§ 373.4131 — Statewide environmental resource permitting rules

Florida § 373.4131

• Jurisdiction: Florida
• Title: XXVIII
• Ch. 373: WATER RESOURCES

Text

(1) The department shall initiate rulemaking to adopt, in coordination with the water management districts, statewide environmental resource permitting rules governing the construction, alteration, operation, maintenance, repair, abandonment, and removal of any stormwater management system, dam, impoundment, reservoir, appurtenant work, works, or any combination thereof, under this part. (a) The rules must provide for statewide, consistent regulation of activities under this part and must include, at a minimum: 1. Criteria and thresholds for requiring permits. 2. Types of permits. 3. Procedures governing the review of applications and notices, duration and modification of permits, operational requirements, transfers of permits, provisions for emergencies, and provisions for abandonment and removal of systems. 4. Exemptions and general permits that do not allow significant adverse impacts to occur individually or cumulatively. 5. Conditions for issuance. 6. General permit conditions, including monitoring, inspection, and reporting requirements. 7. Standardized fee categories for activities under this part to promote consistency. The department and water management districts may amend fee rules to reflect the standardized fee categories but are not required to adopt identical fees for those categories. 8. Application, notice, and reporting forms. To the maximum extent practicable, the department and water management districts shall provide for electronic submittal of forms and notices. 9. An applicant’s handbook that, at a minimum, contains general program information, application and review procedures, a specific discussion of how environmental criteria are evaluated, and discussion of stormwater quality and quantity criteria. (b) The rules must provide for a conceptual permit for a municipality or county that creates a stormwater management master plan for urban infill and redevelopment areas or community redevelopment areas created under chapter 163. Upon approval by the department or water management district, the master plan shall become part of the conceptual permit issued by the department or water management district. The rules must additionally provide for an associated general permit for the construction and operation of urban redevelopment projects that meet the criteria established in the conceptual permit. The following requirements must also be met: 1. The conceptual permit and associated general permit must not conflict with the requirements of a federally approved program pursuant to s. 403.0885 or with the implementation of s. 403.067(7) regarding total maximum daily loads and basin management action plans. 2. Before a conceptual permit is granted, the municipality or county must assert that stormwater discharges from the urban redevelopment area do not cause or contribute to violations of water quality standards by demonstrating a net improvement in the quality of the discharged water existing on the date the conceptual permit is approved. 3. The conceptual permit may not expire for at least 20 years unless a shorter duration is requested and must include an option to renew. 4. The conceptual permit must describe the rate and volume of stormwater discharges from the urban redevelopment area, including the maximum rate and volume of stormwater discharges as of the date the conceptual permit is approved. 5. The conceptual permit must contain provisions regarding the use of stormwater best management practices and must ensure that stormwater management systems constructed within the urban redevelopment area are operated and maintained in compliance with s. 373.416. (c) The rules must rely primarily on the rules of the department and water management districts in effect immediately prior to the effective date of this section, except that the department may: 1. Reconcile differences and conflicts to achieve a consistent statewide approach. 2. Account for different physical or natural characteristics, including special basin considerations, of individual water management districts. 3. Implement additional permit streamlining measures. (d) The application of the rules must continue to be governed by the first sentence of s. 70.001(12).

(2)(a) Upon adoption of the rules, the water management districts shall implement the rules without the need for further rulemaking pursuant to s. 120.54. The rules adopted by the department pursuant to this section shall also be considered the rules of the water management districts. The districts and local governments shall have substantive jurisdiction to implement and interpret rules adopted by the department under this part, consistent with any guidance from the department, in any license or final order pursuant to s. 120.60 or s. 120.57(1)(l). (b)1. A county, municipality, or local pollution control program that has a delegation of the environmental resource permit program authority or proposes to be delegated such authority under s. 373.441 shall without modification incorporate by reference the rules adopted pursuant to this section. 2. A county, municipality, or local pollution control program that has a delegation of the environmental resource permit program authority under s. 373.441 must amend its local ordinances or regulations to incorporate by reference the applicable rules adopted pursuant to this section within 12 months after the effective date of the rules. 3. Consistent with s. 373.441, this section does not prohibit a county, municipality, or local pollution control program from adopting or implementing regulations that are stricter than those adopted pursuant to this section. 4. The department and each local program with the authority to implement or seeking to implement a delegation of environmental resource permit program authority under s. 373.441 shall identify and reconcile any duplicative permitting processes as part of the delegation. (c) Until the rules adopted pursuant to this section become effective, existing rules adopted pursuant to this part remain in full force and effect. Existing rules that are superseded by the rules adopted pursuant to this section may be repealed without further rulemaking pursuant to s. 120.54 by publication of a notice of repeal in the Florida Administrative Register and subsequent filing of a list of the rules repealed with the Department of State.

