The purpose and effect of this rulemaking is to amend rules of the South Florida Water Management District (“District”) consistent with Section 373.4131, F.S. (2012),which requires the Florida Department of Environmental Protection (“DEP”) in ...

WATER MANAGEMENT DISTRICTS
South Florida Water Management District

RULE NOS.:RULE TITLES:
40E-41.011Policy and Purpose
40E-41.043Application of Part I
40E-41.053Exemptions
40E-41.063Conditions for Issuance of Permits in the Western Canal 9 Basin
40E-41.143Application of Part II
40E-41.160Content of Application
40E-41.243Application of Part III
40E-41.260Content of Application
40E-41.263Conditions for Issuance of Permits in the C-51 Basin
40E-41.333Implementation
40E-41.343Application of Part IV
40E-41.363Conditions for Issuance of Permits in the Water Preserve Area, Water Preserve Area Basin, or Adjacent to the Protective Levees
PURPOSE AND EFFECT: The South Florida Water Management District (“District”) proposes to amend its rules to be consistent with Section 373.4131, F.S. (2012),which requires the Florida Department of Environmental Protection (“DEP”), in coordination with the five water management districts (“WMDs”), to develop environmental resource permitting (“ERP”) rules, which will be applicable statewide. This section provides that the rules shall account for special basin consideration of individual WMDs.  These rules rely primarily upon existing rules of the DEP and WMDs, but were revised where necessary to achieve a more consistent, effective and streamlined approach in the state’s ERP program. To implement Section 373.4131, F.S., DEP has published a Notice of Rule Development in the Florida Administrative Register and has posted preliminary draft rule text on its website at http://www.dep.state.fl.us/water/ wetlands/swerp/index.htm. DEP's proposed rulemaking for Chapter 62-330, F.A.C., will necessitate changes to the District's Chapter 40E-41, F.A.C.
SUMMARY: The proposed rule amendments insert cross references to Chapter 62-330, F.A.C. and the “Environmental Resource Permit Applicant’s Handbook, Volume II For Use Within the Geographic Limits of the South Florida Water Management District,” deletes cross references to Title 40E rules that are being repealed, and deletes provisions on ratios made obsolete by the Uniform Mitigation Assessment rules in Chapter 62-345, F.A.C., in accordance with Section 373.414(18), F.S.
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 proposed rules will have no adverse impact on small business as the amendments merely eliminate obsolete provisions and update cross references.
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 form entitled “Is a SERC Required?” and prepared a summary of the proposed rule amendments, which are both available upon request. Based on the completed form entitled “Is a SERC Required?” and summary and the analysis performed by District staff in preparing and completing those documents, the proposed rule amendments are 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, 373.4131 FS.
LAW IMPLEMENTED: 373.085, 373.086, 373.413, 373.4131, 373.416, 373.426 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: May 9, 2013, 9:00 a.m.
PLACE: South Florida Water Management District Headquarters, B-1 Auditorium, 3301 Gun Club Road, West Palm Beach, FL 33406
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: South Florida Water Management District Clerk's Office, [phone], ext. 2087, or [phone]. 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: Anita R. Bain, Environmental Resource Permitting Bureau Chief, South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, FL 33406, 1(800)432-2045, ext. 6866 or [phone], [e-mail]. For procedural questions, contact Jan Sluth, Paralegal, South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, FL 33406, 1(800)432-2045, ext. 6299, or [phone], [e-mail]. Information regarding this rulemaking process can be accessed at SFWMD’s website at http://www.sfwmd.gov/rules.

THE FULL TEXT OF THE PROPOSED RULE IS:

40E-41.011 Policy and Purpose.

The rules in this part establish supplemental Environmental Resource Permit criteria for specified basins which insure that development within named basins incorporates the appropriate environmental, water quantity and water quality control measures necessary to protect the integrity of the public investments in the basin and minimize adverse impacts to the water resources of the District. Criteria delineated in this chapter are in addition to criteria specified in Chapters 40E-4 or 62-330, 40E-40 or 40E-400, F.A.C. The criteria, exemptions and additional requirements specified in this part are not intended to supersede or rescind the terms and conditions of any valid Environmental Resource Conceptual Approval, Construction or Operation Permit or Surface Water Management Conceptual Approval, Construction or Operation Permit, or certification order issued pursuant to Sections 403.501-.518 and 403.52-.5365, F.S., prior to the effective date of this part. In addition, the rules establish additional criteria for the named basins which insure that the use of the District’s works or land is consistent with the policies of the District.

