Chapter40A-4, Management and Storage of SurfaceWaters has been incorporated into the new Statewide Environmental Resourse permitting rule 62-330, FAC. therefore the purpose of repealing this rule is to eliminate redundant rules and the effect will ...

 

WATER MANAGEMENT DISTRICTS

Northwest Florida Water Management District

RULE NOS.:RULE TITLES:

40A-4.011Policy and Purpose

40A-4.021Definitions

40A-4.041Permit Required

40A-4.051Exemptions

40A-4.091Processing of Permits

40A-4.101Content of Application

40A-4.142Headgates, Valves, and Measuring Devices

40A-4.201Permit Processing Fee

40A-4.301Conditions for Issuance of Permits

40A-4.321Duration of Permit

40A-4.331Revocation and Modification of Permits

40A-4.411Completion Report

40A-4.481Remedial and Emergency Measures

40A-4.901Forms and Instructions

PURPOSE AND EFFECT: Chapter 40A-4, F.A.C., Management and Storage of SurfaceWaters has been incorporated into the new Statewide Environmental Resource permitting Chapter 62-330, F.A.C. therefore the purpose of repealing this rule is to eliminate redundant rules and the effect will only be to eliminate redundancy the same level of protection will still be required in the design of dams in the Northwest Florida Area.

SUMMARY: The rule chapter is now contained in Chapter 62-330, F.A.C., and this redundant rule will be repealed in its entirety.

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.

Based on an analysis performed by the District and because the substance of rule chapter is contained in FDEP’s SWERP Rule Chapter 62-330, F.A.C., (effective 10/1/2013, the proposed rule repeal are not expected to require legislative ratification.)

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: When FDEP’s Adopted the Statewide Environmental Based on an analysis performed by the District and because the substance of rule chapter is contained in FDEP’s SWERP Rule Chapter 62-330, F.A.C., (effective 10/1/2013, the proposed rule repeal are not expected to require legislative ratification.)

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: 373.044, 373.113, 373.4131 FS.

LAW IMPLEMENTED: 373.4131 FS.

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

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Lance Laird, 180 East Redstone Avenue, Crestview, Florida

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

40A-4.011 Policy and Purpose.

(1) The purpose of these rules is to implement the expressed water policy of the Northwest Florida Water Management District and the State of Florida to assure that activities relating to the management and storage of surface waters will not be harmful to the water resources and will provide for the safety of life and property within the District. This chapter should be read in conjunction with Chapter 373, F.S. Permits are required to construct, alter, or abandon certain dams, impoundments, reservoir, appurtenant works, or works in the District. The following constitutes an expression of the overall objectives of the District with regard to its permitting powers.

(a) It shall be an overall objective of the District to insure that the dam, impoundment, reservoir, appurtenant work, or works under permit do not create a hazardous condition which might threaten lives or property.

(b) It shall be an overall objective of the District to insure that the waters of the State are not depleted, restricted, or otherwise impaired by artificial means unless permitted by the District.

(2) Provision is made for the correction of unsafe dams or other works, and the District has the authority to make repairs if the owner fails to do so in a reasonable time. Approval of an application to construct does not grant the right to use water or to deny water to downstream owners. Water use permitting will be handled through Chapter 40A-2, F.A.C., to be published. The establishment of rigid construction criteria is not intended to be a part of these rules. Safety must be evaluated in the light of peculiarities and local conditions at a particular dam or other structure and in recognition of the many factors involved, some of which may not be precisely known.

Rulemaking Authority 373.044, 373.113,373.418 FS. Law Implemented 373.413, 373.416, 373.418, 373.426, 373.428 FS. History–New 4-14-80, Formerly 16G-4.01, Repealed_________.

 

40A-4.021 Definitions.

When appearing in this chapter or in any rule, regulation, or order adopted pursuant thereto, the following terms shall mean:

(1) “Agriculture” includes forestry.

(2) “District” means the Northwest Florida Water Management District.

(3) “Department” means the Department of Environmental Protection.

Rulemaking Authority 373.044, 373.113, 373.414, 373.416, 373.418, 373.426, 403.813 FS. Law Implemented 373.418, 373.413 FS. History–New 4-14-80, Formerly 16G-4.02, Amended 7-1-98, Repealed_________.

 

40A-4.041 Permit Required.

