Title: Rules of the Southwest Florida Water Management District - Individual Environmental Resource Permits
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 Material Information
Title: Rules of the Southwest Florida Water Management District - Individual Environmental Resource Permits
Physical Description: Book
Language: English
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Rules of the Southwest Florida Water Management District - Individual Environmental Resource Permits (JDV Box 95)
General Note: Box 20, Folder 2 ( Water Management Districts - ERP'S - 1994 ), Item 9
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004338
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.

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DRAFT 8-29-94
Page 1

RULES OF THE

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

CHAPTER 40D-4

INDIVIDUAL ENVIRONMENTAL RESOURCE PERMITS


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40D-4.011 Policy and Purpose

40D-4.021 Definitions

40D-4.031 Implementation, Effective Date and Applicability

40D-4.041 Permits Required

40D-4.042 Formal Determination of Wetlands and Other Surface

Waters

40D-4.051 Exemptions

40D-4.052 Request for Exemption (Reserved)

40D-4.053 Conditions for Exemption

40D-4.054 Alteration of Exempt Projects

40D-4.091 Publications and Agreements Incorporated by Reference

40D-4.101 Content of Application

40D-4.111 Notice of Application Form

40D-4.121 Notice and Hearing Requirements

40D-4.131 Times for Receiving Objections and for Hearing

40D-4.201 Permit Processing Fee

40D-4.301 Conditions for Issuance of Permits

40D-4.302 Additional Conditions for Issuance for Activities In,

On or Over Wetlands or Other Surface Waters

40D-4.311 Variances

40D-4.321 Duration of Permits










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1 40D-4.331 Modification and Extension of Permits

2 40D-4.351 Transfer of Permits

3 40D-4.381 GeneralLimiting Conditions



4 40D-4.011 Policy and Purpose.

5 (1) It is the policy of the District to regulate the

6 management and storage of all surface waters within its

7 boundaries pursuant to the provisions of Chapter 373, Florida

8 Statutes, and Chapters 40D-4, 40D-40, 40D-45, and 40D-400,

9 Florida Administrative Code.

10 (2) The rules in this chapter, as well as chapters 40D-40,

11 40D-45, and 40D-400, Florida Administrative Code, implement the

12 comprehensive permit system contemplated in part IV of Chapter

13 373, Florida Statutes.

14 (3) Rules relating to Standard General Permits are found

15 in Chapters 40D-40 and 45, F.A.C. Rules relating to Noticed

16 General Permits are found in Chapter 40D-400, F.A.C.



17 Specific Authority 373.044, 373.113, 373.149, 373.171, F.S. Law

18 Implemented 373.413, 373.416, 373.426, F.S. History Readopted

19 10-5-74. Amended 10-1-84, 3-1-88, and

20 Previously numbered 16J-4.01.



21 40D-4.021 Definitions..

22 When used in this Chapter and Chapters 40D-40 and 40D-400:










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1 (1) "Environmental Resource Permit" means a conceptual,

2 individual or general permit for a surface water management

3 system issued pursuant to Part IV, Chapter 373, Florida Statutes.

4 (2) "Conceptual Permit" means an environmental resource

5 permit issued by the District which approves the concepts of a

6 phased development master plan for a surface water management

7 system or for a mitigation bank which is binding upon the

8 District and the permitted based upon the rules in effect at the

9 time of filing of the conceptual application and constitutes

10 final District action so that construction and operation permits

11 for each phase will be reviewed under the permitting criteria in

12 effect when the application for the conceptual permit was filed.

13 (3) "Construction permit" means an environmental resource

14 permit issued by the District authorizing construction,

15 alteration or abandonment of a surface water management system in

16 accordance with the terms and conditions of the permit.

17 (4) "Operation permit" means a phase of an environmental

18 resource permit issued by the District authorizing the operation

19 and maintenance of a surface water management system in

20 accordance with the terms and conditions of the permit.

21 (5) "Surface water management system" or "system" means any

22 stormwater management system, dam, impoundment, reservoir,

23 appurtenant work, or works or any combination thereof. The terms

24 "surface water management system" or "system" include areas

25 created by filling or by dredging as those terms are defined in

26 subsections 373.403(13) and 373.403(14), F.S.










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1 (6) (7) No changes

2 (8) "Surface waters of the state" means those surface

3 waters regulated pursuant to subsection 403.031(13), Florida

4 Statutes.

5 (9) "Surface waters" are defined in subsection 373.019(10),

6 Florida Statutes.

7 (10) "Wetlands" means those areas that are inundated or

8 saturated by surface water or ground water at a frequency and a

9 duration sufficient to support, and under normal circumstances do

10 support, a prevalence of vegetation typically adapted for life in

11 saturated soils. Soils present in wetlands generally are

12 classified as hydric or alluvial, or possess characteristics that

13 are associated with reducing soil conditions. The prevalent

14 vegetation in wetlands generally consists of facultative or

15 obligate hydrophytic macrophytes that are typically adapted to

16 areas having soil conditions described above. These species, due

17 to morphological, physiological, or reproductive adaptations,

18 have the ability to grow, reproduce, or persist in aquatic

19 environments or anaerobic soil conditions. Florida wetlands

20 generally include swamps, marshes, bayheads, bogs, cypress domes

21 and strands, sloughs, wet prairies, riverine swamps and marshes,

22 hydric seepage slopes, tidal marshes, mangrove swamps and other

23 similar areas. Florida wetlands generally do not include

24 longleaf or slash pine flatwoods with an understory dominated by

25 saw palmetto.

26 (11) No change


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1 (12) "Project Area" means the area within the total land

2 area, as defined in section 40D-4.021(11), which is or will be

3 served by a surface water management system to be permitted under

4 a Conceptual Permit or a Construction Permit.

5 (13) No change

6 (14) "Basis of Review" for Environmental Resource Permit

7 Applications within the Southwest Florida Water Management

8 District," or "Basis of Review" is the document incorporated by

9 reference in Rule 40D-4.091, which provides threshold design,

10 administrative and technical criteria for permit applicants.

11 (15) "General Permit" means an Environmental Resource Permit

12 issued or denied by District staff. General Permits are issued

13 as either Noticed General or Standard General permits.

14 (16) "Individual Permit" means an Environmental Resource

15 Permit issued by the District Governing Board.

16 (17) "Embedment" is the placement of transmission or

17 distribution lines, pipes or cables into the bottoms of waters of

18 the state by minimal displacement of bottom material and without

19 the creation of a trench, or trough, through the use of

20 techniques such as plowing-in, weighing-in, or non-trenching

21 jets.

22 (18) "Entrenchment" is the placement of transmission or

23 distribution lines, pipes or cables into the bottoms of waters of

24 the state by the creation of a defined trench, or trough, though

25 the use of such devices as clamshells, dredges, trenching jets,

26 or other devices which produce similar results.









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1 (19) The definitions listed in Chapters 40D-400, F.A.C. are

2 also applicable to this Chapter and Chapter 40D-40, F.A.C.



3 Specific Authority 373.044, 373.113, 373.149, 373.171, F.S. Law

4 Implemented 373.403, 373.423, F.S. History Readopted 10-5-74.

5 Amended 10-1-84, 3-1-88, 9-11-88, and

6 Previously numbered 16J-4.02.



7 40D-4.041 Permits Required.

8 (1) Unless expressly exempt by law or District rule an

9 Environmental Resource Permit shall be obtained from the District

10 prior to:

11 (a) No change

12 (b) The alteration, maintenance, abandonment, or

13 removal of any surface water management system.

14 (c) The establishment of a mitigation bank.

15 (2) The District issues the following types of

16 Environmental Resource Permits:

17 (a) General permits for construction, alteration,

18 operation or abandonment of surface water management systems for

19 projects which have, either singularly or cumulatively, minimal

20 environmental impact.

21 (1) Standard general permits are issued pursuant

22 to Chapters 40D-40 and 40D-45, F.A.C.

23 (2) Noticed general permits are issued pursuant to

24 Chapter 40D-400, F.A.C.










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1 (b) Individual permits for construction, alteration,

2 operation, or abandonment of surface water management systems for

3 projects not meeting the criteria to qualify for a general permit

4 under Rules 40D-40 or 40D-400,F.A.C. and mitigation banks.

5 (c) Conceptual permits are individual permits for

6 mitigation banks and projects to be developed in phases which

7 approve the concepts of a phased development master plan. A

8 conceptual permit does not authorize construction, alteration,

9 operation, or abandonment of a surface water management system.

10 (3) No change

11 (4) A Standard General Permit for Minor Surface Water

12 Management Systems is required for a surface water management

13 system, otherwise exempt from permitting under subsections 40D-

14 4.051(4), (6), (7) or (8), unless the system is exempt by statute

15 or rule from storm water quality regulation or has received storm

16 water quality review and approval by the District or by a DEP

17 permit, license or certification.

