The proposed rule amendments were identified for correction/updating in accordance with Section 120.74, F.S. The amendments are as follows: 1) delete “general” from standard permits pursuant to Section 373.118, F.S.; 2) update rules to be consistent ...  

  • WATER MANAGEMENT DISTRICTS
    South Florida Water Management District

    RULE NO.: RULE TITLE:
    40E-4.011: Policy and Purpose
    40E-4.021: Definitions
    40E-4.041: Permits Required
    40E-4.0415: Permit Thresholds
    40E-4.042: Formal Determination of Wetlands and Other Surface Waters
    40E-4.051: Exemptions From Permitting
    40E-4.091: Publications, Rules and Interagency Agreements Incorporated by Reference
    40E-4.101: Content of Permit Applications
    40E-4.201: Forms and Instructions
    40E-4.301: Conditions for Issuance of Permits
    40E-4.302: Additional Conditions for Issuance of Permits
    40E-4.303: Environmental Resource Permit Authorization
    40E-4.305: Conceptual Approvals
    40E-4.321: Duration of Permits
    40E-4.331: Modification of Permits
    40E-4.361: Conversion from Construction Phase to Operation Phase
    40E-4.381: General Conditions

    PURPOSE AND EFFECT: The proposed rule amendments were identified for correction/updating in accordance with Section 120.74, F.S. The amendments are as follows: 1) delete “general” from standard permits pursuant to Section 373.118, F.S.; 2) update rules to be consistent with amendment to Section 373.083, F.S.; 3) update the District’s ePermitting website and delete outdated navigation instructions; 4) specify paragraph in which Basis of Review is incorporated; 5) specify statute describing private docks; 6) delete incorporated material no longer relied upon; 7) update incorporation language pursuant to Section 120.55(1)(a)4., F.S., and Rule 1B-30.005, F.A.C., and include hyperlinks to materials incorporated by reference pursuant to Section 120.54(l)(i), F.S.; 8) update process for submitting applications; 9) delete language redundant of another rule; 10) clarify reference to all applications rather than specific; 11) update title of regulation director; and 12) add date of operating agreement; and 13) add contact information for Division of Historical Resources.

    The District is also amending 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., as follows: Section 1.1 – correct the term “rule” to “paragraph”; 1.2 – delete “general” from standard permits pursuant to Section 373.118, F.S.; 1.2.1 – add “standard” permits as a permit separate from “general” permits pursuant to Section 373.118, F.S.;

    1.3 – add Governing Board designee pursuant to amendment to Section 373.083, F.S.; 2.10, 2.18, 2.34, 2.37 – update effective date of referenced rules, delete repealed rule and add incorporation language pursuant to Rule 1B-30.005, F.A.C; 2.35 – add Governing Board designee pursuant to amendment to Section 373.083, F.S.; 4.1 – add incorporation language pursuant to Rule 1B-30.005, F.A.C.; 4.1.1 – correct rule, subsection and paragraph, and update rule reference; 4.2.1 – delete reference to repealed rule; 4.2.2 – delete the term “general” as a form of standard permit pursuant to s. 373.118(1), F.S., and correct agency name; 4.2.2.4 – delete title next to rule number; 4.2.3 – add the term “subparagraph” before rule numbers; 4.2.3.3 – delete manual no longer relied upon; 4.2.3.6 – delete the term “general” as a form of standard permit pursuant to Section 373.118(1), F.S.; 4.2.4.4 – clarify paragraph number of rule reference;

    4.2.7, 4.3 and 4.3.1.7 – delete references to repealed rules; Table 4.2.7-1 – move table under section 4.2.7; 4.3.7.6 and 4.3.8 – add incorporation language pursuant to 1B-30.005, F.A.C.; 4.4.3.1 – change “long term” to “perpetuity” to clarify and be consistent with other statutes; 4.4.4.7, 4.5, 4.5.1 – add incorporation language pursuant to Rule 1B-30.005, F.A.C.; 5.1 – add F.A.C. to rule reference; 5.2.2 – update references to ordinances and add incorporation language pursuant to 1B-30.005, F.A.C.; 5.9.4 – delete agency reference and delete old process for submitting results; 6.12 – correct incomplete sentence; 9.2.4 – add incorporation language pursuant to Rule 1B-30.005, F.A.C.; 10.1 – add incorporation language pursuant to Rule 1B-30.005, F.A.C.; and Appendix 6 – delete cover sheet.

    SUMMARY: In compliance with Section 120.74, F.S., the proposed rule amendments update the District’s rules to be consistent with statutes, correct errors and eliminate outdated language.

    SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The District has prepared a Statement of Estimated Regulatory Costs. This will not have an adverse impact on small business. Individuals and other entities, including governmental entities and other users of the District’s 40E administrative rules and the “Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District,” will benefit from the use of more accurate and up-to-date rules.

