The Suwannee River Water Management District gives notice that it is initiating rulemaking to amend rules 40B-4.1020, 40B-4.1040, 40B-4.1100, 40B-4.1110, and 40B-4.3000 for the purpose of adding clarifying language and making ....

 

WATER MANAGEMENT DISTRICTS

Suwannee River Water Management District

RULE NOS.:RULE TITLES:

40B-4.1020Definitions

40B-4.1040Permits Required

40B-4.1100Duration of Permits

40B-4.1110Modification of Permits

40B-4.3000Adopted Works of the District

PURPOSE AND EFFECT: The Suwannee River Water Management District gives notice that it is initiating rulemaking to amend rules 40B-4.1020, 40B-4.1040, 40B-4.1100, 40B-4.1110, and 40B-4.3000, F.A.C. for the purpose of adding clarifying language and making the rules consistent with statewide Environmental Resource Permitting rules. The effect will be streamlined rules that are more understandable by the regulated public.

SUMMARY: Works of the District permitting

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: The District has completed for the Governor’s Office of Fiscal Accountability and Regulatory Reform (OFARR) the “Is a SERC Required?” form and prepared a summary of the proposed rule, which are both available upon request. Based on the completed “Is a SERC Required?” form and summary and the analysis performed by the District, the proposed rule amendment is not expected to require legislative ratification pursuant to subsection 120.541(3), F.S.

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, 373.171 FS.

LAW IMPLEMENTED: 120.57, 120.60, 373.019, 373.084, 373.085, 373.086, 373.403, 373.413, 373.416, 373.426 FS.

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

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: SRWMD at [phone] or [phone] (FL only). If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Sara Zybell, Suwannee River Water Management District, 9225 CR 49, Live Oak, Florida 32060, [phone] or 1(800)226-1066 (FL only)

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

40B-4.1020 Definitions.

(1) “75-Foot Setback” means the front 75 feet of an area immediately adjacent to and including the recognized top of bank of the river.

(2)(1) “100-Year Flood/One Percent Annual Chance of Flood” means that flood which has a one-percent probability of recurrence in any one year. The 100-year flood/one percent annual chance of flood elevation is the highest elevation of flood waters during the 100-year flood/one percent annual chance of flood and is calculated or estimated from the best available information. The 100-year flood/one percent annual chance of flood elevation shall not include coastal storm surge elevations unless such elevations have been developed in an approved Federal Emergency Management Agency Flood Insurance Study and such approved storm surge elevations have been accepted for implementation by the appropriate unit of local or state government.

(3) “Commercial” means any place of commerce, business, structure, or activity that generates revenue or income by any means or serves as an accessory activity or facility to any revenue-generating or income-producing operation; and not as a single-family residence.

(4)(2) “Clearing” means removal of either vegetation or residential and non-residential structures for any purpose other than perpetual agricultural or silvicultural activities. Clearing includes, but is not limited to, cutting brush, removal of trees, burning, root-raking, de-stumping, land leveling, earthwork, chopping, grinding, and any other activity intended to convert property from its current condition to a developable condition.

(5)(3) “Conversion” means a man-made change to a wetland as defined in Section 373.019(22), F.S., or surface water by draining, filling, or other means which results in the permanent change of the wetland or surface water to an upland.

(6) “Deck” means a flat surface on land capable of supporting weight.

(7)(4) “Development” means any man-made change to improved or unimproved real estate within a Work of the Districtwork of the district including but not limited to, construction of surfacewater management systems, works, appurtenant works, residential and non-residential structures, redistribution of onsite material, mining, dredging, filling, grading, paving, excavation, drilling operations, development of sewage disposal systems, or the alteration of the topography of a tract of land for purposes consistent with the occupation of agriculture, silviculture, floriculture, or horticulture including agricultural closed systems.

(5) “Direct Hydrologic Connection” means a natural connection which occurs on an average of 30 or more consecutive days per year. In the absence of reliable hydrologic records, a continuum of naturally occurring wetlands may be used to establish a direct hydrologic connection.

(8) “Dock” means a fixed or floating structure, including access walkways, terminal platforms, catwalks, mooring pilings, lifts, davits and other associated water-dependent structures, used for mooring and accessing vessels.

(9)(6) “Engineer” means a professional engineer registered in Florida, or other person exempted pursuant to the provisions of Chapter 471, F.S., who is competent in the fields of hydrology and stormwater control.