(1) General Permit. This subsection provides thresholds for a general permit to construct, alter, abandon or remove any dam, impoundment, reservoir, appurtenant work, or works within the District boundaries. Unless exempted by Statute or District rule, a general permit must be obtained prior to construction, alteration, abandonment, or removal of any dam, impoundment, reservoir, appurtenant work, or works which:

(a) Impounds or may impound water by utilizing a dam which is or will be at least 10 feet but less than 25 feet in height from the natural bed of the stream or watercourse at the downstream toe of the barrier as determined by the District, or from the lowest elevation of the outside limit of the barrier to the maximum elevation of the barrier; or

(b) Has or will have an impounding capacity of at least 50 acre-feet, but less than 100 acre-feet;

(2) Individual Permit. Unless expressly exempted by Statute or District rule, an individual permit shall be required to construct, alter, abandon, or remove any dam, impoundment, reservoir, appurtenant work, or works which:

(a) Impounds or may impound or divert water and:

1. Utilizes a dam which is or will be 25 feet or more in height from the natural bed of the stream or watercourse at the downstream toe of the dam, as determined by the District, or from the lowest elevation of the outside limit of the barrier to the maximum elevation of the dam; or

2. Has or will have an impounding capacity of 100 acre-feet or more; or

(b) Removes water directly from a water body having an impounding capacity of 100 acre-feet or more by means of dikes, levees, fills, or canals; or

(c) Reroutes, restricts, or alters the rate of flow of a stream or other watercourse from a point where the watershed upstream from such point drains an area exceeding 5 square miles.

(3) The Board may impose on any permit granted under subsections (1) and (2) such reasonable conditions as are necessary to assure that the permitted construction, alteration, abandonment, or removal will be consistent with the overall objective of the District as published in Chapter 373, F.S.; Rules of the District; or the Water Resources Management Plan.

(4) The Governing Board may accept the permit of any unit of local government in lieu of any permit required in this chapter if such permit is issued under requirements comparable or more stringent than those published in this chapter.

Rulemaking Authority 373.044, 373.113, 373.118, 373.406, 373.418, 380.06(9) FS. Law Implemented 373.413, 373.416, 373.426 FS. History–New 4-14-80, Amended 2-1-82, Formerly 16G-4.04, Amended 7-1-98, Repealed_________.

 

40A-4.051 Exemptions.

The following are exemptions in addition to those contained in Section 373.406, F.S.

(1) No permit shall be required for the construction, alteration, abandonment, or removal of any dam, impoundment, reservoir, appurtenant work, or works if such construction:

(a) Impounds or may impound water by a dam which is or will be less than 10 feet in height from the natural bed of the stream or watercourse at the downward toe of the dam as determined by the District, or from the lowest elevation of the outside limit of the dam to the maximum elevation of the dam; and

(b) Has or will have an impounding capacity of less than 50 acre-feet.

(2) No permit shall be required for dams which are five feet or less in height, regardless of storage capacity.

(3) Nothing in this chapter shall be construed to affect the right of any natural person to capture, discharge, and use water for the purposes permitted by law.

(4) Nothing in this chapter shall be construed to affect the right of any person engaged in the occupation of agriculture, floriculture, or horticulture to alter the topography of any tract of land for purposes consistent with the practices of such occupation; provided, however, such alteration may not be for the sole purpose of impounding or obstructing surface waters.

(5) Nothing in this chapter shall be construed to be applicable to construction, operation, or maintenance of any closed system.

Rulemaking Authority 373.044, 373.113, 373.418 FS. Law Implemented 373.406, 373.413, 373.416, 373.426, 403.813 FS. History–New 4-14-80, Formerly 16G-4.05, Amended 7-1-98, Repealed_________.

 

40A-4.091 Processing of Permits.

(1) The application for a permit under these rules shall be submitted to the District on SAJ Form 983, “Joint Application Department of the Army/Florida Department of Environmental Protection for Activities in Waters of the State of Florida.” Forms may be obtained from the Department or from the District.

(2) The permit application for an Individual Permit shall be reviewed on behalf of the District by a professional engineer, registered in the State of Florida. The District shall request any additional information and notify the applicant of any errors or omissions required to complete the processing of any application within 30 days following receipt of the application. A copy of all such requests will be provided to the Department. The District shall take action upon any permit application within 90 days following receipt of all requested information from the applicant.

(3) The issuance of a permit is dependent upon:

(a) The application being in the proper form and containing the required information;

(b) The proposed construction, alteration, or abandonment being in accordance with applicable laws, rules, and orders; and

The work accomplished being consistent with the overall objectives of the District, the Department, and the Legislature as published in Chapter 373, F.S.; the Florida Administrative Code; or the Water Resources Management Plan. In determining whether a permit is to be issued pursuant to this Chapter, the Board shall not consider whether permits from other agencies of the State or local government have been obtained or are required.

