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Document Citation: 9J-2.044, F.A.C.
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Header:
FLORIDA ADMINISTRATIVE CODE
TITLE 09 DEPARTMENT OF COMMUNITY AFFAIRS
9J DIVISION OF COMMUNITY PLANNING
CHAPTER 9J-2 RULES OF PROCEDURE AND PRACTICE PERTAINING TO DEVELOPMENTS OF REGIONAL IMPACT
PART III DEVELOPMENT OF REGIONAL IMPACT UNIFORM S
Date:
08/31/2009
Document:
9J-2.044 Hazardous Material Usage, Potable Water, Wastewater, and Solid Waste Facilities Uniform Standard Rule.
(1) Purpose. This rule establishes how the Department will evaluate hazardous material usage and potable water, wastewater and solid waste facility issues in the review of applications for binding letters, local government development orders, and DRI applications for development approval (ADA).
(a) The Legislature established Chapter 380, Florida Statutes, to protect the natural resources and environment of Florida, facilitate orderly and well-planned development, optimize the utilization of limited water resources, and protect the health, welfare, safety and quality of life of the residents of Florida, by authorizing the state land planning agency to establish land and water management policies to guide local decisions relating to growth and development. Sections 186.002, 186.007, 186.009, and 187.101, Florida Statutes, establish the State Comprehensive Plan as the long-range, state land development policy guide to be considered in the DRI review process in order to ensure orderly growth in Florida, pursuant to subsections 380.06(3), (4), (12), (13), (14), (15), (25), and 380.065(3), Florida Statutes.
(b) Consistent with the land and water management policies delineated in the State Comprehensive Plan, it is the intent of the Department to set forth in this rule specific hazardous material usage and potable water, wastewater and solid waste facility DRI review guideline standards and criteria.
(c) The statutory authority to promulgate and establish this rule is derived from subsections 380.032(2) and 380.06(23), Florida Statutes.
(2) Definitions. As used in this rule:
(a) "Applicable Local Plan" or "Local government comprehensive plan" means a plan or element or portion thereof prepared, adopted, or amended pursuant to Part II of Chapter 163, Florida Statutes, as amended .
(b) "Applicable Regional Plan" means the Regional Planning Council's adopted Strategic Regional Policy Plan pursuant to Section 186.508, Florida Statutes.
(c) "Applicable State Plan" means the State Comprehensive Plan.
(d) "Consolidated Chemical List" means the list of chemicals in the United States Environmental Protection Agency (EPA) Publication Title III List of Lists (EPA 550-B-98-017), incorporated herein by reference.
(e) "Department" means the Florida Department of Community Affairs.
(f) "Hazardous material", as used in this rule, means any Extremely Hazardous Substance, Toxic Chemical Substance, or Hazardous Substance listed in the federal Superfund Amendments and Reauthorization Act (SARA) Title III Consolidated Chemical List.
(g) "High recharge" means an area so designated by the appropriate water management district. High recharge areas shall receive a level of protection commensurate with their significance to natural systems or their status as current or future sources of potable water.
(h) "High-hazard Coastal Area" means the areas identified in the most current regional hurricane evacuation study as requiring evacuation during a category one hurricane event.
(i) "Onsite sewage treatment and disposal system" means a septic tank or other system, consistent with Rule 64E-6, Florida Administrative Code, as of the effective date of this rule.
(j) "Potable water facility" means a system of structures designed to collect, treat, or distribute potable water, including single user water wells, public water wells, treatment plants, reservoirs, and distribution mains.
(k) "Prime recharge" means an area so designated by the appropriate water management district governing board. Prime recharge areas shall receive a level of protection commensurate with their significance to natural systems or their status as current or future sources of potable water.
(l) "Project phase" means a discrete, five year or lesser construction timeframe of development, including local government issuance of certificates of occupancy for that construction or its functional occupancy.
(m) "Public facilities" means wastewater facilities, solid waste facilities, or potable water facilities, but excludes onsite sewage treatment and disposal systems and single family residential individual water wells.
(n) "Regional planning council" means a governmental body created pursuant to Chapter 186, Florida Statutes.
(o) "Solid waste facility" means structures or systems designed for the collection, processing or disposal of solid wastes, including incinerators but excluding phosphogypsum stacks.
