Existing Department rule governing delegation of the Environmental Resource Permit (ERP) program under Part IV of Chapter 373, F.S., to a county, municipality, or local pollution control program (local governments) are being amended to address ...

DEPARTMENT OF ENVIRONMENTAL PROTECTION

RULE NO.: RULE TITLE:
62-344.100: Purpose, Intent and Scope
62-344.200: Definitions
62-344.300: Procedures for Requesting Delegation
62-344.400: Content of Petition
62-344.500: Criteria for Review
62-344.600: Procedures for Identifying and Reconciling Duplicative Permitting and Incorporation of Stricter Local Standards
62-344.700: Delegation Agreements
62-344.900: Forms

PURPOSE AND EFFECT: Existing Department rule governing delegation of the Environmental Resource Permit (ERP) program under Part IV of Chapter 373, F.S., to a county, municipality, or local pollution control program (local governments) are being amended to address changes made to Section 373.441, F.S., by Chapter 2010-147, Laws of Florida, effective July 1, 2010. Those amendments: (1) provide that the Department, and no longer a water management district, is the sole agency that can delegate ERP program responsibilities in whole or in part to a local government; (2) provide the process for a local government to petition the Governor and Cabinet for review of a request for a delegation that is not approved or denied within one year of being initiated; (3) require the Department to detail the statutory and rule provisions that were not met in any denial of a local government’s petition for delegation; and (4) require approval of a petition that meets the requirements of Chapter 62-344, F.A.C. Changes to each rule section of Chapter 62-344, F.A.C., are required to address the above.

In addition, changes have been made regarding the content of the petition for delegation and the criteria for its review. Substantively, a local government implementing a delegated ERP will be limited to using the ERP rules of the Department and the applicable water management district, which must be adopted verbatim either within the body of the local government’s controlling regulations or by incorporating those rules by reference within their regulations. They will no longer be able to use rules, ordinances, or regulations adopted under the local government’s own regulatory program, which, at a minimum, incorporate directly or by reference, the relevant portions of the reviewing agency’s environmental resource permit program rules. However, the local government may continue to apply its stricter local standards that are not in conflict with Part IV of Chapter 373, F.S. In so doing, the local government will be required to act on the application or notice under Part IV of Chapter 373, F.S., together with any applicable stricter standards, within the time frames under Chapter 120, F.S., Part IV of Chapter 373, F.S., and the rules adopted thereunder, as applicable. These changes will simplify the evaluation of a requested delegation and will significantly improve consistency between the Department, water management districts, and delegated local government in implementing the ERP rules. This also will benefit the public by reducing differences between the rules that must be followed when designing projects, submitting applications, and going through the review process.

At the request of some regulated interests, the Department also narrowed the types of activities that can be delegated to not allowing delegations for activities proposed by inland navigation districts or that occur within deepwater ports. This will ensure entities having activities spanning multiple jurisdictions and with broad financial implications will receive a more consistent review of their ERP applications by a single entity (typically the Department).

The proposed rule does not substantively change the ability of a local government to petition for delegation of the ERP program, the required content of a petition, the criteria used in the review of the petition, or the criteria that will be used by the Department to approve or deny the petition. The proposed changes also do not increase costs to the regulated community, and in fact can be expected to reduce regulatory costs.

SUMMARY: The proposed rule amends each section of Chapter 62-344, F.A.C., to comply with the amendments to Section 373.441, F.S., required by Chapter 2010-147, Laws of Florida. Additional changes are made to correct some outdated language, make some clarifications, repeal a rule section containing an unnecessary form, restrict the ability of local governments to use alternative variations of rules analogous to those adopted under Part IV of Chapter 373, F.S., and remove two types of activities that can be delegated to a local government. These changes do not restrict the local government’s ability to continue to apply stricter standards that are not in conflict with the ERP rules.

OTHER RULES INCORPORATING THIS RULE: There are no other chapters or rules that incorporate any rules of Chapter 62-344, F.A.C.

EFFECT ON THOSE OTHER RULES: None of these rules are incorporated by other chapters; therefore, this repeal will have no effect on other rules.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The rule amendments are required by statute.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 373.441 FS.
LAW IMPLEMENTED: 373.441 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAW.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULES IS: For a copy of the draft rule and draft Delegation Agreement, contact Mary Van Tassel, Florida Department of Environmental Protection, Bureau of Submerged Lands and Environmental Resources, MS 2500, 2600 Blair Stone Road, Tallahassee, FL 32399-2400, telephone [phone], or e-mail: [e-mail]. For questions about the rule and delegation, contact Douglas Fry at [phone] or [e-mail]. Further information and updates on this rule development also may be obtained from the Department’s web site at: http://www.dep.state.fl.us/water/rules_dr.htm#erp. (OGC No. 10-2686).

