701.01. Purpose and intent. It is the purpose and intent to provide for the protection, maintenance, enhancement and utilization of wetlands within the City of New Smyrna Beach and recognize the rights of individual property owners to use their lands in a reasonable manner. Also, citizens deserve the right to be afforded protection and purity of the waters of Volusia County and their associated wetland ecosystems. It is the policy of New Smyrna Beach to minimize the disturbance of wetlands in the city and to encourage their use only for the purposes which are compatible with their natural functions and environmental benefits. It is further the purpose and intent of these regulations to insure that there be no net loss of wetlands as defined herein. To this end, a wetland management plan shall be required as provided herein.

701.02. Consistency with Volusia County minimum standards for wetlands protection. Wetlands as regulated herein are consistent with the minimum standards for wetland protection as approved by the county council for Volusia County, Florida.

701.03. Permit requirements.

A.

It is hereby unlawful for any person to engage in any activity which will remove, fill, drain, dredge, clear, destroy, or alter any wetland as defined herein without obtaining a wetland alteration permit from the city in accordance with the provisions of these regulations. It is the intent of this section that construction of a single-family dwelling on upland which does not alter by removing, filling, draining, dredging, clearing, or destroying any wetland shall not require a permit pursuant to this section. Appeal procedures in connection with the issuance of a wetland alteration permit is provided in [sub]section 701.17.

B.

The city may adopt, or supplement, permit requirements or conditions issued from other federal, state, or regional permitting agencies for the same development.

C.

In determining whether the development is permissible under the provisions of these regulations, the city shall consider, but not be limited to, the following criteria:

(1)

The ability of the wetland to receive, store, and discharge surface water runoff so as to contribute to hydrological stability and control of flooding and erosion;

(2)

The ability of the wetland to recharge the groundwater as demonstrated by reliable available information;

(3)

The ability of the wetland to provide filtration and nutrient assimilation from surface water runoff;

(4)

The ability of the wetland to provide habitat and significant ecological function in the life cycle for fish, wildlife, or other forms of animal or plant life;

(5)

The ability of the wetland to function as an integral part of any waters, water body, or watercourse;

(6)

The cumulative impacts of the proposed development on the wetland system in combination with other developments which have been or shall be proposed in the same drainage basin;

(7)

The technical feasibility of any proposed wetland mitigation plans and the likelihood of their success in restoring or replacing the environmental benefit altered by the development;

(8)

The capacity of the existing wetland to provide environmental benefits because of such factors as maturity, size, degree of prior alteration, physical relationship to other water systems, and adjacent land uses;

(9)

The degree or magnitude of the impact of the proposed alteration on the wetland and how such impact shall be minimized through mitigation measures, either off-site or on-site, or both, and recommendations concerning the appropriate location of said mitigation;

(10)

Whether, and the extent to which, a proposed project must be located within a wetland or water body in order to perform the project's basic functions;

(11)

Whether the wetlands impacted by the proposed activity are protected or used in a manner which does not adversely impact their beneficial functions.

701.04. Application submittal. The city shall require an application for a wetland alteration permit and each application shall be reviewed by the EO or his/her duly authorized representative. A certificate of zoning is required in accordance with this LDR. Site plans and subdivisions that include wetland areas shall be reviewed by the planning and zoning department, the plan review committee, and approved by the planning department, plan review committee, or planning and zoning board. Each application shall include, but is not limited to, the following:

A.

