403.088 Water pollution operation permits; conditions.—
(1) Without the written authorization of the department, a person may not discharge any waste into the waters of the state which, by itself or in combination with the wastes of other sources, reduces the quality of the receiving waters below the classification established for such waters. However, this section does not prohibit the application of pesticides to such waters for the control of insects, aquatic weeds, algae, or other pests if the application is performed in accordance with this section.
(a) Upon execution of the agreement required in s. 487.163(3), the department may develop a permit or other authorization as required by 33 U.S.C. s. 1342 for the application of pesticides. A person must obtain such permit or other authorization before applying pesticides to the waters of the state.
(b) In consultation with the Department of Agriculture and Consumer Services and the Fish and Wildlife Conservation Commission, the department shall also develop a general permit under s. 403.0885(2), for the application of pesticides.
(c) The department shall also enter into agreements with the Department of Agriculture and Consumer Services in the case of insect or other pest control, and with the Fish and Wildlife Conservation Commission in the case of aquatic weed, other aquatic pests, or algae control. Such agreements must provide for public health, welfare, and safety, as well as environmental factors, and must ensure that pesticides applied to waters of the state are regulated uniformly, including provisions for the coordination of agency staff and resources, through the implementation of permitting, compliance, and enforcement activities under s. 403.0885 and this section. Pesticides that are approved for a particular use by the United States Environmental Protection Agency or by the Department of Agriculture and Consumer Services and applied in accordance with registered label instructions, state standards for such application, including any permit or other authorization required by this subsection, and the Florida Pesticide Law, part I of chapter 487, are allowed a temporary deviation from the acute toxicity provisions of the department’s rule establishing surface water quality standards, not to exceed the time necessary to control the target pests and only if the application does not reduce the quality of the receiving waters below the classification for such waters and is not likely to adversely affect any threatened or endangered species.
(2)(a) Any person intending to discharge wastes into waters of the state shall make application to the department for any appropriate permit required by this chapter. Application shall be made on a form prescribed by the department and shall contain such information as the department requires.
(b)1. If the department finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them, it shall deny the application and refuse to issue a permit. The department may not use the results from a field procedure or laboratory method to make such a finding or determine facility compliance unless the field procedure or laboratory method has been adopted by rule or noticed and approved by department order pursuant to department rule. Field procedures and laboratory methods must satisfy the quality assurance requirements of department rule and must produce data of known and verifiable quality. The results of field procedures and laboratory methods shall be evaluated for sources of uncertainty to assure suitability for the intended purposes as properly documented with each procedure or method.
2. If the department finds that the proposed discharge will not reduce the quality of the receiving waters below the classification established for them, it may issue an operation permit if it finds that such degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest.
(c) A permit shall:
1. Specify the manner, nature, volume, and frequency of the discharge permitted;
2. Require proper operation and maintenance of any pollution abatement facility by qualified personnel in accordance with standards established by the department;
3. Require a deliberate, proactive approach to investigating or surveying a significant percentage of the domestic wastewater collection system throughout the duration of the permit to determine pipe integrity, which must be accomplished in an economically feasible manner. The permittee shall submit an annual report to the department which details facility revenues and expenditures in a manner prescribed by department rule. The report must detail any deviation of annual expenditures from identified system needs related to inflow and infiltration studies; model plans for pipe assessment, repair, and replacement; and pipe assessment, repair, and replacement required under s. 403.086(7). Substantial compliance with this subsection is evidence in mitigation for the purposes of assessing penalties pursuant to ss. 403.121 and 403.141;
4. Contain such additional conditions, requirements, and restrictions as the department deems necessary to preserve and protect the quality of the receiving waters;
5. Be valid for the period of time specified therein; and
6. Constitute the state National Pollutant Discharge Elimination System permit when issued pursuant to the authority in s. 403.0885.
(d) An operation permit may be renewed upon application to the department if the discharge complies with permit conditions and applicable statutes and rules. No operation permit shall be renewed or issued if the department finds that the discharge will not comply with permit conditions or applicable statutes and rules.
