The purpose and effect of the rule development is to amend the environmental resource permit (ERP) rules in Chapter 40C-44, 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-44.091: Publications Incorporated by Reference
40C-44.341: Revocation or Modification of Permits
PURPOSE AND EFFECT: The purpose and effect of the rule development is to amend the environmental resource permit (ERP) rules in Chapter 40C-44, 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 rule development addresses amendments to procedural rule 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 FS.
LAW IMPLEMENTED: 373.079, 373.083, 373.118, 373.129, 373.413, 373.416, 373.426, 373.609, 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, St. Johns River Water Management District, Office of General Counsel, 4049 Reid Street, Palatka, Florida 32177, [phone], or [e-mail]

THE FULL TEXT OF THE PROPOSED RULE IS:

40C-44.091 Publications Incorporated by Reference.

(1) The Governing Board hereby adopts by reference Part I “Policy and Procedures” and Part II “Criteria for Evaluation,” of the document entitled “Applicant’s Handbook: Agricultural Surface Water Management Systems,” effective_______12-3-06.

(a) through (b) No change.

(2) through (3) No change.

Rulemaking Specific Authority 369.318, 373.044, 373.113, 373.118, 373.171, 373.406, 373.416, 373.418 FS. Law Implemented 369.318, 373.118, 373.406, 373.413, 373.416, 373.418, 373.426, 373.461, 373.603, 373.609, 373.613 FS. History–New 10-20-92, Amended 7-4-93, 10-3-95, 1-11-99, 4-10-02, 3-7-03, 12-3-06,________.

 

40C-44.341 Revocation or Modification of Permits.

(1) The District Governing Board may revoke or modify a permit in accordance with the provisions of Section 373.429, F.S., and Chapter 40C-1, F.A.C.

(2) No change.

Rulemaking Specific Authority 373.044, 373.113, 373.171, 373.406, 373.416, 373.418 FS. Law Implemented 373.429 FS. History–New 8-11-91. Amended 10-20-92, 7-4-93,________.

 

APPLICANT’S HANDBOOK SECTIONS:

1.0Introduction

1.6 Explanation of Thresholds, Exemptions, Standard General or Individual Permits

Permits are required for activities which exceed certain “thresholds” (see section 3.2). Activities below these thresholds are considered to have a minor impact on water resources and are not regulated.

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 3.4.2). Other exemptions are established by the Florida Legislature in the statute which created the water management districts (see section 3.4.1).

A “standard general permit” is available for smaller or typically low‑polluting agricultural activities which follow specific requirements. A standard general permit is approved at the staff level and does not require action by the District’s Governing Board.

An “individual permit” is applicable to agricultural operations which have a higher potential to cause pollution. An individual permit is more complicated and flexible, and requires action by the District’s Governing Board. Agricultural surface water management systems which are required to obtain a permit, and do not qualify for a standard general permit, are required to obtain an individual permit.

3.0Activities Requiring a Permit

3.2 Permits Required

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

3.5 Conceptual Approval Permit

3.5.3 The District’s Governing Board’s determination that the conceptual plans are consistent with Chapter 373, F.S., and Chapters 40C-4, 40C-40, and 40C-41, F.A.C., will provide the applicant with an assurance that the concepts upon which his designs are based can provide for systems which will not be harmful to the water resources of the District and will not be inconsistent with the overall objectives of the District.

4.0Application Preparation

4.2 Forms and Instructions

4.2.4 An applicant who thinks that the information required to be included on the application form or requested at the pre‑application conference is unnecessary for review of the application, may request that the Governing Board determine whether such information is required to review the particular system with regard to statutory and rule criteria. To obtain such a determination, the applicant should request an opportunity to present evidence to the District Governing Board regarding the lack of need for the disputed information. The Governing Board will hear such disputes at regularly scheduled meetings; requests for opportunity to present such evidence should be received at least 21 days prior to the regulatory meeting at which the request is to be heard.

