Section 601(h)(4)(B) of the Water Resources Development Act of 2000 requires the State of Florida to reserve or allocate water for the natural systems associated with implementation of Comprehensive Everglades Restoration Projects (CERP) in order to ...

Notice of Proposed Rule

 

WATER MANAGEMENT DISTRICTS

South Florida Water Management District

RULE NOS.:RULE TITLES:

40E-10.021:Definitions

40E-10.031:Water Reservations Implementation

40E-10.041:Water Reservation Areas: Lower West Coast Planning Area

40E-10.051:Water Reservation Areas: Upper East Coast Planning Area

40E-10.061:Water Reservation Areas: Lower East Coast Planning Area

PURPOSE AND EFFECT: Section 601(h)(4)(B) of the Water Resources Development Act of 2000 requires the State of Florida to reserve or allocate water for the natural systems associated with implementation of Comprehensive Everglades Restoration Projects (CERP) in order to receive federal cost share to construct the Projects. The District proposes to establish a water reservation for natural system water associated with the CERP Biscayne Bay Coastal Wetlands (Phase I) Project. The purpose of this water reservation is to identify and reserve water from consumptive use for this CERP Project and to ensure that water is available to provide reasonable assurances that their proposed use of water will not withdraw water reserved for the natural system. In addition, the District proposes non-substantive changes to referenced Figures.

SUMMARY: The District proposes to reserve from allocation to a water use permit all surface water flowing through the canals depicted in red in Figure 1. Withdrawals of surface water will also not be permitted from facility intakes physically located within the surface water column of the “Nearshore Central Biscayne Bay”. Existing legal uses of this water at the time of rule adoption will not be affected by the water reservation. This reservation also does not affect surface water from canals outside of the identified protected canals and groundwater. The water reservation does not affect the blue portions of the canal reaches shown in Figure 1.

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 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: Based on the SERC, the adverse impacts of the proposed rules do not exceed the criteria established in Section 120.541(2)(a), F.S.

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: 373.016, 373.026, 373.036, 373.1501, 373.1502, 373.219, 373.223, 373.4592, 373.4595, 373.470 FS.

A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: June 13, 2013, 9:00 a.m.

PLACE: Village of Key Biscayne, Council Chamber, 560 Crandon Boulevard, Key Biscayne, Florida 33149

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: South Florida Water Management District Clerk, [phone], 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 IS: Don Medellin, Principal Scientist, South Florida Water Management District, 3228 Gun Club Road, West Palm Beach, FL 33406, [phone], ext. 6340 or [phone], email: [e-mail], or Beth Lewis, Senior Specialist Attorney, South Florida Water Management District, 3228 Gun Club Road, West Palm Beach, FL 33406, [phone], ext. 6343 or [phone], email: [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

40E-10.021 Definitions.

(1) Fakahatchee Estuary – The area within the Ten Thousand Islands region including the following river/bay systems, from west to east: Blackwater River/Blackwater Bay, Whitney River/Buttonwood Bay, Pumpkin River/Pumpkin Bay, Wood River, Little Wood River and Faka Union Canal/Faka Union Bay, and Fakahatchee Bay as depicted in Figure 1-3 2 Fakahatchee Estuary.

(2) Picayune Strand – The area located southwest of the Florida Panther National Wildlife Refuge, north of the Ten Thousand Islands NWR, east of the South Belle Meade State Conservation and Recreation Lands (CARL) Project, west of the Fakahatchee Strand Preserve State Park, and northeast of Collier-Seminole State Park as depicted in Figure 1-2  Picayune Strand. The legal description of the Picayune Strand is contained in Appendix 1-1.

(3) North Fork of the St. Lucie River – The area that extends from the Gordy Road structure (state plane coordinates, x851212.831, y1116105.7470), to the confluence of the North Fork of the St. Lucie River and the C-24 canal (state plane coordinates, x873,712.20, y1064,390.41) as depicted in Appendix 2 3, Figure 23-1.