 

THE FULL TEXT OF THE PROPOSED RULES IS:

62-344.100 Purpose, Intent and Scope.

(1) This chapter guides the participation of counties, municipalities and local pollution control programs (“local governments”) in an efficient, streamlined permitting system by setting forth the procedures and requirements for delegations of all or a part of the environmental resource permit program under Part IV of Chapter 373, F.S., from the Department and water management districts to local governments in accordance with Section the provisions of Sections 373.103(8) and 373.441, F.S. This chapter also reflects that constitutes the Department has the authority under Section 373.441, F.S., to delegate all or part of Department’s authorization, in accordance with Section 373.103(8), F.S., for delegations of the environmental resource permit program under Part IV of Chapter 373, F.S., from the Northwest Florida, Suwannee River, St. Johns River, Southwest Florida, and South Florida Water Management Districts (“Districts”) water management districts to local governments, without any further rulemaking required by the Districts, provided that the procedures for delegation contained in this chapter are followed by the Districts. Delegations from the Department and Districts shall be for the respective environmental resource permit program responsibilities of the Department and the applicable District Suwannee River, St. Johns River, Southwest Florida and South Florida Water Management Districts, as set forth in operating agreements between the Department and local governments listed in Chapter 62-113, F.A.C. Delegation agreements between the Department and local governments shall be listed in Chapter 62-113, F.A.C., and delegation agreements between the Districts and local governments shall be listed in Chapters 40B-1, 40C-1, 40D-1, and 40E-1, F.A.C.

(2) through (3) No change.

(4) It is an objective of the Department and Districts to protect the functions of entire ecological systems, as defined and developed in the programs, rules and plans of the Department and Districts water management districts. It is the intent of the Department and Districts that any local government receiving delegation of all or a portion of the environmental resource program carry out that program in a manner consistent with this objective. This paragraph shall not be construed or applied as additional permitting criteria beyond those adopted by the Department, District, reviewing agency or the local government.

Rulemaking Specific Authority 373.441(1) FS. Law Implemented 373.441 FS. History–New 8-29-95, Amended________.

 

62-344.200 Definitions.

Words The following words and phrases when used in this chapter shall, unless context clearly indicates otherwise, have the following meanings:

(1) through (3) No change.

(4) “Environmental Resource Permit” means a permit issued pursuant to Part IV of Chapter 373, F.S., (except those subject to the provisions of subsections 373.414(11) through (16), F.S., Section 373.4145(6) 373.4145, F.S., and Section 18 of Chapter 94-122, Laws of Florida) after September 21, 1995.

(5) No change.

(6) “Local Government” means a county, municipality or local pollution control program.

(6)(7) No change.

(8) “Reviewing agency” means the Department or a District, depending upon which agency is reviewing a petition for delegation pursuant to subsection 62-344.300, F.A.C.

(7)(9) No change.

(10) “Water Management District” or “District” means a water management district established under Section 373.069, F.S.

Rulemaking Specific Authority 373.441(1) FS. Law Implemented 373.441 FS. History–New 8-29-95, Amended________.

 

62-344.300 Procedures for Requesting Delegation.

(1) Any local government may petition the Department or a District to receive delegation of all or a portion of the Department or District’s responsibilities under the environmental resource permit program. The petition shall be filed with either the Department’s Agency Clerk Secretary of the Department or the District Clerk of the District with jurisdiction over the geographical area in which delegation is requested, depending upon which agency is responsible for the portions of the environmental resource permit program for which the local government is submitting a petition, in accordance with the division of responsibilities contained in the operating agreements between the Department and the Districts listed in Chapter 62-113, F.A.C.

(2) The petition as initially submitted shall contain the items required by subsection 62-344.400(1), F.A.C.

(3) Within 5 days of receipt by the Department of a petition or supporting information required by subsection 62-344.300(2), F.A.C., the Department shall forward a copy of the petition or supporting information to the headquarters office of the District with jurisdiction over the area for which the delegation is sought. Within 5 days of receipt of a petition or supporting information required by subsection 62-344.300(2), F.A.C., by a District, the District shall forward a copy of the petition or supporting information to the Department Bureau of Submerged Lands and Environmental Resources.

(3)(4) Within 30 days of receipt of the petition, the Department reviewing agency shall request submittal of any additional information needed to review the petition under subsections 62-344.500(2) and (4)(5), F.A.C.

(4)(5) Within 30 days of receipt of timely requested additional information, the Department reviewing agency shall review such information and shall request only that information needed to clarify or to answer new questions raised by or directly related to such additional information.