(3)(a) The water management districts, with department oversight, may continue to adopt rules governing design and performance standards for stormwater quality and quantity, and the department may incorporate the design and performance standards by reference for use within the geographic jurisdiction of each district. (b) If a stormwater management system is designed in accordance with the stormwater treatment requirements and criteria adopted by the department or a water management district under this part, the system design is presumed not to cause or contribute to violations of applicable state water quality standards. (c) If a stormwater management system is constructed, operated, and maintained for stormwater treatment in accordance with a valid permit or exemption under this part, the stormwater discharged from the system is presumed not to cause or contribute to violations of applicable state water quality standards.

(4) Notwithstanding the adoption of rules pursuant to this section, the following activities shall continue to be governed by the rules adopted by the department, the water management districts, and delegated local programs under this part in effect before the effective date of the rules adopted pursuant to this section, unless the applicant elects review in accordance with the rules adopted pursuant to this section: (a) The operation and maintenance of any stormwater management system, dam, impoundment, reservoir, appurtenant work, works, or any combination thereof legally in existence before the effective date of the rules adopted pursuant to this section if the terms and conditions of the permit, exemption, or other authorization for such activity continue to be met. (b) The activities determined in writing by the department, a water management district, or a local government delegated local pollution control program authority under s. 373.441 to be exempt from the permitting requirements of this part, including self-certifications submitted to the department, a water management district, or a delegated local government before the effective date of the rules adopted pursuant to this section. (c) The activities approved in a permit issued pursuant to this part and the review of activities proposed in a permit application that is complete before the effective date of the rules adopted pursuant to this section. This paragraph applies to any modification of the plans, terms, and conditions of the permit, including new activities, within the geographical area to which the permit applies and to any modification that lessens or does not increase impacts. However, this paragraph does not apply to a modification that is reasonably expected to lead to additional or substantially different impacts.

(5) To ensure consistent implementation and interpretation of the rules adopted pursuant to this section, the department shall conduct or oversee regular assessment and training of its staff and the staffs of the water management districts and local governments delegated local pollution control program authority under s. 373.441. The training must include field inspections of publicly and privately owned stormwater structural controls, such as stormwater retention and detention ponds.

(6) By January 1, 2021: (a) The department and the water management districts shall initiate rulemaking to update the stormwater design and operation regulations, including updates to the Environmental Resource Permit Applicant’s Handbook, using the most recent scientific information available. As part of rule development, the department shall consider and address low-impact design best management practices and design criteria that increase the removal of nutrients from stormwater discharges, and measures for consistent application of the net improvement performance standard to ensure significant reductions of any pollutant loadings to a water body. (b) The department shall review and evaluate permits and inspection data by those entities that submit a self-certification under s. 403.814(12) for compliance with state water quality standards and provide the Legislature with recommendations for improvements to the self-certification process, including, but not limited to, additional staff resources for department review of portions of the process where high-priority water quality issues justify such action.

