The purpose and effect will be to: (1) update the District Funds rule (in 40C-1.004); (2) update the delegation of sovereign submerged lands authority (in 40C-1.135); (3) update the permit fees rule (40C-1.603) by: (a) repealing subsection (9) which ...

 

WATER MANAGEMENT DISTRICTS

St. Johns River Water Management District

RULE NOS.:RULE TITLES:

40C-1.004District Funds

40C-1.1004Variances from Water Shortage Rules (Chapter 40C-21, F.A.C.)

40C-1.1005Time for Consideration of Emergency Petition for Variances

40C-1.1007Point of Entry Into Proceedings

40C-1.1008Timeframe for Providing Requested Information

40C-1.135Delegations of Authority

40C-1.603Permit Fees

40C-1.706Reservation of Rights

PURPOSE AND EFFECT: The purpose and effect will be to: (1) update the District Funds rule (in Rule 40C-1.004, F.A.C.); (2) update the delegation of sovereign submerged lands authority (in Rule 40C-1.135, F.A.C.); (3) update the permit fees rule (Rule 40C-1.603, F.A.C.) by: (a) repealing subsection (9) which references repealed chapter 40C-5, (b) amending existing subsection (17) to update the form for certain local governments to request a reduced application fee, and (c) amending existing subsection (18) to add the Marines to the listed U.S. Department of Defense entities; (4) repeal unnecessary rule on reserving rights for solicitations for professional services (in Rule 40C-1.706, F.A.C.); (5) update and clarify rule on variances from water shortage orders and emergency orders (in Rule 40C-1.1004, F.A.C.); (6) update rule on emergency petitions for variances (in Rule 40C-1.1005, F.A.C.); (7) update rule on point of entry to challenge a District decision (in Rule 40C-1.1007, F.A.C.); and (8) update delegation of staff authorized to extend the time for an applicant to respond to a request for additional information (in Rule 40C-1.1008, F.A.C.).

SUMMARY: Updating and clarifying several procedural rules and repealing one unnecessary rule

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 the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The District has completed for the Governor’s Office of Fiscal Accountability and Regulatory Reform (OFARR) the “Is a SERC Required?” form and prepared a summary of the proposed rule amendments, which are both available upon request. Based on the completed “Is a SERC Required?” form and summary and the analysis performed by the District in preparing and completing those documents, the proposed rule amendments are not expected to require legislative ratification pursuant to subsection 120.541(3), F.S.

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: 373.113, FS.

LAW IMPLEMENTED: 120.54(5), 120.542, 120.569, 120.60, 218.075, 373.016, 373.083(5), 373.103, 373.109, 373.113, 373.175, 373.246, 373.413, 373.4131, 373.553, FS.

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

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 48 hours before the workshop/meeting by contacting: Sandy Bertram, District Clerk, [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Tom Mayton, Sr. Assistant General Counsel, St. Johns River Water Management District, Office of General Counsel, 4049 Reid Street, Palatka, Florida 32177, [phone], or [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

40C-1.004 District Funds.

(1) District funds may be disbursed with the Governing Board’s approval by check bearing the signatures or facsimile signatures of the secretary-treasurer or assistant secretary-treasurer, and the chairman or vice chairman. All general and interfund checks issued shall be reported to the Governing Board at its next regular meeting.

(2) District funds may be disbursed, by wire or electronic transfer according to the procedure set forth in Policy 99-02, as revised 4-13-04, entitled “Wire or Electronic Transfer (W/EFT) Procedures,” which is hereby incorporated by reference. The Executive Director, or his or her designee, must authorize and supervise all such transfers.

Rulemaking Authority 120.53, 373.044, 373.113 FS. Law Implemented 120.53, 373.553 FS. History–New 10-8-91, Amended 3-1-92, 1-3-00, 4-13-04,           .

 

40C-1.135 Delegations of Authority.

(1) No change.