(4) Nearshore Central Biscayne Bay – The area within Biscayne Bay up to 1640 feet (500 meters) from the shoreline beginning south of Shoal Point extending southward to north of Turkey Point as depicted in Figure 3-1.

Rulemaking Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.016, 373.026, 373.036, 373.1501, 373.1502, 373.219, 373.223, 373.4592, 373.4595, 373.470 FS. History–New 7-2-09, Amended 3-18-10, _________.

 

40E-10.031 Water Reservations Implementation.

(1) Applicants for consumptive use permits shall meet the requirements of this rule by providing reasonable assurances that Rules 40E-2.301 and 40E-20.301, F.A.C., and Section 3.11 of the “Basis of Review for Water Use Permit Applications within the South Florida Management District”, incorporated by reference in Rules 40E-2.091 and 40E-20.091, F.A.C., are met.

(2) and (3) No Change.

(4)  Water reserved for the protection of fish and wildlife contained within Nearshore Central Biscayne Bay is defined in subsections 40E-10.061(1)-(2), F.A.C.

Rulemaking Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.016, 373.026, 373.036, 373.1501, 373.1502, 373.219, 373.223, 373.4592, 373.4595, 373.470 FS. History–New 7-2-09, Amended 3-18-10, _____.

 

40E-10.041 Water Reservation Areas: Lower West Coast Planning Area.

(1) Picayune Strand as defined in subsection 40E-10.021(2), F.A.C.:

(a) Surface waters:

1. All surface water contained within the Picayune Strand is reserved from allocation (see Figure 1-2).

2. All surface water flowing into the Picayune Strand identified below is reserved from allocation:

i. The surface water flows depicted on Figures 1-4.A, B, and C 3. A, B, and C, simulated at weir ‘Miller2’ within the Miller Canal (see Figure 1-2);

ii. The surface water flows depicted on Figures 1-5,A, B, and C 4. A, B, and C, simulated at weir ‘FU3’ within the Faka Union Canal (see Figure 1-2); and

iii. The surface water flows depicted on Figures 1-6.A, B, and C 5. A, B and C simulated at spillway ‘Lucky LA’ within the Merritt Canal (see Figure 1-2).

(b) No Change.

(2) Fakahatchee Estuary as defined in subsection 40E-10.021(1), F.A.C.:

(a) Surface waters:

The surface water flows into the Fakahatchee Estuary identified below are reserved from allocation:

1. The surface water flows depicted on Figures 1-7.A, B, and C 6. A, B and C simulated at Faka Union Canal at structure FU1 (See Figure 1-3 2);

2. The surface water flows depicted on Figures 1-8.A, B, and C 7. A, B and C simulated at ‘Miller@41’ transect (beginning at coordinate 471365.13N, 599423.29 E Southeast to 479226.67N, 595105.77E (delivering surface water to Blackwater Bay and Buttonwood Bay) see Figure 1-3 2);

3. The surface water flows depicted on Figures 1-9.A, B, and C 8. A, B and C simulated at ‘FU@41’ transect (beginning at coordinate 480427.89N, 595005.67E Southeast to 487735.34N, 592478.09E (delivering surface water to Pumpkin Bay) see Figure 1-3 2);

4. The surface water flows depicted on Figures 1-10.A, B, and C 9. A, B and C simulated at ‘Merritt@41’ transect (beginning at coordinate 490942.49N, 593218.49E flowing Southeast to 499050.54N, 590515.81E (delivering surface water to Faka Union Bay) see Figure 1-3 2); and

5. The surface water flows depicted on Figures 1-11.A, B, and C 10. A, B and C simulated at ‘Fakahatchee@41’ transect (beginning at coordinate 498623.81N, 587955.37E Southeast to 533587.95N, 575807.53E (delivering surface water to Fakahatchee Bay) see Figure 1-3 2).

