To incorporate requirements for protecting reserved water pursuant to Section 373.223(4), F.S. and to establish a water reservation for the Picayune Strand and Fakahatchee Estuary.

WATER MANAGEMENT DISTRICTS
South Florida Water Management District

RULE NO: RULE TITLE
40E-20.091: Publications Incorporated by Reference
40E-20.301: Conditions for Issuance of General Water Use Permits
40E-20.302: Types of General Water Use Permits
40E-20.331: Modification of General Water Use Permits
PURPOSE AND EFFECT: To incorporate requirements for protecting reserved water pursuant to Section 373.223(4), F.S. and to establish a water reservation for the Picayune Strand and Fakahatchee Estuary.
SUMMARY: The District proposes to amend the conditions for issuance of a general water use permit to include a condition that the proposed use not withdraw reserved water. A specific amendment to the No Notice Short Term Dewatering General Water Use Permit requiring water to be retained on site is also proposed to protect reserved water. For a summary of the proposed amendments to the criteria found in the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District” see the Notice of Proposed Rule for Chapter 40E-2, F.A.C., in this issue.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: Individuals and Entities Affected by the Proposed Rule
The proposed rule reserves water for protection of fish and wildlife in the Picayune Strand and the Fakahatchee Estuary in Collier County. The proposed rule will affect a subset of individuals and entities requesting water allocations from surface waters, the water table aquifer or the minimally confined portions of the lower Tamiami aquifer in western Collier County.
Water use permit applications proposing to withdraw waters that are reserved for the Picayune Strand or the Fakahatchee Estuary under the proposed rule would be denied. In this case, the applicant may choose to switch locations of water withdrawals to deeper portions of the subsurface within the aquifers not affected by the rule, reduce the proposed withdrawal, or move the proposed withdraw location farther away from the reservation water body or impacted canal. The number of individuals and entities potentially affected by this rule is not known but could include public supply utilities, industry, agricultural firms, golf course owners and entities that wish to maintain landscaping such as parks and schools located near the reservation water bodies or specified tributaries that deliver surface water that is proposed to be reserved under the rule. The geographic area affected by the proposed rule is limited to western Collier County. Existing land uses (platted single family homes, agricultural land holdings and publicly owned conservation lands) act to limit access to the surface waters within the reservation water bodies and canals where inflows are reserved.
The proposed rule set forth eight categories of consumptive uses that do not withdraw reserved water. If a consumptive use does not fall into one of these categories, the applicant must undertake modeling following the specific requirements set forth in the proposed criteria or other similarly acceptable alternative modeling evaluations to demonstrate that reserved water is not being withdrawn. Finally, the criteria provide that reduced or terminated permit impacts that result in increased inflows into the reservation water body may be allocated unless the Governing Board of the South Florida Water Management District determines that such allocation is inconsistent with the public interest.
Transactional Costs
A summary of the transactional costs is as follows.
• Existing legal uses on the effective date of the rule will have no transactional costs.
• Applicants for renewal of existing legal water uses on the effective date of the rule will have no transactional costs.
• New or modified uses that are not direct or indirect withdrawals will have zero to minimal transactional costs, as the evaluations required under the proposed rule are also required under existing rule to provide reasonable assurance of compliance with other conditions for issuance under Rule 40E-2.301, F.A.C.
• Permit modifications that do not change the source, increase the allocation, or change withdrawal locations will have no transactional costs.
• Applicants for withdrawals from the Sandstone aquifer, Mid-hawthorn aquifer or the Floridan Aquifer systems will have no transactional costs.
• A proposed new use with a direct or indirect withdrawal and no greater impact, including changes in timing, on a reservation water body than the terminated or reduced permit existing on [effective date] within the same project site will have zero to minimal transactional costs, as the evaluations required under the proposed rule are also required under existing rule to provide reasonable assurance of compliance with other conditions for issuance under Rule 40E-2.301, F.A.C.
Costs of Modelling under Section 3.11.1.B.
An integrated surface and ground water transient model (transient hydrologic model) must be developed, calibrated and run for permit applications that are determined to have the potential of withdrawing reserved water quantities. Pursuant to Subsection 3.11.1.A.8., this group only includes applications for new or modified permits that have a direct or indirect withdrawal, as defined in the proposed rule.
