The purpose and effect of these proposed rule amendments is: (1) to reflect that the bald eagle is no longer classified by the Florida Fish and Wildlife Conservation Commission (FWC) as a threatened species under its imperiled species regulations; (...

 

WATER MANAGEMENT DISTRICTS
St. Johns River Water Management District

RULE NO: RULE TITLE
40C-4.021: Definitions
40C-4.091: Publications Incorporated by Reference
PURPOSE AND EFFECT: The purpose and effect of these proposed rule amendments is: (1) to reflect that the bald eagle is no longer classified by the Florida Fish and Wildlife Conservation Commission (FWC) as a threatened species under its imperiled species regulations; (2) to continue to provide to the bald eagle, which is still protected under a federal statute known as the Bald and Golden Eagle Protection Act, protections afforded by the District’s rules to wildlife species classified by FWC as endangered, threatened, or species of special concern; and (3) to update rule references to listed wildlife and plants in the definitions of “listed species,” “endangered species,” and “threatened species.” The District proposes to amend Table 12.2.7-1 in the Applicant’s Handbook: Management and Storage of Surface Waters to remove the bald eagle from the category of threatened species and to amend section 12.2.7 of the Applicant’s Handbook to refer to the bald eagle so that bald eagles’ existing nesting habitat in uplands would continue to be protected under the District’s rules. The amendments also provide that secondary impacts to the functions of wetlands or uplands for nesting of bald eagles will not be considered adverse if a valid permit under Rule 68A-16.002, F.A.C., has been issued to a permit applicant by the FWC for the same activities the applicant is proposing under Part IV of Chapter 373, F.S., or if the applicant demonstrates compliance with the FWC Eagle Management Guidelines that were adopted by the FWC and became effective May 15, 2008.
SUMMARY: The proposed rules address the change in classification of the bald eagle in the FWC’s imperiled species regulations. The proposed rules amend Sections 12.2.7 and 12.3.1.5 and Table 12.2.7-1 of the Applicant’s Handbook: Management and Storage of Surface Waters, and Rule 40C-4.091, F.A.C., which incorporates these sections by reference. In addition, the proposed rules update the definitions of listed species, endangered species and threatened species by amending subsection 40C-4.021(20), F.A.C., and subsections 2.0(q), (cc), and (bbb) of the Applicant’s Handbook.
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: 373.044, 373.113, 373.414, 373.418 FS.
LAW IMPLEMENTED: 373.016(2), 373.413, 373.414, 373.416, 373.418, 373.426 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: August 11, 2009, Following the regularly scheduled Governing Board Meeting which begins at 1:00 p.m.
PLACE: St. Johns River Water Management District Headquarters, 4049 Reid Street, Palatka, Florida 32177
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: Sandy Bertram, Asst. 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: Wendy Gaylord, Rules Coordinator, Office of General Counsel, St. Johns River Water Management District, 4049 Reid Street, Palatka, Florida 32177-2529, [phone], email [e-mail]

THE FULL TEXT OF THE PROPOSED RULE IS:

40C-4.021 Definitions.

When appearing in this chapter or in Chapter 40C-40, 40C-41, 40C-42, 40C-44, or 40C-400, F.A.C., the following words shall mean:

(1) through (19) No change.

(20) Listed species” means those animal species which are endangered, threatened or of special concern and are listed in Rules 68A-27.003 (as amended December 16, 2003), 68A-27.004 (as amended May 15, 2008), and 68A-27.005 (as amended November 8, 2007) 39-7.003, 39-27.004, and 39-27.005, F.A.C., and those plant species listed in 50 Code of Federal Regulations 17.12 (as amended April 8, 2004), when such plants are found to be located in a wetland or other surface water.

(21) through (32) No change.

Rulemaking Specific Authority 373.044, 373.113, 373.414, 373.418 FS. Law Implemented 373.016, 373.019, 373.403, 373.413, 373.414, 373.416, 373.418, 373.426, 403.813(2) FS. History–New 1-31-77, Formerly 16I-4.02, 40C-4.02, Amended 2-3-81, 12-7-83, Formerly 40C-4.021, 40C-4.0021, Amended 9-25-91, 2-27-94, 10-3-95, 10-11-01,________.

 

40C-4.091 Publications Incorporated by Reference.

