The purpose of this rulemaking is to amend Rule 40D-2.321, F.A.C., to be more consistent with Section 373.236, F.S., and other water management districts rules by eliminating additional requirements that applicants must meet to qualify for a twenty ...

 

WATER MANAGEMENT DISTRICTS
Southwest Florida Water Management District

RULE NO.: RULE TITLE:
40D-2.321: Duration of Permits
PURPOSE AND EFFECT: The purpose of this rulemaking is to amend Rule 40D-2.321, F.A.C., to be more consistent with Section 373.236, F.S., and other water management districts rules by eliminating additional requirements that applicants must meet to qualify for a twenty year permit. The effect is that an applicant will avoid having to satisfy additional requirements to be granted a twenty year permit. Certain permits that were granted shorter durations may also be extended up to a total of twenty years.
SUMMARY: The proposed rule will allow applicants to receive a permit with a twenty year duration if the applicant provides reasonable assurance that all statutory and regulatory requirements are satisfied for the twenty year term. Extension of permits that have been issued within the last ten years that would have qualified for a twenty year permit but for the additional requirements is authorized.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:
The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.
The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: This rulemaking will not result in increased costs to small businesses or other regulated entities as a result of the proposed amendments. Therefore, this rulemaking will not result in any adverse economic impacts or regulatory cost increases that require a Statement of Estimated Regulatory Costs or legislative ratification.
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.
RULEMAKING AUTHORITY: 373.044, 373.113, 373.171, 373.236 FS.
LAW IMPLEMENTED: 373.103, 373.219, 373.236 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: NOVEMBER 27, 2012 at 11:00 a.m.
PLACE: LAKE EVA BANQUET HALL, 799 JOHNS AVENUE, HAINES CITY, FLORIDA 33844
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: The Southwest Florida Water Management District Human Resources Director, 2379 Broad Street, Brooksville, Florida 34604-6899; telephone [phone], ext. 4702 or 1(800)423-1476 (FL only), ext. 4702; TDD (FL only) 1(800)231-6103 or email to [e-mail]. 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: Sonya White, Southwest Florida Water Management District, Office of General Counsel, 7601 Highway 301 North, Tampa, FL; 33637-6759, [phone] (4660) (OGC #2012018)

THE FULL TEXT OF THE PROPOSED RULE IS:

40D-2.321 Duration of Permits.

(1) When requested by an applicant, a water use permit shall have a duration of 20 years provided the if:

(a) The applicant provides sufficient data to demonstrate reasonable assurance that the proposed withdrawals and use meets the conditions for issuance in Rule 40D-2.301, F.A.C., and  the criteria in Part B, Basis of Review, of the Water Use Permit Information Manual, incorporated by reference in Rule 40D-2.091, F.A.C. for the requested duration., and

(b) There is a demonstrated demand of at least 20 years, and

(c) One or more of the conditions in paragraph (2)(a)-(f) will be met, and

(d)  Where mitigation measures are proposed by the applicant, paragraph (2)(g) is met.

(2) Conditions for a water use permit with a duration of 20 years:

(a) The permit is for the development of an Alternative Water Supply. A longer duration shall be granted where the permittee demonstrates a longer duration is required by the bonding authority for the retirement of bonds issued for the construction of the project and the applicant provides reasonable assurance that the proposed use meets the conditions for issuance in Rule 40D-2.301, F.A.C., and the criteria in Part B, Basis of Review, of the Water Use Permit Information Manual, and that there is a demonstrated demand for the requested duration.

(b) The applicant demonstrates that at least 75 percent of their total annual average water needs will be met using an Alternative Water Supply or Supplies by the tenth year of the permit.

(c) The applicant demonstrates that it has achieved and will maintain a compliance per capita rate of less than 110 gallons per day per person, or will achieve such per capita by the tenth year of the permit. For regional water supply authorities, the per capita rate requirements shall refer to the weighted average compliance per capita rate of the member governments.

(d) The applicant demonstrates for its system-wide use of reclaimed water including imports and exports that it will beneficially reuse at least 75 percent of its treated domestic waste water, and at least 75% of that quantity will offset existing and planned water supplies by the tenth year of the permit. The term offset means the amount of traditional, potable quality water supplies that will be replaced by reclaimed water, expressed as an annual average in MGD.

(e) The applicant demonstrates that the project meets the Conditions of Eligibility of the Facilitating Agricultural Resource Management System (FARMS) program as specified in Rule 40D-26.101, F.A.C. and has an approved Facilitating Agricultural Resource Management System (FARMS) application and, by the tenth year of the permit, demonstrates that it will develop an Alternative Water Supply or Supplies that offset a minimum of 50 percent of the applicant’s current fresh or brackish water supply.

(f) The permit to be issued is a Small General.