18 (5) Any dredging or filling in, on, or over surface waters

19 of the State which is authorized by a general or individual

20 permit issued under Chapters 40D-4, 40D-40, 40D-45 or 16J-4,

21 F.A.C., as such Chapters existed prior to (effective date of

22 proposed rules), but which is not authorized by a permit or

23 exemption under Chapter 17-312, F.A.C., as such Chapter existed

24 prior to (effective date of proposed rules), shall require an

25 Environmental Resource Permit prior to the dredging or filling.

26 However, such dredging or filling shall be exempt from the










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Page 8

1 requirements of paraaraphs 40D-4.301(I) (a) through (e) and (cr

2 through (k).



3 Specific Authority 373.044, 373.113, 373.149, 373.171, F.S. Law

4 Implemented 373.413, 373.416, 373.426, F.S. History Readopted

5 10-5-74, Amended 12-31-74, 9-4-77, 6-7-78, 10-1-84, 3-1-88, and

6 Previously numbered 16J-4.04, 16J-4.10(1),(2),(4).



7 40D-4.042 Formal Determination of Wetlands and Other Surface

8 Waters

9 (1) Pursuant to subsection 373.421(2), F.S., a real property

10 owner, an entity that has the power of eminent domain, or any

11 other person who has a legal or equitable interest in real

12 property may petition the District for a formal determination for

13 that property. A formal determination means the District will

14 determine the locations on the property of the landward extent

15 (boundaries) of wetlands and other surface waters.

16 (2) To petition for a formal determination, the petitioner

17 must submit to the District the following:

18 (a) five copies of Petition for Formal Determination

19 including copies of all items required by that form, and

20 (b) a non-refundable formal determination fee as

21 specified in Section 40D-1.607, F.A.C.

22 (3) The provisions of sections 120.57 and 120.59, F.S.,

23 apply to formal determinations made pursuant to this section.










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1 (4) A petitioner can request a formal determination

2 consisting of a certified survey, an approximate delineation, or

3 combinations thereof as described in Section 3.4 of the Basis of

4 Review for Environmental Resource Permit Applications adopted by

5 reference in section 40D-4.091, F.A.C.

6 (5) The Executive Director is delegated the authority to

7 take final action on petitions for formal determinations under

8 this section. A formal determination shall be issued only if the

9 petitioner has satisfied all the requirements of this section.

10 (6) A formal determination shall be binding for five years

11 provided physical conditions on the property do not change so as

12 to alter the boundaries of the wetlands and other surface waters

13 during that period.

14 (7) A petition for a new formal determination for a

15 property for which a formal determination already exists shall

16 require the reduced fee set forth in Chapter 40D-1, F.A.C.,

17 provided:

18 (a) physical conditions on the property have not

19 changed so as to alter the boundaries of the wetlands and other

20 surface waters during that period; and

21 (b) the petition is submitted prior to the existing

22 determination's expiration.

23 (8) Pursuant to subsection 373.421(4), F.S., the Governing

24 Board may revoke the formal wetland determination upon a finding

25 that the petitioner has submitted inaccurate information to the

26 District.









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1 Specific Authority 373.044, 373.113, 373.421(2) F.S. Law

2 Implemented 373.421(2) F.S. History New



3 40D-4.051 Exemptions.

4 (1) (7) No change

5 (8) Phosphate mining and mining related surface water

6 management systems are exempt from the requirements of this

7 chapter, provided that all conditions for exemption in Rule

8 40D-4.053(1) are met. However, nothing in this section is

9 intended to exempt phosphate mining from the Department of

10 Environmental Protection's authority.

11 (9) Phosphate mine reclamation and restoration conducted in

12 accordance with Chapter 16C-16, the Mine Reclamation rules of the

13 Florida Department of Environmental Protection, is exempt from

14 the requirements of this chapter provided that all conditions for

15 exemption in Rule 40D-4.053(2) are met.

16 (10) Construction or private use of a single family dwelling

17 unit, duplex, triplex or quadruplex that is not part of a larger

18 common plan of development or sale and does not involve wetlands

19 or other surface waters.

20 (12) is renumbered to (11)

21 (12) In accordance with the provisions of Section

22 403.813(2), F.S., no permit shall be required under Chapters

23 40D-4, 40D-40 or 40D-400, Florida Administrative Code for the

24 following activities:










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1 (a) The repair or replacement of existing functional

2 pipes or culverts the purpose of which is the discharge or

3 conveyance of stormwater. In all cases, the invert elevation,

4 the diameter, and the length of the culvert shall not be changed.

5 However, the material used for the culvert may be different from

6 the original material. This exemption does not authorize the

7 repair, replacement, or alteration of dam's spillways or

8 appurtenant works, nor construction activities or procedures that

9 cause violation as set forth in Chapter 17-302 and Rule 17-4.242,

10 F.A.C.

11 (b) The installation, replacement or repair of mooring

12 pilings and dolphins associated with private docking facilities.

13 (c) The installation of private docks of 1000 square

14 feet or less of surface area over wetlands or other surface

15 waters or 500 square feet or less of surface area over wetlands

16 or other surface waters for docks which are located in

17 Outstanding Florida Waters. This exemption shall include the

18 construction of structures above the dock area, such as gazebos

19 and boat shelters, provided such structures are not enclosed with

20 walls and doors, are not used for living, commercial purposes, or

21 storage of materials other than those associated with

22 recreational use and provided the structures do not exceed,

23 together with the docking facility, the total area limitations

24 above. To qualify for this exemption, any such dock and

25 associated structure:










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Page 12

1 1. shall be used for recreational,

2 non-commercial activities; and

3 2. shall be constructed or held in place by

4 pilings, including floating docks, so as not to involve filling

5 or dredging other than necessary to install the pilings; and

6 3. shall not substantially impede the flow of

7 water, create a navigational hazard, and

8 4. shall be the sole dock constructed pursuant

9 to this exemption as measured along the shoreline for a minimum

10 distance of 65 feet, unless the parcel of land or individual lot

11 as platted is less than 65 feet in length along the shoreline, in

12 which case there may be one exempt dock allowed per parcel or

13 lot. For the purposes of this rule, multi-family living

14 complexes and other types of complexes or facilities associated

15 with the proposed private dock shall be treated as one parcel of

16 property regardless of the legal division of ownership or control

17 of the associated property. Construction of a private dock under

18 this exemption does not obligate the District to issue a

19 subsequent permit to construct a channel to provide navigational

20 access to the dock. Activities associated with a private dock

21 shall include the construction of the structures attached to the

22 pier which are only suitable for the mooring or storage of boats

23 (i.e., boatlifts). Nothing in this paragraph shall prohibit the

24 Department from taking appropriate enforcement action pursuant to

25 Chapter 403, F.S., to abate or prohibit any activity otherwise

26 exempt from permitting pursuant to this paragraph if the


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1 Department can demonstrate that the exempted activity has caused

2 water pollution in violation of ChaPter 403, F.S.

3 (d) The performance of maintenance dredging of

4 existing manmade canals, channels, basins, berths, and intake and

5 discharge structures, where the spoil material is to be removed

6 and deposited on a self-contained, upland spoil site which will

7 prevent the escape of the spoil material and return water from

8 the spoil site into wetlands or other surface waters, provided no

9 more dredging is performed than is necessary to restore the

10 canal, channels, basins, berths, and intake and discharge

11 structures to original design specifications, and provided that

12 control devices are used at the dredge site to prevent turbidity

13 and toxic or deleterious substances from discharging into

14 adjacent waters during maintenance dredging. This exemption

15 shall apply to all canals constructed before April 3, 1970, and

16 to those canals constructed on or after April 3, 1970, pursuant

17 to all necessary state permits. This exemption shall not apply

18 to the removal of a natural or manmade barrier separating a canal

19 or canal system from adjacent wetlands or other surface waters.

20 Where no previous permit has been issued by the Board of Trustees

21 of the Internal Improvement Trust Fund, the Department, the

22 District or the United States Army Corps of Engineers for

23 construction or maintenance dredging of the existing manmade

24 canal, channel, basin, berth or intake or discharge structure,

25 such maintenance dredging shall be limited to a depth of no more

26 than 5 feet below mean low water.









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1 (e) the installation and maintenance to design

2 specifications of boat ramps on artificial bodies of water where

3 navigational access to the proposed ramp exists, or the

4 installation and maintenance to design specifications of boat

5 ramps open to the public in any wetlands or other surface waters

6 where navigational access to the proposed ramp exists and where

7 the construction of the proposed ramp will be less than 30 feet

8 wide and will involve the removal of less than 25 cubic yards of

9 material from the wetlands or other surface waters and the

10 installation of docks with an area of 500 square feet or less

11 over wetlands or other surface waters that are associated with

12 and adjoining the boat ramps constructed pursuant to this

13 exemption. All material removed shall be placed upon a

14 self-contained upland site so as to prevent the escape of the

15 spoil material and return water from the spoil site into the

16 wetlands or other surface waters. For the purpose of this

17 exemption artificial bodies of water shall include, residential

18 canal systems, canals permitted by a District created under

19 Section 373.069, Florida Statutes, and artificially created

20 portions of the Florida Intracoastal Waterway.