(4) District action on an application shall result in one of the following:

(a) Permit is approved to construct, alter, or abandon any dam, impoundment, reservoir, appurtenant work, or works of the District;

(b) Permit is approved as in (a) above except that certain conditions are imposed in the construction of the facility; or

(c) Permit is disapproved due to:

1. Incomplete application;

2. Design not being consistent with generally accepted engineering practices (an example of an accepted reference is Design of Small Dams, U. S. Department of Interior, Bureau of Reclamation, Second Edition, 1973), as applied to local conditions; or

3. Does not meet the standards and requirements set forth in Rule 40A-4.301, F.A.C.

(d) Notice of Intent to Deny.

1. The District shall issue a Notice of Intent to Deny when it determines that an application for a permit fails to meet the requirements of Chapter 373, F.S., or any rule, order, or standard adopted pursuant thereto. A copy of the Intent to Deny will be furnished to the Department in the same mailing as the notification to the applicant.

2. The notice of Intent to Deny shall:

a. State the grounds for denial;

b. Be served in writing upon the applicant at his last known address by registered or certified mail with a copy to the Department; and

c. Inform the applicant of a right to hearing pursuant to Section 120.57, F.S.

3. In the event the applicant or other affected parties are dissatisfied with the action of the District as described under this section, the applicant receiving a Notice of Intent to Deny may request a hearing by filing a written petition to the District within 21 days of receipt of the notice. The hearing shall be conducted pursuant to Chapter 120, F.S., and Chapter 40A-1, F.A.C.

Rulemaking Authority 373.044, 373.113, 373.406, 373.418 FS. Law Implemented 373.118, 373.406, 373.417, 373.418, 373.4141, 373.416, 373.426 FS. History–New 4-14-80, Amended 2-1-82, Formerly 16G-4.061, Amended 7-1-98, Repealed_________.

 

40A-4.101 Content of Application.

(1) Permit applications under provisions of subsection 40A-4.041(2), F.A.C., shall include:

(a) Name and address of the applicant;

(b) Name and address of the owner or owners of the land upon which the construction, alteration, or abandonment is to take place;

(c) Location of the work, including a location map;

(d) Plans and specifications as prepared or approved by a professional engineer registered in the State of Florida, or by the U.S. Department of Agriculture Natural Resources Conservation Service;

(e) Plans and specific procedures for operating and maintaining the proposed dam, impoundment, reservoir, appurtenant work, or works including operating during floods and droughts; and

(f) Name and address of person who prepared the plans and specifications.

(2) Applications for General Permits under provisions of subsection 40A-4.041(1), F.A.C., shall be filed with the Department on forms provided by the Department or District, and shall include, as a minimum:

(a) Name and address of applicant;

(b) Name and address of owner or owners of the land upon which the construction, alteration, or abandonment is to take place;

(c) Location and scope of work, including a location map, and any plans and specifications prepared for the project.

(3) In situations where unusual topographic or geologic conditions or safety hazards exist, the District shall require the applicant, under subsections (1) and (2) above, to submit other pertinent information deemed necessary for evaluating the application.

Rulemaking Authority 373.044, 373.113, 373.131, 373.406, 373.418 FS. Law Implemented 373.406, 373.413, 373.416, 373.426, 373.427 FS. History– New 4-14-80, Amended 2-1-82, Formerly 16G-4.10, Amended 7-1-98, 3-2-00, Repealed_________.

 

40A-4.142 Headgates, Valves, and Measuring Devices.

(1) The owner of any dam, impoundment, reservoir, appurtenant work, or works subject to this chapter may be required, after notice and hearing by the Governing Board, to install and maintain a substantial and serviceable headgate or valve at the point where the water is discharged or diverted, and shall, if required by the Governing Board, install a measuring device which will adequately measure the water at a point designated by the Governing Board for the purpose of investigating any hydrological effects of the structure.

(2) If any owner shall not have constructed or installed such headgate, valve, or such measuring device within 60 days after the Governing Board has ordered its construction, the Governing Board shall have constructed or installed such headgate, valve, or measuring device, and the costs of installing the headgate, valve, or measuring device shall be a lien against the owner’s land upon which such installation takes place until the Governing Board is reimbursed, with reasonable interest and attorney’s fees, for its costs.

