To implement an interim regulatory strategy for protecting the public interest against excessive stress on the water resources of Central Florida due to the consumptive use of water, providing for allocations of available groundwater and expeditious ...

 

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: To implement an interim regulatory strategy for protecting the public interest against excessive stress on the water resources of Central Florida due to the consumptive use of water, providing for allocations of available groundwater and expeditious development of supplemental water supply projects to avoid the adverse effects of competition as well as harm to the water resources.
SUMMARY: The proposed rules identify an area (the Central Florida Coordination Area, or CFCA) in which stress on the water resources is rapidly increasing because of escalating withdrawals of groundwater for consumptive use. The rules provide an interim regulatory framework for the portion of the CFCA lying within the jurisdictional boundaries of the Southwest Florida Water Management District (SWFWMD); other portions of the CFCA lie within the South Florida Water Management District and the St. Johns River Water Management District, which are also proposing to adopt rules similar to this one. The CFCA in the SWFWMD includes all of Polk County and southwestern Lake County located in the SWFWMD. Under the proposed rules, water supply utilities and similar applicants proposing to withdraw groundwater in the CFCA will generally be restricted to no more than their demonstrated 2013 demands. Such an applicant may be issued a permit with a duration of up to 20 years for its 2013 demand if the applicant develops and uses at least one supplemental water supply project (SWS) to meet all the increase in quantity above its demonstrated 2013 demand for the duration of the permit. Alternatively, the applicant may demonstrate that SWS development is infeasible for all the increase above its 2013 demand. In this case, the applicant must maximize use of SWS to meet as much of the increase as is feasible and use SWS for the remainder of the increase when provided by others at an economically feasible cost. Public supply utilities or similar applicants will be restricted to permit durations of no more than December 31, 2013, if such applicants do not develop SWS projects or use SWS to meet as much of their increases above 2013 demands as is feasible. The rules also provide clarifying definitions, a statement of intent, exceptions to the restrictions on groundwater allocations, including exceptions for withdrawals within the Southern Water Use Caution Area within the SWFWMD, a map and description of the portion of the CFCA lying within the SWFWMD, a description of CFCA permit conditions, and a sunset provision.
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, 373.103, 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, 373.236, 373.239, 373.243 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Karen A. Lloyd, Assistant General Counsel, Office of General Counsel, 2379 Broad Street, Brooksville, FL 34604-6899, [phone], extension 4651

THE FULL TEXT OF THE PROPOSED RULE 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 for Water Use Permit Applications” (8/07) and Part D, “Requirements for the Estimation of Permanent and Temporal Service Area populations in the Southern Water Use Caution Area” (/07) (1/07), of the Water Use Permitting Manual;

(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, 8-23-07,________.

 

40D-2.321 Duration of Permits.

(1) through (6) No change.

(7) Subject to the limitations on groundwater allocations explained in the provisions under the heading “Requirements for aPPLICANTS FOR GROUNDwATER WITHDRAWALS WITHIN THE Central Florida Coordination Area” set forth in Section 3.6 of the Basis of Review (“the Provisions”), within the Central Florida Coordination Area the maximum permit duration for a Public Supply Utility applicant or Similar Applicant proposing to withdraw groundwater shall be limited to December 31, 2013, unless the applicant will satisfy the requirements of B.2.a., or b., of the Provisions. If the applicant satisfies the requirements of B.2.a., or b., the permit duration shall be up to 20 years.

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. In this area, stress on the water resources is escalating because of rapidly increasing withdrawals of groundwater. The public interest requires protection of the water resources from harm. The CFCA rules address the public interest by providing an interim regulatory framework to allow for the allocation of available groundwater in the area, subject to avoidance and mitigation measures to prevent harm, and by requiring the expeditious implementation of Supplemental Water Supply projects (as defined in Section 3.6 of the Basis of Review). This interim 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, alternative water supply project funding and water resource investigations and analysis that will result in a long-term approach for water supply within the CFCA. The effective date of implementation of the interim CFCA rules is [effective date]. The interim CFCA rules shall remain in effect only through December 31, 2012, except that if the District initiates rulemaking to provide a long-term regulatory framework to replace the interim rules and a petition challenging all or part of the proposed rules is filed under Section 120.56 of the Florida Statutes before that date, the interim rules shall remain effective until 100 days after a final determination of the validity or invalidity of the proposed rules.

