RULEMAKING AND RELATED LITIGATION

Cumulative Impacts. In the 2000 session, the Legislature enacted §373.414(8)(b), F.S., to clarify that if mitigation is proposed within the same drainage basin as the adverse impacts to be mitigated and if the mitigation offsets those adverse impacts, then the agency shall consider the activity to meet the cumulative impacts requirements. Thereafter, the St. Johns River Water Management District proposed to amend its cumulative impacts rule to be consistent with the statutory change. The Sierra Club challenged the proposed amendment pursuant to section 120.56(2), F.S. The Sierra Club argued under §120.52(8)(b), F.S., that the proposed rule exceeded the District’s grant of rulemaking authority. The Administrative Law Judge (ALJ) concluded that the District’s proposed amendment to its cumulative impacts rule in section 12.2.8, APPLICANT’S HANDBOOK: MANAGEMENT AND STORAGE OF SURFACE WATERS (A.H.: MSSW), was valid. Citing several rulemaking provisions in Chapter 373, F.S. and Southwest Florida Water Management District v. Save the Manatee Club, Inc., 773 So.2d 594 (Fla. 1st DCA 2000), the ALJ found that “the District clearly has the rulemaking authority to adopt the challenged rule.” The Sierra Club also argued under §120.52(8)(c), F.S., that the proposed rule enlarges, modifies, or contravenes §373.414(8), F.S., because the proposed rule would eliminate the required analysis of past, present, and future activities under §373.414(8)(a), F.S., whenever the impacts and offsetting mitigation are within the same drainage basin. The ALJ concluded that the proposed rule “mimics the effect of the underlying statute” and “neither expands nor reduces the cumulative impact consideration beyond that specified in the statute it implements. . . .” On July 18, 2002, the Sierra Club filed a notice of appeal with the Fifth District Court of Appeals. The case has been fully briefed by the parties. Oral argument was not requested by any party. The parties are awaiting a decision by the Court.

ERP Streamlining Rule Amendments. St. Johns River Water Management District has adopted amendments to its ERP rules in Chapters 40C-1, 40C-4, 40C-40, 40C-41, 40C-42, and 40C-400, F.A.C., along with the associated sections in St. Johns’ MSSW Applicant’s Handbook. The purpose of the amendments is to streamline permitting for certain activities. These amendments do the following:

• clarify the specific circumstances under which an emergency authorization may be approved [40C-1.1009, F.A.C.];

• create three new permitting exemptions: (1) constructing communication tower sites, (2) minor roadway safety projects, and (3) recreational paths [40C-42.0225(4)-(6),F.A.C.];

• broaden and clarify the conditions under which a modification to an existing permit may be granted by letter, and clarify requirements for other types of modifications [40C-4.331, F.A.C.];

• amend two permitting exemptions concerning seawalls to make them consistent with recent statutory amendments [40C-4.051(12)(k)-(l), F.A.C.];

• repeal a permitting exemption concerning rotenone use, because the District lacks statutory authority over this activity;

• change the threshold conditions for staff-issued standard permits and stormwater permits (the ERP “standard general permit” has been renamed “standard permit”) [40C-4.041(2)(b)8, 40C-40.302(2)(c), 40C-42.022(1)-(2), F.A.C., and §12.2.2.2, A.H.: MSSW];

• create two new staff-issued standard permits for: (1) incidental site activities, and (2) phases within a conceptually approved or master drainage plan project [40C-40.302(4)-(5) and 40C-4.021(17),F.A.C.];

• remove riparian habitat protection zone (RHPZ) status from certain urbanized parts of the Little Wekiva that no longer warrant such protection and clarify the southern boundary of the Wekiva RHPZ [40C-41.063(3)(e), F.A.C., and §11.3.5, A.H.: MSSW];

• delete outdated stormwater permitting criteria applicable to the Econlockhatchee River hydrologic basin rules in favor of more recent stormwater permitting criteria [§11.4.3, A.H.:MSSW];

• amend a noticed general permit for the Department of Transportation and local governments to allow ditch bank and bottom stabilization to repair erosion damage [40C-400.447(1)(g), F.A.C.];

• amend the cumulative impact criteria consistent with recent statutory amendments [§12.2.8, A.H.: MSSW];

• amend wet detention design and performance criteria regarding orifice size and recovery time [40C-42.026(4)(b) and (4)(g), F.A.C.]; and

• reduce monitoring and reporting requirements for certain types of stormwater management systems [40C-42.029(1)-(2) and 40C-42.900(6), F.A.C.].

These amendments became effective on October 11, 2001.

Phosphorous Criterion and Discharge Limitations for Lake Apopka

The St. Johns River Water Management District is in the process of amending its ERP rules to limit phosphorous loads to Lake Apopka. Section 373.461, F.S., requires the District to adopt by rule discharge limitations for all permits issued by the District for discharges into Lake Apopka or its tributaries, Lake Level Canal and the McDonald canal. District staff is in the process of developing proposed rule language that would establish discharge limitations for total phosphorus for (1) surface water management systems, including agricultural surface water management systems, located within the Lake Apopka Hydrologic Basin, which discharge into Lake Apopka or its tributaries; and (2) systems that cause an interbasin diversion of water from another hydrologic basin to the Lake Apopka Hydrologic Basin and discharge water to Lake Apopka, Lake Level Canal, or the McDonald Canal. The draft proposed rule language also includes requirements for monitoring the post-development total phosphorus load discharged from the project area and annual inspection requirements. District staff plans to request authorization to publish a notice of proposed rule at the District's April 2002 Governing Board meeting.