(7) The Legislature ratifies rule 62-330.010, Florida Administrative Code, titled “Purpose and Implementation,” as filed for adoption with the Department of State pursuant to the certification package dated April 28, 2023, with the following changes: (a) Section 3.1.2(e)3. of the Applicant’s Handbook Volume I, incorporated in rule 62-330.010(4)(a), Florida Administrative Code, is changed to add, after the last sentence, the following: “Nothing in Section 3.1.2(e)3. shall eliminate any grandfather provisions in Section 1.4.2 and other grandfather provisions of Section 3.1.2 in existence prior to [effective date]. Projects listed in Section 3.1.2(e)3. shall use all forms in effect at the time the permit was originally issued, except for those subsequent permits to construct and operate the future phases consistent with an unexpired conceptual approval permit which shall use the following forms effective [effective date]: Form 62-330.301(26) Financial Capability Certification; Form 62-330.301(25) Dam System Information; Form 62-330.311(1) Operation and Maintenance Certification; and Form 62-330.311(3) Inspection Checklists, as applicable.” (b) Section 8.3.4(a)3. of the Applicant’s Handbook Volume I, incorporated in rule 62-330.010(4)(a), Florida Administrative Code, is changed to read: “the post-development condition average annual loading, of those pollutants not meeting water quality standards, that is less than that of the predevelopment condition.” (c) Section 8.3.4(b)2. of the Applicant’s Handbook Volume I, incorporated in rule 62-330.010(4)(a), Florida Administrative Code, is changed to read: “the post-development condition average annual loading, of those pollutants not meeting water quality standards, that is less than that of the predevelopment condition.” (d) Section 8.3.5 of the Applicant’s Handbook Volume I, incorporated in rule 62-330.010(4)(a), Florida Administrative Code, is changed to read: “Stormwater treatment systems serving redevelopment activities shall either meet the requirements of Sections 8.3.2 through 8.3.4 or provide an alternate level of treatment sufficient to accomplish: (a) an 80 percent reduction of the post-development average annual loading of TP and a 45 percent reduction of the post-development average annual loading of TN from the project area; and (b) for stormwater systems located within a HUC 12 sub-watershed containing an OFW and located upstream of that OFW, a 90 percent reduction of the post-development average annual loading of TP and a 60 percent reduction of the post-development average annual loading of TN from the project area; and (c) for stormwater treatment systems located within a HUC 12 sub-watershed which contains an impaired water and located upstream of that impaired water, a level of treatment sufficient to accomplish a post-development condition average annual loading, of those pollutants not meeting water quality standards, that is less than that of the predevelopment condition.” (e) The first sentence of Section 12.5(a) of the Applicant’s Handbook Volume I, incorporated in rule 62-330.010(4)(a), Florida Administrative Code, is changed to read: “All operation and maintenance entities, other than MS4 Entities, shall conduct and report inspections in accordance with this section; except that those specific activities and best management practices regulated by the South Florida Water Management District pursuant to Chapter 40E-63, F.A.C., or by the Department of Agriculture and Consumer Services pursuant to Title 5M, F.A.C., and Section 403.067(7)(c)2., F.S., shall be inspected in accordance with such applicable rules and laws.” (f) Section 8.2.2 of the Applicant’s Handbook Volume I, incorporated in rule 62-330.010(4)(a), Florida Administrative Code, is changed to add, after the last sentence, the following: “When an applicant demonstrates that its designs and plans, including any supporting information, meet the performance standards of Sections 8.2.3 and 8.3 by performing the analysis specified in Section 9 and, if applicable, in Volume II or Appendix O of Volume I, employing the structural best management practices specified therein as needed, and provides the information required by such sections, the applicant shall have satisfied the conditions for issuance of rule 62-330.301(1)(e), F.A.C., and rule 62-330.301(3), F.A.C., if applicable, and is entitled to the presumption of Section 373.4131(3)(b), F.S.” (g) Section 8.3.1 of the Applicant’s Handbook Volume I, incorporated in rule 62-330.010(4)(a), Florida Administrative Code, is changed to read: “Each applicant shall demonstrate, through modeling or calculations as described in Section 9, that their proposed stormwater management system is designed to discharge to the required treatment level based on the performance standards described in Sections 8.3.2 through 8.3.5 below. For the purposes of this section, annual loading from the proposed project refers to post-development loads before treatment, as calculated in Section 9 of this volume. Stormwater treatment systems shall be designed to achieve at least an 80 percent reduction of the average annual post-development total suspended solids (TSS) load, or 95 percent of the average annual post-development TSS load for those proposed projects located within a HUC 12 sub-watershed containing an Outstanding Florida Water (OFW) and located upstream of that OFW. There is a rebuttable presumption that this standard is met when structural stormwater best management practices (BMPs) are designed to meet the applicable design standards in Sections 8.3.2 