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Summer 2013
IN THIS ISSUE
d&G Lawyer News

  • Statewide Environmental Resource Permit Update
  • By: Kristin Y. Melton

    On February 27, 2013, the Florida Department of Environmental Protection (“DEP”) hosted its final workshop to consider amendments to Chapter 62-330, Florida Administration Code (F.A.C.), the statewide environmental resource permitting rules (“SWERP”), including Applicant’s Handbook Volumes I and II. The purpose of the SWERP rules is to comply with HB 7003 (2012) and simplify and streamline the environmental resource permit (“ERP”) process through statewide consistency by comprehensively integrating the ERP procedures and criteria contained in the F.A.C. and the Applicant’s Handbooks and Basis of Review of each water management district (“WMD”). The proposed rules are primarily the same as existing rules, and are intended to account for regional, natural or physical differences, including special basin criteria. They also implement additional streamlining measures.

    The existing DEP Chapter 62-330, F.A.C., currently incorporates by reference the rules of the WMDs. It was recently amended (through rule transfers) to include all of the noticed general permits formerly contained in Chapter 62-341, F.A.C. Chapter 62-330, F.A.C., is being substantially revised so that it will serve as the primary statewide ERP rule. As required by Section 373.4131, Florida Statutes, the proposed rule chapter includes provisions governing permit thresholds and exemptions; types of permits; application and notice content and submittal procedures; conditions for issuance; general conditions; standardized application, notice, and reporting forms; formal determinations of the landward extent of wetlands and other surface waters; and mitigation criteria.

    The changes are primarily contained in Chapter 62-330, F.A.C., and Applicant’s Handbook Volume I, which apply to all WMDs and DEP. Additional changes are also included in Applicant’s Handbook Volume II, which differs among each WMD and addresses water quantity and water quality. Changes to each WMD’s Chapter 40X, F.A.C., rules and existing Basis of Review or Applicant’s Handbooks are also being proposed to be consistent with the DEP rules in Chapter 62-330 and Applicant’s Handbooks.

    The changes to Chapter 62-330, F.A.C., include mostly reorganization and housekeeping changes, but also include substantive changes. The proposed rules include several new exemptions from ERPs; new statewide permitting thresholds; new, amended and repealed noticed general permit authorizations; streamlined, short form applications for standard genera, general, and standard permits; and new criteria for conceptual approval permits.

    The DEP is also proposing changes to the processing fees in Chapter 62-4, F.A.C. The application fees will be significantly restructured for the following: individual and conceptual approval permits (other than those for a mitigation bank); formal determinations of the landward extent of wetlands and other surface waters; and variances and waivers from rules. Fee reductions will be provided for: individual permits that are consistent with a valid conceptual approval permit; electronic self-certifications (other than 10-2 GPs); electronically submitted applications; and applications from U.S. Department of Defense. The applications for the following projects will not change under the proposed rules: verification of exemptions; verification of general permits (formerly known as noticed general permit); individual or conceptual approval permits for mitigation banks, environmental enhancement/restoration; and most types of permit modifications.

    The DEP is also proposing a number of changes to Applicant’s Handbook Volume I. Volume I includes general processing and evaluation procedures, such as a discussion of the environmental criteria, procedures for formal determinations of the landward extent of wetlands and other surface waters, operation and maintenance, and mitigation that will apply statewide to all agencies implementing the ERP program. Some of the notable changes in Volume I include:
    • A revised definition of “ordinary high water line” to reflect that in the wetland delineation manual, not sovereign submerged lands rules;
    • A requirement for conceptual approval permit issuance for urban infill and redevelopment, including whether the calculated reduction should be determined based on pollutant loading versus total phosphorus and total nitrogen loading; and
    • A requirement that for wetlands or other surface waters that have been altered from their native community type, the historic community type at that location shall be used as a reference for mitigation determinations, unless the alteration has been of such a degree and extent that a different native community type is now present and self-sustaining.
    The DEP also created references and design aids for Volume I to assist with expediting the permitting process by providing helpful internet links and forms.

    The Applicant’s Handbook Volume II is in the form of five separate documents specific to each WMD, which are intended to achieve the following:
    • Preserve existing water quality and water quantity design and performance standards specific to each water management district;
    • Preserve existing basin-specific criteria;
    • Allow overall SWERP streamlining objectives to be accomplished without delays of achieving statewide stormwater quality;
    • Maintain familiarity with models and design concepts;
    • Provide more consistent organization through similar, but not identical chapter numbers & titles and reference to all guides as Applicant’s Handbooks rather than Basis of Review; and
    • No reduction of environmental protection
    On May 6, 2013, the DEP conducted a rule adoption hearing regarding the proposed SWERP rules. The DEP rule adoption hearing will remain open until June 13, 2013, when the water management districts will have concluded similar rule adoption hearings. The DEP requests all public comments be submitted by May 20, 2013. However, since the hearing will remain open until June 13, 2013, comments may be submitted up until the close of the hearing. If approved, the proposed effective date for the new SWERP rules is July 1, 2013.

    de la Parte & Gilbert, P.A. has significant experience in environmental and administrative law and can help answer and address any questions or concerns you may have concerning this topic or any other environmental issues you may have. Please contact kmelton@dgfirm.com at (813) 229-2775 with your inquiries.
    101 E. Kennedy Blvd., Suite 2000 | Tampa, FL 33602 | 813-229-2775 Fax: 813-229-2712
    Email: info@dgfirm.com | Site: www.dgfirm.com
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