A wetland management plan which shall include the following:

(1)

A detailed description of all water bodies, watercourses, and wetlands on-site and a general description of wetlands immediately adjacent to the site and associated hydrologic conditions;

(2)

A general description of the upland habitats on-site;

(3)

A site survey to scale no greater than one inch equals 50 feet which identifies the landward extent of the wetland boundaries, buffer zones, existing and proposed conservation areas and adjacent off-site conservation areas. Wetland boundaries shall be determined by the dominance of plant species, soils and other hydrologic evidence indicative of regular and periodic inundation or saturation in accordance with the unified statewide delineation method found in Chapter 62-340, Florida Administrative Code;

(4)

A detailed description of any proposed activity within the jurisdictional wetlands and buffer zones;

(5)

A detailed analysis of on-site and/or off-site mitigation areas, if applicable;

(6)

A plan for the control of erosion, sedimentation, and turbidity during and after construction which describes in detail the type and location of control measures, and provisions of maintenance;

(7)

A detailed description of methods to be utilized in meeting the criteria listed in [sub]sections 701.03 and 104.02F.;

(8)

A copy of all other federal, state, and regional permits and/or applications and conditions issued for the proposed project; and

(9)

Other information which the EO may reasonably require to determine whether to approve the wetlands alteration permit.

701.05. Issuance of permits; conditions.

A.

If the application meets the requirements of these regulations, the EO shall issue the permit and may attach appropriate conditions to the permit in order to comply with the standards of [sub]section 701.03 in these regulations. The EO may deny the permit if it does not meet such standards, stating the reasons thereof.

B.

The wetlands alteration permit shall incorporate the conditions referenced in any permits issued by federal, state, or regional agencies.

C.

The wetlands alteration permit issued pursuant to this article shall expire upon:

(1)

The expiration of any federal permit required to alter wetlands,

(2)

The expiration of any state permit required to alter wetlands,

(3)

The expiration of any regional permit required to alter wetlands, or

(4)

The expiration date as established by the EMD.

701.06. Performance standard.

A.

There shall be no net loss of wetland function.

B.

Any alteration of wetlands shall be mitigated in accordance with the requirements of [sub]section 701.10.

C.

Wetlands shall be protected from sedimentation during development activities.

D.

Wetlands shall be protected or used in a manner which does not adversely impact their beneficial functions as provided in [sub]section 104.02F.

701.07. Wetland identification. The applicant shall secure a determination from a biologist with credentials approved by the city manager or may request the city perform a survey pursuant to identifying wetlands as defined in these regulations. A fee shall be charged to the applicant for expenses incurred when a jurisdictional determination is performed by the city to identify wetland boundaries. If the proposed project requires a permit or multiple permits from the federal, state, or regional agencies, a jurisdictional determination shall not be required. The most restrictive wetland boundary determined by the permitting agency or agencies shall be accepted by the EO.

701.08. Environmental planning. Lands suitable for creation, acquisition, restoration or preservation of wetlands or wetland habitat systems, including adjacent upland habitat, shall be in accordance with the EMD and approved by the city commission. The purpose of such designation is to identify areas suitable for the off-site mitigation of the impacts of wetland alteration. Such lands may be on public or private property.

701.09. Mitigation requirements.

A.

It is presumed that development activity will have an adverse affect upon wetlands, and that permit conditions are inadequate to avoid potential adverse environmental affects. If the applicant fails to overcome this presumption, then mitigation shall be required. The purpose of mitigation is to offset unavoidable environmental impacts. Mitigation plans should consider the function of existing natural resources and provide comparable functions after mitigation is completed. Mitigation plans should maximize the preservation of existing natural resources. The mitigation plans shall consider the following methods, in order of priority, in which they should be utilized:

(1)

Avoiding the impact altogether by not taking a certain action or parts of an action;

(2)

Minimizing impacts by limiting the degree or magnitude of the action or its implementation;

(3)

Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

(4)

Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;

(5)

Compensating for the impact by replacing or providing substitute resources or environments through creation of new wetlands, enhancement of existing wetlands or re-establishment of wetlands which are no longer functioning due to significant attention in the past.

B.

