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

WATER MANAGEMENT DISTRICTS
Southwest Florida Water Management District

RULE NO: RULE TITLE
40D-2.091: Publications Incorporated by Reference
40D-2.321: Duration of Permits
40D-2.801: Water-Use Caution Areas
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 and other similar applicants withdrawing ground water in Central Florida, including Polk County. The first Notice of Proposed Rule Development published in the Florida Administrative Weekly on November 3, 2006, Vol. 32, No. 44, page 5130, 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 South Florida Water Management District in Orange, Osceola, and Polk Counties; and by the St. Johns River Water Management District in Orange, Osceola and Seminole counties, and southern Lake County. This rule development will propose rule amendments to Chapter 40D-2, F.A.C., and the Basis of Review For Water Use Permit Applications to address the three District’s joint conclusion that sustainable quantities of ground water in Central Florida are insufficient to meet future public water supply applicants' and other similar applicants' demands, and that there is an immediate need to develop and implement alternative water supply projects in Central Florida to supplement ground water supplies. The legal description of the affected Central Florida area, called the Central Florida Coordination Area (CFCA) is included in proposed Rule 40D-2.801, F.A.C. Information regarding the CFCA is available from the Southwest Florida Water Management District's website at http://www.swfwmd.state.fl.us/projects/cfca/.
Under the proposed rules, water supply utilities and other similar applicants proposing to withdraw ground water 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.
SUBJECT AREA TO BE ADDRESSED: Water use permit criteria and conditions applicable to public water supply applicants and other similar applicants withdrawing ground water in the CFCA. The proposed rule amendments will contain definitions of key terms such as CFCA AWS, other similar applicant, and public supply utility. Also, a description of special CFCA permit conditions will be proposed. Many of the proposed amendments will be made in the Basis of Review.
SPECIFIC AUTHORITY: 373.044, 373.103, 373.113, 373.118, 373.171 FS.
LAW IMPLEMENTED: 373.036, 373.0361, 373.0395, 373.042, 373.0421, 373.0831, 373.103, 373.116, 373.117, 373.118, 373.149, 373.171, 373.1963, 373.216, 373.219, 373.223, 373.229, 373.236, 373.239, 373.243 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 South Rosalind Avenue, Orlando, Florida
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: Dianne Lee at [phone], ext. 4658; TDD only: 1(800)231-6103. 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: Karen A. Lloyd, Assistant General Counsel, Office of General Counsel, 2379 Broad Street, Brooksville, FL 34604-6899, [phone], extension 4651

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

40D-2.091 Publications Incorporated by Reference.

The following publications are hereby incorporated by reference into this Chapter, and are available from the District upon request:

(1) “Part B, Basis of Review and Part D, Requirements For the Estimation of Permanent and Temporal Service Area Population Within The Southern Water Use Caution Area, of the Water Use Permit Information Manual”. “Basis of Review for Water Use Permit Applications” (____) (1/07);

(2) through (6) No change.

Specific Authority 373.044, 373.113, 373.118, 373.171 FS. Law Implemented 373.036, 373.0361, 373.042, 373.0421, 373.0831, 373.116, 373.117, 373.118, 373.149, 373.171, 373.1963, 373.216, 373.219, 373.223, 373.229, 373.239, 373.243 FS. History–New 10-1-89, Amended 11-15-90, 2-10-93, 3-30-93, 7-29-93, 4-11-94, 7-15-98, 7-28-98, 7-22-99, 12-2-99, 8-3-00, 9-3-00, 4-18-01, 4-14-02, 9-26-02, 1-1-03, 2-1-05, 10-19-05, 1-1-07,________.

 

40D-2.321 Duration of Permits.

(1) through (4) No change.

(5) Subject to the limitations on ground water allocations explained in the provisions under the heading “Requirements for aPPLICANTS FOR GROUND WATER WITHDRAWALS WITHIN THE Central Florida Coordination Area” set forth in Section 3.6 of the Basis of Review, within the Central Florida Coordination Area the duration of a water use permit for ground water withdrawals shall be 20 years when:

(a) The applicant will satisfy water use demands above its demonstrated 2013 demand with CFCA Alternative Water Supply as defined in Section 3.6 of the Basis of Review; or

(b) The applicant demonstrates that it is not feasible to satisfy its water use demands above its demonstrated 2013 demand with CFCA Alternative Water Supply Sources, as defined in Section 3.6 of the Basis of Review.