(1) The Governing Board hereby adopts by reference:

(a) Part I “Policy and Procedures,” Part II “Criteria for Evaluation,” subsections 18.0, 18.1, 18.2, and 18.3 of Part III and Appendix K “Legal Description Upper St. Johns River Hydrologic Basin,” “Legal Description Ocklawaha River Hydrologic Basin,” “Legal Description of the Wekiva River Hydrologic Basin,” “Legal Description of the Wekiva Recharge Protection Basin,” “Legal Description of the Wekiva Recharge Protection Basin,”: “Legal Description of the Econlockhatchee River Hydrologic Basin,” “Legal Description of the Sensitive Karst Areas Basin, Alachua County,” “Legal Description Tomoka River Hydrologic Basin,” “Legal Description Spruce Creek Hydrologic Basin,” “Legal Description of the Sensitive Karst Areas Basin, Marion County,” and “Legal Description of the Lake Apopka Hydrologic Basin,” and Appendix M “Regional Watersheds for Mitigation Banking,” of the document entitled “Applicant’s Handbook: Management and Storage of Surface Waters,” effective _________ November 5, 2008.

(b) through (d) No change.

(2) No change.

Rulemaking Specific Authority 369.318, 373.044, 373.046(4), 373.113, 373.4136, 373.414, 373.415, 373.416, 373.418, 373.421, 373.461 FS. Law Implemented 120.60, 369.316, 369.318, 373.016(2), 373.042, 373.0421, 373.046, 373.085, 373.086, 373.103, 373.109, 373.146(1), 373.406, 373.413, 373.4135, 373.4136 373.414, 373.4141, 373.415, 373.416, 373.417, 373.418, 373.421(2)-(6), 373.423, 373.426, 373.461(3), 380.06(9), 403.813(2) FS. History– New 12-7-83, Amended 10-14-84, Formerly 40C-4.091, Amended 5-17-87, Formerly 40C-4.0091, Amended 8-20-87, 10-1-87, 10-11-87, 11-26-87, 8-30-88, 1-1-89, 8-1-89, 10-19-89, 4-3-91, 9-25-91, 11-12-91, 3-1-92, 7-14-92, 9-8-92, 9-16-92, 11-12-92, 11-30-92, 1-6-93, 1-23-94, 2-27-94, 11-22-94, 10-3-95, 8-20-96, 11-25-98, 12-3-98, 1-7-99, 1-11-99, 8-21-00, 7-8-01, 10-11-01, 4-10-02, 9-26-02, 3-7-03, 11-11-03, 2-1-05, 12-3-06, 7-1-07, 5-13-08, 11-05-08,_________.

 

APPLICANT’S HANDBOOK SECTIONS

2.0Definitions

The following definitions are used by the District to clarify its intent in implementing its permitting programs pursuant to Part IV, Chapter 373, F.S. Many of these definitions are derived directly from Chapter 373, F.S., and are reproduced here for the convenience of applicants.

(a) through (p) No change.

(q) Endangered Species – Those animal species which are listed in Rule 68A-27.003 (as amended December 16, 2003) 39-27.003, F.A.C., and those plant species which are listed as endangered in 50 Code of Federal Regulations 17.12 (as amended April 8, 2004), when such plants are found to be located in a wetland or other surface water.

(r) through (bb) No change.

(cc) Listed species – Those animal species which are endangered, threatened or of special concern and are listed in Rules 68A-27.003 (as amended December 16, 2003), 68A-27.004 (as amended May 15, 2008), and 68A-27.005 (as amended November 8, 2007) 39-27.003, 39-27.004, and 39-27.005, F.A.C.; and those plant species which are listed in 50 Code of Federal Regulations 17.12 (as amended April 8, 2004), when such plants found to be are located in a wetland or other surface water (subsection 40C-4.021(20)(19), F.A.C.).

(dd) through (aaa) No change.

(bbb) Threatened Species – Those animal species listed in Rule 68A-27.004 (as amended May 15, 2008) 39-27.004, F.A.C., and those plant species which are listed as threatened in 50 Code of Federal Regulations 17.12 (as amended April 8, 2004) when such plants are found to be located in a wetland or other surface water.

(ccc) through (hhh) No change.

12.2.7Secondary Impacts

Pursuant to paragraph 12.1.1(f), an applicant must provide reasonable assurances that a regulated activity will not cause adverse secondary impacts to the water resource, as described in paragraphs (a) through (d) below. Aquatic or wetland dependent fish and wildlife are an integral part of the water resources which the District is authorized to protect under part IV, chapter 373, F.S. Those aquatic or wetland dependent species which are listed as threatened, endangered or of special concern and the bald eagle (Halieaeetus leucocephalus) which is protected under the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d) are particularly in need of protection.

