7150178, 62-346.010 - Florida Administrative Rules, Law, Code, Register

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Florida Department of State and Division of Library and Information Services

Notice: 7150178

Notice of Proposed Rule

Department:

DEPARTMENT OF ENVIRONMENTAL PROTECTION

Chapter:

Environmental Resource Permitting in Northwest Florida

Overview

RULE:

62-346.010	Policy and Purpose (Repealed)
62-346.020	General Provisions (Repealed)
62-346.030	Definitions (Repealed)
62-346.040	Formal Determinations of the Landward Extent of Wetlands and Other Surface Waters (Repealed)
62-346.050	Permits Required (Repealed)
62-346.051	Exemptions from Permitting (Repealed)
62-346.055	No-notice General Permits.
62-346.060	Conceptual Approval Permits (Repealed)
62-346.070	Procedures to Prepare Applications and Notices for Permits, Water Quality Certification, Coastal Zone Consistency Concurrence, and to Request Verification of Qualification for an Exemption (Repealed)
62-346.071	Fees (Repealed)
62-346.075	Additional Requirements and Procedures for Concurrent Review of Related Applications (Repealed)
62-346.080	Submittal of Applications and Notices for Permits and Petitions for Formal Determinations to Department and NWFWMD Offices (Repealed)
62-346.090	Processing of Notices and Applications (Repealed)
62-346.091	Documents Incorporated by Reference. (Repealed)
62-346.095	Operation, Maintenance, and Inspection (Repealed)
62-346.100	Modification of Permits (Repealed)
62-346.110	Duration of Permits (Repealed)
62-346.120	Permit Extensions (Repealed)
62-346.130	Transfer of Ownership (Repealed)
62-346.140	Suspension and Revocation (Repealed)
62-346.150	Relinquishment and Abandonment.
62-346.301	Conditions for Issuance of Individual (Including Conceptual Approval) and Standard Stormwater Permits (Repealed)
62-346.302	Additional Conditions for Issuance of Individual and Conceptual Approval Permits (Repealed)
62-346.381	General and Special Limiting Conditions (Repealed)
62-346.451	Emergency Authorizations and Actions (Repealed)
62-346.900	Environmental Resource Permit Forms. (Repealed)

PURPOSE:

Chapter 62-346, F.A.C., has been amended to implement Phase 2 of the Environmental Resource Permit (ERP) rules within the Northwest Florida Water Management District (NWFWMD, also referred to as the “Panhandle”). These amendments add environmental criteria, including regulation of dredging and filling in, on, or over connected and isolated wetlands and other surface waters to the Phase 1 rules governing stormwater management systems, which became effective on October 1, 2007. As required by Section 373.4145, F.S., the permitting thresholds and requirements are designed to: (1) improve the management and storage of surface waters with minimal impact on property interests in consideration of the rural nature, current development trends, and abundant natural resources within the Panhandle; (2) enable the Department to pursue streamlining of this rule with the federal wetland permitting program; and (3) implement other streamlining measures to the maximum extent possible, such as electronic permitting, field permitting, and informal wetland determinations. The rule also incorporates the provisions specified in Section 373.4145(3), F.S., and “grandfathering” provisions for activities that will continue to be governed under Chapters 62-25 and 62-312, F.A.C. When the Phase 2 rules go into effect, a separate wetland resource permit under Chapter 62-312, F.A.C., which regulates dredging and filling in surface waters of the state, will no longer be required, except for those activities as provided in Section 373.4145(5), F.S.
This rule includes amendments to Applicant’s Handbook Volumes I and II. Volume I contains procedures and general criteria used in Chapter 62-346, F.A.C., and has been amended to include new environmental criteria. Volume II, which addresses the design and performance standards for stormwater management systems, has been amended to address issues that were identified during implementation of the Phase 1 rules. This rulemaking also includes amendments to the “Operating Agreement Concerning Regulation Under Part IV, Chapter 373, F.S., Between Northwest Florida Water Management District and Department of Environmental Protection.”