Rulemaking Authority 373.044, 373.113, 373.4131 FS. Law Implemented 373.413, 373.4131, 373.416 FS. History–New 9-3-81, Formerly 16K-34.01, Amended 4-11-85, 4-20-94, 10-21-01,_________.

This rule will become effective on July 1, 2013, or upon the date that amendments to Chapter 62-330, F.A.C., proposed by the Department of Environmental Protection to implement the statutory mandate in Section 373.4131, F.S. (2012), take effect, whichever is later.

40E-41.043 Application of Part I.

All projects located within the Western Canal 9 Basin requiring permits pursuant to Chapter 62-330 Rule 40E-4.041, F.A.C., shall be constructed, altered, operated, maintained and abandoned in accordance with the criteria specified in Rules 62-330.301 40E-4.301, 62-330.302 40E-40.302 and 40E-41.063, F.A.C., unless specifically exempted in Rule 62-330.051 40E-4.051 or 40E-41.053, F.A.C. The most restrictive criteria will be applicable unless the applicant can demonstrate to the District’s satisfaction through accepted methodology that the purpose and intent of this part will be fulfilled using alternate criteria.

Rulemaking Authority 373.044, 373.113, 373.4131 FS. Law Implemented 373.413, 373.4131, 373.416, 373.426 FS. History–New 9-3-81, Formerly 16K-34.04, Amended 4-20-94,_________.

This rule will become effective on July 1, 2013, or upon the date that amendments to Chapter 62-330, F.A.C., proposed by the Department of Environmental Protection to implement the statutory mandate in section 373.4131, F.S. (2012), take effect, whichever is later.

40E-41.053 Exemptions.

Projects which have received final approval of construction plans, or equivalent approval, from local government prior to the effective date of this part are hereby exempt from the fill encroachment criteria specified in subsection 40E-41.063(4), F.A.C. All other criteria specified in Rules 62-330.301 40E-4.301, 62-330.302 40E-40.302 and 40E-41.063, F.A.C., must be strictly met.

Rulemaking Authority 373.044, 373.113, 373.4131  FS. Law Implemented 373.413, 373.4131, 373.416 FS. History–New 9-3-81, Formerly 16K-34.05, Amended 4-20-94,_________.

This rule will become effective on July 1, 2013, or upon the date that amendments to Chapter 62-330, F.A.C., proposed by the Department of Environmental Protection to implement the statutory mandate in Section 373.4131, F.S. (2012), take effect, whichever is later.

40E-41.063 Conditions for Issuance of Permits in the Western Canal 9 Basin.

(1) No change.

(2) For systems designed to be pumped from fully diked areas, discharge shall be limited to three-fourths of an inch per twenty-four hours, or the criteria in Rules 62-330.301 40E-4.301 and 62-330.302 40E-40.302, F.A.C., whichever is more restrictive. In addition, no pumping shall be permitted when Canal 9 stages at pump tailwater exceed the 25-year peak elevation of 6.8 feet mean sea level.

(3) through (4) No change.

Rulemaking Authority 373.044, 373.113, 373.4131  FS. Law Implemented 373.413, 373.4131, 373.416 FS. History–New 9-3-81, Formerly 16K-34.06, Amended 4-20-94,_________.

This rule will become effective on July 1, 2013, or upon the date that amendments to Chapter 62-330, F.A.C., proposed by the Department of Environmental Protection to implement the statutory mandate in Section 373.4131, F.S. (2012), take effect, whichever is later.

40E-41.143 Application of Part II.

(1) All projects located within the Kissimmee River Basin requiring permits pursuant to Chapter 62-330 Rule 40E-4.041, F.A.C., shall be constructed, altered, operated, maintained and abandoned in accordance with the criteria specified in Rules 62-330.301 40E-4.301, 62-330.302 40E-40.302 and 40E-41.163, F.A.C., unless specifically exempted by Section 373.406, F.S..

(2) The criteria set forth in Rule 40E-41.163, F.A.C., shall be considered more restrictive than that set forth in Rule 62-330.301 40E-4.301 and 62-330.302 40E-40.302, F.A.C. The most restrictive criteria will be applicable unless the applicant can demonstrate through accepted scientific and technical methodology that the purpose and intent of this part will be fulfilled by the use of alternate criteria.

(3) through (4) No change.

Rulemaking Authority 373.044, 373.113, 373.4131 FS. Law Implemented 373.085, 373.086, 373.413, 373.4131, 373.416 FS. History–New 5-1-85, Amended 4-20-94,_________.

