New Environmental Resource Permit Rules
Florida’s water resources are regulated pursuant to the Environmental Resource Permit (ERP) program under Part IV of F.S. Ch. 373. This broad regulatory program went into effect on October 3, 1995, and applies to activities that involve the alteration of surface water flows, including new activities in uplands that generate stormwater runoff from upland construction, as well as dredging and filling in wetlands and other surface waters. The program covers everything from residential and commercial development in wetlands and uplands, to construction of roads, to certain agricultural alterations that impede or divert the flow of surface waters.1
ERP applications are processed by either the Department of Environmental Protection (DEP) or one of the state’s five water management districts in accordance with the division of responsibilities specified in operating agreements between DEP and the individual water management districts.2 The ERP program is in effect throughout the state.3
Each of the five water management districts has historically had different rules for processing ERPs. The rules of each of the water management districts were also adopted by DEP and are utilized by DEP in processing permits. While the environmental criterion was substantially the same in all the water management districts, the processing and administration varied.
Water quality and quantity regulations were designed to achieve substantially the same goals, but varied among the water management districts, due largely to physical and natural differences. Florida is a complex and unique state with two distinct climate zones. One is the subtropical or temperate zone that covers the majority of the peninsula, and the other is the tropical zone that extends from south of Lake Okeechobee to the Florida Keys. Because of this, plant and animal life, ecosystems, surface water, groundwater, and precipitation vary throughout the state. Florida also has 7,700 lakes, 50,000 miles of rivers and streams, and 700 springs that vary in diversity throughout the state.4 Added to this diversity are the unique wetlands known as the Everglades.5
In September 2011, the Florida Senate Committee on Environmental Preservation and Conservation issued an interim report suggesting that the legislature direct DEP to develop and adopt a statewide ERP rule to set forth a more consistent approach to regulation, but still allow for flexibility for the unique characteristics of each water management district.6 In 2012, recognizing the merit of the recommendations in this interim report, the legislature adopted HB 7003. This bill, which is codified in F.S. §373.4131,7 directed DEP, in coordination with the five water management districts, to initiate rulemaking to adopt a statewide ERP rule.
The purpose of this rule is to streamline, promote statewide consistency, and reduce regulatory costs and burdens for the public while preserving environmental standards and continuing to protect the state’s water resources.8 The rule is required to provide for the statewide, consistent regulation of the “construction, alteration, operation, maintenance, repair, abandonment, and removal of any stormwater management system, dam, impoundment, reservoir, appurtenant work, works, or any combination thereof.”9 However, in developing a consistent statewide approach, the legislature recognized that the rule must still account for differing physical and natural characteristics within the individual water management districts.10
As required by F.S. §373.4131, the new rules shall “rely primarily on the rules of [DEP] and water management districts in effect immediately prior to the effective date of this section.”11 The statute required the new rule to include:
• Types of permits, permit criteria, thresholds for requiring permits and standardized fee categories;
• Synchronized procedures for review, duration, modification, operational requirements, transfer, forms, emergencies, removal, abandonment and electronic submittal;
• Exemptions and general permits that do not allow individual or cumulative significant adverse impacts; and
• Conditions for issuance and general permit conditions.12
To accomplish this statutory directive, DEP, in coordination with the five water management districts, amended Florida Administrative Code (F.A.C.) Ch. 62-330 to serve as the Statewide Environmental Resource Permit Rule (SWERP). The purpose of this chapter is to implement the permitting program authorized in Part IV of F.S. Ch. 373. Although this rule was adopted by DEP, it is also considered a rule of the water management districts.13 Simultaneously, water management district rules were amended or repealed to reflect the new rule and to delete duplicative language. In implementing the program, the responsibilities of DEP and the water management districts remain unchanged.14
Permit Categories, Exemptions, and Procedures
Generally, a permit is required for the construction, alteration, operation, maintenance, removal, or abandonment of any new project, which is a nonexempt activity that is 1) in, on, or over wetlands or other surface waters; 2) more than 4,000 square feet of impervious and semi-impervious surface area subject to vehicular traffic; 3) more than 9,000 square feet of impervious and semi-impervious surface area; 4) a project area of more than one acre; 5) impounds more than 40 acre feet of water; or 6) part of a larger common plan of development.15 The types of permits available under the statewide ERP rule are general, individual, and conceptual permits.16 Permits for mitigation banks are a type of individual permit, and are also subject to requirements in F.A.C. Ch. 62-342.
