The proposed amendments address comments received from the Joint Administrative Procedures Committee regarding incorporation of enforcement guidelines that apply to the environmental resource permitting, consumptive use, and surface water management ...

 

WATER MANAGEMENT DISTRICTS

South Florida Water Management District

RULE NO.: RULE TITLE:

40E-1.021    Definitions

40E-1.607    Permit Application Processing Fees

40E-1.6107 Transfer of Surface Water Management, or Water Use, or Wetland Resource Permit

40E-1.615    Coordinated Agency Review Procedures for the Florida Keys Area of Critical State Concern

40E-1.659    Forms and Instructions

40E-1.702 Environmental Resource, Surface Water Management Permit and Consumptive Use Enforcement Guidelines

PURPOSE AND EFFECT: The proposed amendments address comments received from the Joint Administrative Procedures Committee regarding incorporation of enforcement guidelines that apply to the environmental resource permitting, consumptive use, and surface water management enforcement programs, and make other minor changes.

SUMMARY: The proposed rule amendments are as follows: 1) delete definitions in Rule 40E-1.021, F.A.C., that are redundant of statutes and add applicable rule chapters; 2) correct the fee table in Rule 40E-1.607, F.A.C., to delete “Noticed” from “Noticed General Permit” and move fee for the “Individual permit for a phase of construction that is consistent with an existing conceptual approval permit” from the major modifications category to the “new applications” category; 3) correct a rule reference in Rule 40E-1.6107, F.A.C., and update contact information; 4) delete references in Rule 40E-1.615, F.A.C., to repealed rules and replace with applicable statute; 5) update contact information and correct the date listed in Rule 40E-1.659, F.A.C., for Form 0483, Request for Surface Water Management, Water Use or Wetland Resource Permit Transfer; and 6) address comments received from JAPC regarding the incorporation of enforcement guidelines that apply to the environmental resource permitting, consumptive use, and surface water management enforcement programs in Rule 40E-1.702, F.A.C.

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, which is available upon request. Based on the completed “Is a SERC Required?” form, 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: 120.53(1), 218.075, 373.044, 373.109, 373.113, 373.171, 373.421(2), 373.421(6)(b), 373.4131, 373.4136, 373.416, 380.051, 695.03, 704.06 FS.

LAW IMPLEMENTED: 120.62, 120.69, 218.075, 373.083, 373.109, 373.113, 373.119, 373.129, 373.136, 373.171, 373.219, 373.309, 373.413, 373.4131, 373.4135, 373.4136, 373.414, 373.416, 373.421(2), 373.421(6)(b), 373.426, 373.429, 373.430, 373.433, 373.436, 373.603, 380.051, 403.201, 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: May 12, 2016, 9:00 a.m.

PLACE: South Florida Water Management District, 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 hours before the workshop/meeting by contacting: South Florida Water Management District Clerk, toll free: [phone], ext. 6805, or [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: Melinda Parrott, Lead Environmental Analyst, South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, FL 33406, telephone (toll free): [phone] ext. 6324, or [phone], email: [e-mail]; or Susan Martin, Sr. Practice Expert, South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, FL 33406, telephone (toll free): [phone] ext. 6251, or [phone], email: [e-mail]. For questions regarding the rulemaking process, contact Jan Sluth, Sr. Paralegal, South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, FL 33406, telephone (toll free): [phone] ext. 6299, or [phone], email: [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

40E-1.021 Definitions.

When used in this Chapter, Chapters 40E-0, 40E-2, 40E-3, 40E-4, 40E-5, 40E-41, and 40E-61, and 40E-63, F.A.C.:

(1) through (3) No change.

(4) “Electronic record” means information that is stored in an electronic medium and is retrievable in a perceivable form, including public records as defined in Section 119.011, F.S.

(5) “Electronic signature” means an electronic sound, symbol, or process attached to an electronic record and executed or adopted by a person with the intent to sign the record.

