The purpose of this rulemaking is to establish minimum flows pursuant to Section 373.042, F.S., for Lower Shell Creek, located in Charlotte County. The effect of the rule is to support the District’s water supply planning, ....

 

WATER MANAGEMENT DISTRICTS

Southwest Florida Water Management District

RULE NO.:RULE TITLE:

40D-8.041Minimum Flows

PURPOSE AND EFFECT: The purpose of this rulemaking is to establish minimum flows pursuant to Section 373.042, F.S., for Lower Shell Creek, located in Charlotte County. The effect of the rule is to support the District’s water supply planning, water use permitting, and environmental resource permitting programs.

SUMMARY: Section 373.042, F.S., requires the District to establish minimum flows and levels for water bodies located within the District’s boundaries. This rulemaking is necessary to establish minimum flows for Lower Shell Creek. The establishment and periodic evaluation of minimum flows is required by statute to ensure that the minimum hydrologic requirements of the water resources and ecology of the river and surrounding area are maintained. The establishment of minimum flows for Lower Shell Creek are being developed using previously peer-reviewed, Governing Board adopted methods.

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: The District conducted an economic review of the revisions to the rule and determined that the impact or regulatory cost, if any, of the revisions will not exceed any one of the economic analysis criteria in a SERC as set forth in Section 120.541(2)(a), F.S. The revised minimum level for this river segment is unlikely to constitute an additional significant regulatory constraint on groundwater or surface water withdrawals in the area due to existing resource conditions and regulatory constraints in the basin.

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, F.S.

LAW IMPLEMENTED: 373.036, 373.042, 373.0421, F.S.

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

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Doug Leeper, MFL Program Lead, SWFWMD, 2379 Broad Street, Brooksville, FL 34604, [phone], ext. 4272.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

40D-8.041 Minimum Flows.

(1) through (22) No change.

(23) Minimum Flows for the lower Shell Creek

(a) For purposes of this rule, the lower Shell Creek in Charlotte County, FL, includes the watercourse from the base of the downstream side of the Hendrickson Dam to its confluence with the Peace River.

(b) Minimum Flows for the lower Shell Creek are based on the daily average flow at the United States Geological Survey (USGS) Shell Creek near Punta Gorda, FL Gage, No. 02298202, adjusted for withdrawals and  agricultural runoff, for the period of record from January 1, 1972, through December 31, 2018, as set forth in Table 8-27.

Table 8-27 Minimum Flows for Lower Shell Creek Based on flow at the USGS Shell Creek near Punta Gorda, FL Gage Adjusted for Surface Withdrawals from the Shell Creek Reservoir and Agricultural Runoff to the Reservoir.
If adjusted flow in cubic feet per second (cfs) on the previous day is:	Minimum Flow is:
≤ 56 cfs	87% of adjusted flow on the previous day
>56 cfs and ≤137cfs	77% of adjusted flow on the previous day
> 137 cfs	60% of adjusted flow on the previous day

 

Status assessments of the Minimum Flows for the lower Shell Creek will be completed to determine whether the flow is below or projected to fall below the Minimum Flows.  Each status assessment is independent from and not a determination of water use permit compliance or environmental resource permit compliance. Permit compliance is a regulatory function that is not within the scope of this subsection. As part of status assessment, the District will use the following approach:

1. The District will evaluate the Minimum Flow annually to determine the extent to which the flow of the lower Shell Creek has been reduced due to withdrawals as of the date of each status assessment at Gage No. 02298202. The annual evaluation will be completed through a review of:

(a) Flow data;

(b) Water withdrawals data;

(c) Agricultural runoff data;

(d) Rainfall and evaporation data; and

(e) Hydrologic modeling.

2. The District will also evaluate the Minimum Flows every five years as part of the regional water supply planning process. This evaluation will include the use of hydrologic modeling.

3. If the Minimum Flows are being met based on the annual evaluation or the evaluation performed as a part of the regional water supply planning process, then no further actions are required beyond continued monitoring.

Rulemaking Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.036, 373.042, 373.0421 FS. History–New 10-5-74, Amended 12-31-74, Formerly 16J-0.15, 40D-1.601, Amended 10-1-84, 8-7-00, 2-6-06, 4-6-06, 1-1-07, 11-25-07, 2-18-08, 3-2-08, 5-12-08, 5-10-09, 3-23-10, 3-28-10, 7-12-10, 8-2-10 (8), 8-2-10 (15), 10-16-12, 3-20-13(16), 3-20-13(17), 6-20-16, 3-15-18, 6-19-18, 4-15-20, 8-9-20, 4-12-21, ___.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Southwest Florida Water Management District

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 14, 2021

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: January 26, 2022