    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.

    The proposed rules do not require legislative ratification pursuant to Section 120.54(3), F.S.

    RULEMAKING AUTHORITY: 120.53(1), 373.016, 373.044, 373.103(8), 373.113, 373.118, 373.171, 373.406(5), 373.413, 373.414(9), 373.414(17), 373.441, 380.06(9), 668.003, 668.004, 668.50 FS.
    LAW IMPLEMENTED: 373.016, 373.019, 373.042, 373.044, 373.086(1), 373.103, 373.103(1), 373.103(4), 373.113, 373.116, 373.117, 373.118, 373.118(1), 373.229, 373.403-.443, 380.06, 380.23, 403.031, 403.201, 403.813(2), 668.003, 668.004, 668.50, 704.06 FS.

    A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

    DATE AND TIME: October 13, 2011, 9:00 a.m.

    PLACE: South Florida Water Management District, 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, 1(800)432-2045, ext. 2087 or (561)682-2087. 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 RULES 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 (561)682-6866, email: abain@sfwmd.gov. 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 (561)682-6299, email: jsluth@sfwmd.gov

     

    THE FULL TEXT OF THE PROPOSED RULES IS:

    40E-4.011 Policy and Purpose.

    (1) through (2) No change.

    (3) The rules relating to environmental resource permits are found in this chapter, Chapters 40E-40, (Environmental Resource Standard General Permits) and 40E-41, F.A.C. (Surface Water Management Basin and Related Criteria). In addition, no notice and noticed environmental resource general permits are found in Chapter 40E-400, F.A.C.

    (4) No change.

    PROPOSED EFFECTIVE DATE: December 1, 2011

    Rulemaking Specific Authority 373.044, 373.113 FS. Law Implemented 373.086(1), 373.103(1), 373.103(4), 373.403-.443 FS. History–New 9-3-81, Formerly 16K-4.01, Amended 4-20-94, 10-3-95, 12-1-11.

     

    40E-4.021 Definitions.

    When used in this chapter, Chapters 40E-40, 40E-41 and 40E-400, F.A.C.:

    (1) through (4) No change.

    (5) “Conceptual Approval” means an environmental resource permit, issued by the District Governing Board which approves a conceptual master plan for a surface water management system or a mitigation bank. Conceptual approvals constitute final District action, and are binding to the extent that adequate data has been made available for review by the applicant during the review process. To the extent that there is any inconsistency between the permit, staff report, and other information in the application file, the permit and staff report shall control.

    (6) through (11) No change.

    (12) “e-Permitting website” means the District’s website address for e-Permitting at http://www.sfwmd.gov/ePermitting http://my.sfwmd.gov/ePermitting. After accessing the e-Permitting website, the user clicks the start icon on the e-Permitting page.

    (13) through (22) No change.

    (23) “General Permit” means a no notice or, noticed or standard general environmental resource permit issued by District staff. However, staff recommendations for denial of noticed or standard general permit applications shall be considered by the Governing Board.

    (24) through (25) No change.

    (26) “Individual Permit” means an environmental resource permit issued by the District Governing Board.

    (27) through (46) No change.

    PROPOSED EFFECTIVE DATE: December 1, 2011

    Rulemaking 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. History–New 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, 3-22-09, 11-11-09, 12-1-11.

     

    40E-4.041 Permits Required.

    (1) No change.

    (2)(a) and (b) No change.

    (c) General permits are issued in two three forms: no notice and, noticed and standard general environmental resource permits. General permits are issued for specified activities or projects that satisfy the thresholds and conditions of Chapters 40E-40 and 40E-400, F.A.C. Standard general permits are issued pursuant to Chapter 40E-40, F.A.C. No notice and noticed general permits are issued pursuant to Chapter 40E-400, F.A.C.

    1. If the District notifies an applicant that the system for which a noticed general permit is sought does not qualify for the noticed general permit, the applicant may apply for a standard general or individual permit.

    2. The application fee for the noticed general permit shall be applied to the application fee for a standard general or individual permit if the applicant applies for such a permit within 60 days of notification by the District.

    (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,” incorporated by reference in paragraph Rule 40E-4.091(1)(a), 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 Chapters 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.

    (5) No change.

    PROPOSED EFFECTIVE DATE: December 1, 2011

    Rulemaking 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, 7-22-07, 12-1-11.

     

    40E-4.0415 Permit Thresholds.

    (1) No change.

    (2) Any non-exempt system which does not qualify for a noticed or no notice general environmental resource permit pursuant to Chapter 40E-400, F.A.C., and does not exceed the standard for individual permits listed above, shall obtain a standard general permit pursuant to Chapter 40E-40, F.A.C.

    (3) Notwithstanding the provisions of subsections (1) and (2):

    (a) No change.

    (b) Phases within a conceptually approved project shall be processed as standard general permits provided:

    1. through 3. No change.