(p) "Stage" means one in a series of approximately equal increments in the development of a proposed development upon which are placed quantified limits for construction that are calculated to ensure that the public facilities affected by the proposed development will not be overburdened by development demands. As used in this rule, a stage is to be a subset of a particular project phase of development planned for a project by a developer. A stage of development includes both a specific type and amount of development and the associated, approved buildout timeframe for that development.
(q) "Wastewater facility" means a structure or system designed to collect, transmit, treat, or dispose of sewage, excluding onsite sewage treatment and disposal systems such as septic tanks and aerobic treatment systems covered by Chapter 64E-6, Florida Administrative Code.
(3) Application.
(a) This rule shall be used by the Department to review hazardous material usage and potable water, wastewater and solid waste facility issues in binding letters and applications for development approval (ADA), effective the date of this rule. Any development that meets or exceeds the significant impact thresholds identified in this rule shall be determined by the Department to have a significant impact on state and regionally significant hazardous material usage or on public potable water, wastewater or solid waste facilities. This rule shall not apply to any application submitted to the Department prior to the effective date of this rule, where such an application has continued to remain pending and active, consistent with paragraphs 380.06(4)(d) or (10)(b), Florida Statutes.
(b) This rule shall be used by the Department to review hazardous material usage and potable water, wastewater and solid waste facility issues in local government development orders. This rule shall not apply to any development order rendered to the Department after the effective date of this rule that approves, with or without conditions, an application that was submitted prior to the effective date of the rule and has continued to remain pending and active until the development order's approval.
(c) A development order shall be determined by the Department to make adequate provision for the hazardous material usage and potable water, wastewater and solid waste facilities addressed by this rule, and shall not be appealed by the Department on the basis of inadequate mitigation of hazardous material usage and potable water, wastewater and solid waste impacts, if it contains the applicable mitigation standards and criteria set forth in this rule. If a development order does not contain the applicable mitigation standards and criteria set forth in this rule, the Department shall have discretion to appeal the development order, pursuant to the provisions of Section 380.07, Florida Statutes. However, nothing in this rule shall require the Department to undertake an appeal of the development order simply because it fails to comply with the provisions of this rule. A development order failing to comply with the provisions of this rule will be addressed on a case-by-case basis by the Department as to whether it otherwise complies with the intent and purposes of Chapter 380, Florida Statutes. The Department will take into consideration the balancing of this rule's provisions with the protection of property rights, the encouragement of economic development, the promotion of other state planning goals by the development, the utilization of alternative, innovative solutions in the development order to provide equal or better protection than the rule, and the degree of harm created by non-compliance with this rule's mitigation criteria and standards.
(d) This rule shall apply to the specific hazardous material usage and potable water, wastewater and solid waste facility issues delineated herein, and shall not limit the ability of the Department to address other related issues, such as air quality, hazardous waste, radioisotope usage, phosphogypsum storage, non-potable water withdrawals, onsite sewage treatment and disposal systems, wellhead protection areas, public facility site locational concerns other than those specifically addressed in this rule, or water quality issues involved with a development.
(e) This rule shall not limit the ability of the Department to make a determination of significant impact or appeal a development order on the basis of inadequate, inappropriate, or inaccurate hazardous material usage and potable water, wastewater and solid waste facility impact analyses carried out by the applicant or his agents, where the findings of such analyses are instrumental to forming the basis of information necessary to evaluate compliance with the application of this rule's criteria and standards. However, if agreement was reached at the DRI preapplication conference regarding hazardous material usage and potable water, wastewater and solid waste facility impact analyses assumptions and methodologies to be used in an ADA, then reviewing agencies may not subsequently object to these assumptions and methodologies, consistent with the provisions of paragraph 9J-2.021(1)(h), Florida Administrative Code.
(4) Identification of State and Regionally Significant Hazardous Material Usage, and Identification of Public Potable Water, Wastewater and Solid Waste Facilities. Due to the inherent health, safety, and welfare issues involved with hazardous material usage by DRI-sized developments, all onsite hazardous material usage by a DRI-sized development shall be considered to be state and regionally significant. Consistent with subparagraph 380.06(15)(e)2., Florida Statutes, the provision of adequate public facilities to a DRI-sized development shall be considered a state and regionally significant issue in DRI reviews.
(5) Hazardous Material Usage.
