The purpose and effect of the proposed rule is to amend the environmental resource permit (ERP) rules in Chapter 40C-42, F.A.C., and the Applicant’s Handbook: Regulation of Stormwater Management Systems to: (1) indicate that the regulatory ...

WATER MANAGEMENT DISTRICTS
St. Johns River Water Management District

Rule No.: RULE TITLE
40C-42.091: Publications Incorporated by Reference
PURPOSE AND EFFECT: The purpose and effect of the proposed rule is to amend the environmental resource permit (ERP) rules in Chapter 40C-42, F.A.C., and the Applicant’s Handbook: Regulation of Stormwater Management Systems 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) and 373.118(5), F.S., and because District staff, not the Board, approve ERP applications as a result of the 2009 and 2010 amendments to Section 373.079(4), F.S.; (3) clarify and reorganize the rules describing: procedures for processing standard general and individual ERPs; notices provided in the permitting process; requests for administrative hearing; and procedures at regulatory meetings; and (4) change the location of posting of notices of receipt of application to the District’s website.
SUMMARY: The proposed rule addresses amendments to procedural rules associated with ERPs for stormwater management systems.
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, 373.418 FS.
LAW IMPLEMENTED: 373.079, 373.083, 373.118, 373.413, 373.416, 373.418, 373.426 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-42.091 Publications Incorporated by Reference.

(1) The Governing Board adopts by reference Part I “Policy and Procedures”, Part II, “Criteria for Evaluation”, and Part III “Operation and Maintenance”, of the document entitled “Applicant’s Handbook: Regulation of Stormwater Management Systems, Chapter 40C-42, F.A.C.”, effective_______12-3-06.

(2) through (3) No change.

Rulemaking Specific Authority 120.54(8), 369.318, 373.044, 373.113, 373.118, 373.406, 373.414, 373.418 FS. Law Implemented 369.318, 373.079, 373.083, 373.109, 373.117, 373.118, 373.406, 373.413, 373.414, 373.415, 373.416, 373.418, 373.419, 373.423, 373.426, 373.461, 403.0877, 403.813 FS. History–New 4-11-94, Amended 7-20-95, 10-3-95, 1-11-99, 10-11-01, 4-10-02, 2-1-05, 12-3-06, ________.

 

APPLICANT’S HANDBOOK SECTIONS:

3.0Activities Requiring a Permit

3.2 Permits Required

Any person proposing to construct, alter, operate, maintain, remove, or abandon a stormwater management system, which requires a permit pursuant to section 3.3, except those exempted pursuant to section 3.4, or noted in section 1.6, shall apply to the District for a standard general or individual environmental resource stormwater permit, prior to the commencement of construction, alteration, removal, operation, maintenance, or abandonment of the stormwater management system. The permit required “thresholds” are listed in section 3.3 of this handbook. Activities below these thresholds are considered to have a minor impact on water resources and are not regulated. Please be aware that no construction, alteration, removal, operation, maintenance, or abandonment of a stormwater management system shall be undertaken without a valid standard general or individual environmental resource stormwater permit unless it is below the thresholds listed or exempt.

Although certain activities may exceed a threshold, the District may elect to “exempt” them in the rule from a requirement to obtain a permit, usually because the activity is regulated by another agency or permit process (see section 3.4).

A “standard general environmental resource stormwater permit” is available for stormwater management systems which follow specific requirements as outlined in section 5. If the system meets these requirements an authorization is issued within 30 days after receipt of a complete application. A standard general environmental resource stormwater permit is approved at the staff level and does not require action by the District’s Governing Board.

An “individual environmental resource stormwater permit” is required for stormwater management systems that requires action by the District’s Governing Board. Stormwater management systems which are required to obtain a permit and do not qualify for a standard general environmental resource stormwater permit are required to obtain an individual environmental resource stormwater permit. The District will take action on an individual permit application within 90 days after the complete application is received. Please refer to section 6 for a discussion of individual permit processing procedures.

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 Standard General Permits

5.1 Standard General Permit Criteria

District standard general environmental resource stormwater permits differ from individual permits in that they are granted by rule rather than upon Board approval, to all systems which meet standard general permit design and performance criteria.

To receive a standard general permit, the system must:

(a) Meet certain threshold requirements described in section 3.3 of this handbook

(b) Be designed, constructed and operated in accordance with District criteria described in Parts II and III of this handbook

The person who seeks a standard general permit must submit a complete standard general environmental resource stormwater permit application to the District at least 30 days prior to undertaking the activity and must receive District authorization prior to proceeding.