(b) Groundwater: All groundwater in the water table and unconfined portions of Lower Tamiami aquifer underlying the Fakahatchee Estuary is reserved from allocation.

Notwithstanding the above, presently existing legal uses for the duration of the permit existing on July 2, 2009 are determined to be not contrary to the public interest, pursuant to Section 373.223(4), F.S.

(3)Reservations contained in Sections 1 and 2 above shall be reviewed in light of changed conditions or new information by December 31, 2014.

Rulemaking Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.016, 373.026, 373.036, 373.1501, 373.1502, 373.219, 373.223, 373.4592, 373.4595, 373.470 FS. History–New 7-2-09, Amended 3-18-10, _______.

 

40E-10.051 Water Reservation Areas: Upper East Coast Planning Area.

North Fork of the St. Lucie River, as defined in subsection 40E-10.021(3), F.A.C.:

(1) Surface waters up to and including the mean monthly flow of 130 cubic feet per second flowing over the Gordy Road Structure from November 1st through May 31st; see Appendix 2 3, Figure 2-2 3-2; are reserved from allocation. The water reserved under this Rule will be available for fish and wildlife upon formal determination of the Governing Board, pursuant to state and federal law, that any one or all of the Comprehensive Everglades Restoration Plan’s C-23/C-24 North and South Reservoirs and STA Project are operational.

(2) Reservations contained in this Rule and the criteria contained in section 3.11.2 of the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District,” incorporated by reference in Rule 40E-2.091, F.A.C., shall be revised pursuant to Section 373.223(4), F.S., in light of changed conditions or new information and concurrent with the approval specified in subsection (1), above.

Notwithstanding the above, presently existing legal uses for the duration of a permit existing on March 18, 2010 are determined to be not contrary to the public interest pursuant to Section 373.223(4), F.S.

Rulemaking Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.016, 373.026, 373.036, 373.1501, 373.1502, 373.219, 373.223, 373.4592, 373.4595, 373.470 FS. History–New-3-18-10, _______.

 

40E-10.061 Water Reservation Areas: Lower East Coast Planning Area

(1) Nearshore Central Biscayne Bay as defined in subsection 40E-10.021(6), F.A.C.:

All surface water contained within Nearshore Central Biscayne Bay is reserved from allocation (see Figure 3-1).

(2) Surface water flowing into Nearshore Central Biscayne Bay as identified below is reserved from allocation:

(a) Surface water flows depicted on Figures 3-2.A and 3-2.B through S-123 derived from the following contributing canal reaches:

1. The C-100A canal upstream of S-123 to S-120 including all integrated conveyance canals.

2. The C-100C canal upstream of S-123 to S-119 including all integrated conveyance canals.

3. The C-100B canal upstream of S-123 to S-122 including all integrated conveyance canals.

4. The C-100 canal upstream of S-123 to S-118 including all integrated conveyance canals.

(b) Surface water flows depicted on Figures 3-3.A and 3-3.B through S-21 derived from the following contributing canal reaches:

1. The L-31E borrow canal upstream of S-21 to the canal terminus.

2. The C-1 canal upstream of S-21 to S-122 and S-149 including all integrated conveyance canals.

3. The C-1 canal upstream of S-21 to the C-1W canal and S-338 including all integrated conveyance canals.

(c) Surface water flows depicted on Figures 3-4.A and 3-4.B which is the combined flow through S-21A, S-20G, and S-20F as derived from the following contributing canal reaches:

1. The C-102 canal connecting to the C-102 N canal upstream of S-21A to S-195.

2. The C-102 canal upstream of S-21A to S-165

3. The L-31E borrow canal upstream of S-21A to its terminus near S-21 including the Gould’s Canal.

4. The L-31E borrow canal upstream of S-21A south to S-20G.

5. The Military canal upstream of S-20G.

6. The C-103 canal upstream of S-20F to S-179.

7. The L-31E borrow canal upstream of S-20F to S-20G including all integrated conveyance canals.

8. The L-31E borrow canal from S-20F south to the North Canal.

9. The North Canal.

10. The L-31E borrow canal from S-20F south to the Florida City Canal.

11. The Florida City Canal from Southwest 107th Avenue to its confluence with the L-31E borrow canal.

Notwithstanding the above, presently existing legal uses for the duration of a permit existing on _________ are determined to be not contrary to the public interest pursuant to Section 373.223(4), F.S.