through 8.3.5 below.” (h) Section 9.1 of the Applicant’s Handbook Volume I, incorporated in rule 62-330.010(4)(a), Florida Administrative Code, is changed to read: “Applicants are required to provide nutrient load reduction calculations in their application. To calculate the required stormwater nutrient load reduction for a project, the applicant should: 1. Determine whether the site falls within the same HUC 12 sub-watershed as, and is upstream of, an OFW or impaired water, and select the corresponding performance standard from Section 8.3 of this volume; 2. Determine the pre-development average annual average mass loading of the project area for both total nitrogen (TN) and total phosphorus (TP) through modeling or as described in Section 9.2; 3. Calculate the project area’s post-development annual average mass loading before treatment for both TN and TP through modeling or as described in Section 9.2; 4. Determine the percent TN and TP reduction needed as defined within Sections 8.3 and 9.3 of this volume. The greater percent load reduction will be the requirement for the project; and 5. Determine which BMPs, or other treatment and reduction options, will be used to meet the required TN and TP load reductions that are equivalent to, or which exceed, the applicable performance standards in Sections 8.2.3 through 8.3.6. Information on how to calculate nutrient load reduction for BMP Treatment Train is found in Section 9.5 of this volume. When an applicant provides reasonable assurance that its modeling, calculations, and applicable supporting documentation satisfy the provisions described above, the applicant shall have demonstrated that it meets the performance standards specified under Sections 8.2.3 through 8.3.6 of this volume.” (i) Section 3.1.2(e)4. of the Applicant’s Handbook Volume I, incorporated in rule 62-330.010(4)(a), Florida Administrative Code, is changed to read: “Projects or activities that are the subject of a general or individual permit application that is deemed complete on or before [effective date + 18 months] shall be exempt from the amendments to Chapter 62-330, F.A.C., and Volume I adopted on [effective date], and the corresponding amendments to the applicable Volume II.” (j) Section 3.1.2(f) shall be added to the Applicant’s Handbook Volume I, incorporated in rule 62-330.010(4)(a), Florida Administrative Code, and shall read: “Development or other construction projects for which stormwater management and design plans were submitted to a local or other government agency before January 1, 2024, shall be exempt from the amendments to Chapter 62-330, F.A.C., and Volume I adopted on [effective date], and the corresponding amendments to the applicable Volume II, for any of the following: 1. A project that was submitted as part of a local building permit or as part of an application for a site plan or subdivision plat approval. 2. An approved regional stormwater management system designed and permitted pursuant to an effective permit under part IV of chapter 373, F.S.” (k) Section 3.1.2(g) shall be added to the Applicant’s Handbook Volume I, incorporated in rule 62-330.010(4)(a), Florida Administrative Code, and shall read: “Stormwater management systems constructed in accordance with a binding ecosystem management agreement executed by the department pursuant to Section 403.0752, F.S., before January 1, 2024, are exempt from the amendments to chapter 62-330, Florida Administrative Code, the Applicant’s Handbook Volume I adopted on [effective date], and corresponding amendments to the Applicant’s Handbook Volume II.” (l) Section 3.1.2(h) shall be added to the Applicant’s Handbook Volume I, incorporated in rule 62-330.010(4)(a), Florida Administrative Code, and shall read: “Stormwater management and design plans for a valid development of regional impact, as defined in Section 380.06, F.S., with a development order, as defined pursuant to Section 380.031, F.S., issued before January 1, 2024, are exempt, until October 1, 2044, from the amendments to chapter 62-330, Florida Administrative Code, the Applicant’s Handbook Volume I adopted on [effective date], and corresponding amendments to the Applicant’s Handbook Volume II, except where there has been an official determination or classification that an approved development of regional impact was essentially built out, as discussed in Section 380.06(4), F.S., after [effective date].” (m) Section 3.1.2(i) shall be added to the Applicant’s Handbook Volume I, incorporated in rule 62-330.010(4)(a), Florida Administrative Code, and shall read: “Stormwater management and design plans for a planned unit development final development plan approved pursuant to a local ordinance, resolution, or other final action by a local governing body before January 1, 2024, are exempt, until October 1, 2034, from the amendments to chapter 62-330, Florida Administrative Code, the Applicant’s Handbook Volume I adopted on [effective date], and corresponding amendments to the Applicant’s Handbook Volume II.” Any future amendments to those portions of the Applicant’s Handbook Volume I, incorporated in rule 62-330.010(4)(a), Florida Administrative Code, included in this subsection must be submitted in bill form to the Speaker of the House of Representatives and to the President of the Senate for their consideration and referral to the appropriate committees. Such amendments shall become effective only upon approval by act of the Legislature.

Legislative History

s. 1, ch. 2012-94; s. 36, ch. 2013-14; s. 1, ch. 2013-176; s. 5, ch. 2020-150; s. 2, ch. 2024-275.