The purpose of this rulemaking effort is to revise the District’s procedures for providing notice of the receipt of applications for water use and environmental resource permits, and notice of agency action concerning such permit applications. The ...

WATER MANAGEMENT DISTRICTS
Southwest Florida Water Management District

RULE NO: RULE TITLE
40D-1.1010: Point of Entry into Proceedings
40D-1.1024: Processing Procedures for Noticed General Permits Under Chapter 40D-400, F.A.C
40D-1.603: Permit Application Procedures
PURPOSE AND EFFECT: The purpose of this rulemaking effort is to revise the District’s procedures for providing notice of the receipt of applications for water use and environmental resource permits, and notice of agency action concerning such permit applications. The effect will be to make greater use of internet noticing of these activities, require applicants to undertake some of the noticing requirements in specific situations and to eliminate certain noticing practices not required by statute.
SUMMARY: District rules concerning permit application noticing and agency action noticing have remained largely unchanged since their inception in the 1980’s. Current noticing rules do not reflect technological advances in disseminating public information, such as the internet and electronic mail. Special noticing practices have also evolved over the years, which are not required by statute and which can now be accomplished more efficiently through the District’s website. Amendments to Rule 40D-1.603, F.A.C., will require applicants for individual water use and environmental resource permits to publish notice of the District’s receipt of application and notice of agency action concerning such applications. Applications for general permits will be noticed on the District’s website. Amendments will allow persons wishing to be notified of District receipt of applications for designated areas or of agency action on specific permits to submit such requests through email, and receive such notices by email. A subscription fee is established for those persons wishing to receive notices of permit applications by regular mail. Amendments eliminate the requirement to publish or send unrequested notices of agency action on water use permits to potentially affected property owners. Amendments to Rule 40D-1.1010, F.A.C., clarify that for water use and environmental resource permits and petitions for formal determination of wetlands or other surface waters, the District shall require an applicant to publish, or inform an applicant of its right to publish, notice of agency action on the application in a newspaper. Applicants for individual permits and other applicants required to publish notice of application will be required to publish notice of agency action. Amendments also clarify the meaning of “receipt of written notice” when notices are sent by email, the required content of published notices, and the time in which to file a petition for administrative hearing concerning consolidated applications for environmental resource permits and use of sovereignty state lands. Minor clarifying amendments are also proposed for Rule 40D-1.1024, F.A.C., which concerns processing procedures for noticed general environmental resource permits. Permit noticing rules contained in Chapters 40D-2, 40D-4, 40D-40, F.A.C., and the District’s Water Use Permit Information Manual Part B, Basis of Review are also being amended as part of this rulemaking package.
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: 120.54(5), 373.044, 373.113, 373.118, 373.414 FS.
LAW IMPLEMENTED: 120.54(5), 120.60, 120.60(4), 253.115, 373.116, 373.118, 373.216, 373.219, 373.229, 373.308, 373.309, 373.323, 373.413, 373.4136, 373.414, 373.416, 373.418, 373.421, 373.426, 373.427 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Martha A. Moore, Senior Attorney, Office of General Counsel, 2379 Broad Street, Brooksville, FL 34604-6899, [phone], extension 4651

THE FULL TEXT OF THE PROPOSED RULE IS:

40D-1.603 Permit Application Procedures.

(1) No change.

(2) No later than 30 days after submittal receipt of an initial application or an application for modification of an individual surface water management permit, an individual Environmental Resource Permit or an initial application or application for renewal or modification of an individual water use permit for annual average withdrawals of 500,000 gpd annual average daily or greater pursuant to Chapter 40D-2, F.A.C., the applicant District shall publish at the applicant’s expense a notice of the District’s receipt of the application thereof in a newspaper having general circulation as defined in Chapter 50, F.S., in the county or counties in which the activity is proposed. No later than 30 days after Upon receipt of an application for an initial or modification of a general surface water management permit or Environmental Resource Permit pursuant to Chapter 40D-40, F.A.C., a general surface water management permit pursuant to Chapter 40D-40, F.A.C., (January 11, 1993) or a noticed general surface water management Environmental Resource Ppermit pursuant to Chapter 40D-400, F.A.C., or for an initial application or application for renewal or modification of a general water use permit for annual average withdrawals of less than 500,000 gpd annual average daily pursuant to Chapter 40D-2, F.A.C., the District shall post notice thereof on the District’s website at www.watermatters.org. in the District’s headquarters and in each of the District’s service offices. In the event that after posting of notice an application for a general permit is modified such that it is an application for an individual permit, notice of the application shall be published by the applicant in a newspaper as provided herein above.