(5)(6) The For petitions filed with the Department, the Department, within 90 days of receipt of all information requested pursuant to subsections (3)(4) and (4)(5) above, shall first determine whether granting the petition would further the goal of providing an efficient, effective, and streamlined environmental resource permit program pursuant to the provisions of subsection subsections 62-344.500(2), F.A.C. If not, the Department shall notice the petition for denial pursuant to the provisions of this section. If it will further these goals, the Department shall review the petition in accordance with subsection 62-344.300(6) 62-344.300(8), F.A.C., and the other applicable provisions of this chapter.

(7) For petitions filed with the District, within 45 days of receipt by the District of the information requested pursuant to subsections (4) and (5) above, the Department will notify the District of the Department’s determination of whether granting the petition would further the goal of providing an efficient, effective, and streamlined environmental resource permit program pursuant to the provisions of subsection 62-344.500(2), F.A.C. If the Department finds and the District concurs that it will further these goals, the District shall review the petition in accordance with subsection 62-344.300(8), F.A.C., and the other applicable provisions of this chapter. If the Department finds, and the District concurs that granting the petition would not further the goal of providing an efficient, effective, and streamlined environmental resource permit program pursuant to the provisions of subsection 62-344.500(2), F.A.C., the District shall notice the petition for denial pursuant to the provisions of this section. If the District does not concur with the Department’s determination that the delegation will not further the goals of an efficient, effective, and streamlined environmental resource permit program pursuant to the provisions of subsections 62-344.500(2), F.A.C., the District shall transfer the petition to the Department within 10 days of receipt of the Department’s notification, and the Department shall deny the petition using the noticing procedures of this section. If the Department fails to notify the District of its determination under this subsection within 45 days of the receipt of all the information requested pursuant to subsections (4) and (5) above, the Department shall be deemed to have waived its right to make a determination under this subsection.

(6)(8) If a petition is found to further the goal of providing an efficient, effective, and streamlined environmental resource permit program pursuant to the provisions of subsection 62-344.500(2), F.A.C., the Department reviewing agency shall, within 90 days after receipt of all information requested pursuant to subsections (3)(4) and (4)(5) above, request the information required by subsection 62-344.400(2), F.A.C.

(7)(9) Within 90 days of receipt of the information required by subsection (6)(8) above, the Department reviewing agency shall review such information and shall further request only that information needed to complete such information or to clarify or answer new questions raised by or directly related to such information. Within 30 days of receipt of timely requested additional information, the Department reviewing agency shall review such information and shall request only that information needed to clarify or to answer new questions raised by or directly related to such additional information.

(8)(10) Within 180 days of receipt of all the information requested in accordance with subsections (6)(8) and (7)(9) above, unless waived by the local government, the Department reviewing agency shall provide either a written notice of intent to deny the petition, or a written notice of intent to grant the petition and enter into a proposed delegation agreement attached to the notice of intent. Delegation of authority shall be approved if the local government meets the requirements of this chapter.

(9)(11) A failure by the Department reviewing agency to meet any of the time frames in this section shall not be deemed to constitute approval of a delegation by default.

(10)(12) If the Department intends to grant the petition for delegation, the local government The reviewing agency shall publish cause the notice of intent to be published in a newspaper having general circulation in the local government’s territory.

(13) Where a District’s notice of intent proposes to grant the petition and enter into a delegation agreement, the District shall publish such notice in the Florida Administrative Weekly at least 21 days in advance of governing board action.

(11)(14) Where the Department’s reviewing agency’s notice of intent proposes to deny the petition, the notice shall include the specific details of the statutory or rule provisions that were not satisfied state the reasons for the denial and specify any steps the local government must take in order to obtain the requested delegation.

(12)(15) Any substantially affected person may, pursuant to Section 120.57, F.S., seek an administrative hearing on a notice of intent to grant or deny the petition. The time frames for requesting an administrative hearing on a notice of intent to grant or deny the petition shall be those set forth in the Department’s reviewing agency’s rules governing points of entry into proceedings.

(13) In the event a delegation under this chapter is not approved or denied within one year after being initiated, the local government seeking the delegation may petition the Governor and Cabinet for review of the request for delegation. The date the local government submits its petition for delegation to the Department shall be considered the date the delegation was initiated. The Governor and Cabinet may reverse the decision of the Department and may provide any necessary conditions to allow the delegation of authority to occur.

(a) The petition to the Governor and Cabinet shall be filed with the Department’s Agency Clerk at the Department of Environmental Protection, 3900 Commonwealth Boulevard, MS 35, Tallahassee, FL 32399-3900, and the Department shall forward the petition to the Governor and Cabinet within 7 days of receipt.

