10701154, 62-312.010 - Florida Administrative Rules, Law, Code, Register

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Notice: 10701154

Notice of Proposed Rule

Department:

DEPARTMENT OF ENVIRONMENTAL PROTECTION

Chapter:

DREDGE AND FILL ACTIVITIES

Overview

RULE:

62-312.010	Scope of Part I (Repealed)
62-312.020	Definitions (Repealed)
62-312.030	Jurisdiction (Repealed)
62-312.040	Jurisdictional Declaratory Statements (Repealed)
62-312.045	Jurisdictional Intent (Repealed)
62-312.050	Exemptions (Repealed)
62-312.060	Procedures to Obtain a Permit (Repealed)
62-312.065	Additional Requirements and Procedures for Concurrent Review of Related Applications (Repealed)
62-312.070	Short Form Applications for Certain Dredging or Filling (Repealed)
62-312.080	Standards for Issuance or Denial of a Permit (Repealed)
62-312.082	Duration of Permits (Repealed)
62-312.085	Periodic Review of Permits (Repealed)
62-312.090	Emergency Classification and Procedures (Repealed)
62-312.100	Modification of Permits (Repealed)
62-312.200	Scope of Part II (Repealed)
62-312.210	Procedures to Obtain a Long-Term Permit (Repealed)
62-312.220	Standards for Issuance or Denial of a Long-Term Permit (Repealed)
62-312.300	Intent (Repealed)
62-312.310	Definitions (Repealed)
62-312.320	Incorporation of Mitigation into the Permit Application Process (Repealed)
62-312.330	Mitigation Proposals (Repealed)
62-312.340	Evaluation of Mitigation Proposals (Repealed)
62-312.350	Determination of Success for Mitigation Projects (Repealed)
62-312.360	Pre-Construction Mitigation (Repealed)
62-312.370	Restrictions on Property Use (Repealed)
62-312.380	Release from Responsibility (Repealed)
62-312.390	Financial Responsibility (Repealed)
62-312.800	Scope of Part V (Repealed)
62-312.801	General Permit to U.S. Forest Service for Minor Works Within National Forests in Florida (Repealed)
62-312.803	General Permit for Installation or Maintenance of Boat Ramps (Repealed)
62-312.804	General Permit for Riprap (Repealed)
62-312.805	General Permit for Headwalls and Culverts Associated with a Stormwater Discharge Facility (Repealed)
62-312.806	General Permit to the Florida Department of Transportation for Minor Works Within FDOT Rights-of-Way or Easements (Repealed)
62-312.807	General Permit for the Construction of Artificial Reefs (Repealed)
62-312.808	General Permit for Certain Piers and Associated Structures (Repealed)
62-312.809	General Permit to the Florida Department of Transportation for Minor Bridge Construction (Repealed)
62-312.810	General Permit to Perform Prospecting Activities for Phosphate Minerals (Repealed)
62-312.811	General Permit for Temporary Dragline Crossings of Waterways (Repealed)
62-312.812	General Permit for Low Water Crossings (Repealed)
62-312.813	General Permit for the Installation of Fences (Repealed)
62-312.814	General Permit to Florida Game and Fresh Water Fish Commission, U.S. Forest Service, and County and Municipal Governments for the Construction of Freshwater Fish Attractors (Repealed)
62-312.815	General Permit for Ski Jumps and Slalom Courses (Repealed)
62-312.816	General Permit for the Construction or Maintenance of Culverted Driveway or Roadway Crossings and Bridges of Artificial Waterways (Repealed)
62-312.817	General Permit for the Construction of Aerial Pipeline Crossings of Certain Waters (Repealed)
62-312.818	General Permit for Subaqueous Utility Crossings of Artificial Waterways (Repealed)
62-312.819	General Permit for the Limited Dredging of Sediment for Aquatic Plant Management Purposes (Repealed)
62-312.822	General Permit for the Construction and Maintenance of Electric Power Lines by Electric Utilities (Repealed)
62-312.823	General Permit for Floating Vessel Platforms and Floating Boat Lifts (Repealed)
62-312.824	General Permit to Counties and Municipalities to Pave Existing County or Municipally Owned and Maintained Roads, including the Repair and Replacement of Bridges that are Part of the Roadway (Repealed)
62-312.825	General Permit to U.S. Army Corps of Engineers for Environmental Restoration or Enhancement Activities (Repealed)

PURPOSE:

The purpose and effect of the proposed rule amendment will be to repeal rules identified during the comprehensive rule review required by Executive Order 11-01 as duplicative, unnecessarily burdensome, or no longer necessary.

