40E-4.021: Definitions
40E-4.091: Publications, Rules and Interagency Agreements Incorporated by Reference
PURPOSE AND EFFECT: The South Florida Water Management District (District) proposes to amend the definition of listed species in its rules governing the issuance of environmental resource permits (ERP) to update the rule references concerning listed wildlife and plant species, and to specifically reference the bald eagle, which is protected under a federal statute known as the Bald and Golden Eagle Protection Act. Under the Districts existing rules, the bald eagle is included in the definition of listed species by reference to a previous Florida Fish and Wildlife Conservation Commision (FWC) rule identifying threatened species. However, the FWC has recently amended its rules, effective May 15, 2008, such that the bald eagle is no longer classified as a threatened species by the FWC. Specifically, the District proposes to amend the definition of listed species in subsection 40E-4.021(29), F.A.C., and in Section 2.18 Basis of Review for Environmental Resources Permit Applications within the South Florida Water Management District (BOR), and update rule references in Sections 2.10, 2.18 and 2.37. Table 4.2.7-1 of the BOR will also be amended to include the bald eagle under a new category (other) and remove it from the category of threatened species. If these amendments are adopted, the protections afforded by the Districts rules to wildlife species that are now classified as endangered, threatened or species of special concern would continue to be afforded the bald eagle.
SUBJECT AREA TO BE ADDRESSED: The proposed rules amend the definition of listed species in subsection 40E-4.021(29), F.A.C., and in Section 2.18 BOR, and update rule references in Sections 2.10, 2.18 and 2.37 of the BOR. The proposed rules will remove the bald eagle from the category of threatened species in Table 4.2.7-1 of the Basis of Review for Environmental Resources Permit Applications within South Florida Water Management District and include it under a new category.
SPECIFIC AUTHORITY: 373.044, 373.113, 373.414, 373.418 FS.
LAW IMPLEMENTED: 373.016(2), 373.413, 373.414, 373.416, 373.418, 373.426 FS.
A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: July 24, 2008, 10:00 a.m. 12:00 Noon
PLACE: St. Johns River Water Management Districts Altamonte Springs Service Center, Econ Room, 975 Keller Road, Altamonte Springs, FL 32714-1618
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 2 days before the workshop/meeting by contacting: Although Governing Board meetings, hearings and workshops are normally recorded, affected persons are advised that it may be necessary for them to ensure that a verbatim record of the proceeding is made, including the testimony and evidence upon which any appeal is to be based. Persons with disabilities or handicaps who need assistance may contact District Clerk, at (561)686-8800 at least two business days in advance to make appropriate arrangements. 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 DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Anita R. Bain, Division Director, South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, Florida 33406, (561)682-6866, email abain@sfwmd.gov. Any procedural matters you may contact Charron A. Follins, Senior Paralegal, Office of Counsel, South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, Florida 33406, (561)682-6293, email cfollins@sfwmd.gov.
THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:
40E-4.021 Definitions.
When used in this chapter, Chapters 40E-40, 40E-41, and 40E-400, F.A.C.,
(1) through (28) No change.
(29) Listed species means those animal species which are endangered, threatened or of special concern and are listed in Rules 68A-27.003 (as amended December 16, 2003), 68A-27.004 (as amended May 15, 2008), and 68A-27.005 (as amended November 8, 2007), F.A.C.;, the bald eagle (Haliaeetus leucocephalus), which is protected under the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d); and those plant species listed in 50 Code of Federal Regulation 17.12 (as amended April 8, 2004).
(30) through (46) No change.
Specific Authority 373.044, 373.113, 668.003, 668.004, 668.50 FS. Law Implemented 373.019, 373.403-.443, 403.031, 668.003, 668.004, 668.50, 704.06 FS. HistoryNew 9-3-81, Amended 1-31-82, 12-1-82, Formerly 16K-1.05(1), Amended 7-1-86, 4-20-94, 10-3-95, 4-1-96, 10-1-06,________.
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 ________7-22-07.
(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. HistoryNew 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, 7-1-07, 7-22-07,________.
BASIS OF REVIEW FOR ENVIRONMENTAL RESOURCES PERMIT APPLICATIONS WITHIN SOUTH FLORIDA WATER MANAGEMENT DISTRICT
2.0 Definitions
2.1 through 2.9 No change.
2.10 Endangered Species Those animal species which are listed in Section 68A-27.003 (as amended December 16, 2003), 39-27.003, F.A.C., and those plant species which are listed as endangered in 50 Code of Federal Regulations 17.12 (as amended April 8, 2004), when such plants are located in a wetland or other surface water.
