Definitions, General Program Information, Construction Loans for Rate-Based Community Water Systems, Funds Reserved for Specific Purposes, Project List Management
DEPARTMENT OF ENVIRONMENTAL PROTECTION
RULE NOS.:RULE TITLES:
62-552.200Definitions
62-552.300General Program Information
62-552.430Loan Applications and Agreements
62-552.500Funds Reserved for Specific Purposes.
62-552.680Environmental Review. Project List Management.
NOTICE OF CHANGE
Notice is hereby given that the following changes have been made to the proposed rule in accordance with Section 120.54(3)(d)1., F.S., published in Vol. 42, No. 200, October 13, 2016 issue of the Florida Administrative Register. The Loan Application document incorporated by reference was also changed to clarify the applicability of Federal requirements included in 40 CFR 35 Section 35.3575.
62-552.200 Definitions.
(1) through (11) No change.
(12) “Financially disadvantaged community” means a municipality, county or agency (such as a county-wide department) thereof, franchised area or other entity with a defined public water system service jurisdiction having a median household income of less than the statewide average. The median household income (MHI) data for loan recipients shall be updated on December 31st each year to adjust for economic changes in the state using the 5-year estimate established by the American Community Survey (ACS) (http://www.census.gov/programs-surveys/acs/data.html), computed as provided in the ACS publication, “American Community Survey Design and Methodology (January 2014)” (http://www.census.gov/programs-surveys/acs/methodology/design-and-methodology.html). The Department shall use the 5-year estimate from December 2016 for the 2017 MHI determinations and the data from the previous December of each year for subsequent determinations as reported in the most recent American Community Survey (ACS) 5-year estimate from the U.S. Census Bureau or from verifiable estimates.
(13) through (29) No change.
(30) “Service area” means all connections and proposed connections to be served by the project sponsor’s public water system. Population of the service area shall be calculated by multiplying the number of service connections by the number of persons per connection. Persons per connection shall be calculated by dividing the community population by the number of households. The community population and number of households will be determined using the ACS 5-year estimate calculated as provided in Subsection 62-552.200 (12), F.A.C. as provided by the most recent American Community Survey (ACS) 5-year estimate from the U.S. Census Bureau.
(31) through (33) No change.
(34) The following terms and phrases used throughout this Rule Chapter have the meaning given these words in sections 287.012, 403.8532, or 403.852, Florida Statutes: best value, Florida Water Pollution Control Financing Corporation (also referred to as “FWPCFC”), and local governmental agencies.
62-552.300 General Program Information.
(1) Steps involved in obtaining a loan.
(a) through (d) No change
(e) Priority System.
1. Base Priority Score.
a. through c. No change.
d. A project sponsor with a qualifying water conservation project is eligible to receive an additional 100 points added to their priority score if the sponsor provides a water conservation plan in accordance with EPA’s Water Conservation Plan Guidelines, document number EPA-832-D-98-001, August 6, 1998, hereby adopted and incorporated by reference. The sponsor must demonstrate that the proposed project meets the objective of the water conservation plan. This document is available from the Department’s Drinking Water State Revolving Fund Program, 3900 Commonwealth Blvd, Tallahassee, Florida 32399-3000, or electronic versions are available at https://www3.epa.gov/watersense/pubs/guide.html or http://www.flrules.org/Gateway/reference.asp?No=Ref-00###.
e. No change.
2. Affordability Score.
a. MHI Score. MHI score shall be derived based on the extent a community’s MHI falls below the statewide average. MHI data used to determine points shall be determined using the ACS 5-year estimate calculated as provided in Subsection 62-552.200 (12), F.A.C. come from the most recent American Community Survey (ACS) 5-year estimate from the U.S. Census Bureau or from verifiable estimates and shall represent all areas to be served by the project sponsor’s public water system.
(I) MHI score shall not exceed a maximum of 75 points, shall not be less than zero points, and shall be rounded to the nearest whole number.