SUMMARY:

Repeal all of the rules in Chapter 62-312, F.A.C., “Dredge and Fill Activities,” except Rules 62-312.400 through 62-312.470, F.A.C. (Part IV Additional Criteria for Dredging and Filling Within Outstanding Florida Waters in Monroe County), and 62-312.900, because they are no longer necessary. The reason why each rule is no longer needed is provided below.
In general, all of Chapter 62-312, F.A.C., except Part IV, is applicable only to the following: 1) those activities previously permitted or subject to a pending, complete, wetland resource permit application at the time the rules implementing the environmental resource permit (ERP) program under Part IV of Chapter 373, F.S., became effective (October 3, 1995, except within the “the Panhandle” [the geographical territory of the Northwest Florida Water Management District], and November 1, 2010, within the Panhandle when the “Phase 2 ERP rules” adopted under Section 373.4145(1)(b), F.S., were adopted); 2) those activities subject to the “grandfathering” provisions of Sections 373.414(11), (12), (13), (14), and (16), F.S.; and 3) those mining activities that qualify to use the provisions of Section 373.414(15), F.S. Entities who qualify for those provisions will be able to continue to use the rules proposed for repeal below, because Sections 373.414(11) through (16), F.S., specifically preserve the rules that existed under Section 403.91 through 403.929, 1984 Supplement to the Florida Statutes 1983, as amended, and Section 373.4145(6), F.S., specifically preserves the rules governing dredging and filling as they existed under Section 373.4145, F.S., 1994.
For the reason stated above, the following rules are proposed for repeal because they are no longer necessary: Rules 62-312.010, 62-312.030, 62-312.045, 62-312.050, 62-312.060, 62-312.065, 62-312.070, 62-312.080, 62-312.082, 62-312.085, 62-312.090, 62-312.100, 62-312.200, 62-312.210, 62-312.220, 62-312.300, 62-312.310, 62-312.320, 62-312.330, 62-312.340, 62-312.350, 62-312.360, 62-312.370, 62-312.380, and 62-312.390 F.A.C.
Subsections 62-312.020(5), (8), (9), (14), (15), (16) and (19), F.A.C., can be repealed for the same reason stated above. In addition, subsections 62-312.020(1) through (4), (6), (7), (10), (11), (12), (13), (17) and (18), F.A.C., can be repealed because they are repetitive of statutory definitions. For these reasons, all of Rule 62-312.020, F.A.C., can, be repealed.
Provisions of Rule 62-312.340, F.A.C., relating to ratios applicable to mitigation also can be repealed because they are superseded by the Uniform Mitigation Assessment Method in Chapter 62-345, F.A.C., except as provided in subsections 62-345.100(6) and (7), F.A.C., which preserve the rules in effect before the effective date of Chapter 62-345, F.A.C. (February 2, 2004) for the specified activities.
The “Scope of General Permits” in Rule 62-312.800, F.A.C., and the general permits in Rules 62-312.801, 62-312.803, 62-312.804, 62-312.805, 62-312.806, 62-312.807, 62-312.808, 62-312.809, 62-312.810, 62-312.811, 62-312.812, 62-312.816, 62-312.817, 62-312.818, 62-312.822, 62-312.823, 62-312.825, F.A.C., are now obsolete; they have been superseded by analogous noticed general permits in Chapter 62-341, F.A.C. The general permit in Rule 62-312.814, F.A.C., is obsolete because the methodology it authorized for constructing freshwater fish attractors is no longer commonly used. The general permit in Rule 62-312.815, F.A.C., is obsolete; an analogous noticed general permit does not exist for ski jumps and ski slalom courses because the Department concluded at the time the ERP rules were adopted in 1995 that these activities could cause more than minimal adverse individual and cumulative effects to wetlands and other surface waters and needed to be evaluated on a case-by-case basis. The general permit in Rule 62-312.819, F.S., has been superseded by the exemption in Section 403.813(1)(r), F.S. The general permit in Rule 62-312.824, F.A.C., has been superseded by the Noticed General Permit in Rule 62-341.448, F.S. (for municipalities within the NWFWMD) and the exemption in Section 403.813(2)(t), F.S. (for counties within the NWFWMD, in accordance with Section 373.4145(3)(e), F.S.). For these reasons, the above rules can be repealed.
OTHER RULES INCORPORATING THIS RULE: Sub-sub-subparagraph 62-4.050(4)(e)7.a.(I), F.A.C.; sub-subparagraphs 62-4.050(4)(e)1.a., b., c., and d., and 4.a. and b., 62-312.050(4)(e)8.a. and b., 62-302.700(9)(i)11.m., 62-302.700(9)(i)13.c., 19.b., 29.d., and 41.i., F.A.C.; subparagraphs 62-4.070(4)(e)6., 62-4.242(2)(f)2., 62-302.700(9)(a)(i)5., 62-302.700(9)(i)12., 13., 15., 17., 22., and 38., and 62-346.071(1)(j)a., F.A.C.; subsections 62-29.050(3), 62-110.107(1), (3), and (5), 62-302.300(17), 62-312.400(1), 62-341.900(3), 62-343.050(2), and 62-346.020(2), F.A.C.; and Rules 62-25.060, 62-330.100, 62-342.200, F.A.C.
EFFECT ON THOSE OTHER RULES: The effect must be determined on a case-by-case basis, as discussed below. Some of the above, such as those in Rule 62-302.700, F.A.C., include references to Chapter 62-312, F.A.C., rules with specific dates of incorporation by reference; those rules will not need to be amended, because the version of the Chapter 62-312, F.A.C., rules that existed on those dates will not be affected by these repeals. Rule 62-302.700, F.A.C., and subsection 62-312.400(1), F.A.C., contain references to terms defined in Rule 62-312.020, F.A.C., that need to be revised to cite to other rule or statutes that define those terms. Rules 62-4.050, 62-110.107, and 62-302.300, F.A.C., and subsections 62-343.050(2) and 62-346.020,(2), F.A.C., include Chapter 62-312, F.A.C., references that need to be retained so that persons relying on the “grandfathering” provisions of Sections 373.414(11) through (16), F.S., and Section 373.4145(6), F.S., will know the fee to pay and licensing requirements for the needed permit applications or notices; however, those references may need to be revised to add the date of the Chapter 62-312, F.A.C., rules that existed prior to their repeal. Similarly, Rule 62-342.200, F.A.C., and paragraph 62-342.750(1)(c), refer to the success criteria in Rule 62-312.350, F.A.C., that need to be retained but revised to add the date of the Chapter 62-312, F.A.C., rules that existed prior to their repeal, so that mitigation bankers can continue to rely on those criteria. Rule 62-25.060, F.A.C., contains references to previously repealed rules in Chapter 62-312, F.A.C., and subsection 62-110.107(1), F.A.C., references subsection 62-312.006(5), F.A.C., which does not exist; those references will be removed or corrected through technical amendments. Subsection 62-29.050(3), F.A.C., contains references to existing and repealed Chapter 62-312, F.A.C., rules; however, those deficiencies will be cured if Chapter 62-29, F.A.C., is repealed, as is proposed through separate rulemaking. Subsection 62-110.107(3), contains a reference to the general permit intent provisions in Rule 62-312.800, F.A.C., that will need to be deleted. Subparagraph 62-346.071(1)(j)a., F.A.C., references a general permit in Rule 62-312.824, F.A.C., that has been replaced by the noticed general permit in Rule 62-341.448, F.A.C., that will have to be revised to remove that reference. Rule 62-330.100, F.A.C., provides that Rule 62-312.020, F.A.C., (definitions proposed for repeal) and Rules 62-312.400 through .470, F.A.C., (special provisions to protect the Outstanding Florida Waters in Monroe County that are not being repealed) are to be used in conjunction with rules of the water management districts that are incorporated by reference in Rule 62-330.200, F.A.C.; the reference to Rule 62-312.020, F.A.C., will need to be updated to cite to other rules or statutes that define the applicable terms; the reference to Rules 62-312.400 through .470, F.A.C., does not need to be amended. Rules of the water management districts incorporated by reference in Rule 62-330.200, F.A.C., that include references to rules in Chapter 62-312, F.A.C., proposed for repeal may need to be amended in Rule 62-330.200, F.A.C., to correct those citations.