21 (f) Construction of seawalls or riprap including only

22 that backfilling needed to level the land behind seawalls or

23 riprap, in artificially created waterways where such construction

24 will not violate existing water quality standards, impede

25 navigation or adversely affect flood control. An artificially

26 created waterway is- hall be defined as a body of water that has


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1 been totally dredged or excavated and which does not overlap

2 natural wetlands or other surface waters. For the purpose of

3 this exemption, artificially created waterways shall also include

4 existing residential canal systems. This exemption does not

5 apply to the construction of vertical seawalls in estuaries or

6 lagoons unless the proposed construction is within an existing

7 man-made canal where the shoreline is currently occupied in whole

8 or in part by vertical seawalls.

9 (g) Construction of private docks in artificially

10 created waterways where construction will not violate water

11 quality standards, impede navigation, or adversely affect flood

12 control.

S13 (h) The replacement or repair of existing docks and

14 moorings piles provided that no fill material other than the

15 piles is to be used, and provided that the replacement or the

16 repaired dock or mooring pile is in the same location and of the

17 same configuration and dimensions as the dock or mooring pile

18 being replaced or repaired. A dock or mooring pile must be

19 functional and able to provide access to boats moored at the dock

20 or pile before this exemption may be used unless the dock or

21 mooring pile has been rendered nonfunctional by a discreet event

22 such as a storm, collision or fire.

23 (i) The restoration of a seawall or riprap at its

24 previous location or upland of or within one foot waterward of

25 its previous location. No filling can be performed except in the

26 actual restoration of the seawall or riprap. No construction









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Page 16

shall be undertaken without necessary title or leasehold

interest, especially where private and public ownership

boundaries have changed as a result of natural occurrences such

as accretion, reliction and natural erosion. Restoration and

repair shall be performed using the criteria set forth in Section

373.414(5), Florida Statutes. This exemption shall be limited to

functioning seawalls or riprap. wheor there ic nc exchange of

wat.or through or around the oeawall or riprap of sufficient

quantity, duration or frequency so that the rotoration of t-he

scawall or riprap could oause or contribute to a violation of

otate wator quality standard or other criteria listed in Soction

372.44, Florida Statuteo. This exemption shalldees not

affectconotituto an exception from the permitting requirements of

Chapter 161, Florida Statutes.

(j) The maintenance of functioning insect control

structures, and the maintenance of functioning dikes and

functioning irrigation and drainage ditches, including roadway

ditches, provided that the spoil material is deposited on a self-

contained upland spoil site which will prevent the escape of the

spoil material and return water into wetlands or other surface

waters. In the case of insect control structures, if the cost of

using a self-contained upland spoil site is so excessive as

determined by the Department of Agriculture and Consumer

Services, pursuant to subsection 403.088(1), Florida Statutes,

that it will inhibit the proposed insect control, existing spoil

sites or dikes may be used, upon notification to the District.


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1 In the case of insect control where upland spoil sites are not

2 used pursuant to this exemption, turbidity control devices shall

3 be used to confine the spoil material discharge to that area

4 previously disturbed when the receiving body of water is used as

5 a potable water supply, is designated as approved, conditionally

6 approved, restricted or conditionally restricted waters for

7 shellfish harvesting by the Department, or functions as a habitat

8 for commercially or recreationally important shellfish or

9 finfish. In all cases, no more dredging is to be performed than

10 is necessary to restore the dike or irrigation or drainage ditch

11 to its original design specifications. This exemption shall

12 apply to man-made trenches dug for the purpose of draining water

13 from the land or for transporting water for use on the land and

14 which are not built for navigational purposes.

15 (k) The restoration of less than 100 feet in length of

16 existing insect control impoundment dikes and the connection of

17 such impoundments to tidally influenced waters. Such

18 impoundments shall be connected to tidally influenced waters for

19 at least 6 months each year, beginning September 1, and ending

20 February 28, if feasible, or operated in accordance with an

21 impoundment management plan approved by the District. The

22 connection shall be of sufficient cross-sectional area to allow

23 beneficial tidal influence. Restoration shall involve no more

24 dredging than needed to restore the dike to original design

25 specifications, and such that the final elevation of the dredge

26 area shall be within 2 feet of immediately adjacent bottom










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Page 18

1 elevations. For the purposes of this paragraph, restoration

2 shall not include maintenance of impoundment dikes of insect

3 control impoundments.

4 (1) The installation of subaqueous transmission and

5 distribution lines laid on, or embedded in, the bottoms of

6 wetlands or other surface waters, except in Class I and Class II

7 waters and aquatic preserves, provided that no dredging or

8 filling is necessary.

9 (m) The replacement or repair of subaqueous

10 transmission and distribution lines laid on or embedded in, the

11 bottoms of wetlands or other surface waters.

12 (n) The construction of private vertical seawalls in

13 wetlands or other surface waters, other than in an estuary or

14 lagoon, and the construction of riprap revetments, where such

15 construction is between and adjoins at both ends existing

16 seawalls or riprap, follows a continuous and uniform construction

17 line with the existing seawalls or riprap, is no more than 150

18 feet in length, and does not violate existing water quality

19 standards, impede navigation adversely or affect flood control.

20 However, this shall not affect the permitting requirements of

21 Chapter 161, Florida Statutes. Construction shall be in

22 accordance with subsection 373.414(5), Florida Statutes.

23 (o) The replacement or repair of existing open-trestle

24 foot bridges and vehicular bridges that are 100 feet or less in

25 length and two lanes or less in width, provided that no more

26 dredging or filling in wetlands or other surface waters is


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1 performed than that necessary to replace or repair pilings and

2 that the structure to be replaced or repaired is the same length,

3 the same configuration, and in the same location as the original

4 bridge. No debris from the original bridge shall be allowed to

5 remain in wetlands or other surface waters.

6 (13) The following activities shall not be required to

7 obtain a permit under chapters 40D-4, 40D-40, or 40D-400, F.A.C.:

8 (a) Activities necessary to preserve, restore, repair,

9 remove, or replace an existing communication or power pole or

10 line, provided that work does not involve dredge and fill

11 activities other than the removal of the existing structure and

12 the installation of the new structure, and in the case of a power

13 pole or line, the activity does not increase the voltage of

14 existing power lines. An activity does not qualify to use this

15 exemption if it results in relocation of an existing structure or

16 facility more than 10 feet in any direction from its original

17 location, or if it involves the construction of new power or

18 telephone lines or the repair and replacement of existing

19 structures that require dredge and fill activities to provide

20 access to the site.

21 (b) The installation, removal, and replacement of

22 utility poles that support telephone or communication cable

23 lines, or electric distribution lines of 35kV or less, together

24 with the bases and anchoring devices to support those poles, as

25 specified below. For the purpose of this exemption, "anchoring

26 device" shall mean steel guy wires fastened to the ground without










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Page 20

1 the need for c.parat. dredging, and "base" shall mean a concrete

2 or steel foundation not exceeding four feet in radius, used to

3 support a utility pole. This exemption shall be subject to the

4 following conditions:

5 1. no more than 15 utility poles may be

6 installed, removed, or replaced in wetlands;

7 2. this exemption shall not apply in surface

8 waters other than wetlands;

9 3. the temporary disturbance to wetlands shall

10 be limited to a length of 0.5 miles, an areal extent of 0.5 acre,

11 and a width of 30 feet to access the site to actually install,

12 remove, or replace the utility poles, thereafter, maintenance of

13 the utility right of way in wetlands shall be limited to a

14 cleared corridor that does not exceed a total width of 15 feet

15 and a total area of 0.25 ac.;

16 4. this exemption shall not apply in forested

17 wetlands located within 550 feet from the mean or ordinary high

18 water line of a named waterbody that is designated as an

19 Outstanding Florida Water or an Outstanding National Resource

20 Water, or to activities in any aquatic preserves;

21 5. there shall be no permanent placement of fill

22 other than utility poles and anchoring devices;

23 6. there shall be no dredging or filling of fill

24 pads or access roads except for temporary mats, which may be used

25 to access pole installation sites, and all temporary mats shall

26 be removed within thirty days after the installation, removal or


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22

23

24

25


DRAFT 8-29-94
Page 21

replacement of the utility poles, associates bases, and anchoring

devices;

7. the installation of the utility pole(s) and

associated bases and anchoring devices shall not interfere with

navigation or impede water flow in wetlands;

8. turbidity, sedimentation, and erosion shall

be controlled during and after construction to prevent violations

of state water quality standards due to construction related

activities;

9. except for the permitted structures, pre-

construction ground elevations and the contours of all soils that

are disturbed by construction activities, including vehicle ruts

in wetlands, shall be restored within 30 days of completion of

the installation of the utility line or cable, and restored

grades shall be stabilized within 72 hours following completion

of elevation and contour restoration to minimize erosion;

10. vehicle usage in wetlands shall be conducted

so as to minimize tire rutting and erosion impacts;

11. water jets shall not be used except for those

which are a pre-engineered part of the pole, and provided that

the water for the jets is either recirculated on site or is

discharged in a self contained upland disposal site;

12. vehicular access in wetlands shall be limited

to existing roads, trails, rights-of-way or easements, and to

other previously disturbed corridors where they exist; and









DRAFT 8-29-94
Page 22

13. the permitted shall provide an annual report

to the District which summarizes the activities conducted under

this exemption for the period from January 1 to December 31 of

each year, including: the acreage of temporary impacts in

wetlands resulting from the use of temporary mats and the

clearing of wetland vegetation; the extent of permanent impacts

to wetlands including the number of poles and structures in

wetlands and the acreage of clearing in wetlands; the voltage of

all electric lines that are installed; the number of times this

exemption is used; the specific location of each line that is

installed (including the county, the section, township, and

range, and the identity of permanent landmarks such as roads and

named wetlands and other surface waters within or adjacent to the

work location), and the number of times and locations where water

jets are used.