Maintenance Dredging Exemption. The St. Johns River Water Management District has adopted amendments to rule 40C-4.051, F.A.C., and section 3.4.1, A.H.: MSSW. New section 3.4.1, A.H.: MSSW, explains the criteria for maintenance dredging exemptions under sections 403.813(2)(f) and (g), F.S. The primary purpose of the rule amendment is to adopt the statutory qualifying criteria described in Corporation of the President of the Church of Jesus Christ of Latter Day Saints v. St. Johns River Water Management District, 489 So.2d 59 (Fla. 5th DCA 1986) as a defense against a §120.56(4) challenge to an unadopted agency memorandum. The unadopted rule challenge was part of the consolidated proceedings discussed in SJRWMD v. Modern Inc., 784 So.2d 464, 26 Fla. L. Weekly D670 (Fla. 1st DCA March 8, 2001). The rule amendment became effective on July 8, 2001.

Sunnyhill Water Reservation Rule. On February 14, 2002, The St. Johns River Water Management District Governing Board authorized publication of a Notice of Proposed Rule Development for a reservation of water for the District’s Sunnyhill project. This rule is being developed under the authority of section 373.223(4), F.S. In 1988, the District purchased the Sunnyhill Farm property, a 4,300-acre former muck farm in Marion County. The Sunnyhill Restoration Area (SRA) is one of five wetland restoration projects in the Upper Ocklawaha River Basin (UORB), which has been designated a priority watershed for restoration and management under the Surface Water Improvement and Management (SWIM) program. The District’s primary goal for the SRA is to restore nearly ten miles of the upper Ocklawaha River and 2,800 acres of floodplain wetlands. Successful restoration of this area depends on the maintenance of specified water flows through the SRA. The necessary flow regime will be determined by District staff through calibrated computer modeling. A proposed reservation from use of surface water will be based upon this evaluation. The proposed rule will ensure that the needed water flows are maintained and enable the District to achieve its restoration goals for the Sunnyhill project. When this rule is eventually adopted, it will be only the second time the authority to reserve water in section 373.223(4), F.S., has been used. The first time was in 1994, when the S. Johns River Water Management District, after prevailing on a challenge to the proposed rule, adopted a regulation to reserve water for Payne’s Prairie State Preserve in Alachua County. A public workshop on the Sunnyhill water reservation rule was held in Leesburg on March 20, 2001. District staff is in the process of developing specific rule language to take to the Governing Board for authorization to publish a Notice of Proposed Rule.

Minimum Flows and Levels. To date, the St. Johns River Water Management District has adopted minimum flows and levels (MFLs) for slightly more than 100 waterbodies. Since August 2000, the District has adopted MFLs for six lakes and one wetland system. The lakes are Brantley and Howell (Seminole County), Davis and Upper Louise (Volusia County), Pine Island (Lake County), and Swan (Putnam County). The wetland system is Boggy Marsh in Lake County. On December 12, 2001, The District’s Governing Board authorized publication of a Notice of Proposed Rule for MFLs for Lakes Apshawa North and South, and Cherry and Minneola (Lake County), Burkett, Irma, Martha and Pearl (Orange County), Fox and Couth Lakes (Brevard County) and Lowery (Polk County). The proposed rule also revises the MFLs for Lakes Daugharty, Drudy, Emporia, Lower Louise and Pierson (Volusia County) and Stella (Putnam County). In addition, the proposed rule clarifies the definition of “semi-permanently flooded” in subsection 40C-8.021(16), F.A.C. District staff is in the process of developing a number of additional MFL’s including a minimum flow for Blue Spring in Volusia County. The District’s MFLs are found in Chapter 40C-8, F.A.C.

PERMITTING CASES

Bobby C. Billie, Shannon Larsen, and The Sierra Club v. SJRWMD and Hines Interests Limited Partnership, DOAH Case No. 00-2230 and 00-2231 (SJRWMD June 14, 2001). This ERP case involved a challenge to a permit modification for the construction of an approximately 30-acre, single-family, residential development with an associated stormwater management system, within the Marshall Creek Development of Regional Impact. The central issue in the case was the interpretation of section 12.2.1.2(b), A.H.: MSSW. This section provides that the District will not require an applicant to implement practicable design modifications to reduce or eliminate impacts to the functions of wetlands or other surface waters when “the applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and that provides greater long term ecological value than the area of wetland to be adversely affected.” In its Final Order, the Governing Board concurred with the ALJ’s conclusion that the project satisfied the requirements of this “out” provision. The ALJ concluded that the plan provides regional ecological value because, in addition to other factors, the mitigation plan is in close proximity to and will provide a wildlife corridor between a number of regionally significant resources, including a state park, an Outstanding Florida Water, an Aquatic Preserve, a 55,000-acre National Estuarine Research Reserve and another 22,000-acre preserve. As to the second part of the test, the ALJ concluded that the mitigation will provide greater long-term ecological value than the wetland to be filled because (1) the mitigation is part of a larger ecological system, (2) the mitigation area is part of an intact wetland system, (3) the wetland to be impacted will be unlikely to maintain its “functions” in the long-term, and (4) the mitigation area provides additional habitat for more animal species than are present in the wetland to be impacted.