(1)

This chapter shall be known and may [be] cited as the "Indian River County Wetlands and Deepwater Habitat Protection Ordinance."

(2)

Wetlands and deepwater habitats in Indian River County are indispensable and fragile natural resources with significant development constraints due to flooding, erosion, and soil/substrate limitations. In their natural state, wetlands and deepwater habitat serve man and nature. They provide habitat area for fish, wildlife, and vegetation; water-quality maintenance and pollution control; flood control; shoreline erosion control; natural resource education; scientific study; open space; and recreation opportunities.

A considerable number of these important natural resources have been lost or impaired by draining, dredging filling, excavating, building, pollution, and other acts. Piecemeal or cumulative losses may, over time, destroy remaining wetland and deepwater habitat. Damaging or destroying wetlands and deepwater habitat threatens public safety and general welfare.

It is therefore necessary for Indian River County to ensure maximum protection of wetlands and deepwater habitats by discouraging development activities in such areas and those activities at adjacent upland sites that may adversely affect wetlands and deepwater habitats, and to encourage restoration of already degraded or destroyed systems. While wetland and deepwater habitat development activities are regulated at the state and federal levels, Indian River County is in a position to provide long-term wetland protection by directing growth away from sensitive areas, through land use regulations. Moreover, it is the intent of this chapter to provide additional protection to those wetlands and deepwater habitats not within the jurisdiction of other reviewing agencies.

(3)

If is further the intent of this chapter to restrict activities that would threaten public safety or cause nuisances by:

(a)

Blocking flood flows, destroying flood storage areas, or destroying storm barriers, thereby raising or lowering flood heights or increasing velocities on other land and increasing flood damages;

(b)

Causing water pollution, including location of wastewater disposal systems in wet soils; unauthorized application of pesticides; herbicides, and algacides, disposal of solid wastes or stormwater runoff at inappropriate sites; or the creation of unstabilized fill;

(c)

Increasing erosion; or

(d)

Increasing runoff of sediment and stormwater.

(4)

In addition, it is the purpose of this chapter to prevent activities that would destroy natural wetland and deepwater habitat functions important to the general welfare by:

(a)

Decreasing breeding, spawning, nesting, wintering, feeding, or other critical habitat for fish and wildlife, including rare, threatened, and endangered plant and animal species and commercially and recreationally important wildlife;

(b)

Interfering with the exchange of nutrients needed by fish and other forms of wildlife;

(c)

Decreasing groundwater recharge;

(d)

Destroying sites needed for education and scientific research as outdoor biophysical laboratories, living classrooms, and training areas;

(e)

Interfering with public rights in waters and the recreation opportunities for hunting, fishing, boating, hiking, birdwatching, photography, camping, and other activities in nontidal wetlands; or

(f)

Destroying aesthetic and property values.

(Ord. No. 90-16, § 1, 9-11-90)

The definitions of certain terms used in this chapter are set forth in Chapter 901, Definitions, of the Indian River County Land Development Code.

(Ord. No. 90-16, § 1, 9-11-90)

The regulations of this chapter shall apply to all development that would affect wetland and deepwater habitats in unincorporated Indian River County, regardless of the size of the wetland or deepwater habitat.

(Ord. No. 90-16, § 1, 9-11-90)

(1)

The definition of wetlands and deepwater habitats shall be based upon the publication "Classification of Wetlands and Deepwater Habitats of the United States" (Cowardin et al, 1979), and shall be consistent with the broadest jurisdiction of federal, state, and regional regulatory agencies. (see Chapter 901, Definitions, County Land Development Code).

(2)

Representatives of the Department of Environmental Protection, U.S. Army Corps of Engineers, and the St. Johns River Water Management District, and/or other applicable agencies will be contacted for assistance in identifying the extent and functional values of wetlands and deepwater habitats.

(3)

USFWS National Wetlands Inventory Maps (1984), submergent aquatic vegetation inventories, infrared aerials and property appraiser aerials shall be utilized for general identification of wetlands and deepwater habitats in Indian River County. It is recognized, however, that such graphic sources do not depict the full extent of wetland and deepwater habitat delineations and function characteristics. Wetlands and deepwater habitats shall be identified by survey at the time of site development review on a site-by-site basis.

(4)

Factors to be considered in evaluating the present or future functions and values of wetlands and deepwater habitats shall include, but not be limited to:

(a)

Relationship to similar or complementary habitats,

(b)

Proximity to adjacent urban land uses,

(c)

Degree of disturbance or invasion by exotic plant species,

(d)

Importance to wildlife species, including aquatic species (as applicable),

(e)

Frequency and length of inundation, and

(f)

Degree of flushing or tidal influence (applying to estuarine wetlands).