(5) through (6) renumbered (6) through (7) No change.

Specific Authority 373.044, 373.103, 373.113, 373.171 FS. Law Implemented 373.103, 373.171, 373.236 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,________.

 

40D-2.801 Water-Use Caution Areas.

(1) through (3)(b) No change.

(c) Central Florida Coordination Area (“CFCA”) – The CFCA is located within portions of three water management districts and includes Polk, Orange, Osceola and Seminole counties, and southern Lake County. The portion of the CFCA located within this District is delineated below. The intent of the CFCA rules is to provide an interim regulatory framework for public water supply utilities and other similar users in the area to expeditiously implement CFCA Alternative Water Supply (“CFCA AWS”) projects (as defined in Section 3.6 of the Basis of Review) and, pending the implementation of CFCA AWS, provide for the allocation of available ground water 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, AWS project funding and water resource investigations and analysis.

1. As shown in Figure 2-2, the boundary for the portion of the Central Florida Coordination Area located within this District is as follows:

Begin at the northwest corner of Section 6, Township 23 South, Range 24 East same being on the Sumter-Lake County line and run thence south along the range line dividing Ranges 23 and 24 East, to the thread of the Withlacoochee River; thence westerly along the thread of said river, to its intersection with the range line dividing Ranges 22 and 23 East; thence south along said range line, to the township line dividing Townships 25 and 26 South; thence west along said township line, to the section line dividing Sections 3 and 4 in Township 26 South, Range 22 East; thence south along the section lines, to the township line dividing Townships 26 and 27 South; thence east along said township line, to the range line dividing Ranges 22 and 23 East; thence south along said range line, to an intersection with the range line between Ranges 22 and 23 East with the township line between Townships 32 and 33 South; thence east along said township line, to the southeast corner of Township 32 South, Range 28 East; thence north along the range line between Ranges 28 and 29 East, in Townships 32 and 31 South, to the northeast corner of Section 12 in Township 31 South, Range 28 East; thence east along the section line to the northeast corner of Section 7, Township 31 South, Range 29 East; thence north along the section line to the northwest corner of Section 17, Township 30 South, Range 29 East; thence east along the section line to the northeast corner of the west 1/2 of Section 17, Township 30 South, Range 29 East; thence north along the 1/2-section line to the northeast corner of the west 1/2 of Section 5, Township 30 South, Range 29 East; thence west along the section line to the southwest corner of Section 32, Township 29 South, Range 29 East; thence north along the section line to the northeast corner of Section 19 in Township 29 South, Range 29 East; thence west along the north boundaries of Section 19, Township 29 South, Range 29 East, and Sections 24, 23, 22, 21 and 20, Township 29 South, Range 28 East, to the northwest corner of said Section 20; thence north along the section line to the intersection of said section line with the west shore line of Lake Pierce in Township 29 South, Range 28 East; thence following the west shore of Lake Pierce to its intersection again with the west section line of Section 5, Township 29 South, Range 28 East; thence north along the section line to the northwest corner of Section 5, Township 29 South, Range 28 East; thence east along the township line to the southwest corner of Section 33, Township 28 South, Range 28 East; thence north along the section line to the northwest corner of the southwest 1/4 of the southwest 1/4 of Section 28, Township 28 South, Range 28 East; thence east along the 1/4-section line to the intersection of said 1/4-section line with Lake Pierce; thence follow the shore line northeasterly to its intersection with the 1/2-section line of Section 28, Township 28 South, Range 28 East; thence north on the 1/2-section line to the northwest corner of the southeast 1/4 of Section 28, Township 28 South, Range 28 East; thence east to the northeast corner of the southeast 1/4 of Section 28, Township 28 South, Range 28 East; thence south along the section line to the northwest corner of Section 3, Township 29 South, Range 28 East; thence east along the section line to the northeast corner of Section 3, Township 29 South, Range 28 East; thence north along the section line to the northwest corner of Section 23, Township 28 South, Range 28 East; thence west along the section line to the southwest corner of Section 16, Township 28 South, Range 28 East; thence north along the section line to the northwest corner of Section 16, Township 28 South, Range 28 East; thence west along the section line to the southwest corner of Section 8, Township 28 South, Range 28 East; thence north along the section line to the northwest corner of Section 5, Township 28 South, Range 28 East; thence west along the township line to the intersection of said township line with Lake Marion; thence following the south shore line of Lake Marion to its intersection again with said township line; thence west along the township line to the southeast corner of Section 36, Township 27 South, Range 27 East; thence north along the range line between Ranges 27 and 28 East to the intersection of said range line with Lake Marion; thence following the west shore of Lake Marion to its intersection again with the range line between Ranges 27 and 28 East; thence north along said range line, in Townships 27 and 26 South, to the northeast corner of Township 26 South, Range 27 East, being on the Polk-Osceola County line; thence west along the Polk-Osceola County line to the northwest corner of Township 26 South, Range 27 East; thence north along the section line to the Lake-Polk County line; thence west along the county line to the southwest corner of Section 32, Township 24 South, Range 26 East; thence into Lake County, north along the section lines to the northeast corner of Section 30, Township 24 South, Range 26 East; thence west along the section lines to the northeast corner of Section 28, Township 24 South, Range 25 East; thence north along the section lines to the northeast corner of Section 16, Township 24 South, Range 25 East; thence west along the section line to the northwest corner of Section 16, Township 24 South, Range 25 East; thence north along the section line to the northeast corner of Section 8, Township 24 South, Range 25 East; thence west along the section lines to the range line between Ranges 24 and 25; thence north along the range line to the northeast corner of Section 1, Township 23 South, Range 24 East, also being on the township line between Townships 22 and 23 South; thence west along the township line to the Point of Beginning.