Where all or part of a wetland is destroyed or substantially altered by development, a proposed mitigation plan shall include at least:

(1)

A description of the wetland and buffer to be created or restored, which shall include, but not limited to, the type and functions of the wetland, the proposed mitigation ratios, species present or to be planted, plant density, anticipated source of plants, soils, and hydrologic regime;

(2)

A plan for monitoring the success of a created or restored wetland;

(3)

A detailed written estimate of the cost of the mitigation. The detailed estimate should include costs associated with earth moving, planting, consultant fees, and monitoring;

(4)

A detailed plan describing the monitoring and methods of control and maintenance of exotic or nuisance vegetation;

(5)

Monitoring and replacement to assure a survival rate of 80 percent wetland vegetation for a minimum of three years;

(6)

An upland habitat as an adjacent buffer on mitigated sites, as provided in [sub]section 701.11.

C.

An acceptable mitigation plan shall be reasonably and technically feasible. Mitigation through restoration of other degraded wetlands is preferred over wetland creation.

D.

Mitigation should take place on-site or in close proximity thereto.

E.

An applicant who carries out a compensatory mitigation plan shall grant a conservation easement on the newly created or restored wetland and buffer to protect it from future development. A legal mechanism other than a conservation easement may be deemed appropriate on a case by case basis to carry out the purpose of the subsection.

F.

A mitigation plan approved by a federal, state, or regional agency shall be presumed to be acceptable to the EO, provided however, if no such mitigation plan is required by the approved permit from the federal, state, or regional agency, then the EO may require a mitigation plan in compliance with this section.

G.

Mitigation should not contribute to the production of mosquitoes by creating mosquito larval habitat or by eliminating habitat for predatory fish.

H.

The applicant shall be charged administrative fees for mitigation plans reviewed and approved by the city.

701.10. Mitigation ratio. The mitigation ratio for created or restored wetlands shall be at least one-to-one ratio unless the value of wetland based on its functional value is determined to warrant a greater or lesser ratio.

701.11. Buffer requirements.

A.

A buffer of not less than 25 feet is required adjacent to and surrounding all wetlands. The buffer may coincide with the setback on a lot under the zoning regulations in effect or may coincide with wildlife corridors designated in a local government's comprehensive plan. However, said buffer shall not impede reasonable access to a body of water.

B.

Activities or construction which do not have a significant adverse effect on the natural function of the buffer may be allowed within the buffer. Proposed activities within the buffer may be permitted in accordance with the requirements set forth herein. The activities or construction include, but are not limited to, pruning, planting of suitable native vegetation, removal of exotic and nuisance pioneer plant species, and the creation and maintenance of walking trails.

701.12. Exemptions.

A.

Activities which are exempted from these regulations include:

(1)

Nonmechanical clearing of vegetation from an area of less than ten percent of the wetland;

(2)

Minor maintenance or emergency repair to existing structures of improved areas;

(3)

Cleared walking trails having no structural components;

(4)

Timber catwalks and docks four feet wide or less;

(5)

Bona fide agricultural uses;

(6)

Utility crossing;

(7)

Maintenance, together with incidental dredge and fill activities in ditches, retention and detention areas, public road and other rights-of-way, and other related drainage systems;

(8)

Bona fide mosquito control activities verified by the Volusia County Mosquito Control District;

(9)

Wetland a half acre or smaller, provided, however, if the entire wetland exceeds this threshold for exemption whether on one or more lots, then the entire wetland is regulated as otherwise provided in these regulations;

(10)

Activities within artificial wetlands which are created as part of a manmade treatment system.

B.

A local government may, at its option, delete in whole or in part any of the above described exemptions, but in no case, shall the local government include any additional exemptions in its ordinance unless otherwise approved by the county council.

701.13. Enforcement.

A.

The EO, CEO, EMD or other city employees shall have authority after due notification to enter upon privately owned land for the purpose of performing their duties under these regulations and may take, or cause to be made, such examinations, surveys, or sampling as deemed necessary.

B.