(10)(7) “Floodway” or “Regulatory Floodway” means the channel of a river, stream, or other watercourse and adjacent land areas that must be reserved in order to discharge the 100-year flood/one percent annual change of flood without cumulatively increasing the 100-year flood/one percent annual chance of flood elevation more than a designated height. Unless otherwise noted, all regulatory floodways in the Suwannee River Water Management District provide for no more than one-foot rise in water surface elevations.

(11)(8) “Governing Board” means the governing board of a water management district. Unless used in a different context, “governing board” or “board” means the governing board of the Suwannee River Water Management District.

(9) “Minimum Rate of Flow” means the limit at which further withdrawals from a stream or other watercourse would be significantly harmful to water resources or ecology of the area.

(12) “Landing” means any platform waterward from the top of bank that is accessed by stairs and exited by stairs.

(13)(10) “New Development” means any development as defined herein which:

(a) Was not complete on the effective date of this chapter; or

(b) Involves substantial improvement to any structure in a work of the district; or

(c) Involves alteration of any work or appurtenant works or surfacewater management system in a Work of the Districtwork of the district.

(14) “Non-residential Structure” means any structure or building, including but not limited to, any storage facility, pole barn, shed, barn, or any structure used or intended to be used as storage or for parking of vehicles.

(15)(11) “Obstruction” means any redistributed onsite material, fill, residential or non-residential structure, work, appurtenant work, or surfacewater management system placed in waters, a floodway, or a Work of the District work of the district which may impede the flow of water or otherwise result in increased water surface elevations.

(16) “Obstruction Shadow” means the bounds created by the largest area of cross-sectional obstruction perpendicular to the flow of any of the regulatory rivers in the floodway.

(17) “Pedestrian Access” means a narrow strip of land that provides access to the river by foot.

(18) “Pier” means a fixed or floating structure extending from land out over water, that is used primarily for fishing or swimming and not designed or used for mooring or accessing vessels.

(19)(12) “Project Area” means the total land area owned or controlled by the applicant which will be serviced or affected by a surfacewater management system or work.

(20)(13) “Registered Professional” means a professional registered or licensed by and in the State of Florida and practicing under Chapter 471, 472, 481, or 492, F.S.

(21) “Residential Structure” means any structure, or building, used, or intended to be used for human occupancy as a single-family residence, whether occupied or not.

(14) “Structure” means anything constructed, installed, or portable, the use of which requires a location on a parcel of land. It includes a movable structure while it is located on the land which can be used for housing, business, commercial, agricultural, or office purposes either temporarily or permanently.

(22)(15) “Substantial Improvement” means any repair, reconstruction, rehabilitation or improvement of a structure, the cost of which exceeds, over a five year period a cumulative total of 50 percent of the market value of the structure either:that exceeds 50% of the portion of the structure obstructing the floodway.

(a) Before the improvement or repair is started; or

(b) If the structure has been damaged and is being restored, before the damage occurred.

For the purposes of this definition, “substantial improvement” is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of a building commences whether or not that alteration affects the external dimensions of the building. The term does not, however, include either any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications which are necessary to assure safe conditions or any alteration of a structure listed on the National Register of Historic Places.

(23) “State-owned submerged lands” or “sovereignty submerged lands” means those lands including but not limited to, tidal lands, islands, sand bars, shallow banks, and lands waterward of the ordinary or mean high water line, beneath navigable fresh water or beneath tidally-influenced waters, to which the State of Florida acquired title on March 3, 1845, by virtue of statehood, and which have not been heretofore conveyed or alienated; and shall include all submerged lands title to which is held by the Board.

(24)(16) “Surveyor” or “Professional Land Surveyor” means a person who is registered to engage in the practice of land surveying under Sections 472.001 through 472.039, F.S.

(25) “Temporary Structure” means any road-ready structure, such as a camper or RV, that is properly licensed and registered with any state department of motor vehicles.

(26) “Top of Bank” means that vertical point of a river bank where there is an abrupt change in slope observed when travelling waterward.

(27)(17) “Water Management District” means any flood control, resource management, or water management district operating under the authority of Chapter 373, F.S. Unless otherwise stated, water management district or Districtdistrict shall refer to the Suwannee River Water Management District.

