The purpose and effect of this proposed rule is to amend the environmental resource permit (ERP) rules in Chapter 40C-4, F.A.C., and the Applicant’s Handbook: Management and Storage of Surface Waters to: (1) indicate that the regulatory delegations ...

WATER MANAGEMENT DISTRICTS
St. Johns River Water Management District

Rule No.: RULE TITLE
40C-4.091: Publications Incorporated by Reference
40C-4.321: Duration of Permit
40C-4.381: Limiting Conditions
PURPOSE AND EFFECT: The purpose and effect of this proposed rule is to amend the environmental resource permit (ERP) rules in Chapter 40C-4, F.A.C., and the Applicant’s Handbook: Management and Storage of Surface Waters to: (1) indicate that the regulatory delegations to District staff regarding ERPs are located in the Statement of Agency Organization and Operation which is found on the District’s website; (2) remove certain references to the Governing Board in favor of the term “District” for clarity and accuracy and, in some cases, also because permit delegations are no longer subject to rulemaking due to the 2010 enactment of amendments to Section 373.083(5), F.S.; and (3) clarify and reorganize the rules describing: procedures for processing individual and standard ERPs; procedures for objections to such permits; notices provided in the permitting process; requests for administrative hearing; and procedures at regulatory meetings.
SUMMARY: The proposed rule addresses amendments to procedural rules associated with ERP applications.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
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.
SPECIFIC AUTHORITY: 373.044, 373.113, 373.118 FS.
LAW IMPLEMENTED: 373.079, 373.083, 373.116, 373.118, 373.129, 373.413, 373.416, 373.426, 373.613 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
DATE AND TIME: Following the regularly scheduled Governing Board Meeting on November 9, 2010, which begins at 1:00 p.m.
PLACE: St. Johns River Water Management District Headquarters, Executive Building, 4049 Reid Street, Palatka, Florida 32177
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Wendy Gaylord, Rules Coordinator, Office of General Counsel, St. Johns River Water Management District, 4049 Reid Street, Palatka, Florida 32177-2529, [phone], email [e-mail]

THE FULL TEXT OF THE PROPOSED RULE IS:

40C-4.091 Publications Incorporated by Reference.

(1) The Governing Board hereby adopts by reference:

(a) Part I “Policy and Procedures,” Part II “Criteria for Evaluation,” subsections 18.0, 18.1, 18.2, and 18.3 of Part III and Appendix K “Legal Description Upper St. Johns River Hydrologic Basin,” “Legal Description Ocklawaha River Hydrologic Basin,” “Legal Description of the Wekiva River Hydrologic Basin,” “Legal Description of the Wekiva Recharge Protection Basin,” “Legal Description of the Econlockhatchee River Hydrologic Basin,” “Legal Description of the Sensitive Karst Areas Basin, Alachua County,” “Legal Description Tomoka River Hydrologic Basin,” “Legal Description Spruce Creek Hydrologic Basin,” “Legal Description of the Sensitive Karst Areas Basin, Marion County,” and “Legal Description of the Lake Apopka Hydrologic Basin,” and Appendix M “Regional Watersheds for Mitigation Banking,” of the document entitled “Applicant’s Handbook: Management and Storage of Surface Waters,” effective ______________ February 16, 2010.

(b) through (d) No change.

(2) No change.

Rulemaking Authority 369.318, 373.044, 373.046(4), 373.113, 373.4136, 373.414, 373.415, 373.416, 373.418, 373.421, 375.461 FS. Law Implemented 120.60, 369.316, 369.318, 373.016(2), 373.042, 373.0421, 373.046, 373.085, 373.086, 373.103, 373.109, 373.129, 373.146(1), 373.406, 373.413, 373.4135, 373.4136, 373.414, 373.4141, 373.415, 373.416, 373.417, 373.418, 373.421(2)-(6), 373.423, 373.426, 373.461(3), 373.613, 380.06(9), 403.813(2) FS. History–New 12-7-83, Amended 10-14-84, Formerly 40C-4.091, Amended 5-17-87, Formerly 40C-4.0091, Amended 8-20-87, 10-1-87, 10-11-87, 11-26-87, 8-30-88, 1-1-89, 8-1-89, 10-19-89, 4-3-91, 9-25-91, 11-12-91, 3-1-92, 7-14-92, 9-8-92, 9-16-92, 11-12-92, 11-30-92, 1-6-93, 1-23-94, 2-27-94, 11-22-94, 10-3-95, 8-20-96, 11-25-98, 12-3-98, 1-7-99, 1-11-99, 8-21-00, 7-8-01, 10-11-01, 4-10-02, 9-26-02, 3-7-03, 11-11-03, 2-1-05, 12-3-06, 7-1-07, 5-13-08, 11-5-08, 10-29-09, 2-16-10,_________.