Any city department shall have authority to conduct routine city business pursuant to enforcing these regulations and any permit issued; and any violation or threatened violation thereof by violation notices, administrative orders, and civil and criminal actions. All costs, fees, and expenses in connection with such actions may be recovered as damages against the violator.

C.

Law enforcement officials or other officials having arrest or enforcement powers shall have authority to assist in enforcement.

D.

Any person who commits, takes part in, or assists in any violation of any provision of these regulations shall be subject to prosecution pursuant to section 1-8 of the city Code.

E.

In the event of a violation, the city shall have the power to order wetland restoration and creation measures or any other such measures consistent with [sub]sections 701.09 and 701.10 of these regulations for the damaged or destroyed wetland area by the person or agent responsible for the violation. The infraction shall be referred to the LDR enforcement board and appropriate fines levied. The city shall reserve the right to restore the affected wetland to its prior condition and the property owner shall be liable to the city for the cost of such action.

F.

To guide restoration and creation actions, the EO shall have the power to order the violator to develop a plan as described in [sub]section 701.09 of these regulations for the approval of the EO. Where a proper plan is not prepared in an expedient manner, the city may have the plan prepared and the applicant shall be liable for its cost.

In the event the city hires outside consultants to prepare a mitigation or restoration plan, the applicant shall be subject to both administrative and consultant fees.

701.14. Abrogation and greater restrictions. It is not intended that these regulations repeal, abrogate, or impair any existing regulations, easements, covenants, or deed restrictions. However, where these regulations impose greater restrictions, the provisions of these regulations shall prevail.

701.15. Interpretation. The provision of these regulations shall be held to be minimum requirements in their interpretation and application.

701.16. Appeal. Within 30 days after any decision is made by the EO in the administration and interpretation of these regulations, but not thereafter, the applicant may appeal to the city manager who, may affirm, reverse, or modify the decision of the EO. Any decision by the city manager may be appealed to the city commission, who, by majority vote may affirm, reverse, or modify the decision of the city manager. Any decision by the city commission is subject for review by the circuit court.

701.17. Filing fee. The applicant shall pay a filing fee of $250.00 plus $10.00 for each acre of wetland or fraction thereof up to ten acres; plus $5.00 for each acre of wetland or fraction thereof over ten acres. No fee is required for constructing a single-family dwelling on upland zoned to allow such use where the land is not altered by removing, filling, draining, dredging, clearing, or destroying any wetland.

701.18. Suspension, revocation of permit. The chief building official may suspend or revoke a permit or issue a stop work order if the applicant has not complied with the conditions or limitations set forth in the permit or has exceeded the scope of the work set forth in the permit.

701.19. Nonconforming activities. A regulated activity that was lawful before the passage of these regulations, but which is not in conformity with the provisions of these regulations, may be continued subject to the following:

A.

No such activity shall be expanded, changed, enlarged, or altered in any way that increases its nonconformity with the provisions of these regulations;

B.

If a nonconforming use or activity is discontinued for 12 consecutive months, any resumption of the activity shall require conformance to these regulations to the maximum extent that such conformance is physically and actively feasible; and

C.

If any use or activity that is not in full conformance with these regulations is completely destroyed by human activity or an act of God, it shall not be resumed except in conformity with the provisions of these regulations.

(Ord. No. 19-18, § 1, 3-13-2018; Ord. No. 19-19, § 1, 5-14-2019)

All development or redevelopment proposed on land within any floodprone area shall be in accordance with part II, Code of Ordinances, article VIII, Flood Damage Prevention, sections 10-301 through 10-305, as amended, city LDR or ordinances.

703.01. Construction standards. All development or redevelopment proposed on land within the coastal area shall be in accordance with this section.

703.02. Development east of the Coastal Construction Setback Line (CCSL).

A.

Location of CCSL. The CCSL shall be the same location as the Florida Department of Environmental Protection's (PEP) Coastal Construction Control Line (CCCL), as amended.

B.