(28)(18) “Work” or “Works” means all artificial structures, including, but not limited to, ditches, canals, conduits, channels, culverts, pipes, and other construction that connects to, draws water from, drains water into, or is placed in or across the waters in the state and includes all types of dredging and filling to create, remove, or located in, on, or over wetlands or other surface waters.

(29)(19) “Work of the District” means those projects and works including, but not limited to, residential and non-residential structures, impoundments, wells, streams, and other watercourses, together with the appurtenant facilities and accompanying lands, which have been officially adopted by the governing board as Works of the Districtworks of the district. Works of the Districtdistrict officially adopted by the board are adopted by rule in Rule 40B-4.3000, F.A.C., of this chapter.

Rulemaking Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.019, 373.403 FS. History–New 9-25-85, Amended 12-22-92, 10-3-95, 5-13-07, 2-28-12, 10-14-13,[DATE].

 

40B-4.1040 Permits Required.

(1) Permits are required as follows:

(a) Works of the District district permit prior to initiating any project which involves draining, developing, construction of roads or bridges, commercial or industrial developments, and agricultural or forestry activities, including dredging of filling, or the construction, alteration, maintenance operation, or abandonment of any dams, impoundment reservior, appurtenant works, works or surfacewater system.

(b) When the need to obtain a Works of the District works of the district permit is in conjunction with the requirements for obtaining an environmental resource permit or a state-owned submerged lands authorization, application shall be made and shall be considered by the District district as part of the request for an environmental resource permit application. In such cases the environmental resource permit shall include the requirements of this chapter and the state-owned submerged lands authorization. In instances when requirements of this chapter or the state-owned submerged lands authorization conflict with requirements to obtain an environmental resource permit, the more stringent requirement shall be followed. Otherwise, a separate Works of the District works of the district permit must be obtained.

(c) When the need to obtain a Works of the District permit does not require an environmental resourse permit, the state-owned submerged lands authorization and the environmental resource permit exemption shall be obtained concurrently with the Works of the District permit.  Where requirements of this chapter and the appropriate state-owned submerged lands authorization conflict,  the more stringent requirement shall be followed.

(2) Works of the District permits may be issued in one of five forms as follows:

(a) through (d) no change,

(e) Abandonment permits are issued for projects which propose to remove works or development in a Work of the District work of the district.

(3) Specific procedures, noticing or application requirements, and conditions for issuance of Works of the District works of the district permits are detailed in Rule 40B-1.703, F.A.C., and Part III of this chapter including any materials adopted by reference thereto.

Rulemaking Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.084, 373.085, 373.086, 373.413, 373.416, 373.426 FS. History–New 9-25-85, Amended 12-22-92, 10-3-95, 10-18-04, 10-14-13,[DATE].

 

40B-4.1100 Duration of Permits.

(1) The standard duration of permits issued pursuant to this chapter shall be as follows.

(a) Five Three years duration for noticed general, general, and individual permits authorizing the construction or alteration of a work or development in a Works of the Distruct works of the district. When a permit is issued for construction or alteration and the subsequent operation and maintenance, the portion of the permit authorizing construction or alteration shall be limited to five three years from the date of issuance. The portion of the permit for the subsequent operation and maintenance shall be perpetual.

(b) Three years duration for general permits authorizing the construction or alteration of a work or development in a works of the district. When a permit is issued for construction or alteration and the subsequent operation and maintenance, the portion of the permit authorizing construction or alteration shall be limited to three years from the date of issuance. The portion of the permit for the subsequent operation and maintenance shall be perpetual.

(c) Five years’ duration for individual permits authorizing the construction or alteration of a work or development in a works of the district. When a permit is issued for construction or alteration and the subsequent operation and maintenance, then the portion of the permit authorizing construction or alteration shall be limited to five years from the date of issuance. The portion of the permit for the subsequent operation and maintenance shall be perpetual.

(b)(d) Five years’ duration for conceptual permits unless, within that period, application for a Works of the District works of the district permit for any part of the project is filed. If the aforementioned permit application is filed, the conceptual permit is valid for the duration of the project or for twenty (20) year from issuance, whichever is less.

(c)(e) Five years duration for abandonment permits to remove a work or development in a Work of the District work of the district.

(2) No change.

(3) Permits shall not be extended.