This rule will become effective on July 1, 2013, or upon the date that amendments to Chapter 62-330, F.A.C., proposed by the Department of Environmental Protection to implement the statutory mandate in Section 373.4131, F.S. (2012), take effect, whichever is later.

40E-41.160 Content of Application.

All projects located within the Kissimmee River Basin requiring permits pursuant to Chapter 62-330 Rule 40E-4.041, F.A.C., shall submit the information specified by Rule 62-330.060 40E-4.101 or 40E-40.112, F.A.C., as appropriate, and the following information:

(1) through (2) No change.

Rulemaking Authority 373.044, 373.113, 373.4131 FS. Law Implemented 373.413, 373.4131, 373.416 FS. History–New 5-1-85, Amended 4-20-94,_________.

This rule will become effective on July 1, 2013, or upon the date that amendments to Chapter 62-330, F.A.C., proposed by the Department of Environmental Protection to implement the statutory mandate in Section 373.4131, F.S. (2012), take effect, whichever is later.

40E-41.243 Application of Part III.

(1) All projects located within the C-51 Basin which propose to discharge directly or indirectly into C-51 Canal or which are connected directly or indirectly in the C-51 Basin and which require permits pursuant to Rule 62-330.020 40E-4.041, F.A.C., or this part shall be constructed, altered, operated, maintained and abandoned in accordance with the criteria specified in Rules 62-330.301 40E-4.301, 62-330.302 40E-4.302, F.A.C., and 40E-41.263, F.A.C., unless specifically exempted by Rule 40E-4.051, F.A.C.

(2) through (4) No change.

Rulemaking Authority 373.044, 373.113, 373.4131 FS. Law Implemented 373.085, 373.086, 373.413, 373.4131, 373.416 FS. History–New 5-15-87, Amended 4-20-94, 12-1-11,_________.

This rule will become effective on July 1, 2013, or upon the date that amendments to Chapter 62-330, F.A.C., proposed by the Department of Environmental Protection to implement the statutory mandate in Section 373.4131, F.S. (2012), take effect, whichever is later.

40E-41.260 Content of Application.

(1) No change.

(2) In addition all projects in the C-51 Basin which require permits pursuant to Chapter 62-330 Rule 40E-4.041, F.A.C., shall submit the information specified by Rule 62-330.060 40E-4.101 or 40E-40.112, F.A.C., and all projects located in the C-51 Basin which require a permit pursuant to Rule 40E-6.041, F.A.C., shall submit the information required under Rule 40E-6.101, F.A.C.

Rulemaking Authority 373.044, 373.113, 373.4131 FS. Law Implemented 373.085, 373.413, 373.4131, 373.416 FS. History–New 5-15-87, Amended 4-20-94, 12-1-11,_________.

This rule will become effective on July 1, 2013, or upon the date that amendments to Chapter 62-330, F.A.C., proposed by the Department of Environmental Protection to implement the statutory mandate in Section 373.4131, F.S. (2012), take effect, whichever is later.

40E-41.263 Conditions for Issuance of Permits in the C-51 Basin.

The following criteria shall apply:

(1)(a) No change.

(b) This criteria is not intended to limit inflows to the C-51 Canal to the rates specified in subsection (a) above during non-flood conditions. Discharge capacity up to 27 cfs during non-flood conditions shall be considered on a case-by-case basis pursuant to the criteria in the “Basis of Review for Environmental Resource Permit Applicant’s Handbook Volume II For Use Within the Geographic Limits of Applications within the South Florida Water Management District,” incorporated by reference in paragraph 40E-4.091(1)(a), F.A.C., and 62-330.010(4)(b)5. Rule 40E-4.301, F.A.C.

(2) through (3) No change.

(4) All criteria in the “Basis of Review for Environmental Resource Permit Applicant’s Handbook Volume II For Use Within the Geographic Limits of Applications within the South Florida Water Management District,” which is incorporated by reference in paragraph 40E-4.091(1)(a), F.A.C., and 62-330.010(4)(b)5., F.A.C.

(5) No change.

Rulemaking Authority 373.044, 373.113, 373.4131 FS. Law Implemented 373.085, 373.413, 373.4131, 373.416 FS. History–New 5-15-87, Amended 12-1-11,_________.

This rule will become effective on July 1, 2013, or upon the date that amendments to Chapter 62-330, F.A.C., proposed by the Department of Environmental Protection to implement the statutory mandate in Section 373.4131, F.S. (2012), take effect, whichever is later.

40E-41.333 Implementation.

(1) through (2) No change.

