40D-4.091: Publications and Agreements Incorporated by Reference
PURPOSE AND EFFECT: To amend the District’s Environmental Resource Permit Information Manual, Part B, Basis of Review (BOR), to protect the nesting habitat of Bald Eagles. The species has been removed from the Florida Fish and Wildlife Conservation Commission’s list of wildlife species that are classified as threatened.
SUMMARY: The BOR is incorporated by reference in District’s rules. The BOR currently requires an applicant to provide reasonable assurances that a regulated activity will not cause adverse secondary impacts to certain wetland and surface water systems. If adopted as proposed, the BOR will specifically include the upland habitat of Bald Eagles in the list of aquatic and wetland dependent species protected from secondary impacts under the District’s environmental resource permitting rules.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The proposed revisions should pose no significant negative impacts to permit applicants (small business, county, city or otherwise) for the following reasons: 1) the District mitigation provisions are unchanged; 2) previous authorizations for proposed activities are recognized; 3) the FWCC Bald Eagle Management Plan guidelines are significantly less restrictive than the previous US Fish and Wildlife habitat management guidelines (based on the findings of years of monitoring of development activities on Bald Eagles); and 4) the permit applicant may obtain an FWCC permit when it is more advantageous than the other two options. As a result, the incremental transactional costs of the proposed revisions are likely to be zero or to the advantage of the applicant. No incremental costs to the SWFWMD or changes in state or local government revenues are anticipated. This SERC is provided for informational purposes only.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 373.044, 373.046, 373.113, 373.171, 373.414 FS.
LAW IMPLEMENTED: 373.0361, 373.114, 373.171, 373.403, 373.413, 373.4135, 373.4136, 373.414, 373.4144, 373.416, 373.429, 373.441 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Karen West, Deputy General Counsel, 2379 Broad Street, Brooksville, FL 34604-6899
THE FULL TEXT OF THE PROPOSED RULE IS:
40D-4.091 Publications and Agreements Incorporated by Reference.
The following documents are hereby incorporated into this chapter and Chapters 40D-40 and 40D-400, F.A.C.:
(1) Environmental Resource Permitting Information Manual Part B, Basis of Review, Environmental Resource Permit Applications within the Southwest Florida Water Management District, __________ May 17, 2009. This document is available from the District upon request.
(2) through (5) No change.
Rulemaking Authority 373.044, 373.046, 373.113, 373.171, 373.414 FS. Law Implemented 373.0361, 373.114, 373.171, 373.403, 373.413, 373.4135, 373.4136, 373.414, 373.4144, 373.416, 373.429, 373.441 FS. History–New 4-2-87, Amended 3-1-88, 9-11-88, 10-1-88, 4-1-91, 11-16-92, 1-30-94, 10-3-95, 12-26-95, 5-26-96, 7-23-96, 4-17-97, 4-12-98, 7-2-98, 12-3-98, 7-28-99, 8-3-00, 9-20-00, 6-12-01, 10-11-01, 2-27-02, 7-29-02, 3-26-03, 7-22-03, 8-3-03, 3-11-04, 6-7-04, 2-1-05, 6-30-05, 10-19-05, 2-8-06, 5-2-06, 7-1-07, 9-25-07(1), 9-25-07(4), 11-26-07, 5-12-08, 5-20-08, 6-22-08, 5-12-09, 5-17-09,________.
ENVIRONMENTAL RESOURCE PERMITTING INFORMATION MANUAL
PART B, BASIS OF REVIEW
ENVIRONMENTAL RESOURCE PERMIT APPLICATIONS WITHIN THE
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
CHAPTER ONE – INTRODUCTION
1.7 EXPLANATION OF TERMS
1.7.1 – 1.7.22 No change.
1.7.23 “Listed Species” – Those animal species which are endangered, threatened or of special concern and are listed in Rules 68A-27.003 (as amended December 16, 2003), 68A-27.004 (as amended May 15, 2008), and 68A-27.005 (as amended November 8, 2007) 39-27.003, 39-27.004, and 39-27.005, F.A.C., and those plant species listed in 50 Code of Federal Regulation 17.12 (as amended April 8, 2004), when such plants are found to be located in a wetland or other surface water.
1.7.24 – 1.7.41 No change.
CHAPTER THREE – ENVIRONMENTAL
3.1.0 through 3.2.6 No change.
3.2.7 Secondary Impacts
Pursuant to paragraph 3.1.1(f), an applicant must provide reasonable assurance that a regulated activity will not cause adverse secondary impacts to the water resource as described in paragraphs (a) through (d) below.
A proposed system shall be reviewed under this criterion by evaluating the impacts to: wetland and surface water functions identified in subsection 3.2.2; water quality; upland habitat for Bald Eagles (Haliaeetus leucocephalus and aquatic and wetland dependent listed species; and historical and archaeological resources. De minimis or remotely related secondary impacts will not be considered. Applicants may propose measures such as preservation to prevent secondary impacts. Such preservation shall comply with the land preservation provisions of subsection 3.3.8. If such secondary impacts cannot be prevented, the applicant may propose mitigation measures as provided for in section 3.3 through 3.3.8.