(2) The Board of Trustees of the Internal Improvement Trust Fund, pursuant to rule 18-21.0051, F.A.C., has delegated to the Governing Board the authority to review and take final agency action on certain applications to use sovereign submerged lands. Rrule 18-21.0051, F.A.C., also provides that the Governing Board may further delegate review and decision making authority to District staff. Therefore, the Governing Board delegates this authority to the Executive Director, or his or her designee, Director of the Division of Regulatory Services, Chief of the Bureau of Environmental Resource Regulation, and each Regulatory Coordinator, when an application to use sovereign submerged lands involves an activity which is reviewed pursuant to the general permit procedures of chapter 62-330, F.A.C.

Rulemaking Authority 373.044, 373.113 FS. Law Implemented 373.016, 373.103, 373.113, 373.118, 373.4131 FS. History–New 8-1-89, Amended 1-4-96, 11-11-03, 10-1-13, 6-1-18,        .

 

40C-1.603 Permit Fees.

A fee is required and shall be paid to the District when certain applications or petitions are filed pursuant to District rules or permit programs delegated to the District. Effective October 1, 1990, governmental entities shall be required to submit the fees established except as provided in subsections (16) through (17) or (18). This fee recovers some of the District’s costs of processing applications.

The fee schedule is:

(1) through (8) No change.

(9) Chapter 40C-5, F.A.C., artificial recharge injection well permits

$5,000

Renumber (10) through (16) as (9) through (15) No change.

(16)(17) Pursuant to section 218.075, F.S., the District shall, for each fiscal year beginning October 1st and ending September 30th, reduce all permit application fees to $100, or, if a permit application fee is less than $100, by 50 percent, for any county, municipality, or third party under contract with a county or municipality, to apply for a permit on the county or municipality’s behalf, which qualifies under this subsection. A county, municipality, or third party as described above, may apply to reduce the permit application fees by submitting form 40C-1.603(1) 40C-1.603(13) entitled “Request to the St. Johns River Water Management District to Reduce Permit Application Fees for Local Government,” effective effective date 11-11-03, which is hereby incorporated by reference (insert URL) and which can be obtained from St. Johns River Water Management District, 4049 Reid Street, Palatka, Florida 32177-2529, [phone], for each fiscal year by certifying:

(a) through (c) No change.

(17)(18) No fee shall be charged for applications for chapter 62-330, F.A.C., permits by the following branches of the U.S. Department of Defense: U.S. Army, Navy, Air Force, Marines, and Coast Guard, plus the and National Guard.

Renumber (19) as (18) No change.

Rulemaking Authority 373.044, 373.109, 373.113, 373.421(2) FS. Law Implemented 218.075, 373.109, 373.4131, 373.421(2) FS. History–New 10-1-87, Amended 6-1-88, 10-17-88, Formerly 40C-1.202, Amended 8-1-89, 10-19-89, 8-19-90, 7-21-91, 7-23-91, 8-11-91, 9-25-91, 11-12-91, 10-20-92, 11-30-92, 1-6-93, 12-6-93, 1-23-94, 4-12-95, 1-4-96, 4-25-96, 10-2-96, 10-11-01, 4-10-02, 11-11-03, 2-1-05, 2-16-10, 10-1-13, 8-14-14, 11-1-15, 2-1-18, 6-1-18,        .

 

40C-1.706 Reservation of Rights.

Rulemaking Authority 373.044, 373.113 FS. Law Implemented 120.53 FS. History–New 8-1-89, Repealed_________.

 

40C-1.1004 Variances from Water Shortage Orders or Water Shortage Emergency Orders Rules (Chapter 40C-21, F.A.C.)

(1) A water All users requesting relief from a water shortage order or water shortage emergency order the provisions of chapter 40C-21, F.A.C., shall file a petition for variance but must continue to conform to the water use restrictions and other measures in that order until the District grants the variance.

