62-17.665. Management and Storage of Surface Waters, Activities in Surface Waters and Wetlands, and Water Quality Post-Certification Review

The requirements of this section apply to the construction, alteration, operation, maintenance, or repair (excluding custodial maintenance), abandonment, and removal of the transmission line, including access roads and structure pads, pursuant to the non-procedural requirements of Part IV of Chapter 373, F.S.

(1) The applicant must demonstrate compliance with the Department’s non-procedural requirements set forth in Chapter 62-330, F.A.C., and may, at its option, elect to do so:

(a) As part of the certification application and prior to the conduct of any construction activities within the landward extent of waters of the state; or

(b) As part of a postcertification review process for monitoring compliance with the conditions of certification and prior to the conduct of any construction activities within the landward extent of wetlands and other surface waters.

(2) Unless a project qualifies for an exemption under Section 373.406 or 403.813, F.S., authorization must be obtained from the Department or Siting Board prior to construction, alteration, operation, maintenance or repair (excluding routine custodial maintenance), abandonment, or removal of any surface water management system required for the certified project within a certified corridor or prior to any wetland vegetation management for the certified project within a certified corridor other than that considered to be routine custodial maintenance.

(3) The information submitted as part of subsection (1) of this section shall be in accordance with Section 403.5251, F.S., and the following. Regardless of the type of drawings submitted, water quality assurance information must be submitted. When information is to be submitted after certification, the applicant may choose to submit the postcertification review of the transmission line in segments.

(a) Generic drawings will be acceptable:

1. Where there is a defined bed or channel in which water flows (incised streams, rivers, etc., with little or no associated floodplain);

2. Where there are unchannelized wetlands or floodplains where the vegetation is predominantly herbaceous such as in a Cladium or Juncus marsh or grass prairie;

3. Where the forested wetlands which are only comprised of isolated cypress domes, isolated bayheads, cypress sloughs, or forested wetlands not covered under subparagraph (b)1. of this subsection;

4. Where there is any combination of subparagraphs 1., 2., or 3. of this paragraph; or

5. In other areas if approved by the Department.

(b) Specific information will be required for construction located in the following areas unless otherwise agreed to between the Department and the applicant or as provided for in paragraph (a) of this subsection:

1. In forested wetlands, consisting of unchannelized wetlands or multiple watercourses in riverine floodplains, other than the isolated cypress domes, isolated bayheads, or cypress sloughs listed above;

2. In lakes; and

3. In waters in which construction has the potential to interfere with navigation.

(c) Applicants must describe impacts and mitigation, if any, that provide reasonable assurance of compliance with the non-procedural requirements of Section 373.414, F.S., and applicable provisions of the appropriate water management district’s rules as well as the applicable interjurisdictional rule for where the line is being cited.

(d) The names and addresses of adjoining property owners will not be required as part of an application unless that owner is the Trustee of the Internal Improvement Trust Fund. Notification of the project will be given as part of the certification notice published in accordance with Section 403.5363, F.S., and Rule 62-17.750, F.A.C., and no further individual notice will be given by the Department.

(e) If upon ground truthing by the Department it is discovered that the site is of a different type of general contour or vegetation type other than the type provided or if the information provided is not accurate, the applicant shall submit a revised drawings or information, as applicable, to the Department. Such revised generic drawings or information shall be in accordance with the above requirements.

(4)(a) Where the certification is issued requiring the Department’s ministerial issuance of an easement or other interest in state lands the applicant shall provide to the Department’s Division of State Lands for each required easement or other interest in state lands information required in an application for such an interest. The applicant shall send a copy of the information submittal to the Departments Siting Coordination Office.

(b) In the event the applicant files information relating to activities in waters of the State as part of the application rather than after certification, the Department’s position on compliance with permitting standards shall be stated in the Department’s report required by paragraph 62-17.590(5)(b), F.A.C.

(5) The licensee shall apply directly to the U.S. Army Corps of Engineers (COE) for permits required by the COE for construction of the transmission line. A copy of the final COE permit shall be sent to the Siting Coordination Office and Environmental Resource Permitting program of the applicable District Office of the Department by the applicant.

(6) If the material is submitted after certification pursuant to this section, the following procedures shall be used by the Department for monitoring of compliance with the conditions of certification:

(a) The Department’s Siting Coordination Office shall coordinate the processing of reviews.

(b) Submittals of the non-procedural environmental resource-program (ERP) information typically provided in an ERP application shall be sent by the Department’s Siting Coordination Office to the applicable Water Management District, the Fish and Wildlife Conservation Commission, the Department of Environmental Protection, and any other agency that is identified in the conditions of certification. Copies will not be sent to adjacent landowners unless a landowner within or immediately adjacent to the corridor requests copies in writing.

(c) The Department shall promptly review the postcertification non-procedural ERP submittal for completeness. If found to be incomplete the licensee shall be so notified within 30 days of receipt; failure to notify the licensee accordingly shall constitute a finding of completeness. The provisions of Section 403.5317(2), F.S., govern the review completion deadlines.

(d) Within 90 days of filing of complete information, the department shall determine whether there is reasonable assurance of compliance with substantive agency regulations as required by the conditions of certification.

(e) If the reviewing agencies and offices determine, as a result of their monitoring review, that reasonable assurance of compliance with the conditions of certification has not been provided, the Department’s Siting Coordination Office shall notify the licensee with particularity and provide suggestions for possible corrective measures; however, this will not bar the Department from taking enforcement action in appropriate cases. Failure to notify the permittee in writing within 90 days of receipt of a complete information submittal shall constitute a compliance verification.

(f) For those areas where the Department has joint jurisdiction with the U.S. Army Corps of Engineers, the Department’s Siting Coordination Office shall provide to the Corps of Engineers and the licensee a letter stating that the application has met the requirements for 33 USC 1341 certification if:

1. The Department has notified the licensee that the monitoring review shows that the activities proposed are in compliance with the requirements of the Conditions of Certification; or

2. The Department has not made a determination whether the activities proposed are in compliance within 90 days of the licensee’s submission of complete information.

(7) If the Department has not notified the licensee within 90 days as specified in Section 403.5317(2), F.S., on the grounds of noncompliance with the requirements of the conditions of certification, the licensee may begin construction in such waters of the state pursuant to the terms of the conditions of certification and the subsequently submitted construction details. In such a case, the licensee shall notify the Department’s Siting Coordination Office and the applicable Department District’s Submerged Lands and Environmental Resource Office, or as otherwise indicated in the conditions of certification, of the place and anticipated starting date, i.e., county and month, of the construction activities in wetlands and other surface waters of the state no later than 10 working days prior to initiating any such activity.

Rulemaking Authority 403.523(1) FS. Law Implemented 403.531(2), (3) FS. History–New 4-15-85, Formerly 17-17.665, Amended 5-24-10.