Reservations contained in the section shall be reviewed in light of changed conditions or new information.

Rulemaking Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.016, 373.026, 373.036, 373.1501, 373.1502, 373.219, 373.223, 373.4592, 373.4595, 373.470 FS. History–New _____________.

 

APPENDIX 1 LOWER WEST COAST PLANNING AREA

TO CHAPTER 40E-10

1-1 LEGAL DESCRIPTION OF PICAYUNE STRAND AS DEFINED IN SUBSECTION 40E-10.021(1):

No change to legal description

Figure 1 renamed Figure 1-2

Figure 2 renamed Figure 1-3

Figure 3.A renamed Figure 1-4.A

Figure 3.B renamed Figure 1-4.B

Figure 3.C renamed Figure 1-4.C

Figure 4.A renamed Figure 1-5.A

Figure 4.B renamed Figure 1-5.B

Figure 4.C renamed Figure 1-5.C

Figure 5.A renamed Figure 1-6.A

Figure 5.B renamed Figure 1-6.B

Figure 5.C renamed Figure 1-6.C

Figure 6.A renamed Figure 1-7.A

Figure 6.B renamed Figure 1-7.B

Figure 6.C renamed Figure 1-7.C

Figure 7.A renamed Figure 1-8.A

Figure 7.B renamed Figure 1-8.B

Figure 7.C renamed Figure 1-8.C

Figure 8.A renamed Figure 1-9.A

Figure 8.B renamed Figure 1-9.B

Figure 8.C renamed Figure 1-9.C

Figure 9.A renamed Figure 1-10.A

Figure 9.B renamed Figure 1-10.B

Figure 9.C renamed Figure 1-10.C

Figure 10.A renamed Figure 1-11.A

Figure 10.B renamed Figure 1-11.B

Figure 10.C renamed Figure 1-11.C

Figure 3-1 renamed Figure 2-1

Figure 3-2 renamed Figure 2-2

New Figure 3-1 Nearshore Central Biscayne Bay Reservation Water Body and Protected Canal Reaches – see www.sfwmd.gov/rules

New Figure 3-2.A – Surface Water Flow from the C-100 canal through S-123 into Biscayne Bay during the wet season (June-October) (1986 – 2011) – see www.sfwmd.gov/rules

New Figure 3-2.B – Surface Water Flow from the C-100 canal through S-123 into Biscayne Bay during the dry season (November-May) (1986 – 2011) – see www.sfwmd.gov/rules

New Figure 3-3.A – Surface Water Flow from the C-1 canal through S-21 into Biscayne Bay during the wet season (June-October) (1986 – 2011) – see www.sfwmd.gov/rules

New Figure 3-3.B – Surface Water Flow from the C-1 canal through S-21 into Biscayne Bay during the dry season (November-May) (1986 – 2011) – see www.sfwmd.gov/rules

New Figure 3-4.A – Surface Water Flow from the C-102+Military+C-103 canal through S-21A+S-20G+S-20F into Biscayne Bay during the wet season (June-October) (1986 – 2011) – see www.sfwmd.gov/rules

New Figure 3-4.B – Surface Water Flow from the C-102+Military+C-103 canal through S-21A+S-20G+S-20F into Biscayne Bay during the dry season (November-May) (1986 – 2011) – see www.sfwmd.gov/rules

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Don Medellin, Scientist Principal

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 14, 2013

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: November 14, 2012