The purpose of this proposed rule is to establish an Environmental Resource General Permit to authorize the West Coast Inland Navigation District (WCIND) to dredge channels and canals within certain trafficsheds and secondary channel systems, ...

 

DEPARTMENT OF ENVIRONMENTAL PROTECTION

RULE NO.: RULE TITLE:

62-330.411: General Permit for Public Navigation Channel and Canal Infrastructure by the West Coast Inland Navigation District within Charlotte County

PURPOSE AND EFFECT: The purpose of this proposed rule is to establish an Environmental Resource General Permit to authorize the West Coast Inland Navigation District (WCIND) to dredge channels and canals within certain trafficsheds and secondary channel systems, located in Charlotte County, that have been determined to make a significant contribution to public boating traffic.

The effect of this proposed rule would be to further implement WCIND’s “Regional Waterway Management System” (RWMS) within Southwest Florida, and thereby promote safer and more environmentally-friendly boating practices within the area. Qualifying projects would benefit from streamlined permitting reviews and a more certain regulatory outcome, and would receive a Letter of Consent for the use of state-owned submerged lands, if applicable. Similar general permits have been adopted for WCIND activities covered under the RWMS, within Lee (62-330.412, F.A.C.) and Manatee and Sarasota (62-330.410, F.A.C.) Counties.

SUMMARY: Chapter 62-330, F.A.C., will be amended to add a new general permit for public navigational dredging activities to be performed by the West Coast Inland Navigation District within Charlotte County.

OTHER RULES INCORPORATING THIS RULE: None. This is a proposed new rule.

EFFECT ON THOSE OTHER RULES: None.

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: Based upon the Department’s economic review, a SERC is not required because the adoption of this general permit does not increase costs to the regulated public.

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: 373.043, 373.4131, 403.805(1), 403.814(1) FS.

LAW IMPLEMENTED: 253.002, 253.77, 258.42, 373.4131, 373.414, 403.061(34) 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: Andrew May, Florida Department of Environmental Protection, Submerged Lands and Environmental Resources Coordination, 2600 Blair Stone Road, MS 2500, Tallahassee, FL 32399-2400, telephone: [phone], e-mail: [e-mail], or facsimile: [phone]. (OGC No. 13-1285)

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

62-330.411 General Permit for Public Navigation Channel and Canal Infrastructure by the West Coast Inland Navigation District within Charlotte County.

(1) A general permit is granted to the West Coast Inland Navigation District ("WCIND") to dredge public navigation channels and canals within the trafficsheds and secondary channel systems which have been determined by the WCIND Board to make a significant contribution to public boating traffic, as listed in Robert A. Swett, David A. Fann, and Elizabeth Staugler, Maps of Charlotte County General Permit Trafficshed Channels and Secondary Channels, Florida Sea Grant College Program, Gainesville, Florida (July 2014) (SGEF-209), incorporated by reference herein [effective date] (http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX). Copies of SGEF-209 may be obtained from the Department as described in subsection 62-330.010(5), F.A.C.

(2) The following terms are defined for the purpose of this general permit:

(a) “Trafficshed” means an area that contains a concentration of boats that use a common channel, exclusive to the trafficshed, to gain access to secondary access channels and, ultimately, to deep, open water.

(b) “Secondary channel system” means those channels that provide access to two or more trafficsheds.

(c) “Corals” means true stony corals (order Scleractinia), hydrocorals (order Milleporina), and soft corals and other octocorals (subclass Octocorallia).

(d) “Seagrass” means rooted, vascular plants of the families Potamogetonaceae, Hydrocharitaceae and Cymodoceae.

(e) “Communities” means assemblages of attached benthic organisms with a coverage density of at least one percent, and does not include incidental individual (or clumped) specimens.

(3) In addition to the requirements of Rule 62-330.405, F.A.C., this general permit is further limited as follows:

(a) Areas to be dredged shall not contain communities of corals, sponges (Porifera), oysters (Crassostrea spp.) or macroalgae.

(b) To the maximum practicable extent, dredging alignments shall follow existing channels and previously dredged areas, minimize impacts to seagrass communities and avoid adverse impacts to adjacent seagrass, coral, sponge or oyster communities that may reasonably be expected to result from turbidity, deposition of dredged material or sloughing of channel side slopes.

(c) Dredging alignments are limited to a top width of 30 feet and a bottom width of 20 feet, and shall not exceed the depths shown in SGEF-209. Overdredging is not allowed.

(d) Seagrasses and incidental individual (or clumped) oysters, corals or sponges within dredge areas shall be relocated to viable recipient sites, using scientifically accepted methods, to the maximum practicable extent.

(e) This general permit shall not apply to dredging within the limits of an area subject to a valid individual permit issued under Part IV of Chapter 373, F.S.

