The Suwannee River Water Management District (District) gives notice that it is initiating rulemaking to amend rules contained in Chapter 40B-9, F.A.C., for the purpose of removing unnecessary language and adding clarifying language. The effect will ...

 

WATER MANAGEMENT DISTRICTS

Suwannee River Water Management District

RULE NOS.:RULE TITLES:

40B-9.021Definitions

40B-9.041Acquisition Procedures - Negotiations

40B-9.126Access to District Lands

40B-9.131Public Use of District Lands

40B-9.1381Prohibited Activities

40B-9.1411Special Use Authorizations

40B-9.142Easements

40B-9.145Leases

PURPOSE AND EFFECT: The Suwannee River Water Management District (District) gives notice that it is initiating rulemaking to amend rules contained in Chapter 40B-9, F.A.C., for the purpose of removing unnecessary language and adding clarifying language. The effect will be more streamlined rules that are more understandable by the regulated public.

SUMMARY: Removing unused definitions; compiling definitions into one rule; clarifying and removing the requirement for professional engineering or geologic services in the due diligence process for negotiated land acquisitions; removing references to Public Use Guide; addressing public safety and privacy by clarifying allowable and prohibited activities on District lands; and revising rule language to reflect changes to District organization and procedures.

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 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.

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, 373.083, 373.139, 373.1391 FS.

LAW IMPLEMENTED: 259.01, 373.013, 373.056, 373.085, 373.088, 373.093, 373.096, 373.099, 373.103, 373.139, 373.59, 373.1359, 373.1391, 373.1401 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: William McKinstry, Land and Facilities Operations Manager, Suwannee River Water Management District, 9225 CR 49, Live Oak, Florida 32060, [phone] or 1(800)226-1066 (FL only)

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

40B-9.021 Definitions.

When used in this part, the term:

(1) “Access” means a point where the public can enter District lands by foot, horseback or non-motorized vehicles. Acquisition plan” means the work plan adopted by the Governing Board that describes the District’s land acquisition strategies.

(2) “Aircraft” means any vehicle supported for flight in the air by buoyancy or by the dynamic action of air on its surfaces, including powered airplanes, gliders, helicopters, or unmanned aerial vehicles.

(3) “Boating” includes the use of any type of motorized or non-motorized vessel on water.

(4) “Camping” means to use a vehicle, tent, or other shelter, and/or to arrange bedding with the intent to stay overnight.

(5) “Commercial activity” means the sale or leasing, or offering for sale or lease, for profit any merchandise or service associated with the use of District lands including, but not limited to, providing guide services, vehicles or animals on District lands.

(6)(2) “Conservation easement” means a right of interest in real property which is appropriate to retaining land or water areas predominantly in their natural, scenic, open, agricultural, or wooded condition. A conservation easement restricts the underlying fee owner’s use of the property consistent with the purpose of the easement. Conservation easements are perpetual, undivided interests in property that run with the land. District conservation easements are governed by Section 704.06, F.S.

(7) “Daytime Hours” means one and one-half hour before sunrise to one and one-half hour after sunset.

(8)(3) “Department” means the Florida Department of Environmental Protection or its successor agency or agencies.

(9)(4) “District” means the Suwannee River Water Management District.

(10)(5) “District lands” or “District real property” means any fee simple interest or other interests in real property titled to the District.

(11)(6) “District lease” means the granting of either an exclusive or non-exclusive use of or interest in District real property for a specified period of time.

(12) “Entrance” means a designated location or boundary where public motorized vehicle access to District lands is authorized.

(13) “Facility” or “Structure” means any object placed on District lands intended to be permanently attached to the land, or which would be considered a fixture under Florida Law.

(14) “Firearms and similar devices” means shotguns, rifles, muzzle loading guns, pistols, revolvers, air guns, gas guns, blow guns, bows, crossbows, spear guns, or any other device capable of mechanically propelling an arrow, spear, or other projectile.

(7) “Funding program” means the program established pursuant to Section 259.105, F.S., the Florida Forever Act.

(15)(8) “Governing Board” means the Governing Board of the Suwannee River Water Management District.

