The Florida Department of Environmental Protection is leading a statewide effort (referred to as CUPCon) to improve consistency in the consumptive use permitting programs implemented by the water management districts (WMDs). The CUPCon goals ...

 

WATER MANAGEMENT DISTRICTS

South Florida Water Management District

RULE NOS.:RULE TITLES:

40E-20.010Review of General Water Use Permit Applications

40E-20.011Policy and Purpose

40E-20.061Delegation of Authority Pertaining to General Water Use Permits

40E-20.091Publications Incorporated by Reference

40E-20.101Content of General Water Use Permit Applications

40E-20.301Conditions for Issuance of General Water Use Permits

40E-20.302Types of General Water Use Permits

40E-20.321Duration of General Water Use Permits

40E-20.331Modification of General Water Use Permits

40E-20.351Transfer of General Water Use Permits

40E-20.381Limiting Conditions

PURPOSE AND EFFECT: The Florida Department of Environmental Protection is leading a statewide effort (referred to as CUPCon) to improve consistency in the consumptive use permitting programs implemented by the water management districts (WMDs). The CUPCon goals include: 1) making the consumptive use permitting program less confusing for the applicants; 2) treating applicants equitably statewide; 3) providing consistent protection of the environment; 4) streamlining the process; and 5) incentivizing behavior that protects water resources.

SUMMARY: The District is transferring relevant portions of this Chapter, which govern general water use permits, to Chapter 40E-2, F.A.C. Therefore, the rules identified above are proposed for repeal.

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.

These rules are proposed for repeal. Therefore, there is no adverse impact on small business.

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 rules are proposed for repeal and therefore do not meet the threshold.

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: 120.54(5), 120.60, 373.044, 373.083, 373.113, 373.118, 373.171, 373.216 FS.

LAW IMPLEMENTED: 120.54(5), 120.60, 373.036, 373.042, 373.0421, 373.103(1), 373.103(4), 373.118, 373.171, 373.1501, 373.1502, 373.219, 373.223, 373.229, 373.2295, 373.239, 373.470 FS.

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

DATE AND TIME: January 9, 2014, 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's Office, [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: Steven Memberg, Water Use Policy Principal Scientist, South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, FL 33406 [phone], ext. 2133 or [phone], email: [e-mail], or Jennifer Bokankowitz, Esq., South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, FL 33406 [phone], ext. 2258 or [phone], email: [e-mail]. For procedural questions, contact Jan Sluth, CP, FRP, South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, FL 33406 [phone], ext. 6299 or [phone], email: [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

40E-20.010 Review of General Water Use Permit Applications.

General Water Use permit applications are processed pursuant to the provisions of Section 120.60, F.S., and Chapters 40E-1 and 28-106, F.A.C.

Rulemaking Authority 120.54(5), 120.60 FS. Law Implemented 120.54(5), 120.60 FS. History–New 7-2-98, Amended 8-14-02, 10-23-12, Repealed_________.

 

40E-20.011 Policy and Purpose.

(1) The rules in this chapter authorize issuance of general permits for water use for certain specified uses which have been determined by staff review to be reasonable-beneficial, not interfering with existing legal uses and consistent with the public interest pursuant to Section 373.223, F.S. The purpose of this chapter is to set forth the conditions for issuance for all general permits in Rule 40E-20.301, F.A.C., and establish requirements for the various types of general permits available under this chapter in Rule 40E-20.302, F.A.C. Persons conducting uses or withdrawals that are not exempt pursuant to Rule 40E-2.051, F.A.C., and do not qualify for a general water use permit under this chapter are required to obtain individual permits pursuant to Chapter 40E-2, F.A.C.

(2) District staff shall take agency action on applications submitted under this rule pursuant to Section 373.118, F.S., and this chapter. If an application for any proposed water use does not meet the provisions of this chapter, the District will provide the permit applicant with the option to either withdraw the general permit application, or supply the additional information and fee required for an individual permit. In the event one of these options is not selected, staff will recommend that the Governing Board deny the general permit application. Where applicable, criteria in the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District,” incorporated by reference in Rule 40E-20.091, F.A.C., will be utilized to determine whether the conditions for issuance in Rule 40E-20.301, F.A.C., are satisfied.

