The purpose of this rulemaking is to create a consolidated, consistent process for petitioning for variances and waivers from year-round conservation measures and water shortage orders. This rulemaking will promote consistency of terms throughout ...

 

WATER MANAGEMENT DISTRICTS

Southwest Florida Water Management District

RULE NOS.:RULE TITLES:

40D-22.303Variances and Waivers

40D-22.401Enforcement

PURPOSE AND EFFECT: The purpose of this rulemaking is to create a consolidated, consistent process for petitioning for variances and waivers from year-round conservation measures and water shortage orders. This rulemaking will promote consistency of terms throughout Title 40D, F.A.C., and Florida Statutes, will delete obsolete provisions, and will conform District rules to Florida Statutes. This rulemaking will improve rule clarity.

SUMMARY: The proposed amendments (1) provide a singular variance and waiver procedure from District rules., (2) clarify examples of situations in which variances or waivers from the District’s year-round conservation measures may be appropriate; (3) eliminate provisions of the rule that are obsolete; and (4) conform the enforcement of the District’s year-round conservation measures to Section 373.609, F.S.

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 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: There are no costs to the regulated public as a result of the proposed amendments. Therefore, this rulemaking will not result in any adverse economic impacts or regulatory cost increases that require legislative ratification.

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: 120.542, 373.044, 373.113, 373.171, FS.

LAW IMPLEMENTED: 120.542, 373.119, 373.171, 373.175, 373.219, 373.246, 373.603, 373.609 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

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: SWFWMD Human Resources Director, [phone], ext. 4702, 1(800)423-1476 (FL only), ext. 4702 or to [e-mail]. 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: Sonya White, SWFWMD, 7601 Highway 301 North, Tampa, FL 33637-6759, [phone] (4660) (OGC #2013053)

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

40D-22.303 Variances and Waivers.

(1) Users may request relief from the provisions of this Chapter 40D-22, F.A.C., by following the procedures outlined in Rule 40D-1.1002, F.A.C., in accordance with filing an application using the form entitled Petition For Variance LEG 42.00-058(09/28/10), incorporated herein by reference and available upon request to the District and at WaterMatters.org, or by filing a petition for waiver, as applicable, pursuant to Section 120.542, F.S., and Chapter 28-104, F.A.C.

(2) Examples of circumstances, which, subject to the above referenced statute and rule and the provisions below, may be candidates for the issuance of a variance or waiver are:

(a) Properties with Irrigation systems that water both Odd and Even Numbered Addresses at the same time.

(b) Two or more properties which share a common source of water.

(c) A local government providing water to Users or a Reclaimed Water provider providing Reclaimed Water blend to Users that desires to sponsor an alternative year-round irrigation conservation plan approved by the District.

(c)(d) A public or private water system experiencing, or anticipating, pressure problems associated with subsection 40D-22.201(4), F.A.C.

(d)(e) Properties which, due to the amount of irrigated acreage in relation to the irrigation system configuration, cannot irrigate all zones in accordance with the watering days provided in paragraphs 40D-22.201(4)(a)-(d), F.A.C.

(e)(f) A variance granted local government or other entity that desires to offer an alternative irrigation program in accordance with Section 373.62(7), F.S.

(3)(2) A variance is invalid if it has expired or if the property owner or agent violates terms of the variance.

(4)(3) Users requiring relief from a local government’s water conservation measures in a local government’s alternative year-round Irrigation conservation plan approved by the District must petition that local government for relief.

(4) Variances and plans issued in accordance with Board Orders 92-12, 92-21, 92-60, 93-105, SWF 01-83 and Executive Director Order 00-18 are hereby ratified and affirmed, and shall remain in full force and effect except that they shall expire 10 years after the original issuance, or one (1) year from September 15, 2003, whichever is later, unless an earlier date is specified in the letter granting the original variance or plan. These variances and plans are also subject to the following provisions:

(a) Any property with a valid District variance issued after March 2, 1992 but prior to April 26, 2000 may use both of the two watering days specified for each section of the property.

(b) Any property with a valid District variance issued after April 26, 2000 but prior to October 30, 2001, which contained provisions for a second water day for each section of property may also use the second watering day.

(c) Any property with a valid District variance issued after April 26, 2000 that did not specify a second watering day for each section of the property is modified as follows: each section of the property may also be irrigated on the day of the week that occurs three days following the originally specified day. (For example, if an alternative Irrigation plan stipulates that a certain section of property can be watered on Fridays, it may now also be watered on Mondays).

Rulemaking Authority 120.542, 373.044, 373.113, 373.171 FS. Law Implemented 120.542, 373.119, 373.171, 373.175(4), 373.246(7), 373.609 FS. History–New 9-15-03, Amended 12-7-10,_________.

 

40D-22.401 Enforcement.

(1) This chapter shall be effective year round. Provided, Hhowever, if that in the event of conflict, the measures, provisions and/or restrictions imposed when a water shortage has been declared pursuant to Chapter 40D-21, F.A.C., or related Board or Executive Director order are that is more restrictive than a water conservation measure contained within this chapter, such measures, provisions and/or restrictions shall supersede the water conservation measures contained in this cChapter 40D-22, F.A.C., for the duration of the applicable water shortage or related Board or Executive Director order declaration.

(2) City and county officers shall assist the District with the enforcement provisions of this chapter in accordance with Section 373.609, F.S. As required by Section 373.609, F.S., but only upon specific request by the District, each county and city commission, state and county attorney, sheriff, police officer or other appropriate local government official shall assist the District in enforcing this chapter. Local governments may voluntarily elect to provide additional local enforcement assistance, such as a violation reporting telephone number for citizens’ use or a system of proactive enforcement patrols. The District shall continue to only request assistance with address-specific or location-specific violation complaints that do not involve a Water Use Permit holder and constitute either an emergency or a repeat violation situation.

(3) No change.

(4) In enforcing the provisions of this chapter the District will utilize any of the enforcement remedies available pursuant to Chapter Sections 120 or 373, F.S., or applicable District rule., including for example:

(a) Enforcement action may be initiated by the District as provided in Section 373.603, F.S., against violators of this chapter;

(b) The Executive Director may assign District personnel for the purpose of initiating enforcement action pursuant to Section 373.603, F.S.;

(c) The Executive Director may take appropriate action pursuant to Sections 373.119, 373.175(4), 373.246(7) and 120.69, F.S., to enforce the provisions of this chapter.

Rulemaking Authority 373.044, 373,113, 373.171 FS. Law Implemented 373.119, 373.171, 373.219, 373.175, 373.246, 373.603, 373.609 FS. History–New 3-15-92, Amended 9-15-03, 11-5-09,__________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Amy Wells Brennan, Assistant General Counsel

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: September 24, 2013

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: January 22, 2014