Notice of Proposed Rule

WATER MANAGEMENT DISTRICTS
South Florida Water Management District
RULE NO: RULE TITLE
40E-4.021: Definitions
40E-4.091: Publications, Rules and Interagency Agreements Incorporated by Reference
40E-4.101: Content of Permit Applications
40E-4.321: Duration of Permits
40E-4.381: General Conditions
PURPOSE AND EFFECT: The proposed amendments incorporate provisions to allow for noticing, delivery and receipt of documents through electronic media.
SUMMARY: The proposed rules set forth definitions describing the electronic terminology used throughout the District's rules, and provide for electronic noticing, electronic filings, electronic receipt and/or electronic transmission by the District.
SUMMARY OF ESTIMATED REGULATORY COSTS: A Statement of Estimated Regulatory Cost has not been prepared based on the District's determination that the proposed revisions will not result in a substantial increase in the costs to affected parties and there will not be significant adverse effects on competition, employment, investment or productivity.
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: 373.016, 373.044, 373.103(8), 373.113, 373.171, 373.413, 373.441, 668.003, 668.004, 668.50 FS.
LAW IMPLEMENTED: 373.016, 373.019, 373.116, 373.117, 373.229, 373.403-.443, 668.50, 704.06, 668.003, 668.004, 668.50 FS.
A HEARING WILL BE HELD AT THE TIME, DATE AND PLACE SHOWN BELOW:
TIME AND DATE: June 14, 2006, 9:00 a.m.
PLACE: South Florida Water Management District Headquarters, B-1 Auditorium, 3301 Gun Club Road, West Palm Beach, Florida 33406.
Although Governing Board meetings, hearings and workshops are normally recorded, affected persons are advised that it may be necessary for them to ensure that a verbatim record of the proceeding is made, including the testimony and evidence upon which any appeal is to be based.
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 2 days before the workshop/meeting by contacting: the South Florida Water Management District Clerk's Office at (561) 682-6436. 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: Ronda Wise, South Florida Water Management District, Post Office Box 24680, West Palm Beach, FL 33416-4680, telephone 1-800-432-2045, extension 6500 or (561) 682-6500 (internet: rwise@sfwmd.gov). For procedural questions, Jan Sluth, Paralegal, South Florida Water Management District, Post Office Box 24680, West Palm Beach, FL 33416-4680, telephone 1-800-432-2045, extension 6299, or (561) 682-6299 (internet: jsluth@sfwmd.gov).

THE FULL TEXT OF THE PROPOSED RULE IS:

40E-4.021 Definitions.

When used in this chapter, Chapters 40E-1, 40E-40, 40E-41 and 40E-400, F.A.C.:            (1) through (11)  No Changes.

(12) “e-Permitting website” means the District’s website address for e-Permitting at http://my.sfwmd.gov/ePermitting.

(13) “Electronic filing” means filing or submission of an Environmental Resource, Surface Water Management Permit or Consumptive Use Permit Application; Response to Request for Additional Information; or Request for Permit Transfer at the District's e-Permitting website.  Electronic filing is governed by the provisions of Chapter 668, F.S.  If the applicant or sender of electronic data inhibits the ability of the District to store or print the electronic data, it shall not be considered filed with or received by the District.  Filings received by the District after 5:00 p.m. shall be deemed filed on the next regular business day.

(14) “Electronic mail” means an electronic or computer file that is transmitted between two or more telecommunications devices; computers; computer networks, regardless of whether the network is a local, regional, or global network; or electronic devices capable of receiving electronic messages, regardless of whether the message is converted to hard copy format after receipt, viewed upon transmission, or stored for later retrieval.  Electronic mail received after 5:00 p.m. shall be deemed received on the next regular business day. 

(15) “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, Florida Statutes.

(16) “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. 

(17)(12) “Embedment” means the placement of transmission or distribution lines, pipes or cables into the bottoms of waters of the State by minimal displacement of bottom material and without the creation of a trench, or trough, through the use of techniques such as plowing-in, weighing -in, or non-trenching jets.

(18)(13) “Endangered species” means those animal species which are listed as endangered in Rule 68A-27.003, F.A.C., and those plant species which are listed in 50 Code of Federal Regulations 17.12, when such plants are found to be located in a wetland or other surface water.

(19)(14) “Entrenchment” means the placement of transmission or distribution lines, pipes or cables into the bottoms of waters of the State by the creation of a defined trench, or trough, through the use of such devices as clamshells, dredges, trenching jets, or other devices which produce similar results.

(20)(15) “Environmental resource permit” means a conceptual approval, individual or general permit for a surface water management system issued pursuant to Part IV, Chapter 373, F.S. Environmental resource permit also means a conceptual or individual permit for the establishment and operation of a mitigation bank.