Rulemaking Authority 373.044, 373.083, 373.113, 373.118 FS. Law Implemented 373.042, 373.0421, 373.083, 373.103(4), 373.118, 373.219 FS. History–New 9-3-81, Formerly 16K-2.032(4), 16K-3.031(4), Amended 4-20-94, 7-11-96, 4-9-97, 12-10-97, 11-4-01, 8-14-02, 8-31-03, 4-23-07, 2-13-08, Repealed_________.

 

40E-20.061 Delegation of Authority Pertaining to General Water Use Permits.

The Governing Board delegates to the Executive Director the authority to issue general water use permits under this chapter pursuant to Section 373.118, F.S. The Executive Director hereby executes such delegated authority through the Chief and supervisors of the Bureau that reviews water use permit applications.

Rulemaking Authority 373.044, 373.113, 373.118 FS. Law Implemented 373.118 FS. History–New 8-14-02, Amended 10-23-12, Repealed_________.

 

40E-20.091 Publications Incorporated by Reference.

The “Basis of Review for Water Use Permit Applications within the South Florida Water Management District” http://www.flrules.org/Gateway/reference.asp?No=Ref-01629, and associated forms incorporated by reference in Rule 40E-2.091, F.A.C., are applicable and reference throughout this chapter.

Rulemaking Authority 373.044, 373.113, 373.118, 373.171 FS. Law Implemented 373.042, 373.0421, 373.103(4), 373.118, 373.171, 373.223, 373.229 FS. History–New 8-14-02, Amended 8-31-03, 4-23-07, 9-13-07, 2-13-08, 10-14-08, 7-2-09, 3-15-10, 3-18-10, 9-26-12, 10-23-12, Repealed_________.

 

40E-20.101 Content of General Water Use Permit Applications.

(1) Except in those circumstances detailed in subsection (4) below, an application for a General Water Use permit shall be filed electronically at www.sfwmd.gov.ePermitting, or at the South Florida Water Management District Regulation Reception Desk, 3301 Gun Club Road, West Palm Beach, FL 33406, or at any of the District’s Service Centers. The addresses and phone numbers of the District’s Service Centers are online at www.sfwmd.gov, “Locations.” Water Use Permit Application, Form No. 0645-W-01, which is incorporated by reference in subsection 40E-2.101(1), F.A.C., shall be filed with the District prior to commencement of any use of water authorized in this chapter. The application for all General Water Use Permits shall contain:

(a) The appropriate permit application processing fee required by Rule 40E-1.607, F.A.C.;

(b) The information required in subsection 373.229(1), F.S.;

(c) Information sufficient to show the use meets the criteria and conditions established in Rules 40E-20.301 and 40E-20.302, F.A.C.; and

(d) Completed application forms, as specified below, signed by the applicant or the authorized agent of the applicant.

(2) Applicants for a Standard General Water Use Permit under subsection 40E-20.302(1), F.A.C., shall submit Form No. 0645-W01, Water Use Permit Application, incorporated by reference in paragraph 40E-2.101(1)(a), F.A.C., and shall include the following forms, if applicable:

(a) Form No. 0645-G60, Table A Description of Wells, incorporated by reference in paragraph 40E-2.101(1)(b), F.A.C., for permits with wells;

(b) Form No. 0645-G61-1, Table B Description of Surface Water Pumps, incorporated by reference in paragraph 40E-2.101(1)(c), F.A.C., for permits with pumps;

(c) Form No. 0645-G61-2, Table C Description of Culverts, incorporated by reference in paragraph 40E-2.101(1)(d), F.A.C., for permits with irrigation culverts;

(d) Form No. 0645-G65, Table D Crop Information, incorporated by reference in paragraph 40E-2.101(1)(e), F.A.C., for agricultural permits;

(e) Form No. 0645-G74, Table E Water Received From or Distributed to Other Entities, incorporated by reference in paragraph 40E-2.101(1)(f), F.A.C., for public water supply permits;

(f) Form No. 0645-G69, Table F Past Water Use & Table G Projected Water Use, incorporated by reference in paragraph 40E-2.101(1)(g), F.A.C., for public water supply permits;

(g) Form No. 0645-G70, Table H Projected Water Use, incorporated by reference in paragraph 40E-2.101(1)(h), F.A.C., for public water supply permits;

(h) Form No. 0645-G71, Table I Water Treatment Method and Losses, incorporated by reference in paragraph 40E-2.101(1)(i), F.A.C., for public water supply permits;

(i) Form No. 0645-G72, Table J Aquifer Storage and Recovery, incorporated by reference in paragraph 40E-2.101(1)(j), F.A.C., for public water supply permits; and

(j) Form No. 0645-G73, Table K Water Supply System Interconnections, incorporated by reference in paragraph 40E-2.101(1)(k), F.A.C., for public water supply permits.