(16) “Historic resource” means any prehistoric or historic district, site, building, object, or other real or personal property of historical, architectural, or archaeological value, or folklife resources. These properties or resources may include, but are not limited to, monuments, memorials, Indian habitations, ceremonial sites, abandoned settlements, sunken or abandoned ships, engineering works, treasure trove, artifacts, or other objects with intrinsic historic or archaeological value, or any part thereof, relating to history, government, and culture of the state.

(17)(9) “Management plan” means the District Land Management Plan adopted by the Governing Board that details the District’s land management activities or other property specific land management plan adopted by the Governing Board.

(18) “Mobility-impaired person” means a person who is permanently physically disabled by being either paraplegic, hemiplegic, or quadriplegic, permanently dependent upon a wheelchair for ambulation or permanently required to use assisting aids to walk, or having had a complete single-leg amputation above the knee.

(19) “Motorized vehicle” means any vehicle which travels over land on wheels and is partially or completely powered by a motor, as well as animal-drawn carriages and buggies.

(20) “Paintball equipment” means paint balls, paintball guns, refillable gas tanks, paintball gun propellant canisters, paintball targets, and any other device associated with paintball activities.

(10) “Project” means a parcel or parcels of land in a discrete unit of purchase.

(21) “Public road” means any road, path, land, or trail designated by name, number or map for public motorized vehicle access.

(11) “Public Use Guide” is a District publication approved by the Governing Board that specifies the authorized public uses of District lands and the conditions applicable to those uses.

(22) “Resource-based recreational purpose” means any outdoor activity that depends on natural resources and includes, but is not limited to, fishing, hunting, horseback riding, bicycling, swimming, camping, hiking, boating, diving, wildlife viewing and other passive recreation.

(23) “Secondary road” means any road, path, land, or trail designated by name, number or map for public motorized vehicle access. Secondary road conditions may require four-wheel drive vehicles, all-wheel drive vehicles or other vehicles as set forth in Rule 40B-9.131, F.A.C.

(12) “Secretary” means the Secretary of the Florida Department of Environmental Protection or its successor agency or agencies.

(24) “Special Use Authorization” means the granting of a privilege to use District lands for specified purposes and does not confer any property or possessory interest to the holder.

(13) “Surplus lands” means those District-owned parcels that do not and are not expected to contribute significantly to the achievement of the District’s acquisition objectives including the protection or enhancement of water resource benefits and effective and efficient land management.

(25) “Survey” means a certified survey signed by a licensed land surveyor authorized to practice surveying in the State of Florida.

(26) “Surveillance Camera” means any device or hardware placed on District lands that takes photographs or videos while unattended or overnight.

Rulemaking Authority 373.044, 373.083, 373.139 FS. Law Implemented 259.01, 373.103, 373.139, 373.59 FS. History–New 3-1-83, Amended 4-1-93, 5-31-09, 7-21-10,_____.

 

40B-9.041 Acquisition Procedures – Negotiations.

(1) through (2) No change.

(3) Following Governing Board approval of a property for state priority funding, the following due diligence must be completed prior to a contract for sale:

(a) Evidence of good and sufficient fee title to the property in the seller must be provided by the seller to the District.

(b) The property owner must provide access to the District and its agents as needed to obtain appraisals an appraisal as required under Section 373.139(3)(c), F.S., which include an Environmental Site Assessment and baseline inventory reporting and a Phase I environmental site assessment that addresses the federal Environmental Protection Agency standards in CFR Part 312, the state Department of Environmental Protection standards. The appraisal must be performed by a qualified appraiser who is registered, licensed, or certified under Part II, Chapter 475, F.S. The Phase I environmental site assessment must be performed by a professional engineer, professional geologist or other professional certified in environmental assessment as the District deems appropriate.

(4) through (5)  No change

Rulemaking Authority 373.044, 373.083, 373.139 FS. Law Implemented 373.013, 373.139, 373.59 FS. History–New 3-1-83, Amended 5-26-88, 5-31-09,_____.

 

40B-9.126 Access to District Lands.

(1) District lands shall be open to the public during daytime hours only (one and one-half hour before sunrise to one and one-half hour after sunset) unless otherwise posted or authorized.

(2) through (3) No change

Rulemaking Authority 373.044, 373.083, 373.1391 FS. Law Implemented 373.056, 373.096, 373.099, 373.1391, 373.1401 FS. History–New 5-31-09, Amended_____.