SUMMARY:

The revisions to Chapter 62-346, F.A.C., including the Applicant’s Handbook Volumes I and II generally: (1) remove language restricting the rule to stormwater management system regulation, as required by Phase I; (2) add “environmental” provisions adopted by the Suwannee River, St. Johns River, Southwest Florida, and South Florida Water Management Districts in 1995 to implement the requirements of Section 373.414, F.S., throughout the rest of the state; and (3) update and correct language based on experience learned and comments received from staff and the public since the Phase 1 rules were first implemented. The format and number system used in the rules and the incorporation of the Applicant’s Handbook is the same as is used by the water management districts outside of the Panhandle.
Rules 62-346.010 and .020, F.A.C., are modified to make minor technical revisions. The most significant change is the addition of subsection 62-346.020(5), F.A.C., reflecting the linkage of the regulatory and proprietary programs in accordance with the provisions of Sections 253.77 and 373.427, F.S.
Rule 62-346.030, F.A.C., is amended to: (1) add a definition of “direct discharge;” (2) add definitions related to dredging and filling in wetlands and other surface waters; and (3) update, correct, and clarify terms that were previously defined in the Phase 1 rules.
Rule 62-346.050, F.A.C., is modified to establish thresholds in subsection (1) for certain minor activities, below which a permit will not be required. These activities were previously established as exemptions in subsection 62-346.051(3), F.A.C., in the Phase 1 rules. This change is consistent with the way other water management district rules address minor activities meeting certain limitations and conditions. Subsection (2) is amended to include language that also was moved from the exemption in subsection 62-346.051(3), F.A.C.
The exemption in subsection 62-346.051(3), F.A.C., is deleted for the reasons discussed above. The exemption for private docks in paragraph (5)(a) is amended to limit the number of exempt docks that can be built on a single parcel of land, using the same language that exists in the dock exemptions in Section 403.813(1)(b), F.S., and in the existing dredge and fill and ERP rules of the Department and water management districts; this limitation was inadvertently overlooked during adoption of the Phase 1 rules. The exemption for seawall and riprap restoration in paragraph (14)(b) is amended to allow restoration when a seawall or riprap has been rendered non-functional by a discrete storm event. The exemption for electrical distribution substations in paragraph (16)(g) is amended to allow stormwater treatment alternatives to swales and to prevent direct discharges to Outstanding Florida Waters. A new exemption for modification or reconstruction of an existing, previously unpermitted conveyance system by a governmental agency is added in subsection (18), reflecting a similar exemption currently in paragraph 62-25.030(2)(c), F.A.C.
Paragraph 62-346.060(1)(a), F.A.C., is amended to reflect that future reliance on a conceptual approval permit is dependent on that permit remaining consistent with any Total Maximum Daily Load or Basin Management Action Plan approved under the provisions of Section 403.067(7), F.S., and Chapter 62-304, F.A.C.
Subsection 62-346.070(2), F.A.C., is amended to update the procedures for verifying qualification for an exemption, including adoption of a new Form 62-346.900(11), “Request for Verification of an Exemption.” Subsection (3) is added to ensure that applications are received only from entities that have sufficient title interest in the property subject of an application. Subsections (5) and (6) are added to provide that a permit under Chapter 62-346, F.A.C., also constitutes issue or waiver of a water quality certification under Section 401 of the Clean Water Act, and concurrence that the activity is consistent with the relevant statutory authorities under Florida’s federally approved Coastal Zone Management Program. In accordance with Section 403.9328(5), F.S., subsection (9) is added to reflect that a separate permit for trimming or altering mangroves is not required for activities permitted under Chapter 62-346, F.A.C.
Rule 62-346.071, F.A.C., is amended to include new fees for dredge and fill activities in the fee schedule that was adopted in the Phase 1 rule. The fees for those activities are the same as the fees for the equivalent ERP activities already adopted in paragraph 62-4.050(4)(h), F.A.C., and also have been amended to reflect the minimum fees and the Consumer Price Index adjustments to fees required by Section 373.109, F.S.
The new Rule 62-346.075, F.A.C., provides procedures for the concurrent review of an ERP individual permit located on state-owned submerged lands as authorized by Sections 253.77 and 373.427, F.S. The procedures are identical to those already adopted in Rule 62-312.065, F.A.C., for dredge and fill activities in the Panhandle and Rule 62-343.075, F.A.C., for ERP activities in the rest of the state.
New paragraphs 62-346.090(1)(g) and (2)(l), F.A.C., require distribution of noticed general and individual permits for activities in wetlands and other surface waters to the U.S. Army Corps of Engineers and specific state agencies with statutory authorities under the State’s Coastal Zone Management Program. Paragraph 62-346.090(1)(e), F.A.C., is amended to inform applicants that they will be notified if an application for an ERP qualifies for an exemption. Paragraph (2)(c) is amended to provide that an applicant may declare an application to be complete at any time, as provided in Section 373.4141, F.S. Paragraph (2)(d) is amended to reflect that the Department will not refund any tendered application fee upon a determination that an activity is exempt from permitting, because this refund, as required by Section 120.60, F.S., has been superseded by the provisions of Section 373.109, F.S., effective July 1, 2008.