    PROPOSED EFFECTIVE DATE: December 1, 2011

    Rulemaking Specific Authority 373.044, 373.113, 373.406(5) FS. Law Implemented 373.118(1), 373.413(1) FS. History–New 10-3-95, Amended 5-28-00, 6-26-02, 4-14-03, 12-1-11.

     

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

    (1) In accordance with subsection 373.421(2), F.S., a real property owner, an entity that has the power of eminent domain, or any other person who has a legal or equitable interest in real property may petition the District for a formal determination of the landward boundaries of wetlands and other surface waters on that property as defined in Chapter 62-340, F.A.C., and ratified by Section 373.4211, F.S., and incorporated by reference in paragraph 40E-4.091(1)(g), F.A.C.

    (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,, incorporated by reference in paragraph Rule 40E-4.091(1)(a), F.A.C.

    (4) through (5) No change.

    PROPOSED EFFECTIVE DATE: December 1, 2011

    Rulemaking Specific Authority 373.043, 373.113, 373.421(2) FS. Law Implemented 373.421(2) FS. History–New 10-3-95, Amended 7-22-07, 12-1-11.

     

    40E-4.051 Exemptions From Permitting.

    (1) through (2) No change.

    (3)(a) through (3)(b) No change.

    (c) Construction of private docks as described in Section 403.813(1)(i), F.S., in artificially created waterways where construction will not violate water quality standards, impede navigation, or adversely affect flood control.

    (d) through (e) No change.

    (4) through (5) No change.

    (6) Bridges, Driveways and Roadway Crossings.

    (a) No change.

    (b)1. through 10. No change.

    11. The person performing the exempt activity shall implement measures for erosion and pollution control using best management practices, including turbidity curtains or similar devices and other site specific practices, in strict adherence to the Florida Department of Transportation’s “Standard Specifications for Road and Bridge Construction,” and Chapter 6 of the Department’s “Florida Development Manual,” to prevent violations of state water quality standards. Temporary erosion controls shall be implemented prior to and during construction, and permanent erosion control measures for all exposed soils shall be completed within 7 calendar days of the most recent construction activity;

    12. through 15. No change.

    (7) through (12) No change.

    PROPOSED EFFECTIVE DATE: December 1, 2011

    Rulemaking Specific Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.406, 373.413, 373.416, 403.813(2) FS. History– New 9-3-81, Amended 1-31-82, 3-9-83, Formerly 16K-4.02, Amended 4-20-94, 10-3-95, 5-28-00, 9-2-01, 4-14-03, 9-9-07, 12-1-11.

     

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

    (1) The following publications, rules and interagency agreements are incorporated by reference herein 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, effective date December 1, 2011 July 4, 2010”, which incorporates the following forms or materials by reference:

    1. Form No. 0972, Petition for a Formal Wetland and Surface Water Determination, effective date December 1, 2011;

    2. Form No. 1019, Mitigation Bank Performance Bond to Demonstrate Construction/Implementation Financial Assurance, effective date December 1, 2011;

    3. Form No. 1020, Mitigation Bank Irrevocable Letter of Credit to Demonstrate Construction/Implementation Financial Assurance, effective date December 1, 2011;

    4. Form No. 1021, Mitigation Bank Standby Trust Fund Agreement to Demonstrate Construction/Implementation Financial Assurance, effective date December 1, 2011;

    5. Form No. 1022, Mitigation Bank Trust Fund Agreement to Demonstrate Construction/Implementation Financial Assurance, effective date December 1, 2011;

    6. Form No. 1023, Mitigation Bank Trust Fund Agreement to Demonstrate Perpetual Management Financial Assurance, effective date December 1, 2011;

    7. Form No. 1024, Mitigation Bank Standby Trust Fund Agreement to Demonstrate Perpetual Management Financial Assurance, effective date December 1, 2011;

    8. Form No. 1105, Performance Bond, effective date December 1, 2011;

    9. Form No. 1106, Irrevocable Letter of Credit, effective date December 1, 2011;

    10.1. Form No. 1190, Deed of Conservation Easement (Standard), effective date December 1, 2011; January 23, 2007;

    11.2. Form No. 1191, Deed of Conservation Easement (Standard Passive Recreational), effective date December 1, 2011; January 23, 2007;

    12.3. Form No. 1192, Deed of Conservation Easement (Standard Riparian), effective date December 1, 2011; January 23, 2007;

    13.4. Form No. 1194, Deed of Conservation Easement (Third Party Standard), effective date December 1, 2011; January 23, 2007;

    14.5. Form No. 1195, Deed of Conservation Easement (Third Party Passive Recreational), effective date December 1, 2011; January 23, 2007;

    15.6. Form No. 1196, Deed of Conservation Easement (Third Party Riparian), effective date December 1, 2011; January 23, 2007’

    16.7. Form No. 1197, Restrictive Covenant (Standard), effective date December 1, 2011; January 23, 2007;

    17.8. Form No. 1318, Deed of Conservation Easement (Local Governments), effective date December 1, 2011 July 4, 2010;

    18. Chapter 27, Article XIII, Wellfield Protection Ordinance, Broward County Code of Ordinances, last amended September 28, 1999; and

    19. Dade County Wellfield Protection Ordinance contour showing maximum limits (Section 24-43 Protection of Public Potable Water Supply Wells; Chapter 24 Environmental Protection; Code of Metropolitan Dade County, Florida; Codified through Ordinance No. 11-01, enacted January 20, 2011 (Supp. No. 68)).

