Title: 1994 Supplement to Florida Statues 1993
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
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Permanent Link: http://ufdc.ufl.edu/WL00001914/00001
 Material Information
Title: 1994 Supplement to Florida Statues 1993
Physical Description: Book
Language: English
Publisher: 1994 Supplement to Florida Statues 1993
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: 1994 Supplement to Florida Statues 1993, 373.406 to 373.414
General Note: Box 9, Folder 14 ( SF-WMD REview Commission - 1995-1996 ), Item 11
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001914
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text





173.406

373.459

p37p.4592

37 3.4593
373.45931

;373.4595


Surface Water Improvement and Manage-
ment Trust Fund.
Everglades improvement and manage-
ment.
Florida Bay Restoration.
Alligator Alley tolls; Everglades and Florida
Bay restoration.
Lake Okeechobee improvement and man-
agement.


p73.406 Exemptions.-The following exemptions
stall apply:
S(1) Nothing herein, or in any rule, regulation, or order
adopted pursuant hereto, shall be construed to affect
the right of any natural person to capture, discharge,
and use water for purposes permitted by law.
'(2) Nothing herein, or in any rule, regulation, or order
adopted pursuant hereto, shall be construed to affect
the right of any person engaged in the occupation of
agriculture, silviculture, floriculture, or horticulture to
alter the topography of any tract of land for purposes
S consistent with the practice of such occupation. How-
eyer, such alteration may not be for the sole or predomi-
nant purpose of impounding or obstructing surface
waters.
(3) Nothing herein, or in any rule, regulation, or order
adopted pursuant hereto, shall be construed to be appli-
cable to construction, operation, or maintenance of any
agricultural closed system. However, part II of this chap-
t r shall be applicable as to the taking and discharging
Water for filling, replenishing, and maintaining the
Water level in any such agricultural closed system. This
subsection shall not be construed to eliminate the
Necessity to meet generally accepted engineering prac-
tices for construction, operation, and maintenance of
dams, dikes, or levees.
(4) All rights and restrictions set forth in this section
Shall be enforced by the governing board or the Depart-
mrent of Environmental Protection or its successor
agency, and nothing contained herein shall be con-
Strued to establish a basis for a cause of action for pri-
| ate litigants.
(5) The department or the governing board may by
lule establish general permits for stormwater manage-
nent systems which have, either singularly or cumula-
ively, minimal environmental impact. The department or
he governing board also may establish by rule exemp-
Sions or general permits that implement interagency
agreements entered into pursuant to s. 373.046, s.
p78.202, s. 378.205, or s. 378.402.
Hitory.-s. 2, part IV, ch. 72-299 s. 47, ch. 79-65; s. 5, ch. 80-259; s. 2. ch.
1 2-101; s. 12, ch. 89-279; s. 268. ch. 94-356.
373.413 Permits for construction or alteration.-
(1) Except for the exemptions set forth herein, the
governing board or the department may require such
permits and impose such reasonable conditions as are
l necessary to assure that the construction or alteration
of any stormwater management system, dam, impound-
iment, reservoir, appurtenant work, or works will comply
with the provisions of this part and applicable rules pro-
imulgated thereto and will not be harmful to the water
d resources of the district. The department or the govern-
ing board may delineate areas within the district wherein
permits may be required.


