Publications Incorporated by Reference

WATER MANAGEMENT DISTRICTS
Southwest Florida Water Management District

RULE NO: RULE TITLE
40D-2.091: Publications Incorporated by Reference

NOTICE OF CORRECTION

Notice is hereby given that the following correction has been made to the proposed rule in Vol. 35 No. 52, December 31, 2009 issue of the Florida Administrative Weekly.

Section 4.3 was printed incorrectly in the above issue and the corrected text is set out below:

The following provisions are changed in the Water Use Permit Information Manual, Part B, Basis of Review, which is incorporated by reference in Rule 40D-2.091, F.A.C.:

Water Use Permit Information Manual

Part B, Basis of Review

CHAPTER 4 CONDITIONS FOR ISSUANCE – TECHNICAL CRITERIA

4.2          ENVIRONMENTAL IMPACTS

The following sentence is added to section 4.2 as a new last paragraph just before the subsection titled “A. Wetlands”:

                Compliance with the performance standards for permittees encompassed within the Comprehensive Plan set forth in Rule 40D-80.073, F.A.C., shall be addressed as specified in Rule 40D-80.073, F.A.C.

                Revised ______

4.3          MINIMUM FLOWS AND LEVELS

The following changes are made to the subsection titled “A. Withdrawals That Affect Water bodies for Which Minimum Flows and Levels Have Been Adopted within Those Portions of Hillsborough County north of State Road 60, and Pasco and Pinellas Counties (hereinafter the “Area”):

A. Withdrawals That Affect Water Bodies for Which Minimum Flows and Levels Have Been Adopted Within the Northern Tampa Bay Water Use Caution Area Within Those Portions of Hillsborough County north of State Road 60, and Pasco and Pinellas Counties (hereinafter the “Area”). In establishing Minimum Flows and Levels, the District has determined that the actual water levels in many of the water bodies for which Minimum Flows and Levels have been established are below the Minimum Flow and Level. The District is implementing a recovery strategy to address water bodies that are below their Minimum Flows and Levels. The recovery strategy, and associated mitigation plan, referred to as the Comprehensive Plan, is described in Rule 40D-80.073, F.A.C. The District is expeditiously implementing a recovery strategy for the Area in keeping with the District’s legislative mandate pursuant to Sections 373.036, 373.0361, 373.0421, 373.0831, 373.1962 and 373.1963, F.S., to resolve the water supply and water resource impact concerns of the Northern Tampa Bay Area in a cooperative manner with the water suppliers and interested parties. This Section 4.3 A. and Chapter 40D-80, F.A.C., set forth the regulatory portion of the first phase (through December 31, 2010) of the recovery strategy for the Area. The following requirements of this Section 4.3 A. effectuate part of the that recovery Comprehensive Plan strategy and shall be effective only through December 31, 2020 2010. The District will evaluate the state of knowledge of these matters in 2010. Based on that evaluation, the District may revise this Section 4.3 A. as appropriate. Compliance with Section 4.3 A. does not, by itself, satisfy the other conditions for issuance requirements of Chapter 40D-2, F.A.C., including Rule 40D-2.301, F.A.C. for new withdrawals proposed after August 3, 2000.

1.     For New Withdrawals Proposed After August 3, 2000, Except For Withdrawals Subject to 4.3 A.2. Below.

a.     Where above Minimum Flow or Level – For water bodies that are predicted to be impacted by the proposed withdrawal and where the actual flow or level is at or above a Minimum Flow or Level, withdrawals shall be limited to that quantity, as may be further limited by other provisions of 40D-2.301, F.A.C., and this Basis of Review, that does not cause the actual flow to fall below the Minimum Flow, nor cause the actual level to fall below the Minimum Level on a long-term average basis (the “Baseline Quantity”). For purposes of this Section 4.3 A., “long-term” means a period which spans the range of hydrologic conditions which can be expected to occur based upon historical records, ranging from high water levels to low water levels. In the context of a predictive model simulation, a long-term simulation will be insensitive to temporal fluctuations in withdrawal rates and hydrologic conditions, so as to simulate steady-state average conditions. In the context of an average water level, the average will reflect the expected range and frequency of levels based upon historic conditions. This period will vary because reasonable scientific judgment is necessary to establish the factors to be used in the assessment of each application depending on the geology and climate of the area of withdrawal, the depth of and number of wells and the quantity to be withdrawn.

i.      If the withdrawal of the requested quantity of water does not meet the condition in 4.3 A.1.a. above, the applicant shall identify the Baseline Quantity, and the District shall consider, as may be further limited by other provisions of Rule 40D-2.301, F.A.C., and this Basis of Review, the authorization of the additional quantity of water to be withdrawn where the applicant:

(1)   Demonstrates that there are no reasonable means to modify the proposed withdrawal to meet the conditions in 4.3 A.1.a., including the use of alternative supplies, to reduce or replace the amount of the requested quantity exceeding the Baseline Quantity. Cost shall not be the sole basis for determining whether the means are reasonable; and

(2)   Provides reasonable assurance that significant harm will be prevented to the wetlands and surface water bodies that could be affected by the proposed withdrawal if the requested quantity is withdrawn; and

(3)   Demonstrates that any measures used to provide the reasonable assurance specified in 4.3 A.1.a.i(2) above will not cause a violation of any of the criteria listed in 40D-2.301(1)(a)-(n), 40D-4.301, or 40D-4.302, F.A.C., as applicable.

ii.     To support whether the applicant has provided reasonable assurance pursuant to 4.3 A.1.a.i(2) above, the applicant must submit an environmental management plan (“EMP”) for approval by the District describing the measures to be used to prevent significant harm from withdrawal of the requested quantity. The EMP must include a monitoring program for early detection of impacts to wetlands and surface water bodies that could be affected by the proposed withdrawal and an implementation scheme for corrective actions to prevent unacceptable adverse impacts. The EMP shall include provisions to evaluate changes in water quality, water levels, vegetation, and fish and wildlife. The EMP shall also include clear thresholds as to when the implementation scheme will be initiated. The implementation scheme shall include details as to how the proposed measures will be effected, the methods to be followed in order to functionally replicate the natural hydrologic regime of affected water bodies, and efforts to be undertaken to minimize the effects of changes in water chemistry. The implementation scheme shall also require reduction of pumping to the Baseline Quantity as a corrective action if no other measures, including supplemental hydration, are successful in preventing unacceptable adverse impacts to wetlands and surface water bodies due to withdrawals. An approved EMP shall be incorporated as a special condition to any permit issued.

(1)   The measures proposed may include hydration of affected water bodies or modification of existing drainage structures to prevent significant harm to affected water bodies, provided that the measures within the EMP minimize the need for supplemental hydration to the greatest extent practical.

(2)   If supplemental hydration is proposed, the applicant will be required to identify in the application and monitor a representative number of wetlands in the vicinity of the withdrawal. The monitored wetlands shall include a representative number of MFL or MFL surrogate wetlands not receiving supplemental hydration. An MFL surrogate wetland is the nearest wetland site of the same type and condition to the proposed withdrawal that is not anticipated to require supplemental hydration. The monitored wetlands shall also include, where available, non-MFL wetlands not receiving hydration as well as MFL and non-MFL wetlands proposed for supplemental hydration.