(3) Persons who wish to be notified in writing or by electronic mail of receipt of permit applications affecting a particular geographic area shall notify the District in writing or by electronic mail, and shall specify their area of interest by county or by section, township and range. Persons may request to be notified by regular U.S. mail or by electronic mail. In addition, Tthe District shall, within 30 days of receipt of an application, provide by regular or electronic mail as requested, a letter giving notice of receipt of the application to any person who has filed a written or electronic mail request within the immediately preceding six months for notification of any pending applications affecting the particular designated area in which the activity is proposed. Persons electing to receive mailed notices of application shall be assessed a subscription fee to cover duplication and mailing costs as provided in subsection (14) below. Requests for notification of receipt of applications shall expire after six months and may be renewed.

(4) Each notice of receipt of application and letter shall state where that interested persons may shall have the opportunity to inspect a copy of the application and that submit written comments or objections concerning the application may be filed with the District. Comments or objections must be received within 14 days of the date of the notice in order to be considered by the District. The District may request persons submitting objections or comments to furnish additional information. Upon request, the District will provide the applicant with a copy of all objections and comments received. Submittal of comments or objections concerning a permit application does not constitute a petition for administrative hearing pursuant to Chapter 120, F.S.

(5) In addition, Eeach notice of application receipt shall further and letter will advise that if notice of agency action or opportunity to request an administrative hearing pursuant to Chapter 120, F.S., regarding a permit application is desired, a written or electronic mail request referencing the permit application number must be filed with and received by the Agency Clerk of the District at the District’s Brooksville address by the date specified in the letter, newspaper notice or the posted notice as applicable pursuant to this subsection. The date specified in such notice or letter to obtain notice of agency action or to request a hearing shall be no less than 14 days from the date of mailing, publication or posting, as applicable. Upon request, the District will provide the applicant with a copy of all objections and comments received.

(6)(3) Publication or posting of the notice of application pursuant to subsection (2) shall constitute constructive notice of the permit application to all substantially affected persons. Notices of aAgency aAction will be issued mailed only to applicants and persons who have filed such requests.

(7)(4) When information submitted to the District incorporates or results in a material change to the proposed activity for which the applicant seeks a permit, the District shall notify the applicant that the application is deemed to be amended, the proposal contained in the original application is deemed withdrawn and the 30 and 90 day time requirements provided in Section 120.60(1), F.S., shall restart. For purposes of this subsection (7)(4), the term “material change” shall mean information which is reasonably expected to lead to a different agency action on the application or an impact or design specification that is different in degree or kind than previously proposed.

(8)(5) Only one application shall be filed for a permit required under the Part II of Chapter 373, F.S., and District rules Chapter 40D-2, F.A.C., for an activity on or involving the same property and project, including initial permit applications as well as applications for modification of a permit, at any time prior to final action on the application first received by the District. If the District determines that more than one application has been so filed, the District will notify the applicant that the most recent application is deemed an amendment of the pending application, and if the amendment constitutes a material change, the application will be processed in accordance with subsection (7)(4) above.

(6) Notwithstanding the provisions of subsections (2) and (3) above, the District will provide notice of its agency action on water use permit applications to potentially affected property owners, as determined pursuant to paragraph 40D-2.101(3)(c), F.A.C. If the number of potentially affected property owners is less than 500, the District will provide notice of its decision by regular U.S. mail. If the number of potentially affected property owners equals or exceeds 500, the District will publish notice of its decision in a newspaper of general circulation as set forth in Chapter 50, F.S., in the county or counties where the withdrawal is proposed.

(9)(7) In addition to, and concurrent with the noticing required pursuant to subsection (2), when the applicant is an entity with the power of eminent domain that does not have current ownership or control of the entire project area described in the application, the applicant District shall provide the property owner(s) identified in the application:

(a) through (b) No change.

(10)(8) No change.