This integrated transient hydrologic modeling is estimated to cost between $100,000 to $500,000, depending on the amount of data collection and modeling needed to determine whether the requested allocation will withdraw reserved water. The higher range of costs are associated with developing a model from scratch including developing regionalized input data sets for all model parameters. The lower range of costs consider time and cost savings associated with using existing regionalized input data sets when assembling a model. The District has developed two calibrated integrated transient models for the area (Picayune Strand PIR model and the LWC SAS Sub-Regional model). The input data sets are available to the public as public records and may be used by permit applicants in the development of the modeling required pursuant to the reservation rule.
If the results of the hydrologic modeling indicate that proposed new or modified withdrawals will withdrawal reserved water, the applicant may choose to develop an alternative water source, or otherwise modify the project so no reserved water will be withdrawn. The likely alternatives include aquifers located beneath the Lower Tamiami aquifer as specified in the rule. These include, in descending order, the Sandstone, Hawthorn Zone I / Lower Hawthorn, and Floridan aquifers.
For non-potable water uses, moving from a surface water source to the confined Lower Tamiami aquifer or the Sandstone aquifer will increase water supply costs by about $0.10 per 1,000 gallons of water produced. There is no significant cost difference between obtaining fresh water from the Water Table aquifer, the lower Tamiami aquifer, or the Sandstone aquifer. However, if these applicants are not able to obtain water from these sources, the increased cost associated with pumping and treating brackish water from the Hawthorn aquifer or the Floridan aquifer will increase significantly. The cost increase associated with going from the water table, lower Tamiami or Sandstone with not treatment to the Floridan Aquifer System with reverse osmosis treatment ranges from $3.42 per 1,000 gallons of water produced to $3.62 per 1,000 gallons depending on which aquifer is used.
For a public supply utility, the cost increase is not significant if the applicant moves from the Water Table aquifer or the Lower Tamiami aquifer to the Sandstone aquifer. However, if the applicant uses the Hawthorn or the Floridan aquifers, the cost increases by about $0.60 to $0.70 per 1,000 gallons. In this case, the degree of financial and economic impacts to the public supply utility would depend on the proportion of the utility’s total water supply that comes from these sources.
Applicants for dewatering projects which retain the effluent water on-site, will not be impacted by the rule. If the retaining water on site is not feasible, the applicant will be required to demonstrate reserved water is not withdrawn. This could be done through modeling, or modifying the project (e.g. construction in the wet, establishing a hydraulic barrier between the dewatering site and the reservation water body, phased dewatering to reduce the impact e.t.c.). No specific cost estimates of these options have been compiled.
Cost to the District
The estimated one-time cost to the District to implement the proposed rule is $16,200. The estimated cost to the District to address each water use permit application that occurs within the area affected by this rule could be as much as $4,800 to $5,700 per applicant and $2,100 per dewatering permit for projects that involve extensive review. However, those projects that do not involve significant evaluations (such as renewals, modifications not involving reserved water, projects using alternative sources of supply etc.) will have minimal costs to the District.
Cost to Small Businesses, Small Cities and Small Counties
The City of Everglades will be affected by the proposed rule if it requests additional permitted water quantities from surface water or from the water table aquifer or from the lower Tamiami aquifer in western Collier County. There are likely to be several small businesses in Collier County that could be developed within the geographic area influenced by the rule. The potential costs associated with this rule are tied to the volume of water needed for the business, the location of the withdrawal, and the level of treatment needed.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 373.044, 373.113, 373.118 FS.
LAW IMPLEMENTED: 373.036, 373.042, 373.0421, 373.103(4), 373.118, 373.223, 373.229, 373.2295, 373.470, 373.1501, 373.1502 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: February 12, 2009, 9:00 a.m.
PLACE: South Florida Water Management District, B-1 Auditorium, 3301 Gun Club Road, West Palm Beach, FL 33406
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: South Florida Water Management District Clerk, [phone], ext. 2087 or [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Scott Burns, Director, Everglades Water Supply Policy, South Florida Water Management District, P. O. Box 24680, West Palm Beach, FL 33416-4680, [phone], ext. 4224 or [phone], email: [e-mail]; Brenda Mills, Lead Planner, South Florida Water Management District, P. O. Box 24680, West Palm Beach, FL 33416-4680, [phone], ext. 4208 or [phone], email: [e-mail]; Beth Lewis, Senior Supervising Attorney, South Florida Water Management District, P. O. Box 24680, West Palm Beach, FL 33416-4680, [phone], ext. 6343 or [phone], email: [e-mail]. For procedural questions contact Jan Sluth, Senior Paralegal, South Florida Water Management District, P. O. Box 24680, West Palm Beach, FL 33416-4680, [phone], ext. 6299 or [phone], email: [e-mail]

THE FULL TEXT OF THE PROPOSED RULE IS:

40E-20.091 Publications Incorporated by Reference.