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. Applications for groundwater withdrawals located within the areas encompassed both by the SWUCA, as described in paragraph 40D-2.801(3)(b), F.A,C., or deemed within the SWUCA pursuant to subparagraph 40D-2.801(3)(b)5., F.A.C., above, and the District’s portion of the CFCA as described in paragraph 40D-2.801(3)(c), F.A.C., shall only be subject to 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 groundwater withdrawals within the SWUCA. The CFCA provisions shall not be applicable to those permits. These provisions are in addition to all other regulations set forth in Chapter 40D-2, F.A.C., and Parts B and D of the Water Use Permit Information Manual.

3. Regulations applicable to the CFCA are specified in Rule 40D-2.321 and paragraph 40D-2.801(3)(c), F.A.C., and in Sections 1.9, 3.6 and 6.2 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 groundwater withdrawal point within the CFCA.

4. Special requirements for Public Supply Utility applicants for groundwater withdrawals are explained in the provisions under the heading “Requirements for aPPLICANTS FOR GroundWATER WITHDRAWALS WITHIN THE Central Florida Coordination Area” set forth in Sections 1.9, 3.6 and 6.2 of the Basis of Review described in Rule 40D-2.091, F.A.C. In addition, a Similar Applicant, as defined in Section 3.6 of the Basis of Review, is subject to those requirements.

5. In adopting the interim CFCA rules, the District acknowledges the increasing stress on the water resources in the CFCA and the mandate of the legislature to foster the development of additional water supplies and avoid the adverse effects of competition. However, the interim CFCA rules do not abrogate the rights of the Governing Board or of any other person under Section 373.233, F.S. The CFCA regulatory framework provides a comprehensive strategy for interim allocations of available groundwater and expeditious development of supplemental water supply projects to minimize competition and thereby provide greater certainty of outcome than competition.

6. Any Public Supply Utility applicant, or Similar Applicant described in subparagraph 40D-2.801(3)(c)4., F.A.C., above, with an existing or proposed groundwater withdrawal point within the boundaries of the CFCA is deemed to be within the CFCA, provided that the regulation of that withdrawal is governed by subparagraph 40D-2.801(3)(c)2., F.A.C., above.

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,________.

 

Figure 2-2

 

Basis of Review for Water Use Permits:

1.9 PERMIT DURATION

1. through 5. No change.

6. Subject to the limitations on groundwater allocations explained in the provisions under the heading “Requirements for aPPLICANTS FOR GROUNDwATER WITHDRAWALS WITHIN THE Central Florida Coordination Area” set forth in Section 3.6 of the Basis of Review (“the Provisions”), within the Central Florida Coordination Area the maximum permit duration for a Public Supply Utility or Similar Applicant proposing to withdraw groundwater shall be limited to December 31, 2013, unless the applicant will satisfy the requirements of B.2.a. or b., of the Provisions. If the applicant satisfies the requirements of B.2.a. or b., the permit duration shall be up to 20 years.

6.7. No change.

Amended ________, 2007

 

3.6 PUBLIC SUPPLY

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

A. The following definitions shall apply within the CFCA.

1. “Brackish Groundwater” – groundwater in or below the Lower Floridan Aquifer that has chloride concentrations at or above 1000 milligrams per liter (mg/L) or total dissolved solids concentrations at or above 1500 mg/L.

2. “Demonstrated 2013 Demand” – the quantity of water that an applicant establishes it will need to meet demands in 2013.

3. “Due Diligence” – Taking all actions that a reasonably prudent person would take to meet the schedule requirements in the permit for developing and using all required supplemental water supplies. Particular circumstances beyond the permittee’s control will be considered in determining whether due diligence has been exercised.

4. “Public Supply Utility” – any municipality, county, regional water supply authority, special district, publicly or privately owned water utility, or multi-jurisdictional water supply authority, that provides water for use by the general public.

5. Saltwater – ground or surface water having chloride concentrations at or above 19,000 milligrams per liter (mg/L).

6. Similar Applicant – an applicant, other than a Public Supply Utility, whose projected water demand after 2013, will exceed its Demonstrated 2013 Demand.

