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The Florida Department of Environmental Protection is currently involved in an extensive rulemaking effort relating to the Environmental Resource Permitting (ERP) program.

The Department plans on consolidating several rule chapters, as well as water management district (WMD) rules, into Chapter 62-330, Florida Administrative Code, which would then control the ERP program statewide.

Thus far, the Department has proposed rules changes that would:

•  create several new exemptions to the rule;
•  set new statewide permitting thresholds;
•  establish several new and amended general permits;
•  create new criteria for conceptual permits;
•  require certification of ownership for issuance of permits; and
•  change the process for delineation in some instances.

To find out how these proposed changes might affect your project or business, contact Gunster attorney Kellie Scott.

To date, the proposed rule remains unfinished. The rule revision requires rewriting the handbooks for the ERP program, both on the Department and WMD levels. The new rule and the Department handbook will function as the implementing guide for most ERP regulation across the state.

Because there will be no statewide storm water rule, the WMD handbooks will continue to reflect the differences in the nature of storm water quality, quantity and flood protection criteria that have led to each WMD having their own design and performance standards. The WMD handbooks will also address other WMD distinctions such as special basins and minimum levels and flows.

The Joint Application for ERP Permit/Authorization to Use State-Owned Submerged Lands/Federal Dredge and Fill Permit is undergoing extensive revision as well. The goal of the Department is to have an application with easy-to-understand sections that are activity-based. The activity-based application would allow less regulated activities to take up only certain specified portions of the application, instead of the entire application.

A draft memo on fee categories was also provided by the Department, but the actual fees for each category have not yet been set. Fees set by the Department and the WMDs will continue to differ.

The Department’s original aggressive rulemaking time line would have required the final draft of the rule be completed by September 3, and on track for adoption the first week of January 2013. But because there is no final draft of the rule or other materials and the Department has not had the opportunity to undertake an analysis of estimated regulatory costs, the rulemaking schedule has been pushed back.

A final rulemaking workshop is set for September 20, 2012, with the remainder of the adoption activities scheduled accordingly.

Gunster attorneys will continue to monitor the rule adoption process and follow developments as they may affect specific industries, such as agriculture and land use and development.

This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

Established in 1925, Gunster is one of Florida’s oldest and largest full-service law firms. The firm’s clients include international, national and local businesses, institutions, local governments and prominent individuals. Gunster maintains its presence in Florida with offices in Fort Lauderdale, Jacksonville, Miami, Palm Beach, Stuart, Tallahassee, Tampa, The Florida Keys, Vero Beach and its headquarters in West Palm Beach. Gunster is home to more than 165 attorneys and 200 committed support staff, providing counsel to clients through 18 practice groups including banking & financial services; business litigation; construction; corporate; environmental & land use; government affairs; health care; immigration; international; labor & employment; leisure & resorts; private wealth services; probate, trust & guardianship litigation; professional malpractice; real estate; securities and corporate governance; tax; and technology & entrepreneurial companies. Gunster is ranked among the National Law Journal’s list of the 250 largest law firms.

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