    (b) 50 C.F.R. section 17.12, 50 Code of Federal Regulations effective date April 8, 2004; and Rule 68A-27.003, F.A.C., effective date December 16, 2003, Rule 68A-27.004, F.A.C., effective date May 15, 2008, and Rule 68A-27.005, F.A.C., effective date November 8, 2007.

    (c) Operating Agreement Concerning Regulation Under Part IV, Chapter 373, F.S., between South Florida Water Management District and Department of Environmental Protection, effective July 1, 2007.

    (d) State water quality standards set forth in Chapter 62-4, F.A.C., effective date April 21, 2009; Chapter 62-302, F.A.C., effective date August 5, 2010, Chapter 62-520, F.A.C., effective date July 12, 2009; Chapter 62-522, F.A.C., effective date July 12, 2009, and Chapter 62-550, F.A.C., effective date September 18, 2007.

    (e) Chapter 62-312, Part IV, F.A.C., “Additional Criteria for Dredging and Filling Within Outstanding Florida Waters in Monroe County,effective date March 15, 2007.

    (f) 40 C.F.R. Code of Federal Regulations, section 264.143(f), for the purpose of providing financial responsibility and corporate guarantee requirements, effective date September 16, 1992.

    (g) Chapter 6 of the Florida Land Development Manual: A Guide to Sound Land and Water Management (Florida Department of Environmental Protection, 1988).

    (g)(h) Chapter 62-340, F.A.C., as ratified by Section 373.4211, F.S., for the purpose of delineating wetlands and other surface waters, effective date July 1, 1994.

    (i) Chapter 3, Roadside Design Guide (American Association of State Highway and Transportation Officials, October 1988).

    (h)(j) 30 C.F.R., section 800.23, Code of Federal Regulations for the purpose of providing self bonding provisions, effective date January 14, 1988 requirements.

    (i)(k) Delegation Agreement among the Florida Department of Environmental Protection, the South Florida Water Management District, and Broward County, (dated May 22, 2001).

    (j)(2) The documents listed in subsection (1) are available online at www.sfwmd.gov or can also be obtained at no cost by contacting the South Florida Water Management District Clerk’s Office, 3301 Gun Club Road, West Palm Beach, FL 33406, (800) 432-2045, ext. 6436, or (561) 682-6436.

    PROPOSED EFFECTIVE DATE: December 1, 2011

    Rulemaking 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, 7-1-07, 7-22-07, 11-11-09, 7-1-10, 7-4-10, 12-1-11.

     

    40E-4.101 Content of Permit Applications.

    (1) Applications for permits required by this chapter, Chapters 40E-40, 40E-41 and 40E-400, F.A.C., shall be filed electronically at www.sfwmd.gov/ePermitting, or at South Florida Water Management District, Regulation Reception Desk, 3301 Gun Club Road, West Palm Beach, FL 33406, (561)682-6736, or at any of the District’s Service Centers. The addresses and phone numbers of the District’s Service Centers are online at www.sfwmd.gov, “Locations.” with the District Service Center which will review the application as set forth in Rule 40E-1.6025, F.A.C. or filed electronically at the District’s e-Permitting website. For projects located in Broward County, applications shall be filed either at the District’s Headquarters in West Palm Beach or with Broward County Environmental Protection and Growth Management Department, Development and Environmental Regulation Division, 1 North University Drive, Suite 201, Plantation, FL 33324, (954)519-1473, in accordance with the Delegation Agreement among the Florida Department of Environmental Protection, the South Florida Water Management District, and Broward County, dated May 22, 2001, incorporated by reference in paragraph 40E-4.091(1)(h), F.A.C. The application shall contain:

    (a) No change.

    (b) One original and four copies of Joint Water Management District/Department of Environmental Protection/U.S. Army Corps of Engineers Environmental Resource Permit Application (Form No. 0971), and five copies of drawings, calculations, environmental information, and engineering details sufficient to define the nature, scope, intent and functioning of the work proposed. This information must include at a minimum: flood protection, water quality, environmental impacts, proposed mitigation, water supply, and water conservation elements. Applicants who file an application electronically are not required to submit copies. Form No. 0971, effective date December 2011, is incorporated by reference herein and available at no cost by contacting the South Florida Water Management District Clerk’s Office, 3301 Gun Club Road, West Palm Beach, FL 33406, 1(800)432-2045, ext. 6436 or (561)682-6436 at any of the District’s Service Centers upon request.