* '7) J-4A


(2) A person proposing to construct or alter a
stormwater management system, dam, impoundment,
reservoir, appurtenant work, or works subject to such
permit shall apply to the governing board or department
for a permit authorizing such construction or alteration.
The application shall contain the following:
(a) Name and address of the applicant.
(b) Name and address of the owner or owners of the
land upon which the works are to be constructed and
a legal description of such land.
(c) Location of the work.
(d) Sketches of construction pending tentative
approval.
(e) Name and address of the person who prepared
the plans and specifications of construction.
(f) Name and address of the person who will con-
struct the proposed work.
(g) General purpose of the proposed work.
(h) Such other information as the governing board or
department may require.
(3) After receipt of an application for a permit, the
governing board or department shall publish notice of
the application by sending a notice to any persons who
have filed a written request for notification of any pend-
ing applications affecting the particular designated
area. Such notice may be sent by regular mail. The
notice shall contain the name and address of the appli-
cant; a brief description of the proposed activity, includ-
ing any mitigation; the location of the proposed activity,
including whether it is located within an Outstanding
Florida Water or aquatic preserve; a map identifying the
location of the proposed activity subject to the applica-
tion; a depiction of the proposed activity subject to the
application; a name or number identifying the applica-
tion and the office where the application can be
inspected; and any other information required by rule.
(4) In addition to the notice required by subsection
(3), the governing board or department may publish, or
require an applicant to publish at the applicant's
expense, in a newspaper of general circulation within
the affected area, a notice of receipt of the application
and a notice of intended agency action. This subsection
does not limit the discretionary authority of the depart-
ment or the governing board of a water management
district to publish, or to require an applicant to publish
at the applicant's expense, any notice under this chap-
ter. The governing board or department shall also pro-
vide notice of this intended agency action to the appli-
cant and to persons who have requested a copy of the
intended agency action for that specific application.
(5) The governing board or department may charge
a subscription fee to any person who has filed a written
request for notification of any pending applications to
cover the cost of duplication and mailing charges.
Hitory.-s. 4, part IV, ch. 72-299; s. 19, ch. 73-190; s. 14. ch. 78-95: s. 13, ch.
89-279: s. 500, ch. 94-356.
373.414 Additional criteria for activities in surface
waters and wetlands.-
(1) As part of an applicant's demonstration that an
activity regulated under this part will not be harmful to
the water resources or will not be inconsistent with the
overall objectives of the district, the governing board or


1065


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37.104UPEMs T STTT. 373 .41 a.


the department shall require the applicant to provide
reasonable assurance that state water quality standards
applicable to waters as defined in s. 403.031(13) will not
be violated and reasonable assurance that such activity
in, on, or over surface waters or wetlands, as delineated
in s. 373.421(1), is not contrary to the public interest.
However, if such an activity significantly degrades or is
within an Outstanding Florida Water, as provided by
department rule, the applicant must provide reasonable
assurance that the proposed activity will e clearly the
public interest.
(a) In determining whether an activity, which is in,
on, or over surface waters or wetlands, as delineated in
s. 373.421(1), and is regulated under this part, is not con-
trary to the public interest or is clearly in the public inter-
est, the governing board or the department shall con-
S sider andbalance the following criteria:
1. Whether the activity will adversely affect the
public health, safety, or welfare or the property of others;
2. Whether the activity will adversely affect the con-
servation of fish and wildlife, including endangered or
threatened species, or their habitats;
S3. Whether the activity will adversely affect naviga-
tion or the flow of water or cause harmful erosion or
shoaling;
4. Whether the activity will adversely affect the fish-
ing or recreational values or marine productivity in the
vicinity of the activity;
5. Whether the activity will be of a temporary or per-
manent nature;
6. Whether the activity will adversely affect or will
enhance significant historical and archaeological
resources under the provisions of s. 267.061; and
7. The current condition and relative value of func-
tions being performed by areas affected by the pro-
posed activity.
(b) If the applicant is unable to otherwise meet the
criteria set forth in this subsection, the governing board
or the department, in deciding to grant or deny a permit,
shall consider measures proposed by or acceptable to
the applicant to mitigate adverse effects which may be
caused by the regulated activity. If the applicant is
unable to meet water quality standards because exist-
ing ambient water quality does not meet standards, the
governing board or the department shall consider miti-
gation measures proposed by the applicant that cause
net improvement of the water quality in the receiving
body of water for those parameters which do not meet
standards. If mitigation requirements imposed by a local
S government for surface water and wetland impacts of an
activity regulated under this part cannot be reconciled
with mitigation requirements approved under a permit
for the same activity issued under this part, the mitiga-
tion requirements for surface water and wetland
impacts shall be controlled by the permit issued under
this part.
(c) Where activities for a single project regulated
under this part occur in more than one local government
jurisdiction, and where permit conditions or regulatory
requirements are imposed by a local government for
these activities which cannot be reconciled with those
imposed by a permit under this part for the same activi-
ties, the permit conditions or regulatory requirements
shall be controlled by the permit issued under this part.