(3) No person shall alter or tamper with a measuring device so as to cause it to register other than the actual amount of water diverted, discharged, or taken. Violation of this subsection shall be a misdemeanor in the second degree, punishable under Section 775.083(1), F.S.

(4) For the purpose of safety and maintenance, any new dams, impoundments, or appurtenant works meeting the requirements of Rule 40A-4.041, F.A.C., may be required to have installed and maintained a substantial and serviceable headgate or valve at the point where the water is diverted or discharged.

Rulemaking Authority 373.044, 373.113 FS. Law Implemented 373.409, 373.413, 373.416, 373.436 FS. History–New 4-14-80, Amended 2-1-82, Formerly 16G-4.14, Repealed_________.

 

40A-4.201 Permit Processing Fee.

(1) A non-refundable permit processing fee shall be paid by check payable to the District at the time a permit application is filed in the manner prescribed in Rule 40A-4.101, F.A.C.

(2) The fee for an application for a permit for management and storage of surface waters of the District is in addition to any charges by other agencies.

Type of Activity	Fee
General Construction	$800.00
Each additional facility	$400.00
Individual Construction	$1,000.00
Each additional facility	$500.00
Other Works	$1,000.00
Abandonment or Removal	$500.00
Alteration of Existing Structure
General	$800.00
Individual	$1,000.00
Permit Modification
General	$800.00
Individual	$1,000.00
Alteration/Permit Modification for
Each Additional Structure
General	$400.00
Individual	$500.00

Rulemaking Authority 373.044, 373.113, 373.418 FS. Law Implemented 373.109 FS. History–New 4-14-80, Formerly 16G-4.20, Amended 8-1-89, 1-1-90, 7-1-98, Repealed_________.

 

40A-4.301 Conditions for Issuance of Permits.

(1) The issuance of a permit pursuant to this chapter shall not bind the Governing Board to issue any other permit which may be required under the provisions of Chapter 373, F.S., nor does issuance of a permit under this Chapter grant the right to use water or deny water to downstream owners.

(2) Issuance of a permit will be denied if the proposed activity:

(a) Will cause the flow of a stream or other watercourse to be lowered below the minimum flow established by the Governing Board;

(b) Will cause the level of the potentiometric surface to be lowered below the minimum level established by the Governing Board;

(c) Will cause the level of the surface of water in any lake or other impoundment to be lowered below the minimum level established by the Governing Board or raised to a level that will be harmful to the people, property, or water resources of this area;

(d) Will significantly induce salt water encroachment;

(e) Will cause the water table to be lowered so that lake stages or vegetation will be adversely affected on lands other than those owned, leased, or otherwise controlled by the applicant;

(f) Will cause an increased flow such that it will endanger downstream property in times of flood with respect to state or frequency; or

(g) Is contrary to the provisions of Chapter 373, F.S.

(3) The Governing Board may condition the granting of a permit so as to require:

(a) Dates that construction, alteration, removal, and operation are to be commenced or completed, with notification of such commencement and completion to be given in writing postmarked no later than five days thereafter;

(b) Reports of operations and maintenance on forms to be provided which shall be submitted within the times prescribed;

(c) Installation of monitoring facilities;

(d) Prescribed operating procedures and schedules; and

(e) Other such reasonable conditions as are necessary to assure that the permitted construction, removal, alteration, or operation will not conflict with the provisions of Chapter 373, F.S.

Rulemaking Authority 373.044, 373.113, 373.418 FS. Law Implemented 373.042, 373.0421, 373.413(1), 373.416, 373.418, 373.426 FS. History–New 4-14-80, Amended 2-1-82, Formerly 16G-4.30, Repealed_________.

 

40A-4.321 Duration of Permit.

Except as otherwise provided in Rule 40A-4.331, F.A.C., permits issued under authority of this chapter shall be permanent. The sale or conveyance of such facility, or the land on which the same is located, shall in no way affect the validity of the permit, as long as the use remains the same, provided that the owner in whose name the permit was granted notifies the Board of such change of ownership within thirty (30) days of transfer.

Rulemaking Authority 373.044, 373.113, 373.418 FS. Law Implemented 373.413, 373.416(2), 373.418, 373.426 FS. History–New 4-14-80, Formerly 16G-4.32, Repealed_________.

 

40A-4.331 Revocation and Modification of Permits.

