The purpose of this rulemaking is to delegate to District staff authorization to take agency action to approve certain Individual Environmental Resource and Water Use Permits and to revise the process for agency action to deny incomplete permit ...

WATER MANAGEMENT DISTRICTS
Southwest Florida Water Management District

RULE NO: RULE TITLE
40D-1.002: Delegation of Authority
40D-1.1020: Timeframe for Providing Requested Information
40D-1.600: Permit Applications - General and Noticed General Permits
40D-1.6051: Timeframe for Providing Requested Information for Permit Applications and Denial of Incomplete Applications
PURPOSE AND EFFECT: The purpose of this rulemaking is to delegate to District staff authorization to take agency action to approve certain Individual Environmental Resource and Water Use Permits and to revise the process for agency action to deny incomplete permit applications. Related rulemaking is also proposed for Chapters 40D-2, 40D-4 and 40D-40, F.A.C. The effect of this rulemaking will be to enable designated staff to take agency action on certain applications for Individual Water Use and Environmental Resource Permits unless the applicant, District Executive Director or a Governing Board member requests that the permit application be referred to the Governing Board for agency action. Amendments will also delegate to designated District staff authorization to issue notices of intent to deny permit applications that will become final agency action unless the applicant, District Executive Director or a Governing Board member requests that agency action be taken by the Governing Board.
SUMMARY: Individual Water Use Permits and Individual Environmental Resource Permits are issued for projects having greater potential for impacts to the water resources. The current process requires that all Individual permits be scheduled for agency action at a Governing Board meeting. This approval step adds time and expense for applicants as well as costs for the District. Based upon a recent study of permitting practices, the District’s Office of Inspector General has recommended that the Governing Board delegate to designated staff authority to take agency action on routine, noncontroversial Individual permit applications under certain circumstances and that staff be delegated authority to initiate agency action on permit denials. Accordingly, amendments are proposed to Chapters 40D-1, 40D-2, 40D-4, and 40D-40, F.A.C., to implement a delegation process for agency action on certain Individual permits and for permit denials. Rule 40D-1.002, F.A.C., is amended to delegate to the Executive Director, Deputy Executive Director for Resource Regulation and the Regulation Department Directors the authority to issue selected Individual Water Use and Environmental Resource Permits. Rule 40D-1.600, F.A.C. is amended to state that Individual Permits may be issued by the Governing Board or staff. For those permits issuable by staff, upon request of the applicant, Executive Director or a Governing Board, the application may be referred to the Governing Board for agency action. Former Rule 40D-1.1020, F.A.C., is moved and renumbered as Rule 40D-1.6051, F.A.C., and is further amended to add a provision that if an application remains incomplete for more than 365 days and no further time extension will be granted, the application can be denied. Proposed denials will become final 21 days after notice unless the application is amended or withdrawn, a petition for hearing is filed, or a request is made to refer the application to the Governing Board.
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: 120.54(5), 373.044, 373.103, 373.113, 373.118, 373.149, 373.171, 373.219, 373.4135, 373.4136, 373.414 FS.
LAW IMPLEMENTED: 120.54(5), 120.60, 253,002, 373.083, 373.084, 373.085, 373.103, 373.116, 373.118, 373.119, 373.149, 373.171, 373.219, 373.223, 373.224, 373.226, 373.229, 373.2295, 373.308, 373.309, 373.323, 373.413, 373.4136, 373.416, 373.418, 373.426, 373.427 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Martha A. Moore, Senior Attorney, Southwest Florida Water Management District, 2379 Broad Street, Brooksville, FL 34604-6899, [phone], ext. 4651

THE FULL TEXT OF THE PROPOSED RULE IS:

40D-1.002 Delegation of Authority.

(1) The Board of Trustees of the Internal Improvement Trust Fund, pursuant to Rule 18-21.0051, F.A.C., has delegated to the Governing Board the authority to review and take final agency action on certain applications to use sovereign submerged lands. Rule 18-21.0051, F.A.C., also provides that the Governing Board may delegate review and decision making authority to District staff. Therefore, the Governing Board further delegates this authority to the Executive Director, the Assistant Executive Director, the Deputy Executive Director for Resource Regulation, the Director of  Technical Services and the Regulation Department Directors, when an application to use sovereign submerged lands involves an activity which is concurrently reviewed with an Environmental Resource Permit that is issued by District staff pursuant to the general permit procedures of Chapters 40D-40 or 40D-400, F.A.C.

(2) through (3) No change.

(4) The Governing Board delegates to the Executive Director, the Deputy Executive Director for Resource Regulation, and the Regulation Department Directors the authority to issue Individual permits as provided in subsections 40D-2.041(2) and 40D-4.041(2), F.A.C., and the authority to deny an application for a permit issued pursuant to Part II or Part IV of Chapter 373, F.S., except in the following circumstances:

(a) The applicant, the Executive Director or a Governing Board member submits a timely written request to refer the application to the Governing Board for agency action and agency action will occur within the time limits set forth in Section 120.60, F.S., if applicable, unless waived in writing by the applicant; or

(b) Agency action on the permit application is required to be taken by the Governing Board pursuant to statute or District rule.

