Tomoka River Hydrologic Basin and Spruce Creek Hydrologic Basin

     The St. Johns River Water Management District’s Governing Board amended Chapters 40C-4 (Environmental Resource Permit rules), 40C-41 (Special Basin Criteria), Florida Administrative Code, and the District’s Applicants’ Handbook: Management and Storage of Surface Waters (MSSW) to incorporate the new hydrologic basins for the Tomoka River and Spruce Creek. The intent of the amendments was to provide additional protection to the designated Outstanding Florida Waters of the Tomoka River and Spruce Creek and their hydrologic basins. These amendments consist of lowered permitting thresholds for certain surface water management systems constructed in these two hydrologic basins and four new standards.

     The lower permitting thresholds allow the agency to review projects that were not previously required to meet the permitting criteria of Chapter 40C-4, Florida Administrative Code. These rule amendments revise two of eight thresholds of the ERP rules. For example, under the previous rule, applicants proposing to construct systems which serve less than 40 acres were not required to obtain an Environmental Resource Permit (ERP). The amendments lowered that threshold to 10 acres. Additionally, under the previous rule, applicants proposing to construct systems with less than 12 acres of impervious surface were not required to obtain an ERP. The rule revision lowered the threshold to 2 acres of impervious surface.

     The four new standards include a groundwater recharge standard; a floodplain storage standard; a stormwater management standard; and a Riparian Habitat Protection Zone standard; which are to be applied in addition to the existing district-wide standards in the ERP rules. With expected population increases in Volusia County, increased water withdrawals are anticipated from public water supply wellfields near the basins that will contribute to saltwater intrusion in the Floridan aquifer, and cause adverse impacts to wetland communities and to the base flow of streams. The new recharge standard allows for replacement of the groundwater withdrawn by these wells and reduces the adverse impacts caused by wellfield withdrawals. Because the Tomoka and Spruce Creek Basins are subject to flooding, the revised floodplain storage standard will serve to minimize this concern. The stormwater management system standard will reduce the impact of malfunctioning detention with filtration stormwater management systems within the basins. Finally, the Riparian Habitat Protection Zone standard is designed to protect the basins’ aquatic and wetland dependent wildlife, which will be adversely impacted by urbanization of the basins. These rule amendments became effective November 25, 1998.

Minimum Surface Water Levels and Flows and Groundwater Levels

     In accordance with the mandate of Sections 373.042 and 373.0421, Florida Statutes (1997), the District adopted an amendment to Rule 40C-8.031, Florida Administrative Code, establishing minimum water levels for certain lakes: Lakes Disston and Gore in Flagler County; Bird Pond, Cowpen, Deep Echo, McGrady, McKasel, Melrose, North Como Park, Orio, Pam, Prior, South Como Park, and Sand in Putnam County; Wauberg in Alachua County; Ashby, Davis, Dias, and Three Island in Volusia County; Mills and Sylvan in Seminole County; and Prevatt in Orange County. Each lake has a minimum frequent high level, a minimum average level, and a minimum frequent low level. In addition, each of these levels have an associated hydroperiod category. As with all minimum flows and levels established by the District, this rule amendment requires that an applicant seeking a permit pursuant to Chapters 40C-2, 40C-20, 40C-4, or 40C-40, Florida Administrative Code, provide reasonable assurance that the activity for which the permit is sought will not violate the minimum levels. These amendments became effective on November 4, 1998.

Mitigation Banking

     In 1996, the Florida Legislature adopted amendments to Sections 373.403, 373.4135, and 373.4136, Florida Statutes, to address mitigation banking. To conform its rules to these statutory amendments, the District revised Chapter 40C-4, Florida Administrative Code, and sections 2.0 and 12.4 of the Applicants’ Handbook: MSSW.

     In the past, the District’s mitigation banking rules required mitigation bankers to provide financial responsibility for the construction and perpetual management of mitigation banks pursuant to several mechanisms listed in the rules, but did not specify the type of documentation that must be provided. Based on its mitigation banking experience to date, the District determined that the rule’s language regarding financial responsibility mechanisms and land preservation mechanisms needed improvement. The District further determined, in reviewing the financial responsibility documentation submitted by mitigation bankers, that some standard documentation was needed. As a result, the District improved the language regarding financial responsibility and land preservation mechanisms, and adopted standardized financial responsibility documentation. The rule amendments also served to simplify and clarify the forms of financial responsibility that must be provided to insure the construction, implementation and perpetual maintenance of mitigation banks. These amendments became effective on January 7, 1999.