This secondary impact criterion consists of the following four parts:
(a) An applicant shall provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonably expected uses of a proposed system will not cause violations of water quality standards or adverse impacts to the functions of wetlands or other surface waters as described in section 3.2.2.
Impacts such as boat traffic generated by a proposed dock, boat ramp or dry dock facility, which causes an increased threat of collision with manatees; impacts to wildlife from vehicles using proposed roads in wetlands or surface waters; impacts to water quality associated with the use of septic tanks or propeller dredging by boats and wakes from boats; and impacts associated with docking facilities as described in paragraphs 3.2.4.3(f) and (h), will be considered relative to the specific activities proposed and the potential for such impacts. Impacts of ground water withdrawals to wetlands and other surface waters that result from the use of wells permitted pursuant to Chapter 40D-2, F.A.C., shall not be considered as secondary impacts under rules adopted pursuant to Part IV of Chapter 373, F.S., since these impacts shall be considered in the water use permit application process.
Secondary impacts to habitat functions of wetlands associated with adjacent upland activities will not be considered adverse if buffers, with a minimum width of 15' and an average width of 25' are provided abutting those wetlands that will remain under the permitted design, unless additional measures are needed for protection of wetlands used by Bald Eagles (Haliaeetus leucocephalus) for nesting or listed species for nesting, denning, or critically important feeding habitat. The mere fact that a species is listed does not imply that all of its feeding habitat is critically important. Buffers shall remain in an undisturbed condition, except for drainage features such as spreader swales and discharge structures, provided the construction or use of these features does not adversely impact wetlands. Where an applicant elects not to utilize buffers of the above described dimensions, buffers of different dimensions, measures other than buffers or information may be proposed to provide the required reasonable assurance.
(b) An applicant shall provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of a proposed system will not adversely impact the ecological value of uplands to Bald Eagles (Haliaeetus leucocephalus) and aquatic or wetland dependant listed animal species for enabling existing nesting or denning by these species, but not including:
1. Areas needed for foraging; or
2. Wildlife corridors, except for those limited areas of uplands necessary for ingress and egress to the nest or den site from the wetland or other surface water.
Appendix 5 identifies those aquatic and wetland dependent listed animal species that use upland habitats for nesting or denning.
For those aquatic and wetland dependent listed animal species for which habitat management guidelines have been developed by the U.S. Fish and Wildlife Service (USFWS) or the Florida Fish and Wildlife Conservation Commission (FFWCC), compliance with these guidelines will provide reasonable assurance that the proposed system will not adversely impact upland habitat functions described in paragraph (b). For those aquatic or wetland dependent listed animal species for which habitat management guidelines have not been developed or in cases where an applicant does not propose to use USFWS or FFWCC habitat management guidelines, the applicant may propose measures to mitigate adverse impacts to upland habitat functions described in paragraph (b) provided to aquatic or wetland dependent listed animal species. Secondary impacts to the functions of wetlands or uplands for nesting of Bald Eagles (Haliaeetus leucocephalus) will not be considered adverse if the applicant holds a valid permit pursuant to paragraph 68A-16.002(1)(a), F.A.C. (May 15, 2008) or a valid authorization as described in subsection 68A-16.002(1), F.A.C. (May 15, 2008) for the same activities proposed by the applicant under Part IV of Chapter 373, F.S., or if the applicant demonstrates compliance with the FFWCC Eagle Management Guidelines incorporated by reference in Rule 68A-16.002, F.A.C. (May 15, 2008).
(c) through (d) No change.
3.2.8 through 3.3.1.4 No change.
3.3.1.5 To offset adverse secondary impacts from regulated activities to habitat functions that uplands provide to Bald Eagles (Haliaeetus leucocephalus) for nesting and to listed species evaluated as provided in paragraph 3.2.7.1(b), mitigation can include the implementation of management plans, participation in a wildlife mitigation park established by the Florida Fish and Wildlife Conservation Commission, or other measures. Measures to offset adverse secondary impacts on wetlands and other surface waters resulting from use of a system can include the incorporation of culverts or bridged crossings designed to facilitate wildlife movement, fencing to limit access, reduced speed zones, or other measures designed to offset the secondary impact.
APPENDIX FIVE
LISTED WILDLIFE SPECIES THAT ARE AQUATIC OR WETLAND DEPENDENT AND THAT USE UPLAND HABITATS FOR NESTING OR DENNING
Fishes
No change
Reptiles
No change
Birds
Endangered
No change
Threatened
Charadrius alexandrinus tenuirostris (southeastern snowy plover)
Charadrius melodus (piping plover)
Columba leucocephalus (white-crowned pigeon)
Grus canadensis pratensis (Florida sandhill crane)
Haliaeetus leucocephala (bald eagle)
Picoides borealis (red-cockaded woodpecker) ONLY IN LEE, COLLIER AND CHARLOTTE COUNTIES.
Sterna antillarum (least tern)
Sterna dougallii (roseate tern)
Polyborus plancus audubonii (Audubon’s crested caracara)
Species of Special Concern
No change
Mammals
No change