(II) MHI score is calculated as follows:
MHI Score = 100 x (1.00 - MHI fraction), MHI fraction is equal to the MHI of the service area divided by the statewide MHI.
b. No change.
(f) No change.
(2) Steps involved in obtaining a loan with principal forgiveness.
(a) The project sponsor for a loan with principal forgiveness must qualify as a financially disadvantaged small community, except as stated in paragraphs 62-552.300(2)(f) and 62-552.300(2)(g) below. The project sponsor for a loan with principal forgiveness shall qualify as a financially disadvantaged small community, unless specifically exempted by these rules.
(b) through (f) No change.
(g) A project sponsor that does not otherwise qualify as a financially disadvantaged small community is eligible for a construction loan with principal forgiveness if connecting a financially disadvantaged community A sponsor, regardless of status as a financially disadvantaged small community, is eligible for a construction loan with principal forgiveness to connect a financially disadvantaged community that has less than 250 residential private wells or that has an existing public water system with less than 250 service connections. The sponsor that owns and operates a separate, non-interconnected, public water system that qualifies as a financially disadvantaged small community, regardless of the number of systems owned and operated by the sponsor, is eligible for a construction loan with principal forgiveness for that system. Verifiable documentation of the community’s median household income, number of service connections, and estimated persons per household is required to calculate the percentage of principal forgiveness in accordance with these rules, not to exceed 50% of the construction loan amount. This type of project would follow the same priority listing process as a financially disadvantaged small community in competing for principal forgiveness dollars.
(3) Allowable Project Costs
(a) Land purchased, including easements and right-of-ways for construction of drinking water infrastructure. Funding shall be limited to the fair market value of the acreage, in fee simple, of land necessary for and integral to locate the project facilities thereon including mandatory set-backs. Funding for loans with principal forgiveness shall be limited to the appraised market value of the acreage. The appraisal report must be less than 12 months old at the time the construction loan application is received. If additional land is acquired, the eligible amount shall be the acreage of land necessary for the project divided by the total area purchased times the purchase price;
(b) through (n) No change.
(4) through (8) No change.
(9) Exceptions to Program Requirements.
(a) The Department shall consider a request for an exception to the requirements of this chapter if the exception does not conflict with state or federal law or federal regulations.
(b) A request for exception must contain the following information:
1. The name of the project sponsor, project number, award date, application date, and the financial assistance amount involved;
2. The specific rule to which an exception is requested;
3. A complete description of what the exception would accomplish and justification for the exception;
4. A statement of whether the same or a similar exception previously has been sought; and, if so, an explanation of the reason for that request and the outcome;
5. A demonstration that compliance with the specified rules is unnecessary for abatement of pollution and protection of public health; and
6. A demonstration that the economic, social, and environmental costs of compliance exceed the economic, social, and environmental benefits of compliance.
62-552.430 Loan Applications and Agreements
(1) General.
(a) through (b) No change.
(c) If a project sponsor does not submit a complete loan application within 120 days, or a loan agreement is not executed within 210 days after a project is added to the fundable portion, the project shall be removed from the priority list at the next scheduled public meeting; unless the project sponsor can show good cause prior to that meeting documenting why the application was not submitted or why the agreement was not executed by the appropriate deadline. For the purpose of this paragraph, good cause shall mean unforeseen circumstances outside of the sponsor’s control or a showing that the sponsor is making a diligent effort to complete or execute the loan application or loan agreement. If a project sponsor does not submit a complete loan application within 120 days, or a loan agreement is not executed within 210 days after a project is added to the fundable portion, the project is subject to removal from the priority list at the next scheduled public meeting, unless mitigating circumstances are presented to the Department by the beginning of that meeting that document why the application was not submitted or why the agreement was not executed by the appropriate deadline.
(d) through (e) No change.
(2) through (10) No change.
62-552.500 Funds Reserved for Specific Purposes.
(1) Small Community Reserve.