The purpose of general permits is to authorize activities that will cause minimal individual and cumulative adverse impacts to water resources, if those activities are conducted in accordance with permit requirements.17 Notice requirements are set forth and specific terms, conditions, and limitations are specified.18 Forty-two general permits are set forth for specific activities.19 An applicant who qualifies for a general permit must provide notice to the agency at least 30 days before beginning the proposed activity or on such other date as specified in the permit. Within 30 days of receiving the notice, the agency shall determine if the activity qualifies for a general permit or request additional information needed to make that determination. If the applicant does not qualify for a general permit, the applicant may, within 60 days of notification, apply the general permit processing fee to an application for an individual permit.20 Parties that do not qualify for a general permit must apply for an individual permit.
Conceptual permits are available for applicants who wish to have their design concept approved for a master or future plan. This includes phased projects and situations in which the applicant has not yet developed the detailed design or construction plans for an activity that will be constructed in the future. A conceptual approval does not authorize work, but a construction authorization for the first phase of development may be issued with the conceptual approval.21
Conditions for issuance for an individual or conceptual approval are set forth in F.A.C. Rule 62-330.301, which are very similar to those included in pre-statewide ERP rules. These conditions require an applicant to provide reasonable assurances that the activities:
a) Will not cause adverse water quantity impacts to receiving waters and adjacent lands…or b) flooding to on-site or off-site property…;
c) Will not cause adverse impacts to existing surface water storage and conveyance capabilities…;
d) Will not adversely impact the value of function provided to fish, wildlife, and listed species by wetlands and other surface waters…;
e) Will not adversely affect the quality of receiving waters such that state water quality standards…will be violated…;
f) Will not cause adverse secondary impacts to water resources…; 22
g) Will not affect the maintenance of surface or ground water levels or surface water flows established [pursuant to F.S. §373.042]…;
h) Will not cause adverse impacts to a work of the district…[as that term is defined];
i) Will be capable, based on generally accepted engineering and scientific principles, of [performing] and of functioning as proposed…[and] j) [w]ill be
ii) conducted by a person with the financial, legal, and administrative capability of ensuring [compliance with the permit]…; andk) Will comply with applicable special basin or geographic area criteria….
If an applicant is unable to meet state water quality standards because existing ambient water quality does not meet standards and the proposed system will contribute to this condition, then the applicant must implement mitigation that will cause a net improvement to water quality in the receiving waters for the applicable parameters.23
Additional conditions for issuance, consistent with those in pre-statewide ERP rules, are also set forth in F.A.C. Rule 62.330.302. This section contains the seven factors from the statutory public interest balancing found in F.S. §373.414(1)(a).24 Provisions on cumulative impacts, authorized in F.S. §373.414(8),25 and provisions for the consideration of past violations of DEP or water management district rules are also set forth.
In providing reasonable assurances, an applicant must demonstrate a substantial likelihood that the project will be successfully implemented pursuant to the rules. However, the reasonable assurance standard does not require an “absolute guarantee” of compliance with the applicable rules.26
Previously, four of the water management districts and DEP did not require the permit to be issued only to the record title holder of the land on which the application is proposed. However, since the operation phase of permits is perpetual, the new rules require permits to be issued only to the record title holder, the holder of an easement conveying the right to use the property for the purpose proposed in the permit, a party with the power of eminent domain, or an entity having a contract to purchase the real property.27
Once construction is completed, the permit must be converted to the operation and maintenance phase. For most individual permits, this requires a certification by a registered professional before it can be converted.28
The duration of general and individual permits is now five years for construction. A longer duration may be allowed for an individual permit under certain conditions and the duration may be extended. The duration of conceptual permits is now 20 years, provided that the initial phase of construction or alteration begins within five years from the date of the conceptual approval and the work remains in compliance. The operation and maintenance phase of the permit is perpetual.29
In addition to statutory exemptions, various exemptions from permit requirements are set forth in F.A.C. Rules 62-330.051 and 62-330.0511. Unless otherwise set forth in the exemption, notice to the agency is not required. The statewide ERP rule encourages the use of electronic self-certification. While verification from the agency is not required, the rules do set forth a process for persons desiring confirmation of an exemption.
The fees for permits continue to be set forth in the rules of the individual water management districts. However, the categories of fees are now consistent among the water management districts. The intent was to keep the fees of each agency essentially the same; however, some specific fees differ from those in pre-statewide ERP rules as a result of the standardization of categories. These changes are not considered significant.
