To address water supply availability issues within the Lake Okeechobee Service Area by amending consumptive use criteria which will also serve as a component of the Lake Okeechobee minimum flow and level recovery strategy. Undertaking this rule ...

 

WATER MANAGEMENT DISTRICTS
South Florida Water Management District

RULE NO: RULE TITLE
40E-2.091: Publications Incorporated by Reference
PURPOSE AND EFFECT: To address water supply availability issues within the Lake Okeechobee Service Area by amending consumptive use criteria which will also serve as a component of the Lake Okeechobee minimum flow and level recovery strategy. Undertaking this rule development is in response to lower Lake management levels and storage under the newly adopted U.S. Army Corps of Engineers’ interim Lake Okeechobee Regulation Schedule.
SUMMARY: The proposed rules include criteria which will affect applications for consumptive use permits requesting withdrawal of surface water from Lake Okeechobee or hydraulically connected systems. The proposed criteria requires permit applicants to demonstrate the requested allocation will not cause a net increase in the volume of surface water withdrawn from Lake Okeechobee over the base condition water use. Moreover, the criteria states allocation of water to new public water supply uses above the general permit threshold is determined to be incompatible with the Lake Okeechobee water supply source.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
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.
SPECIFIC AUTHORITY: 373.044, 373.113, 373.118, 373.171 FS.
LAW IMPLEMENTED: 373.042, 373.0421, 373.109, 373.196, 373.219, 373.223, 373.224, 373.229, 373.232, 373.233, 373.236, 373.239, 373.250 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: August 14, 2008, 9:00 a.m.
PLACE: South Florida Water Management District, B-1 Auditorium, 3301 Gun Club Road, West Palm Beach, FL 33406
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, 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 IS: Jim Harmon, Director, Water Use Permitting Division, South Florida Water Management District, P. O. Box 24680, West Palm Beach, FL 33416-4680, 1(800)432-2045, ext. 6777 or [phone], email: [e-mail] or Beth Ross, Senior Specialist Attorney, South Florida Water Management District, P. O. Box 24680, West Palm Beach, FL 33416-4680, 1(800)432-2045, ext. 6257 or [phone], email: [e-mail]. For procedural questions, contact Jan Sluth, Paralegal, South Florida Water Management District, P. O. Box 24680, West Palm Beach, FL 33416-4680, 1(800)432-2045, ext. 6299 or [phone], email: [e-mail]

THE FULL TEXT OF THE PROPOSED RULE IS:

40E-2.091 Publications Incorporated by Reference.

The “Basis of Review for Water Use Permit Applications within the South Florida Water Management District – _______________ February 13, 2008”, 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, 373.118, 373.171 FS. Law Implemented 373.042, 373.0421, 373.109, 373.196, 373.219, 373.223, 373.224, 373.229, 373.232, 373.233, 373.236, 373.239, 373.250 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, 4-23-07, 9-13-07, 2-13-08,_________.

 

Basis of Review for Water Use Permit Applications within the SFWMD

3.2.1 Restricted Allocation Areas

(G)The following restrictions shall apply when allocating surface water derived from the Lake Okeechobee Waterbody for consumptive use within the Lake Okeechobee Basin as defined in Section 1.7.3. This rule is a component of the recovery strategy for minimum flows and levels for Lake Okeechobee, as set forth in Chapter 40E-8, F.A.C., to address lower lake management levels and storage under the U. S. Army Corps of Engineers’ interim Lake Okeechobee Regulation Schedule (LORS), adopted to protect the public health and safety (April 28, 2008). Compliance with this rule along with the other criteria contained in the Basis of Review implements the objectives of the District to protect the public health and safety, to prevent interference among legal users of Lake water, to be consistent with the MFL recovery strategy as defined in Rule 40E-8.421, F.A.C., and to ensure that water necessary for Everglades restoration is not allocated for consumptive use.

(1)The rule applies to applications for new projects, modifications to existing projects, and permit renewals for existing projects located within the Lake Okeechobee Basin as described in Section 1.7.3, that propose to use surface water from the “Lake Okeechobee Waterbody,” defined as:

(a)Lake Okeechobee as identified in subsection 40E-8.021(12), F.A.C.; or

(b)Integrated conveyance systems that are hydraulically connected to and receive water from Lake Okeechobee such as the Caloosahatchee River, the St Lucie Canal, or secondary canal systems that receive Lake Okeechobee water for water supply purposes via gravity flow or by pump.

This section does not apply to groundwater withdrawals such as withdrawals from wells, mining, and dewatering, or to projects that request to use a volume of water from the Lake Okeechobee Waterbody below the threshold contained in paragraph 40E-20.302(1)(a), F.A.C.