5.0Procedures for Processing Individual Environmental Resource Agricultural System Permits

5.3 Request for Additional Information

5.3.4 If, within the given time frame, the applicant does not submit the requested information (which was requested within 30 days after receipt of the application) the application may be prepared for administrative denial in accordance with Rule 40C-1.1008, F.A.C. In such instances, the applicant will be mailed or delivered a notice of the intent to take such action at a minimum of 14 days prior to the meeting at which the Board will consider denial. The applicant may request an administrative Section 120.569, F.S., hearing pursuant to Chapter 120, F.S., Chapter 28-106, F.A.C., and Rule Section 40C-1.1007, F.A.C., to dispute the necessity of the information required. The applicant may present evidence to the Board stating why the permit application should not be denied. Administrative dDenial pursuant to this procedure is not a determination of the merit of an application and does not preclude reapplying at a later time.

5.4 Staff Evaluation

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.

5.4.4 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., and Rule 40C-1.511, 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.

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 receipt of the notice of receipt of 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 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, Section 40C‑1.511, 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.

6.0Procedures for Processing Standard General Environmental Resource Agricultural System Permits

6.2 Standard General Permits

6.2.4 Upon determination that one of the factions listed in subsection 6.2.3 is present, District staff will notify the applicant that an individual permit is required, and the provisions of subsection 5.0 will be followed. Substantial objection means a written statement directed to the District Governing Board regarding a permit which identifies the objector, concerns hydrologic or environmental impacts of the proposed activity, and relates to applicable rule criteria.

6.5 Staff Evaluation

6.5.6 Notification to Public for Input

At the time the District has received a standard general permit application for construction, it will provide public notice that the application has been filed. Such public notice will be sent by regular mail to those people who have previously filed a written request for notification of pending applications within the affected area.

Notice of receipt of an application which includes construction will be posted on the District website at floridaswater.com in the District headquarters and in each permitting office. For operation and maintenance of existing agricultural operations, pursuant to subsection 40C-44.055(2), F.A.C., no notice of receipt of an application is required.

For the District staff to properly evaluate any information which interested persons may submit, these persons should contact the District within 14 days of receipt of notice of the application if they have questions, objections, comments, or information regarding the proposed system.

7.0Permits

7.4 Duration

7.4.3 Permits expire at 11:59 p.m. on the date indicated on the permit conditions unless an application is made pursuant to Chapter 40C‑1, F.A.C., for an extension on or before the date of expiration. Application for an extension should be made by writing to:

Department of Water Resources Management

St. Johns River Water Management District

4049 Reid Street

Palatka, FL 32177-2529

7.4.5 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.

7.4.6 The District Governing Board may revoke or modify a permit in accordance with the provisions of Section 373.429, F.S., and Chapter 40C‑1, F.A.C. The following constitutes grounds for modification or revocation:

(a) Consistent noncompliance with permit conditions.

(b) Consistent noncompliance with state water quality standards.

(c) Noncompliance with approved wasteload allocations, developed pursuant to a Surface Water Improvement and Management Plan or other state or District program, when adopted by District rule, such that the operation has become inconsistent with the objectives of the District, as set forth in section 9.0 of the Applicant’s Handbook: Agricultural Surface Water Management Systems, or

(d) Noncompliance with a pollutant load reduction goal when adopted by District rule, such that the operation has become inconsistent with the objectives of the District, as set forth in section 9.0 of the Applicant’s Handbook: Agricultural Surface Water Management Systems.

For the purposes of this section of the rule only, the District staff will consider “consistent noncompliance with state water quality standards” to be violations of state water quality standards for 2 consecutive quarters of 3 or more parameters or violations of state water quality standards for 4 consecutive quarters of 1 or more parameters.

7.5 Enforcement and Inspection

7.5.1 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.) A person who violates District rules or refuses to comply with a District order may be subject to criminal prosecution as set forth in Section 373.403, F.S.

8.0Criteria for Evaluation

8.2 Source of Criteria

The criteria for evaluation have been developed from guidelines established in Chapter 373, F.S. (Water Resources Act of 1972); Chapter 403, F.S., (Environmental Control); Chapter 62‑40, F.A.C. (State Water Policy); Chapter 40C‑4, F.A.C., (Environmental Resource Permits: Surface Water Management Systems), Chapter 40C‑40 (Standard General Environmental Resource Permits), Chapters 62‑3 and 62‑302, F.A.C. (Water Quality Standards), this handbook, and through permitting decisions of the District Governing Board. Copies of Chapter 373, F.S., (abridged), Chapter 62‑40, F.A.C., Chapters 40C‑4 and 40C‑40, 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