2. For proposed public water supply utility ground water withdrawals and other proposed ground water withdrawals specified in subparagraph 40D-2.801(3)(c)4., F.A.C., located within the areas encompassed both by the SWUCA, as described in paragraph 40D-2.801(3)(b), F.A,C., above, and the District's portion of the CFCA as described in paragraph 40D-2.801(3)(c), F.A.C., the provisions of Chapter 40D-2, F.A.C., and the Basis of Review described in Rule 40D-2.091, F.A.C., applicable to ground water withdrawals within the SWUCA and within the CFCA shall apply. In the event of a conflict between a specific provision of the regulations applicable to the SWUCA and a specific provision of the regulations applicable to the CFCA, the provision that is more restrictive shall apply to the proposed ground water withdrawals.

3. Regulations applicable to the CFCA are specified in paragraph 40D-2.801(3)(c), F.A.C., and in Section 3.6 of the Basis of Review described in Rule 40D-2.091, F.A.C., and are incorporated into this rule, and are in addition to all other regulations set forth in Chapter 40D-2, F.A.C., and Part B and D of the Water Use Permit Information Manual. The CFCA regulations shall not be construed to affect any water use permit application that does not have a ground water withdrawal point within the CFCA.

4. Special requirements for public water supply utility applicants for ground water withdrawals are explained in the provisions under the heading “Requirements for aPPLICANTS FOR GROUND WATER WITHDRAWALS WITHIN THE Central Florida Coordination Area” set forth in Section 3.6 of the Basis of Review. In addition, an applicant, other than a public supply water utility, that proposes to withdraw ground water in the CFCA, seeks a permit duration extending beyond 2013, and proposes an increase in ground water withdrawals above its demonstrated 2013 demand, is subject to those requirements.

5. The CFCA regulatory framework provides a comprehensive strategy for interim allocation of available ground water 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. If the applicant wishes to request this statutory process, it must do so in writing as part of an application.

6. Any public water supply utility applicant, or other applicant described in subparagraph 40D-2.801(3)(c)4., F.A.C., above, with a ground water withdrawal point proposed within the boundaries of the CFCA is deemed to be within the CFCA.

7. The CFCA is a water resource caution area for purposes of Chapter 403, F.S., and Chapter 62-40, F.A.C.

Specific Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.0395, 373.042, 373.0421, 373.171, 373.216, 373.219, 373.223 FS. History–Readopted 10-5-74, Formerly 16J-3.30, Amended 10-1-89, 11-15-90, 3-1-91, 7-29-93, 1-1-03, 1-1-07,_________.