(a) SIGNIFICANT IMPACT. A development shall be considered to have a significant hazardous material usage impact when the total onsite amount of any particular hazardous material present at the development site, regardless of location, number of containers, or method of storage, but excluding materials temporarily stored onsite under active shipping papers, is either unknown and unrestricted, or is known and likely to equal or exceed:
1. The Threshold Planning Quantity (TPQ) of an Extremely Hazardous Substance listed in the Consolidated Chemical List; or
2. One or more of the following amounts during any calendar year:
a. The manufacturing, importing, or processing of 25,000 pounds of a Toxic Chemical listed in the Consolidated Chemical List; or
b. The use of 10,000 pounds of a Toxic Chemical listed in the Consolidated Chemical List, without incorporating it into any product or producing it at the development site.
AND
3. The onsite hazardous material usage or onsite transport is to be located on a site:
a. Within 1/2 mile of any navigable water; or
b. Within a 100-year floodplain area; or
c. Within a high-hazard coastal area; or
d. Within 1/2 mile of an Outstanding Florida Water, designated in Chapter 62-302, Florida Administrative Code; or
e. Within 1/2 mile of a Class I water body; or
f. Within 1/2 mile of a Class II water body; or
g. Within 1/2 mile of an Aquatic Preserve; or
h. Constituting a high or prime recharge area for, or containing a sinkhole connecting within 1/2 mile to, a potable water aquifer or Class I water body; or
i. On or within 1/2 mile of public lands held for water supply purposes.
(b) MITIGATION OF SIGNIFICANT IMPACT. It is the intent of the Department to set forth in this rule onsite hazardous material usage conditions which, if included in a development order, would be deemed by the Department not to be the basis for the appeal of the development order by the Department on issues related to onsite hazardous material usage. Therefore, a development order shall be determined by the Department to make adequate provision for hazardous material usage and shall not be appealed by the Department on the basis of inadequate hazardous material usage conditions if it contains either set of conditions enumerated in subparagraph 1. or 2. below:
1. Restricted Hazardous Material Usage. The onsite usage of any hazardous material shall be restricted through legally binding instruments to amounts totaling less than those specified in (5)(a)1. and 2. above. The legally binding instrument shall be in the form of a restrictive covenant recorded with the land title for the development that meets all of the following criteria:
a. Recordation in the public records and inclusion in the development order shall occur within one year of the issuance of the development order, shall be prior to the occupancy of any development onsite that would use hazardous materials, except for development occupancy allowed pursuant to a subsection 380.032(3) or 380.06(8), Florida Statutes, development agreement with the Department, and shall be prior to any fee simple or lesser interest transfer of real property, involving the onsite lands associated with hazardous material usage, after the date of issuance of the development order; and
b. The restrictive covenant shall run with the land, shall be part of any subsequent fee simple or lesser interest transfer of real property involving the onsite lands, and shall be specifically referred to by reference to book and page of record in any such real property transfer; and
c. The restrictive covenant shall designate the onsite hazardous material usage restrictions for the development consistent with the requirements of this paragraph; and
d. The restrictive covenant shall designate the developer, or his assignees, as the party responsible for the onsite monitoring and enforcement of the restrictive covenant's provisions; and
e. The restrictive covenant shall contain a condition that the monitoring and continuance of the restrictive covenants shall be biennially reported by the party responsible for enforcement to the local government of jurisdiction, the applicable regional planning council, the Department, and any other affected state agency in the biennial report required pursuant to subsection 380.06(18), Florida Statutes; and
f. The restrictive covenant shall contain a condition naming the State of Florida as a benefiting party, allowing it access to the site upon request, requiring notice to it of any proposed changes to the restrictive covenants, and providing it with full enforcement rights should the restrictive covenant be violated;
OR
2. Hazardous Material Management Plan (HMMP). The development order shall incorporate a Hazardous Material Management Plan (HMMP) to be followed by all onsite development and development activities associated with hazardous material usage which was reviewed as part of the project approval application and contains all of the following provisions:
a. Legal Requirements:
(I) A legally binding enforcement provision requiring and ensuring monitoring, inspection, and compliance by all onsite development and development activities associated with hazardous material usage with the provisions of the HMMP; and
(II) The notice recordation of the HMMP as a restrictive covenant running with the land, required to be part of any subsequent fee simple or lesser interest transfer of real property, involving the onsite lands associated with hazardous material usage, and required to be specifically referred to by reference to book and page of record in any real property transfer; and
(III) The designation of the person or job title of the party responsible for the onsite monitoring and enforcement of the provisions of the HMMP; and
(IV) A condition requiring that the monitoring of compliance with the HMMP shall be biennially reported by the party responsible for enforcement to the local government of jurisdiction, the applicable regional planning council, the Department, and any other affected state agency in the biennial report required pursuant to subsection 380.06(18), Florida Statutes; and
(V) A condition naming the State of Florida as a party with the right to enforce the HMMP, allowing the State of Florida access to the site upon request, requiring notice to it of any proposed changes to the HMMP, and providing it with full enforcement rights, should the provisions of the HMMP be violated; and
(VI) Where deemed necessary during the ADA review for the specific site proposed for development, additional land use controls to provide protection to onsite or offsite environmentally sensitive areas from the potential impacts of onsite hazardous material usage.