(e) .The in.tallation and maintenance of intake and

disoharzg ptpcc acoociatod with marine bivalve facilitico that

havoe a valid industrial wastewater general permit, pursuant to

Rulc 17 6C0.821, F.A.C.

(c4) The installation of aids to navigation, including

bridge fender piles, "No Wake" and similar regulatory signs, and

buoys associated with such aids, provided that the devices are

marked in accordance wither ..u...t to Section 327.40, Florida

Statutes.

(de) The use of rotenone, by the Florida Game and Fresh

Water Fish Commission, in conducting tests related to its










DRAFT 8-29-94
Page 23

1 responsibility regarding fish management. The chemical selected

2 shall be used at no more than the strength approved by the EPA

3 label, or a lesser strength than the EPA approved label. amountsa

4 whore the lCssor strength is sufficint to a ccomplish the tat.

5 In addition, the chemical shall be used only under the direct

6 on-site supervision of a staff member of the Florida Game and

7 Fresh Water Fish Commission.

8 (e!) Maintenance of minor silvicultural surface water

9 management systems as described in subsection 40D-400.500(4),

10 F.A.C., which were permitted under Part IV of Chapter 373, F.S.

11 or were constructed prior to the requirements for a permit under

12 this part, provided such maintenance is conducted in accordance

13 with the performance standards set forth in subsection

14 40D-400.500(5), F.A.C.

15 (fg) The construction or maintenance of culverted

16 driveway or roadway crossings and bridges of artificial

17 waterways, provided:

18 1. this exemption shall apply only to wholly

19 artificial, non-navigable drainage conveyances;

20 2. the construction project area shall not

21 exceed one acre, and the construction shall be for a discrete

22 project that is not part of a larger plan of development which

23 requires permitting under Chapters 40D-40, 40D-400, F.A.C., or

24 this chapter;









DRAFT 8-29-94
Page 24

1 3. the artificial waterway in existing condition

2 shall be not more than 4 feet deep, measured from the top of bank

3 to the bottom of the artificial waterway;

4 4. the person performing the exempt activity

5 shall ensure that the size and capacity of the culvert(s) will be

6 adequate to pass normal high water stages of the artificial

7 waterway without causing adverse impacts to upstream or

8 downstream property, but the culvert(s) shall not be larger that

9 one 24 inch diameter pipe, or its equivalent; and in no instance

10 shall the culvert(s) provide a smaller cross-sectional area or

11 discharge capacity than any upstream culvert;

12 5. the elevation of the culvert invert shall be

13 at the existing bottom grade of the artificial waterway;

14 6. the length of the driveway or roadway

15 crossing the waterway shall not exceed 30 feet from top of bank

16 to top of bank;

17 7. the top width of the driveway or roadway

18 shall not exceed 20 feet, the toe to toe width shall not exceed

19 40 feet, and side slopes shall be no steeper than 3 feet

20 horizontal to 1 foot vertical;

21 8. clean fill used for the crossing shall be

22 obtained from an upland borrow pit or from a dredge site that is

23 in compliance with thee-l regulatory requirements of Part IV,

24 Chapter 373, F.S., either through a permit, or an exemption,---e?

25 other liconso by the Diotrict or Department;










DRAFT 8-29-94
Page 25

1 9. there shall be no additional dredging,

2 filling, or construction activities within the artificial

3 waterway or project area, except those directly involved in the

4 construction or operation and maintenance of the culverted

5 crossing and those exempted from regulation under Part IV,

6 Chapter 373. F.S. by statute er rule;

7 10. all temporary fill in construction areas

8 shall be removed and regraded to original elevations and

9 revegetated;

10 11. the person performing the exempt activity

11 shall implement measures for erosion and pollution control using

12 best management practices, including turbidity curtains or

13 similar devices and other site specific practices, in strict

14 adherence to the Florida Department of Transportation's "Standard

15 Specifications for Road and Bridge Construction," and Chapter 6

16 of the Department's "Florida Development Manual," to prevent

17 violations of state water quality standards. Temporary erosion

18 controls shall be implemented prior to and during construction,

19 and permanent erosion control measures for all exposed soils

20 shall be completed within 7 calendar days of the most recent

21 construction activity;

22 12. any spoil material from construction or

23 maintenance shall be used or disposed of on an upland portion of

24 the property or shall be transported off site and deposited on a

25 self-contained upland spoil site that is in compliance with the










DRAFT 8-29-94
Page 26

1 permitting requirements of Chapters 40D-4 and 40D-40, F.A.C., as

2 applicable;

3 13. if dewatering is performed, all temporary

4 fill dikes and dewatering discharges shall be installed and

5 constructed so that no upstream flooding or impoundment occurs

6 and to prevent siltation, erosion or turbid discharges into

7 waters of the State in violation of state water quality

8 standards. Any temporary works shall be completely removed, and

9 all areas upstream and downstream from the crossing shall be

10 restored to grades, elevations and conditions which existed

11 before the construction;

12 14. this exemption shall apply only to a maximum

13 of 2 crossings on a given total land area of property with a

14 minimum distance of 500 feet between crossings; and

15 15. this exemption shall not apply to activities

16 involving relocation or other alteration of all or part of the

17 artificial waterway, or construction for other than the proposed

18 culvert crossing, except as exempted by Chapter 373, F.S., or

19 this section.

20 (ak) Cznstruetien of Frrehwatr Fih Attractr.

21 Construction of freshwater fish attractors by Florida Game and

22 Fresh Water Fish Commission, U.S. Forest Service, and county and

23 municipal governments, provided that the material to be used

24 shall be clean concrete_--e. rock,-er brush,-ei logs, or trees,

25 and shall be free of soils, preservatives, oil -and greases,

26 debris, litter, putrescible substances, "white goods," asphalt


I










DRAFT 8-29-94
Page 27

1 material, tires, or other pollutants, and shall be firmly

2 anchored to the bottom of the waterbody. rather than

3 indi-ariminat.ly dump.d. The size of an individual fish

4 attractor shall not exceed one quarter of an acre in area.The

5 material shall be placed so that the top of the fish attractor is

6 at least three (3) feet below the surface of the water at

7 ordinary low water and shall be outside any posted navigational

8 channels. No fish attractor material shall be placed on or in

9 areas vegetated by native aquatic vegetation (except nui.ancc

10 e::ti-a). The site shall be marked with a buoy or buoys to ensure

11 that no material is deposited outside of the site.

12 (i) In tallation of Piling Support Structue..

13 Assciat.d With Water Testing or Monitoring E .uipment by the

14 Department and Water Management .Di..trict Installation of

15 piling support structures associated with water testing or

16 monitoring equipment by the Department or the and Water

17 Management Districts, provided that flow or navigation are not

18 impeded.

19 (14) Surface Waters or Wetlands Created by Mosquito Control

20 Activities. Construction, alteration, operation, maintenance,

21 removal, and abandonment of stormwater management systems, dams,

22 impoundments, reservoirs, appurtenant works, or works, in, on, or

23 over lands that have become surface waters or wetlands solely

24 because of mosquito control activities undertaken as a part of a

25 governmental mosquito control program, and which lands were

26 neither surface water or wetlands before such activities, shall










DRAFT 8-29-94
Page 28.

1 be exempt from the provisions in this Chapter adopted by the

2 District to implement subsections 373.414(1) through (6);

3 373.414(7) regarding any authority granted pursuant to section

4 373.414, F.S. (1991); 373.414(8) and 373.414(10), F.S.

5 (15) Exemptions for Treatment or Disposal Systems.