(4)(6) “Electronic Posting” means placing notice through a link on the home page of the District’s website.

Rulemaking Authority 373.044, 373.113, 373.171 FS. Law Implemented 668.003, 668.004, 668.50 FS. History–New 10-1-06, Amended 10-23-12, 1-19-14, 7-14-14,              .

 

40E-1.607 Permit Application Processing Fees.

Introductory paragraph – No change.

(1) through (2) No change.

(3)(a) Environmental Resource Permit Application processing fees are in the following table:

 

1. and 2. No change.	No change.
3. Verification of qualification to use a Noticed General Permit.	No change...
4. No change.
4.a.(I) through (XIII)  No change.	No change...
(XIV) An Individual Permit for a phase of construction that is consistent with an existing Conceptual Approval Permit.	$1500
b. NO CHANGE..
(I) An Individual Permit or modification for a phase of construction that is consistent with an existing Conceptual Approval Permit.	$1500
(I) (II)  No change.	No change...
(II) (III)  No change.	No change.
c.  No change.	No change.
5. through 13.  No change.	No change.

(b) No change.

(4) through (7) No change.

Rulemaking Authority 373.044, 373.109, 373.113, 373.171, 373.421(2), 373.421(6)(b), 373.4131 FS. Law Implemented 218.075, 373.109, 373.4131, 373.421(2), 373.421(6)(b), 403.201 FS. History–New 1-8-89, Amended 1-2-91, 11-15-92, 6-1-93, 1-23-94, 10-3-95, 4-1-96, 11-8-99, 5-24-00, 6-26-02, 7-11-02, 8-10-03, 8-14-03, 11-18-07, 11-1-09, 12-15-11, 10-23-12, 10-1-13, 7-31-14, 9-7-15,                     .

 

40E-1.6107 Transfer of Environmental Resource, Surface Water Management, or Water Use, or Wetland Resource Permit.

(1) The procedures for the transfer of environmental resource permits are set forth in Rule 62-330.340 62-330.310, F.A.C. To transfer a surface water management, water use, or wetland resource permit, the permittee, in addition to satisfying the applicable provisions in Rule 40E-2.351, F.A.C., must submit Form No. 0483, (October 1, 2013), http://www.flrules.org/Gateway/reference.asp?No=Ref-02753, Request for Surface Water Management, Water Use, or Wetland Resource Permit Transfer, incorporated by reference herein. Form No. 0483 is also 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[phone], ext. 2729 6436, or [phone] 6436.

(2) through (5) No change.

Rulemaking Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.083, 373.171, 373.219, 373.309, 373.413, 373.4131, 373.414, 373.416, 373.426, 373.429, 373.436, 668.003, 668.004, 668.50 FS. History–New 5-11-93, Amended 10-3-95, 10-1-06, 10-23-12, 10-1-13, 7-14-14,                   .

 

40E-1.615 Coordinated Agency Review Procedures for the Florida Keys Area of Critical State Concern.

(1) through (2) No change.

(3) The following coordinated agency review procedures apply to projects which require permits pursuant to Chapters 40E-2 (Consumptive Use), 62-330 and 40E-4 (Environmental Resource), F.A.C.:

(a) No change.

(b) The District’s Coordinated Review process begins when the District receives the Coordinated Review Application from the Permit Coordinator as required by Section 380.051, F.S. subsection 9J-19.006(3) (Initiation of Coordinated Review), F.A.C.

(c) No change.

(d) If the applicant waives the time limits required by Chapter 120 and Section 380.051, F.S., as set forth in Rule 9J-19.007, F.A.C., the District shall delay initiation of substantive review until notice is received by electronic mail at the District’s e-Permitting website or in writing from the Permit Coordinator indicating that substantive review should begin, as provided in subsection 9J-19.007(3) (Coordination of Time for Sufficiency Review), F.A.C. If the applicant does not waive the time limits, the District shall begin substantive review when the Coordinated Review Application is complete.