 

40C-4.321 Duration of Permit.

(1) No change.

(2) Permits expire on the date indicated on the permit unless application for extension is made pursuant to Chapter 40C-1 in writing to the District on or before the date of expiration. If application for extension is made, the permit shall remain in full force and effect until the District Board takes action on the application for extension.

Rulemaking Specific Authority 373.113 FS. Law Implemented 373.413, 373.416, 373.426 FS. History–New 12-7-83, Formerly 40C-4.321, 40C-4.0321. Amended 8-1-89, 9-8-92,_________.

 

40C-4.381 Limiting Conditions.

(1) No change.

(2) In addition to those general conditions set forth in subsection (1), the District Governing Board shall impose on any permit granted under this chapter and Chapter 40C-40, F.A.C., such reasonable project-specific conditions as are necessary to assure that the permitted system will not be inconsistent with the overall objectives of the District or be harmful to the water resources of the District as set forth in District rules. Upon receipt of the notice of intended District action, any person whose substantial interests are affected shall have the right to request a hearing in accordance with Chapter 120, F.S., Chapter 28-106, F.A.C., and Rule 40C-1.1007, F.A.C.

Rulemaking Specific Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.409, 373.413, 373.416, 373.419, 373.422, 373.423, 373.426 FS. History–New 12-7-83, Formerly 40C-4.381, 40C-4.0381, Amended 8-1-89, 10-19-89, 3-14-90, 2-27-94, 10-3-95, 1-4-96, 1-11-99, 11-11-03,_________.

 

APPLICANT’S HANDBOOK SECTIONS:

3.0Activities Requiring a Permit

3.2 Permits Required

No change.

3.2.3 The District Board will not issue separate permits for parts of a system, except for a system which is to be constructed in phases.

5.0Procedures for Processing Individual Environmental Resource Permits

5.4 Staff Evaluation

5.4.1 When the application is complete, the staff will commence the technical review of the application. Criteria used in the evaluation are defined and discussed in Part II of this Handbook.

5.4.2 All review will be completed and the application will be approved or denied presented to the Board for action within 90 days after the complete application is received.

5.4.3 The goal of the permit evaluation procedure is to assure that the proposed design is consistent with the standards and criteria for evaluation. If the reviewer determines that the design as submitted in the application is inconsistent with the standards and criteria, the District staff will endeavor to assist the applicant in submission of changes in design that will correct the deficiencies in the original application where possible. The responsibility for changing the permit application and designing corrections remains that of the applicant.

5.4.4 The applicant will be given a minimum of 14 days notice when the staff’s review is complete and the application has been scheduled for District action on the application a Board meeting. This notice includes the place, date and time of the meeting, and a copy of the staff report which recommends approval or denial. The applicant is advised to read the report carefully. If any part of the report is in error, or if the applicant does not agree with the staff’s recommendation, the applicant should contact the District staff as soon as possible. The 14 day period is provided to allow the staff and applicant an opportunity to resolve any concern which may have been identified. In all instances, the applicant will have an opportunity to make a statement before the Board at the scheduled regulatory meeting.

If the 14 day period is not sufficient or the applicant is still dissatisfied with the staff’s position, the applicant by waiving the ninety day time frame, has the option of requesting that the District staff take additional time to meet with the applicant to further discuss the application, the applicant’s position, and the staff’s position may have the application removed from the agenda and rescheduled at a later time, or the applicant can request an administrative hearing under the provisions of Chapter 120, F.S., Chapter 28-106 and Rule 40C-1.1007, F.A.C.

5.4.5 Notification to Public for Input

Once the District receives an application, notice of such application will be provided to those persons who have previously filed a written request for notification of pending applications affecting a designated area. Such notice will be sent by regular mail.

The District will also publish a notice of the pending application in a newspaper having general circulation in the affected area. Such notice will be published upon receipt of the application for a permit.

For the District staff to properly evaluate any information which interested persons may submit, these persons are advised to contact the District within 14 days of notification if they have questions, objections, comments or information regarding the proposed system. Those who file a written request for further information regarding the permit application will be furnished the information requested prior to the Governing Board meeting at which the application will be considered.

5.4.6 Objections

(a) In order for the District staff to properly evaluate any information which interested persons may submit regarding an application, these persons should contact the District within 14 days of the date of publication of notice of receipt of application and provide their objections, comments or information regarding the proposed system in writing. Interested persons may attend the Governing Board regulatory meeting(s) at which the specific application is being considered and present information relevant to the application.