    (2) The application must be signed by the owner or the owner’s authorized agent and include documentation of ownership. Applications signed by agents must contain a letter of authorization which is signed by the owner. Those having the right to exercise the power of eminent domain or having a contract to purchase real property may apply for a permit, however, the permit shall prohibit commencement of work until the permittee provides proof of ownership to the District. A permit shall only be issued to the record title holder, holder of a recorded easement conveying the right to utilize the property for a purpose consistent with the authorization requested in the permit application, those having the right to exercise the power of eminent domain or having a contract to purchase real property. A Notice of Environmental Resource or Surface Water Management Permit (Form No. 1189), shall be recorded in the public records of the county where the property is located. This notice shall not be considered an encumbrance upon the property. Form No. 1189, effective date December 2011, is incorporated by reference herein and available at no cost by contacting the South Florida Water Management District Clerk’s Office, 3301 Gun Club Road, West Palm Beach, FL 33406, 1(800)432-2045, ext. 6436 or (561)682-6436.

    (3) Environmental resource permit applications shall be filed and processed in accordance with Chapters 120 and 373, F.S., following the procedures set forth in Chapter 40E-1, F.A.C., and by utilizing the forms listed incorporated by reference into Rule 40E-1.659, F.A.C.

    (4) No change.

    PROPOSED EFFECTIVE DATE: December 1, 2011

    Rulemaking Specific Authority 373.016, 373.044, 373.113, 373.171, 668.003, 373.416, 668.004, 668.50 FS. Law Implemented 373.016, 373.117, 373.413, 373.416, 373.426, 668.003, 668.004, 668.50 FS. History–New 9-3-81, Amended 1-31-82, 12-1-82, Formerly 16K-4.03(2), 16K-4.07(2), 16K-4.09(2), Amended 7-1-86, 11-21-89, 4-20-94, 10-3-95, 5-28-00, 4-14-03, 8-14-03, 2-12-06, 10-1-06, 12-1-11.

     

    40E-4.201 Forms and Instructions.

    (1) No change.

    (2) Forms and instructions are available from District Service Centers upon request.

    PROPOSED EFFECTIVE DATE: December 1, 2011

    Rulemaking Specific Authority 120.53(1), 373.044, 373.113, 373.118 FS. Law Implemented 120.53(1), 373.044, 373.113, 373.116, 373.118, 373.229, 373.413, 373.421 FS. History–New 10-3-95, Amended 12-1-11.

     

    40E-4.301 Conditions for Issuance of Permits.

    (1) through (1)(d) No change.

    (e) Will not adversely affect the quality of receiving waters such that the water quality standards set forth in Chapters 62-4, 62-302, 62-520, 62-522 and 62-550, F.A.C., incorporated by reference in paragraph 40E-4.091(1)(d), F.A.C., including any antidegradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62-4.242(2) and (3), and Rule 62-302.300, F.A.C., any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated.

    (f) through (k) 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 4.4.4.5 of the “Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District,, incorporated by reference in paragraph Rule 40E-4.091(1)(a), 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,, incorporated by reference in paragraph Rule 40E-4.091(1)(a), 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.

    PROPOSED EFFECTIVE DATE: December 1, 2011

    Rulemaking 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, 7-22-07, 12-1-11.

     

    40E-4.302 Additional Conditions for Issuance of Permits.

    (1) In addition to the conditions set forth in Rule 40E-4.301, F.A.C., in order to obtain a standard, general, individual, or conceptual approval permit under this chapter or Chapter 40E-40, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, and abandonment of a system:

    (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 clarly 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 paragraph Rule 40E-4.091(1)(a), 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 paragraph Rule 40E-4.091(1)(a), 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 5L-1 62R-7, 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 by reference in paragraph Rule 40E-4.091(1)(a), 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 by reference in paragraph Rule 40E-4.091(1)(a), F.A.C.

    (2) When determining whether the applicant has provided reasonable assurances that District permitting standards will be met, the District shall take into consideration a permit applicant’s violation of any Department rules adopted pursuant to Sections 403.91-.929, F.S. (1984 Supp.), as amended, which the District had the responsibility to enforce pursuant to a delegation, or any District rules adopted pursuant to Part IV, Chapter 373, F.S., relating to any other project or activity and efforts taken by the applicant to resolve these violations. The Department’s delegation to the District to enforce the rules adopted pursuant to Sections 403.91-.929, F.S. (1984 Supp.), as amended, is set forth in the “Operating Agreement Concerning Regulation Under Part IV, Chapter 373, F.S., between South Florida Water Management District and Department of Environmental Protection” dated July 1, 2007, incorporated by reference in paragraph Rule 40E-4.091(1)(c), F.A.C.