A proposed system shall be reviewed under this criterion by evaluating the impacts to: wetland and surface water functions identified in subsection 12.2.2, water quality, upland habitat for bald eagles (Halieaeetus leucocephalus) and aquatic or wetland dependent listed species, and historical and archaeological resources. De minimis or remotely related secondary impacts will not be considered. Applicants may propose measures such as preservation to prevent secondary impacts. Such preservation shall comply with the land preservation provisions of subsection 12.3.8. If such secondary impacts can not be prevented, the applicant may propose mitigation measures as provided for in subsections 12.3 – 12.3.8.

This secondary impact criterion consists of the following four parts:

(a) An applicant shall provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonably expected uses of a proposed system will not cause violations of water quality standards or adverse impacts to the functions of wetlands or other surface waters as described in section 12.2.2.

Impacts such as boat traffic generated by a proposed dock, boat ramp or dry dock facility, which causes an increased threat of collision with manatees; impacts to wildlife from vehicles using proposed roads in wetlands or surface waters; impacts to water quality associated with the use of septic tanks or propeller dredging by boats and wakes from boats; and impacts associated with docking facilities as described in paragraphs 12.2.4.3(f) and (h), will be considered relative to the specific activities proposed and the potential for such impacts. Impacts of groundwater withdrawals upon wetlands and other surface waters that result from the use of wells permitted pursuant to chapter 40C-2, F.A.C., shall not be considered under rules adopted pursuant to part IV of chapter 373, F.S., since these impacts are considered in the consumptive use permit application process.

Secondary impacts to the habitat functions of wetlands associated with adjacent upland activities will not be considered adverse if buffers, with a minimum width of 15' and an average width of 25', are provided abutting those wetlands that will remain under the permitted design, unless additional measures are needed for protection of wetlands used by bald eagles (Haliaeetus leucocephalus) for nesting or listed species for nesting, denning, or critically important feeding habitat. The mere fact that a species is listed does not imply that all of its feeding habitat is critically important. Buffers shall remain in an undisturbed condition, except for drainage features such as spreader swales and discharge structures, provided the construction or use of these features does not adversely impact wetlands. Where an applicant elects not to utilize buffers of the above described dimensions, buffers of different dimensions, measures other than buffers, or information may be proposed to provide the required reasonable assurance.

(b)An applicant shall provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of a proposed system will not adversely impact the ecological value of uplands to bald eagles (Haliaeetus leucocephalus) and aquatic or wetland dependent listed animal species for enabling existing nesting or denning by these species, but not including:

1. areas needed for foraging; or

2. wildlife corridors, except for those limited areas of uplands necessary for ingress and egress to the nest or den site from the wetland or other surface water.

Table 12.2.7-1 identifies those aquatic or wetland dependent listed species that use upland habitats for nesting and denning.

For those aquatic or wetland dependent listed animal species for which habitat management guidelines have been developed by the U.S. Fish and Wildlife Service (USFWS) or the Florida Fish and Wildlife Conservation Commission (FWC) Florida Game and Fresh Water Fish Commission (FGFWFC), compliance with these guidelines will provide reasonable assurance that the proposed system will not adversely impact upland habitat functions described in paragraph (b). For those aquatic or wetland dependent listed animal species for which habitat management guidelines have not been developed or in cases where an applicant does not propose to use USFWS or FWC FGFWFC habitat management guidelines, the applicant may propose measures to mitigate adverse impacts to upland habitat functions described in paragraph (b) provided to aquatic or wetland dependent listed animal species. Secondary impacts to the functions of wetlands or uplands for nesting of bald eagles (Haliaeetus leucocephalus) will not be considered adverse if a valid permit has been issued to the applicant pursuant to Rule 68A-16.002, F.A.C. (May 15, 2008) for the same activities proposed by the applicant under part IV of Chapter 373, F.S., or if the applicant demonstrates compliance with the FWC Eagle Management Guidelines incorporated by reference in Rule 68A-16.002, F.A.C. (May 15, 2008).

(c) through (d) No change.

