Florida Administrative Code › 62 - DEPARTMENT OF ENVIRONMENTAL PROTECTION › 62 - Departmental › Chapter 62-331 - STATE 404 PROGRAM › Section 62-331.201 - Conditions for General Permits

Current through Reg. 50, No. 138; July 16, 2024
(1)
				General permits shall be subject to the conditions in subsections (2) and (3),
				below, and the general conditions for all general permits in Rule
				 62-330.405, F.A.C., except
				subsections  62-330.405(7) and
				(10), F.A.C. The Agency may revise the
				general conditions in Rule
				62-330.405, F.A.C. to include
				references to applicable rules under this chapter, as necessary.
(2) When a project requires submittal of a
				notice of intent to use a general permit, the Agency shall impose specific
				conditions as necessary to assure that the activities will be conducted in
				compliance with this chapter, and in a manner which minimizes adverse impacts
				upon the physical, chemical, and biological integrity of wetlands or other
				surface waters, such as mitigation, monitoring, reporting, or recordkeeping
				requirements and protection measures for listed species or historical
				resources.
(3) In addition, general
				permits under this chapter are subject to the following conditions:
(a) Aquatic Life Movements. No activity may
				substantially disrupt the necessary life cycle movements of those species of
				aquatic life indigenous to the waterbody, including those species that normally
				migrate through the area, unless the activity's primary purpose is to impound
				water. All permanent and temporary crossings of waterbodies shall be suitably
				culverted, bridged, or otherwise designed and constructed to maintain low flows
				to sustain the movement of those aquatic species. If a bottomless culvert
				cannot be used, then the crossing shall be designed and constructed to minimize
				adverse effects to aquatic life movements.
(b) Spawning Areas. Activities in spawning
				areas during spawning seasons must be avoided to the maximum extent
				practicable. Activities that result in the physical destruction (e.g., through
				excavation, fill, or downstream smothering by substantial turbidity) of an
				important spawning area are not authorized.
(c) Migratory Bird Breeding Areas. Activities
				in state-assumed waters that serve as breeding areas for migratory birds must
				be avoided to the maximum extent practicable.
(d) Shellfish Beds. No activity may occur in
				areas of concentrated shellfish populations, unless the activity is directly
				related to a shellfish harvesting activity authorized by general permits in
				Rule  62-331.211 or
				 62-331.244, F.A.C., or is a
				shellfish seeding or habitat restoration activity authorized by the general
				permit in Rule  62-331.225, F.A.C.
(e) Suitable Material. No activity may use
				unsuitable material (e.g., trash, debris, car bodies, asphalt, etc.). Material
				used for construction or fill must be free from toxic pollutants in toxic
				amounts as listed in section 307 of the CWA, which is incorporated by reference
				in subparagraph  62-331.053(3)(a) 
				3., F.A.C., or state law.
(f) Water
				Supply Intakes. No activity may occur within 1000 feet of a public water supply
				intake, except where the activity is for the repair or improvement of public
				water supply intake structures or adjacent bank stabilization.
(g) Fills Within 100-year Floodplains. The
				activity shall comply with applicable FEMA-approved state or local floodplain
				management requirements.
(h) Single
				and Complete Project. The activity must be a single and complete project. The
				same general permit cannot be used more than once for the same single and
				complete project unless otherwise stated within the general permit. (See 404
				Handbook, section 3.2.1).
(i) Wild
				and Scenic Rivers. No general permit activity may occur in a component of the
				National Wild and Scenic Rivers System, or in a river officially designated by
				Congress as a study river for possible inclusion in the System while the river
				is in an official study status, unless the appropriate federal agency with
				direct management responsibility for such river has determined in writing that
				the proposed activity will not adversely affect the Wild and Scenic River
				designation or study status.
(j)
				Tribal Rights. No general permit activity may cause more than minimal adverse
				effects on tribal rights (including treaty rights, settlement rights, or rights
				reserved under state or federal law), protected tribal resources (including
				cultural or burial resources off reservation), tribal waters, or to tribal
				lands.