(b) The petition shall be placed on the agenda for review at the next available Governor and Cabinet meeting.

(c) The standard for approval or denial of the delegation by the Governor and Cabinet shall include the requirements of Section 373.441(3), F.S., and Rule 62-344.500, F.A.C.

(d) The petition shall include the following:

1. Identification that the Department is the agency affected, and identification of the local government, including any subdivision of the local government, that is responsible for filing the petition for delegation and, if different, the petition to the Governor and Cabinet for review;

2. The address, e-mail address, telephone number, and facsimile number of the primary contact person in the local government;

3. The date the local government officially approved filing of the petition for review of the delegation with the Governor and Cabinet, together with a copy of the documentation of that approval;

4. A statement of the facts or issues that are in dispute, including any reasons the local government believes the Department has not acted properly on the petition for delegation under Section 373.441, F.S., or Chapter 62-344, F.A.C.;

5. A detailed statement of the efforts made by the local government to address the facts in dispute or resolve the issues identified in subparagraph (d)4, above; and

6. A statement of the relief requested by the local government, including a proposal to resolve the facts in dispute or issues raised by the local government.

(14)(16) The local government may at any time during the review or appeal process, voluntarily withdraw its petition for delegation without prejudice.

(15)(17) If required to do so by Section 373.046(1), F.S., where Where the Department’s reviewing agency’s notice of intent proposes to grant the petition and enter into a delegation agreement, the Department reviewing agency shall publish a notice of rulemaking to adopt the delegation agreement by reference in accordance with Section 120.54, F.S. the Florida Administrative Weekly proposing to adopt the delegation agreement by reference. To the extent possible, this notice of rulemaking shall be published at the same time as the notice of intent is published.

(16)(18) Any delegation agreement entered into in accordance with this procedure shall become effective when the delegation agreement is fully executed by both parties, and, if required by Section 373.046(1), F.S., is adopted by reference by the Department reviewing agency as a rule.

(17)(19) Any order issued by a local government which is exercising delegated authority pursuant to this chapter is reviewable by the Governor and Cabinet sitting as the Land and Water Adjudicatory Adjudication Commission as provided in Section 373.114(1), F.S.

Rulemaking Specific Authority 373.441(1) FS. Law Implemented 373.441 FS. History–New 8-29-95, Amended________.

 

62-344.400 Content of Petition for Delegation.

(1) Petitions for delegation shall include information sufficient to enable the Department to evaluate the proposal under the provisions of this chapter and, Section 373.441 and subsection 373.103(8), F.S. The petition for requests for delegations from a District, and shall initially include, at a minimum, all of the following information in paragraphs (a) through (d), below. The local government may supplement the initial petition with any other information required in this chapter.:

(a) The name, address, and title of the local government contact person.;

(b) A map clearly depicting the legal boundaries of the geographic area subject to the petition.;

(c) Documentation that the local government seeking delegation has or will have the authority to implement the environmental resource permit program within the area for which delegation is sought.; and

(d) A list description of the particular portion of the environmental resource permit program rules of the Department, and District as applicable, that will be used to implement the requested delegation. requested; and whether the local government will carry out the delegated authority under:

1. The rules of the Department or the District, and including, where appropriate, rules of the local government that are stricter than but not in conflict with Part IV of Chapter 373, F.S., and the reviewing agency’s environmental resource permit program rules; or

2. The rules, ordinances, or regulations adopted under the local government’s own regulatory program, which, at a minimum, incorporate directly or by reference, the relevant portions of the reviewing agency’s environmental resource permit program rules, and the local government’s rules that are stricter than, but do not conflict with Part IV of Chapter 373, F.S., and the reviewing agency’s environmental resource permit program rules.

(2) Pursuant If requested by the reviewing agency pursuant to subsection 62-344.300(6) 62-344.300(8), F.A.C., the local government shall supplement the petition with the following information as requested by the Department:

(a) through (b) No change.

(c) A description of existing and proposed administrative, technical, legal and financial capabilities necessary to implement the portions of the environmental resource permit program requested, including:

1. through 2. No change.