(a) Part RC-1A Administrative Information for Water Use Permit Applications, and

(b) Part RC-1W Application for a Water Use permit (all Standard General Water Use Permits) or Part RC-1G Application for a General Water Use Permit (Standard General Water Use Permits with recommended maximum allocations < 3 million gallons per month).

(3) Applicants for a Dewatering Water Use General Permit under subsection 40E-20.302(2), F.A.C., shall electronically file or file with the District Form 0445, Mining/Dewatering Permit Application, incorporated by reference in subsection 40E-2.101(3), F.A.C.

(4) Applicants are not required to file an application to qualify for a No-Notice Short-Term Dewatering Permit, if the conditions of Rule 40E-20.301 and subsection 40E-20.302(3), F.A.C., are satisfied.

Rulemaking Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.103(1), 373.219, 373.223, 373.229 FS. History–New 8-14-02, Amended 8-31-03 (2), 8-31-03 (3), 10-23-12, Repealed_________.

 

40E-20.301 Conditions for Issuance of General Water Use Permits.

(1) In order to receive a general permit, permit renewal, or permit modification under this chapter, an applicant must provide reasonable assurances that the proposed water use:

(a) Will not cause harmful saline water intrusion;

(b) Will not harm offsite land uses;

(c) Will not cause harm to wetlands or other surface waters;

(d) Will not cause pollution of the water resources;

(e) Is otherwise a reasonable-beneficial use as defined in subsection 373.019(13), F.S., with consideration given to the factors set forth in subsection 62-40.410(2), F.A.C.

(f) Will not interfere with presently existing legal uses;

(g) Is in accordance with Section 373.2295, F.S., concerning interdistrict transfer of groundwater and Section 373.223(3), F.S., concerning water transport and use of groundwater or surface water across county boundaries.

(h) For uses with a recommended maximum allocation which exceeds 3 million gallons per month or uses within a mandatory reuse zone, makes use of a reclaimed water source in accordance with the criteria contained in the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District”, incorporated by reference in Rule 40E-20.091, F.A.C.

(i) Is in accordance with the established minimum flows and levels (MFL) and implementation provisions in Chapter 373, F.S., Chapters 40E-2 and 40E-8, F.A.C.; and

(j) Is consistent with Sections 373.016, 373.1501, 373.1502 and 373.036, F.S., and otherwise is consistent with the public interest as prescribed by Chapter 373, F.S., and this chapter.

(k) Will not withdraw water reserved under Chapter 40E-10, F.A.C.

(2) In order to satisfy the conditions for permit issuance in subsection (1), the permit applicant must provide reasonable assurances that the criteria in the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District”, incorporated by reference in Rule 40E-20.091, F.A.C., are met.

Rulemaking Authority 373.044, 373.113, 373.118 FS. Law Implemented 373.036, 373.042, 373.103(4), 373.1501, 373.1502, 373.223, 373.229, 373.2295, 373.470 FS. History–New 8-14-02, Amended 8-31-03, 4-23-07, 2-13-08, 7-2-09, 9-26-12, 10-23-12, Repealed_________.

 

40E-20.302 Types of General Water Use Permits.

(1) Standard General Water Use Permit – The use of water, which does not exceed a recommended maximum allocation of 15 million gallons per month (MGM), except as stated below, shall qualify for a Standard General Water Use Permit, provided the conditions for issuance in Rule 40E-20.301, F.A.C., are met. There are two types of Standard General Water Use Permits, as follows:

(a) Minor Standard General Water Use Permit, authorizes allocations of three (3) million gallons per month or less; and

(b) Major Standard General Water Use Permit, authorizes allocations greater than three (3) million and up to fifteen (15) million gallons per month, and includes a requirement under paragraph 40E-20.301(1)(h), F.A.C., and the applicable requirements in the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District”, incorporated by reference in Rule 40E-20.091, F.A.C., that the permit applicant meet the requirements for use of reclaimed water. In addition the monitoring and reporting permit limiting conditions in Sections 4.0 and 5.0 of the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District”, incorporated by reference in Rule 40E-20.091, F.A.C., are applicable.