    PROPOSED EFFECTIVE DATE: December 1, 2011

    Rulemaking 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, 7-1-07, 7-22-07, 12-1-11.

     

    40E-4.303 Environmental Resource Permit Authorization.

    (1) For individual, and standard and general permits issued pursuant to Chapters 40E-4 and 40E-40, F.A.C., a completed permit application shall also constitute an application for certification of compliance with state water quality standards where necessary pursuant to Section 401, Public Law 92-500, 33 USC Section 1341. Issuance of the permit shall constitute certification of compliance with state water quality standards unless the permit is issued pursuant to the net improvement provisions of subsection 373.414(1)(b), F.S., or the permit specifically states otherwise.

    (2) For projects located in or seaward of coastal counties, and which have regulated activities in, on or over wetlands or other surface waters, as delineated by the methodology ratified pursuant to Section 373.4211, F.S., a complete application for an individual, or standard or general environmental resource permit shall constitute a request for the sState’s concurrence that the project is consistent with the Florida Coastal Zone Management Program as provided in Section 307 of the Coastal Zone Management Act and 15 C.F.R. 930, Subpart D. Issuance of the permit shall constitute such concurrence of consistency.

    PROPOSED EFFECTIVE DATE: December 1, 2011

    Rulemaking Specific Authority 373.044, 373.113 FS. Law Implemented 373.413, 373.416, 373.421 FS. History–New 10-3-95, Amended 12-1-11.

     

    40E-4.305 Conceptual Approvals.

    (1) through (3) No change.

    (4) For phased projects, the approval process must begin with an application for a conceptual approval which shall be the first permit issued for the project. An application for construction authorization of the first phase(s) may also be included as a part of the initial application. As the permittee desires to construct additional phases, new applications shall be processed as individual, or standard or general environmental resource permit applications pursuant to the conceptual approval. The conceptual approval, individual, and standard and general permits shall be modified in accordance with conditions contained in Chapters 40E-4 and 40E-40, F.A.C.

    (5) through (10) No change.

    PROPOSED EFFECTIVE DATE: December 1, 2011

    Rulemaking Specific Authority 373.044, 373.113, 373.171, 380.06(9) FS. Law Implemented 373.413, 373.416, 373.421(2), 380.06(9) FS. History–New 10-3-95, Amended 4-14-03, 12-1-11.

     

    40E-4.321 Duration of Permits.

    (1) Unless revoked or otherwise modified the duration of an environmental resource permit issued under this chapter or Chapter 40E-40, F.A.C., is as follows:

    (a) For a conceptual approval, two years from the date of issuance or the date specified as a condition of the permit, unless within that period an application for an individual, or standard or general permit is filed for any portion of the project. If an application for an environmental resource permit is filed, then the conceptual approval remains valid until final action is taken on the environmental resource permit application. If the application is granted, then the conceptual approval is valid for an additional two years from the date of issuance of the permit. Conceptual approvals which have no individual, or standard or general environmental resource permit applications filed for a period of two years shall expire automatically at the end of the two-year period.

    (b) No change.

    1. through 4. No change.

    (c) For an individual, or standard or general environmental resource permit, the construction phase authorizing construction, removal, alteration or abandonment of a system shall expire five years from the date of issuance or such amount of time as made a condition of the permit.

    (d) For an individual, or standard or general environmental resource permit, the operational phase of the permit is perpetual for operation and maintenance.

    (e) No change.

    (2)(a) Unless prescribed by special permit condition, permits expire automatically according to the timeframes indicated in this rule. If application for extension is made by electronic mail at the District’s e-Permitting website or in writing pursuant to subsection (3), the permit shall remain in full force and effect until:

    1. The District Governing Board takes action on an application for extension of an individual permit, or

    2. Staff takes action on an application for extension of a standard general permit.

    (b) Installation of the project outfall structure shall not constitute a vesting of the permit.

    (3) through (4) No change.

    (5) Substantial modifications to individual, or standard or general environmental resource permits issued pursuant to a permit application extend the duration of the permit for three years from the date of issuance of the modification. Individual, or standard or general environmental resource permit modifications do not extend the duration of a conceptual approval.

    (6) No change.

    PROPOSED EFFECTIVE DATE: December 1, 2011

    Rulemaking Specific Authority 373.044, 373.113, 668.003, 668.004, 668.50 FS. Law Implemented 373.413, 373.416, 373.419, 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(4), Amended 7-1-86, 4-20-94, 10-3-95, 5-28-00, 10-1-06, 12-1-11.

     

    40E-4.331 Modification of Permits.

    An application for modification of an environmental resource, or surface water management permit shall be processed in accordance with this rule, unless the permit has expired or has been otherwise revoked or suspended.