3. An identification of the technical resources, such as A tabular listing of the type, condition, and amount of equipment available for use in implementing the portions of the environmental resource permit program requested, including vehicles, sampling, and laboratory, and computer equipment, computer and telecommunications capabilities it has or proposes to obtain to implement the program.;

4. Documentation of existing and projected funding, including an approved budget for the past year, showing the fiscal resources available for implementation of the requested environmental resource permit program. The approved budget must clearly show the financial status of the division of the local government which will implement the requested environmental resource permit program.;

5. Demonstration that the local government will comply with can meet the specific quality assurance requirements of Chapter 62-160 62-120, F.A.C., by:

a. Identifying the specific quality assurance requirements from Chapter 62-160, F.A.C., that are relevant to the activities for which delegation is sought;

b. Providing documentation which supports the requirements identified in a. for the local government or any organization that might be contracted to perform sample collection or laboratory analyses in support of the delegated activity. Such documentation shall consist of current letters of approval or signed title pages of applicable Quality Assurance Plans that the local government or contracted organization is following Department-specified standard operating procedures; and

c. Proposing a mechanism to assure that all permits issued under the delegated responsibilities meet the quality assurance requirements of Chapter 62-160, F.A.C.

6. Copies of any ordinances or other legal authority by which the local government will implement the requested environmental resource permit program, including the proposed revisions to such ordinances if applicable, or other legal authority for complying with subsection subsections 62-344.500(3), F.A.C.;

7. Citation to the statute, Laws of Florida, or constitutional provisions creating the local government, including an identification as to whether the local government is a charter or a non-charter government.;

8. Identification and copies of all local standards relating to the same subject area as the environmental resource permit program, and, if applicable, for delegations under subparagraph 62-344.400(1)(d)1., F.A.C., specifically identifying in a tabular format those standards which are stricter than and not conflicting with, and stricter than and conflicting with, the Department’s and District’s reviewing agency’s environmental resource permit program rules.; and

9. Information required for the Department reviewing agency to prepare a Statement of Estimated Regulatory Cost an economic impact statement for the requested delegation, prepared in accordance with Sections Section 120.54 and 120.541, F.S., if required.

(3) One original, and one electronic copy, and three copies of the information requested in subsection 62-344.400(1) and (2), F.A.C., must be submitted in bound volumes on 8-1/2 inch by 11 inch sized paper with each category of information requested above clearly labeled.

(4) No change.

Rulemaking Specific Authority 373.441(1) FS. Law Implemented 373.441 FS. History–New 8-29-95, Amended________.

 

62-344.500 Criteria for Review.

(1) The environmental resource permit program requested by the local government shall be delegated only if the Department reviewing agency determines that delegation would further the goal of providing an efficient, effective and streamlined permitting system; the local government has the financial, technical, and administrative capabilities and desire to effectively and efficiently implement and enforce the program; and protection of environmental resources will be maintained. This determination shall be made using the provisions of subsections 62-344.500(2) through (6), F.A.C.

(2) In determining whether delegation would further the goal of providing an efficient, effective and streamlined permitting system as required by subsection 62-344.500(1), F.A.C., the Department reviewing agency, and the Department pursuant to the provisions of subsection 62-344.300(7), F.A.C., when applicable, shall determine all of the following.:

(a) through (d) No change.

(e) For petitions requesting delegation of environmental resource permitting responsibility for hazardous waste facilities required to obtain a permit pursuant to Chapter 62-730, F.A.C., except when the storage of hazardous waste is merely an incidental component of a project for which the Department does not review and take final action on permit applications under the terms of the Operating Agreement Delegation Agreements between the Department and the applicable District Suwannee River, St. Johns River, Southwest Florida, and South Florida Water Management Districts which are referenced in subsection 62-344.100(1), F.A.C., whether the local government has received delegation of corresponding hazardous waste permitting responsibilities or will receive delegation of corresponding hazardous waste permitting responsibilities at the time of delegation.

(f) For petitions requesting delegation of environmental resource permitting responsibility for domestic wastewater treatment facilities, including effluent disposal sites, whether the local government has received delegation of corresponding domestic wastewater permitting responsibilities or will receive delegation of corresponding domestic wastewater permitting responsibilities., except for:

1. That part of a facility which constitutes the application of reclaimed water to irrigate crops, golf courses, or other landscapes;

2. That part of a facility which constitutes the application of reclaimed water to rehydrate wetlands or to provide artificial recharge to reduce or mitigate drawdown impacts due to well withdrawals; and

3. Those facilities which address any of the requirements of Chapter 40B-4, 40C-4, 40D-4, 40E-4, 40B-40, 40C-40, 40D-40, or 40E-40, F.A.C., through a system or activity which is not fully contained on the domestic wastewater facility site, but which is part of a larger project for which the Department does not review and take final action on environmental resource permit applications.