(2) Dewatering General Water Use permit – The use of water in conjunction with short-term dewatering operations such as well pointing, utility construction, lake construction, exploratory testing, and other minor uses; or in conjunction with a short-term Remedial Action Plan approved by the state or local agency having legal jurisdiction over such activities, shall qualify for a Dewatering General Water Use Permit, provided the conditions for issuance in Rule 40E-20.301, F.A.C., and the following requirement is met:

The proposed dewatering operation will not exceed a maximum of ten million gallons per day, with a maximum of eighteen hundred (1800) million gallons total pumpage and will not exceed a total duration of one year for the entire project.

(3) No-Notice Short-Term Dewatering General Water Use Permit – The use of water in conjunction with short-term dewatering operations, such as well pointing, utility construction, lake construction, exploratory testing, and other minor uses; or aquifer performance tests; or in conjunction with a short-term Remedial Action Plan approved by the state or local agency having legal jurisdiction over such activities, shall qualify for a No-Notice Short-Term Dewatering General Water Use Permit, provided the conditions for issuance in Rule 40E-20.301, F.A.C., and the following requirement is met:.

(a) The proposed dewatering operation will not exceed a maximum of five (5) million gallons per day, with a maximum of one hundred (100) million gallons total pumpage and will not exceed a total duration of 90 days for the entire project, except for linear construction projects, such as roads, utilities, and pipelines, which may have a rolling 90-day duration in which the dewatering operation at the end of each 90-day period occurs more than 1 mile from the location at the beginning of each 90-day period.

(b) To demonstrate compliance with paragraph 40E-20.301(1)(k), F.A.C., all water shall be retained on site.

Rulemaking Authority 373.044, 373.113, 373.118 FS. Law Implemented 373.042, 373.0421, 373.103(4), 373.118, 373.219, 373.223 FS. History–New 9-3-81, Amended 12-1-82, Formerly 16K-2.031(1), 16K-2.032(1)(b), Amended 2-24-85, 3-29-87, 7-26-87, 4-20-94, 7-11-96, 4-9-97, 12-10-97, 11-4-01, 8-14-02, 8-31-03, 4-23-07, 2-13-08, 7-2-09, Repealed_________.

 

40E-20.321 Duration of General Water Use Permits.

(1) The duration of general water use permits shall equal the time period for which sufficient data is available to provide reasonable assurances that the conditions for permit issuance will be met, the time period for which the permit applicant demonstrates legal control, or the applicable general permit expiration date in subsections (2) through (5), whichever occurs first.

(2) The duration of the general water use permit authorized in subsection 40E-20.302(1), F.A.C., shall not exceed the following time periods:

(a) For uses with a maximum monthly allocation less than 3 million gallons per month (mgm), authorized by a Minor Standard General Water Use Permit, the period shall not exceed 20 years.

(b) For uses with a maximum monthly allocation greater than 3 mgm (up to 15 mgm), authorized by a Major Standard General Water Use Permit, the period shall be based on the provisions in Rule 40E-2.321, F.A.C., and the applicable provisions in the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District”, incorporated by reference in Rule 40E-20.091, F.A.C.

(3) The duration of the general permit authorized in subsection 40E-20.302(2), F.A.C., shall not exceed one (1) year from the date of issuance.

(4) The duration of the general permit authorized in subsection 40E-20.302(3), F.A.C., shall not exceed ninety (90) days after commencing dewatering.

(5) The duration of a general permit issued for a Remedial Action Plan approved by the state or local agency having legal jurisdiction over such activities will correspond with the termination of the water use activities under the plan or the applicable general permit expiration date, whichever occurs first.

(6) Extension of time shall be granted by the District under circumstances that could not be reasonably foreseen and that are outside the control of the permittee, as determined by District staff.

Rulemaking Authority 373.044, 373.113, 373.118 FS. Law Implemented 373.118, 373.236 FS. History–New 9-3-81, Formerly 16K-2.031(2)(j), 16K-2.032(2)(d), Amended 7-26-87, 4-20-94, 8-14-02, 8-31-03, 4-23-07, 2-13-08, 10-23-12, Repealed_________.