(a) Fifteen percent of the funds allocated each year by the Department shall be reserved to fund projects that will serve small communities. Fifteen percent of the funds allocated each year by the Department less the amount of any bonds issued or to be issued by the Florida Water Pollution Control Financing Corporation shall be reserved to fund projects that will serve small communities.
(b) No change.
(2) through (3) No change.
62-552.680 Environmental Review. Project List Management.
(1) General.
(a) The Department shall perform an environmental review for each project to be funded. The environmental review shall evaluate the environmental significance of a proposed project and whether the planning of the project meets the requirements of this chapter. The results of the Department’s environmental review for each project shall be issued as an environmental information document which shall be valid for five (5) years from the date of issue, after such time, the document is no longer valid unless a Florida Reaffirmation Notice, pursuant to subsection 62-552.680(5), F.A.C. is written by the Department. The different environmental information documents are described in subsections (2) through (5) below. A notice of availability of an environmental information document shall be published in the Florida Administrative Register to announce the results of the Department’s environmental review. The notice of availability shall include instructions about the procedures for accessing the project information and the Department’s findings. The Department shall provide a thirty (30) day period commencing as of the date of the notice of availability for public comment about the environmental impacts of proposed projects. Written comments from the public shall be considered by the Department before approving a project for funding if postmarked or delivered within the thirty (30) day comment period to the Department.
(b) The project sponsor shall document cultural, historical, archaeological, and biological aspects of a project during the planning process. Conditions shall be placed on a financial assistance loan agreement to enhance the compatibility of the project with the existing environment when such conditions will satisfy environmentally based objections to the project.
(c) Review procedures, identical to those described in this subsection, shall be used when the Department amends an environmental information document to announce project changes that have potentially significant environmental impacts.
(2) Florida Categorical Exclusion Notice (FCEN). The Department shall issue a FCEN for certain projects that are not expected to generate controversy over potential environmental effects. A FCEN shall not be used when there are documented environmental objections to a project before the local governmental agency adopted the planning recommendations provided that such objections have a basis in statute, regulation, or ordinance.
(a) In issuing a FCEN, the Department shall:
1. Briefly describe the project, the justification for the categorical exclusion, and the proposed loan funding.
2. Conclude the environmental review only after the 30-day public comment period, under subsection (1) above, has expired and:
a. No information is received about adverse environmental impacts;
b. Information is received about adverse environmental impacts and the objections either are without a basis in statute, regulation, or ordinance or the objections are resolved; or
c. Information is received about adverse environmental impacts, the FCEN is rescinded, and an environmental review is undertaken according to subsection (3) or (4) below.
(b) Projects potentially eligible for categorical exclusion are:
1. Rehabilitation of existing facilities or replacement of existing structures, wells, waterlines, or equipment;
2. Facilities for the disinfection of public water supplies;
3. Facilities that will not result in more than a 50% increase of existing public water system capacity and there is no acquisition of land other than easements and rights-of-way where streets have been established, underground utilities installed, building sites excavated, or where such lands have otherwise been disturbed from a natural condition;
4. Back-up supply wells where, after disinfection, existing water quality meets drinking water standards and there is no acquisition of land; and
5. Facilities that will result solely in the provision of adequate public water system pressure.
(3) Florida Finding of No Significant Impact (FFONSI). The Department shall issue a FFONSI when a project sponsor proposes a project not categorically excluded from a detailed environmental review and not requing a Florida Environmental Impact Statement. In issuing a FFONSI, the Department shall:
(a) Record the basis for the decision to provide financial assistance for the project, addressing:
1. The environmental consequences of the project;
2. The purpose and the need for the project;
3. The alternatives, including no action, and the cost considerations for the project;
4. Any environmental enhancement measures to be implemented;
5. The public participation process;
6. The results, if available, of the State Clearinghouse Review; and
7. Compliance with relevant rules of the Department.
(b) Consider public comments about environmental impacts of a project if the comments are received within 30 days after the date of posting of the notice of availability.