(21)(16) “Estuary” means a semi-enclosed, naturally existing coastal body of water which has a free connection with the open sea and within which seawater is measurably diluted with fresh water derived from riverine systems.

(22)(17) “Filling” means the deposition, by any means, of materials in surface waters or wetlands, as delineated by Section 373.4211, F.S.

(23)(18) “General Permit” means a no notice, noticed or standard general environmental resource permit issued by District staff. However, staff recommendations for denial of noticed or standard general permit applications shall be considered by the Governing Board.

(24)(19) “Impoundment” means any lake, reservoir, pond, or other containment of surface water occupying a bed or depression in the earth’s surface and having a discernible shoreline.

(25)(20) “Incidental site activities” means those certain site activities in uplands which may be conducted in conjunction with the work proposed in an environmental resource permit application such as: land clearing in uplands; minimal earthwork, lake construction; road subgrade construction; foundation construction; utility installation; fence installation; construction trailer installation; unconnected drainage facility construction; or other similar activities.

(26)(21) “Individual Permit” means an environmental resource permit issued by the District Governing Board.

(27)(22) “Isolated Wetland” means any wetland without a direct hydrologic connection to a lake, stream, estuary, or marine water.

(28)(23) “Lagoon” means a naturally existing coastal zone depression which is below mean high water and which has permanent or ephemeral communications with the sea, but which is protected from the sea by some type of naturally existing barrier.

(29)(24) “Listed Species” means those animal species which are endangered, threatened or of special concern and are listed in Rules 68A-27.003, 68A-27.004 and 68A-27.005, F.A.C., and those plant species listed in 50 Code of Federal Regulations 17.12.

(30)(25) “Maintenance” or “Repairs” means remedial work of a nature as may affect the safety of any dam, impoundment, reservoir, or appurtenant work or works, but excludes routine custodial maintenance.

(31)(26) “Operation Permit” means a permit issued by the District authorizing the operation and maintenance of a surface water management system in accordance with the terms and conditions of the permit.

(32)(27) “Other Surface Waters” means surface waters as described and delineated pursuant to Rule 62-340.600, F.A.C., as ratified by Section 373.4211, F.S., other than wetlands.

(33) "Posting" means placing notice on the District's website or on one of the District's official posting bulletin boards.

(34)(28) “Riprap” means a sustaining wall made to reduce the force of waves and to protect the shore from erosion and consists of unconsolidated boulders, rocks, or clean concrete rubble with no exposed reinforcing rods or similar protrusions.

(35)(29) “Species of Special Concern” means those animal species listed in Rule 68A-27.005, F.A.C.

(36)(30) “State Water Quality Standards” means water quality standards adopted pursuant to Chapter 403, F.S.

(37)(31) “Stormwater Management System” means a system which is designed and constructed or implemented to control discharges which are necessitated by rainfall events, incorporating methods to collect, convey, store, absorb, inhibit, treat, use or reuse water to prevent or reduce flooding, over drainage, environmental degradation, and water pollution or otherwise affect the quantity and quality of discharges from the system.

(38)(32) “Surface Water Management Permit” means a permit issued pursuant to Chapter 40E-4 or 40E-40, F.A.C., prior to October 3, 1995, or that is grandfathered pursuant to Sections 373.414(11)-(16), F.S.

(39)(33) “Surface Water Management System” or “System” means a stormwater management system, dam, impoundment, reservoir, appurtenant work or works, or any combination thereof. The terms “surface water management system” or “system” includes areas of dredging or filling as defined by Section 373.403(13) and (14), F.S., respectively.

(40)(34) “Threatened Species” means those animal species listed in Rule 68A-27.004, F.A.C., and those plant species which are listed as threatened in 50 Code of Federal Regulations 17.12.

(41)(35)Total Land Area” means land holdings under common ownership which are contiguous or land holdings which are served by common surface water management facilities.

(42)(36) “Vertical Seawall” is a seawall the waterward face of which is at a slope greater than 75 degrees to the horizontal. A seawall with sloping riprap covering the waterward face to the mean high water line shall not be considered a vertical seawall.

(43)(37) “Watershed” means the land area which contributes to the flow of water into a receiving body of water.

(44)(38) “Wetlands” means those areas that are inundated or saturated by surface water or ground water at a frequency and a duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soils. Soils present in wetlands generally are classified as hydric or alluvial, or possess characteristics that are associated with reducing soil conditions. The prevalent vegetation in wetlands generally consists of facultative or obligate hydrophytic macrophytes that are typically adapted to areas having soil conditions described above. These species, due to morphological, physiological or reproductive adaptation, have the ability to grow, reproduce, or persist in aquatic environments or anaerobic soil conditions.  Florida wetlands generally include swamps, marshes, bayheads, bogs, cypress domes and strands, sloughs, wet prairies, riverine swamps and marshes, hydric seepage slopes, tidal marshes, mangrove swamps and other similar areas.  Florida wetlands generally do not include longleaf or slash pine flatwoods with an understory dominated by saw palmetto. The landward extent of wetlands is delineated pursuant to Rules 62-340.100 through 62-340.550, F.A.C., as ratified by Section 373.4211, F.S.