b. Content Requirements:
(I) Development of the HMMP by personnel with expertise in the appropriate transport, storage, handling, disposal, regulation and spill prevention and emergency response management of the hazardous materials to be used onsite; and
(II) A yearly education and orientation program for all onsite occupants utilizing hazardous materials to familiarize them with the provisions of the HMMP; and
(III) A central coordinating inventory and tracking system monitoring, listing, inspecting and reconciling discrepancies between incoming, stored, manufactured, disposed, spilled and outgoing hazardous materials from each major development occupant on no less than a yearly basis; and
(IV) Specific site and facility construction performance standards for the development's stormwater, and hazardous material unloading, use, manufacture, disposal and storage areas ensuring that accidentally released hazardous materials will be totally contained onsite until emergency response cleanup without reaching listed species or their habitats, groundwater, onsite navigable waters or offsite surface waters; and
(V) An overall project hazardous material spill prevention and emergency spill response plan ensuring minimum hazardous material release during storm or flood events, minimum exposure to humans, agriculture, public lands, soils, and floodplains, and additionally addressing adequate fire suppression, needed site evacuation, full financial responsibility for implementation of the HMMP, any prohibited hazardous or other materials, proper hazardous material and waste storage and segregation, ongoing site monitoring for hazardous material releases, any prohibited development and development activities, individual occupant hazardous spill prevention and emergency spill response plans, and procedures and requirements for full notification to employees and to local, regional, state and federal agencies regarding releases of hazardous materials; and
(VI) When applicable, an overall project wastewater industrial treatment and pretreatment plan; and
(VII) When applicable, an overall project air emissions control plan.
(VIII) Any of the above requirements may be modified if such modification is required in order to comply with any applicable federal, state, regional or local regulations concerning hazardous materials usage.
(6) Potable Water.
(a) CONSISTENCY WITH THE LOCAL COMPREHENSIVE PLAN. A development order shall make adequate provision for the public potable water facilities needed to accommodate the impacts of the proposed development unless the local government includes in the development order a commitment by the local government to provide these facilities consistently with the development schedule approved in the development order. Where the potable water facilities needed to accommodate the proposed development are to be located within the same local government jurisdiction as the development, the development order's potable water provisions shall be reviewed by the Department to ensure consistency with the adopted local comprehensive plan. The development order shall be subject to appeal by the Department if it is inconsistent with the adopted local government comprehensive plan.
(b) SIGNIFICANT IMPACT. A development shall be considered to have a significant potable water usage impact when the projected cumulative potable water withdrawal for the development from a single potable water facility, or a combination of multiple potable water facilities, will be equal to or exceed 100,000 gallons of water per day on an average annual basis, or will be equal to or exceed 1,000,000 gallons of water in a single day, and the following conditions exist: The public potable water facility, or the facility's capacity, to be utilized for the development is to be located:
1. Within a local government jurisdiction different than the development; and
2. The facility or its needed capacity is:
a. Not currently existing; and
b. Not permitted for consumptive use and operation of a public water system pursuant to Chapters 373 and 403, Florida Statutes; and
c. Not scheduled for construction within an in-compliance local government comprehensive plan's Capital Improvements Element so as to be in place and available to serve the development concurrently with the development's occupancy schedule; and
d. Not guaranteed for construction through a local government development agreement to be in place and available to serve the development concurrently with the development's occupancy schedule, consistent with the provisions of Sections 163.3220 through 163.3243, Florida Statutes; and
e. Not guaranteed to be constructed and supplied by the developer or a third party as an enforceable, binding requirement of a land use permit, approval or other legal agreement.