Applicant’s Handbooks
In the pre-statewide ERP rules, each of the five water management districts’ technical criteria was set forth in a separate volume known as the applicant’s handbook (AH) or the basis of review (BOR), incorporated by reference into each water management district’s rules. Each AH or BOR was also adopted by reference by DEP. The pre-statewide ERP AHs and BORs include environmental, water quality, water quantity, and procedural criteria.
F.S. §373.4131(1)(a)9 required the development of a new applicant’s handbook that must contain, at a minimum, general program information, application review procedures, and a discussion of environmental, water quality, and water quantity criteria. In accordance with this directive, DEP, in coordination with the water management districts, promulgated Environmental Resource Permit Applicant’s Handbook Volume I (AH I), which applies statewide. It discusses procedural requirements, thresholds, exemptions, conditions for issuance, erosion and sediment control practices, and operation and maintenance requirements.30 The environmental criteria found in the individual pre-statewide ERP AH or BOR of each water management district was moved, with minor revisions, to AH I. Therefore, the environmental criteria are no longer set forth in the individual water management districts’ AHs or BORs.
What was formerly referred to as the AH or BOR in each water management district is now called the Environmental Resource Permit Applicant’s Handbook Volume II for Use within the Geographic Limits of the Applicable Water Management District (AH II). AH II includes water quality and quantity design and performance standards, hydrologic basins, and regional watersheds applicable to each water management district. The retention of these provisions in the individual AH II and the retention of special basin criteria satisfies F.S. §373.4131(1)(c)2, which requires that the rules account for different physical or natural characteristics, including special basin considerations, of each water management district. AH II is not generally applicable to 1) projects that cause no more than an incidental amount of stormwater runoff, such as a single-family home up to a quadruplex, which is not part of a larger plan of development; 2) stand-alone in-water projects and shoreline stabilization type projects; 3) docks and piers; 4) activities that do not add more than a de minimis amount of impervious surface; 5) exempt activities; and 6) activities that qualify for a general permit.31
Importantly, water quality and quantity criteria from each water management districts’ AH or BOR are retained. With respect to design and performance standards for stormwater quality and quantity, each water management district, with DEP oversight, may continue to adopt rules on these subjects.32 The criteria set forth in AH II further the goal of meeting the water resource objectives in Part IV of F.S. Ch. 373. Performance criteria were used when possible.
The pre-statewide ERP AHs and BORs contain a presumption that if there is compliance with the criteria, it will be presumed that the project is consistent with the conditions for issuance of a permit. Similarly, a presumption is also provided in Florida Statutes that is applicable when the system is designed in accordance with the stormwater treatment requirements and criteria adopted under Part IV of F.S. Ch. 373. Such systems will be presumed “not to cause or contribute to violations of applicable state water quality standards.”33 Similarly, if the system is constructed, operated, and maintained for stormwater treatment in accordance with a valid permit or exemption under Part IV of F.S. Ch. 373, the discharges from that system will be “presumed not to cause or contribute to violations of applicable state water quality standards.”34
Status
DEP, in coordination with the five water management districts, initiated rule development in June 2012, to amend F.A.C. Ch. 62-330. The water management districts and DEP worked together and with the public for more than a year to develop this rule. Six public workshops were held by DEP in coordination with the water management districts, and the rule was adopted by DEP on June 13, 2013, with an August 1, 2013, effective date.
In fall 2012, the five water management districts initiated rule development to amend or repeal provisions in F.A.C. Titles 40A, 40B, 40C, 40D, and 40E to be consistent and to avoid duplication with F.A.C. 62-330. Each of the water management districts also held public workshops early in 2013. Amendments to individual water management district rules were adopted by district governing boards in May and June 2013. Amendments to water management district rules will take effect at the same time as F.A.C. Ch. 62-330.
1 Fla. Senate, Committee on Environmental Preservation and Conservation, Statewide Environmental Resource Permit, Interim Report 2012-121 at 2 (2011).
2 See Operating Agreement Concerning Regulation Under Part IV, Chapter 373, Fla. Stat., between the applicable water management districts and the Department of Environmental Protection (July 2007).
3 See Florida DEP, Environmental Resource Permitting (ERP) Program, http://www.dep.state.fl.us/water/wetlands/erp/; see also F.A.C. R. 62-
330.010(3).
4 National Oceanic Atmospheric Administration’s National Weather Service, JetStream-OnLine School for Weather, http://www.srh.noaa.gov/jetstream/global/climate.htm.
5 Fla. Senate, Committee on Environmental Preservation and Conservation, Statewide Environmental Resource Permit, Interim Report 2012-121 at 1 (2011).