(11) Published notices of receipt of an application for a surface water management permit or Environmental Resource Permit shall contain information and be in a format substantially as follows:

Notice is hereby given that the Southwest Florida Water Management District has received [surface water or Environmental Resource] permit application number [application number] from [name and address of applicant]. Application received: [date]. Proposed activity: [specify commercial, industrial, residential or other development]. Project name: [name or description of project]. Project size: [specify acres] Location: Section(s) [specify] Township [specify] East, Range [specify] South, in [specify] County. Outstanding Florida Water: [yes or no]. Aquatic preserve: [yes or no]. The application is available for public inspection Monday through Friday at [specify District office and address]. Interested persons may inspect a copy of the application and submit written comments concerning the application. Comments must include the permit application number and be received within 14 days from the date of this notice. If you wish to be notified of agency action or an opportunity to request an administrative hearing regarding the application, you must send a written request referencing the permit application number to the Southwest Florida Water Management District, Regulation Performance Management Department, 2379 Broad Street, Brooksville, FL 34606-6899 or submit your request through the District’s website at www.watermatters.org. The District does not discriminate based on disability. Anyone requiring accommodation under the ADA should contact the Regulation Performance Management Department at [phone] or 1(800)423-1476: TDD only 1(800)231-6103.

(12) Published notices of receipt of an application for a water use permit shall contain information and be in a format substantially as follows:

Notice is hereby given that the Southwest Florida Water Management District has received an application for a water use permit to withdraw water from wells and/or surface waters from [applicant name and address]. Application number: [insert application number]. Application received: [date]. Predominant use type(s): [specify public supply, recreation/aesthetic, commercial, agricultural, mining/dewatering]. Total requested withdrawal average daily gallons per day: [specify]. Peak month average gallons per day: [specify]. Maximum daily gallons per day: [specify]. From [number of] [wells or other withdrawal points]. Location: Section(s) [specify] Township [specify] East, Range [specify] South, in [specify] County. The application is available for public inspection Monday through Friday at [specify District service office and address]. Interested persons may inspect a copy of the application and submit written comments concerning the application. Comments must include the permit application number and be received within 14 days from the date of this notice. If you wish to be notified of agency action or an opportunity to request an administrative hearing regarding the application, you must send a written request referencing the permit application number to the Southwest Florida Water Management District, Regulation Performance Management Department, 2379 Broad Street, Brooksville, FL 34606-6899 or submit your request through the District’s website at www.watermatters.org. The District does not discriminate based on disability. Anyone requiring accommodation under the ADA should contact the Regulation Performance Management Department at [phone] or 1(800)423-1476: TDD only 1(800)231-6103.

(13) Applicants required to publish notice of application receipt must provide to the District a publisher’s affidavit establishing proof of publication pursuant to Sections 50.041 and 50.051, F.S., before the application will be considered complete and the 90-day timeframe for taking agency action on the application will commence.

(14)(a) A pre-paid subscription fee shall be assessed for processing requests to receive notices of District receipt of permit applications sent by regular U.S. mail to cover costs of duplication and mailing. Subscription fees for a maximum term of up to six months duration are as follows:

1. $10.00 per designated section, township and range;

2. $50.00 per designated county; or

3. $5.00 per designated application.

(b) Duplication costs equal to those allowable for producing copies of public records pursuant to Section 119.07, F.S., and actual postage costs shall be assessed against the subscription fee until the pre-paid fee is exhausted. Persons who have pre-paid the subscription fee will be notified when their subscription fee balance has been exhausted, and no further notices will be sent until additional subscription fees are paid pursuant to this subsection. Persons having pre-paid subscription fees remaining at the expiration or cancellation of a subscription term may request that the fees be refunded or applied toward another subscription or subscription term.

Specific Authority 373.044, 373.113, 373.118 FS. Law Implemented 120.60(4), 373.116, 373.118, 373.229, 373.413 FS. History–New 10-1-84, Amended 5-10-88, 12-22-94, 10-19-95, 3-31-96, 12-16-97, 7-2-98, 7-22-99, 11-8-00, 9-26-02, 12-24-07, 4-7-08,_________.

 

40D-1.1010 Point of Entry into Proceedings.

(1) For all District permitting decisions under Part II and Part IV of Chapter 373, F.S., and decisions on petitions for formal determination of wetlands or other surface waters, the District shall require an applicant to publish, or inform an a permit applicant that the applicant has the right to publish, written notice of a District decision in a newspaper of general circulation as set forth in Chapter 50, F.S., in the county or counties where the activity is proposed.