(c) MITIGATION OF SIGNIFICANT IMPACT. Pursuant to subsection 380.06(15), Florida Statutes, a development order issued by a local government must make adequate provision for the public potable water facilities needed to accommodate the impacts of the development. Consistent with that mandate, it is the intent of the Department to set forth in this rule potable water facility conditions which, if included in a development order, would be deemed by the Department to comply with the requirements of subsection 380.06(15), Florida Statutes, and would, therefore, not be the basis for the appeal of the development order by the Department on issues related to potable water facilities. Where the public potable water facility impacts of the DRI-sized development are determined to occur in more than one local government jurisdiction, the development order shall ensure that any significant multi-jurisdictional potable water impacts are mitigated pursuant to the requirements of Section 380.06, Florida Statutes.
A development order shall be determined by the Department to make adequate provision for potable water facilities and shall not be appealed by the Department on the basis of inadequate potable water facility conditions if, at a minimum, it contains all appropriate sets of conditions enumerated in subparagraphs 1. thru 2. below.
1. Potable Water Facility Availability. When the development involves an impact identified in paragraph (6)(b) above, then the development order shall contain all of the following:
a. A schedule which specifically provides for the mitigation of impacts from the development to each significantly impacted potable water facility. The schedule shall ensure that each and every potable water facility improvement which is necessary to supply capacity for that project stage or phase shall be guaranteed to be in place and available to serve the development, consistent with paragraph 163.3180(2)(a), Florida Statutes. This guarantee shall be in the form of one of the following:
(I) A clearly identified, executed and recorded local government development agreement, consistent with Sections 163.3220 through 163.3243, Florida Statutes, that is attached as an exhibit to the development order, and which ensures, at a minimum, that all needed potable water facility improvements will be available concurrent with the impacts of development, consistent with paragraph 163.3180(2)(a), Florida Statutes; or
(II) A binding and enforceable commitment or legal agreement in the development order by the developer or third party to provide all needed potable water facility improvements concurrently with the development schedule approved in the development order; or
(III) Any combination of guarantees sub-sub-subparagraphs (I) through (II) above that ensures that all needed potable water facility improvements will be provided concurrently with the development schedule approved in the development order.
b. A provision which states that on no less than a biennial basis the status of the guaranteed improvements shall be assessed and reported in the required biennial status report, and the local government shall cause further issuance of building permits to cease immediately at the time the biennial monitoring reveals that any needed potable water facility improvements guaranteed by development commitments sub-sub-subparagraph 1.a.(I) through 1.a.(III) above is no longer scheduled or guaranteed, has been delayed in schedule such that it is no longer consistent with the timing criteria of sub-subparagraph 1.a. above, or is no longer being constructed and remains unoperational, unless the applicant is able to unequivocally demonstrate as part of the biennial status report that the needed potable water supply is either existing or is permitted and ensured to be supplied both to all existing permitted project development and to all project development likely to be permitted during the next year. The periodic assessment contemplated by this rule is a review of the actual status of guaranteed improvements scheduled for construction and operation. A change to the approved development schedule for the project, as opposed to a change to the schedule of needed improvements, will need to be addressed through the notification of proposed change provisions of subsection 380.06(19), Florida Statutes.
c. In addressing the construction and operation of the needed facility improvements, the schedule described in sub-subparagraph 1.a. above shall list all needed potable water facility improvements needed to be constructed by stage or phase, the guaranteed date of completion for the construction and operation of each needed improvement, the party responsible for the guaranteed construction and operation of each improvement, and the form of the binding commitment that guarantees construction and operation of each improvement.
2. State Funding Restrictions.
a. The development order shall ensure both:
(I) That there will be no expenditure of state or federal funds for potable water facilities involved with the servicing of the development when it is located within a coastal barrier resource unit designated pursuant to 16 U.S.C. 3501; and
(II) That the developer or the local government has guaranteed their independent financial ability to construct, operate and maintain the potable water facilities to serve the development throughout the lifetime of the development, when the development is located within a coastal barrier resource unit designated pursuant to 16 U.S.C. 3501.
b. The development order shall ensure that either:
(I) There will be no expenditure of state funds for potable water facilities involved with the servicing of the development located within the high-hazard coastal area, and the developer or the local government has guaranteed their independent financial ability to construct, operate and maintain the potable water facilities throughout the lifetime of the development; or
(II) An amendment to each involved local government's comprehensive plan Coastal Management Element has been found to be in-compliance by the Department, so that expenditure of state funds for the potable water facilities to serve development in the high-hazard coastal area will be consistent with the amended local plan.