(2)Except as otherwise provided in this section, an applicant must demonstrate the requested allocation will not cause a net increase in the volume of surface water withdrawn from the Lake Okeechobee Waterbody over the “base condition water use” as defined in paragraphs (a) through (d), below but in no case shall exceed the withdrawal authorized to the applicant as of October 29, 2008. In determining the base condition water use, pursuant to paragraphs (a) through (d) below, the District shall consider and allow adjustments if the applicant demonstrates that such use is not representative of normal operations due to unanticipated conditions affecting the actual quantity of water withdrawn, such as extreme climatic conditions or equipment failure.

(a)Public Water Supply Use Class: the maximum quantity of water withdrawn by the applicant from the Lake Okeechobee Waterbody during any consecutive twelve month period between April 1, 2001 and October 29, 2008. If a permit allocation existing on October 29, 2008 contains an allocation based on a conversion of a water treatment system, the base condition water use shall be increased to account for treatment losses of the new treatment plant as if the treatment system was operational during the above stated time interval;

(b)Irrigation Use Class: the quantity of water calculated using Section 2.3.and 3.9.1 to meet demands for:

(i)The maximum number of acres actively irrigated by the applicant from April 1, 2001 and October 29, 2008. When determining the numbers of acres actively irrigated, data regarding historic crop plantings will be evaluated however short term reductions in historic plantings caused by disease or poor market conditions are not to be used in determining the actively irrigated acreage; or

(ii)If the irrigation project, or a portion thereof, has been authorized but not yet constructed pursuant to the conditions of a surface water management construction or environmental resource permit or authorization existing on October 29, 2 008, the base condition water use will be calculated based on the number of acres and crop type identified in the environmental resource and water use permit or authorization in place as of October 29, 2008;

(c)Diversion and Impoundment Use Class: the demands of the applicant calculated pursuant to Section 2.7.2 for the physical conditions of the diversion and impoundment system as of October 29, 2008. In situations where historic uses were supplied by the diversion and impoundment project but not expressly identified or incorporated in the diversion and impoundment permit, the base case condition water use will be as calculated to include the historic demands served by the diversion and impoundment project between April 1, 2001 and October 29, 2008.

(d)Other Use Classes: the maximum quantities of water withdrawn by the applicant (annual and maximum month) between April 1, 2001 and October 29, 2008.

(3)Applicants shall provide reasonable assurances that the proposed use will not increase the base condition water use from the Lake Okeechobee Waterbody. Demonstration that the proposed use will not increase the base condition water use is provided when the following criteria are met on a project scale:

(a)Permit Renewals: The requested volume for permit renewal is no greater than the project’s base condition water use calculated pursuant to subsection (2) above.

(b)Modifications that Reduce the Base Condition Water Use: The requested modification results in a reduction in the project’s base condition water use. Examples of modifications that could result in a reduction in the project’s base condition water use include a reduction in irrigated acreage or change in crop type or irrigation efficiency that lowers water demands. The applicant will be required to calculate the reduction in the project’s base condition water use associated with the requested modification.

(c)Except for those uses as identified in subsection (4) as an incompatible use, allocations above the project’s base condition water use as identified in subsection (2) above will be provided from the following sources:

(i)Certified Project Water. Water provided from an operational water resource development project, as defined in Section 373.019(22), Florida Statutes, that has been certified by the Governing Board for allocation to consumptive uses, as defined in Section 1.8;

(ii)Lake Okeechobee Waterbody Withdrawals Offset by Alternative Sources. An alternative source of water that is demonstrated to replace the volume, including timing, of water proposed to be withdrawn from the Lake Okeechobee Waterbody over the base condition water use. Examples of offsets include recharge provided by reclaimed water applied to provide recharge to the Waterbody in equal or greater amounts than the proposed increase over the base condition water use;

(iii)Alternative Water Supply. Water provided from a source not restricted under this section such as groundwater, reclaimed wastewater or stored stormwater; or

(iv)Terminated or Reduced Base Condition Water Use: Water made available through the termination or reduction of other base condition water uses after October 29, 2008, unless the Governing Board determines that such retired or reduced base condition water use is demonstrated to improve the performance of an MFL waterbody under recovery in terms of shortening the frequency or duration of projected MFL violations or improve the performance of meeting a restoration target as defined in an approved District restoration plan or project.

(4)Incompatible Use Type: Requested allocations for new public water supply uses that exceed the thresholds in paragraph 40E-20.302(1)(a), F.A.C., or increases in existing uses above the project’s base condition water use calculated pursuant to paragraph (2)(a), above, shall not be permitted from the Lake Okeechobee Waterbody. Temporary requested increases over the project’s base condition water use from the Lake Okeechobee Waterbody may be granted to accommodate increased demands during a reasonable time period while alternative sources are constructed. The duration of the temporary increase shall be determined based on a construction schedule for the alternative source implemented with due diligence.

NAME OF PERSON ORIGINATING PROPOSED RULE: Jim Harmon, Director, Water Use Permitting Division
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: South Florida Water Management District Governing Board
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 12, 2008
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: January 18, 2008