Publications Incorporated by Reference

 

WATER MANAGEMENT DISTRICTS
South Florida Water Management District

RULE NO: RULE TITLE
40E-2.091: Publications Incorporated by Reference

NOTICE OF CHANGE

Notice is hereby given that the following changes have been made to the proposed rule in accordance with subsection 120.54(3)(d)1., F.S., published in Vol. 34, No. 34, August 22, 2008 issue of the Florida Administrative Weekly.

Basis of Review for Water Use Permit Applications within the South Florida Water Management District incorporated by reference in Section 40E-2.091, F.A.C.

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, existing unpermitted 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 at or 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 entire “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 January 1, October 29, 2008 consistent with the conditions of the existing permit.   If a permit allocation existing on January 1 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 Classes: the quantity of water calculated using Sections 2.3 and 3.9.1 considering to meet demands for:

(i)              The maximum number of acres actively irrigated by the applicant between from April 1, 2001 and January 1, October 29 2008 along with the associated crop type and irrigation method used. 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 (construction) permit or authorization existing on January 1, October 29 2008, 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 January 1 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 January 1 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 January 1 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 January 1 October 29, 2008, consistent with the conditions of the existing permit.

(3)Applicants shall provide reasonable assurances that the requested allocation proposed use will not cause a net increase in the volume of surface water withdrawn from the Lake Okeechobee Waterbody over the entire base condition water use increase the base condition water use from the Lake Okeechobee Waterbody. This dDemonstration that the proposed use will not increase the base condition water use is provided when the following criteria are met on a project by project scale as calculated pursuant to subsection 3.2.1.(G)(2), above:

(a)              Permit Renewals: Those projects which timely seek re-issuance of a previous permit without modifications. 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 Maintain or Reduce the Base Condition Water Use calculated pursuant to the existing permit: The requested modification results in a reduction in the project’s base condition water use. Examples of such modifications that could result in a reduction in the project’s base condition water use include changes to withdrawal facilities, a reduction in irrigated acreage, change in crop type within the permitted use class, or irrigation efficiency that results in an allocation that is equal to or less than the project’s base condition water use calculated pursuant to the existing permit lowers water demands. In the event that the modification results in a use that is less than the project’s base condition water use tThe applicant will be required to calculate the reduction from in the project’s base condition water use associated with the requested modification.

(c)              New Projects, Existing Unpermitted Projects, or Modifications Requesting Base Condition Water Use in Excess of the Amount Calculated Pursuant to the Previous Permit: Except for those uses as identified in subsection (4) as an incompatible use, allocations above or equal to 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)              Unassigned, Terminated, or Reduced Base Condition Water Use.: The requested allocation is for available base condition water use calculated pursuant to paragraph 3.2.1.(G)(2), above, that was not authorized by an existing permit (i.e. “unassigned”), permitted base condition water use that has been made available through a permit which was terminated after January 1, 2008, or water made available pursuant to a modification made after January 1, 2008 which reduced the permitted base condition water use of an existing permit. In the event of competition for allocation of available base condition water use, those projects that seek an allocation of water in volumes equal to or less than that which was previously permitted to that project and/or used by that project shall be a positive consideration when determining which project best serves the public interest. Prior to February 28, 2010, Water made available through the termination or reduction of other base condition water uses after October 29, 2008, unless the Governing Board reserves the right to restrict the re-allocation of terminated base condition water use if it determines that such water 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 while also considering if alternative water supplies are available, whether the proposed use is ancillary to an agricultural use and other relevant public interest considerations. On or after February 28, 2010, the Governing Board reserves the right to restrict the re-allocation of unassigned, terminated, or reduced base condition water use, if it determines that such water 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 while also considering if alternative water supplies are available, whether the proposed use is ancillary to an agricultural use and other relevant public interest considerations.

(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 Rrequesteds for temporary increases over the project’s base condition water use from the Lake Okeechobee Waterbody shall may be granted to accommodate increased demands during a reasonable time period while alternative sources are constructed provided all other consumptive use permit criteria are satisfied. The duration of the temporary increase shall be determined based on a construction schedule for the alternative source to be implemented with due diligence and defined in permit conditions. Additionally, the permit shall include requirements to reduce the allocation to the base condition water use in accordance with this construction schedule.