 

40E-20.331 Modification of General Water Use Permits.

(1) A permittee shall apply to the District for approval of any modification of an unexpired general water use permit pursuant to Section 373.239, F.S., and Rule 40E-1.609, F.A.C.

(2) Applications for modification except for modifications issued pursuant to subsection (3) shall contain the information required in Rule 40E-20.101, F.A.C., will be evaluated using the conditions and requirements specified in Rules 40E-20.301 and 40E-20.302, F.A.C., and will be subject to the limiting conditions specified in Rule 40E-20.381, F.A.C. Modifications shall be approved if the conditions and requirements in Rules 40E-20.301 and 40E-20.302, F.A.C., are met.

(3)(a) Modification of an existing general water use permit shall be approved by letter, provided the permit is in compliance with all applicable limiting conditions and the modification request:

1. Does not exceed the applicable general permit allocation limitations in Rule 40E-20.302, F.A.C.;

2. Does not result in a requested permit duration which exceeds the expiration date of the existing permit, except that when the permit duration is based upon the current lease expiration date, the permit duration may be extended by letter modification to the new lease date, but shall not exceed the applicable permit duration pursuant to subsection 40E-20.321(2), F.A.C.;

3. Does not potentially interfere with any presently existing legal use of water, cause harm to wetlands or other surface waters, harmful saltwater intrusion or pollution of the water resources, harm to offsite land uses, does not withdraw water reserved under Chapter 40E-10, F.A.C., or does not otherwise raise issues requiring a Staff determination of whether harm to the water resources would occur pursuant to the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District”, incorporated by reference in Rule 40E-20.091, F.A.C.;

4. Does not change the permitted withdrawal source; and

5. Does not result in a modification of the permit which must be approved by the Governing Board pursuant to Section 373.239(2), F.S..

6. Does not allow more cumulative days and time to conduct landscape irrigation pursuant to Chapter 40E-24, F.A.C., for those permits classified as landscape irrigation use.

(b) The time frames set forth in Rule 40E-1.603, F.A.C., shall apply to the processing of applications for letter modifications.

Rulemaking Authority 373.044, 373.113, 373.171, 373.216 FS. Law Implemented 373.223, 373.229, 373.239 FS. History–New 4-20-94, Amended 7-11-96, 4-9-97, 12-10-97, 8-14-02, 8-31-03, 4-23-07, 2-13-08, 7-2-09, 3-15-10, Repealed_________.

 

40E-20.351 Transfer of General Water Use Permits.

A permittee must comply with the requirements of Rule 40E-1.6107, F.A.C., in order to obtain a permit transfer to a new permittee. If the permit transfer is in conjunction with an application for permit modification, the permit shall be transferred at the time of permit modification if all applicable permit transfer criteria are met.

Rulemaking Authority 373.044, 373.113 FS. Law Implemented 373.223, 373.229, 373.239 FS. History–New 12-1-82, Amended 4-20-94, 8-14-02, Repealed_________.

 

40E-20.381 Limiting Conditions.

Staff shall impose on any permit granted under this chapter such reasonable standard and special conditions as are necessary to assure that the permitted use or withdrawal will be consistent with the overall objectives of the District, will not be harmful to the water resources of the District, is reasonable-beneficial, will not interfere with any presently existing legal uses, and is consistent with the public interest. Standard permit conditions in Section 5.1 of the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District” incorporated by reference in subsection 40E-20.091(1), F.A.C., shall be in the permit. Special permit conditions, including those specified in Section 5.2 of the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District”, shall be in the permit.

Rulemaking Authority 373.044, 373.113, 373.118 FS. Law Implemented 373.042, 373.0421, 373.103(4), 373.118, 373.219, 373.223 FS. History–New 9-3-81, Formerly 16K-2.031(2), 16K-2.032(2), Amended 2-24-85, 7-26-87, 4-20-94, 7-11-96, 4-9-97, 12-10-97, 11-4-01, 8-14-02, 4-23-07, 2-13-08, Repealed_________.

 

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: November 14, 2013

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: July 20, 2012 and Notice of Additional Workshops on April 30, 2013