(4) Prior to each submittal of notice to use this general permit, WCIND shall conduct a pre-application meeting with the Department to review the specific details of the proposed project. For projects within an aquatic preserve, the meeting shall include the manager (or designated staff) of that aquatic preserve. The Department shall notify FWC prior to the pre-application meeting to provide FWC staff the opportunity to participate in the meeting. At the pre-application meeting, WCIND shall present all information necessary to complete Form 62-330.402(1), F.A.C., specifically including the following:

(a) Scaled plan and cross-sectional drawings that clearly identify:

1. The location, length, width, depth at local mean lower low water (MLLW) and estimated volume of each area to be dredged;

2. The locations of any hydraulic pipelines, barges and dredged material transfer sites;

3. The locations, dimensions and volumetric capacity of all proposed dredged material stockpile and disposal areas, including erosion and sedimentation controls; and

4. The location and dimensions of all proposed turbidity mixing zones, including work areas to be enclosed within turbidity curtains as described in paragraph (6)(c), below. Such zones shall be of the minimum necessary extent, shall not encompass communities of seagrass, coral, sponge, oysters or macroalgae and shall be evaluated in accordance with Rule 62-4.244, F.A.C.

(b) A Benthic Resource Inventory (BRI) consisting of scaled, plan-view depictions of the locations, dimensions and qualitative descriptions of the coverage and density for all seagrasses, oysters, corals, sponges and macroalgae within the areas specified under subparagraph (4)(b)1., below, including incidental specimens to be relocated pursuant to paragraph (3)(d), above. The benthic resource inspections conducted to prepare the BRI shall:

1. Be conducted along at least two transects lying parallel to and five feet within the sides of the dredging alignment, with additional transects conducted every 25 feet throughout all proposed turbidity mixing zones and all areas to receive relocated organisms;

2. Be conducted during May through September within one year prior to submittal; and

3. Be conducted using scientifically accepted methods by individuals experienced and knowledgeable in benthic resource identification. Additionally, if the project is within an aquatic preserve, the manager (or staff) of that preserve shall be given at least two weeks prior notice and reasonable opportunity to accompany those individuals performing the inspections.

(c) A turbidity monitoring plan that includes the following information:

1. The relative locations of all proposed compliance monitoring stations, which shall be located adjacent to and directly downcurrent of the dredging sites, outfalls from dredged material disposal sites and other areas of active work, including the surrounding floating turbidity barriers and other approved mixing zones, if applicable;

2. The locations of the proposed background monitoring stations, which shall be within the same waterbody as the compliance monitoring stations, representative of ambient conditions for that waterbody and outside the influence of the areas of active work; and

3. Assurance that monitoring shall be performed in accordance with Chapter 62-160, F.A.C., including Department procedure “DEP-SOP-001/01 FT 1600 Field Measurement of Turbidity,” which is incorporated in paragraph 62-160.800(1)(a), F.A.C., including the specifications of any non-standard sensors to be used.

(5) Each dredging event for a trafficshed or secondary channel system shall require a separate notice to use this general permit. Multiple areas within a single trafficshed or secondary channel system may be included in one notice.

(6) All work under this general permit shall comply with the following specific conditions:

(a) Relocation of seagrasses, corals, sponges or clumped oysters shall be performed in a manner that avoids adverse impacts to water quality or adjacent submerged resources.

(b) Dredged material resulting from the activities authorized by this general permit shall be removed and deposited on a self-contained, upland disposal site, with the following exceptions:

1. Seagrass, oyster, coral or sponge relocations as required by paragraph (3)(d) of this general permit; or

2. Where such deposition is authorized by a valid permit under Part IV of Chapter 373, F.S.

(c) Floating turbidity curtains shall be installed and maintained in a manner that effectively contains turbidity within the work area, at all times around areas of active in-water work, including dredging, discharge and spoil transfer. Use of these curtains shall not impede navigation or cause adverse sedimentation or other impacts to benthic communities located outside the work area.

(d) WCIND shall monitor in-situ turbidity in accordance with the Department-approved turbidity monitoring plan, described in (4)(c), above. Turbidity samples shall be collected at each compliance and background station within four hours prior to commencement of any period of in-water work, and shall continue to be collected every four hours thereafter until in-water work ceases, including at least one additional set of samples within four hours after work ceases. Each station shall be sampled at surface, mid-depth and one foot above bottom, or at mid-depth only, for waters less than five feet deep at the time of sampling. Samples shall be collected with a Kemmerer, Van Dorn or a similar sampler that is designed to collect in-situ water samples. Samples shall be analyzed immediately after collection with a turbidimeter that produces results in Nephelometric measurements. Detailed reports of all monitoring data shall be retained by WCIND and made available to Department staff, upon request. In the event that monitoring detects a violation of state water quality standards, WCIND shall:

1. Cease dredging immediately until the source of the violation is identified;

2. Take corrective measures to avoid future violations;

3. Only resume work once the receiving waters again meet water quality standards; and

4. Report the violation(s) and corrective measures taken to the Department within 24 hours.

(e) The following conditions apply to in-water activities authorized under this general permit, in the trafficsheds and secondary channels identified as Ainger Creek, Balboa Creek, Canal Waterway, Desoto Canal, Dover Canal, Gottfried Creek-Englewood Secondary Channel, Myakka River Secondary Channel, Oyster Creek, Peace Island East, Punta Gorda Marina, San Marino Canal, San Salvador Canal, Santa Barbara Canal, Santa Clara Canal and Whidden Bay Secondary Channel:

1. Specific personnel shall be designated as manatee observers. The designated observer(s) shall be dedicated only for this task, must be on site during all in-water dredging activities and shall advise personnel to cease operation upon sighting a manatee within 50 feet of any in-water construction activity. The observer(s) shall wear polarized sunglasses during all dredging to aid in observation and shall work in shifts of no longer than 5 hours each. Observers shall maintain a log detailing manatee sightings, work stoppages and other protected species-related incidents. If approved by the Department after consultation with the FWC, the WCIND shall be allowed to implement alternative measures for observing for the presence of manatees when such measures provide reasonable assurance that manatees will not be adversely affected by the alternative methodology.

2. A report, summarizing all activities noted in the observer logs, the location and name of project and the dates and times of work shall be submitted within 30 days following project completion to the FWC’s Imperiled Species Management Section at: 620 South Meridian Street, 6A, Tallahassee, Florida 32399-1600, or e-mailed to [e-mail].

3. No nighttime mechanical dredging, such as clamshell, shall occur. Movement of a work barge or other associated vessels shall not be performed, except at idle speed, after sunset when the possibility of spotting manatees is negligible.

(7) Within 90 days after completion of dredging under each notice, WCIND shall:

(a) Mark the dredged waterways in accordance with Section 327.40, F.S., in a manner to facilitate safe navigation and protection of submerged natural resources.

(b) Submit a post-construction report, signed and sealed by a Registered Professional, detailing all work performed, including:

1. The depths and widths established by the dredging;

2. The total volume of material excavated from each channel and canal dredged; and

3. A detailed description of all relocation of organisms performed under paragraph (6)(a), above.

(c) The Department shall grant additional time, as reasonably necessary, to satisfy conditions (7)(a) and (b), above, upon demonstration of circumstances beyond the control of WCIND that prevented their timely completion.

(8) The No Internal Combustion Motors Zone (NICMZ) covering an area of approximately 89 acres of submerged lands within the Lemon Bay Aquatic Preserve, as described and depicted in the Map and Description of the Whidden Key No Internal Combustion Motor Zone, incorporated by reference herein (effective date) (http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX), is hereby established. A copy of that document may be obtained from the Department as described in subsection 62-330.010(5), F.A.C.

(a) WCIND shall install and maintain uniform waterway regulatory markers demarcating the boundaries of the NICMZ established by this general permit, in accordance with all required permits under Section 327.41, F.S. WCIND shall provide documentation to the Department that the boundaries of the NICMZ have been so marked, prior to conducting any work under this general permit within Outstanding Florida Waters.

(b) Within the NICMZ, vessels equipped with internal combustion motors (e.g., gasoline or diesel motors) for propulsion must turn off the internal combustion motor and, if possible to do so, tilt or raise the internal combustion motor out of the water. The use of electric motors is not prohibited.

(c) Prior to installing the NICMZ markers under paragraph (8)(a), above, WCIND shall design and implement a program to monitor seagrasses within the NICMZ using scientifically accepted methods after consultation with  FWC and Department staff of the local district office and Lemon Bay Aquatic Preserve. The monitoring shall be designed to establish the baseline coverage of seagrasses by species, the locations and coverage of prop scarring and document any change in coverage over time. At a minimum, the first monitoring shall occur within 90 days after the boundaries of the NICMZ have been marked and every two years thereafter for a total of ten years. The monitoring plan shall include metrics that can be used to quantitatively establish the relative success or failure of seagrass restoration and protection following establishment of the NICMZ.

(9) A Letter of Consent is granted for WCIND to enter upon and use state-owned submerged lands to complete the permitted activities, subject to the provisions of subsection 18-21.004(7), F.A.C. Dredged material with economic value, such as beach quality sand, severed from state-owned submerged lands shall be used for public purposes to the maximum practicable extent.

Rulemaking Authority 373.043, 373.4131, 403.805(1), 403.814(1) FS. Law Implemented 253.002, 253.77, 258.42, 373.4131, 373.414, 403.061(34) FS. History-New ________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Frederick L. Aschauer, Jr., Director, Division of Water Resource Management

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Jonathan P. Steverson, Secretary

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: September 18, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: February 26, 2014