    (1) No change.

    (2) Applications to modify environmental resource, or surface water management individual, or standard or general permits shall be made by the following methods:

    (a) through (b) No change.

    (c) Modifications pursuant to paragraph (2)(b) above are acknowledged and approved by letter from the Regulation Division Department Director or designee through correspondence to the permittee.

    (3) No change.

    PROPOSED EFFECTIVE DATE: December 1, 2011

    Rulemaking Specific Authority 373.044, 373.113 FS. Law Implemented 373.413, 373.416(1) FS. History–New 12-1-82, Formerly 16K-2.031(1), 16K-2.032(1)(a), Amended 7-1-86, 11-21-89, 4-20-94, 10-3-95, 12-1-11.

     

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

    (1) In order to convert an environmental resource or surface water management permit from the construction phase to the operational phase, the permittee shall submit the following:

    (a) A completed and executed 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. Form No. 0920, effective date December 2011, is incorporated by reference herein and available at no cost by contacting the South Florida Water Management District Clerk’s Office, 3301 Gun Club Road, West Palm Beach, FL 33406, 1(800)432-2045, ext. 6436 or (561)682-6436. in Rule 40E-1.659, F.A.C.;

    (b) A completed and executed Environmental Resource/Surface Water Management Permit Construction Completion Certification (Form No. 0881A or Environmental Resource/Surface Water Management Permit Construction Completion Certification – For Projects Permitted Prior to October 3, 1995 (Form No. 0881B), incorporated by reference in Rule 40E-1.659, F.A.C. in accordance with Section 10.0 of the “Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District,, incorporated by reference in paragraph Rule 40E-4.091(1)(a), F.A.C. Form No. 0881A and Form No. 0881B, both effective December 2011, are incorporated by reference herein and available at no cost by contacting the South Florida Water Management District Clerk’s Office, 3301 Gun Club Road, West Palm Beach, FL 33406, 1(800)432-2045, ext. 6436 or (561)682-6436; and

    (c) No change.

    (2)(a) through (2)(b)1. No change.

    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,, incorporated by reference in paragraph Rule 40E-4.091(1)(a), 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 or submit electronically at www.sfwmd.gov/ePermitting; 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,, incorporated by reference in paragraph Rule 40E-4.091(1)(a), 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.

    PROPOSED EFFECTIVE DATE: December 1, 2011

    Rulemaking 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, 7-22-07, 12-1-11.

     

    40E-4.381 General Conditions.

    (1) through (1)(b) No change.

    (c) Activities approved by this permit shall be conducted in a manner which does not cause violations of state water quality standards. The permittee shall implement best management practices for erosion and pollution control to prevent violation of state water quality standards. Temporary erosion control shall be implemented prior to and during construction, and permanent control measures shall be completed within 7 days of any construction activity. Turbidity barriers shall be installed and maintained at all locations where the possibility of transferring suspended solids into the receiving waterbody exists due to the permitted work. Turbidity barriers shall remain in place at all locations until construction is completed and soils are stabilized and vegetation has been established. All practices shall be in accordance with the guidelines and specifications described in Chapter 6 of the Florida Land Development Manual; A Guide to Sound Land and Water Management (Department of Environmental Regulation, 1988) incorporated by reference in Rule 40E-4.091, F.A.C., unless a project-specific erosion and sediment control plan is approved as part of the permit. Thereafter the permittee shall be responsible for the removal of the barriers. The permittee shall correct any erosion or shoaling that causes adverse impacts to the water resources.

    (d) The permittee shall notify the District of the anticipated construction start date within 30 days of the date that this permit is issued. At least 48 hours prior to commencement of activity authorized by this permit, the permittee shall submit to the District an Environmental Resource/Surface Water Management Permit Construction Commencement Notice (Form No. 0960), incorporated by reference in Rule 40E-1.659, F.A.C., indicating the actual start date and the expected completion date. Form No. 0960, effective date December 2011, is incorporated by reference herein and available at no cost by contacting the South Florida Water Management District Clerk’s Office, 3301 Gun Club Road, West Palm Beach, FL 33406, 1(800)432-2045, ext. 6436 or (561)682-6436.

    (e) When the duration of construction will exceed one year, the permittee shall submit construction status reports to the District on an annual basis utilizing the District’s Environmental Resource/Surface Water Management Permit Annual Status Report for Surface Water Management System Construction (Form No. 0961). incorporated by reference in Rule 40E-1.659, F.A.C. The Annual Status Report Forms shall be submitted the following June of each year. Form No. 0961, effective date December 2011, is incorporated by reference herein and available at no cost by contacting the South Florida Water Management District Clerk’s Office, 3301 Gun Club Road, West Palm Beach, FL 33406, 1(800)432-2045, ext. 6436 or (561)682-6436.