5.3 Upgrade to Individual Permit

If, upon District staff review of a standard general environmental resource stormwater permit application, one of the following factors is present, the application will be processed as an application for an individual permit:

(a) District staff has a reasonable doubt that District standard general permit criteria for evaluation are met.

(b) A substantial objection to the project has been filed with the District. Substantial objection means a written statement directed to the District regarding a permit which identifies the objector, concerns hydrologic or environmental impacts of the proposed activity, and relates to applicable rule criteria.

Upon determination that one of the factors listed above is present, District staff will notify the applicant that the application has been upgraded to an individual environmental resource stormwater permit and that the provisions of section 6 will be followed, unless the objection is later withdrawn in writing or on the record at a Governing Board meeting.

5.7.6 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. Also, a notice of receipt of an application (provided as part of the application form) will be posted on the District’s website at floridaswaters.com in the District headquarters and in each permitting office.

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.

5.7.7 Objections

A substantial objection as defined in subsection 5.3(c) will automatically cause the application 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 posted at the District’s website at floridaswater.com www.sjrwmd.com 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 as described in section 6 must be followed unless all such objections are withdrawn in writing or on the record at a Governing Board meeting. No additional permit fee will be required if this occurs.

6.0Procedure for Processing Individual Permits

6.5 Staff Evaluation

6.5.2 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.

6.5.4 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 and if it is recommended for approval, conditions. 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 may waive the 90 day timeframe, 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. and may have the application removed from the agenda. It may either be 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.

6.5.5 Notification to Public for Input

Once the District receives an application, notice of such application will be provided to those people who have previously filed a written request for notification of pending applications affecting a designated area. Such notice will be sent by regular mail. Also, a notice of receipt of an application (provided as part of the application form) will be posted in the District headquarters and in each permitting office.

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.

6.5.6 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 notification of the application and provide their objections, comments, or information regarding the specific application 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 interest may be affected by the intended agency Board’s action may request an administrative hearing in accordance with Chapter 120, F.S., Chapter 28-106, F.A.C., and with Rule 40C-1.1007, F.A.C. Making a written objection or appearing at a Board meeting does not make a person a “party” initiate a formal proceeding for Chapter 120, F.S., purposes.

6.6 Regulatory Meeting

The Governing Board of the 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, that 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, members of the general public, or local governments who may be affected by the application. 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.

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 timeframes established by provisions of Chapter 120, F.S.

7.0Permits

7.4 Enforcement and Inspection

One condition of each permit is that District authorized staff, upon proper identification, will have permission to enter, inspect and observe the system to insure compliance with the permitted plans and all conditions included in the permit issued by the District (see section 7.6.3).

Chapter 373, F.S. provides for the enforcement of District rules by both 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.). A violation of any provision of Chapter 373, F.S., Chapters 40C-4, 40C-40, 40C-41, 40C-42, F.A.C., or orders of the District Governing Board, is a second degree misdemeanor and the violator may be subject to prosecution.

7.5.2 Permit Conditions

The District Governing Board may impose upon any permit granted pursuant to Chapter 40C-42, F.A.C., such reasonable conditions as are necessary to assure that the permitted system will not be inconsistent with the overall objectives of the District and will not be harmful to the water resources of the District.

7.5.3 Standard Limiting Permit Conditions

In addition to project-specific special conditions, 19 general limiting conditions are included on all permits issued pursuant to Chapter 40C-42, F.A.C., unless waived by the District Governing Board upon its determination that the conditions are inapplicable for the work authorized by a given permit.

These conditions include a statement of permit duration, requirements for other District permits or permit modifications, construction sequence and timely completion of the stormwater management system, requirements for as-built certification, requirements for adequate erosion and sedimentation control during and after construction, submittal of appropriate operation and maintenance documents, site inspections, and permit transfers. The conditions are listed below:

1. through 19. No change.

7.7 Permit Modifications

The District Governing Board may modify a permit in accordance with the provisions of Section 373.429, F.S.

A request for modification of a permitted system may be made by a permittee as follows:

(a) through (c) No change.

(d) A request for modification by letter above, must be accompanied by the appropriate fee required by Rule 40C-1.603, F.A.C. A modification by letter may be approved only by those District staff specified in the District’s Statement of Agency Organization and Operation which may be found on the District’s website at floridaswater.com the Director, Department of Water Resources, Assistant Director, Department of Water Resources, or a Service Center Director. Any such approval will be provided in writing to the applicant.

(c) No change.

 

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