This second Notice of Proposed Rule Development will address the development and amendment of consumptive use permit criteria and conditions for public water supply applicants and other similar applicants withdrawing groundwater in Central Florida, ...

 

WATER MANAGEMENT DISTRICTS
South Florida Water Management District

RULE NO: RULE TITLE
40E-2.091: Publications Incorporated by Reference
40E-2.301: Conditions for Issuance of Permits
40E-2.321: Duration of Permit
40E-2.331: Modification of Permits
40E-2.381: Limiting Conditions
PURPOSE AND EFFECT: This second Notice of Proposed Rule Development will address the development and amendment of consumptive use permit criteria and conditions for public water supply applicants and other similar applicants withdrawing groundwater in Central Florida, including, Orange, Osceola and Polk Counties. The first Notice of Proposed Rule Development was published in the Florida Administrative Weekly on November 3, 2006, Vol. 32, No. 44, page 5131, addressed only public water supply applicants. However, in response to comments received in the ongoing rule development process, the proposed rule development has been expanded to include “other similar applicants”. This rule development will be coordinated with similar rule development by the St. Johns River Water Management District in Orange, Osceola, and Seminole Counties and southern Lake County, and the Southwest Florida Water Management District in Polk County. This rule development will propose rule amendments to Chapters 40E-2 and 40E-20, F.A.C., and the “Basis of Review for Water Use Permit Applications Within the South Florida Water Management District” to address the three Districts' joint conclusion that: (1) sustainable quantities of groundwater in Central Florida are insufficient to meet future public water supply applicants' and other similar applicants' demands; and (2) that there is an immediate need to develop and implement alternative water supply projects in Central Florida to supplement groundwater supplies.
The legal description of the affected Central Florida area, called the Central Florida Coordination Area (CFCA), will be included in the “Basis of Review for Water Use Permit Applications Within the South Florida Water Management District”. Under the proposed rules, water supply utilities and other similar applicants proposing to withdraw groundwater in the CFCA will generally be restricted to demonstrated 2013 demands. Such an applicant may be issued a permit with a duration of up to 20 years for the 2013 allocation if the applicant will develop at least one alternative water supply (AWS) project to supply its water demands above 2013 demand levels. Alternatively, the applicant may demonstrate that AWS development is infeasible for all the increase above its 2013 demand. In this case, the applicant must maximize use of AWS for as much of the increase as is feasible and must use AWS for the remainder of the increase when provided by others, to the extent feasible. A public supply utility or other similar applicant will be restricted to a permit duration of no more than December 31, 2013, if the applicant does not develop AWS or use AWS to meet as much of the increase above its 2013 demand as is feasible. The relationship between the Basis of Review and Rule 40E-2.301, F.A.C., will be clarified.
SUBJECT AREA TO BE ADDRESSED: Consumptive use permit criteria and conditions applicable to water supply applicants and other similar applicants withdrawing groundwater in the Central Florida Coordination Area. The proposed rule amendments will contain definitions of key terms such as CFCA AWS, other similar applicant, and public supply utility. A description of special CFCA permit conditions will also be proposed. Many of the proposed amendments will be made in the Basis of Review. A clarification regarding the relationship between the Basis of Review and Rule 40E-2.301, F.A.C., will also be provided.
SPECIFIC AUTHORITY: 373.044, 373.113, 373.171 FS.
LAW IMPLEMENTED: 373.023, 373.042, 373.0421, 373.185, 373.219, 373.223, 373.224, 373.226, 373.229, 373.232, 373.233, 373.236, 373.239, 373.250 FS.
A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: May 4, 2007, 10:00 a.m. – 12:00 Noon
PLACE: Orange County Commission Chambers, First Floor, 201 Rosalind Avenue, Orlando, FL
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: Clerk of the South Florida Water Management District, 1(800)432-2045, 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 DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Beth Ross, Senior Specialist Attorney, South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, FL 33406, 1(800)432-2045, ext. 6753 or [phone], e-mail: [e-mail]. For procedural questions, contact Jan Sluth, Paralegal, South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, FL 33406, 1(800)432-2045, ext. 6299 or [phone], e-mail: [e-mail].