Subsection 62-346.091(1), F.A.C., is amended to update documents that are incorporated by reference for use in implementing Chapter 62-346, F.A.C. Applicant’s Handbook Volume I includes significant new text to implement the Phase 2 rules, including adoption of Appendix E, F, and G. Applicant’s Handbook Volume II is revised to incorporate “lessons learned” since the Phase 1 rules were implemented, as discussed below. The “Operating Agreement Concerning Regulation Under Part IV, Chapter 373, F.S., Between Northwest Florida Water Management District and Department of Environmental Protection” is revised to provide the NWFWMD with new responsibilities for reviewing and taking agency action on Phase 2 applications, namely to increase NWFWMD’s review of activities located in wetlands and other surface waters from 0.5 acre to up to 5 acres. Subsection (d) is revised to omit a number of provisions from Chapter 6 of the Florida Development Manual that are now out of date and conflict with more specific requirements contained in Chapter 62-346, F.A.C., and the Applicant’s Handbook. Chapter 5 of the Florida Development Manual is added because it contains helpful information on calculating runoff volume using the rational method, the use of which is added following receipt of public comments. The new State of Florida Erosion and Sediment Control Designer and Reviewer Manual is added in paragraph (f).
Subsection 62-346.095(1), F.A.C., re-titled “Operation, Maintenance, and Inspections,” is amended to reflect that multi-ownership of a system may be appropriate in some cases. Paragraph (1)(b) is amended to address the unique circumstances of mining operations. Subsection (2) is amended to add simplified provisions for converting systems serving individual, private single-family dwelling units from the construction to the operation and maintenance phase, and to clarify that conversion to the operation and maintenance phase for all permittees will not require payment of a fee. Subsection (3) is amended to provide that the conversion to the operating phase for any phase or independent portion of a larger system cannot occur until after construction of all roads, as well as stormwater conveyance, treatment and attenuation systems for that phase have been completed. Subsection (6) is amended to provide that systems for individual, private single-family dwelling units are not subject to an automatic three-year inspection following conversion to the operation phase, and to clarify that any permit is subject to special permit conditions to provide specific inspection requirements depending on the nature of the system.
Paragraph 62-346.100(1)(a), F.A.C., is amended to delete language that incorrectly implied that noticed general permits were subject to modification. Paragraph (1)(d) is amended to clarify changes that will qualify as minor permit modifications. Subsection (3) is amended to require compliance with the additional conditions for issuance in Rule 62-346.302, F.A.C., when applicable, as a requirement for qualifying for a permit modification.
Rule 62-346.150, F.A.C., is added to provide requirements for relinquishing and abandoning a system as authorized by Section 373.426, F.S.
Subsection 62-346.301(1), F.A.C., is amended to expand the scope of the conditions that will apply to issuance of all surface water management systems. New paragraph (d) provides that a permitted system must not adversely affect the value of functions provided by wetlands and other surface waters to fish and wildlife and listed species; this comports with the ERP rules in the rest of the state. The presumption provisions in Subsection (3) are deleted, and subsection (4) is added because the scope of qualifying for issuance of a Phase 2 permit is broader than was the case under the Phase 1 rules.
New Rule 62-346.302, F.A.C., incorporates the additional conditions for issuance of an ERP, identical to the ERP rules in the rest of the state. Specifically, paragraph (a) provides the public interest balancing test factors in Section 373.414(1)(a), F.S., that will be applied to activities located in wetlands and other surface waters. Paragraph (b) requires consideration of the cumulative impacts on wetlands and other surface waters for all activities, as required by Section 373.414(8), F.S. Paragraph (c) provides criteria for protecting waters that are used for shellfish harvesting, as required by Sections 403.061(29) and 373.414(9), F.S. Paragraph (d) incorporates provisions for protecting estuaries and lagoons from the harmful effects of vertical seawalls, as required by Sections 373.414(5) and 373.414(9), F.S. Subsection (2) requires a consideration of an applicant’s past history of violating wetland resource and Part IV, Chapter 373, F.S., rules in the same manner as those violations are considered in the ERP rules in the rest of the state.
Paragraph 62-346.381(1)(b), F.A.C., is amended to require placement of a sign during construction, which will aid in compliance inspections. Paragraph (d) is updated to reflect current erosion and sedimentation methodology and references. Paragraph (g) is amended to clarify as-built certification requirements, including providing simplified procedures associated with construction of private single-family dwelling units. The requirement for on-site observation by a registered professional is stricken in response to comments. Specific requirements of the certification are stricken in favor of more general language, which was also included in the as-built certification Form 62-346.900(4). Paragraph (k) is amended to reflect that entities with the power of eminent domain or contracts to purchase must demonstrate proof of ownership before construction, and paragraph (n) is amended to require transfer of a lease to the current landowner or new lessee prior to or on the date of expiration of a lease; these changes are intended to reduce potential trespass and compliance conflicts.
