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Outstanding Florida Waters - Questions and Answers
 

Some common questions about an Outstanding Florida Water (OFW) designation are answered here. For more information, please contact Eric Shaw or Janet Klemm in Tallahassee (850/245-8346) or view the our home page. (Download the OFW Q&A)

 

What is an Outstanding Florida Water?

An Outstanding Florida Water (OFW) is a waterbody deemed worthy of special protection because of its natural attributes (e.g., excellent water quality, or exceptional ecological, social, educational, or recreational value).

Many areas managed by the state or federal government, including parks, wildlife refuges, preserves, marine sanctuaries, state or national forests, scenic and wild rivers, or aquatic preserves, are designated as OFWs. Generally the waters within these managed areas have OFW designations because the managing agencies have requested this special protection. However, managed areas are NOT automatically designated as OFWs. These areas must be formally designated through rulemaking. In addition, a waterbody demonstrated to be of exceptional significance may be designated as an OFW regardless of whether it is within an area managed by the state or federal government.

What is the basic intent of an OFW designation?

Waters are designated OFW to prevent the lowering of existing water quality and to preserve the exceptional ecological and recreational significance of the waterbody.

How is an OFW protected?

OFWs are protected through more stringent requirements for activities requiring a permit from the Department of Environmental Protection (DEP) or a Water Management District (WMD), such as dredge and fill or wastewater discharge permits. For example, new discharges of stormwater would require additional treatment prior to discharging to an OFW, and new direct wastewater discharges to an OFW are generally not authorized unless they do not lower existing ambient water quality. The ambient water quality for OFW purposes is defined as the water quality at the time of OFW designation or the year before applying for a permit, whichever water quality is better.

What types of activities are not affected by an OFW designation?

An OFW designation only affects new permitted activities that have the potential to degrade water quality. Activities that are not regulated by DEP or a WMD for water quality protection purposes are not affected.

Activities not affected by OFW designation include:

  • Fishing rules or harvesting limits (these are regulated Statewide by the Florida Fish and Wildlife Conservation Commission);
  • Boating rules such as speed limits, no wake zones, and restrictions on non-motorized vessels (these are generally under the purview of local governments); and
  • Ordinances requiring a minimum setback from a waterbody (also a local government issue).

Are regulatory activities of all state and federal agencies affected by OFW designation?

No. Only DEP, WMD, or DEP-delegated permitting activities are affected. These activities include National Pollutant Discharge Elimination (NPDES) permits for point source dischargers (domestic and industrial wastewater facilities, and Municipal Separate Storm Sewer System permittees), Environmental Resource Permits (ERP), such as for dredging and filling of channels and marinas, and stormwater permits issued by the Water Management Districts.

What requirements apply to new discharges to an OFW or activities proposed within an OFW?

Separate requirements must be met for direct and indirect discharges:

  • New direct point source discharges must not lower existing ambient water quality;
  • New indirect pollutant discharges (discharges to waters that influence OFWs) must not significantly degrade adjacent Outstanding Florida Waters; and
  • Activities or discharges in an OFW that receive a DEP or WMD permit must be “clearly in the public interest.”

Does an OFW designation affect existing point source discharges that currently have a DEP or WMD permit?

No. Existing permitted discharges, including those with a complete application at the time of designation, are “grandfathered” and may continue to discharge without any new OFW requirements, provided the permitted discharge does not increase either its flow or pollutant loading.

Is an additional or separate application needed to obtain a permit for an activity in an OFW?

No. An OFW designation affects only the criteria used in permitting decisions. It is not a new or separate permit process.

Is an OFW designation a different surface water classification and designated use?

No. An OFW designation is not a separate surface water classification or designated use. The surface water classification (Class I, II, or III for example), and associated designated use of those classes (Potable Water Supply, Shellfish Harvesting or Propagation, or Recreation, Fish, and Wildlife for example) do not change if a waterbody is designated as an OFW.

If a waterbody is already designated as Class II or III, doesn’t that designation prevent the lowering of water quality without a waterbody designated as an OFW?

No. For existing water quality classifications, such as Class II (Shellfish Propagation or Harvesting) and Class III (Recreation, Fish, and Wildlife), DEP may issue permits that allow increased loadings of some substances to the water, as long as the water quality criteria applicable to the specific classification are met and designated uses are maintained. Some lowering of water quality may be allowed if, during the permitting process, the applicant demonstrates that the degradation is necessary or desirable under federal standards and under circumstances that are clearly in the public interest (Rule 62-302.300(17), Florida Administrative Code).

The surface water quality criteria are intended to protect designated uses, but they may not be sufficient to maintain conditions typical of particularly diverse or ecologically exceptional water bodies. Water quality in OFW is not allowed to deviate (beyond natural variability) from the existing background levels for the year of OFW designation or the year prior to permit application, whichever is better water quality.

Are there exemptions associated with OFW designation?

