The purpose of these rule amendments is to update rules referencing the “Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District” (BOR) to reflect the current version of the BOR as ...

 

WATER MANAGEMENT DISTRICTS
South Florida Water Management District

RULE NO: RULE TITLE
40E-4.041: Permits Required
40E-4.042: Formal Determination of Wetlands and Other Surface Waters
40E-4.091: Publications, Rules and Interagency Agreements Incorporated by Reference
40E-4.301: Conditions for Issuance of Permits
40E-4.302: Additional Conditions for Issuance of Permits
40E-4.361: Conversion from Construction Phase to Operation Phase
40E-4.381: General Conditions
PURPOSE AND EFFECT: The purpose of these rule amendments is to update rules referencing the “Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District” (BOR) to reflect the current version of the BOR as incorporated in Rule 40E-4.091, F.A.C., and to update clerical errors to the BOR.
SUMMARY: The proposed rule amendments will update rules referencing the BOR to reflect the current version of the BOR as incorporated in Rule 40E-4.091, F.A.C., and correct minor errors in Sections 4.2.8 and Appendix 2 of the 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: 373.043, 373.044, 373.103(8), 373.113, 373.171, 373.406(5), 373.413, 373.4135, 373.414(9), 373.421(2), 373.441, 668.003, 668.004, 668.50, 704.06 FS.
LAW IMPLEMENTED: 373.103, 373.413, 373.4135, 373.4137, 373.414, 373.4142, 373.416, 373.418, 373.421, 373.426, 373.441, 668.003, 668.004, 668.50, 704.06 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE,TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
DATE AND TIME: July 12, 2007, 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, [phone], ext. 2087, [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, Division Director, Natural Resources Management Division, South Florida Water Management, 3301 Gun Club Road, West Palm Beach, FL 33406, [phone], ext. 6866 or [phone], email: [e-mail]. For procedural questions contact: Jan Sluth, Paralegal, South Florida Water Management, 3301 Gun Club Road, West Palm Beach, FL 33406, [phone], ext. 6299 or [phone], email: [e-mail].

THE FULL TEXT OF THE PROPOSED RULE IS:

40E-4.041 Permits Required.

(1) through (3) No change.

(4) The District issues two types of mitigation bank environmental resource permits: conceptual approvals and individual permits, pursuant to Section 4.4 of the “Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District – November 1996”, incorporated by reference in Rule 40E-4.091, F.A.C. A conceptual approval does not authorize the establishment or operation of the mitigation bank. A mitigation bank individual permit authorizes the establishment and operation of a mitigation bank and constitutes authorization pursuant to Chapter 40E-4, 40E-40, or 40E-400, F.A.C., as applicable, to construct any surface water management system proposed as part of the mitigation bank.

Specific Authority 373.044, 373.113, 373.406(5) FS. Law Implemented 373.103, 373.413, 373.416, 373.426 FS. History–New 9-3-81, Amended 12-1-82, Formerly 16K-4.03(1), 16K-4.07(1), 16K-4.09(1), Amended 1-23-94, 4-20-94, 10-3-95, 4-1-96, 1-7-97, _________.

 

40E-4.042 Formal Determination of Wetlands and Other Surface Waters.

(1) through (2) No change.

(3) The process and procedures for filing a petition for a formal determination of wetlands and other surface waters are set forth in Section 4.5 of the “Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District August 1995”, and are incorporated by reference in Rule 40E-4.091, F.A.C this rule.

(4) through (5)  No change.

Specific Authority 373.043, 373.113, 373.421(2) FS. Law Implemented 373.421(2) FS. History–New 10-3-95, Amended________.

 

40E-4.091 Publications, Rules and Interagency Agreements Incorporated by Reference.

(1) The following publications, rules and interagency agreements are incorporated by reference into this chapter, Chapters 40E-40, 40E-41 and 40E-400, F.A.C.:

(a) “Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District – ____________ April 23, 2007”.

(b) through (k) No change.

(2) No change.

Specific Authority 373.044, 373.103(8), 373.113, 373.171, 373.413, 373.441, 668.003 668.004, 668.50, 704.06 FS. Law Implemented 373.413, 373.4135, 373.4137, 373.414, 373.4142, 373.416, 373.418, 373.421, 373.426, 373.441, 668.003, 668.004, 668.50, 704.06 FS. History–New 9-3-81, Amended 1-31-82, 12-1-82, Formerly 16K-4.035(1) Amended 5-1-86, 7-1-86, 3-24-87, 4-14-87, 4-21-88, 11-21-89, 11-15-92, 1-23-94, 4-20-94, 10-3-95, 1-7-97, 12-3-98, 5-28-00, 8-16-00, 1-17-01, 7-19-01, 6-26-02, 6-26-02, 4-6-03, 4-14-03, 9-16-03, 12-7-04, 2-12-06, 10-1-06, 11-20-06, 1-23-07, ________.