(2)(a) “Written notice” as set forth in Rule 28-106.111, F.A.C., means either receipt of actual written notice that the District has taken or intends to take final agency action, or publication of notice that the District has taken or intends to take final agency action. If the District’s Governing Board takes action which materially differs from a written notice of the District’s intended action, persons who may be substantially affected shall have an additional 21 days, or for a notice of consolidated intent an additional 14 days, from the date of receipt or publication of notice of such action to request an administrative hearing. Such requests for an administrative hearing shall only address those aspects of the agency action which differ from the proposed agency action.

(b) Receipt of written notice of a District decision shall be deemed to be either the fifth day after the date on which the written notice is deposited in the United States mail if actual notice is mailed, the date that the notice is sent if actual notice is issued by electronic mail, or the date that notice is published if actual notice is not issued mailed to the persons who may be substantially affected. If the date of publication of a notice of District decision precedes the date that actual notice is received, the applicable 21-day or 14-day period in which to request an administrative hearing will be determined from the date that notice of District decision was published.

(3) When publication is made or of the written notice is issued of a District decision on a permitting matter, the notice shall contain as a minimum;

(a) through (b) No change.

(c) Statement of the District’s intended action and basis for the issuance or denial except when issuance is a ministerial act;

(d) No change.

(e) Notification of administrative hearing opportunity or right to judicial review, the procedures which must be followed and applicable time limits; and

(f) No change.

(4) When an permit applicant publishes written notice of a District decision, the applicant shall provide an affidavit of publication to the District within 14 days of publication.

(5) For notices of agency action on a consolidated application for an Environmental Resource Permit and Use of Sovereignty Submerged Lands concurrently reviewed by the District pursuant to Section 373.427, F.S., any petition for an administrative hearing pursuant to Sections 120.569 and 120.57, F.S., must be filed within 14 days of receipt of written notice of consolidated intent to issue or deny a permit.

(6) Applicants for individual permits and all other applicants required to publish notice of application receipt pursuant to Rule 40D-1.603, F.A.C., shall be required to publish at their expense written notice of a District decision on the application. The applicant shall cause the notice to be published as soon as possible after notification by the District of its intended action.

Specific Authority 120.54(5), 373.044, 373.113 FS. Law Implemented 120.54(5), 120.60, 253.115, 373.216, 373.219, 373.308, 373.309, 373.323, 373.413, 373.4136, 373.414, 373.416, 373.418, 373.421, 373.426, 373.427 FS. History–New 7-2-98, Amended_________.

 

40D-1.1024 Processing Procedures for Noticed General Permits Under Chapter 40D-400, F.A.C.

(1) through (2) No change.

(3) When the applicant is an entity with the power of eminent domain that does not have current ownership or control of the entire project area described in the application, within three days of District receipt of an application the applicant at the applicant’s expense District shall mail to the property owner(s) identified in the application a written notice of District receipt of the application in accordance with Rule subsection 40D-1.603(2), F.A.C. The owners of property, not owned by the applicant, identified in the application shall be those identified in the County Property Appraiser’s records within 30 days prior to the filing of the application.

(4) If the District determines that the system does not qualify for a noticed general permit, the District shall so notify the applicant by issuing mailing a notification within 30 days of receiving the application. For the purposes of this subsection, issuance mailing shall be deemed to occur either when the notice is properly addressed, stamped, and deposited in the United States mail, in which case and the postmark date shall be the date of issuance mailing, or the date the notice is sent by electronic mail. When the District notifies the applicant that the system does not qualify for a noticed general permit due to an error or omission in the original application to the District, the applicant shall have 60 days from the date of the notification to amend the application and submit additional information to correct such error or omission. If the applicant amends the application and submits additional information correcting the error or omission within the 60-day time limit, no additional application fee will be required for the noticed general permit. If the District does not issue mail the notice informing the applicant that the system does not qualify for a noticed general permit within 30 days of receipt of the original application, or amended application if an amended application is submitted, the applicant may conduct the activity authorized by the noticed general permit.

(5) through (8) No change.

Specific Authority 120.54(5), 373.044, 373.113, 373.118, 373.414 FS. Law Implemented 120.54(5), 373.118, 373.413, 373.414, 373.416, 373.426 FS. History–New 10-3-95, Amended 12-23-97, Formerly 40D-400.211, Amended 7-2-98,_______.

NAME OF PERSON ORIGINATING PROPOSED RULE: Martha A. Moore, Senior Attorney, Office of General Counsel, 2379 Broad Street, Brooksville, FL 34604-6899, [phone], extension 4651
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Southwest Florida Water Management District Governing Board
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: April 29, 2008
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: March 14, 2008