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

40E-2.091 Publications Incorporated by Reference.

The “Basis of Review for Water Use Permit Applications within the South Florida Water Management District – (effective date), 2007 August 31,2003,” 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, 373.171 FS. Law Implemented 373.042, 373.0421, 373.219, 373.223, 373.224, 373.229, 373.232, 373.233, 373.236, 373.239 FS. History–New 9-3-81, Formerly 16K-2.035(1), Amended 2-24-85, 11-21-89, 1-4-93, 4-20-94, 11-26-95, 7-11-96, 4-9-97, 12-10-97, 9-10-01, 12-19-01, 8-1-02, 6-9-03, 8-31-03,_________.

 

(The following represents proposed changes to the “Basis of Review for Water Use Permit Applications Within the South Florida Water Management District, August 31, 2003”)

1.3.2.1              Competition within the Central Florida Coordination Area

The Central Florida Coordination Area regulatory framework provides a comprehensive strategy for interim allocation of available groundwater and expeditious development of CFCA alternative water supply projects to minimize competition and, thereby, provide greater certainty of outcome than competition which remains available pursuant to Section 373.233, F.S., and criteria 1.3.2. If an applicant wishes to request this statutory process, it must do so in writing as part of the application.

1.7.2.2              Special Duration Factors

A.              No change.

B.              Sources of Limited Availability. For purposes of the Section, the following are Sources of Limited Availability:

1. through 3. No change.

4.              Kissimmee Regional Water Supply Planning Area within the Central Florida Coordination Area: Groundwater.

C.              The following uses shall receive a 20 year permit, if:

1.              For uses from sources other than those listed in subparagraphs B. 1., 2., and 3., above, the allocation necessary to meet the 20 year demands is consistent with Chapters 40E-2 and 40E-20, F.A.C., as applicable, provided that the demands are realized according to the schedule set forth in the permit, for the duration of the permit; or

2. through 3. No change.

4.              The applicant proposes groundwater withdrawals within the Central Florida Coordination Area to satisfy demands from that source up to its demonstrated 2013 demand and proposes to develop specific alternative water supply projects to meet demands greater than the 2013 demand, or demonstrates alternative water supply projects are currently infeasible, and otherwise satisfies the requirements of Chapter 40E-2 or 40E-20, F.A.C., as applicable, for the duration of the permit.

D.              Requests for Allocations in Excess of Subsection 1.7.2.2.C.3., Permit Modifications, or Initial Permits, from Sources of Limited Availability other than applicants governed by subsection 1.7.2.2.C.4.:

The baseline duration under this Section shall be five years or as otherwise provided below. The following factors shall be considered and balanced in determining the duration of a permit:

1. through 3. No change.

4.              Whether the requested allocation is supplied by a brackish water source, consistent with the use of saline water in Section 3.4; or

5.              Whether the modification of the permit results in no more than a de minimis increase in impact to water resources and existing legal uses, as compared to the existing permit. Consideration of this factor will lead to a duration consistent with the permit being modified; or

6.              A public supply utility applicant or other similar applicant proposing groundwater withdrawals within the Central Florida Coordination Area and does not propose to satisfy demands greater than demonstrated 2013 demands with specific alternative water supply projects. Consideration of this factor will lead to a maximum permit duration of up to 2013.

E.              No change.

1.8              Definitions

Allocation Coefficient – No change.

Alternative Water Supply for purposes of the additional permitting provisions within the Central Florida Coordination Area (“CFCA”) are surface water, stormwater, and salt water. Brackish groundwater sources may be considered an alternative water supply source if it can be developed in a manner that will not cause or contribute to harmful impacts from cumulative groundwater withdrawals in the CFCA.

Aquifer through Drawdown – No change.

Due Diligence means giving the care and attention and taking all reasonable actions to meet all schedule requirements in the permit for developing and using alternative water supply. Particular circumstances beyond the applicant’s control will be considered in determining whether due diligence has been exercised.