TABLE 12.2.7-1

Listed Wildlife Species that are Aquatic or Wetland Dependent

and That Use Upland Habitats for Nesting or Denning

Fishes

Species of special concern

Rivulus marmoratus (mangrove rivulus; rivulus)

Reptiles

Endangered

Chelonia mydas mydas (Atlantic green turtle)

Crocodylus acutus (American crocodile)

Dermochelys coriacea (leatherback turtle; leathery turtle)

Eretmochelys imbricata imbricata (Atlantic hawksbill turtle)

Kinosternon bauri (striped mud turtle) THIS SPECIES LISTED ONLY IN LOWER KEYS

Lepidochelys kempi (Atlantic ridley turtle)

Threatened

Caretta caretta caretta (Atlantic loggerhead turtle)

Thamnophis sauritus sackeni (Florida (Keys) ribbon snake) THIS SPECIES LISTED ONLY IN LOWER KEYS

Species of special concern

Alligator mississippiensis (American alligator)

Graptemys barbouri (Barbour's map turtle; Barbour’s sawback turtle)

Macroclemys temmincki (alligator snapping turtle)

Pseudemys concinna suwanniensis (Suwannee cooter)

Birds

Endangered

Ammodramus maritimus mirabilis (Cape Sable seaside sparrow)

Mycteria americana (wood stork)

Rostrhamus sociabilis (snail kite)

Threatened

Charadrius alexandrinus tenuirostris (southeastern snowy plover)

Charadrius melodus (piping plover)

Columba leucocephalus (white-crowned pigeon)

Grus canadensis pratensis (Florida sandhill crane)

Haliaeetus leucocephala (bald eagle)

Picoides borealis (red-cockaded woodpecker) THIS SPECIES ONLY WETLAND DEPENDENT IN LEE, COLLIER, AND CHARLOTTE COUNTIES

Polyborus plancus audubonii (Audubon's crested caracara)

Sterna antillarum (least tern)

Sterna dougallii (roseate tern)

Species of special concern

Ajaia ajaia (roseate spoonbill)

Ammodramus maritimus juncicolus (Wakulla seaside sparrow)

Ammodramus maritimus peninsulae (Scott's seaside sparrow)

Aramus guarauna (limpkin)

Cistothorus palustris griseus (Worthington's marsh wren)

Cistothorus palustris marianae (Marian's marsh wren)

Egretta caerulea (little blue heron)

Egretta rufescens (reddish egret)

Egretta thula (snowy egret)

Egretta tricolor (tricolored heron; Louisiana heron)

Eudocimus albus (white ibis)

Haematopus palliatus (American oystercatcher)

Pandion haliaetus (osprey) THIS SPECIES LISTED ONLY IN MONROE COUNTY

Pelecanus occidentalis (brown pelican)

Rhynchops niger (black skimmer)

Mammals

Endangered

Felis concolor coryi (Florida panther)

Microtus pennsylvanicus dukecampbelli (Duke’s saltmarsh vole; Florida saltmarsh vole)

Myotis grisescens (gray bat)

Myotis sodalis (Indiana bat)

Odocoileus virginianus clavium (Key deer; toy deer)

Oryzomys argentatus (silver rice rat)

Sylvilagus palustris hefneri (Lower Keys marsh rabbit)

Threatened

Mustela vison evergladensis (Everglades mink)

Sciurus niger avicennia (Big Cypress fox squirrel; mangrove fox squirrel)

Ursus americanus floridanus (Florida black bear) THIS SPECIES NOT LISTED IN BAKER AND COLUMBIA COUNTIES AND THE APALACHICOLA NATIONAL FOREST

Species of Special Concern

Oryzomys palustris sanibeli (Sanibel Island rice rat)

Sorex longirostris eionis (Homosassa shrew)

12.3.1.5 To offset adverse secondary impacts from regulated activities to habitat functions that uplands provide to bald eagles (Haliaeetus leucocephalus) for nesting and to listed species evaluated as provided in paragraph 12.2.7(b), mitigation can include the implementation of management plans, participation in a wildlife mitigation park established by the FWC FGFWFC, or other measures. Measures to offset adverse secondary impacts on wetlands and other surface waters resulting from use of a system can include the incorporation of culverts or bridged crossings designed to facilitate wildlife movement, fencing to limit access, reduced speed zones, or other measures designed to offset the secondary impact.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Veronika Thiebach, Sr. Asst. General Counsel, St. Johns River Water Management District, 4049 Reid Street, Palatka, Florida 32177-2529, [phone], email [e-mail]

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: December 9, 2008

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: June 20, 2008