(7) Wastewater.
(a) CONSISTENCY WITH THE LOCAL COMPREHENSIVE PLAN. A development order shall make adequate provision for the public wastewater facilities needed to accommodate the impacts of the proposed development unless the local government includes in the development order a commitment by the local government to provide these facilities consistently with the development schedule approved in the development order. Where the wastewater facilities needed to accommodate the proposed development are to be located within the same local government jurisdiction as the development, the wastewater development order provisions shall be reviewed by the Department to ensure consistency with the adopted local comprehensive plan. The development order shall be subject to appeal by the Department if it is inconsistent with the adopted local government comprehensive plan.
(b) SIGNIFICANT IMPACT. A development shall be considered to have a significant public wastewater usage impact when the projected cumulative wastewater treatment for the development from a single wastewater facility, or a combination of multiple wastewater facilities, excluding onsite sewage treatment and disposal systems, will be equal to or exceed 100,000 gallons of wastewater per day, and the following conditions exist: The public wastewater facility, or the facility's capacity, to be utilized for the development is to be located:
1. Within a local government jurisdiction different than the development; and
2. The facility or its needed capacity is:
a. Not currently existing; and
b. Not permitted for treatment pursuant to Chapter 403, Florida Statutes; and
c. Not scheduled for construction within an in-compliance local government comprehensive plan's Capital Improvements Element so as to be in place and available to serve the development concurrently with the development's occupancy schedule; and
d. Not guaranteed for construction through a local government development agreement to be in place and available to serve the development concurrently with the development's occupancy schedule, consistent with the provisions of Sections 163.3220 through 163.3243, Florida Statutes; and
e. Not guaranteed to be constructed and supplied by the developer or a third party as an enforceable, binding condition of approval in the development order.
(c) MITIGATION OF SIGNIFICANT IMPACT. Pursuant to subsection 380.06(15), Florida Statutes, a development order issued by a local government must make adequate provision for the public wastewater facilities needed to accommodate the impacts of the development. Consistent with that mandate, it is the intent of the Department to set forth in this rule wastewater facility conditions which, if included in a development order, would be deemed by the Department to comply with the requirements of subsection 380.06(15), Florida Statutes, and would, therefore, not be the basis for the appeal of the development order by the Department on issues related to wastewater facilities. Where the wastewater facility impacts of the DRI-sized development are determined to occur in more than one local government jurisdiction, the development order shall ensure that any significant multi-jurisdictional wastewater impacts are adequately mitigated pursuant to the requirements of Section 380.06, Florida Statutes. A development order shall be determined by the Department to make adequate provision for wastewater facilities and shall not be appealed by the Department on the basis of inadequate wastewater facility conditions if, at a minimum, it contains all appropriate sets of conditions enumerated in subparagraphs 1. thru 2. below.
1. Wastewater Facility Availability. When the development involves an impact identified in paragraph (7)(b) above, then the development order shall contain:
a. A schedule which specifically provides for the mitigation of impacts from the development to each significantly impacted wastewater facility. The schedule shall ensure that each and every wastewater facility improvement which is necessary to supply capacity for that project stage or phase shall be guaranteed to be in place and available to serve the development, consistent with paragraph 163.3180(2)(a), Florida Statutes. This guarantee shall be in the form of one of the following:
(I) A clearly identified, executed and recorded local government development agreement, consistent with Sections 163.3220 through 163.3243, Florida Statutes, that is attached as an exhibit to the development order, and which ensures, at a minimum, that all needed wastewater facility improvements will be available concurrent with the impacts of development, consistent with paragraph 163.3180(2)(a), Florida Statutes;
(II) A binding and enforceable commitment in the development order by the developer or a third party to provide all needed wastewater facility improvements concurrently with the development schedule approved in the development order; or
(III) Any combination of guarantees sub-sub-subparagraphs (I) through (II) above that ensures that all needed wastewater facility improvements will be provided concurrently with the development schedule approved in the development order.