Structures prohibited seaward of the CCSL. The following structures shall be prohibited seaward of the (CCSL), unless a structure qualifies for an exemption listed in Section 703.02.C, or a CCSL variance is obtained. The word seaward shall mean that area of land between the CCSL and the Atlantic Ocean.

(1)

Any portion of a principal building, whether habitable or nonhabitable, including but not limited to porches, balconies, roof overhangs and other projections from the building.

(2)

Accessory structures, including but not limited to pools, decks, patios, garages, sheds, and gazebos.

(3)

Any hardscape features including, but not limited to pavers, planters and playground equipment.

C.

Exemptions. The following structures are permitted seaward of the CCSL, subject to obtaining a building permit and any other required approval(s) from other agencies having jurisdiction.

(1)

Dune walkovers, subject to the following conditions:

a.

Walkovers shall be constructed in a manner that minimizes short-term disturbances to the dune system and existing vegetation. The walkover shall be posted with signs containing information including the laws concerning the prohibition of disturbing sea turtle nests, dates indicating sea turtle nesting season and prohibitions against disturbing state protected vegetation and dunes.

b.

Replacement of any vegetation destroyed during construction of the walkover with similar plants suitable for beach/dune stabilization is required. Replanting must be accomplished with native coastal vegetation suitable for beach and dune stabilization in accordance with the list of acceptable plants approved by Volusia County and must be watered continuously for a minimum of 45 days. A dune restoration plan must be included with a dune walkover permit application. All dune plantings must be completed within 60 days after construction of the dune walkover is completed.

c.

Walkovers constructed across vegetated dunes or over vegetated beach berms shall be pile-supported and elevated above the vegetation and dune system.

d.

All walkovers shall be designed to protect the Volusia County conservation zone, natural areas, and beach habitat from construction impacts and long-term pedestrian impacts.

e.

All new or replaced walkovers shall be constructed in accordance with the FDEP regulations, which mandate the preservation and restoration of the associated dune system.

(2)

Seawalls, subject to the following conditions:

a.

The proposed seawall will fill in an existing gap of less than 200 feet between existing seawalls or is an emergency event required to protect public health and safety.

b.

The height of the proposed seawall shall not exceed the greater of the following:

1.

The highest point of the existing grade within 25 feet of the proposed seawall location; or

2.

The average height of the two nearest seawalls to the proposed seawall location.

(3)

Fences, limited to a maximum height of four feet, including columns, column caps and other decorative features.

(4)

Public facilities, including but not limited to: public restrooms and pavilions, life guard towers, and beach related office facilities, park facilities, beach related appurtenances, beach ramps, and other public uses.

(5)

Dune enhancement projects and soft erosion control techniques, such as erection of sand fences, planting of sea oats, and the placement of compatible sand fill, provided the following regulations are met:

a.

The erosion control is not greater than 20 feet from the toe of an existing dune, except a sand fence can be no greater than one foot from the toe of the dune:

b.

The erosion control will not disrupt traffic flow on the beach:

c.

No persons are allowed within the erosion control area (except a person preparing or maintaining the erosion control area);

d.

A certificate of zoning and a city permit are issued prior to proceeding with erosion control; and

e.

A DEP permit is provided if the activity is seaward of the CCCL.

(6)

Properties developed as of the date of this amendment shall be allowed to install principal and accessory structures seaward of the CCSL, subject to:

a.

Any new structure must be located at or landward of the easternmost facade of an existing principal structure:

b.

Any new structure may not be any higher than any part of the existing principal structure; and

c.

Meeting all other applicable LDR requirements.

(7)

Properties developed as of the date of this amendment shall be allowed to rebuild principal and accessory structures according to the policies outlined in subsection F. below.

(8)

Properties undeveloped as of the date of this amendment may apply for a variance.

D.