Yes. Some activities, such as those for maintenance of existing facilities, activities to allow or enhance public use, and construction activities that temporarily lower water quality, are exempted from OFW requirements if special safeguards are used. In general, an activity eligible for an exemption from DEP Environmental Resource Permitting is also exempt from OFW requirements.

Are there stricter stormwater controls for OFW designated areas?

Yes. Stormwater discharging to OFWs must undergo additional treatment. To accommodate this, treatment systems are designed to achieve a 95% reduction in pollutant loads compared to stormwater discharged to non-OFW waters, where an 80% reduction is generally required.

Are there exemptions to the stormwater requirements for agriculture or silviculture activities?

Yes. Stormwater from agricultural lands is generally exempted from the OFW stormwater requirements provided they are managed as part of an approved Conservation Plan implemented according to its terms (Rule 62-40.432(2), F.A.C.). Exemptions may vary somewhat among the Water Management Districts.

Silvicultural activities that operate in accordance with the Silviculture Best Management Practices (BMP) Manual (http://www.fl-dof.com/forest_management/bmp/index.html) are also exempt from the OFW stormwater requirements. Currently, Silviculture BMPs require that the width of the Special Management Zone adjacent to an OFW be increased compared to non-OFW lakes and streams. Within the Special Management Zone of an OFW, clearcut harvesting is prohibited within 50 feet of the waterbody, and mechanical site preparation, road construction, and fertilization is prohibited within 200 feet of the OFW. In non-OFWs, depending on slope and soil type, clearcut harvesting is generally prohibited within 35 feet of the waterbody, and mechanical site preparation, road construction, and fertilization is prohibited within 70 feet of the waterbody.

Does an OFW designation restrict the repair of existing private docks or seawalls?

No. The repair or restoration of a private dock or seawall would not be restricted by an OFW designation.

Would an OFW designation prohibit a property owner from building a dock?

No. Designation reduces the size of a dock that can be built without a permit from 1,000 square feet to 500 square feet, but the upper size limit (2000 square feet) for the Noticed General Permit (NGP) for docks is unaffected by an OFW designation.
Additional information is available on DEP’s private dock construction web page: http://www.dep.state.fl.us/water/wetlands/docs/erp/sfdock.pdf

Would an OFW designation prevent the issuance or renewal of permits for maintenance dredging and spoil disposal?

The activities allowed in current maintenance dredging and spoil disposal permits would be “grandfathered” under an OFW designation. However, a substantially different or expanded dredging operation would be treated like a new operation and would have to meet OFW requirements or qualify for one of the over 20 exemptions provided in section 403.813, F.S. Under this statute, a permit is not required for certain types of projects, such as repair of vehicular bridges less than 100 feet in length, construction of swales, and installation of certain types of floating boat slips.

Like a new or expanded permit, new or expanded dredging operations in OFWs would either have to meet the existing “ambient” water quality and be “clearly in the public interest” or qualify for one of the permitting exemptions in section 403.813, F.S.

The DEP has issued many maintenance dredging permits in OFWs. Generally, the most difficult water quality criterion to meet during dredge and fill operations in OFWs is turbidity, where the expectation is that there will be no statistically significant increase in turbidity from background conditions. While the dredging operation may be eligible for a temporary turbidity mixing zone, which would help reduce costs, specific types of dredging practices (suction dredging for example), which can increase dredging costs, may be needed to meet background turbidity levels at the edge of the mixing zone.

Would an OFW designation significantly constrain real estate development in the area?

No. In fact, an OFW designation may actually increase property values due to the recognized exceptional attributes of the OFW. However, an OFW designation can impose higher costs for pollution abatement (e.g., increased stormwater treatment pond capacity) on new developments, and these costs would be estimated as part of the review of any petitions for designation.

Would an OFW designation extend DEP’s jurisdiction further into tributaries and wetlands?

No. OFW designation does not change the jurisdictional status of any waters.

How does a waterbody get designated as an OFW?

DEP designates certain waters within State and Federal parks as OFWs. However, the public may also request that a waterbody be designated as an OFW. In general, after receiving a petition for an OFW designation, DEP holds at least one public workshop in the affected area to both inform and solicit comments from the public on the proposal. After gathering sufficient information, DEP prepares a recommendation for consideration by the Florida Environmental Regulation Commission (ERC). This seven-member citizens’ body then votes on each proposal at a public hearing that is usually held in the affected area. The ERC must find that:

  1. The waters are of exceptional recreational or ecological significance, and
  2. The environmental, social, and economic benefits of the designation outweigh the environmental, social, and economic costs.

Who can propose an OFW?

Anyone who wishes to propose waters for an Outstanding Florida Water designation may submit a petition to DEP in accordance with Chapter 120 of the Florida Statutes.

For more information please contact: Eric Shaw at (850) 245-8429 or Janet Klemm at (850) 245-8427.


Water Quality Standards Program
Florida Department of Environmental Protection
2600 Blair Stone Road - M.S. 6511
Tallahassee, FL 32399
850-245-8346
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Last updated: December 19, 2011

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