    (f) Within thirty days after completion of construction of the permitted activity, the permittee shall submit a written statement of completion and certification by a professional engineer or other individual authorized by law, utilizing the supplied Environmental Resource/Surface Water Management Permit Construction Completion Certification (Form No. 0881A), or Environmental Resource/Surface Water Management Permit Construction Completion Certification – For Projects Permitted Prior to October 3, 1995 (Form No. 0881B), September 2003, incorporated by reference in paragraph 40E-4.361(1)(b), F.A.C., Rule 40E-1.659, F.A.C. The statement of completion and certification shall be based on on-site observation of construction or review of as-built drawings for the purpose of determining if the work was completed in compliance with permitted plans and specifications. This submittal shall serve to notify the District that the system is ready for inspection. Additionally, if deviation from the approved drawings are discovered during the certification process, the certification must be accompanied by a copy of the approved permit drawings with deviations noted. Both the original and revised specifications must be clearly shown. The plans must be clearly labeled as “as-built” or “record” drawings. All surveyed dimensions and elevations shall be certified by a registered surveyor.

    (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 paragraph Rule 40E-4.091(1)(a), F.A.C., accepts responsibility for operation and maintenance of the system. Form No. 0920, effective date December 2011, is incorporated by reference herein and available at no cost by contacting the South Florida Water Management District Clerk’s Office, 3301 Gun Club Road, West Palm Beach, FL 33406, 1(800)432-2045, ext. 6436 or (561)682-6436.

    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) through (i) No change.

    (j) Should any other regulatory agency require changes to the permitted system, the permittee shall notify the District by electronic mail at the District’s e-Permitting website or in writing of the changes prior to implementation so that a determination can be made whether a permit modification is required.

    (k) through (l) No change.

    (m) The permittee must obtain a water use permit prior to construction dewatering, unless the work qualifies for a general permit pursuant to subsection 40E-20.302(3)(4), F.A.C., also known as the “No Notice” rule.

    (n) through (q) No change.

    (r) If historical or archaeological artifacts are discovered at any time on the project site, the permittee, or other designee, should contact shall immediately notify the Florida Department of State, Division of Historical Resources, Review and Compliance Section at (850)245-6333 or 1(800)847-7278, as well as the appropriate District Service Center. The phone numbers and addresses for the District’s Service Centers are located online at www.sfwmd.gov, “Locations.”

    (s) No change.

    (2) In addition to those general conditions set forth in subsection (1), the District Governing Board shall impose on any permit granted under this chapter and Chapter 40E-40, F.A.C., such reasonable project-specific special conditions as are necessary to ensure that the permitted system will meet the conditions for issuance in Rules 40E-4.301 and 40E-4.302, F.A.C. Upon receipt of notice of proposed agency action, any substantially affected persons shall have the right to request a hearing in accordance with Rules 40E-1.511 and 40E-1.521, F.A.C.

    PROPOSED EFFECTIVE DATE: December 1, 2011

    Rulemaking 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, 7-22-07, 12-1-11.

     

    NAME OF PERSON ORIGINATING PROPOSED RULE: Anita R. Bain, Environmental Resource Permitting Division Director

    NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: South Florida Water Management District Governing Board

    DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 9, 2010

    DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: September 24, 2010

Document Information

Comments Open:
9/9/2011
Summary:
In compliance with Section 120.74, F.S., the proposed rule amendments update the District’s rules to be consistent with statutes, correct errors and eliminate outdated language.
Purpose:
The proposed rule amendments were identified for correction/updating in accordance with Section 120.74, F.S. The amendments are as follows: 1) delete “general” from standard permits pursuant to Section 373.118, F.S.; 2) update rules to be consistent with amendment to Section 373.083, F.S.; 3) update the District’s ePermitting website and delete outdated navigation instructions; 4) specify paragraph in which Basis of Review is incorporated; 5) specify statute describing private docks; 6) delete ...
Rulemaking Authority:
120.53(1), 373.016, 373.044, 373.103(8), 373.113, 373.118, 373.171, 373.406(5), 373.413, 373.414(9), 373.414(17), 373.441, 380.06(9), 668.003, 668.004, 668.50 FS.
Law:
373.016, 373.019, 373.042, 373.044, 373.086(1), 373.103, 373.103(1), 373.103(4), 373.113, 373.116, 373.117, 373.118, 373.118(1), 373.229, 373.403-.443, 380.06, 380.23, 403.031, 403.201, 403.813(2), 668.003, 668.004, 668.50, 704.06 FS.
Contact:
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 (561)682-6866, email: abain@sfwmd.gov. 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 (561)682-6299, email: jsluth@sfwmd.gov
Related Rules: (15)
40E-4.011. Policy and Purpose
40E-4.021. Definitions
40E-4.041. Permits Required
40E-4.0415. Permit Thresholds
40E-4.042. Formal Determination of Wetlands and Other Surface Waters
More ...