The “Basis of Review for Water Use Permit Applications within the South Florida Water Management District – ___________ October 14, 2008” is hereby published by reference and incorporated into this chapter. A current version of this document is available upon request.

Specific Authority 373.044, 373.113, 373.118 FS. Law Implemented 373.042, 373.0421, 373.103(4), 373.118, 373.223, 373.229 FS. History–New 8-14-02, Amended 8-31-03, 4-23-07, 9-13-07, 2-13-08, 10-14-08,_________.

 

(See Notice of Proposed Rule 40E-2.091, F.A.C., in this issue for proposed amendments to the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District”)

40E-20.301 Conditions for Issuance of General Water Use Permits.

(1) In order to receive a general permit, permit renewal, or permit modification under this chapter, an applicant must provide reasonable assurances that the proposed water use:

(a) Will not cause harmful saline water intrusion;

(b) Will not harm offsite land uses;

(c) Will not cause harm to wetlands or other surface waters;

(d) Will not cause pollution of the water resources;

(e) Is otherwise a reasonable-beneficial use as defined in subsection 373.019(13), F.S., with consideration given to the factors set forth in subsection 62-40.401(2), F.A.C.

(f) Will not interfere with presently existing legal uses;

(g) Is in accordance with Section 373.2295, F.S., concerning interdistrict transfer of groundwater and Section 373.223(3), F.S., concerning water transport and use of groundwater or surface water across county boundaries.

(h) For uses with a recommended maximum allocation which exceeds 3 million gallons per month, makes use of a reclaimed water source in accordance with the criteria contained in the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District”, incorporated by reference in Rule 40E-20.091, F.A.C.

(i) Is in accordance with the established minimum flows and levels and implementation provisions in Chapter 373, F.S., Chapters 40E-2 and 40E-8, F.A.C.; and

(j) Is consistent with Sections 373.016, 373.1501, 373.1502 and 373.036, F.S., and otherwise is consistent with the public interest as prescribed by Chapter 373, F.S., and this chapter.

(k) will not withdraw water reserved under Chapter 40E-10, F.A.C.

(2) In order to satisfy the conditions for permit issuance in subsection (1), the permit applicant must provide reasonable assurances that the criteria in the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District – April 23, 2007”, incorporated by reference in Rule 40E-20.091, F.A.C., are met.

Specific Authority 373.044, 373.113, 373.118 FS. Law Implemented 373.036, 373.042, 373.103(4), 373.1501, 373.1502, 373.118, 373.223, 373.229, 373.2295, 373.470 FS. History–New 8-14-02, Amended 8-31-03, 4-23-07, 2-13-08,_________.

 

40E-20.302 Types of General Water Use Permits.

(1) Standard General Water Use Permit – The use of water, which does not exceed a recommended maximum allocation of 15 million gallons per month (MGM), except as stated below, shall qualify for a Standard General Water Use Permit, provided the conditions for issuance in Rule 40E-20.301, F.A.C., are met. There are two types of Standard General Water Use Permits, as follows:

(a) Minor Standard General Water Use Permit, authorizes allocations of three (3) million gallons per month or less; and

(b) Major Standard General Water Use Permit, authorizes allocations greater than three (3) million and up to fifteen (15) million gallons per month, and includes a requirement under paragraph 40E-20.301(1)(h), F.A.C., and the applicable requirements in the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District”, incorporated by reference in Rule 40E-20.091, F.A.C., that the permit applicant meet the requirements for use of reclaimed water. In addition the monitoring and reporting permit limiting conditions in Sections 4.0 and 5.0 of the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District”, incorporated by reference in Rule 40E-20.091, F.A.C., are applicable.