6 Id. at 6.
7 Fla. Stat. §373.4131 was created by Fla. Laws Ch. 2012-94, effective July 1, 2012.
8 Dept. of Envtl. Prot., 38 F.A.R. 2543 (June 22, 2012).
9 Fla. Stat. §373.4131(1)(a) (2012); F.A.C. R. 62-330.010(3).
10 Fla. Stat. §373.4131(1)(c)2 (2012).
11 Fla. Stat. §373.4131(1)(c) (2012).
12 Fla. Stat. §373.4131(1)(a) (2012).
13 Fla. Stat. §373.4131(2)(a) (2012).
14 At the time of the writing of this article, F.A.C. Ch. 62-330 was adopted by DEP, but was not yet effective. The scheduled effective date was August 1, 2013. Amendments to water management district rules were adopted by district governing boards and are also scheduled to become effective simultaneously with F.A.C. Ch. 62-330.
15 Additional threshold requirements are set forth in F.A.C. R. 62-330.020, Applicant’s Handbook Vol. I, §3.1.4 and Applicant’s Handbook Vol. II, are both incorporated by reference in F.A.C. R. 62-330.010.
16 F.A.C. R. 62-330.020(3).
17 F.A.C. R. 62.330.401.
18 F.A.C. R. 62-330.402 and 62-330.405.
19 See F.A.C. R. 62-330.407 through 62-330.635.
20 F.A.C. R. 62-330.402(2)(c).
21 F.A.C. R. 62-330.056.
22 Secondary impacts are generally described as impacts that occur outside the direct footprint of the project, but are closely linked and causally related to the activity being permitted. There must be a “but for” relationship. Closely linked and causally related means, but for this activity taking place, this cause and effect would not occur. Fla. Bay Initiative v. Fla. Dept. of Transp., 19 F.A.L.R. 3712, 3720 (SFWMD 1997); Deep Lagoon Boat Club, Ltd., v. Sheridan, 784 So. 2d 1140 (Fla. 2d DCA 2001); Conservancy Inc. v. A. Vernon Allen Builders, Inc., 580 So. 2d 782, 777 (Fla. 1st DCA 1991), rev. den., 591 So. 2d 631 (Fla. 1991); and Chipola Basin Prot. Group, Inc. v. Dep’t of Envtl. Reg., 11 F.A.L.R. 467, 480 (DEP 1988). See also Royal Palm Beach Colony, L.P. v. So. Fla. Water Mgmt. Dist., 1999 WL 1483854 (Fla. Div. Admin. Hrgs. 1999); del Campo v. State Dep’t of Envtl. Reg., 452 So. 2d 1004 (Fla. 1st DCA 1984) (The general analysis in decisions issued prior to 1995 describing and explaining secondary impacts was incorporated in the ERP rules.).
23 F.A.C. R. 62-330.301(2).
24 See also Applicant’s Handbook Vol. I, §10.2.3. incorporated by reference in F.A.C. R. 62-330.010.
25 Cumulative impacts are those created by the cumulative effects of similar future projects. Caloosa Property Owners’ Assn., Inc. v. Dept. of Envtl. Reg., 462 So. 2d 523 (Fla. 1st DCA 1985).
26 Metropolitan Dade Co. v. Coscan Fla., Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992); Save Our Suwannee, Inc. v. Dept. of Envtl. Prot. and Piechocki, 18 F.A.L.R. 1467, 1472 (DEP 1996).
27 F.A.C. R. 62-330.090(6).
28 F.A.C. R. 62-330.310.
29 F.A.C. R. 62-220.056(9) and 62-330.320.
30 Applicant’s Handbook Vol. I is incorporated by reference in F.A.C. R. 62-330.010.
31 Applicant’s Handbook Vol. I, §1.1, incorporated by reference in F.A.C. R. 62-330.010.
32 Fla. Stat. §373.4131(3)(a) (2012).
33 Fla. Stat. §373.4131(3)(b) (2012).
34 Fla. Stat. §373.4131(3)(c) (2012).
Susan Roeder Martin is a senior specialist attorney with the South Florida Water Management District. She specializes in environmental resource permit issues and administrative law and is board certified in state and federal government and administrative practice. She graduated from the University of Florida College of Law with honors and received her bachelor of science degree from Florida Atlantic University. She is also accredited by the Green Building Certification Institute as a leadership in energy and environmental design (LEED) professional and is a Supreme Court-certified mediator.
This column is submitted on behalf of the Environmental and Land Use Law Section, Erin Lee Deady, chair, and Tara Duhy, editor.