(e) The Certification of the Coordinated Review Application required by Section 380.051(2)(a), F.S., and subsections 9J-19.002(3) (Purpose) and 9J-19.009(1) and (2) (Completion of Substantive Review), F.A.C., shall occur within 60 days after the District begins substantive review, and shall consist of the notice of proposed agency action together with the staff report on the individual permit pursuant to Ssubsection 40E-1.603(6) (Application Procedures for Processing Permit Applications or Notices of Intent), F.A.C., which may recommend denial to the Governing Board, or approval, or approval with conditions to its designee.

(f) No change.

Rulemaking Authority 373.044, 373.113, 373.171, 373.4131, 380.051 FS. Law Implemented 373.4131, 380.051, 668.003, 668.004, 668.50 FS. History–New 9-22-87, Amended 10-3-95, 10-1-06, 12-1-11, 10-23-12, 10-1-13, 7-14-14,              .

 

40E-1.659 Forms and Instructions.

The following forms and instructions are incorporated by reference throughout the District’s rules as specified below and are listed herein for convenience. Hyperlinks are provided in the rules in which the forms and instructions are referenced and copies can be obtained without cost by contacting the South Florida Water Management District Clerk’s Office, 3301 Gun Club Road, West Palm Beach, FL 33406, 1[phone], ext. 2729 6436, or [phone] 6436:

 

Form No.	Date	Title
0186	No change.	No change.
0483	10-13 10-01	No change.
0779 through DEP Form 4	No change.	No change..

Rulemaking Authority 218.075, 373.044, 373.113, 373.171, 373.4136, 373.416, 695.03, 704.06 FS. Law Implemented 218.075, 373.113, 373.4135, 373.4136, 373.416, 704.06 FS. History–New 9-3-81, Amended 12-1-82, 3-9-83, Formerly 16K-1.90, Amended 7-26-87, 11-21-89, 1-4-93, Formerly 40E-1.901, Amended 5-11-93, 4-20-94, 10-3-95, 6-26-02, 8-14-02, 8-31-03, 9-16-03, 9-20-04, 2-12-06, 1-23-07, 8-7-07, 7-4-10, 12-15-11, 5-20-12, 10-23-12, 10-1-13, 7-14-14, 9-7-15,                            .

 

40E-1.702 Environmental Resource, Surface Water Management Permit and Consumptive Use Enforcement Guidelines.

The following guidelines apply to tThe District’s Environmental Resource, Consumptive Use and Surface Water Management Permit enforcement programs: is implemented through guidelines concerning Resource Protection, Dispute Resolution and Penalty Assessments.

(1) The Resource Protection guideline provides that:

(1)(a) Adverse impacts to water resources shall be recovered by requiring complete restoration.; or

(2)(b) In those cases where restoration of the adverse impact is not environmentally feasible, the District shall require mitigation to offset such impacts.

(2) The Dispute Resolution guideline provides that:

(3)(a) If the violation cannot be resolved in a negotiated, pro-active manner, it is the District’s policy to seek full compliance with District permits and rules through appropriate legal action.; and

(b) Violations can most effectively be prevented through educating the public about District permitting practices and criteria.

(3) The Penalty Assessment guideline provides that:

(4)(a) The District shall provide for prompt resolution of enforcement matters in a manner that best protects the public interest and water resources.; and

(5)(b) The District shall ensure that violators do not gain an economic advantage over competitors by circumventing District permitting requirements. Enforcement action shall be designed to remove any economic advantage resulting from the failure to comply with District permits and rules.

Rulemaking Authority 120.53(1), 373.044, 373.113 FS. Law Implemented 120.62, 120.69, 373.083(2), 373.119, 373.129, 373.136, 373.430, 373.433, 373.603 FS. History–New 10-3-95, Amended 7-2-98,                    .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Jill Creech, Division Director, Regulation

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

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

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: March 4, 2016