(45)(39) “Wetland Resource Permit” means a permit issued pursuant to Chapter 62-312, F.A.C., prior to October 3, 1995, or that is grandfathered pursuant to Sections 373.414(11)-(16), F.S.

(46)(40) “Works” means all artificial structures, including but not limited to ditches, canals, conduits, channels, culverts, pipes, and other construction that connects to, draws water from, drains water into, or is placed in or across the waters in the state.

PROPOSED EFFECTIVE DATE:  October 1, 2006

Specific Authority 373.044, 373.113, 668.003, 668.004, 668.50 FS. Law Implemented 373.019, 373.403-.443, 403.031, 668.003, 668.004, 668.50, 704.06 FS. History–New 9-3-81, Amended 1-31-82, 12-1-82, Formerly 16K-1.05(1), Amended 7-1-86, 4-20-94, 10-3-95, 4 -1-96, ___________.

40E-4.091  Publications, Rules and Interagency Agreements Incorporated By Reference.

(1) The following publications, rules and interagency agreements are incorporated by reference into this chapter, Chapters 40E-40, 40E-41 and 40E-400, F.A.C.:

 (a) “Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District – ___________2-12-06".

(b) through (k)  No Change.

(2)  No Change.

PROPOSED EFFECTIVE DATE:  October 1, 2006

 

Specific Authority 373.044, 373.103(8), 373.113, 373.171, 373.413, 373.441, 668.003, 668.004, 668.50 FS.

Law Implemented 373.413, 373.4135, 373.4137, 373.414, 373.4142, 373.416, 373.418, 373.421, 373.426, 373.441, 668.003, 668.004, 668.50 FS. History–New 9-3-81, Amended 1-31-82, 12-1-82, Formerly 16K-4.035(1), Amended 5-1-86, 7-1-86, 3-24-87, 4-14-87, 4-21-88, 11-21-89, 11-15-92, 1-23-94, 4-20-94, 10-3-95, 1-7-97, 12-3-98, 5-28-00,8-16-00, 1-17-01, 7-19-01, 6-26-02, 6 -26-02, 4 -6-03, 4-14-03, 9-16-03, 12-7-04, ___________.

40E-4.101 Content of Permit Applications.

(1) Applications for permits required by this chapter shall be filed with the District Service Center which will review the application as set forth in Rule 40E-1.6025, F.A.C., or filed electronically at the District's e-Permitting website.  The application shall contain:

(a) No Changes.

(b) One original and four copies of Joint Water Management District/Department of Environmental Protection/U.S. Army Corps of Engineers Environmental Resource Permit Application Form No. 0971 and five copies of drawings, calculations, environmental information, and engineering details sufficient to define the nature, scope, intent and functioning of the work proposed. This information must include at a minimum: flood protection, water quality, environmental impacts, proposed mitigation, water supply, and water conservation elements.  Applicants who file an application electronically are not required to submit copies.

(2) through (4) No Changes.

PROPOSED EFFECTIVE DATE:  October 1, 2006

Specific Authority 373.016, 373.044, 373.113, 373.171, 668.003, 668.004, 668.50 FS. Law Implemented 373.016, 373.117, 373.413, 373.416, 373.426, 668.003, 668.004, 668.50 FS. History–New 9-3-81, Amended 1-31-82, 12-1-82, Formerly 16K-4.03(2), 16K-4.07(2), 16K-4.09(2), Amended 7-1-86, 11-21-89, 4-20-94, 10-3-95, 5-28-00, 4-14-03, 8-14-03, _______.

40E-4.321 Duration of Permits.

(1) (a) through (e)  No Changes.

(2)(a) Unless prescribed by special permit condition, permits expire automatically according to the timeframes indicated in this rule. If application for extension is made by electronic mail at the District's e-Permitting website or in writing pursuant to subsection (3), the permit shall remain in full force and effect until:

1. The Governing Board takes action on an application for extension of an individual permit, or

2. Staff takes action on an application for extension of a standard general permit.

(b) No Changes.

(3) through (7)  No Changes.

PROPOSED EFFECTIVE DATE:  October 1, 2006

Specific Authority 373.044, 373.113, 668.003, 668.004, 668.50 FS. Law Implemented 373.413, 373.416, 373.419, 373.426, 668.003, 668.004, 668.50 FS. History–New 9-3-81, Amended 1-31-82, 12-1-82, Formerly 16K-4.07(4), Amended 7-1-86, 4-20-94, 10-3-95, 5-28-00, ______.