 

(The following are proposed changes to the “Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District”, incorporated by reference in Rule 40E-4.091, F.A.C.)

4.2.8 Cumulative Impacts

1st paragraph – No change.

When adverse impacts to water quality or adverse impacts to the functions of wetlands and other surface water, as referenced in the paragraph above, are not fully offset within the same drainage basin as the impacts, than an applicant must provide reasonable assurance that the proposed system, when considered with the following activities, will not result in unacceptable cumulative impacts to water quality or the functions of wetlands and other surface waters, within the same drainage basin:

(a) through (b) No change.

Paragraphs 3 and 4 – No change.

Appendix 2 SFWMD  ALLOWABLE DISCHARGE FORMULAS
Canal	Allowable Runoff	Design Frequency
C-1	Q = (112  + 31) A A Q= (112 +31) A A	10 year
C-2	Essentially unlimited inflow by gravity connections southeast of Sunset Drive: 54 CSM northwest of Sunset Drive	200 year +
C-4	Essentially unlimited inflow by gravity connections east of S.W. 87th Avenue	200 year +
C-6	Essentially unlimited inflow by gravity connections east of FEC Railroad	200 year +
CG-7	Essentially unlimited inflow by gravity connection	100 year +
C-8	Essentially unlimited inflow by gravity connection	200 year +
C-9	Essentially unlimited inflow by gravity connection east of Red Road; 20 CSM pumped, unlimited gravity with development limitations west of Red Road or Flamingo Blvd.	100 year +
C-10	---------------------------------------------	200 year +
C-11	20 CSM west of 13A; 40 CSM east of 13A	----------
C-12	90.6 CSM	25 year
C-13	75.9 CSM	25 year
C-14	69.2 CSM	25 year
C-15	70.0 CSM	25 year
C-16	62.6 CSM	25 year
C-17	62.7 CSM	25 year
C-18	41.6 CSM	25 year
C-19	57.8 CSM	----------
C-23	31.5 CSM	10 year
C-24	30.25 CSM	10 year
C-25	Q = (47  + 28) A (Under Review) A Q = (47 + 28) A (Under Review) A	10 year
C-38	31.1 CSM (subject to restrictions of Basin Rule)	10 year
C-40, 41, 41A	35.4 CSM	10 year
Hillsboro Canal (east of S-39)	35 CSM	25 year
North New River (east of S5-34)	70.8 CSM	25 year
Everglades Ag. Area (all canals)	20 CSM	5 year
L-28	11.8 CSM	-----------
C-51	35 CSM east of Turnpike; 27 CSM west of Turnpike (subject to restrictions of Basin Rule)	10 year
C-100, 100A, 100B, 100C, 100D:	Q = (104  + 43) A A Q = (104 + 43) A A	10 year
C-102	Q = (119  + 25) A A Q = (119 + 25) A A	10 year
C-103N, C103-S	Q = (107  + 39) A A Q = (107 + 39) A A	10 year
C-110	Q = (137 + 9) A A Q = (137 + 9) A A	10 year
C-111	Q = (117  + 29) A A Q = (117 + 29) A A	10 year
C-113	Q = (104  + 3) A A Q = (104 + 3) A A	10 year

 

Definitions:

Q = Allowable runoff in cfs
(cubic feet per second)

CSM = cfs per square mile

A = Drainage area in square miles

40E-4.301 Conditions for Issuance of Permits.

(1) No change.

(2) If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the applicant must comply with the requirements set forth in subsection 4.2.4.5 of the “Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District November 1996”, incorporated by reference in Rule 40E-4.091, F.A.C.

(3) The standards and criteria, including the mitigation provisions, and the provisions for elimination or reduction of impacts, contained in the “Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District November 1996”, incorporated adopted by reference in Rule 40E-4.091, F.A.C., shall determine whether the reasonable assurances required by subsection 40E-4.301(1) and Rule 40E-4.302, F.A.C., have been provided.

(4) No change.

Specific Authority 373.044, 373.113 FS. Law Implemented 373.413, 373.416, 373.426 FS. History–New 9-3-81, Amended 1-31-82, 12-1-82, Formerly 16K-4.035(2), 16K-4.30, Amended 7-1-86, 3-24-87, 4-14-87, 7-9-87, 4-21-88, 4-20-94, 10-3-95, 4-1-96, 1-7-97, _________.

 

40E-4.302 Additional Conditions for Issuance of Permits.

(1) No change.

(a) Located in, on, or over wetlands or other surface waters will not be contrary to the public interest, or if such an activity significantly degrades or is within an Outstanding Florida Water, that the activity will be clearly in the public interest, as determined by balancing the following criteria as set forth in subsections 4.2.3. through 4.2.3.7 of the “Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District”, incorporated by reference in Rule 40E-4.091, F.A.C:

1. through 7.  No change.