Most of the forms in Rule 62-346.900, F.A.C., are amended to reference surface water management systems instead of stormwater management systems. The application form in subsection 62-346.900(1), F.A.C., is amended to: (1) incorporate informational requirements necessary to evaluate activities in, on, over, or that may affect wetlands and other surface waters; (2) update and correct language; (3) add provisions to facilitate application review; and (4) standardize the form with the ERP application used in the rest of the state, which also serves as a joint application with the U.S. Army Corps of Engineers. A new Form (5) is added to provide a streamlined process for an individual, private single-family dwelling unit to inform the Department of completion and request inspection of the system. New Form (11) provides a standardized format for a party to request verification of an exemption. Copies of the forms are contained in Appendix C within Applicant’s Handbook Volume I.
Applicant’s Handbook Volume I, re-titled “General and Environmental,” is updated to reflect the changes described to Chapter 62-346, F.A.C. In addition, several new sections are added: (1) section 3.6, which discusses procedures for relinquishment and abandonment of systems; (2) criteria for storage and conveyance are removed from Applicant’s Handbook Volume II and moved to a new section 8.4.5; (3) criteria on low flow and base flow were removed from Applicant’s Handbook Volume II and moved to new sections 8.4.6 through 8.4.6.2; (4) sections 8.5 through 8.5.2, explaining the Additional Conditions for Issuance provisions from Rule 62-346.302, F.A.C.; (5) section 8.4.7, providing guidance on design and performance standards for dams; and (6) all of section 10, which provides a discussion, taken from the Applicant’s Handbooks and Basis of Review from the four water management districts outside of the Panhandle, on the environmental criteria used in assessing activity impacts to wetlands and surface waters. Appendix A is amended to revise the Operating Agreement between the Department and the NWFWMD, most notably increasing the District’s responsibility for permitting, compliance, and enforcement from no more than 0.5 acre of dredge and fill activity for transportation impacts (ingress, egress, and interior roadways, bridges, and culvert crossings, but excluding individual residential driveways), to five or fewer acres of wetland or other surface water impact for any activity. The ERP Application Form, 62-346.900(1), is expanded in Appendix C to include additional information needed for it to serve as a joint application with the U.S. Army Corps of Engineers (in accordance with the Department/WMD/USACE Operating Agreement last amended November 30, 1998), and to authorize activities on state-owned submerged lands; these changes are generally consistent with the ERP application form used throughout the rest of the state. A new notice of completion of construction form 62-346.900(5) is added to simplify the process for converting construction permits for individual, private single-family dwelling units to an operation and maintenance phase. Also added is a new form 62-346.900(11), for all persons to request verification of an exemption. New checklists are included in Appendix D for homeowners and property owner associations to use for purposes of demonstrating that they have adequate legal and financial responsibility to operate and maintain a permitted system. A new Appendix E provides standardized financial responsibility documents required for mitigation activities. A new Appendix F provides guidance for evaluating activities involving borrow pits, including discussion on when or whether an ERP permit is required to continue mining in a borrow pit that was in existence prior to the effective date of the Phase 2 rules. Finally, a new Appendix G provides procedures for evaluating when modifications to stormwater treatment systems previously regulated under Chapter 62-25, F.A.C., would require a permit under Part IV of Chapter 373, F.S.
Applicant’s Handbook Volume II contains numerous amendments needed to address questions and issues that have been identified since the Phase 1 rules were adopted on October 1, 2007. As in Applicant’s Handbook Volume I, some of the edits are to improve clarity and content, and to make technical corrections and updates. Other, more significant edits include: (1) new language in section 3.3(a) deleting National Resource Conservation Service Type II rainfall distribution requirements and make the use of the Type III distribution available throughout the Panhandle; (2) striking the use of the F.D.O.T. Drainage Manual Appendix B as a tool for estimating rainfall intensity and volume in section 3.3.4; (3) addition of language in section 4.5.1 which provides that the addition of impervious surfaces to existing systems, and projects that discharge to tide, will not be required to meet streambank protection criteria; (4) a new section 4.5.2 that provides guidance and criteria for estimating peak runoff rates using the modified rational formula; (5) a new section 4.10 clarifying that dry retention ponds, detention ponds with filtration, dry detention with underdrains, and wet detention ponds are considered impervious when performing hydrologic runoff calculations; (6) a new section 4.11 adding special criteria for rural subdivisions that generally contain large lots with very little impervious area; (7) a new section 4.12providing a detailed explanation of the water quality volume calculation as it relates to the amount of runoff that must be retained; (8) new language in section 8.6 providing criteria for applicants who do not want to install a littoral zone around the perimeter of a proposed wet detention pond system; (9) new language in section 8.9 providing that control elevations (normal pool stage for wet detention ponds) shall be set at or above the normal ground water elevation; (10) deletion of language in section 11.2 that implied that Vegetated Natural Buffers (VNBs) could only be used in conjunction with another “primary” treatment system that complied with the BMP section of the Handbook; (11) deletion of inaccurate runoff coefficient values from Table 14-1; (12) corrections to the design example for wet detention systems in section 14.4; (13) a new section 17.4 providing criteria for mines and other excavations that may occur within limestone and Karst geology; and, (14) a new Appendix B, providing limitations and operation and maintenance guidance for “detention with filtration” systems and the checklist for design parameters for these systems.