(2) Dewatering General Water Use permit – The use of water in conjunction with short-term dewatering operations such as well pointing, utility construction, lake construction, exploratory testing, and other minor uses; or in conjunction with a short-term Remedial Action Plan approved by the state or local agency having legal jurisdiction over such activities, shall qualify for a Dewatering General Water Use Permit, provided the conditions for issuance in Rule 40E-20.301, F.A.C., and the following requirement is met:

The proposed dewatering operation will not exceed a maximum of ten million gallons per day, with a maximum of eighteen hundred (1800) million gallons total pumpage and will not exceed a total duration of one year for the entire project.

(3) No-Notice Short-Term Dewatering General Water Use Permit – The use of water in conjunction with short-term dewatering operations, such as well pointing, utility construction, lake construction, exploratory testing, and other minor uses; or aquifer performance tests; or in conjunction with a short-term Remedial Action Plan approved by the state or local agency having legal jurisdiction over such activities, shall qualify for a No-Notice Short-Term Dewatering General Water Use Permit, provided the conditions for issuance in Rule 40E-20.301, F.A.C., and the following requirements are met:.

(a) The proposed dewatering operation will not exceed a maximum of five (5) million gallons per day, with a maximum of one hundred (100) million gallons total pumpage and will not exceed a total duration of 90 days for the entire project, except for linear construction projects, such as roads, utilities, and pipelines, which may have a rolling 90-day duration in which the dewatering operation at the end of each 90-day period occurs more than 1 mile from the location at the beginning of each 90-day period; and

(b) To demonstrate compliance paragraph 40E-20.301(1)(k), F.A.C., all water shall be retained onsite.

Specific Authority 373.044, 373.113, 373.118 FS. Law Implemented 373.042, 373.0421, 373.103(4), 373.118, 373.219, 373.223 FS. History–New 9-3-81, Amended 12-1-82, Formerly 16K-2.031(1), 16K-2.032(1)(b), Amended 2-24-85, 3-29-87, 7-26-87, 4-20-94, 7-11-96, 4-9-97, 12-10-97, 11-4-01, 8-14-02, 8-31-03, 4-23-07, 2-13-08,_________.

 

40E-20.331 Modification of General Water Use Permits.

(1) A permittee shall apply to the District for approval of any modification of an unexpired general water use permit pursuant to Section 373.239, F.S., and Rule 40E-1.609, F.A.C.

(2) Applications for modification except for modifications issued pursuant to subsection (3) shall contain the information required in Rule 40E-20.101, F.A.C., will be evaluated using the conditions and requirements specified in Rules 40E-20.301 and 40E-20.302, F.A.C., and will be subject to the limiting conditions specified in Rule 40E-20.381, F.A.C. Modifications shall be approved if the conditions and requirements in Rules 40E-20.301 and 40E-20.302, F.A.C., are met.

(3)(a) Modification of an existing general water use permit shall be approved by letter, provided the permit is in compliance with all applicable limiting conditions and the modification request:

1. Does not exceed the applicable general permit allocation limitations in Rule 40E-20.302, F.A.C.;

2. Does not result in a requested permit duration which exceeds the expiration date of the existing permit, except that when the permit duration is based upon the current lease expiration date, the permit duration may be extended by letter modification to the new lease date, but shall not exceed the applicable permit duration pursuant to subsection 40E-20.321(2), F.A.C.;

3. Does not potentially interfere with any presently existing legal use of water, cause harm to wetlands or other surface waters, harmful saltwater intrusion or pollution of the water resources, harm to offsite land uses, does not withdraw water reserved under Chapter 40E-10, F.A.C. or does not otherwise raise issues requiring a Staff determination of whether harm to the water resources would occur pursuant to the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District”, incorporated by reference in Rule 40E-20.091, F.A.C.;

4. Does not change the permitted withdrawal source; and

5. Does not result in a modification of the permit which must be approved by the Governing Board pursuant to Section 373.239(2), F.S.

(b) The time frames set forth in Rule 40E-1.603, F.A.C., shall apply to the processing of applications for letter modifications.

Specific Authority 373.044, 373.113 FS. Law Implemented 373.223, 373.229, 373.239 FS. History–New 4-20-94, Amended 7-11-96, 4-9-97, 12-10-97, 8-14-02, 8-31-03, 4-23-07, 2-13-08,________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Wm. Scott Burns, Director, Everglades Water Supply Policy Implementation
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: South Florida Water Management District Governing Board
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 2, 2008
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: July 3, 2008