RULEMAKING AUTHORITY:

373.026, 373.043, 373.044, 373.118, 373.406, 373.414(11)-(16), 373.4145, 403.805(1), 403.813(1), 403.813(1)(t) , 403.814(1) FS.

LAW:

120.53(1), 120.60, 161.041, 161.055, 253.03, 253.04, 253.123, 253.124, 253.77, 258.42, 258.43, 373.026, 373.042, 373.043, 373.046, 373.118, 373.403, 373.409, 373.413, 373.414, 373.414(9), (11), (12), (12)(a), (13), (14), (15), (16), 373.4145, 373.416, 373.418, 373.422, 373.423, 373.426, 373.427, 373.4275, 403.031, 403.061, 403.062, 403.087, 403.803, 403.0875, 403.088, 403.161, 403.812, 403.813, 403.813(1), 403.813(1)(t), 403.814, 403.815, 403.816, 403.817, 403.911, 403.912, 403.913, 403.914, 403.918, 403.918-.921, 403.919, 403.921, 403.922, 403.923, 403.924, 403.925, 403.927, 403.929, 403.931 FS., Section 9, Chapter 84-79, Laws of Florida.

PRINT PUBLISH DATE:

11/23/2011 Vol. 37/47

COMMENTS:

From 11/23/2011 To 12/14/2011 (21 Days)
The public comment period for this notice has already expired.

REFERENCE MATERIALS:

No reference(s).

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