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 2012-027, § 1, 7-10-12)

(1)

No activity shall be allowed that results in the alteration, degradation, or destruction of wetlands or deepwater habitats except when:

(a)

Such an activity is necessary to prevent or eliminate a public hazard, provided wetland and deepwater habitat functional loss is unavoidable and minimized; or

(b)

Such an activity would provide direct public benefits which would exceed the loss of wetland or deepwater habitat functions and values, provided there is a public need, and wetland and deepwater habitat functional loss is unavoidable and minimized; or

(c)

Such an activity is proposed for wetlands or deepwater habitats in which the functions and values currently provided are significantly less than those typically associated with such habitats and cannot be reasonably restored, and preservation of the habitat is not in the public interest.

(2)

Mitigation shall be required for any activity that results in the alteration, degradation, or destruction of wetlands or deepwater habits, as provided for in section 928.06 of this chapter. Mitigation required pursuant to this chapter shall be consistent with the Uniform Mitigation Assessment Method (UMAM) set forth in Florida Administrative Code Chapter 62-345, as may be amended.

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 2012-027, § 2, 7-10-12)

(1)

No alteration of wetlands or deepwater habitat shall be allowed unless a wetlands/deepwater habitat alteration permit has been issued by county environmental planning staff. Said permit application shall be in a form prescribed by the county, and shall at minimum provide the following information to satisfy the provisions of this chapter:

(a)

A wetland/deepwater habitat boundary survey, delineating the landward extent of the wetland/deepwater habitat based on the broadest jurisdictional line of reviewing regulatory state and federal agencies;

(b)

A wetland/deepwater habitat functional value assessment, with consideration of factors set forth in subsection 928.04(4), justifying the proposed alteration as the development alternative of least impact; and

(c)

A mitigation plan, including:

1.

A twenty-four-inch by thirty-six-inch scaled drawing of the project site depicting wetlands/deepwater habitat to be preserved, altered, or created, distinguished by cross-hatching or other graphic means.

2.

A cross-sectional drawing of wetland/deepwater habitat restoration or creation areas, including:

a.

Proposed grading elevations;

b.

Control water elevations; and

c.

Proposed vegetation plantings.

3.

A table indicating aquatic plant species type, size, and planting densities.

4.

A planting and maintenance schedule.

(2)

Except as provided for in section 928.05, no activity shall be allowed that results in the alteration, degradation, or destruction of wetlands or deepwater habitats. Whenever any wetland or deepwater habitat is degraded or destroyed under such exceptions, mitigation shall be provided through the creation of new wetland or deepwater habitat, through the restoration of degraded habitat, or through the enhancement of functions and values provided by existing habitats. Wetland creation or enhancement shall at minimum offset the wetland/deepwater habitat functions lost due to impacts. Mitigation proposals shall be evaluated for appropriateness on case-by-case basis, and shall be consistent with all applicable jurisdictional regulatory agency regulations.

(a)

Preference shall be given for type-for-type mitigation on-site or in close proximity to the wetland or deepwater habit loss. Off-site mitigation and/or nontype-for-type may be considered, only if on-site mitigation and/or type-for-type is not deemed appropriate when weighing benefits and disadvantages to regional ecology and on-site ecology.

(b)

The minimum ratio of 2:1 (created to lost wetlands) shall apply to wetland habitat creation (not wetland enhancement) proposals. The mitigation ratio for submergent aquatic vegetation (e.g. seagrass) shall be a minimum of 3:1 (created to lost habitat).

(c)

The preservation of upland habitat adjacent to preserved or enhanced wetlands (beyond buffer requirements) may be considered as partial mitigation, if it is determined as contributing to the ecological functions and values of the preserved or enhanced wetland.

(d)

The Indian River Mosquito Control District (IRMCD) will be consulted whenever wetlands are being created or restored to ensure that mosquito producing habitat is not created and source reduction mosquito control is effected.

(3)

The establishment of conservation easements shall be required to overlay all preserved, created, or enhanced wetlands or deepwater habitats (and upland buffers, as applicable) associated with development site mitigation. Such easements shall ensure protection of these habitats and may allow certain activities, such as passive recreation, not deemed detrimental to the health of the ecological system. In such cases, and where wetlands or deep water habitat adjoin development sites but may not yet be subject to conservation easements, Indian River Mosquito Control District will be granted access easements to allow for vehicular and pedestrian access, mosquito inspection, treatment, and management of such wetlands or over lands to such wetlands and under the same or related ownership or the same development plan.