Effluent through National Geodetic Vertical Datum (NGVD) – No change.

Other Similar Applicant for purposes of the additional permitting provisions applicable within the CFCA, ‘Other Similar Applicant’ means an applicant other than a public supply utility that proposes to withdraw groundwater in the CFCA and proposes an increase in ground water withdrawal above the level needed to meet its demonstrated demands in the year 2013.

Other Surface Waters through Potentiometric Surface – No change.

Public Supply Utility means any municipality, county, regional water supply authority, special districts, publicly or privately owned water utility, or multi-jurisdictional water supply authority, that provides water for use by the general public.

Public Water Supply through Xeriscape – No change.

3.0              WATER RESOURCE EVALUATIONS

3.2.1              Restricted Allocation Areas

Due to concerns regarding water availability, the following geographic areas are restricted with regard to the utilization of specific water supply sources. These areas and sources include the following:

A. through D. No change.

E.              Groundwater Allocation in the Central Florida Coordination Area (CFCA) –

1.              Overall Intent:

The Central Florida Coordination Area (“CFCA”) is located within portions of three water management districts and includes Polk, Orange, Osceola and Seminole counties, and southern Lake County. Within the South Florida Water Management District, the CFCA is the area delineated in Figure >>>. The intent of the CFCA rules is to provide an interim regulatory framework for public supply utilities and other similar applicants in the area to expeditiously implement alternative water supply projects, and, pending the implementation of alternative water supply, to provide for the allocation of available groundwater while employing avoidance and mitigation measures to prevent harm. This regulatory framework is one component of a comprehensive, joint water management district strategy for regional water resource management that also includes regional water supply planning, alternative water supply project funding, and water resource investigations and analysis.

2.              Maximum Allocation:

Public supply utility applicants and other similar applicants proposing increased withdrawals of groundwater within the CFCA, Figure >>>>, are restricted to a maximum allocation of ground water in an amount no greater than that needed to satisfy its demonstrated 2013 demand, provided the proposed use otherwise satisfies the requirements of Chapter 40E-2 or 40E-20, F.A.C., as applicable.

3.              Alternative Water Supply Project Development:

Any applicant seeking a permit duration extending beyond 2013 and proposing an increase in water withdrawal above the level needed to meet its demonstrated 2013 demand must:

a.              Identify at least one specific CFCA alternative water supply project that the applicant will develop (either singly or in concert with others) and use, to meet the increase in quantity above its demonstrated 2013 demand, for the duration of the permit; and provide a project development schedule for each such identified project, with project development milestones that when followed, will result in alternative water supply being used by the applicant by the end of 2013; or

b.              Demonstrate that the development (either singly or in concert with others) of sufficient CFCA alternative water supply to meet all the increase in quantity above its demonstrated 2013 demand is not economically, environmentally, or technologically feasible; and must establish that it will maximize the use of CFCA alternative water supply to meet as much of the increase as is economically, environmentally, or technologically feasible and will obtain any remaining portion of the increase by using water from one or more CFCA alternative water supply projects when provided by others at a cost that is economically feasible. The impact to customers from water use rates is a consideration in evaluating economic feasibility; however, an increase in water uses rates to utility customers shall not, in itself, constitute economic infeasibility.

4.              Due Diligence:

A permittee lacking sufficient CFCA alternative water supplies by the end of 2013 from which to obtain the increase in quantity above its demonstrated 2013 demand can be allocated a temporary amount of groundwater to meet that increase only if it has exercised due diligence to meet all schedule requirements in the permit for developing and using CFCA alternative water supply and providing that other conditions for issuance in Rule 40E-2.301, F.A.C., and this Basis of Review are met. Any such temporary allocation shall cease when water from the CFCA alternative water supply project becomes available.

