110 Sullivan Street, Suite 112
Punta Gorda, Florida 33950
941.833.9244
dlevin@icardmerrill.com