Coastal Construction Setback Line variance. Variances to the requirements of this section shall be submitted for approval by the planning and zoning board in accordance with section 305.05. The planning and zoning board may approve a variance upon determining the request meets all of the following criteria:

(a)

Strict application of the requirements set forth in section 703.02 would deprive the property owner of reasonable rights presently enjoyed by other nearby property owners:

(b)

Granting a variance from requirements of section 703.02 will not cause substantial detriment to the public welfare, safety, navigation or convenience:

(c)

Granting the CCSL variance will not negatively impact the dune system:

(d)

Adequate land does not exist landward of the CCSL to allow the reasonable, normal and customary use and accessory uses of the property (as compared to other properties in the neighborhood) without building seaward of the CCSL:

(e)

The proposed construction does not cause a substantial adverse effect on functionality of the existing dune system either as a habitat for native species of animals and plants: or, as a tidal barrier:

(f)

Granting a variance from the requirements of section 703.02 will not constitute a grant of special privilege denied to other property owner:

(g)

The request is both the minimum required distance seaward of the CCSL and the minimum required height that is reasonably and customarily necessary to accommodate the proposed construction.

(h)

The proposed construction is located behind any existing seawall or tidal armoring (excluding dune walkovers, new sea walls, and either tidal armoring or similar structures that by function must be constructed in front of existing seawalls and tidal armoring).

(i)

The planning and zoning board shall deny the request if one or more of the aforementioned criteria is not met.

E.

Excavation of the dunes, removal of dune vegetation or any disruption of the natural environment.

(1)

No excavation of the dunes, removal of dune vegetation or any disruption of the natural environment is allowed seaward of the CCSL except as indicated herein.

(2)

Any person engaging in construction or development activity landward of the CCSL that is likely to impact, or has impacted upon, the natural dune environment seaward of the CCSL shall be required to mitigate, fix, repair and restore, as the need may be, to prevent and correct any damage to the functionality of natural dune system either as a habitat for native species of animals and plants: or, as a tidal barrier.

(3)

Prior to commencing any construction activity near a dune system, a dune restoration plan, which must be prepared by a qualified professional, must be submitted and approved by the city.

F.

Coastal construction rebuild policy after a hurricane, tornado, flood or fire.

(1)

Notwithstanding contrary provisions contained in the LDR and other building ordinances, a primary or accessory structure damaged by a hurricane, northeastern storm, tornado, flood, fire or other disaster that as the result of such an event sustains total damage less than 50 percent of the primary or accessory structure's replacement cost at the time of damage may be rebuilt to its original condition, subject only to current building regulations and life-safety codes.

(2)

Notwithstanding any contrary provisions contained in the LDR and other building ordinances, a primary or accessory structure damaged by a hurricane, tornado, flood or fire that as the result of such an event sustains total damage more than 50 percent of the primary structure's replacement cost at the time of damage may be rebuilt no further east than the damaged structure's distance east of the CCSL at the time of damage, or if the structure was west of the CCSL up to the CCSL, provided that said rebuild otherwise complies with all applicable:

a.

Federal requirements for elevation above the 100-year flood level;

b.

Building code requirements for flood-proofing;

c.

Current building and life-safety codes;

d.

State CCCL:

e.

All required city zoning or other development regulations; and

f.

Any and all other county, state and federal laws and regulations to which the structure is subject.

703.03. Outdoor lighting. All developments along the beach shall conform to [sub]section 604.13 of this LDR.

(Ord. No. 12-01, § 1, 3-29-2001; Ord. No. 19-03, § 1, 10-14-2003; Ord. No. 25-04, § 1, 9-14-2004; Ord. No. 41-08, § 1, 6-10-2008; Ord. No. 18-10, § 1, 4-27-2010; Ord. No. 55-10, § 1, 11-9-2010; Ord. No. 20-11, § 1, 4-12-2011; Ord. No. 31-13, § 1, 4-23-2013; Ord. No. 40-13, § 1, 6-25-2013; Ord. No. 48-14, § 1, 8-12-2014; Ord. No. 02-15, § 1, 8-25-2015; Ord. No. 67-15, § 1, 8-25-2015; Ord. No. 22-21, § 1, 5-11-2021)

All development or redevelopment proposed on land which contains historical, architectural, or archeological resources, or which may contain said resources, shall be in accordance with ch. 50, Historic Preservation, part II, Code of Ordinances.