(e) However, if the discharge will not meet permit conditions or applicable statutes and rules, the department may issue, renew, revise, or reissue the operation permit if:
1. The applicant is constructing, installing, or placing into operation, or has submitted plans and a reasonable schedule for constructing, installing, or placing into operation, an approved pollution abatement facility or alternative waste disposal system;
2. The applicant needs permission to pollute the waters within the state for a period of time necessary to complete research, planning, construction, installation, or operation of an approved and acceptable pollution abatement facility or alternative waste disposal system;
3. There is no present, reasonable, alternative means of disposing of the waste other than by discharging it into the waters of the state;
4. The granting of an operation permit will be in the public interest;
5. The discharge will not be unreasonably destructive to the quality of the receiving waters; or
6. A water quality credit trade that meets the requirements of s. 403.067.
(f) A permit issued, renewed, or reissued pursuant to paragraph (e) shall be accompanied by an order establishing a schedule for achieving compliance with all permit conditions. Such permit may require compliance with the accompanying order.
(g) The Legislature finds that the restoration of the South Florida ecosystem is in the public interest. Accordingly, whenever a facility to be constructed, operated, or maintained in accordance with s. 373.1501, s. 373.1502, s. 373.4595, or s. 373.4592 is subjected to permitting requirements pursuant to chapter 373 or this chapter, and the issuance of the initial permit for a new source, a new discharger, or a recommencing discharger is subjected to a request for hearing pursuant to s. 120.569, the administrative law judge may, upon motion by the permittee, issue a recommended order to the secretary who, within 5 days, shall issue an order authorizing the interim construction, operation, and maintenance of the facility if it complies with all uncontested conditions of the proposed permit and all other conditions recommended by the administrative law judge during the period until the final agency action on the permit.
1. An order authorizing such interim construction, operation, and maintenance shall be granted if requested by motion and no party opposes it.
2. If a party to the administrative hearing pursuant to ss. 120.569 and 120.57 opposes the motion, the administrative law judge shall issue a recommended order granting the motion if the administrative law judge finds that:
a. The facility is likely to receive the permit; and
b. The environment will not be irreparably harmed by the construction, operation, or maintenance of the facility pending final agency action on the permit.
3. Prior to granting a contested motion for interim construction, operation, or maintenance of a facility regulated or otherwise permitted by s. 373.1501, s. 373.1502, s. 373.4595, or s. 373.4592, the administrative law judge shall conduct a hearing using the summary hearing process defined in s. 120.574, which shall be mandatory for motions made pursuant to this paragraph. Notwithstanding the provisions of s. 120.574(1), summary hearing proceedings for these facilities shall begin within 30 days of the motion made by the permittee. Within 15 days of the conclusion of the summary proceeding, the administrative law judge shall issue a recommended order either denying or approving interim construction, operation, or maintenance of the facility, which shall be submitted to the secretary who shall within 5 days thereafter, enter an order granting or denying interim construction operation or maintenance of the facility. The order shall remain in effect until final agency action is taken on the permit.
(3) No later than March 1 of each year, the department shall submit a report to the Governor, the President of the Senate, and the Speaker of the House of Representatives which identifies all domestic wastewater treatment facilities that experienced a sanitary sewer overflow in the preceding calendar year. The report must identify the name of the utility or responsible operating entity, permitted capacity in annual average gallons per day, number of overflows, type of water discharged, total volume of sewage released, and, to the extent known and available, volume of sewage recovered, volume of sewage discharged to surface waters, and cause of the sanitary sewer overflow, including whether the overflow was caused by a third party. The department shall include with this report the annual report specified under subparagraph (2)(c)3. for each utility that experienced an overflow.
(4)(a) The provisions of this section shall not be construed to repeal or restrict any other provisions of this chapter, but shall be cumulative thereto.
(b) This section shall not be construed to exempt any permittee from the pollution control requirements of any local air and water pollution control rule, regulation, ordinance, or code, or to authorize or allow any violation thereof.
(5) Notwithstanding any act to the contrary, if the discharge from any sewage disposal or treatment plant is permitted pursuant to this chapter and by a local pollution control program, the discharge shall be deemed lawful. Further, any person, firm, corporation, or public body that constructs, reconstructs, extends, or increases the capacity or volume of any sewage disposal or treatment plant pursuant to permits or authorizations under this chapter and through any local pollution control program shall not be subject to an action by the state attorney to restrain, enjoin, or otherwise prevent such construction, reconstruction, extension, or increase.