 

Basis of Review for Water Use Permit Applications:

1.9 PERMIT DURATION

1. through 4. No change.

5. Subject to the limitations on ground water allocations explained in the provisions under the heading “Requirements for aPPLICANTS FOR GROUND WATER WITHDRAWALS WITHIN THE Central Florida Coordination Area” set forth in Section 3.6 of the Basis of Review, within the Central Florida Coordination Area the duration of a water use permit for ground water withdrawals shall be 20 years when:

a. The applicant will satisfy water use demands above its demonstrated 2013 demand with CFCA Alternative Water Supply as defined in Section 3.6 of the Basis of Review; or

b. The applicant demonstrates that it is not feasible to satisfy its water use demands above its demonstrated 2013 demand with CFCA Alternative Water Supply Sources, as defined in Section 3.6 of the Basis of Review.

5. through 6. renumbered 6. through 7. No change.

Amended ______.

 

3.6 PUBLIC SUPPLY

Requirements for APPLICANTS for GROUND WATER WITHDRAWALS WITHIN THE Central Florida Coordination Area (CFCA)

The following requirements shall apply to any public water supply utility applicant proposing to withdraw ground water in the CFCA and to those applicants specified in subparagraph 40D-2.801(3)(c)4., F.A.C. “Public water supply utility” means any municipality, county, regional water supply authority, special districts, publicly or privately owned water utilities, or multi-jurisdictional water supply authority, that provides water for use by the general public.

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

1. An applicant will be restricted to a maximum allocation of ground water in an amount no greater than that needed to satisfy its demonstrated 2013 demand; however, an applicant may seek a duration that extends beyond 2013 for that level of allocation.

2. Any applicant seeking a permit duration extending beyond the year 2013 and proposing an increase in quantities above its demonstrated 2013 demand:

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 CFCA 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 quantities above its 2013 demand is not economically, environmentally, or technically feasible; and must establish that it will maximize the use of CFCA AWS 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 one or more CFCA Alternative Water Supply when provided by others at a cost that is economically feasible. Impact to customers from water user rates is a consideration in evaluating economic feasibility: however, the fact that there may be an increase in water users rates to utility customers shall not, in itself, constitute economic infeasibility.

A permittee lacking sufficient CFCA Alternative Water Supply by the end of 2013 from which to obtain the increase in quantities above its demonstrated 2013 demand can be allocated a temporary amount of ground water 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 other conditions of issuance in Rule 40D-2.301, F.A.C., and Parts B and D of the Water Use Permit Information Manual are met. Any such temporary allocation shall be eliminated or modified when water from the Alternative Water Supply project becomes available. “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 sources. Particular circumstances beyond the applicant’s control will be considered in determining whether Due Diligence has been exercised.

New________.

 

4.11 UTILIZATION OF ALTERNATIVE WATER SUPPLIES

Applicants shall demonstrate whether alternative water supplies are available and appropriate for use and shall incorporate use of alternative water supplies to the greatest extent practicable. Use of alternative water supplies is not environmentally feasible if it interferes with recovery of a water body to its established Minimum Flow or Level or if the water body is either currently or projected to be adversely impacted. In determining whether an Applicant has demonstrated that alternative water supplies are available and appropriate for use, the District shall consider whether the alternative water supplies are economically, environmentally and technically feasible. Additionally, applicants specified in subparagraph 40D-2.801(3)(c)4., F.A.C., with ground water withdrawals in the Central Florida Coordination Area are subject to the provisions in the Basis of Review in Section 3.6, under the heading “Requirements For Applicants For Ground Water Withdrawals Within The Central Florida Coordination Area”.

Amended 1-1-07,_______.

 

6.2 SPECIAL PERMIT CONDITIONS

In addition to the general, standard and other conditions, permits for applicants specified in subparagraph 40D-2.801(3)(c)4., F.A.C., authorizing ground water withdrawals in the CFCA shall include special conditions that address the following;

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

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

3. Implementation of 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.

4. Development and use of CFCA Alternative Water Supply to supply water demands greater than the allocation for the year 2013.

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

6. The Modification of 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 as a result of the permitted use, unless the harmful impacts can be mitigated by the permittee.

New________.