 

40B-9.131 Public Use of District Lands.

(1) The District shall publish and make available to the public a “Public Use Guide” dated July 14, 2009, which summarizes allowed activities and use restrictions for each District property or land. The District’s Public Use Guide is hereby incorporated by reference. Copies of the District’s Public Use Guide may be obtained at the District’s headquarters and at the District’s website: www.srwmd.state.fl.us.

(1)(2) Activities not authorized in this section, in the Public Use Guide, posted on the Land or specifically authorized under a Special Use Authorization or otherwise in writing by the District are expressly prohibited and subject to prosecution. Compliance with these rules does not preclude the need to also comply with State law and/or other applicable state and federal rules.

(2)(3) The following activities are allowed, subject to the any conditions, and/or restrictions, and/or site conditions specified herein:

(a) through (j) No change.

(k) Motorized vehicle use is allowed on District lands on public use and secondary seasonal roads, and in other areas designated by signage. Public and secondary road access is dependent on site conditions or management activities. Details concerning road availability for public use may be obtained at the District’s headquarters and on the District’s website: www.srwmd.state.fl.us. The use of motorized vehicles on District lands is subject to the following requirements:

1. All motorized vehicles must be licensed for use on Florida highways.

2. All motorized vehicle operators must be licensed as required by Florida law.

3. All motorized vehicle operators must comply with posted speed limits. If no speed limit is posted, the speed limit is 20 mph.

4. Under Section 316.192, F.S., driving a motorized vehicle in a willful and wanton disregard for the safety of persons or property is considered reckless driving. Pursuant to Section 316.1925, F.S., any person who drives a motorized vehicle shall drive in a careful and prudent manner, having regard for the width, grade, curves, corners, traffic and all other attendant circumstances, so as not to endanger the life, limb or property of any person. Failure to drive in such a manner is punishable under Section 316.655, F.S.

5. Emergency motorized vehicles on District lands are not restricted to roads open to the public or to the 20 mph or other posted speed limits.

(l) through (n) No change.

Rulemaking Authority 373.044, 373.083, 373.1391 FS. Law Implemented 373.056, 373.093, 373.096, 373.099, 373.1391, 373.1401 FS. History–New 4-1-93, Amended 5-31-09, 7-21-10,_____.

 

40B-9.1381 Prohibited Activities.

The following activities are prohibited on District lands to the extent specified herein unless specifically authorized by the written terms of a Governing Board approved agreement or lease with any governmental entity or public or private utility or as part of a land management operation conducted by the District:

(1) Hunting or trapping animals, and releasing free-running dogs on District lands is prohibited except as provided in paragraph 40B-9.131(2)(j)(3)(h), F.A.C., above.

(2) through (5) No change.

(6) The introduction or release of any seed, plant or animal on District lands not initiated by District-approved land management activities is prohibited.

(7) through (12) No change.

(13) The use of archery equipment, animal traps, or other similar devices on District lands is prohibited unless specifically authorized for:

(a) Hunting activities as authorized under paragraph 40B-9.131(2)(3)(j), F.A.C., above;

(b) District initiated land management activities; or

(c) A use specifically authorized by the District through a Special Use Authorization issued under Rule 40B-9.1411, F.A.C.

(14) The use of paintball guns, paintball markers, and any other paintball equipment, or airsoft guns on District lands is prohibited.

(15) through (19) No change

(20) The placement or use of surveillance cameras on District lands is prohibited unless initiated by District approved land management activities, unless specifically authorized through a Special Use Authorization issued under Rule 40B-9.1411, F.A.C., or unless associated with approved hunts managed by Florida Fish and Wildlife Conservation Commission (FWC).Cameras can be placed on District lands 30 days before an approved FWC hunt and must removed on the last day of the approved FWC hunt. Any other surveillance cameras found on District lands in violation of this rule will be confiscated.

Rulemaking Authority 373.044, 373.083, 373.1391 FS. Law Implemented 373.056, 373.096, 373.099, 373.1391, 373.1401 FS. History–New 5-31-09, Amended 7-21-10, 4-26-12,_____

 

40B-9.1411 Special Use Authorizations.