...(1975). Chapter 403 and implementing standards regulated construction projects that would reduce the quality of water below the classification established for them or otherwise would potentially harm human health and welfare or animal and plant life. Section 403.088(1), 403.031(2), Fla....
Cited 13 times | Published | Florida 1st District Court of Appeal
...y when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by the department, except as provided in s. 403.088, and which will comply with the prohibitions in s....
...By its terms, the statute would require DER to issue a permit if the applying installation can comply with the standards or rules promulgated by DER to abate or prevent pollution and can comply with the prohibitions in the Code of Federal Regulations. The only exception is provided in section 403.088. In the instant case, the hearing officer seized upon section 403.088 as providing statutory authority for the "public interest" requirement of Rule 17-4.242. It is true that section 403.088(2)(b) contains language which authorizes the issuance of an operation permit if DER finds, inter alia, "circumstances which are clearly in the public interest." Section 403.088, however, concerns the issuance of operation permits to persons who are discharging waste into waters within the state....
...on for rehearing is DENIED. WIGGINTON and BARFIELD, JJ., concur. NOTES [1] We express no opinion on the validity of Rule 17-4.242 as applied to the issuance of operation permits to persons who discharge waste into waters within the state pursuant to section 403.088, Florida Statutes (1981).
Cited 12 times | Published | Supreme Court of Florida | 1998 WL 732936
...adopted and promulgated by it." § 403.061, Fla. Stat. (1993). Section 403.087(3) (issuance of permits) directs DEP to "issue permits on such conditions as are necessary to effect the intent and purpose of this section." Id. § 403.087(3). Finally, section 403.088(2)(c)3. (water pollution operation permits) provides that permits shall "[c]ontain such additional conditions, requirements, and restrictions as the department deems necessary to preserve and protect the quality of the receiving waters." Id. § 403.088(2)(c)(3)....
Cited 8 times | Published | Florida 1st District Court of Appeal
...ent in which the trial court determined that appellees-Oyster Bay Estates, Inc., and Robert I. Kornegay, may proceed with development of their waterfront property in Wakulla County without being required to obtain a permit under Sections 403.087 and 403.088, Florida Statutes (1979)....
...The issue concerning the sufficiency of appellees' 1969 permit arose by virtue of the State's assertion of jurisdiction to impose additional permitting requirements under subsequently enacted legislation. Specially, Chapter 71-203, Florida Statutes (1979), effective January 1, 1972 (now Sections 403.087 and 403.088, Florida Statutes (1979)), required a permit for the construction or maintenance of any installation which will reasonably be expected to be a source of air or water pollution....
...the development could be completed as originally planned. [2] Being unsuccessful in obtaining the required permits, appellees filed for declaratory judgment in the circuit court, seeking a determination that the requirements of Sections 403.087 and 403.088 cannot be enforced so as to require a permit....
...establish a permit system, apparently no regulations implementing this permitting authority for air and water pollution sources were promulgated until May 17, 1972, Chapter 17-3, Florida Administrative Code, following enactment of Sections 403.087, 403.088, Florida Statutes (1971)....
...The answer alleges also that appellees applied to the Department for certification (under Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.), and a permit (Chapter 403), which were denied. [3] See footnote 1 as to adoption of rules implementing permit requirements of Sections 403.087 and 403.088, Florida Statutes (1971)....
...pansion of any installation that may be a source of air or water pollution; . ." See footnote I regarding permits. Section 403.061(16) was retained in the 1971 Florida Statutes, but additional provisions were added, particularly Sections 403.087 and 403.088 expressly prohibiting construction or maintenance of an installation "reasonably expected to be a source of air or water pollution ....
...without an appropriate and currently valid permit issued by the department ...," (Section 403.087(1)), and prohibiting "discharge into waters within the state" which reduces the quality of the receiving waters below the classification established for them (Section 403.088(1) et seq.)....
...§ 1341). For history see 1972 U.S. Code Congressional and Administrative News, page 3668. [7] The Sexton Cove ruling could be applied to a change in water quality standards after application for a permit for completed work under Sections 403.087 or 403.088, Florida Statutes....