 

 

5.0              PERMIT CONDITIONS

5.3              Specific Region Special Conditions

A. through E. No change.

F.              In addition to the general, standard and other conditions described in this part, permits for public supply utilities and other similar applicants withdrawing groundwater in the CFCA shall include special conditions that address the following:

a.              Implementation of a District-approved plan to monitor hydrology, ecology, and water quality in areas subject to impacts from the permitted withdrawal, with at least annual data reporting and analysis.

b.              Implementation of specific District – approved measures to mitigate or avoid harm that would otherwise occur as a result of the permitted allocation.

c.              Implementation of a District-approved mitigation or avoidance actions to address any unanticipated harm, if the District finds that harm will occur or has occurred as a result of the permitted allocation.

d.              Expeditious development and use of CFCA alternative water supply to meet water demands.

e.              Submittal of five-year compliance reports for 20 year duration permits as described in Section 373.236(4), F.S.

f.              The reduction in allocation or other modification to the permit, after review of each five-year compliance report or at any other time during the term of the permit, if needed to abate observed or projected harmful impacts, unless the harmful impacts can be mitigated by the permittee.

40E-2.301 Conditions for Issuance of Permits.

(1) (a) through (g) No change.

(h) 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 –________, 2007”, incorporated by reference in Rule 40E-2.091, F.A.C.

(i) through (j) No change.

(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 –________, 2007”, incorporated by reference in Rule 40E-2.091, F.A.C., are met.

Specific Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.023, 373.042, 373.0421, 373.185, 373.219, 373.223, 373.226, 373.236, 373.250 FS. History–New 9-3-81, Formerly 16K-2.035(2), Amended 2-24-85, 1-4-93, 4-20-94, 7-11-96, 4-9-97, 12-10-97, 9-10-01, 8-1-02, 8-31-03, ________.

 

40E-2.321 Duration of Permit.

General Duration Provision. When requested by an applicant, a consumptive use permit shall have a duration of 20 years provided the applicant provides sufficient data to demonstrate reasonable assurance that the proposed use meets the conditions for issuance for the requested 20 year permit duration; or otherwise, permits may be issued for a shorter duration that reflects the period for which such reasonable assurances can be provided. This determination will be made pursuant to requirements in Rule 40E-2.301, F.A.C., and the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District –________, 2007”, incorporated by reference in Rule 40E-2.091, F.A.C.

Specific Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.236 FS. History–New 9-3-81, Amended 2-24-85, 4-20-94, 7-11-96, 8-31-03, ________.

 

40E-2.331 Modification of Permits.

(1) through (3) No change.

(4)(a) through (4)(a)2. No change.

3. Does not potentially interfere with any presently existing legal use of water, cause environmental harm, saltwater intrusion, pollution of the water resources, harm to offsite land uses, or does not otherwise raise issues requiring a Staff determination of whether such impacts would occur pursuant to the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District –________, 2007”, incorporated by reference in Rule 40E-2.091, F.A.C.; and

4. through 5. No change.

(b) No change.

Specific Authority 373.044, 373.113 FS. Law Implemented 373.223, 373.229, 373.239 FS. History–New 9-3-81, Formerly 16K-2.09(1), Amended 4-20-94, 7-11-96, 4-9-97, 12-10-97, 8-1-02, ________.

 

40E-2.381 Limiting Conditions.

The Board shall impose on any permit granted under this chapter such reasonable standard and special permit conditions as are necessary to assure that the permitted use or withdrawal will be consistent with the overall objectives of the District, will not be harmful to the water resources of the District, is reasonable-beneficial, will not interfere with any presently existing legal uses, and is consistent with the public interest. Standard permit conditions in Section 5.1 of the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District –________, 2007”, incorporated by reference in Rule 40E-2.091, F.A.C., shall be set forth in the permit. Special permit conditions, including those specified in Section 5.2 of the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District –________, 2007”, shall be set forth in the permit.

Specific Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.042, 373.0421, 373.219(1) FS. History–New 9-3-81, Amended 2-24-85, 7-26-87, 4-20-94, 7-11-96, 4-9-97, 12-10-97, 9-10-01, 8-1-02,________.