2.11 through 2.17 No change.
2.18 Listed species Those animals species which are endangered, threatened or of special concern and are listed in Sections 68A-27.003 (as amended December 16, 2003), 68A-27.004 (as amended May 15, 2008), and 68A-27.005 (as amended November 8, 2007) 39-27.003, 39-27.004 and 39-27.005, F.A.C.;, the bald eagle (Haliaeetus leucocephalus), which is protected under the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d); and those plant species listed in 50 Code of Federal Regulation 17.12 (as amended April 8, 2004), when such plants are found to be located in a wetland or other surface water.
2.19 through 2.36 No change.
2.37 Threatened Species Those animal species listed in Section 68A-27.004 (as amended May 15, 2008), 39-27.004, F.A.C., and those plant species which are listed as threatened in 50 Code of Federal Regulations 17.12 (as amended April 8, 2004), when such plants are located in a wetland or other surface water.
2.38 through 2.39 No change.
4.2.7 Secondary Impacts
Pursuant to paragraph 4.1.1(f), an applicant must provide reasonable assurances that a regulated activity will not cause adverse secondary impacts to the water resource, as described in paragraphs (a) through (d) below. Aquatic or wetland dependent fish and wildlife are an integral part of the water resources which the District is authorized to protect under Part IV, Chapter 373, F.S. Those aquatic or wetland dependent species which are listed as defined in section 2.0 threatened, endangered or of special concern are particularly in need of protection.
A proposed system shall be reviewed under this criterion by evaluating the impacts to: wetland and surface water functions identified in subsection 4.2.2, water quality, upland habitat for aquatic or wetland dependent listed species, and historical and archaeological resources. De minimis or remotely related secondary impacts will not be considered. Applicants may propose measures such as preservation to prevent secondary impacts. Such preservation shall comply with the land preservation provisions of subsection 4.3.8. If such secondary impacts can not be prevented, the applicant may propose mitigation measures as provided for in subsections 4.3 4.3.9. This secondary impact criterion consists of the following four parts:
(a) No change.
(b) An applicant shall provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of a proposed system will not adversely impact the ecological value of uplands to aquatic or wetland dependent listed animal species for enabling existing nesting or denning by these species, but not including:
1. areas needed for foraging; or
2. wildlife corridors, except for those limited areas of uplands necessary for ingress and egress to the nest or den site from the wetland or other surface water.
Table 4.2.7-1 identifies those aquatic or wetland dependent listed species that use upland habitats for nesting and denning.
For those aquatic or wetland dependent listed animal species for which habitat management guidelines have been developed by the U.S. Fish and Wildlife Service (USFWS) or the Florida Fish and Wildlife Conservation Commission (FWC) Florida Game and Fresh Water Fish Commission (FGFWFC), compliance with these guidelines will provide reasonable assurance that the proposed system will not adversely impact upland habitat functions described in paragraph (b). For those aquatic or wetland dependent listed animal species for which habitat management guidelines have not been developed or in cases where an applicant does not propose to use USFWS or FWC FGFWFC habitat management guidelines, the applicant may propose measures to mitigate adverse impacts to upland habitat functions described in paragraph (b) provided to aquatic or wetland dependent listed animal species.
(c) through (d) No change.
TABLE 4.2.7-1
Listed Wildlife Species That Are Aquatic Or Wetland Dependent
And That Use Upland Habitats For Nesting Or Denning
Fishes
Species of Special Concern
No change.
Reptiles
Endangered
No change.
Threatened
No change.
Species of Special Concern
No change.
Birds
Endangered
No change.
Threatened
Charadrius alexandrinus tenuirostris (southeastern snowy plover)
Charadrius melodus (piping plover)
Columba leucocephalus (white-crowned pigeon)
Grus canadensis pratensis (Florida sandhill crane)
Haliaeetus leucocephala (bald eagle)
Picoides borealis (red-cockaded woodpecker) THIS SPECIES ONLY WETLAND DEPENDENT IN LEE, COLLIER, AND CHARLOTTE COUNTIES
Polyborus plancus audubonii (Audubons crested caracara)
Sterna antillarum (least tern)
Sterna dougallii (roseate tern)
Species of Special Concern
No change.
Other
Haliaeetus leucocephalus (bald eagle)
Mammals
Endangered
No change.
Threatened
No change.
Species of Special Concern
No change.