6 (a) Alteration and maintenance of the following shall

7 be exempt from the provisions in Chapter 40D-4, F.A.C.,

8 implementincadoptcd to implement subsections 373.414(1) through

9 373.414(6), 373.414(8), and 373.414(10), F.S.; and subsection

10 373.414(7), F.S., regarding any authority to apply state water

11 quality standards within any works, impoundments, reservoirs, and

12 other watercourses described in this subsection and any authority

13 granted pursuant to section 373.414, F.S. (1991):

14 1. Works, impoundments, reservoirs, and other

15 watercourses constructed and operated solely for wastewater

16 treatment or disposal in accordance with a valid permit reviewed

17 or issued under sections 17-28.700, 17-302.520 or Chapters 17-17,

18 17-600, 17-610, 17-640, 17-650, 17-660, 17-670, 17-671, 17-673,

19 17-701, F.A.C., or section 403.0885, F.S., or rules implementing

20 section 403.0885, F.S., except for treatment wetlands or

21 receiving wetlands permitted to receive wastewater pursuant to

22 17-611, F.A.C., or section 403.0885, F.S. or its implementing

23 rules;

24 2. Works, impoundments, reservoirs, and other

25 watercourses constructed solely for wastewater treatment or

26 disposal before a construction permit was required under chapter


I










DRAFT 8-29-94
Page 29

1 403, F.S., and operated solely for wastewater treatment or

2 disposal in accordance with a valid permit reviewed or issued

3 under sections 17-28.700, 17-302.520, or chapters 17-17, 17-600,

4 17-610, 17-640, 17-650, 17-660, 17-670, 17-671, 17-673, or

5 17-701, F.A.C.,; or section 403.0885, F.S., or rules implementing

6 section 403.0885, F.S., except for treatment wetlands or

7 receiving wetlands permitted to receive wastewater pursuant to

8 Chapter 17-611, F.A. C., or section 403.0885, F.S. or its

9 implementing rules;

10 3. Works, impoundments, reservoirs, and other

11 watercourses of less than 0.5 acres in combined area on a

12 project-wide basis, constructed and operated solely for

13 stormwater treatment in accordance with a noticed exemption under

14 chapter 17-25, F.A.C., or a valid permit issued under Chapters

15 17-25 (excluding Rule 17-25.042), 17-330, 40D-4, F.A.C., except

16 those permitted as wetland stormwater treatment systems.

17 4. Works, impoundments, reservoirs, and other

18 watercourses of less than 0.5 acres in combined area on a

19 project-wide basis, constructed and operated solely for

20 stormwater treatment before a permit being required under

21 Chapters 17-25, 40D-4, F.A.C.

22 (b) Alteration and maintenance of the following shall

23 be exempt from the provisions in chapter 40D-4, F.A.C., adopted

24 to implement subsections 373.414(1), 373.414(2) (a), 373.414(8),

25 and 373.414(10), F.S.; and subsections 373.414(3) through

26 373.414(6), F.S.; and subsection 373.414(7), F.S., regarding any









DRAFT 8-29-94
Page 30

1 authority to apply state water quality standards within any

2 works, impoundments, reservoirs, and other watercourses described

3 in this subsection and any authority granted pursuant to 373.414,

4 F.S. (1991), except for authority to protect threatened and

5 endangered species in isolated wetlands:

6 1. Works, impoundments, reservoirs, and other

7 watercourses of 0.5 acre or greater in combined area on a

8 project-wide basis, constructed and operated solely for

9 stormwater treatment in accordance with a noticed exemption under

10 Chapter 17-25, F.A.C., or a valid permit issued under Chapters

11 17-25 (excluding Rule 17-25.042), 17-330, 40D-4, F.A.C., except

12 those permitted as wetland stormwater treatment systems.

13 2. Works, impoundments, reservoirs, and other

14 watercourses of 0.5 acres or greater in combined area on a

15 project-wide basis, constructed and operated solely for

16 stormwater treatment before a permit was required under Chapters

17 17-25, 40D-4, F.A.C.

18 (c) The exemptions in paragraphs and (a) and (b) above

19 shall not apply to works, impoundments, reservoirs or other

20 watercourses that are:

21 1. currently wetlands which existed before to

22 construction of the stormwater treatment system and were

23 incorporated in it;

24 2. being altered through expansion into wetlands

25 or other surface waters; or










DRAFT 8-29-94
Page 31

1 3. wetlands created, enhanced or restored as

2 mitigation for wetland or surface water impacts under a permit

3 issued by the Department or the District.

4 (d) Alterations and maintenance of works,

5 impoundments, reservoirs and other watercourses exempt under this

6 subsection shall not be considered in determining whether the

7 wetland permitting thresholds in Chapters 40D-4 or 40D-40,

8 F.A.C., are met or exceeded.

9 (e) Works, impoundments, reservoirs and other

10 watercourses exempt under this subsection, other than isolated

11 wetlands in systems described in paragraph (b) above, shall not

12 be delineated under Section 373.421, F.S.

13 (f) This exemption shall not affect the application of

14 state water quality standards, including those applicable to

15 Outstanding Florida Waters, at the point of discharge to waters

16 as defined in subsection 403.031(13), F.S.

17 (g) As used in this subsection, "solely for" means the

18 reason for which a work, impoundment, reservoir, or other

19 watercourse is constructed and operated, and such construction

20 and operation would not have occurred but for the purposes

21 identified in paragraphs (a) and (b) above. Furthermore, the

22 phrase does not refer to a work, impoundment, reservoir, or other

23 watercourse constructed or operated for multiple purposes.

24 Incidental uses, such as occasional recreational uses, will not

25 render the exemption inapplicable, so long as the incidental uses

26 are not part of the original planned purpose of the work,










DRAFT 8-29-94
Page 32

1 impoundment, reservoir or other watercourse. However, for those

2 works, impoundments, reservoirs, or other watercourses described

3 in subparagraphs (a)3. and (b)1., use of the system for flood

4 attenuation, whether originally planned or unplanned, shall be

5 considered an incidental use so long as the works, impoundments,

6 reservoirs, and other watercourses are no more than two acres

7 larger than the minimum area required to comply with the

8 applicable stormwater treatment requirements of chapters 17-25,

9 17-330, 40D-4, F.A.C. For the purposes of this subsection, reuse

10 from a work, impoundment, reservoir, or other watercourse is part

11 of treatment or disposal.

12 (16) The performance of activities pursuant to the

13 provisions of the exemptions described above does not relieve the

14 person or persons who are using the exemption or who are

15 constructing or otherwise implementing the activity from meeting

16 the permitting or performance requirements of other District

17 rules.



18 Specific Authority 373.044, 373.113, 373.149, 373.171,

19 373.414(9), F.S. Law Implemented 373.406, 373.413, 373.414(9),

20 F.S. History Readopted 10-5-74. Amended 10-1-84, 10-1-86,

21 3-1-88, 1-24-90, and Previously numbered 16J-

22 4.05.



23 40D-4.091 Publications and Agreements Incorporated by

24 Reference.


I










DRAFT 8-29-94
Page 33

1 The following documents are hereby incorporated into this

2 chapter and Chapters 40D-40 and 40D-400, F.A.C.:

3 (1) "Basis of Review for Environmental Resource Permit

4 Applications within the Southwest Florida Water Management

5 District, 1994." This document is available

6 from the District upon request.

7 (2) Operating Agreement Concerning Management and Storage

8 of Surface Waters Regulation, and Wetland Resource Regulation

9 Between Southwest Florida Water Management District and

10 Department of Environmental Regulation, dated August 10, 1992.

11 This document is available from the District upon request.



12 Specific Authority 120.54(8), 373.044, 373.046, 373.113, 373.171,

13 373.414, F.S. Laws Implemented 120.54(8), 373.046, 373.403,

14 373.413, 373.414, 373.416, 373.429, F.S. History New 4-2-87.

15 Amended 3-1-88, 9-11-88, 10-1-88, 4-1-91, 11-16-92, 1-30-94, and

16



17 (Substantial Rewording of Rule 40D-4.101. See Florida

18 Administrative Code for present text.)



19 40D-4.101 Content of Application.

20 (1) Applications for Environmental Resource Permits

21 required by this chapter shall be filed with the District in

22 accordance with the requirements of this chapter and Chapter

23 40D-1, F.A.C. The application shall consist of:









DRAFT 8-29-94
Page 34

1 (a) The information required in subsection 373.413(2),

2 F.S.;

3 (b) Five copies of the application form identified in

4 Chapter 40D-1, F.A.C. with applicable supplements;

5 (c) Five copies of drawings, calculations,

6 environmental and construction information, and engineering

7 details sufficient to define the nature, scope, intent and

8 functioning of the work proposed;

9 (d) The appropriate fee as specified in Chapter 40D-1,

10 F.A.C.; and

11 (e) Such other information as is reasonably necessary

12 to determine that the surface water management system meets the

13 conditions of this chapter.

14 (2) The application must be signed by the owner or the

15 owner's authorized agent. Applications signed by an agent must

16 contain a letter of authorization which is signed by the owner.

17 (3) A complete application for an individual environmental

18 resource permit shall also constitute an application for

19 certification of compliance with state water quality standards

20 where necessary pursuant to Section 401, Public Law 92-500, 33

21 USC Section 1341. Issuance of the permit shall constitute

22 certification of compliance with water quality standards unless

23 the permit is issued pursuant to the net improvement provision of

24 section 373.414(1)(b), F.S. or the permit specifically states

25 otherwise.


I










DRAFT 8-29-94
Page 35

1 (4) If the permit application involves activities located

2 in, on, or over wetlands or other surface waters, then, within

3 three business days of receipt of the application, the District

4 shall forward a copy to the appropriate office of the U.S. Army

5 Corps of Engineers unless specifically authorized by the Corps to

6 do otherwise.