RULEMAKING AUTHORITY:

161.055, 253.03(7), 253.77, 258.43, 373.026(7), 373.026, 373.043, 373.044, 373.046, 373.109, 373.113, 373.118, 373.413, 373.414(9), 373.414, 373.4145, 373.416, 373.418, 373.421(2), 373.421, 373.426, 373.427, 373.439, 380.06, 403.0877, 403.805(1) FS.

LAW:

120.569(2), 120.60, 120.60(2), 120.60(6), 161.041, 161.055, 218.075, 253.03, 253.77, 258.42, 258.43, 373.019, 373.026, 373.026(7), 373.042, 373.0421, 373.043, 373.046, 373.109, 373.117, 373.118, 373.119, 373.403, 373.406, 373.409, 373.413, 373.4132, 343.414, 373.4141, 373.4142, 373.4145, 373.416, 373.416(2), 373.418, 373.419, 373.421, 373.421(2), 373.4211, 373.422, 373.423, 373.426, 373.427, 373.4275, 373.428, 373.429, 373.433, 373.436, 373.439, 380.06, 380.23, 403.813(2), 403.805(1), 403.0877, 403.813(12) FS.

PRINT PUBLISH DATE:

5/22/2009 Vol. 35/20

COMMENTS:

From 5/22/2009 To 6/12/2009 (21 Days)
The public comment period for this notice has already expired.

REFERENCE MATERIALS:

No reference(s).

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