The purpose of this rulemaking is to incorporate by reference a revised Environmental Resource Permit Information Manual, Part B, Basis of Review (BOR). The effect of this rule is to amend Section 2.0 of the BOR to clarify that entities with the ...

WATER MANAGEMENT DISTRICTS
Southwest Florida Water Management District

RULE NO: RULE TITLE
40D-4.091: Publications and Agreements Incorporated by Reference
PURPOSE AND EFFECT: The purpose of this rulemaking is to incorporate by reference a revised Environmental Resource Permit Information Manual, Part B, Basis of Review (BOR). The effect of this rule is to amend Section 2.0 of the BOR to clarify that entities with the power of eminent domain can demonstrate ownership and control sufficient to undertake the permitted activities.
SUMMARY: This rule amendment is proposed to incorporate by reference a revision to Section 2.0 of the BOR. Paragraph 40D-4.301(1)(j), F.A.C., requires that an applicant for an Environmental Resource Permit provide reasonable assurance that the permitted activities will be conducted by an entity with the financial, legal and administrative capability of ensuring that the activities will be undertaken in accordance with the terms and conditions of the permit. Section 2.0 of the BOR establishes how an applicant may demonstrate compliance with this requirement. Section 2.0 of the BOR does not currently include the power of eminent domain in the discrete list of methods of demonstrating ownership and control sufficient to undertake the permitted activities. In order to clarify this oversight, the District proposes to amend Section 2.0 of the BOR to provide that compliance with this requirement may be demonstrated by an entity with the power of eminent domain. An additional revision to Section 2.0 of the BOR is proposed by the District to require, in those instances where control is demonstrated by an entity with the power of eminent domain, a permit condition prohibiting construction until ownership or legal control is transferred to the permittee. The proposed revision to Section 2.0 of the BOR necessitates the amendment to Rule 40D-4.091, F.A.C., to incorporate by reference the revised BOR.
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, 373.046, 373.113, 373.171, 373.414 FS.
LAW IMPLEMENTED: 373.0361, 373.114, 373.171, 373.403, 373.413, 373.4135, 373.4136, 373.414, 373.4144, 373.416, 373.429, 373.441 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: Adrienne E. Vining, Staff Attorney, Office of General Counsel, 2379 Broad Street, Brooksville, FL 34604-6899, [phone], extension 4660

THE FULL TEXT OF THE PROPOSED RULE IS:

40D-4.091 Publications and Agreements Incorporated by Reference.

The following documents are hereby incorporated into this chapter and Chapters 40D-40 and 40D-400, F.A.C.:

(1) Environmental Resource Permitting Information Manual Part B, Basis of Review, Environmental Resource Permit Applications within the Southwest Florida Water Management District, ________, 2009 June 22, 2008. This document is available from the District upon request.

(2) through (5) No change.

Specific Authority 373.044, 373.046, 373.113, 373.171, 373.414 FS. Law Implemented 373.0361, 373.114, 373.171, 373.403, 373.413, 373.4135, 373.4136, 373.414, 373.4144, 373.416, 373.429, 373.441 FS. History–New 4-2-87, Amended 3-1-88, 9-11-88, 10-1-88, 4-1-91, 11-16-92, 1-30-94, 10-3-95, 12-26-95, 5-26-96, 7-23-96, 4-17-97, 4-12-98, 7-2-98, 12-3-98, 7-28-99, 8-3-00, 9-20-00, 6-12-01, 10-11-01, 2-27-02, 7-29-02, 3-26-03, 7-23-03, 8-3-03, 3-11-04, 6-7-04, 2-1-05, 6-30-05, 10-19-05, 2-8-06, 5-2-06, 7-1-07, 9-25-07(1), 9-25-07(4), 11-26-07, 5-12-08, 5-20-08, 6-22-08, ________.

 

ENVIRONMENTAL RESOURCE PERMIT INFORMATION MANUAL PART B

BASIS OF REVIEW

CHAPTER 2 – ADMINISTRATIVE CRITERIA

2.0 Ownership and Control – In accordance with the requirement of paragraph 40D-4.301(1)(j), F.A.C., an applicant must demonstrate reasonable assurance that permitted activities will be conducted by an entity with financial, legal and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued. Compliance with this requirement may be demonstrated through a deed, a long-term lease demonstrating control of the project area adequate to comply with all permit conditions, a purchase and sale agreement, or similar document. Compliance with this requirement may also be demonstrated by an entity with the power of eminent domain. Where control is demonstrated by a long-term lease, the permit will be conditioned to address transfer of control or proper abandonment of the permitted system at the end of the lease. Where control is demonstrated by a purchase and sale agreement, the permit will be conditioned to terminate if the transfer of ownership does not occur, and to prohibit construction until ownership is transferred to the permittee. Where control is demonstrated by an entity with the power of eminent domain, the permit will be conditioned to prohibit construction until ownership or legal control is transferred to the permittee.

NAME OF PERSON ORIGINATING PROPOSED RULE: Adrienne E. Vining, Staff Attorney, Office of General Counsel, 2379 Broad Street, Brooksville, FL 34604-6899, [phone], extension 4660
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: September 19, 2008