7 (5) If the application involves activities located in, on,

8 or over wetlands or other surface waters the District shall

9 forward a copy of the notice of application to and request

10 comments from:

11 (a) the Florida Game and Fresh Water Fish Commission;

12 (b) the Florida Department of State, Division of

13 Historical Resources;

14 (c) any person who has requested a copy of the

15 specific application that is under review; and

16 (d) the Department of Environmental Protection, if the

17 proposed activities have a potential to impact marine listed

18 species.

19 (6) If at any time during the processing of the

20 application, it appears that the application involves activities

21 which may take place on state-owned lands, the District shall

22 send a copy of the application to the Division of State lands,

23 Department of Environmental Protection.



24 Specific Authority 373.044, 373.113, 373.149, 373.171, F.S. Law

25 Implemented 373.042, 373.413, F.S. History Readopted 10-5-74,









DRAFT 8-29-94
Page 36

1 Amended 12-31-74, 6-7-78, 10-1-84, 3-1-88, and

2 Previously numbered 16J-4.06(1), (2).



3 40D-4.201 Permit Processing Fee.

4 A permit processing fee shall be paid to the District at the

5 time a permit application is filed in the amount prescribed in

6 the schedule set forth in Chapter 40D-1, F.A.C.



7 Specific Authority 373.044, 373.133, 373.149, 373.171, F.S. Law

8 Implemented 373.109, F.S. History Readopted 10-5-74. Amended

9 Previously numbered 16J-4.061.



10 (Substantial rewording of Rule 40D-4.301. See Florida

11 Administrative Code for present text.)



12 40D-4.301 Conditions for Issuance of Permits.

13 (1) In order to obtain a standard general, individual, or

14 conceptual approval permit under this chapter or Chapter 40D-40,

15 F.A.C., an applicant must provide reasonable assurance that the

16 construction, alteration, operation, maintenance, removal or

17 abandonment of a surface water management system:

18 (a) will not cause adverse water quantity impacts to

19 receiving waters and adjacent lands;

20 (b) will not cause adverse flooding to on-site or off-

21 site property;


I










DRAFT 8-29-94
Page 37

1 (c) will not cause adverse impacts to existing surface

2 water storage and conveyance capabilities;

3 (d) will not adversely impact the value of functions

4 provided to fish and wildlife, and listed species including

5 aquatic and wetland dependent species, by wetlands, other surface

6 waters and other water related resources of the District;

7 (e) will not adversely affect the quality of receiving

8 waters such that the water quality standards set forth in

9 chapters 17-3, 17-4, 17-302, 17-520, 17-522 and 17-550, F.A.C.,

10 including any antidegradation provisions of sections 17-4.242

11 (1) (a) and (b), 17-4.242(2) and (3), and 17-302.300, F.A.C., and

12 any special standards for Outstanding Florida Waters and

13 Outstanding National Resource Waters set forth in sections

14 17-4.242(2) and (3), F.A.C., will be violated;

15 (f) will not cause adverse secondary impacts to the

16 water resources;

17 (g) will not adversely impact the maintenance of

18 surface or ground water levels or surface water flows established

19 pursuant to Chapter 373.042, F.S.;

20 (h) will not cause adverse impacts to a work of the

21 District established pursuant to Section 373.086, F.S.;

22 (i) is capable, based on generally accepted

23 engineering and scientific principles, of being effectively

24 performed and of functioning as proposed;

25 (j) will be conducted by an entity with financial,

26 legal and administrative capability of ensuring that the activity









DRAFT 8-29-94
Page 38

will be undertaken in accordance with the terms and conditions of

the permit, if issued; and

(k) will comply with any applicable special basin or

geographic area criteria established pursuant to this chapter.

(2) If the applicant is unable to meet water quality

standards because existing ambient water quality does not meet

standards, the applicant shall comply with the requirements set

forth in Section 3.2.4.5 of the Basis of Reviewthe District shall

conoider mitigation measurcs propoosd by the applicant that eauo

net improvement of the water quality in the receiving body of

water for thoeC paramoters that do not moot standmarde.

(3) Mangrove alteration which is part of an activity

requiring an Standard General or Individual Environmental

Resource Permit, shall be evaluated pursuant to the criteria in

Chapter 17-321, F.A.C. during review of the Environmental

Resource Permit application. A separate permit under Chapter 17-

321, F.A.C., shall not be required when the mangrove alteration

is incidental to the activity authorized by a noticed general

permit, or when a standard general or individual permit is

required under the rules adopted pursuant to Part IV, of Chapter

373, F.S.

() The District shall take into con.id.ration a permit

applicant'. violation of any rules under Part IV of Chapter 373,

F.S., and Part VIII of Chapter 03, F.S. (149) relating te any

other project when determining whether the applicant has provided


-










DRAFT 8-29-94
Page 39

1 r.a..nabll asu.ancoo that Diatrict permitting standards will be

2 m t- .

3 (45) The standards and criteria contained in the Basis of

4 Review for Environmental Resource Permit Applications shall

5 determine whether the reasonable assurances required by

6 subsection 40D-4.301(1) and Section 40D-4.302, F.A.C., have been

7 provided.



8 Specific Authority 373.044, 373.113, 373.149, 373.171, F.S. Law

9 Implemented 373.042, 373.403, 373.413, 373.111, 373.416, 373.426,

10 F.S. History Readopted 10-5-74, Amended 12-31-74, 6-7-78,

11 10-1-84, 6-2-85, 3-1-88, and Previously

12 numbered 16J-4.06(3), (4), (5), (6), (8).



13 40D-4.302 Additional Conditions for Issuance of Permits

14 (1) In addition to the conditions set forth in Section

15 40D-4.301, F.A.C., in order to obtain a standard general,

16 individual, or conceptual permit under this chapter an applicant

17 must provide reasonable assurance that the construction,

18 alteration, operation, maintenance, removal, and abandonment of a

19 system:

20 (a) Located in, on, or over wetlands or other surface

21 waters as delineated pursuant to the methodology authorized by

22 subsection 373.421(1), F.S., will not be contrary to the public

23 interest, or if such an activity significantly degrades or is

24 within an Outstanding Florida Water, that the activity will be









DRAFT 8-29-94
Page 40

1 clearly in the public interest, as determined by balancing the

2 following criteria:

3 1. whether the activity will adversely affect

4 the public health, safety, or welfare or the property of others;

5 2. whether the activity will adversely affect

6 the conservation of fish and wildlife, including endangered or

7 threatened species, or their habitats;

8 3. whether the activity will adversely affect

9 navigation or the flow of water or cause harmful erosion or

10 shoaling;

11 4. whether the activity will adversely affect

12 the fishing or recreational values or marine productivity in the

13 vicinity of the activity;

14 5. whether the activity will be of a temporary

15 or permanent nature;

16 6. whether the activity will adversely affect or

17 will enhance significant historical and archaeological resources

18 under the provisions of Section 267.061, F.S.; and

19 7. the current condition and relative value of

20 functions being performed by areas affected by the proposed

21 activity.

22 (b) Will not cause unacceptable cumulative impacts

23 upon wetlands and other surface waters, as delineated pursuant to

24 the methodology authorized by subsection 373.421(1), F.S.

25 (c) Located in, adjacent to or in close proximity to

26 Class II waters or located in Class II waters or Class III waters














1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23


DRAFT 8-29-94
Page 41

classified by the Department as approved, restricted or

conditionally restricted for shellfish harvesting pursuant to

Chapter 16R-7, F.A.C., will comply with the additional criteria

in subsection 3.2.5 of the Basis of Review for Environmental

Resource Permit Applications adopted by reference in Section

40D-4.091, F.A.C.

(d) Which constitute vertical seawalls in estuaries or

lagoons, will comply with the additional criteria provided in

subsection 3.2.6 of the Basis of Review for Environmental

Resource Permit Applications.

(2) The District shall take into consideration a permit

applicant's violation of any ruloa under Part IV of Chapt~r 373,



et ey-Breetz when dIet-ermi~nine whether the applicant has p-ro-ided



mee- Department adopted pursuant to Sections 403.91 403.929,

F.S. (1984 Supp.), as amended, which the District had the

responsibility to enforce pursuant to delegation or any District

rules adopted pursuant to Part IV, Chapter 373, F.S., relating to

any other project or activity and efforts taken by the applicant

to resolve these violations, when determining whether the

applicant has provided reasonable assurances that District

permitting standards will be met.









DRAFT 8-29-94
Page 42

1 Specific Authority 373.016, 373.044, 373.113, 373.171, F.S. Law

2 Implemented 373.016, 373.042, 373.409, 373.413, 373.414, 373.416,

3 373.426, F.S. History New



4 40D-4.311 Variances

5 (1) Upon application, following the procedures in Chapter

6 40D-1, F.A.C., the Governing Board may grant a variance from the

7 provisions of Section 373.414, F.S., and Rules 40D-4.301 and 40D-

8 4.302, F.A.C., for the following reasons:

9 (a) There is no practicable means known or available

10 for the adequate control of the pollution involved.