(k) Listed species. No
				activity is authorized under any general permit which is likely to directly or
				indirectly jeopardize the continued existence of an endangered or threatened
				species or a species proposed for such designation, or which will directly or
				indirectly destroy or adversely modify the critical habitat of such species. No
				activity is authorized under any general permit which may affect a listed
				species or critical habitat, unless the Agency has consulted with, or been
				provided technical assistance by the Florida Fish & Wildlife Conservation
				Commission, the U.S. Fish & Wildlife Service, and the National Marine
				Fisheries Service under their respective authorities and appropriate measures
				to address the effects of the proposed activity have been implemented or are
				required as a specific condition to the general permit.
(l) Migratory Birds and Bald and Golden
				Eagles. The permittee is responsible for ensuring their action complies with
				the Migratory Bird Treaty Act,  16 U.S.C. §§
											703 - 712  (2018),
				incorporated by reference herein (
https://www.flrules.org/Gateway/reference.asp?No=Ref-12068
),
				and the Bald and Golden Eagle Protection Act,  16 U.S.C. §§
											668 - 668(d)  (2018), incorporated by reference herein (
https://www.flrules.org/Gateway/reference.asp?No=Ref-12069
).
				The permittee is responsible for contacting the appropriate local office of the
				U.S. Fish and Wildlife Service to determine applicable measures to reduce
				impacts to migratory birds or eagles, including whether incidental take permits
				are necessary and available under the Migratory Bird Treaty Act or Bald and
				Golden Eagle Protection Act for a particular activity.
(m) Historic Properties. In cases where the
				Agency determines, based on information from SHPO, that the activity may have
				the potential to cause effects to properties listed, or eligible for listing,
				in the National Register of Historic Places, the activity is not authorized
				until a determination of "no effect" or "no adverse effect" is provided by
				SHPO.
(n) Manatees. In waters that
				are accessible to manatees, the permittee shall follow the "Standard Manatee
				Conditions for In-Water Work (2011)", incorporated by reference herein (
https://www.flrules.org/Gateway/reference.asp?No=Ref-12070
).
(o) Sea turtles, smalltooth sawfish, Gulf
				sturgeon, or shortnose sturgeon. In waters that are accessible to these
				species, the permittee shall follow the "Sea Turtle and Smalltooth Sawfish
				Construction Conditions" (March 23, 2006), incorporated by reference herein
				(
https://www.flrules.org/Gateway/reference.asp?No=Ref-12071
).
(p) Use of Multiple General Permits. The use
				of more than one general permit under this Chapter for a single and complete
				project is prohibited, except when specified within a specific general permit,
				or when the acreage loss of state-assumed waters authorized by the general
				permits does not exceed the acreage limit of the general permit with the
				highest specified acreage limit.
(q) Transfer of General Permit Verifications.
				If the permittee sells the property associated with the general permit
				verification, the permittee shall transfer the general permit verification to
				the new owner by submitting a completed Form
				 62-331.100(1)  -
				"Transfer of State 404 Program General Permit Verification" (December 22,
				2020), incorporated by reference in subsection
				 62-331.100(2),
				F.A.C., within 30 days of the sale, to the Agency that processed the original
				notice.
(r) Compliance
				Certification. Each permittee who receives a general permit verification letter
				under this Chapter must submit a completed Form
				 62-331.200(1)  -
				"Certification of Compliance with a State 404 Program General Permit" (December
				22, 2020), incorporated by reference in subsection
				 62-331.200(4),
				F.A.C., within 30 days of completion of the authorized activity, or the
				implementation of any required compensatory mitigation, whichever is
				later.
(s) Activities Affecting
				Structures or Work Built by the United States. If an activity also requires
				permission from the Corps pursuant to  33 U.S.C. §
											408  because it will alter
				or temporarily or permanently occupy or use a Corps federally authorized Civil
				Works project, the prospective permittee is responsible for obtaining such
				permission separately from the Corps prior to commencing activities authorized
				by the general permit.