(1) Persons may apply for Special Use Authorizations for public uses of District lands not specifically authorized in Part II of this chapter, the District’s Public Use Guide, and Rule 40B-9.131, F.A.C., provided the impacts from the requested use are consistent with the District’s Land Management Plan, and other applicable District policies. If the application is approved, a Special Use Authorization will be issued specifying the terms of the Authorization. If the application is denied, the applicant may appear before the District’s Governing Board at a regularly scheduled meeting.

(2) No change.

(3) To receive a Special Use Authorization, the applicant must provide reasonable assurance that the requested use:

(a) Is natural resource-based;

(b) Will not permanently alter District lands;

(c) Is consistent with the management of the District lands involved;

(d) Will not harm the environmental or historical resources of the District lands;

(e) Will not cause unreasonable expense to the District;

(f) Will not create a substantial risk of liability to the District;

(g) Will not harm any dam, impoundment, works, water control structures, roads, or District owned facilities or equipment;

(h) Will not interfere with District leased, licensed, or authorized uses of the land; and

(i) Will not interfere with any other use allowed by Part II of this chapter; or.

(j) Is for a mobility-impaired person.

The District shall impose upon any Special Use Authorization issued pursuant to this chapter such reasonable conditions as are necessary to assure that the use or activity authorized will meet the criteria set forth in this chapter.

(4) The Governing Board hereby delegates to the Executive Director or such District staff member as designated by the Executive Director, Deputy Executive Director and Senior Land Resources Manager, the authority to issue, deny or revoke Special Use Authorizations pursuant to this section.

(5) Any person may apply for a Special Use Authorization according to the following procedure:

(a) Submit an oral or written request addressing the reasonable assurances required by this section to Suwannee River Water Management District Land Acquisition and Management Department at [phone] or 1(800) 226-1066 (Florida only) or 9225 County Road 49, Live Oak, FL 32060, or complete a pre-approved authorization obtained from a District kiosk on the property.

(b) If the requested use will create a substantial risk of liability to the District, the applicant may mitigate by:

1. Providing proof of liability and property damage insurance naming the District as an additional insured party in an amount sufficient to cover the cost of the liability posed to the District; or

2. Providing waivers or releases of liability sufficient to eliminate the liability posed to the District.

(c) The application shall be reviewed by District staff the Land Acquisition and Management Department for compliance with the criteria listed in this section and a recommendation regarding the application forwarded to the Deputy Executive Director.

(d) If the requested use satisfies all of the criteria set forth in this section, authorized District staff shall issue the Special Use Authorization.

(e) If the requested use does not meet the criteria set forth in this section, authorized District staff shall deny the Special Use Authorization application.

(6) No change

Rulemaking Authority 373.044, 373.083, 373.1391 FS. Law Implemented 373.056, 373.096, 373.099, 373.1359, 373.1391, 373.1401 FS. History–New 5-31-09, Amended_____.

 

40B-9.142 Easements.

(1) through (2) No change

(3) Easements must be approved and executed by the Governing Board. The conveyance of any easement by the District shall require payment by the applicant of the fair market value as determined by any of the following:

(a) A real estate appraisal performed by a licensed real estate appraiser or by the District’s Staff Appraiser, or the fee value for bare land as documented in an acquisition appraisal and adjusted by an appropriate market index for the period since the District’s acquisition; and

(b) Payment of any reasonable administrative, survey, and legal costs.

Rulemaking Authority 373.044, 373.083, 373.1391 FS. Law Implemented 373.056, 373.085, 373.088, 373.093, 373.099, 373.1391, 373.1401 FS. History–New 5-31-09, Amended _______.

 

40B-9.145 Leases.

(1) No change

(2) A person may request to lease District land by contacting the Suwannee River Water Management District, Land Acquisition and Management Department at [phone] or 1(800) 226-1066 (Florida only) or 9225 County Road 49, Live Oak, FL 32060.

(3) through (4) No change.

Rulemaking Authority 373.044, 373.083, 373.1391 FS. Law Implemented 373.056, 373.085, 373.096, 373.099, 373.1391, 373.1401 FS. History–New 5-31-09, Amended_______.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: William McKinstry

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Suwannee River Water Management District Governing Board

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 11, 2016

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: October 28, 2016