The District is re-initiating rule development to amend its consumptive use permitting and water supply related program rules as part of the Florida Department of Environmental Protection's statewide effort to improve consistency among the water ...

 

WATER MANAGEMENT DISTRICTS

South Florida Water Management District

RULE NOS.:RULE TITLES:

40E-8.011Purpose and General Provisions

40E-8.421Prevention and Recovery Strategies

40E-8.431Consumptive Use Permits

PURPOSE AND EFFECT: The District is re-initiating rule development to amend its consumptive use permitting and water supply related program rules as part of the Florida Department of Environmental Protection's statewide effort to improve consistency among the water management districts (referred to as CUP Consistency or CUPCon). This re-initiation of rule development will cure discrepancies between the versions of rules that were published on December 10, 2013, and acted on by the Governing Board on February 13, 2014, as well as correct some inadvertent text inaccuracies. There are no substantive changes to the rule text as adopted by the Governing Board in February 2014.

SUMMARY: The amendments to this chapter include deleting references to repealed rules and replacing references to the Basis of Review with the Applicant's Handbook.

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 proposed amendments are non-substantive and have no impact on small business or increased regulatory costs.

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 proposed amendments are non-substantive; no SERC or legislative ratification is required.

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: 373.019, 373.103(1), 373.106, 373.303, 373.306, 373.308, 373.309, 373.313, 373.314, 373.316, 373.319, 373.323, 373.326, 373.329, 373.333, 373.342 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW (IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):

DATE AND TIME: July 10, 2014, 9:00 a.m.

PLACE: South Florida Water Management District, B-1 Auditorium, 3301 Gun Club Road, West Palm Beach, FL 33406

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Steven Memberg, Water Use Policy Principal Scientist, South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, FL 33406, telephone: [phone], ext. 2133 or [phone], email: [e-mail] or Jennifer Bokankowitz, Attorney, South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, FL 33406, telephone: [phone], ext. 2258 or [phone], email: [e-mail]. For procedural questions contact Jan Sluth, Paralegal, South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, FL 33406, telephone: [phone], ext. 6299 or [phone], email: [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

40E-8.011 Purpose and General Provisions.

(1) through (3) No change.

(4) The recovery and prevention strategies set forth in Rule 40E-8.421, F.A.C., the consumptive use permitting procedures described in paragraph 40E-2.301(1)(i), Rule 40E-8.431, F.A.C., Section 3.9 of the “Applicant’s Handbook Basis of Review for Water Use Permit Applications within the South Florida Water Management District,”, incorporated by reference in Rules 40E-2.091 and 40E-20.091, F.A.C., the water shortage plan implementation provisions specified in Rules 40E-8.441, 40E-21.531, and 40E-21.541, F.A.C., and Part III of Chapter 40E-22, F.A.C., are inseparable components of the MFLs established in Rules 40E-8.321 and 40E-8.331, F.A.C. The District would not have adopted the MFLs set forth in Rules 40E-8.321 and 40E-8.331, F.A.C., for Lake Okeechobee, the Everglades, the Biscayne Aquifer, the Lower West Coast Aquifers, and the Caloosahatchee River without simultaneously adopting their related implementation rules. If the rules cited above, as they pertain to a specified MFL water body, are found to be invalid, in whole or in part, such specified minimum flow(s) or level(s) in Rule 40E-8.321 or 40E-8.331, F.A.C., (including Lake Okeechobee, Everglades, Biscayne Aquifer, Lower West Coast Aquifers, Caloosahatchee River) (month, year) shall not be adopted, or if already in effect, shall not continue to be applied, until the District amends the applicable regional water supply plan(s), as necessary, and amends the subject rules, as necessary to address the reason for invalidity consistent with the requirements of Section 373.0421, F.S. This section shall be triggered after a rule is found to be invalid pursuant to a final order issued under Section 120.56, F.S., and after appellate review remedies have been exhausted.

(5) No Change.

Rulemaking Authority §§ 9, 10 P.L. 83-358, 373.044, 373.113, 373.171 FS. Law Implemented 373.016, 373.036, 373.0361, 373.042, 373.0421 FS. History–New 9-10-01, Amended 4-1-03, 1-19-06, 10-23-12,________.

 

40E-8.421 Prevention and Recovery Strategies.

(1) At the time of adoption of this rule, the existing flow or level for certain specified water bodies is below, or within 20 years is projected to fall below, the applicable MFL. For this reason, Section 373.709 373.0361, F.S., requires regional water supply plans to contain recovery and prevention strategies, including water resource development and water supply development projects that are needed to achieve compliance with MFLs during the planning period. The implementation of such projects will allow for the orderly replacement or enhancement of existing water sources with alternative supplies in order to provide sufficient water for all existing and projected reasonable-beneficial uses, consistent with Section 373.0421, F.S.