Water Conservation / Use of Reclaimed Water

     The District had five objectives in amending Chapter 40C-2, Florida Administrative Code. First, the District modified its water conservation plan approach that was implemented in 1991 for public supply-type permit applicants to a facilities-audit approach. Second, the District adopted amendments to implement Section 373.250, Florida Statutes, which include provisions concerning back-up water allocations for persons using reclaimed water, and codifying existing District policy and practice regarding use of reclaimed water. Third, the rule revision gives specific criteria for evaluating the use of water for surface water augmentation. This revision provides more guidance to applicants and the District when assessing consumptive use permit (CUP) applications for requesting the use of water to augment a surface water body. Additionally, it provides a general permit by rule for certain small pond augmentation uses. Fourth, the District amended the rule to allow permit durations for up to 20 years in conformity with Section 373.236, Florida Statutes, and as directed by the 1997 Florida Legislature. Finally, there are a few clarifying amendments addressing several other CUP matters, including a definition of "water conservation promoting rate structure"; edification of requirements for use of the lowest acceptable water quality and of the standards for protection of the quality of receiving waters; establishment of a provision authorizing the use of a newspaper advertisement to notice adjacent property owners when they number more than 100; and the addition of reclaimed water to the list of sources in 6.2.2, Applicant’s Handbook: Consumptive Uses of Water. These rule amendments became effective January 7, 1999.

Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, between the St. Johns River Water Management District and the Department of Environmental Protection

     The District and Department of Environmental Protection (DEP) amended the Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes. This agreement divides the regulatory responsibility for management and storage of surface waters between the District and DEP, including assigning responsibility for permitting, compliance, and enforcement for ERPs, MSSW permits, and Wetland Resource Permits (a.k.a. dredge and fill permits).

     The amendments to the operating agreement change the division of responsibility for a number of regulated activities. Such changes include the following 7 areas: (1) the District is now responsible for the permitting of borrow pits with no on-site material grading or sorting, even if the DEP determines that an industrial wastewater discharge permit is needed for the facility. This amendment eliminated some confusion regarding permitting responsibility for borrow pits that are dewatered. (2) The amendment transferred to DEP the regulatory responsibility for boardwalks, piers, and shore protection structures (with an exception for shore protection structures within the Indian River Lagoon system, which the District will continue to regulate), unless these activities are part of a larger plan of commercial or residential development which has or requires a permit under Part IV of Chapter 373. This amendment eliminated the split of responsibility based on number of boat slips. (3) The DEP will now permit activities associated with a single family residence (including a duplex, triplex or quadruplex), except when the residence is part of a larger plan of development proposed by the applicant, where the residence is an incidental part of an agricultural project which has or requires a Part IV, Chapter 373 permit from the District, or where the residence is located within the Wekiva River Protection Area. This provision deals only with the permitting of activities on a single lot and eliminated the split of responsibility based on actual lot size. (4) The DEP is permitting under Part IV of Chapter 373 those aquatic plant management activities also regulated under Chapter 369, Florida Statutes. (5) The DEP is responsible for all modifications of permits that it has issued for seaports and seaport-related development. (6) The amended agreement references the new statutory division of responsibility regarding aquaculture enacted in 1998 in Sections 373.046 and 403.814, Florida Statutes. (7) In the event of an emergency declared by the Governor, a new provision would temporarily suspend the division of responsibility and allow either the District or Department to act on any application for activities authorized under emergency orders issued by the Department and District. Finally, the amendments provide a number of clarifications and editorial revisions to the operating agreement. These rule amendments became effective on December 3, 1998.

Uniform Rules of Procedure, Chapter 28, Florida Administrative Code.

     The Uniform Rules of Procedure became effective on July 1, 1998. In response, the District adopted a rule amendment in order to conform its rules to the Uniform Rules of Procedure. The District’s rule amendment included the exceptions to the Uniform Rules that the District had previously applied for and been granted by the Administration Commission. The rule amendment became effective on January 11, 1999.

Cynthia A. Chritton is an attorney with the St. Johns River Water Management District concentrating in the area of regulatory litigation. She received her B.S. from Texas A&M University, her M.S. in Forestry from Stephen F. Austin State University, and her J.D. from Seattle University.