(b) Will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in subsections 4.2.8. through 4.2.8.2 of the “Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District”, incorporated by reference in Rule 40E-4.091, F.A.C.

(c) Located in, adjacent to or in close proximity to Class II waters or located in Class II waters or Class III waters classified by the Department as approved, restricted or conditionally restricted for shellfish harvesting as set forth and incorporated in Chapter 62R-7, F.A.C., will comply with the additional criteria in subsection 4.2.5 of the “Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District”, incorporated  adopted by reference in Rule 40E-4.091, F.A.C.

(d) Which constitute vertical seawalls in estuaries or lagoons, will comply with the additional criteria provided in subsection 4.2.6 of the “Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District”, incorporated adopted by reference in Rule 40E-4.091, F.A.C.

(2) No change.

Specific Authority 373.044, 373.113, 373.171, 373.414(9) FS. Law Implemented 373.042, 373.409, 373.413, 373.414, 373.416, 373.426, 380.23 FS. History–New 10-3-95, Amended 1-7-97, 12-3-98, 5-28-00,_________.

 

40E-4.361 Conversion from Construction Phase to Operation Phase.

(1) No change.

(a) through (b) No change.

(2) No change.

(a) No change.

(b) The professional engineer or other individual authorized by law shall certify that:

1. The system has been constructed substantially in accordance with approved plans and specifications, or;

2. Any deviations from the approved plans and specifications will not prevent the system from functioning in compliance with the requirements of this rule and Section 10.0 of the “Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District April 2003.”, incorporated by reference in Rule 40E-4.091, F.A.C. The professional engineer or other individual authorized by law shall note and explain substantial deviations from the approved plans and specifications and provide two copies of as-built drawings to the District; and

(c) No change.

(3) A conversion to the operational phase shall not occur until a responsible entity meeting the requirements in Section 9.0, of the “Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District – April 2003”, incorporated by reference in Rule 40E-4.091, F.A.C., has been established to operate and maintain the system. The entity must be provided with sufficient ownership, legal or equitable interest so that it has control over all water management facilities authorized by the permit.

(4) No change.

Specific Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.413, 373.416 FS. History–New 10-3-95, Amended 1-7-97, 4-14-03, 9-16-03,_________.

 

40E-4.381 General Conditions.

(1) (a) through (f) No change.

(g) The operation phase of this permit shall not become effective: until the permittee has complied with the requirements of paragraph (f) above, has submitted a Request for Conversion of Environmental Resource/Surface Water Management Permit from Construction Phase to Operation Phase and Transfer of Permit to the Operating Entity Form No. 0920, incorporated by reference in Rule 40E-1.659, F.A.C.; the District determines the system to be in compliance with the permitted plans and specifications; and the entity approved by the District in accordance with Sections 9.0 and 10.0 of the “Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District”, incorporated by reference in Rule 40E-4.091, F.A.C., accepts responsibility for operation and maintenance of the system. The permit shall not be transferred to such approved operation and maintenance entity until the operation phase of the permit becomes effective. Following inspection and approval of the permitted system by the District, the permittee shall initiate transfer of the permit to the approved responsible operating entity if different from the permittee. Until the permit is transferred pursuant to Rule 40E-1.6107, F.A.C., the permittee shall be liable for compliance with the terms of the permit.

(h) No change.

(i) For those systems that will be operated or maintained by an entity that will require an easement or deed restriction in order to enable that entity to operate or maintain the system in conformance with this permit, such easement or deed restriction must be recorded in the public records and submitted to the District along with any other final operation and maintenance documents required by Sections 9.0 and 10.0 of the “Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District”, incorporated by reference in Rule 40E-4.091, F.A.C., prior to lot or unit sales or prior to the completion of the system, whichever occurs first. Other documents concerning the establishment and authority of the operating entity must be filed with the Secretary of State where appropriate. For those systems which are proposed to be maintained by the county or municipal entities, final operation and maintenance documents must be received by the District when maintenance and operation of the system is accepted by the local government entity. Failure to submit the appropriate final documents will result in the permittee remaining liable for carrying out maintenance and operation of the permitted system and any other permit conditions.

(j) through (s) No change.

(2) No change.

Specific Authority 373.044, 373.113, 373.171, 668.003, 668.004, 668.50 FS. Law Implemented 373.116, 373.229, 373.413, 373.416, 373.421, 373.422, 373.426, 668.003, 668.004, 668.50 FS. History– New 9-3-81, Amended 1-31-82, 12-1-82, Formerly 16K-4.07(3), 16K-4.38, Amended 7-1-86, 4-20-94, 10-3-95, 1-7-97, 4-14-03, 9-16-03, 10-1-06,__________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Anita R. Bain, Division Director, Natural Resources Management Division
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: South Florida Water Management District Governing Board
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: May 10, 2007
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: April 27, 2007