(4)

Restoration and management of impounded estuarine wetlands. The restoration and management of impounded estuarine wetlands shall be allowed as mitigation for the limited filling of degraded wetlands as described in subsection 928.05(1)(c), provided that:

(a)

The benefits of the restoration and management of the impoundment to natural functions shall offset the losses of wetland functions associated with the limited wetland filling, with a minimum mitigation ratio of 10:1 (restored/managed impoundment to lost degraded wetlands);

(b)

A conservation easement is established for the impoundment to ensure protection; in addition, IRMCD will be granted access easements to allow for mosquito inspection, treatment, and management of such wetlands or over lands adjacent to such wetlands and under the same or related ownership or the same development plan; and

(c)

The restoration and management plan is consistent with jurisdictional agency regulations and is favorably reviewed by the Governor's Subcommittee on Managed Marshes.

(5)

Mitigation bank program. Indian River County shall, as a last alternative, consider the acceptance of fees to be deposited into a county mitigation bank fund as off-site mitigation for activities that result in the alteration, degradation, or destruction of wetlands or deepwater habitats, as may be allowed in the exceptions of Section 928.05.(l) of this chapter. Fees for mitigation shall be considered only if all other mitigation alternatives, as set forth in Section 928.06, are not feasible or are inappropriate given site characteristics. Funds deposited into the mitigation bank will be utilized to create, protect and manage, or enhance environmentally sensitive areas of the same type as that altered. As part of the mitigation program, the county shall identify environmentally sensitive areas that are suitable for protection, management and enhancement projects, and shall identify and may consider the acquisition of property suitable for environmentally sensitive area creation projects.

The mitigation fee shall be calculated as [the assessed value of one acre of the project site] × [the number of acres proposed to be impacted].

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 2005-014, 4-19-05)

A buffer zone of native upland edge vegetation shall be provided around wetlands and deepwater habitats which are constructed or preserved on new development sites. The buffer zone may consist of preserved or planted vegetation, but shall include canopy, understory, and ground cover of native species only. The edge of the buffer zone shall begin at the upland limit of the wetland or deepwater habitat. A minimum of ten square feet of such buffer shall be provided for each linear foot of wetland or deepwater habitat perimeter that lies adjacent to uplands. The upland edge buffer shall be located such that no less than fifty (50) percent of the total shoreline is buffered by a minimum width of ten (10) feet of upland habitat.

(Ord. No. 90-16, § 1, 9-11-90)

In addition to the provisions of this chapter, any alteration, including trimming, of red mangroves (Rhizophora mangle), black mangroves (Avicennia germinans), white mangroves (Languncularia racemosa) or buttonwood (Conocarpus erecta) shall be subject to the provisions of Chapter 927, Tree Protection, of the County Land Development Code.

(Ord. No. 90-16, § 1, 9-11-90)

As an incentive to direct development activities away from wetlands and deepwater habitats, it shall be allowable through the Planned Development (PDs) approval process to apply for a density credit transfer from wetlands and deepwater habitats to project uplands, as further described and provided for in Chapter 915, Planned Developments, of the County Land Development Code. Wetlands or deepwater habitats utilized for density transfer credit shall be preserved via the establishment of a conservation easement as described in subsection 928.06(3) of this chapter.

(Ord. No. 90-16, § 1, 9-11-90)

A violation of any provision of this chapter shall be punishable upon conviction by a fine not to exceed five hundred dollars ($500.00), or by imprisonment in the county jail up to sixty (60) days, or both such fine and imprisonment. The destruction or alteration of each wetland plant (including submergent aquatic vegetation) associated with wetlands and/or deepwater habitat shall be considered a separate offense.

In the event of a violation, the board of county commissioners shall have the power to order restoration and creation measures for the damaged wetland or deepwater habitat area by the person or agent responsible for the violation. If the responsible person or agent does not complete such measures within a reasonable time following the order, Indian River County may restore the affected wetland to its prior condition or create or restore other wetlands for the purpose of offsetting losses sustained as a result of the violation. The person or agent responsible for the original violation shall be liable Indian River County for the cost of such actions.

(Ord. No. 90-16, § 1, 9-11-90)

Any owner of an undeveloped wetland who has dedicated an easement or entered into a perpetual conservation restriction with the Indian River County or a nonprofit organization to permanently control some or all regulated activities in the wetland shall be exempted from special assessment on the controlled wetland to defray the cost of municipal improvements such as sanitary sewers, storm sewers, and water mains. Said exemption shall only apply, however, in cases when an entire land parcel is devoted to a conservation easement or perpetual conservation restriction.

(Ord. No. 90-16, § 1, 9-11-90)