40E-4.381 General Conditions.

(1) (a) through (f)  No Changes.

(g) The operation phase of this permit shall not become effective: until the permittee has complied with the requirements of condition (f) above, has submitted a Request for Conversion of Environmental Resource/Surface Water Management Permit from Construction Phase to Operation Phase and Transfer of Permit to the Operating Entity Form No. 0920, incorporated by reference in Rule 40E-1.659, F.A.C.; the District determines the system to be in compliance with the permitted plans and specifications ; and the entity approved by the District in accordance with Sections 9.0 and 10.0 of the “Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District – April 2003,” accepts responsibility for operation and maintenance of the system. The permit shall not be transferred to such approved operation and maintenance entity until the operation phase of the permit becomes effective. Following inspection and approval of the permitted system by the District, the permittee shall initiate transfer of the permit to the approved responsible operating entity if different from the permittee. Until the permit is transferred pursuant to Rule 40E-1.6107, F.A.C., the permittee shall be liable for compliance with the terms o f the permit.

(h) No changes.

(i) For those systems that will be operated or maintained by an entity that will require an easement or deed restriction in order to enable that entity to operate or maintain the system in conformance with this permit, such easement or deed restriction must be recorded in the public records and submitted to the District along with any other final operation and maintenance documents required by Sections 9.0 and 10.0 of the “Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District – April 2003,” prior to lot or unit sales or prior to the completion of the system, whichever occurs first. Other documents concerning the establishment and authority of the operating entity must be filed with the Secretary of State where appropriate. For those systems which are proposed to be maintained by the county or municipal entities, final operation and maintenance documents must be received by the District when maintenance and operation of the system is accepted by the local government entity. Failure to submit the appropriate final documents will result in the permittee remaining liable for carrying out maintenance and operation of the permitted system and any other permit conditions.

(j) Should any other regulatory agency require changes to the permitted system, the permittee shall notify the District by electronic mail at the District's e-Permitting website or in writing of the changes prior to implementation so that a determination can be made whether a permit modification is required.

(k) through (o)  No Changes.

(p) The permittee shall notify the District by electronic mail at the District's e-Permitting website or in writing within 30 days of any sale, conveyance, or other transfer of ownership or control of a permitted system or the real property on which the permitted system is located. All transfers of ownership or transfers of a permit are subject to the requirements of Rules 40E- 1.6105 and 40E-1.6107, F.A.C. The permittee transferring the permit shall remain liable for corrective actions that may be required as a result of any violations prior to the sale, conveyance or other transfer of the system.

(q) through (r)  No Changes.

(s) The permittee shall immediately notify the District by electronic mail at the District's e-Permitting website or in writing of any previously submitted information that is later discovered to be inaccurate.

(2) No Changes.

PROPOSED EFFECTIVE DATE:  October 1, 2006

Specific Authority 373.044, 373.113, 373.171, 668.003, 668.004, 668.50 FS. Law Implemented 373.116, 373.229, 373.413, 373.416, 373.421, 373.422, 373.426, 668.003, 668.004, 668.50 FS. History–New 9-3-81,

Amended 1-31-82, 12-1-82, Formerly 16K-4.07(3), 16K-4.38, Amended 7-1-86, 4-20-94, 10-3-95, 1-7-97, 4 -14-03, 9-16-03, _______.

(The following represents proposed changes to the document entitled "Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District - December 7, 2004" incorporated by reference in Rule 40E-4.091, F.A.C.)

4.3.9.3

(a) and (b) No Change

(c)   Melaleuca eradication plans shall be submitted to the appropriate District Service Center serving the area in which the activity is proposed as designated in Rule 40E-1.6025, F.A.C., and shall be accompanied by the information required in subsection 4.3.9.

1. District staff shall notify the applicant in writing via regular United States mail or electronic mail of its proposed recommendation that the Governing Board approve or deny the eradication plan. This notification shall occur within sixty (60) days following receipt of a completed eradication plan. If staff's recommendation is for approval, the District shall also simultaneously forward a draft stewardship agreement to the applicant for review, approval and execution.

2. No Change.

3. The applicant shall be notified of the date and time of this meeting - or any subsequent meeting if final agency action is not taken - via regular United States mail or electronic mail to be received by the applicant at least 7 days in advance of the Governing Board meeting.


NAME OF PERSON ORIGINATING PROPOSED RULE: Robert M. Brown, Director, Environmental Resource Regulation Division.
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: South Florida Water Management District Governing Board.
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: 3/8/2006
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: December 9, 2005