(g) For petitions requesting delegation of environmental resource permitting responsibility for industrial wastewater treatment facilities required to obtain a permit pursuant to Chapter 62-660 or 62-670, F.A.C., except those facilities that qualify for a general permit pursuant to Rules 62-660.801 (Laundromat Wastewater Disposal Systems), 62-660.802 (Pesticide Waste Degradation Systems), 62-660.803 (Car Wash Recycle Systems), 62-660.805 (Tomato Wash Water Disposal), or 62-660.820 (Fish Farms), F.A.C., whether the local government has received delegation of corresponding industrial wastewater treatment permitting responsibilities, or will receive delegation of corresponding industrial wastewater treatment permitting responsibilities., except for:

1. Those facilities in which the industrial wastewater component is merely an HVAC (heating, ventilation, and air conditioning) cooling tower discharge, or other industrial wastewater treatment facility which is merely an incidental component of a project for which the Department does not review and take final action on permit applications under any other paragraph in subsection 62-344.100(4), F.A.C.;

2. That part of a facility which constitutes the application of treated industrial wastewater to irrigate crops or landscapes; or

3. Freshwater aquaculture facilities in which alligators are not grown or held.

(h) For petitions requesting delegation of environmental resource permitting responsibility for mining projects, including phosphate, heavy minerals, fuller’s earth, peat, limerock, sand, gravel, and shell, except for permit applications for borrow pits which have no on-site material grading or sorting facilities, whether the local government has received delegation of corresponding mine reclamation approval responsibilities or will receive delegation of corresponding mine reclamation approval responsibilities at the time of delegation.

(i) Whether the delegation would impair the effective operation of any regulatory, resource planning, land management or land acquisition program which the Department or District is authorized or required to administer.

(3) To ensure that determine whether the local government has the financial, technical, and administrative capabilities and desire to effectively and efficiently implement and enforce the portion of the environmental resource permit program for which delegation is requested, and whether protection of environmental resources will be maintained, as required by subsection 62-344.500(1), F.A.C., the local government shall provide reasonable assurances that:

(a) Adopt verbatim the rules of the Department, and District as applicable, that will be used to implement the requested delegation. Such rules may be adopted either within the body of the local government’s controlling regulations or by incorporating those rules by reference within their regulations. For delegations under subparagraph 62-344.400(1)(d)1., F.A.C., the environmental resource permit program for which delegation is requested shall be governed by Part IV, Chapter 373, F.S., and the applicable rules of the reviewing agency. For delegations under subparagraph 62-344.400(1)(d)2., F.A.C., the environmental permitting program for which delegation is requested will be governed by local standards and rules which, at a minimum, incorporate directly or by reference, the relevant portions of the reviewing agency’s environmental resource permit program rules. Under a delegation of either subparagraph 62-344.400(1)(d)1. or 2., F.A.C., Stricter stricter standards of the local government, if any, shall also apply in addition to the applicable environmental resource permit program rules of the reviewing agency, as provided for in Rule 62-344.600, F.A.C. Delegated local governments shall not apply local standards that are less protective than the corresponding standards in the environmental resource permit program of the Department and District reviewing agency.

(b) For delegations under subparagraph 62-344.400(1)(d)1., F.A.C., the delegated environmental resource permit program shall Be be governed by the provisions of Sections 120.52, 120.53, 120.532, 120.533, 120.565, 120.57, 120.58, 120.59, 120.60, 120.61, 120.62, 120.66, 120.68, 120.69, 120.71, 373.114(1), and 373.413(3), F.S., and any notice or other procedural requirements that apply to activities reviewed under Part IV, Chapter 373, F.S. For delegations under subparagraph 62-344.400(1)(d)2., F.A.C., the local government shall use procedural requirements that are substantially equivalent, as determined by the reviewing agency, to the provisions of Chapters 120 and 373, F.S., cited above.

(c) Have and maintain It will have administrative organization, adequate staff, financial and technical resources, and equipment to effectively and efficiently implement the requested portion of the environmental resource permit program.

(d) Have and maintain It will have sufficient equipment and procedures to effectively and efficiently track permit, compliance, and enforcement data, exchange such data with the Department and District, as applicable reviewing agency, to enable and ensure effective oversight by the Department reviewing agency. At a minimum, the local government shall either utilize the existing telecommunications systems of the Department and District, as applicable, reviewing agency to enter data directly into the existing tracking system of the Department and District, as applicable reviewing agency, or the local government shall use an alternate data exchange procedure using a standardized format developed and agreed upon by the Department and District, as applicable reviewing agency.

(e) Operate Where applicable, it will operate in accordance with the quality assurance rule of plan approved by the Department, under Chapter 62-160, F.A.C.