(b) Notice of intended agency action will be provided to the applicant and to persons who have requested notice as required by Section 120.60, F.S. Written objections must be received by the District at least seven (7) days prior to the date of the regulatory meeting at which the permit application is scheduled for consideration in order to be included in the official record of the application and made available to the Board in its deliberations.

(c) An applicant or a person whose substantial interests may be determined by the intended agency action may request an administrative hearing in accordance with Chapter 120, F.S., Chapter 28-106, F.A.C., and Rule 40C-1.1007, F.A.C. Making a written objection or appearing at a Board meeting does not make a person a “party” for Chapter 120, F.S., purposes.

5.5 Regulatory Meeting

5.5.1 The Governing Board of the St. Johns River Water Management District meets once a month to act on permit applications that have not been delegated to District staff to approve. (See the District’s Statement of Agency Organization and Operation at floridaswater.com for a listing of these regulatory delegations.) At each regulatory meeting, the Board has copies of the staff reports, which contain a staff recommendation for approval or denial, and which were provided to them several days before the meeting to allow time for review. When applications are formally presented to the Board for action, the Board invites comments from the applicants, District staff, interested persons, or local governments who may be affected by the application, and members of the general public. However, if no requests to speak concerning an application are made at the meeting, the application may be presented to the Governing Board on a consent agenda and therefore may not receive individual consideration.

5.5.2 Upon presentation of an application, the Board will either approve the application, approve the application with modifications, deny the application, or continue the application for consideration at a later date within applicable time frames established by the provisions of Chapter 120, F.S.

6.0Procedures for Processing Standard and Noticed General Environmental Resource Permits

6.2 Standard Permits

6.2.3 If, upon District staff review, one of the following factors is present, an individual permit will be required:

(a) and (b) No change.

(c) a substantial objection has been filed with the District in accordance with the provisions of subsection 6.5.6, unless the objection is later withdrawn in writing or on the record at a Governing Board meeting.

6.5.6 Objections Regarding Standard Permits

A substantial objection as defined in section 6.2.4 will automatically cause the application for a standard permit to be considered an application for an individual permit, unless the objection is later withdrawn in writing or on the record at a Governing Board meeting. Substantial objections must be filed with the District within 14 days of notification of the application. Notification of the application shall be deemed to be either the fifth day after the date on which the written notice is deposited in the United States mail if actual notice is mailed to the interested person, or the date that notice is published if actual notice is not mailed to the interested person. The applicant will be notified that an objection has been received and that the procedures for application for an individual permit must be followed. No additional fee will be required for standard permit applications which are upgraded to individual status as a result of objections as described above.

7.0Permits

7.5 Duration

7.5.4 If an application for re-issuance is made prior to expiration, the permit remains in effect until the District Governing Board takes action on the application.

7.6 Enforcement and Inspection

7.6.1 Chapter 373, F.S., provides for the enforcement of District rules by administrative and civil complaint. In addition to the authority of the District Governing Board to enforce, the District has the authority to obtain the assistance of county and city officials in the enforcement of the rules (see Sections 373.603 and 373.609, F.S.). Any person who violates any provision of Chapter 373, F.S., Chapters 40C-4, 40C-40, 40C-41, 40C-42, 40C-43, and 40C-44, F.A.C., or orders of the District Governing Board, is guilty of a misdemeanor of the second degree and may be subject to prosecution.

8.0Criteria for Evaluation

8.2 Source of Criteria

Chapter 373, F.S. (Water Resources Act of 1972); Chapter 403, F.S., (Environmental Control); Chapter 62-40, F.A.C. (State Water Policy); and Governing Board policy as stated in Chapter 40C-4, F.A.C., (Environmental Resource Permits: Surface Water Management Systems), Chapter 40C-40, F.A.C., (Standard Environmental Resource Permits), Chapter 40C-41, F.A.C., (Environmental Resource Permits: Surface Water Management Basin Criteria), Chapter 40C-42, F.A.C., (Environmental Resource Permits: Regulation of Stormwater Management Systems), Chapter 40C-44, F.A.C., (Environmental Resource Permits: Regulation of Agricultural Surface Water Management Systems), this Handbook, and through permitting decisions of the District Governing Board,. Copies of Chapter 373, F.S., (abridged), Chapters 40C-4, 40C-40, 40C-41, and 40C-400, F.A.C., are contained in the appendices in Part IV of this Handbook.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Kathryn Mennella, Director, Office of General Counsel, St. Johns River Water Management District, 4049 Reid Street, Palatka, Florida 32177-2529, [phone]

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Governing Board of the St. Johns River Water Management District

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 10, 2010

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: August 27, 2010