The Southwest Florida Water Management District (SWFWMD) gives notice that it is developing rules as part of a statewide effort headed by the Florida Department of Environmental Protection (DEP) and the five water management districts (WMDs) to ...

 

WATER MANAGEMENT DISTRICTS

Southwest Florida Water Management District

RULE NO.:RULE TITLE:

40D-8.031Implementation

PURPOSE AND EFFECT: The Southwest Florida Water Management District (SWFWMD) gives notice that it is developing rules as part of a statewide effort headed by the Florida Department of Environmental Protection (DEP) and the five water management districts (WMDs) to increase consistency in the consumptive use permitting (CUP), minimum flows and levels (MFLs), and water supply related programs of the WMDs. The effect of the amendment is to require SWFWMD to simultaneously adopt a recovery or prevention strategy in certain circumstances in order to allow (1) the orderly provision of adequate water for future and existing reasonable beneficial uses; (2) the phasing or a timetable to avoid abrupt modification of existing permits; and (3) interested parties to more fully understand the effects of a proposed MFL. The amendment also makes conforming changes to incorporate revisions to the Water Use Permit Information Manual Part B and the Environmental Resource Permit Basis of Review.

SUMMARY: This proposed amendment requires that for future minimum flow or level adoption, and modification of MFLs, the development of a minimum flow or level and any needed recovery or prevention strategy should occur simultaneously. After initial adoption of a MFL, if new information reveals that a minimum flow or level is not being met, a recovery or prevention strategy shall be expeditiously developed and implemented.

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: There are no costs to the regulated public as a result of the proposed amendments. Therefore, this rulemaking will not result in any adverse economic impacts or regulatory cost increases that require 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 FS.

LAW IMPLEMENTED: 373.042, 373.0421, 373.215, 373.219, 373.223 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

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: SWFWMD Human Resources Director, [phone], ext. 4702; 1(800)423-1476 (FL only), ext. 4702; or 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: Laura Donaldson, General Counsel, SWFWMD, 7601 US Hwy. 301, Tampa, FL 33637-6759, [phone] or 1(800)836-0797 (Florida only), [e-mail] or Sonya White, Senior Legal Assistant, SWFWMD, 7601 US Hwy. 301, Tampa, FL 33637-6759, [phone], (Ext. 4660) or 1(800)836-0797 (Florida only), [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

40D-8.031 Implementation.

(1) through (2) No change.

(3) New water use or surface water management activity shall not cause an existing water level or flow to be reduced or suppressed below an established Minimum Flow or Level. The manner in which the Minimum Flows and Levels established in this Chapter 40D-8, F.A.C., are implemented in the District’s Consumptive Use and Environmental Resource Permitting Programs is described in Rule 40D-2.301, F.A.C., and Water Use Permit Applicant’s Handbook Part B, Section 3.3 Section 4.3 of the Basis of Review described in Rule 40D-2.091, F.A.C., and Section 10.2.2.4 Sections 3.2.2.4, 4.6.1 and 4.6.2 of the Environmental Resource Permit Applicant’s Handbook Volume I and Sections 3.6.1 and 3.6.2 of the Environmental Resource Permit Applicant’s Handbook Volume II Basis of Review described in Rule 62-330.010, 40D-4.091, F.A.C.

(4)(a) At the time the minimum flow or level is initially adopted, if the water body is below or is projected to fall within 20 years below, the initial minimum flow or level, the District shall simultaneously approve the recovery or prevention strategy required by Section 373.0421(2), F.S.

(b) After the initial adoption, when a minimum flow or level is revised, if the water body is below or is projected to fall within 20 years below, the revised minimum flow or level, the District shall simultaneously approve the recovery or prevention strategy required by Section 373.0421(2), F.S. or modify an existing recovery or prevention strategy. The District may adopt the revised minimum flow and level prior to the approval of the recovery or prevention strategy if the revised minimum flow and level is less constraining on existing or projected future consumptive uses.

(c) For water bodies without a prevention or recovery strategy, when the District determines the water body has fallen below, or is projected to fall within 20 years below, the adopted minimum flow or level, the District shall expeditiously approve a recovery or prevention strategy. Where the actual flow or level of a water body is below the Minimum Flow or Level, pursuant to Section 373.0421(2), F.S., the District shall expeditiously implement a recovery strategy with the intent to achieve recovery to the established Minimum Flow and Level as soon as practicable. Where required by law, the portion of the recovery strategy containing criteria that must be met by permittees and applicants under Chapters 40D-2 and 40D-4, F.A.C., shall be adopted by rule. The entire recovery strategy shall be contained in the District’s applicable Regional Water Supply Plan for the area, and the District’s Water Management Plan.

(5) Establishment of a Minimum Flow or Level shall not be deemed to supercede or replace any other permitting criteria unless specifically provided for by such permitting criteria nor to be a determination by the Governing Board that any quantity above the established Minimum Flow or Level is available for allocation to consumptive uses. For example, the District may by regulation or order reserve such quantities as it deems necessary pursuant to Section 373.223(3), F.S.

Rulemaking Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.042, 373.0421, 373.216, 373.219, 373.223, 373.413, 373.414, 373.416 FS. History–New 6-7-78, Amended 10-16-78, 1-22-79, Formerly 16J-8.03, Amended 3-23-81, 8-7-00, 2-18-08,________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Laura Donaldson

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Southwest Florida Water Management District Governing Board

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: April 24, 2012

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: July 20, 2012