(2) The governing board or the department is
authorized to establish by rule specific permitting
criteria in addition to the other criteria in this part which
provides:
(a) One or more size thresholds of isolated wetlands
below which impacts on fish and wildlife and their habi-
tats will not be considered. These thresholds shall be
based on biological and hydrological evidence that
shows the fish and wildlife values of such areas to be
minimal.
(b) Criteria for the protection of threatened and -
endangered species in isolated wetlands regardless of
size and land use.
(3) It is the intent of the Legislature to provide for the
use of certain wetlands as a natural means of
stormwater management and to incorporate these
waters into comprehensive stormwater management
when such use is compatible with the ecological charac-
teristics of such waters and with sound resource man-
agement. To accomplish this, the governing board or
the department is authorized to establish by rule per-
formance standards for the issuance of permits for the
use of certain wetlands for stormwater management.
The compliance with such standards creates a pre-
sumption that the discharge from the stormwater man-
agement system meets state water quality standards.
(4) It is the intent of the Legislature to provide for the
use of certain wetlands to receive and treat domestic
wastewater that at a minimum has been treated to sec-
ondary standards. The department may by rule estab-
lish criteria for this activity, which criteria protect the
type, nature, and function of the wetlands receiving the '
wastewater.
(5)(a) It is the intent of the Legislature to protect
estuaries and lagoons from the damage created by con-
struction of vertical seawalls and to encourage construc-
tion of environmentally desirable shore protection sys-
tems, such as riprap and gently sloping shorelines
which are planted with suitable aquatic and wetland
vegetation.
(b) No permit under this part to create a vertical sea-"'
wall may be issued by the governing board or the'
department unless one of the following conditions:
exists:
1. The proposed construction is located within a
port as defined in s. 315.02 or s. 403.021;
2. The proposed construction is necessary for t
creation of a marina, the vertical seawalls are necess
to provide access to watercraft, or the proposed c
struction is necessary for public facilities;
3. The proposed construction is located within
existing manmade canal and the shoreline of such ca
is currently occupied in whole or in part by vertical
walls; or
4. The proposed construction is to be conduct
by a public utility when such utility is acting in the
formance of its obligation to provide service to the
lic.
(c) When considering an application for a permit
repair or replace an existing vertical seawall, the
ing board or the department shall generally require
seawall to be faced with riprap material, or to
replaced entirely with riprap material unless a condi
specified in paragraph (b) exists.


1066


Ss. 373.414


1994 SUPPLEMENT TO FLORIDA STATUTES 1993


. s 373 414


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(d) This subsection shall in no way hinder any activ-
- previously exempt or permitted or those activities
rmitted pursuant to chapter 161.
(6Xa) The Legislature recognizes that some mining
Ktivities that may occur in waters of the state must
ve a deep pit as part of the reclamation. Such deep
s may not meet the established water quality stan-
dud for dissolved oxygen below the surficial layers.
re such mining activities otherwise meet the permit-
i criteria contained in this section, such activities may
eligible for a variance from the established water
ity standard for dissolved oxygen within the lower
lers of the reclaimed pit.
(b) Wetlands reclamation activities for phosphate
a d heavy minerals mining undertaken pursuant to
chapter 378 shall be considered appropriate mitigation
r this part if they maintain or improve the water quality
the function of the biological systems present at the
te prior to the commencement of mining activities.
(c) Wetlands reclamation activities for fuller's earth
ning undertaken pursuant to chapter 378 shall be con-
dered appropriate mitigation for this part if they main-
in or improve the water quality and the function of the
logical systems present at the site prior to the com-
encement of mining activities, unless the site features
ake such reclamation impracticable, in which case the
reclamation must offset the regulated activities' adverse
impacts on surface waters and wetlands.
(d) Onsite reclamation of the mine pit for limerock
and sand mining shall be conducted in accordance with
tie requirements of chapter 378.
1. Mitigation activities for limerock and sand mining
must offset the regulated activities' adverse impacts on
surface waters and wetlands. Mitigation activities shall
e located on site, unless onsite mitigation activities are
rt feasible, in which case, offsite mitigation as close to
tie activities as possible shall be required. However,
litigation banking may be an acceptable form of mitiga-
ton, whether on or off site, as judged on a case-by-
qase basis.
2. The ratio of mitigation-to-wetlands loss shall be
determined on a case-by-case basis and shall be
based on the quality of the wetland to be impacted and
t e type of mitigation proposed.
(7) This section shall not be construed to diminish
e jurisdiction or authority granted prior to the effective
ate of this act to the water management districts or the
apartment pursuant to this part, including their jurisdic-
on and authority over isolated wetlands. The provisions
f this section shall be deemed supplemental to the
existing jurisdiction and authority under this part.
(8) The governing board or the department, in decid-
Sg whether to grant or deny a permit for an activity regu-
I ted under this part shall consider the cumulative
pacts upon surface water and wetlands, as delin-
eated in s. 373.421(1), within the same drainage basin
s defined in s. 373.403(9), of:
(a) The activity for which the permit is sought.
(b) Projects which are existing or activities regulated
under this part which are under construction or projects
or which permits or determinations pursuant to s.
73.421 or s. 403.914 have been sought.