705.01. Responsible official. The city fire marshal or his/her designee shall be the city official responsible for the enforcement, inspection, record keeping and implementation of section 705.00 in this LDR. The city fire marshal shall charge a fee for the administration of section 705.00.

705.02. Restrictions within the zones.

A.

For the primary wellfield protection zone, except as otherwise provided in this article, any new nonresidential use, handling, production or storage of hazardous substances shall be prohibited. Provided, however, any existing nonresidential use, handling, production or storage of hazardous substances shall be considered a nonconforming use, but shall apply for a wellfield protection permit as provided in this section.

B.

For the secondary wellfield protection zone, except as otherwise provided in this article, any new or existing non residential use, handling, production or storage of hazardous substances shall be considered nonconforming uses, but shall apply for a wellfield protection permit as provided in this section.

705.03. Exemptions. The following activities or uses are exempt from the provision of this section:

A.

The transportation of any hazardous substances through either or both the primary or secondary wellfield protection zone, provided the transporting vehicle is in transit.

B.

Agricultural uses, including mosquito control, except that said uses shall comply with chapter 487.011, et seq., the Florida Pesticide Law and the Florida Pesticide Application Act of 1974 and rule 5E 2.001, et seq., and rule 5E-9.001, et seq., Florida Administrative Code.

C.

The use of any hazardous substance solely as fuel and located within a vehicle fuel tank or as lubricant located within a vehicle.

D.

Fire, police, emergency medical services, emergency management center facilities, and public utilities, except for landfills.

E.

Retail sales establishments that store and handle hazardous substances for resale in their original unopened containers.

F.

Office uses, except for the storage, handling or use of hazardous substances as provided for in applicable administrative LDRs.

G.

Repairing or maintaining any existing facility or improvement on lands within the primary or secondary wellfield protection zone, except that a permit shall be required for any temporary use or storage of any hazardous substances covered by this ordinance that are introduced to the site in association with the work being conducted.

H.

Storage tanks which are constructed and operated in accordance with the storage tanks regulations as set forth in F.A.C. chs. 17-761 and/or 17-762.

I.

Geotechnical borings.

J.

Residential activities.

K.

Public utility emergency generating facilities except that permanently installed fuel storage facilities exempted under F.A.C. chs. 17-761 and/or 17-762 shall have secondary containment.

705.04. Wellfield protection zone permits. Except as otherwise provided herein and in [sub]sections 705.02 [and] 705.03, no person shall construct, modify, install, or replace, a hazardous substance storage system, or component thereof within the primary or secondary potable wellfield protection zone without a valid wellfield protection zone permit, or allow the discharge of a hazardous substance into the soils, groundwater or surface water within said zone.

A.

General permit requirements. Applications, or renewal thereof, for a wellfield protection zone permit shall be submitted to the city fire marshal. An application package shall contain:

(1)

Construction plans and specifications for the hazardous substance storage system, including, but not limited to, details of tanks, conveyance and pumping systems, secondary containment, leak detection, overfill protection, and access. A professional engineer licensed by the State of Florida may be required to certify compliance with this section;

(2)

All pertinent federal, state and county permits required for the type of hazardous substance;

(3)

Receipt of administration fee payment; and

(4)

City permit application form.

B.

Permit issue, denial, revocation.

(1)

A wellfield protection zone permit shall be issued upon determination by the city fire marshal that the application package is complete and the plans show that the proposed, or existing, system will be, or is, constructed to prevent contamination of the environment and are in compliance with all federal, state, county and city requirements. Commencement of construction of a regulated facility under a wellfield protection permit shall be deemed acceptance of all conditions which may be specified in the permit.

