New environmental resource permit rules.

• Author: Martin, Susan Roeder
• Position: Florida

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. [section] 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. [section] 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...