(2)(g) If there are pre-existing adverse impacts resulting from the permittee’s existing permit that are being addressed through a mitigation plan that includes a minimum flow and recovery strategy that must be eliminated by the tenth year of the permit, the water use permit shall have a duration of 10 years provided that the applicant provides sufficient data to demonstrate reasonable assurance that the proposed use meets the conditions for issuance in Rule 40D-2.301, F.A.C., and  the criteria in Part B, Basis of Review, of the Water Use Permit Information Manual, incorporated by reference in Rule 40D-2.091, F.A.C. for the permit’s duration.  Subsection (3) shall not apply to a permit required to have a 10 year duration pursuant to subsection 40D-2.321(2), F.A.C.Any pre-existing adverse impacts resulting from the permittee’s existing permit that are being addressed through a mitigation plan that includes a minimum flow and level recovery strategy must be eliminated by the tenth year of the permit.

(3) Permits that do not qualify for a 20 year permit duration pursuant to subsection 40D-2.321(1), F.A.C., above, shall be issued for a shorter duration that reflects the period for which the applicant has provided sufficient data to demonstrate such reasonable assurances have a duration of 10 years provided the applicant provides reasonable assurance that the proposed use meets the conditions for issuance in Rule 40D-2.301, F.A.C., and the criteria in Part B, Basis of Review, of the Water Use Permit Information Manual, incorporated by reference in Rule 40D-2.091, F.A.C. and that there is a demonstrated demand of at least 10 years.

(4) When an applicant fails to provide reasonable assurance that the proposed use meets the conditions for issuance in Rule 40D-2.301, F.A.C., and the criteria in Part B, Basis of Review, of the Water Use Permit Information Manual, for a 10 year permit duration, a permit may be issued for a shorter duration that reflects the period for which such reasonable assurances can be provided.

(5) Permits with a duration greater than 10 but less than 20 years as provided in subsection (1) above shall be granted based upon, at the time of application,  the period of time for which the applicant demonstrates a demand and provides reasonable assurance that the proposed use meets the conditions for issuance in Rule 40D-2.301, F.A.C., and the criteria in Part B, Basis of Review, of  the Water Use Permit Information Manual.

(4)(6) The District is authorized to issue permits for a period up to 50 years in accordance with Section 373.236(3), F.S.

(5)(7) Permits based upon non-renewable leases less than 10 years shall be granted for 10 years. If the permitted water use activity ceases for more than 2 years the permit shall be subject to revocation unless documentation is provided indicating that use will recommence within the next year. Permits based upon non-renewable leases greater than 10 years or with renewable leases will be issued under the provisions of this Rule 40D-2.321, F.A.C., with a permit condition requiring submittal of a new or a renewed lease in order for the permit to remain in force.

(6)(8) Permits that are modified prior to renewal will maintain the original expiration date unless the applicant requests the modification be deemed by the District to be substantial as described in the Basis of Review Section 1.12, and treated as a renewal with modification. If the District determines that the criteria of Basis of Review Section 1.12 are met, the application shall be processed as a renewal application with modification.   Notwithstanding Basis of Review Section 1.12(2)a.(5),a request for modification solely of the permit expiration date of a water use permit issued from January 1, 2003 to December 31, 2012, shall be approved by letter, provided the permit is in compliance with the criteria in Rule 40D-2.301, F.A.C. and all applicable limiting conditions, and the permit does not exceed the applicable permit duration provided in Rule 40D-2.321(1), F.A.C. or is a permit required to have a ten year duration pursuant to subsection 40D-2.321(2), F.A.C.

(7)(9) Wholesale Public Supply Permits shall be issued with an expiration date that coincides with the expiration date of the supplier’s permit that provides the majority of the supply to the Wholesale Public Supply Permittee.

(8)(10) Subject to the limitations on groundwater allocations explained in the provisions under the heading “REQUIREMENTS FOR APPLICANTS FOR GROUNDWATER WITHDRAWALS WITHIN THE CENTRAL FLORIDA COORDINATION AREA” set forth in Section 3.6 of the Basis of Review (“the Provisions”), within the CFCA, the maximum permit duration for a Public Supply Utility or Similar Applicant proposing to withdraw groundwater shall be limited to December 31, 2013, unless the applicant will satisfy the requirements of B.2.a. or b., of the Provisions. If the applicant satisfies the requirements of B.2.a., or b., the permit duration shall be up to 20 years.

Rulemaking Authority 373.044, 373.103, 373.113, 373.171 FS. Law Implemented 373.103, 373.171, 373.219, 373.223, 373.227, 373.236, 373.250 FS. History–Readopted 10-5-74, Amended 12-31-74, 10-24-76, 1-6-82, 3-11-82, Formerly 16J-2.13, Amended 10-1-89, 7-28-98, 1-1-03, 1-1-07, 2-13-08, 12-30-08, 6-30-10, __________ .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Laura J. Donaldson, General Counsel
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Southwest Florida Water Management District Governing Board
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: September 25, 2012
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: July 20, 2012