Cited 6 times | Published | Florida 1st District Court of Appeal
...arrogance do not elicit compliments. Petitioners further urge that the Respondent has failed to comply with the National Environmental Policy Act of 1969 (Title 42 U.S.C., Section 4331 et seq.); with the Florida Air and Water Pollution Control Act (Section 403.088, Florida Statutes, F.S.A.) and with Federal Aid Highways Act (Title 23, U.S.C., Section 109, Subsection h)....
Cited 2 times | Published | Florida 1st District Court of Appeal
...quality standards. Appellant contends that DER has no authority to permit the deposit of further pollutants from new sources into the already contaminated water, no matter how de minimis the impact on the receiving water, citing Sections 403.087 and 403.088, Florida Statutes (1983)....
...ewage disposal system, and thus no ground water permit was yet required when the developers filed their pending dredge and fill permit application. Appellant further contends that DER should have denied the developers' permit application pursuant to Section 403.088(2)(b), Florida Statutes (1983)....
...[3] Appellant asserts that this section requires that a discharge permit be denied where the receiving water will be below state water quality standards. Here, appellant maintains, since the water quality in the site's receiving waters is already below state standards, the developers must meet Section 403.088(2)(b)'s two-prong test requiring that the project both be desirable under federal law and clearly be in the public interest. Since the developers put on no evidence to meet this burden, appellant asserts, DER erred in granting the permit. On the other hand, the developers point out that they applied only for a dredge and fill permit, and contend that Section 403.088 is addressed to water pollution operation permits, rendering this statute inapplicable to the developers' application....
...artment rule. In no event shall a permit for a water pollution source be valid for more than 5 years. However, upon expiration, a new permit may be issued by the department in accordance with this act and the rules and regulations of the department. 403.088 Water pollution operation permits; temporary permits; conditions....
... (1) No person, without written authorization of the department, shall discharge into waters within the state any waste which, by itself or in combination with the wastes of other sources, reduces the quality of the receiving waters below the classification established for them... . [3] Section 403.088(2)(b) provides in pertinent part: (b) If the department finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them, it shall deny the application and refuse to issue a permit....
...lated authorizations requested by International Paper to upgrade and operate its Cantonment, Florida paper mill under the *651 National Pollutant Discharge Elimination System program. Friends of Perdido Bay and James Lane cross appealed arguing that section 403.088, Florida Statutes (2007), is unconstitutional. International Paper has voluntarily dismissed its appeal; thus, the only matter before us is the cross-appeal challenging the constitutionality of section 403.088. Because the Friends of Perdido Bay and Lane were the prevailing parties below, they were neither adversely affected by any provision of the order under review nor face any consequence here by the application of section 403.088....
...In that case, the Department of Environmental Protection rejected the hearing officer's contrary finding on public interest and ruled that the bridge project was "clearly in the public interest." Id. at 115. Here, the Department accepted the administrative law judge's finding that the public interest criteria of section 403.088 had not been met....
Cited 1 times | Published | Florida 4th District Court of Appeal | 1999 WL 44336
...prior enactments and an intent that they remain in force." Id. at 250. Part I of chapter 403 deals primarily with the governmental regulation of air and water pollution and generally provides for enforcement only by a governmental entity. See, e.g., § 403.088(4), 403.121, 403.131, 403.135, 403.141, 403.161, Fla....
...use. [17] 17. More specifically, on March 17, 2009, following the issuance of the Summary Judgment Order, the FDEP issued Administrative Order AO-010-EV for Stormwater Treatment Area 2 (STA-2) "Establishing a Compliance Schedule Pursuant to Sections 403.088(2)(f), 403.061(8), 403.151 and 373.5492, Florida Statutes." [DE 363-2, p....
...Part II of the Administrative Order includes numerous "findings" which reference the Long-Term Plan as the basis for extending the compliance date through 2016 and allowing for the use of TBELs as moderating provisions. The Administrative Order relies on Florida Statute § 403.088 as the basis for its authority to do so....
...[DE 380, p. 180]. It makes clear that the FDEP may adopt rules necessary to implement the NPDES permitting program "in accordance with federal law." Id. at 180-81. The legislature has also expressed its preference for consistency, as demonstrated in Section 403.0885(2), Florida Statutes, which demands harmony between state and federal law, providing that other sections of Chapter 403 apply to NPDES discharges only if such provisions "do not conflict with federal requirements." [31] The Court que...
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