(a) through (b) No Change.

(c) The rules implementing water resource protection tools, including Chapters 40E-2, 40E-8, 40E-20, 40E-21, 40E-22, F.A.C., and the “Applicant’s Handbook Basis of Review for Water Consumptive Use Permits Applications wWithin the South Florida Water Management District,”, incorporated by reference in Rules 40E-2.091 and 40E-20.091, F.A.C., identify the specific factors and conditions that will be applied and considered in implementing the conceptual model. Due to the extreme variations in water resource conditions, climatic conditions, hydrologic conditions, and economic considerations that will be faced when implementing these rules, it is critical to apply such criteria flexibly and to reserve for the governing board the ability to implement water resource protection and allocation programs considering all of the District’s missions under Chapter 373, F.S., and to balance water supply, flood protection, resource protection and water quality protection needs. Implementation of the recovery and prevention strategies will be achieved in compliance with the assurances to consumptive users and to natural systems contained in the LEC Plan and the LWC Plan.

(d) through (f) No change.

(2) No change.

(3) Biscayne Aquifer. The LEC Plan contains an approved prevention strategy for the Biscayne Aquifer pursuant to Section 373.0421, F.S., which consists of the following:

(a) No change.

(b) Apply conditions for permit issuance in Chapter 40E-2 or 40E-20, F.A.C., to prevent the harmful movement of saltwater intrusion up to a 1-in-10 year level of certainty;

(c) through (e) No change.

(4) through (5) No change.

(6) Northwest Fork of the Loxahatchee River Recovery Strategy: Purpose and Intent.

(a) The Northwest Fork of the Loxahatchee River is currently not meeting the MFL and requires implementation of a recovery strategy to achieve the MFL as soon as practicable, consistent with Section 373.0421, F.S. The recovery strategy consists of projects contained within the following approved plans: the Lower East Coast Regional Water Supply Plan (LEC Plan), the Comprehensive Everglades Restoration Plan (CERP), and the Northern Palm Beach County Comprehensive Water Management Plan (NPBCCWMP). Four phases of recovery are identified in the Technical Documentation to Support Development of Minimum Flows and Levels for the Northwest Fork of the Loxahatchee River, November 2002, which are projected to increase flows to meet the MFL for the Northwest Fork of the Loxahatchee River. As part of the recovery strategy, as provided in this rule, the consumptive use permitting and water shortage requirements in this Chapter and Chapters 40E-2, 40E-20, and 40E-21, F.A.C., and the “Applicant’s Handbook Basis of Review for Water Use Permit Applications within the South Florida Water Management District,”, incorporated by reference in Rules 40E-2.091 and 40E-20.091, F.A.C., including Subsection Section 3.2.1.E. regarding Restricted Allocation Areas for Lower East Coast Everglades Waterbodies and North Palm Beach County/Loxahatchee River Watershed Waterbodies, shall apply to consumptive use direct and indirect withdrawals from surface and groundwater sources from the Northwest Fork of the Loxahatchee River and those areas directly tributary to the Northwest Fork.

(b) through (g) No change.

(7) through (8) No change.

Rulemaking Authority §§ 9, 10 P.L. 83-358, 373.044, 373.113, 373.171 FS. Law Implemented 373.016, 373.036, 373.0361, 373.042, 373.0421, 373.175, 373.216, 373.219, 373.223, 373.246 FS. History–New 9-10-01, Amended 11-11-02, 4-1-03, 1-19-06, 12-12-06, 4-23-07, 10-14-08, 10-23-12,________.

 

40E-8.431 Consumptive Use Permits.

(1) Consumptive use permit applications that propose to withdraw water directly or indirectly from a MFL water body, that meet the conditions for permit issuance in Part II of Chapter 373, F.S., (including implementing rules in this chapter, Chapter 40E-2, F.A.C., and the “Applicant’s Handbook for Water Use Permit Applications within the South Florida Water Management District,” Basis of Review, and Chapter 40E-20, F.A.C., as applicable), and are consistent with the approved recovery and prevention strategies under Section 373.0421, F.S., will be permitted. Consumptive use permit applications will be reviewed based on the recovery and prevention strategy approved at the time of permit application review.

(2) through (3) No change.

Rulemaking Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.016, 373.036, 373.0361, 373.042, 373.0421 FS. History–New 9-10-01, Amended________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Maria C. Clemente, Water Use Bureau Chief, Regulation Division

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: May 15, 2014

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: May 9, 2014