(2) Criteria for Issuance – No petition for variance will be approved unless the petitioner affirmatively demonstrates that one or more of the following circumstances exists:

(a) The variance is essential to protect the health or safety of the petitioner or those served by the petitioner; or

(b) Compliance with the particular rule or order from which a variance is sought will require water use restrictions or measures which, because of their extent or cost, cannot be accomplished within the anticipated duration of the shortage; or

(c) Compliance with the particular rule or order from which a variance is sought will result in a substantial economic, social, or health burden on the petitioner applicant or those served by the petitioner applicant, significantly greater than the burden on others within the same water that use class; or

(d) Alternative restrictions or measures which achieve the same level of water use demand reduction as the restrictions or measures from which a variance is sought are available and are binding and enforceable.

(3) Scope Limiting Conditions – Variances granted will be subject to the following conditions:

(a) The variance granted will be the minimum necessary to alleviate the circumstance for which the variance was requested under subsection (2);

(b) All variances will expire upon a declaration by the Governing Board that a water shortage or water shortage emergency no longer exists or if that a new water shortage phase or water shortage emergency is declared that removes or substantially changes the water use restriction that triggered petitioner’s need for the variance;

(c) Variances granted under paragraph (2)(b), shall will prescribe a timetable for compliance with the restrictions from which a variance was sought;

(d) The variance will only apply to Ddistrict water shortage order or water shortage emergency order requirements and not to other local governmental restrictions.

(4) Petitions for Variance – The petition shall will contain the following:

(a) The petitioner’s name, mailing address, and street address of the property for which the variance is requested;

(b) The specific water use restrictions or measures rule or order from which the petitioner is requesting relief;

(c) A detailed statement of the specific facts which the petitioner believes demonstrate that the request qualifies for a variance under subsection (2), including reports by qualified technical experts;

(d) A description of the relief requested desired;

(e) The period of time for which the variance is sought, including the reasons and facts supporting the requested time period in support thereof;

(f) The damage or harm that resulting or which may result to the petitioner or those served by the petitioner from compliance with the water use restrictions or measures rule or order; and

(g) The restrictions which the petitioner can meet and the date when the petitioner can comply with such restrictions;

(h) The steps the petitioner is taking to meet the rule or order from which the variance is sought and when compliance will be achieved; and

(g)(i) Any other information that supports the request the petitioner believes is material.

(5) Procedures.

(a) Within seven business five working days after receipt of a petition for variance, the District shall review the petition for completeness. If the petition is incomplete, the petitioner shall be provided an opportunity to supply additional information needed to complete the petition. the staff will recommend to the Executive Director whether the petition complies with the provisions of subsections (2) through (4). The recommendation will be in writing and shall constitute proposed agency action. A copy of the recommendation will be forwarded to the petitioner.

(b) Upon submittal of a complete petition, if District staff determine that the petition complies with subsections (2) and (4), District staff shall provide a written recommendation to the Executive Director that the variance be granted. The recommendation shall constitute proposed agency action. A copy of the recommendation shall be provided to the petitioner.

(c)(b) The Executive Director shall review the petition and District staff’s the staff recommendation. Petitions which do not require immediate action or which do not comply with the provisions of subsections (2) and through (4) shall be deferred for Governing Board action. Petitions which require immediate action and which comply with the provisions of subsections (2) and through (4) shall be temporarily granted a variance by the Executive Director, subject to the concurrence of the Governing Board. Orders temporarily granting a petition will be presented to the Board for concurrence, rejection, or modification.

(d)(c) The Governing Board shall consider all deferred petitions as well as those temporarily granted by the Executive Director, at its next regularly scheduled meeting that would not require a finding of “for cause” to add the petitions to the agenda. The Governing Board shall review the petitions for compliance with the provisions of subsections (2) and through (4), shall grant or deny the deferred petitions, and shall either concur in, reject, or modify, those petitions temporarily granted by the Executive Director. All Governing Board action shall be by written order and copies shall be furnished to the petitioners and the appropriate law enforcement officials. A petitioner whose petition for variance has been granted shall will be furnished a an appropriate notice of variance from water shortage order or water shortage emergency order, variance which shall be prominently displayed at the petitioner’s place of water use.