(f) Establish It will establish procedures by which the local government shall not deem an application for an environmental resource permit complete until the permit applicant has documented that the proposed activity is consistent with the land use designation or classification contained in the local government’s approved future land use map. This documentation can be provided through the use of form number 62-344.900(1), F.A.C., completed by the appropriate local governmental entity with authority to determine compliance with land use designations or classifications, or through the use of an alternate mechanism that provides the same documentation.

(4) A local government can provide for administrative organization, staff, equipment, and technical resources comparable to the Department or District for the portion of the environmental resource permit program requested, to meet the requirements of paragraphs 62-344.500(3)(c), and (d), F.A.C.

(4)(5) The Department reviewing agency shall not delegate the environmental resource program for the following activities.:

(a) through (c) No change.

(d) Activities proposed by the Florida Department of Transportation, inland navigation districts as established and authorized by Chapters 12026 (1927), 14723 (1931), 23370 (1947) and 65-900, Laws of Florida, and Chapter 374, F.S., or occurring within the deepwater ports listed in Section 403.061(26)(b), F.S.

(e) through (f) No change.

(g) Electrical distribution and transmission lines and other facilities related to the production, transmission and distribution of electricity that which do not require certification under Sections 403.501 403.52 through 403.539 403.5365, F.S. This shall not preclude the delegation of review and agency action on electrical distribution lines that are serving and located within a larger plan of development for which review and agency action is otherwise delegated to the local government.

(h) Natural gas or petroleum exploration, production, transmission, or distribution activities, including pipelines, associated facilities, and product pipelines, except those natural gas distribution lines serving and located within a larger plan of development for which review and agency action is otherwise delegated to the local government.

(i) No change.

(5)(6) Notwithstanding the provisions of subsection 62-344.500(5), F.A.C., the Department reviewing agency may delegate to a local government the responsibility and authority to: perform formal determinations of wetlands and surface waters; perform compliance inspections and monitoring for activities subject to regulation under Part IV of Chapter 373, F.S.; and enforce orders and rules, including environmental resource permits issued or adopted by the Department or District reviewing agency pursuant to the authority of Part IV of Chapter 373, F.S., on or after the effective date of the rules adopted pursuant to subsection 373.414(9), F.S., for the activities listed in paragraphs 62-344.500(5)(d) and (e), F.A.C.

(6)(7) Department approval of a local government pursuant to Section 403.182, F.S., shall not constitute authorization to, or be used to determine whether a local government can, receive delegation under this chapter, or Section Sections 373.441 or 373.103(8), F.S.

Rulemaking Specific Authority 373.441(1) FS. Law Implemented 373.441 FS. History–New 8-29-95, Amended________.

 

62-344.600 Procedures for Identifying and Reconciling Duplicative Permitting and Incorporating Incorporation of Stricter Local Standards.

If the Department reviewing agency determines to delegate all or a portion of the environmental resource permit program to a local government under subparagraph 62-344.400(1)(d)1., F.A.C., the following procedures shall be followed to identify and reconcile duplicative permitting and incorporate stricter local standards.:

(1) The Department reviewing agency shall determine, with assistance from the local government, which local standards are stricter than, or conflicting with, the Department’s and District’s reviewing agency’s environmental resource permit program rules. The Department reviewing agency shall determine which of these stricter standards are conflicting standards. The local government may continue to use stricter standards that Stricter standards which are not conflicting standards shall be incorporated into the local government’s delegated environmental resource permit program.

(2) Any person applying for an environmental resource permit from the local government pursuant to the delegated environmental resource permit program, must meet the permitting criteria of the reviewing agency’s environmental resource permit program rules and the local stricter standards to receive an environmental resource permit.

(3) The local government shall act on the application or notice under Part IV of Chapter 373, F.S., and its stricter standards within the time frames requiring agency action under Chapter 120, F.S., Part IV of Chapter 373, F.S., and the rules adopted thereunder, as applicable.

(4)(3) A local government that which receives delegation of all or a portion of the environmental resource permit program shall not require an applicant to obtain a any corresponding separate local permit for those activities which require an environmental resource permit under the delegated environmental resource permit program during the period the delegation is in effect, except. However, when any of the following exist:

(a) A decision on the local permit cannot be made within the timeframes required for issuance or denial of the delegated environmental resource permit under Chapter 120, F.S.;

(b) The the local government otherwise would have required a permit for an activity that does not require a permit under Part IV of Chapter 373, F.S.;, or the environmental resource permit program rules of the reviewing agency adopted thereunder, the delegated local government may require, as a stricter standard, an individual permit under the delegated environmental resource permit program for those activities which do not require a permit or

(c) The local government requires an individually-issued separate local permit for an activity that is otherwise which are authorized by a noticed general permit under the rules of the Department or District reviewing agency.