(c) Conclude the environmental review for the project only after the 30-day comment period has expired and:
1. No information is received about previously unconsidered adverse environmental impacts; and
2. Information is received about previously unconsidered adverse environmental impacts and one of the following occurs:
a. The objections are either without a basis in statute, regulation, or ordinance or the objections are resolved;
b. A re-evaluation of the project is made as a result of the comments and the Department confirms the original decision or requires environmental enhancement measures before implementing the project; or
c. The FFONSI is rescinded.
(4) Florida Environmental Impact Statement (FEIS). A FEIS and a Florida Record of Decision (FROD), as required in 40 CFR Part 35 Subparts K & L, shall be used for a project for which there is an adverse direct or indirect impact on land use and population patterns, the quality of the environment, cultural or environmental resource areas, or the habitats of endangered or threatened species. A FEIS and FROD also shall be used when there is unresolved public controversy over the environmental impacts of a project provided that the objections to the project have a basis in statute, regulation, or ordinance. A FEIS shall be prepared by the Department or, at the direction of the Department and in accordance with the Consultants’ Competitive Negotiation Act, Section 287.055, F.S., by others with no conflicting interest in the outcome. In completing the environmental review, the Department shall:
(a) Issue a notice of intent to prepare a FEIS for the project;
(b) Develop a plan of study and convene a meeting of government, including EPA, and other interested parties to determine the scope of the FEIS;
(c) Identify and evaluate project alternatives;
(d) Provide for public participation and review by federal and state environmental regulatory agencies;
(e) Ensure that adverse impacts of the project are minimized or eliminated;
(f) Document the findings of the environmental review using both the FROD and FEIS;
(g) Announce the funding eligibilities using a FROD and consider public comments about environmental impacts if received during the thirty (30) day period beginning on the date of posting of the notice of availability in the Florida Administrative Register; and
(h) Conclude the environmental review only after a 30-day public comment period has expired without receipt of comments about adverse environmental impacts or if, after receipt of such comments, the Department takes action to:
1. Confirm the original decision;
2. Require additional analysis and environmental enhancement as a condition of confirmation of the original decision; or
3. Rescind the original decision.
(5) Florida Reaffirmation Notice (FRAN). A FRAN shall be used to establish the Department’s continuing intention to make funds available for unimplemented projects, the planning for which was previously documented as accepted by the Department in a FCEN, FFONSI, FROD, or analogous documents issued by EPA, or amendments to any of the foregoing that are no longer valid after five (5) years have elapsed since issuance. In issuing a FRAN, the Department shall:
(a) State the findings being reaffirmed.
(b) Consider public comments about changed conditions altering the environmental impacts since the previous FCEN, FFONSI, FROD, or analogous documents issued by EPA, or amendments to any of the foregoing. Comments shall be considered if received during the thirty (30) day period beginning on the date of posting of the notice of availability of the FRAN in the Florida Administrative Register.
(c) Conclude the environmental review only after the public comment period has expired and:
1. No information is received about changed conditions resulting in adverse environmental impacts; and
2. Information is received about changed conditions resulting in adverse environmental impacts and one of the following occurs:
a. The objections are resolved;
b. A re-evaluation of the project is made as a result of the comments and the Department confirms the original decision or requires environmental enhancement measures before implementing the project; or
c. The FRAN is rescinded.
(6) State Clearinghouse. Project planning documentation shall be submitted to the state clearinghouse for review in acordance with s. 403.061(42), F.S. All comments resulting from this review shall be addressed by the Department prior to its approval of the planning documentation.
(7) Project Revision Memoranda (PRM). For a project that requires modifications to the selected alternative that does not alter its environmental effects, a PRM shall be written by the Department to document the changes.
Rulemaking Authority 403.8532 FS. Law Implemented, 403.8532, 403.061(42), FS. History-New 4-7-98, Amended 8-10-98, Repealed.