(3) Permit applications submitted pursuant to a valid conceptual approval shall be evaluated in accordance with Rules 62-330.055 or 62-330.056 40E-4.305, F.A.C., (Conceptual Approvals).

Rulemaking Authority 373.044, 373.113, 373.4131 FS. Law Implemented 373.413, 373.4131, 373.416 FS. History–New 10-21-01, Amended_________.

This rule will become effective on July 1, 2013, or upon the date that amendments to Chapter 62-330, F.A.C., proposed by the Department of Environmental Protection to implement the statutory mandate in Section 373.4131, F.S. (2012), take effect, whichever is later.

40E-41.343 Application of Part IV.

All projects located within the WPA, WPAB, or adjacent to the Protective Levees which require permits pursuant to Chapter 62-330 Rule 40E-4.041, F.A.C., shall be constructed, altered, operated, maintained and abandoned in accordance with the criteria specified in Rules 62-330.301 40E-4.301 and 62-330.302 40E-4.302, or Rule 40E-40.302, F.A.C., as applicable, (Environmental Resource Permits Conditions for Issuance) and Rule 40E-41.363, F.A.C., (Conditions for Issuance of Environmental Resource Permits and Surface Water Management Permits in the Water Preserve Area, Water Preserve Area Basin, or Adjacent to the Protective Levees).

Rulemaking Authority 373.044, 373.113, 373.4131 FS. Law Implemented 373.413, 373.4131, 373.416 FS. History–New 10-21-01, Amended_________.

This rule will become effective on July 1, 2013, or upon the date that amendments to Chapter 62-330, F.A.C., proposed by the Department of Environmental Protection to implement the statutory mandate in Section 373.4131, F.S. (2012), take effect, whichever is later.

40E-41.363 Conditions for Issuance of Permits in the Water Preserve Area, Water Preserve Area Basin, or Adjacent to the Protective Levees.

(1) through (4) No change.

(5) In addition to the water quality treatment volumes required in section 4.2.1 5.2.1. of the “Environmental Resource Permit Applicant’s Handbook Volume II For Use Within the Geographic Limits of the South Florida Water Management District,” incorporated by reference in paragraph 40E-4.091(1)(a), F.A.C. Basis of Review, projects within the WPA or WPAB shall provide an additional fifty (50) percent retention/detention water quality treatment.

(6) No change.

(7) Reduced mitigation ratios set forth in section 4.3.2.4 of the “Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District,” incorporated by reference in paragraph 40E-4.091(1)(a), F.A.C, shall not apply in the WPA.

(8) In order to qualify for the reduced mitigation ratios set forth in section 4.3.2.4 of the “Basis of Review for Environmental Reource Permit Applications within the South Florida Water Management District,” incorporated by reference in paragraph 40E-4.091(1)(a), F.A.C., projects located within the WPAB shall:

(a) Provide a management plan for the control of exotic and nuisance species;

(b) Maximize the spatial extent and connectivity of wetlands, wetland mitigation areas and open space; and

(c) Incorporate a minimum of 50% native trees, shrubs and ground cover in the project landscape plan.

(9) The exotic and nuisance species management plan referenced in (8)(a) shall include as a minimum the following. All invasive exotic plants defined by the Florida Exotic Pest Plant Council (EPPC) as Category I plants will be removed or killed in-place during the initial wetland construction, restoration and enhancement phase of the mitigation project or onsite natural area clearing. Subsequent regrowth of the invasive exotic and undesirable vegetation will be maintained at or below five (5) percent of coverage of the wetland mitigation area. During the construction, restoration and enhancement phases of the mitigation project and as part of the perpetual maintenance of the mitigation areas, every effort will be taken to attain zero percent coverage of exotic/nuisance plant species immediately following maintenance activities.

(7)(10) Mitigation for proposed impacts incurred in the WPA or WPAB must be provided within the WPAB, or at a mitigation bank or Regional Offsite Mitigation Area with an approved mitigation service area that includes the impact site, provided all other applicable criteria are met.

Rulemaking Authority 373.044, 373.113, 373.4131 FS. Law Implemented 373.413, 373.4131, 373.416 FS. History–New 10-21-01, Amended 12-1-11,_________.

This rule will become effective on July 1, 2013, or upon the date that amendments to Chapter 62-330, F.A.C., proposed by the Department of Environmental Protection to implement the statutory mandate in Section 373.4131, F.S. (2012), take effect, whichever is later.

NAME OF PERSON ORIGINATING PROPOSED RULE: Anita R. Bain, Environmental Resource Permitting Bureau Chief
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: South Florida Water Management District Governing Board
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 14, 2013
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 28, 2012