11 (b) Compliance with the particular requirement or

12 requirements from which a variance is sought will necessitate the

13 taking of measures which, because of their extent or cost, must

14 be spread over a considerable period of time. A variance granted

15 for this reason shall prescribe a timetable for the taking of the

16 measures required.

17 (c) To relieve or prevent hardship of a kind other

18 than those provided for in paragraphs (a) and (b) above.

19 Variance and renewals thereof granted under this paragraph (1)(c)

20 shall each be limited to a period of 24 months.

21 (2) In addition to the demonstration of the existence of

22 one of the circumstances provided for in paragraphs (1)(a)-(c)

23 above, the applicant must demonstrate that the hardship is

24 peculiar to the affected property and not self imposed and that










DRAFT 8-29-94
Page 43

1 the grant of a variance will be consistent with the general

2 intent and purpose of this chapter.

3 (3) -Varianees shall be granted or denied in the dizcrotizn

4 f the Governing Beoard.



5 Specific Authority 373.044, F.S., 373.113, 373.171, F.S. Law

6 Implemented 373.414(17), 403.201, F.S. History New

7



8 40D-4.321 Duration of Permits.

9 (1) Unless revoked or otherwise modified, the duration of

10 an Environmental Resource Permit issued pursuant to this chapter

11 is:

12 (a) two years from the date of issuance, for a

13 conceptual permit, unless within that period an application for a

14 construction permit is filed for any portion of the project. If

15 the application for a construction permit is approved and

16 construction is commenced according to Rule 40D-4.321, F.A.C.,

17 then the conceptual permit is valid so long as the conceptually

18 permitted phases are under construction consistent with a phased

19 development master plan for a surface water management system

20 that has been permitted by the District. If construction of the

21 permitted phases is discontinued or is inconsistent with the

22 phased development master plan then the conceptual permit shall

23 expire.










DRAFT 8-29-94
Page 44

1 (b) five years from the date of issuance for a

2 construction permit, including a mitigation bank construction

3 permit, to the completion of construction and submittal of the

4 Statement of Completion and Request for Transfer to Operation

5 Entity and supporting as-built documents, as required pursuant to

6 this Chapter. If at the end of five years construction is

7 ongoing in compliance with the permit requirements, the

8 construction permit duration will automatically be continued for

9 up to six months, provided within the continued duration all

10 construction of the system shall be completed and statement of

11 completion documents shall be submitted to the District.

12 (c) No change

13 (d) five years from the date of issuance for a

14 conceptual permit for a mitigation bank.

15 (2) Conceptual permits expire automatically at the end of

16 their duration unless modified pursuant to Section 40D-4.331,

17 F.A.CaC p- cifi d.



18 Specific Authority 373.044, 373.113, F.S. Law Implemented

19 373.413, 373.416, F.S. History New 10-1-84. Amended 3-1-88,

20 and



21 40D-4.331 Modification of Permits.

22 An application for modification of an environmental resource

23 permit shall be processed in accordance with this rule, unless

24 the permit is revoked, suspended or expired.


_ I










DRAFT 8-29-94
Page 45

1 (1) Applications to modify a conceptual permit shall be

2 made and reviewed:

3 (a) for an alteration of the design of the surface

4 water management system, in accordance with the same criteria as

5 new applications pursuant to Rules 40D-4.101, 40D-4.301, and 40D-

6 4.302, F.A.C.;

7 (b) for construction authorization of a project phase,

8 in accordance with Chapter 40D-40, F.A.C., if the project phase

9 satisfies the requirements of Rules 40D-40.112 and 40D-40.302,

10 F.A.C.; or

11 (c) for construction authorization of a project phase

12 which does not satisfy the requirements of paragraph (b), in the

13 manner of an individual permit and using the criteria applicable

14 to the conceptual permit; or

15 (d) in accordance with subsection (2)(b) or (3) below.

16 (2) Applications to modify a construction permit shall be

17 made:

18 (a) by formal application and review using the same

19 criteria as new applications, pursuant to Rules 40D-4.101, 40D-

20 4.301, and 40D-4.302, F.A.C., or

21 (b) by letter, provided the requested modification

22 does not:

23 1. 4. No change

24 5. decrease the required flood control

25 elevations for roads or buildings,

26 6. decrease pollution removal efficiency, or









DRAFT 8-29-94
Page 46

1 7. renew or extend the existing permit duration.

2 (3) Application for permit modification to renew or extend

3 the existing permit duration shall occur by formal application

4 and review, and requests for renewal shall be submitted no sooner

5 than 180 days prior to the permit expiration date. A

6 modification for construction permit renewal will be granted if

7 it is reasonably assured by the applicant and determined by the

8 District that any completed construction is in compliance with a

9 currently valid permit, and the proposed construction will be in

10 compliance with the District's rules in effect at the time the

11 application for modification to renew is filed. Applications for

12 conceptual permit renewal must comply with the same criteria as

13 new applications. Each modification to renew can be granted for

14 a duration as needed, up to five years for construction permits

15 and up to two years for conceptual permits.



16 Specific Authority 373.044, 373.113, 373.149, 373.171, F.S. Law

17 Implemented 373.413, 373.416(1), 373.429, 403.805, F.S.

18 History Readopted 10-5-74. Amended 10-1-84, 3-1-88, 10-1-88,

19 6-29-93, and Previously numbered 16J-4.13.



20 (Substantial Rewording of Rule 40D-4.351. See Florida

21 Administrative Code for present text.)



22 40D-4.351 Transfer of Permits.

23 (1) Transfer of Ownership










DRAFT 8-29-94
Page 47

1 (a) A permitted shall notify the District within 30

2 days of any sale, conveyance or any other transfer for a

3 permitted surface water management system or the real property at

4 which the system is located.

5 (b) The District will transfer the surface water

6 management operation and maintenance permit provided the land use

7 remains the same.

8 (c) The permitted transferring the permit shall

9 continue to remain liable for any corrective actions that may be

10 required as a result of any permit violations prior to such sale,

11 conveyance or other transfer.

12 (2) Conversion to Operation Phase

13 (a) In order to convert an environmental resource

14 permit from the construction phase to the operational phase, the

15 permitted shall submit the following:

16 1. The As-Built Certification and Statement of

17 Completion form identified in Chapter 40D-1, F.A.C.; and

18 2. Documentary evidence of satisfaction of

19 permit conditions, other than long-term monitoring.

20 (b) A conversion to the operational phase shall not

21 occur until a responsible entity meeting the requirements in the

22 "Basis of Review for Environmental Resource Permit Applications

23 with the Southwest Florida Water Management District May 1994"

24 has been established to operate and maintain the system. The

25 entity must be provided with sufficient ownership, legal or










DRAFT 8-29-94
Page 48

1 equitable interest so that it has control over all water

2 management facilities authorized by the permit.



3 Specific Authority 373.044, 373.113, F.S. Law Implemented

4 373.413, 373.416(2), 403.805, F.S. History New 10-1-84.

5 Amended 6-29-93, and



6 (Substantial Rewording of Rule 40D-4.381. See Florida

7 Administrative Code for present text.)



8 40D-4.381 General Conditions.

9 (1) The following general conditions shall be a part of all

10 permits issued pursuant to this chapter and chapter 40D-40,

11 F.A.C., unless waived or modified by the Board upon a

12 determination that the conditions are inapplicable to the

13 activity authorized by the permit.

14 (a) All activities shall be implemented as set forth

15 in the plans, specifications and performance criteria as approved

16 by this permit. Any deviation from the permitted activity and the

17 conditions for undertaking that activity shall constitute a

18 violation of this permit.

19 (b) This permit or a copy thereof, complete with all

20 conditions, attachments, exhibits, and modifications, shall be

21 kept at the work site of the permitted activity. The complete

22 permit shall be available for review at the work site upon

23 request by District staff. The permitted shall require the


I _










DRAFT 8-29-94
Page 49

1 contractor to review the complete permit prior to commencement of

2 the activity authorized by this permit.

3 (c) Activities approved by this permit shall be

4 conducted in a manner which does not cause violations of state

5 water quality standards. The permitted shall implement best

6 management practices for erosion and a pollution control to

7 prevent violation of state water quality standards. Temporary

8 erosion control shall be implemented prior to and during

9 construction, and permanent control measures shall be completed

10 within 7 days of any construction activity. Turbidity barriers

11 shall be installed and maintained at all locations where the

12 possibility of transferring suspended solids into the receiving

13 waterbody exists due to the permitted work. Turbidity barriers

14 shall remain in place at all locations until construction is

15 completed and soils are stabilized and vegetation has been

16 established. Thereafter the permitted shall be responsible for

17 the removal of the barriers. The permitted shall correct any

18 erosion or shoaling that causes adverse impacts to the water

19 resources.

20 (d) Water quality data for the water discharged from

21 the permitted's property or into the surface waters of the state

22 shall be submitted to the District as required by the permit.

23 Analyses shall be performed according to procedures outlined in

24 the current edition of Standard Methods for the Examination of

25 Water and Wastewater by the American Public Health Association or

26 Methods for Chemical Analyses of Water and Wastes by the U.S.









DRAFT 8-29-94
Page 50

1 Environmental Protection Agency. If water quality data are

2 required, the permitted shall provide data as required on volumes

3 of water discharged, including total volume discharged during the

4 days of sampling and total monthly volume discharged from the

5 property or into surface waters of the state.