(t) If
				during the ground disturbing activities and construction work within the permit
				area, there are archaeological or cultural materials encountered which were not
				the subject of a previous cultural resources assessment survey or to which such
				impacts were not anticipated, including but not limited to pottery, modified
				shell, flora, fauna, human remains, ceramics, stone tools or metal implements,
				dugout canoes, evidence of structures or any other physical remains that could
				be associated with Native American cultures or early colonial or American
				settlement; the Permittee shall immediately stop all work and ground-disturbing
				activities within a 100-meter diameter of the discovery and notify the Agency
				within the same business day. The Agency shall then notify the State Historic
				Preservation Officer (SHPO) and the appropriate Tribal Historic Preservation
				Officer(s) (THPO(s)) or tribe when the interested tribe does not have a THPO,
				to assess the significance of the discovery and devise appropriate
				actions.
(u) Additional cultural
				resources assessments may be required of the permit area in the case of
				unanticipated discoveries or effects to historic properties as referenced in
				accordance with condition (t), above, and if deemed necessary by the SHPO, or
				THPO(s), Tribes, or Agency. Based on the circumstances of the discovery, equity
				to all parties, and considerations of the public interest, the Agency may
				modify, suspend, or revoke the permit in accordance with Rule
				 62-331.080, F.A.C. Such activity
				shall not resume without written authorization from the SHPO and THPO(s), or
				tribe when the interested tribe does not have a THPO, concerning potential
				effects to cultural resources or historic properties for finds under their
				jurisdiction, and from the Agency.
(v) In the event that unmarked human remains
				are identified, they shall be treated in accordance with Section
				 872.05, F.S. All work and
				ground-disturbing activities within a 100-meter diameter of the unmarked human
				remains shall immediately cease and the Permittee shall immediately notify the
				medical examiner, Agency, and State Archaeologist within the same business day.
				The Agency shall then notify the appropriate SHPO and THPO(s) and appropriate
				tribes and other appropriate consulting parties. Based on the circumstances of
				the discovery, equity to all parties, and considerations of the public
				interest, the Agency may modify, suspend, or revoke the permit in accordance
				with Rule 62-331.080, F.A.C. Such activity
				shall not resume without written authorization from the medical examiner, State
				Archaeologist, and from the Agency. Additionally, if the unmarked remains were
				identified on federal lands, or lands where the Archaeological Resources
				Protection Act,  16 U.S.C. §§
											470aa - 470mm  (2018), incorporated by
				reference herein (
https://www.flrules.org/Gateway/reference.asp?No=Ref-12072
),
				or the Native American Graves Protection Repatriation  25 U.S.C. §§
											3001-3013  (2018), incorporated by reference herein (
https://www.flrules.org/Gateway/reference.asp?No=Ref-12073
),
				applies, such activity shall not resume without written authorization from the
				SHPO, the appropriate THPO(s), and the federal land manager.
(w) Noncompliance. The permittee shall timely
				notify the Agency of any expected or known actual noncompliance.
(x) Inspection and entry. The permittee shall
				allow the Agency, upon presentation of proper identification, at reasonable
				times to:
1. Enter upon the permittee's
				premises where a regulated activity is located or where records must be kept
				under the conditions of the permit,
2. Have access to and copy any records that
				must be kept under the conditions of the permit,
3. Inspect operations regulated or required
				under the permit, and
4. Sample or
				monitor, for the purposes of assuring permit compliance or as otherwise
				authorized by the Act, any substances or parameters at any
				location.
(y) The
				permittee shall comply with all conditions of the permit, even if that requires
				halting or reducing the permitted activity to maintain compliance. Any permit
				violation constitutes a violation of Part IV of Chapter 373, F.S., and this
				chapter, as well as a violation of the CWA.
(z) The permittee shall take all reasonable
				steps to prevent any unauthorized dredging or filling in violation of this
				permit.
(aa) Upon Agency request,
				the permittee shall provide information necessary to determine compliance
				status, or whether cause exists for permit modification, revocation, or
				termination.
Editor notes:
The effective date of the
				  rule will be the effective date of assumption, which is the date identified by
				  EPA as published in the Federal Register §
												373.4146,
				  F.S.