Rulemaking Authority 373.044, 373.113 FS. Law Implemented 373.084, 373.085, 373.413, 373.416, 373.426 FS. History–New 9-25-85, Amended 12-22-92, 9-13-04, 10-14-13, [DATE].

 

40B-4.1110 Modification of Permits.

(1) No change.

(2) The District district has the authority to modify a permit issued pursuant to this chapter at any time if it determines that the work or development in a Work of the District work of the district is in violation of any Districtdistrict rule, order or a condition of the permit and has or may become a danger to public health or safety. Before any such modification, the District district shall give affected persons notice of the proposed modification with the reasons for such modification and reference to applicable District district rule, order, or permit conditions. The notice shall state that affected persons may request an administrative hearing by filing a petition for such hearing with the District district. In no event shall the time for filing said petitions be more than 14 days from the date the notice was sent or published, and no such modification shall be made without a hearing if requested.

(3) When the executive director or their designee determines that the danger to the public is imminent or that violations to these rules will result in adverse impacts to adjacent landowners, he shall order a temporary suspension of construction, alteration, repair, or operation of the work or development in a Work of the District work of the district; or he shall specify temporary conditions for continued operation, alteration, repair, or development until a hearing is complete or the District district otherwise issues a final order; or the executive director may take appropriate action pursuant to Rule 40B-4.1170, F.A.C.

(4) Permit modifications shall meet the criteria of this Chapter and shall be classified as major modifications unless they meet the criteria in (5) or (6) below. Requests to modify permits for construction or operation may be made by application or by letter. Applications to modify permits shall be made by permittees in the same manner as the original permit. Letter requests to modify permits shall be used if the proposed modification does not:

(a) Request a substantial change in the permit authorization; or

(b) Increase calculated 100 year flood/one percent chance elevations.

(5) A minor modification to a Works of the District permit shall be granted provided that the modification is for the extension of a permit duration with no proposed changes to the previously permitted activity.

(6) A minor modification to a Works of the District permit shall be granted provided that the proposed modification does not exceed Noticed General permit criteria, unless:

(a) the proposed modification in addition to the previously permitted noticed general or authorized exempt activity pursuant to rule 40B-4.1070, meets either general or individual Works of the District permit criteria;

(b) the proposed work is outside of the 50-feet obstruction shadow of an authorized structure;

(c) all application documents required in 40B-4.3020, F.A.C., have not been submitted; or

(d) all previously required limiting permit conditions have not been met.

Rulemaking Authority 373.044, 373.113, 373.171 FS. Law Implemented 120.57, 120.60, 373.084, 373.085, 373.429, 373.439 FS. History–New 9-25-85, Amended 12-22-92, 10-14-13, [DATE].

 

40B-4.3000 Adopted Works of the District.

(1) The governing board is authorized to adopt and prescribe the manner in which persons may connect with or make use of Works of the District works of the district pursuant to Section 373.085, F.S. Further, Section 373.019(28), 373.019(15), F.S., provides that Works of the District works of the district may include streams and accompanying lands as adopted by the governing board. In order to implement the non-structural flood control policy of the Districtdistrict, the governing board finds it is necessary to prevent any obstruction of the free flow of water of rivers and streams within the District district. Therefore, the governing board does hereby adopt the following rivers and their accompanying floodways as Works of the District works of the district:

(a)(1) The Alapaha River and its floodway in Hamilton County, Florida;

(b)(2) The Aucilla River and its floodway in Jefferson, Madison, and Taylor counties, Florida;

(c)(3) The Santa Fe River and its floodway in Alachua, Bradford, Columbia, Gilchrist, Suwannee, and Union counties, Florida;

(d)(4) The Suwannee River and its floodway in Columbia, Dixie, Gilchrist, Hamilton, Lafayette, Levy, Madison, and Suwannee counties, Florida; and

(e)(5) The Withlacoochee River and its floodway in Madison and Hamilton counties, Florida.

(2) Base flood elevations and floodways are established using the effective Federal Emergency Management Agency digital flood insurance rate maps and flood insurance studies.

Rulemaking Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.019, 373.084, 373.085, 373.086 FS. History–New 9-25-85, Amended 9-13-04, _______.

NAME OF PERSON ORIGINATING PROPOSED RULE: Leroy Marshall, P.E.

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Suwannee River Water Management District Governing Board

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 27, 2020

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 25, 2020