Rulemaking Authority 373.044, 373.113 FS. Law Implemented 373.175, 373.246 FS. History–New 1-1-84, Formerly 40C-21.275, Amended 8-4-98,        .

 

40C-1.1005 Time for Consideration of Emergency Petition for Variances.

When a petition for an emergency variance or waiver under section 120.542(3), F.S., and rule 28-104.004 28-104.005, F.A.C., requires action by the Governing Board, the Board shall grant or deny a petition for emergency variance or waiver within 30 days of its receipt or at the next regularly scheduled meeting for which notice may be properly given. 

Rulemaking Authority 373.044, 373.113 FS. Law Implemented 120.542 FS. History–New 8-4-98,        .

 

40C-1.1007 Point of Entry Into Proceedings.

(1) No change.

(2)(a) “Receipt of written notice of a District decision” as set forth in rule 28-106.111, F.A.C., means receipt of either written notice that the District intends to take or has taken final agency action, or publication of notice that the District intends to take or has taken final agency action. If the District’s Governing Board takes action which substantially differs from a written notice of the District’s decision describing intended action, persons who may be substantially affected shall have an additional 21 days, or for consolidated notice of consolidated intent under section 373.427, F.S., an additional 14 days, from the date of receipt of notice of said action to request an administrative hearing, but this request for administrative hearing shall only address the substantial deviation.

(b) No change.

(3) and (4) No change.

Rulemaking Authority 373.044, 373.113 FS. Law Implemented 120.569, 373.413 FS. History–New 8-4-98,        .

 

40C-1.1008 Timeframe for Providing Requested Information.

(1) The applicant shall have 90 days from receipt of a request for additional information regarding a permit or license application, a petition for a formal determination of the landward extent of wetlands and other surface waters, or a petition for a variance or waiver undergoing review by the District to submit that information to the District. If an applicant or petitioner requires more than 90 days in which to complete an application or petition, the applicant or petitioner may notify the District in writing of the circumstances and for good cause shown, the application or petition shall be held in active status for additional periods commensurate with the good cause shown. As used herein, good cause means a demonstration that the applicant or petitioner is diligently acquiring the requested information, and that the additional time period requested is both reasonable and necessary to supply the information. The Executive Director, or his or her designee, is the Director of the Division of Regulatory Services, the Chief of the Bureau of Environmental Resource Regulation, the Chief of the Bureau of Water Use Regulation, and any Regulatory Coordinator are authorized to make a determination that such good cause has been provided. Any application or petition which has not been completed by the applicant or petitioner within the given time period following a request for additional information by the District shall be administrately denial. The requested information or written request showing good cause for additional time may be submitted to the District at any time prior to the denial of the application or petition. Denial of an application or petition due to failure to submit requested additional information shall be an administrative denial without prejudice to the applicant’s or petitioner’s right to file a new application or petition. The applicant or petitioner may request a section 120.569, F.S., hearing pursuant to chapter 28-106, F.A.C. and rule 40C-1.1007, F.A.C., to dispute the necessity of the information required.

(2) No change.

Rulemaking Authority 120.54(5), 120.542, 373.044, 373.113, 373.421(2) FS. Law Implemented 120.54(5), 120.542, 120.60, 373.083(5), 373.118, 373.414(17), 373.421(2) FS. History–New 8-4-98, Amended 1-11-99, 4-10-02, 6-1-18,        .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Thomas I. Mayton, Jr., St. Johns River Water Management District, 4049 Reid Street, Palatka, Florida 32177-2529, [phone]

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Governing Board of the St. Johns River Water Management District

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: May 14, 2019

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: May 15, 2019