b. A provision which states that on no less than a biennial basis the status of the guaranteed improvements shall be assessed and reported in the required biennial status report, and local government shall cause further issuance of building permits to cease immediately at the time the biennial monitoring reveals that any needed wastewater facility improvements guaranteed by development commitments sub-sub-subparagraph1.a.(I) through 1.a.(III) above is no longer scheduled or guaranteed, has been delayed in schedule such that it is no longer consistent with the timing criteria of sub-subparagraph 1.a. above, or is no longer being constructed but remains unoperational, unless the applicant is able to unequivocally demonstrate as part of the biennial status report that the needed wastewater supply is either existing or is permitted and ensured to be supplied both to all existing permitted project development and to all project development likely to be permitted during the next year. The periodic assessment contemplated by this rule is a review of the actual status of guaranteed improvements scheduled for construction and operation. A change to the approved development schedule for the project, as opposed to a change to the schedule of needed improvements, will need to be addressed through the notification of proposed change provisions of subsection 380.06(19), Florida Statutes.
c. In addressing the construction and operation of the needed facility improvements, the schedule described in sub-subparagraph 1.a. above shall list all needed facility improvements needed to be constructed by stage or phase, the guaranteed date of completion for the construction and operation of each needed improvement, the party responsible for the guaranteed construction and operation of each improvement, and the form of the binding commitment that guarantees construction and operation of each improvement.
2. State Funding Restrictions.
a. The development order shall ensure both:
(I) That there will be no expenditure of state or federal funds for wastewater facilities involved with the servicing of the development when it is located within a coastal barrier resource unit designated pursuant to 16 U.S.C. 3501; and
(II) That the developer or the local government has guaranteed their independent financial ability to construct, operate and maintain the wastewater facilities to serve the development throughout the lifetime of the development, when the development is located within a coastal barrier resource unit designated pursuant to 16 U.S.C. 3501.
b. The development order shall ensure that either:
(I) There will be no expenditure of state funds for wastewater facilities involved with the servicing of the development located within the high-hazard coastal area, and the developer or the local government has guaranteed their independent financial ability to construct, operate and maintain the wastewater facilities throughout the lifetime of the development; or
(II) An amendment to each involved local government's comprehensive plan Coastal Management Element has been found to be in-compliance by the Department, so that expenditure of state funds for the wastewater facilities to serve development in the high-hazard coastal area will be consistent with the amended local plan.
(8) Solid Waste Facilities.
(a) CONSISTENCY WITH THE LOCAL COMPREHENSIVE PLAN. A development order shall make adequate provision for the public solid waste facilities needed to accommodate the impacts of the proposed development unless the local government includes in the development order a commitment by the local government to provide these facilities consistently with the development schedule approved in the development order. Where the solid waste facilities needed to accommodate the proposed development are to be located within the same local government jurisdiction as the development, the development order solid waste provisions shall be reviewed by the Department to ensure consistency with the adopted local comprehensive plan. The development order shall be subject to appeal by the Department if it is inconsistent with the adopted local government comprehensive plan.
(b) SIGNIFICANT IMPACT. A development shall be considered to have a significant solid waste impact when the projected cumulative solid waste disposal for the development from a single solid waste facility, or a combination of multiple solid waste facilities, involves the following conditions: The solid waste facility, or the facility's capacity, to be utilized for the development is to be located:
1. Within a local government jurisdiction different than the development; and
2. The facility or its needed capacity is:
a. Not currently existing; and
b. Not permitted for disposal pursuant to Chapter 403, Florida Statutes; and
c. Not scheduled for construction within an in-compliance local government comprehensive plan's Capital Improvements Element so as to be in place and available to serve the development concurrently with the development's occupancy schedule; and
d. Not guaranteed for construction through a local government development agreement to be in place and available to serve the development concurrently with the development's occupancy schedule, consistent with the provisions of Sections 163.3220 through 163.3243, Florida Statutes; and
e. Not guaranteed to be constructed and supplied by the developer or a third party as an enforceable, binding condition of approval in the development order.
(c) MITIGATION OF SIGNIFICANT IMPACT. Pursuant to subsection 380.06(15), Florida Statutes, a development order issued by a local government must make adequate provision for the public solid waste facilities needed to accommodate the impacts of the development. Consistent with that mandate, it is the intent of the Department to set forth in this rule solid waste facility conditions which, if included in a development order, would be deemed by the Department to comply with the requirements of subsection 380.06(15), Florida Statutes, and would, therefore, not be the basis for the appeal of the development order by the Department on issues related to solid waste facilities. Where the solid waste facility impacts of the DRI-sized development are determined to occur in more than one local government jurisdiction, the development order shall ensure that any significant multi-jurisdictional solid waste impacts are mitigated pursuant to the requirements of Section 380.06, Florida Statutes. A development order shall be determined by the Department to make adequate provision for solid waste facilities and shall not be appealed by the Department on the basis of inadequate solid waste facility conditions if, at a minimum, it contains all appropriate sets of conditions enumerated in subparagraphs 1. thru 2. below.