6 (e) District staff must be notified in advance of any

7 proposed construction dewatering. If the dewatering activity is

8 likely to result in offsite discharge or sediment transport into

9 wetlands or surface waters, a written dewatering plan must either

10 have been submitted and approved with the permit application or

11 submitted to the district as a permit prior to the dewatering

12 event as a permit modification. A water use permit may be

13 required prior to any use exceeding the thresholds in Chapter

14 40D-2, F.A.C.

15 (f) Stabilization measures shall be initiated for

16 erosion and sediment control on disturbed areas as soon as

17 practicable in portions of the site where construction activities

18 have temporarily or permanently ceased, but in no case more than

19 7 days after the construction activity in that portion of the

20 site has temporarily or permanently ceased.

21 (g) Off site discharges during construction and

22 development shall be made only through the facilities authorized

23 by this permit. Water discharged from the project shall be

24 through structures having a mechanism suitable for regulating

25 upstream stages. Stages may be subject to operating schedules

26 satisfactory to the District.










DRAFT 8-29-94
Page 51

1 (h) The permitted shall complete construction of all

2 aspects of the surface water management system, including wetland

3 compensation (grading, mulching, planting), water quality

4 treatment features, and discharge control facilities prior to

5 beneficial occupancy or use of the development being served by

6 this system.

7 (i) The following shall be properly abandoned and/or

8 removed in accordance with the applicable regulations:

9 1_.) Any existing wells in the path of

10 construction shall be properly plugged and abandoned by a

11 licensed well contractor.

12 2._- Any existing septic tanks on site shall be

13 abandoned at the beginning of construction.

14 3.4- Any existing fuel storage tanks and fuel

15 pumps shall be removed at the beginning of construction.

16 (j) All surface water management systems shall be

17 operated to conserve water in order to maintain environmental

18 quality and resource protection; to increase the efficiency of

19 transport, application and use; to decrease waste; to minimize

20 unnatural runoff from the property and to minimize dewatering of

21 offsite property.

22 (k) At least 48 hours prior to commencement of

23 activity authorized by this permit, the permitted shall submit to

24 the District a written notification of commencement indicating

25 the actual start date and the expected completion date.










DRAFT 8-29-94
Page 52

1 (1) Each phase or independent portion of the permitted

2 system must be completed in accordance with the permitted plans

3 and permit conditions prior to the occupation of the site or

4 operation of site infrastructure located within the area served

5 by that portion or phase of the system. Each phase or

6 independent portion of the system must be completed in accordance

7 with the permitted plans and permit conditions prior to transfer

8 of responsibility for operation and maintenance of that phase or

9 portion of the system to a local government or other responsible

10 entity.

11 (m) Within 30 days after completion of construction of

12 the permitted activity, the permitted shall submit a written

13 statement of completion and certification by a registered

14 professional engineer or other appropriate individual as

15 authorized by law, utilizing the required Statement of Completion

16 and Request for Transfer to Operation Entity form identified in

17 Chapter 40D-1, F.A.C. Additionally, if deviation from the

18 approved drawings are discovered during the certification process

19 the certification must be accompanied by a copy of the approved

20 permit drawings with deviations noted.

21 (n) This permit is valid only for the specific

22 processes, operations and designs indicated on the approved

23 drawings or exhibits submitted in support of the permit

24 application. Any substantial deviation from the approved

25 drawings, exhibits, specifications or permit conditions,

26 including construction within the total land area but outside the


I










DRAFT 8-29-94
Page 53

1 approved project areass, may constitute grounds for revocation

2 or enforcement action by the District, unless a modification has

3 been applied for and approved. Examples of substantial

4 deviations include, excavation of ponds, ditches or sump areas

5 deeper than shown on the approved plans.

6 (o) The operation phase of this permit shall not

7 become effective until the permitted has complied with the

8 requirements of the conditions herein, the District determines

9 the system to be in compliance which the permitted plans, and the

10 entity approved by the District accepts responsibility for

11 operation and maintenance of the system. The permit may not be

12 transferred to the operation and maintenance entity approved by

13 the District until the operation phase of the permit becomes

14 effective. Following inspection and approval of the permitted

15 system by the District, the permitted shall request transfer of

16 the permit to the responsible operation and maintenance entity

17 approved by the District, if different from the permitted. Until

18 a transfer is approved by the District, the permitted shall be

19 liable for compliance with the terms of the permit.

20 (p) Should any other regulatory agency require changes

21 to the permitted system, the District shall be notified of the

22 changes prior to implementation so that a determination can be

23 made whether a permit modification is required.

24 (q) This permit does not eliminate the necessity to

25 obtain any required federal, state, local and special district

26 authorizations including a determination of the proposed









DRAFT 8-29-94
Page 54

1 activities' compliance with the applicable comprehensive plan

2 prior to the start of any activity approved by this permit.

3 (r) This permit does not convey to the permitted or

4 create in the permitted any property right, or any interest in

5 real property, nor does it authorize any entrance upon or

6 activities on property which is not owned or controlled by the

7 permitted, or convey any rights or privileges other than those

8 specified in the permit and Chapter 40D-4 or Chapter 40D-40,

9 F.A.C.

10 (s) The permitted is hereby advised that Section

11 253.77, F.S., states that a person may not commence any

12 excavation, construction, or other activity involving the use of

13 sovereign or other lands of the state, the title to which is

14 vested in the Board of Trustees of the Internal Improvement Trust

15 Fund without obtaining the required lease, license, easement, or

16 other form of consent authorizing the proposed use. Therefore,

17 the permitted is responsible for obtaining any necessary

18 authorizations from the Board of Trustees prior to commencing

19 activity on sovereignty lands or other state-owned lands.

20 (t) The permitted shall hold and save the District

21 harmless from any and all damages, claims, or liabilities which

22 may arise by reason of the activities authorized by the permit or

23 any use of the permitted system.

24 (u) Any delineation of the extent of a wetland or

25 other surface water submitted as part of the permit application,

26 including plans or other supporting documentation, shall not be










DRAFT 8-29-94
Page 55

1 considered binding unless a specific condition of this permit or

2 a formal determination under section 373.421(2), F.S., provides

3 otherwise.

4 (v) The permitted shall notify the District in writing

5 within 30 days of any sale, conveyance, or other transfer of

6 ownership or control of the permitted system or the real property

7 at which the permitted system is located. All transfers of

8 ownership or transfers of a permit are subject to the

9 requirements of Rule 40D-4.351, F.A.C. The permitted transferring

10 the permit shall remain liable for any corrective actions that

11 may be required as a result of any permit violations prior to

12 such sale, conveyance or other transfer.

13 (w) Upon reasonable notice to the permitted, District

14 authorized staff with proper identification shall have permission

15 to enter, inspect, sample and test the system to insure

16 conformity with District rules, regulations and conditions of the

17 permits.

18 (x) If historical or archaeological artifacts are

19 discovered at any time on the project site, the permitted shall

20 immediately notify the District and the Florida Department of

21 State, Division of Historical Resources.

22 (y) The permitted shall immediately notify the

23 District in writing of any previously submitted information that

24 is later discovered to be inaccurate.

25 Syse fcfs to be operated or mai=3ntc ained by an enitfe4-f

26 which will reeuire a- eaacmint or deed gcatrictien In order to bo









DRAFT 8-29-94
Page 56


the eaaemcnt or deed estriction. to.ether with all fi&na





of Surface Watera, must bo submitcod to the Distriot. Deed



elcumnato which require rcr-dation either with the SCeratarv o

State or thel Clerc of the GCiruit Court nutt be recorded prior to



ttupn completion of eenstruetien of the syste. wh-iehever occu

fir3t.

(2) In addition to those general conditions set forth in

subsection (1), the Governing Board may impose on any permit

granted under this chapter and Chapters 40D-40 and 40D-45,

F.A.C., such reasonable project-specific conditions as are

necessary to assure that the permitted system will be consistent

with the overall objectives of the District and will not be

harmful to the water resources of the District.



Specific Authority 373.044, 373.113, 373.149, 373.171, F.S. Law

Implemented 373.042, 373.403, 373.409, 373.413, 373.414, 373.416,

373.426, F.S. History Readopted 10-5-74, Amended 12-31-74,

6-7-78, 10-1-84, 3-1-88, and .Previously numbered

16J-4.06(7), 16J-4.11, 16J-4.10(3).


40D-4.471 Abatement and Abandonment of a System.










DRAFT 8-29-94
Page 57

1 (1) Abatement proceedings shall be conducted in accordance

2 with Section 373.433, Florida Statutes.

3 (2) Abandonment proceedings shall be conducted in

4 accordance with Section 373.426, F.S.



5 Specific Authority 373.044, 373.113, 373.149, 373.171, F.S. Law

6 Implemented 373.433, F.S. History Readopted 10-5-74. Amended

7 10-1-84, and Previously numbered 16J-4.14.




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