Rulemaking Specific Authority 373.441(1) FS. Law Implemented 373.441 FS. History–New 8-29-95, Amended________.

 

62-344.700 Delegation Agreements.

(1) No change.

(2) At a minimum, delegation agreements shall contain all of the following information.:

(a) The geographic area in which the delegated portion of the environmental resource permit program is effective, and any area within the local government’s jurisdiction in which the Department or District reviewing agency retains, or another local government has been delegated, environmental resource permitting responsibilities.

(b) The relative regulatory responsibilities of the Department, District, reviewing agency and the local government.

(c) No change.

(d) A description of the data reporting requirements from the local government to the Department, and District if applicable reviewing agency.

(e) No change.

(f) A description of staff training programs the local government will undertake. At a minimum, the local government shall participate in training programs mandated by the Department and District reviewing agency.

(g) through (j) No change.

(k) Provisions for the Department’s reviewing agency’s oversight.

(l) Provisions for the deposition of all monetary penalties and damages recovered by a local government as a result of the local government’s enforcement of the delegated portion of the environmental resource permit program into the Ecosystem Management and Restoration Water Management Lands Trust Fund pursuant to paragraph 373.129(5)(a), F.S., or a local water pollution control program trust fund, which fund shall be used to fund surface water improvement or pollution control activities, pursuant to subsection 373.430(7), F.S.

(m) Provisions detailing how by which the local governments will use or adopt, the rules of the Department or the District with jurisdiction over the territory covered by the proposed delegation that which are applicable to the delegated portion of the environmental resource permit program.

(n) Provisions detailing how by which a delegated local government will comply with Rule 62-344.600, F.A.C.

(o) Provisions for establishing procedures requiring local governments to not issue an environmental resource permit until the permit applicant has documented that the proposed activity is consistent with the future land use element of the local comprehensive plan in the area where the proposed activity will take place using the procedures specified in paragraph 62-344.500(3)(f) 62-344.500(3)(g), F.A.C.

(p) Provisions by which the local government will assume the enforcement lead role for violations of the delegated environmental resource permit program, and by which the local government will coordinate with the Department, or District if applicable, reviewing agency on enforcement matters. Such provision shall provide that the Department or District reviewing agency will not file a separate enforcement action when the local government has resolved a violation under its delegated authority through a final order or judgment. However, the Department and District reviewing agency shall retain the right to become a party to an enforcement action when requested by the local government, and the right to initiate enforcement action when a delegated local government is not resolving violations in a timely or appropriate manner as prescribed in the delegation agreement. In such cases, a joint or consolidated enforcement action will be considered as a preferred alternative to a unilateral enforcement action by the Department or District reviewing agency.

(q) No change.

Rulemaking Specific Authority 373.441(1) FS. Law Implemented 373.441 FS. History–New 8-29-95, Amended________.

 

62-344.900 Forms.

(1) The following form is hereby adopted and incorporated by reference. The form is listed by rule number, which is also the form number, and with the subject title and effective date. A copy of the form can be obtained by contacting the Department of Environmental Protection, Bureau of Submerged Lands and Environmental Resources, M.S. 2505, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400 or an office of a water management district.

(2) Verification of Comprehensive Plan Land Use Designation Consistency, Form 62-344.900(1), F.A.C.

Rulemaking Specific Authority 373.441(1) FS. Law Implemented 373.441 FS. History–New 8-29-95, Repealed________.

 

Form # 62-344.900(1)

Form Title: Verification of Comprehensive Plan Consistency

Effective Date: August 29, 1995

VERIFICATION OF COMPREHENSIVE PLAN LAND USE DESIGNATION CONSISTENCY ____________________, hereby provides (Branch of Local Governmental Responsible for Comprehensive Plan Review) notification that the development proposal, submitted to the __________________________, (Branch of Local Government Responsible for ERP Review) known as ______________ and being proposed by ________ (Project Name) ____________________, which is located in Section __________ (Applicant) __________, Township _________, Range_________, and which consists of ______________ acres has been reviewed by the local government entity responsible for evaluating consistency with the land use designation or classification contained in the local government’s approved future land use map. After such review, all necessary final action has been taken by the governmental entity to determine, and such determination has been made, that the proposed activity complies with the land use designation or classification contained in the local government’s approved future land use map as of the date below. The execution of this form by the local government does not constitute approval under the local government comprehensive plan.

_________________________________________________

Name and Title of Officer or Employee of Local Government Authorized to Execute Notification

________________________________

Signature of above Officer or Employee

_______________

Date

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Mark Thomasson, Director, Division of Water Resource Management

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Herschel T. Vinyard Jr., Secretary

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 13, 2011

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: December 23, 2010