(c) Activities which are under review, approved, or
vested pursuant to s. 380.06, or other activities regu-
lated under this part which may reasonably be expected
to be located within surface waters or wetlands, as
delineated in s. 373.421(1), in the same drainage basin
as defined in s. 373.403(9), based upon the comprehen-
sive plans, adopted pursuant to chapter 163, of the local
governments having jurisdiction over the activities, or
applicable land use restrictions and regulations.
(9) The department and the governing boards, on or
before July 1, 1994, shall adopt rules to incorporate the
provisions of this section, relying primarily on the exist-
ing rules of the department and the water management
districts, into the rules governing the management and
storage of surface waters. Such rules shall seek to
achieve a statewide, coordinated and consistent permit-
ting approach to activities regulated under this part.
Variations in permitting criteria in the rules of individual
water management districts or the department shall
only be provided to address differing physical or natural
characteristics. Such rules adopted pursuant to this
subsection shall include the special criteria adopted pur-
suant to s. 403.061(29) and may include the special
criteria adopted pursuant to s. 403.061(35). Such rules
shall include a provision requiring that a notice of intent
to deny or a permit denial based upon this section shall
contain an explanation of the reasons for such denial
and an explanation, in general terms, of what changes,
if any, are necessary to address such reasons for denial.
Such rules may establish exemptions and general per-
mits, if such exemptions and general permits do not
allow significant adverse impacts to occur individually or
cumulatively. Such rules may require submission of
proof of financial responsibility which may include the
posting of a bond or other form of surety prior to the
commencement of construction to provide reasonable
assurance that any activity permitted pursuant to this
section, including any mitigation for such permitted
activity, will be completed in accordance with the terms
and conditions of the permit once the construction is
commenced. Until rules adopted pursuant to this sub-
section become effective, existing rules adopted under
this part and rules adopted pursuant to the authority of
'ss. 403.91-403.929 shall be deemed authorized under
this part and shall remain in full force and effect. Neither
the department nor the governing boards are limited or
prohibited from amending any such rules.
(10) The department in consultation with the water
management districts by rule shall establish water qual-
ity criteria for wetlands, which criteria give appropriate
recognition to the water quality of such wetlands in their
natural state.
(11Xa) In addition to the statutory exemptions appli-
cable to this part, dredging and filling permitted under
rules adopted pursuant to 'ss. 403.91-403.929, 1984
Supplement to the Florida Statutes 1983, as amended,
or exempted from regulation under such rules, shall be
exempt from the rules adopted pursuant to subsection
(9) if the dredging and filling activity did not require a
permit under rules adopted pursuant to this part prior to
the effective date of the rules adopted pursuant to sub-
section (9). The exemption from the rules adopted pur-
suant to subsection (9) shall extend to:


1067


a. 373.414


1994 SUPPLEME~EE r TO FLORIDA STAWTES IM9







1 SUPPLEMENT TO FLORIDA STATUTES 1 373.414


1. The activities approved by said chapter 403 per-
mit for the term of the permit; or
2. Dredging and filling exempted from regulation
under rules adopted pursuant to 'ss. 403.91-403.929,
1984 Supplement to the Florida Statutes 1983, as
amended, which is commenced prior to the effective
date of the rules adopted pursuant to subsection (9), is
completed within 5 years after the effective date of such
rules, and regarding which, at all times during construc-
tion, the terms of the dredge and fill exemption continue
to be met.
(b) This exemption shall also apply to any modifica-
tion of such permit which does not constitute a substan-
tial modification. For the purposes of this paragraph, a
substantial modification is one which is reasonably
expected to lead to substantially different environmental
impacts. This exemption shall also apply to a modifica-
tion which lessens the environmental impact. A modifi-
cation qualifying for this exemption shall be reviewed
under the rules adopted pursuant to 'ss. 403.91-
403.929, 1984 Supplement to the Florida Statutes 1983,
as amended, in existence prior to the effective date of
the rules adopted under subsection (9).
(12Xa) Activities approved in a conceptual, general,
or individual permit issued pursuant to rules adopted
pursuant to this part and which were either permitted
under rules adopted pursuant to 'ss. 403.91-403.929,
1984 Supplement to the Florida Statutes 1983, as
amended, or exempt from regulation under such rules,
all prior to the effective date of rules adopted pursuant
to subsection (9), shall be exempt from the rules
adopted pursuant to subsection (9). This exemption
shall be for the plans, terms, and conditions approved
in the permit issued under rules adopted pursuant to
this part or in any permit issued under rules adopted
pursuant to 'ss. 403.91-403.929, 1984 Supplement to
the Florida Statutes 1983, as amended, and shall be
valid for the term of such permits. This exemption shall
also apply to any modification of the plans, terms, and
conditions of the permit, including new activities, within
the geographical area to which the permit issued under
rules adopted pursuant to this part applies; however,
this exemption shall not apply to a modification that
would extend the permitted time limit for construction,
or to any modification which is reasonably expected to
lead to substantially different water resource impacts.
This exemption shall also apply to any modification
which lessens the impact to water resources. A modifi-
cation of the permit qualifying for this exemption shall be
reviewed under the rules adopted pursuant to 'ss.
403.91-403.929, 1984 Supplement to the Florida Stat-
utes 1983, as amended, and this part, as applicable, in
existence prior to the effective date of the rules adopted
under subsection (9), unless the applicant elects to have
such modifications reviewed under the rules adopted
under this part, as amended in accordance with subsec-
tion (9).
(b) Surface water and wetland delineations identi-
fied and approved by the permit issued under rules
adopted pursuant to this part prior to the effective date
of rules adopted pursuant to subsection (9) shall remain
valid until expiration of such permit, notwithstanding the
methodology ratified in s. 373.4211. For purposes of this
section, the term "identified and approved" means:


1. The delineation was field-verified by the permit-
ting agency and such verification was surveyed as part
of the application review process for the permit; or
2. The delineation was field-verified by the permit-
ting agency and approved by the permit.
Where surface water and wetland delineations were not
identified and approved by the permit issued under
rules adopted pursuant to this part, delineations within
the geographical area to which such permit applies shall
be determined pursuant to the rules applicable at the
time the permit was issued, notwithstanding the meth-
odology ratified in s. 373.4211. This paragraph shall also
apply to any modification of the permit issued under
rules adopted pursuant to this part within the geographi-
cal area to which the permit applies.
(c) Within the boundaries of a jurisdictional declara-
tory statement issued under 2s. 403.914, 1984 Supple-
ment to the Florida Statutes 1983, as amended, or pur-
suant to rules adopted thereunder, in which activities
have been permitted as described in paragraph (a), the
delineation of the landward extent of waters of the state
for the purposes of regulation under the rules adopted
pursuant to 'ss. 403.91-403.929, 1984 Supplement to
the Florida Statutes 1983, as amended, as such rules
existed prior to the effective date of the rules adopted
pursuant to subsection (9), shall remain valid for the
duration of the permit issued pursuant to 'ss. 403.91-
403.929, 1984 Supplement to the Florida Statutes 1983,
as amended, and shall be used in the review of any mod-
ification of such permit.
(13) Any declaratory statement issued by the depart-
ment under 2s. 403.914, 1984 Supplement to the Florida
Statutes 1983, as amended, or pursuant to rules
adopted thereunder, or by a water management district
under s. 373.421, in response to a petition filed on or
before June 1, 1994, shall continue to be valid for the
duration of such declaratory statement. Any such peti-
tion pending on June 1, 1994, shall be exempt from the
methodology ratified in s. 373.4211, but the rules of the
department or the relevant water management district,
as applicable, in effect prior to the effective date of s.
373.4211, shall apply. In the event that a jurisdictional
declaratory statement pursuant to the vegetative index
in effect prior to the effective date of chapter 84-79,
Laws of Florida, has been obtained and is valid prior to
the effective date of the rules adopted under subsection
(9) or July 1, 1994, whichever is later, and the affected
lands are part of a project for which a master develop-
ment order has been issued pursuant to s. 380.06(21),
the declaratory statement shall remain valid for the dura-
tion of the buildout period of the project. Any jurisdic-
tional determination validated by the department pursu-
ant to rule 17-301.400(8), Florida Administrative Code,
as it existed in rule 17-4.022, Florida Administrative
Code, on April 1, 1985, shall remain in effect for a period
of 5 years following the effective date of this act if proof
of such validation is submitted to the department prior
to January 1, 1995. In the event that a jurisdictional
determination has been revalidated by the department
pursuant to this subsection and the affected lands are
part of a project for which a development order has been
issued pursuant to s. 380.06(15), a final development


1068


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s.373.414


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