7. Supplemental Water Supply – surface water, stormwater, water that is reused after one or more public supply, municipal, industrial, commercial or agricultural uses, and saltwater. Brackish groundwater may be considered a Supplemental Water Supply if it can be developed in a manner that will not cause or contribute to harmful impacts from cumulative groundwater withdrawals in the CFCA. This definition shall not govern the District’s funding decisions made pursuant to Section 373.1961(3), F.S.

B. The following requirements shall apply to any Public Supply Utility applicant and Similar Applicants proposing to withdraw groundwater in the CFCA.

1. Except as provided for in paragraph 2. below, an applicant will be restricted to a maximum allocation of groundwater in an amount no greater than 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 whose projected water demand after 2013 will exceed its Demonstrated 2013 Demand must:

a. Identify at least one specific Supplemental Water Supply project that the applicant will develop (either singly or in concert with others) and use to meet all the increase in quantity above its Demonstrated 2013 Demand, for the duration of the permit; and provide for each identified project a project development schedule, with milestones that when followed, will result in the applicant using Supplemental Water Supply by the end of 2013; or

b. Provide the following:

i.   A demonstration that the development (either singly or in concert with others) of sufficient Supplemental Water Supply to meet all the increase in quantity above its Demonstrated 2013 Demand is not economically, environmentally, or technically feasible; and

ii.   Verification that will establish that the applicant will maximize the use of Supplemental Water Supply 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 water from one or more Supplemental Water Supply projects when provided by others at a cost that is economically feasible. The affordability of an increase in water rates for a Public Supply Utility’s customers is a consideration in evaluating economic feasibility; however, an increase in water rates shall not, by itself, constitute economic infeasibility.

3. The restriction in paragraph B.1. immediately above on groundwater allocations to an amount no greater than a permittee’s Demonstrated 2013 Demand shall not limit permitted groundwater withdrawals from:

a. Aquifer storage and recovery wells that receive only surface water, stormwater, or water that is reused after one or more public supply, municipal, industrial, commercial or agricultural uses, when the volume of water withdrawn does not exceed the volume of water injected, or

b. The surficial aquifer immediately below or adjacent to a stormwater management system or surface water reservoir where any drawdown in the surficial aquifer will be offset by recharge from the system or reservoir, or

c. An injection/recovery wellfield that injects surface water, stormwater, or water that is reused after one or more public supply, municipal, industrial, commercial or agricultural uses that is not provided to users in accordance with District rules, through one or more wells for storage within an aquifer zone and subsequently recovers it through wells from the same aquifer zone and in the same wellfield, when the volume of water withdrawn does not exceed the volume of water injected; or

d. A recharge/recovery project that receives only surface water, stormwater, or water that is reused after one or more public supply, municipal, industrial, commercial or agricultural uses that is not provided to users in accordance with District rules, when the volume of water recovered does not exceed the volume of water recharged, and the drawdown due to recovery of water from the Floridan aquifer will be offset in the:

i.     Surficial aquifer by recharge from the project, and

ii.    Floridan aquifer by recharge from the project, except immediately adjacent to the recovery well(s).

4. In determining the amount of Supplemental Water Supply that must be used as set forth in paragraph B.2. above, the applicant may subtract the portion of its demand that the applicant demonstrates will be satisfied by water conservation and the sources identified in paragraphs B.3.a., b., c. and d immediately above, in effect after 2013.

5. A permittee that will lack sufficient Supplemental Water Supply after 2013 from which to obtain the increase in quantity above its Demonstrated 2013 Demand can be allocated a temporary amount of groundwater to meet that increase only if it has exercised Due Diligence to meet all schedule requirements in the permit for developing and using Supplemental Water Supply and providing that 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 cease when water from the Supplemental Water Supply project becomes available.

 

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 with groundwater 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 Groundwater Withdrawals Within The Central Florida Coordination Area”.

Amended 1-1-07, _______, 2007

 

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 groundwater 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. Expeditious development and use of Supplemental Water Supply to meet water demands.

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

6. The reduction in allocation or other 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. The permittee shall be provided with notice and an opportunity for a hearing under Chapter 120, F.S., if the District makes such a reduction or other modification.

New_____, 2007

NAME OF PERSON ORIGINATING PROPOSED RULE: Karen A. Lloyd, Assistant General Counsel, Office of General Counsel, 2379 Broad Street, Brooksville, FL 34604-6899, [phone], extension 4651
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Southwest Florida Water Management District Governing Board
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 28, 2007
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: November 3, 2006, April 20, 2007