Specific Authority 373.044, 373.103, 373.113, 373.118, 373.219, 373.309 FS. Law Implemented 253.002, 373.083, 373.103, 373.118, 373.149, 373.219, 373.223, 373.224, 373.226, 373.308, 373.309, 373.427 FS. History–New 3-1-84, Amended 3-10-96, 7-22-99, 12-2-99, 9-26-02, 7-20-04, 10-19-05, 5-21-06, 7-13-06, 12-24-07, 5-12-08,_________.

 

40D-1.1020 Timeframe for Providing Requested Information.

Specific Authority 120.54(5), 373.044, 373.113, 373.118, 373.4135, 373.4136, 373.414 FS. Law Implemented 120.54(5), 120.60, 373.084, 373.085, 373.116, 373.118, 373.119, 373.171, 373.229, 373.2295, 373.308, 373.309, 373.323, 373.413, 373.4136, 373.414, 373.416, 373.418, 373.426 FS. History–New 7-2-98, Transferred to 40D-1.6051(1).

 

40D-1.600 Permit Applications – Individual, General and Noticed General Permits.

(1) Individual Permits are those permits not meeting the thresholds specified for General or Noticed General Permits or are defined in District rules as Individual Permits. Individual Permits are issued by the Governing Board or District staff as provided in subsections 40D-2.041(2) and 40D-4.041(2), F.A.C. For those Individual Permits that can be issued by staff, upon written request of the applicant, Executive Director or a Governing Board member, the application will be referred to the Governing Board for agency action at the next available Governing Board meeting, provided agency action will occur within the applicable time limits set forth in Section 120.60, F.S., unless waived in writing by the applicant.

(2)(1) General Permits issued pursuant to Sections 373.118 and 373.414, F.S., under Chapters 40D-2, 40D-4, and 40D-40, F.A.C., are issued by staff except when the application is concurrently reviewed with an application for a proprietary authorization that is deemed to be of heightened public concern pursuant to 18-21.0051(4), F.A.C., or denied in which case final action is taken by the Governing Board.

(3)(2) Noticed General Permits are issued or denied by staff.

(4) When an Environmental Resource Permit application is concurrently reviewed with an application for a proprietary authorization to use sovereign submerged lands that is deemed to be of heightened public concern pursuant to subsection 18-21.0051(4), F.A.C., agency action on the permit application shall be taken by the Governing Board.

Specific Authority 373.044, 373.113, 373.118, 373.149, 373.171, F.S. Law Implemented 373.118, F.S. History–New 10-1-84, Amended 12-22-94, 7-2-98, 9-26-02, 9-25-07,_________.

 

40D-1.6051 Timeframe for Providing Requested Information for Permit Applications and Denial of Incomplete Applications.

(1) Within 30 days after receipt of an application, the District shall notify the applicant if the application is incomplete and request the additional information required to make the application complete. If additional information is not supplied within 30 days after notice by the District, the application will be denied for lack of completeness. If the application is still incomplete after additional information is provided, the District shall so notify the applicant, who shall have an additional 30 days to render the application complete or be denied for lack of completeness. Upon request by the applicant, an extension of time may be granted by the District staff upon a showing by the applicant that a good faith effort is being made to provide the additional information and the additional time is required. The District may, within 30 days after receiving information from the applicant, request only clarifications of the information or request answers to new questions raised or directly related to the information previously furnished. Denial of an application for lack of completeness is without prejudice to the applicant’s right to file a new application on the same subject matter.

(2) If requested information is not submitted to the District within the time limits set forth in subsection (1) above, or if an application remains incomplete for more than 365 days and no further extension of time will be granted, District staff shall issue to the applicant a notice of proposed agency action to deny the permit application for lack of completeness. The proposed application denial shall become final 21 days after receipt of notice, as defined in subsection 40D-1.1010(1), F.A.C., or 14 days after receipt of notice for a consolidated application concurrently reviewed pursuant to Section 373.427, F.S., unless prior to that date: the application is amended as provided in subsection 40D-1.603(7), F.A.C.; the application is withdrawn; a petition for administrative hearing is filed; or a written request to refer the application to the Governing Board for agency action is submitted by the applicant, Executive Director or a Governing Board member.

Specific Authority 120.54(5), 373.044, 373.113, 373.118, 373.4135, 373.4136, 373.414 FS. Law Implemented 120.54(5), 120.60, 373.083, 373.084, 373.085, 373.116, 373.118, 373.119, 373.171, 373.229, 373.2295, 373.308, 373.309, 373.323, 373.413, 373.4136, 373.414, 373.416, 373.418, 373.426, 373.427 FS. History–New 7-2-98, Formerly 40D-1.1020, Amended________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Martha A. Moore, Senior Attorney, Southwest Florida Water Management District, 2379 Broad Street, Brooksville, FL 34604-6899, [phone], ext. 4651
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Southwest Florida Water Management District Governing Board
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: January 26, 2009
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: February 6, 2009