1. Solid Waste Facility Availability. When the development involves an impact identified in paragraph (8)(b) above, then the development order shall contain:
a. A schedule which specifically provides for the mitigation of impacts from the development to each significantly impacted solid waste facility. The schedule shall ensure that each and every solid waste facility improvement which is necessary to supply capacity for that project stage or phase shall be guaranteed to be in place and available to serve the development, consistent with paragraph 163.3180(2)(a), Florida Statutes. This guarantee shall be in the form of one of the following:
(I) A clearly identified, executed and recorded local government development agreement, consistent with Sections 163.3220 through 163.3243, Florida Statutes, that is attached as an exhibit to the development order, and which ensures, at a minimum, that all needed solid waste facility improvements will be available concurrent with the impacts of development, consistent with paragraph 163.3180(2)(a), Florida Statutes;
(II) A binding and enforceable commitment in the development order by the developer or a third party to provide all needed solid waste facility improvements concurrently with the development schedule approved in the development order; or
(III) Any combination of guarantees sub-sub-subparagraphs (I) through (II) above, or other regional or jurisdiction-wide solid waste capacity initiative guarantees, that ensures that all needed solid waste facility improvements will be provided concurrently with the development schedule approved in the development order.
b. A provision which states that on no less than a biennial basis the status of the guaranteed improvements shall be assessed and reported in the required biennial status report, and local government shall cause further issuance of building permits to cease immediately at the time the biennial monitoring reveals that any needed facility improvements guaranteed by development commitments sub-sub-subparagraphs 1.a.(I) through 1.a.(III) above is no longer scheduled or guaranteed, has been delayed in schedule such that it is no longer consistent with the timing criteria of sub-subparagraph 1.a. above, or is no longer being constructed but remains unoperational, unless the applicant is able to unequivocally demonstrate as part of the biennial status report that the needed solid waste capacity is either existing or is permitted and ensured to be supplied both to all existing permitted project development and to all project development likely to be permitted during the next year. The periodic assessment contemplated by this rule is a review of the actual status of guaranteed improvements scheduled for construction and operation. A change to the approved development schedule for the project, as opposed to a change to the schedule of needed improvements, will need to be addressed through the notification of proposed change provisions of subsection 380.06(19), Florida Statutes.
c. In addressing the construction and operation of the needed facility improvements, the schedule described in sub-subparagraph 1.a. above shall list all needed facility improvements needed to be constructed by stage or phase, the guaranteed date of completion for the construction and operation of each needed improvement, the party responsible for the guaranteed construction and operation of each improvement, and the form of the binding commitment that guarantees construction and operation of each improvement.
2. State Funding Restrictions.
a. The development order shall ensure both:
(I) That there will be no expenditure of state or federal funds for solid waste facilities involved with the servicing of the development when it is located within a coastal barrier resource unit designated pursuant to 16 U.S.C. 3501; and
(II) That the developer or the local government has guaranteed their independent financial ability to construct, operate and maintain the solid waste facilities to serve the development throughout the lifetime of the development, when the development is located within a coastal barrier resource unit designated pursuant to 16 U.S.C. 3501.
b. The development order shall ensure that either:
(I) There will be no expenditure of state funds for solid waste facilities involved with the servicing of the development located within the high-hazard coastal area, and the developer or the local government has guaranteed their independent financial ability to construct, operate and maintain the solid waste facilities throughout the lifetime of the development; or
(II) An amendment to each involved local government's comprehensive plan Coastal Management Element has been found to be in-compliance by the Department, so that expenditure of state funds for the solid waste facilities to serve development in the high-hazard coastal area will be consistent with the amended local plan.
(9) Construction of Rule. This rule shall not be construed to limit the ability of local governments to impose more stringent mitigative measures than those delineated in this rule, where such measures or policies are contained within local land development regulations, or a local government comprehensive plan.
(10) Effect of Areas of Critical State Concern. This rule shall be superseded by more stringent potable water, wastewater, solid waste, or hazardous material usage requirements for developments in designated Areas of Critical State Concern.
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