(2)

The fire marshal may deny, suspend, or revoke a permit for failure to comply with this section and/or the conditions of any permit issued pursuant to this section. The fire marshal may revoke any permit issued pursuant to this section on a finding that the permit holder or his agent:

a.

Knowingly submitted false or inaccurate information in the application or operational reports.

b.

Has violated the provisions of this section or permit conditions.

c.

Has refused lawful inspections as required by this LDR.

705.05. Containment standards.

A.

Monitoring capacity. All storage systems intended for the storage of hazardous substances shall be designed with the capability of detecting that the hazardous substance stored in the primary containment has entered the secondary containment. Visual inspection of the primary containment is the preferred method; however, other means of monitoring may be required by the fire marshal.

B.

Containment requirements. Primary and secondary levels of containment shall be required for all storage systems intended for the storage of hazardous substances, except as provided in [sub]sections 705.02 and 705.03 and shall meet the following requirements:

(1)

[Primary containment.] All primary containment shall be product-tight.

(2)

Secondary containment.

a.

All secondary containment shall be constructed of materials of sufficient thickness, density, and composition so as not to be structurally weakened as a result of contact with the discharged hazardous substances. Leakproof trays under containers, floor curbing or other containment systems to provide secondary liquid containment shall be installed. The secondary containment shall be of adequate size to handle 110 percent of the volume of the largest container in order to contain all spills, leaks, overflows, and precipitation until appropriate action can be taken. The specific design and selection of materials shall be sufficient to preclude any hazardous substances loss to the external environment. Secondary containment systems shall be sheltered so that the intrusion of precipitation is inhibited whenever practical subject to the approval of the fire marshal. These requirements shall apply to all areas of use, production, and handling, to all storage areas, and to aboveground and underground storage areas.

b.

Vacuum suction devices, absorbent scavenger materials or other devices approved by the fire marshal, shall be present on-site or available within a time set by the fire marshal. Devices or materials shall be available in sufficient magnitude so as to control and collect the total quantity of hazardous substances. To the degree feasible, emergency containers shall be present and of such capacity as to hold the total quantity of hazardous substances plus absorbent material.

c.

Procedures shall be established for periodic in-house inspection and maintenance of containment and emergency equipment. Such procedures shall be in writing. A regular checklist and schedule of maintenance shall be established and a log shall be kept of inspections and maintenance. Such logs and records shall be kept on-site for inspection by the fire marshal. A written emergency response plan for dealing with leaks, spills, fires, and/or other emergencies involving the facility must be developed, maintained up-to-date, and submitted to the fire marshal for approval. Said plan shall include plans and diagrams of the facility and other pertinent information as required by the fire marshal.

C.

Out-of-service storage systems.

(1)

Storage systems which are temporarily out of services, and are intended to be returned to use, shall continue to be monitored and inspected.

(2)

Any storage system which is not being monitored and inspected in accordance with this section shall be closed or removed in a manner approved by the fire marshal.

(3)

Whenever an abandoned storage system is located, a plan for the closing or removing or upgrading and permitting of such storage system shall be filed at a reasonable time as determined by the fire marshal.

D.

Maintenance, repair, or replacement.

(1)

Any substantial modification or repair of a storage system, other than minor maintenance or emergency repairs, shall be in accordance with plans to be submitted to the fire marshal and approved prior to the initiation of such work.

(2)

A facility owner or operator may make emergency repairs to a storage system in advance of seeking an approval whenever an immediate repair is required to prevent or contain an unauthorized discharge or to protect the integrity of the containment.

(3)

Replacement of any existing storage system for hazardous substances must be in accordance with the new installations standards.

705.06. Violations and penalties. Any person or entity in violation of this section shall be subject to code enforcement action, civil court action and criminal court action to the maximum extent possible.