(1) The Governing Board may revoke or modify a permit at any time if it determines that a dam, impoundment, appurtenant work, or works has become a danger to the public health or safety or if its operation is in violation of any regulation or order of the District, or the conditions of the permit.

(2) Before any such revocation or modification, the Governing Board shall give written notification thereof by registered or certified mail to the permit holder with a copy to the Department. Such notification shall contain a statement of the reasons why the revocation or modification is proposed and a reference to any applicable District objective, regulation, order, or permit condition. An affected party may file a written petition for a hearing no later than 14 days after notice of proposed revocation or modification is served for a hearing. No permit shall be revoked or modified before the permit holder is afforded an opportunity for a hearing before the Governing Board.

(3) If the Executive Director determines that the danger to the public is imminent, he may order a temporary suspension of the construction, alteration, or operation of the facility until the hearing is concluded, or he may take such action as authorized under Rule 40A-4.481, F.A.C.

(4) The Governing Board may revoke a permit permanently and in whole with written consent of the permittee and concurrence of the Department.

Rulemaking Authority 373.044, 373.113, 373.418 FS. Law Implemented 373.429 FS. History–New 4-14-80, Amended 2-1-82, Formerly 16G-4.34, Repealed_________.

 

40A-4.411 Completion Report.

Within 30 days after the completion of construction or alteration of any activity for which a permit was granted by the Governing Board, the permittee shall file with the District a written statement of completion. The report shall contain the District permit number, the as-built drawings, and any modifications to the specifications or other documents submitted with the permit application.

Rulemaking Authority 373.044, 373.113 FS. Law Implemented 373.413, 373.416, 373.419, 373.426 FS. History–New 4-14-80, Formerly 16G-4.41, Amended 7-1-98, Repealed_________.

 

40A-4.481 Remedial and Emergency Measures.

(1) Upon completion of any inspection provided for by Rule 40A-4.461, F.A.C., the Executive Director shall determine what alterations or repairs shall be made within a time certain, which shall be a reasonable time. The owner of such facility shall be served with the order to make such alterations or repairs. The holder of any lesser interest in such facility shall be notified by registered or certified mail of the order to make such alterations or repairs. The owner of such facility may file a written petition for a hearing before the Governing Board within 14 days after such order is served. If, after such order becomes final, the owner of such facility shall fail to make the specified alterations or repairs, the Governing Board may in its discretion cause such alterations or repairs to be made.

(2) Any cost to the District of alterations or repairs made by it under the provisions of subsection (1) shall be a lien against the property of the landowner on whose land the alterations or repairs are made until the Governing Board is reimbursed, with reasonable interest and attorney’s fees, for its costs.

(3) The Executive Director, with concurrence of the Governing Board, shall immediately employ any remedial means to protect life and property if either:

(a) The condition of any dam, impoundment, appurtenant work, or works is so dangerous to the safety of life or property as not to permit time for the issuance and enforcement of any order relative to its maintenance or operation; or

(b) Passing or imminent floods threaten the safety of any such facility.

(4) In applying the emergency measures provided for in this section, the Executive Director, may, in an emergency, do any of the following:

(a) Lower the water level by releasing water from any lake or other impoundment;

(b) Completely empty the lake or other impoundment; or

(c) Take such other steps as may be essential to safeguard life and property.

(5) The Executive Director shall continue in full charge and control of such facility until it is rendered safe or the emergency occasioning the action has ceased.

Rulemaking Authority 373.044, 373.113 FS. Law Implemented 373.436, 373.439 FS. History–New 4-14-80, Formerly 16G-4.48, Amended 7-1-98, Repealed_________.

 

40A-4.901 Forms and Instructions.

(1) The required permit application is the Joint Application, Department of the Army/Florida Department of Environmental Protection for Activities in Waters of the State of Florida, form number SAJ 983.

(2) Forms may be obtained by contacting:

(a) The Department of Environmental Protection, Northwest District Office, 160 Governmental Center, Pensacola, FL 32501, or 2600 Blair Stone Road, Tallahassee, FL 32301;

(b) The Northwest Florida Water Management District, 152 Water Management Drive, Havana, FL 32333-9700, [phone].

Rulemaking Authority 373.044, 373.113, 373.118, 373.418 FS. Law Implemented 373.116, 373.118, 373.413, 373.416, 373.418, 373.426 FS. History–New 4-14-80, Amended 2-1-82, Formerly 16G-4.90, Repealed_________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Lance Laird

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: The Governing Board of the Northwest Florida Water Management District

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 14, 2013