Title: Memorandum to Florida Land Council from Chuck Littlejohn re: State Water Policy, attached: "Amendments to FEDP Chapter 17-40, F.A.C., State Water Poli
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Title: Memorandum to Florida Land Council from Chuck Littlejohn re: State Water Policy, attached: "Amendments to FEDP Chapter 17-40, F.A.C., State Water Poli
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I I


Florida Land Council
310 WEST COLLEGE AVENUE
TALLAHASSEE, FLORIDA 32301
(904) 222-7535


Florida Land Council

Chuck Littlejohn

State Water Policy

August 30, 1993


Attached for you please find analysis of state water policy.


(kIs Collie

Vice (iiiir an

Secrtary1P
Richard Graves

I tttttt11. Littlejohn
('liti iuB I it lwttolt


TO:

FROM:

RE:

DATE:







HOPPING BOYD GREEN & SAMS
ATTORNEYS AND COUNSELORS
CARLOS ALVAREZ 123 SOUTH CALHOUN STREET C. ALLEN CULP, JR.
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FRANK E. MATTHEWS MEMORANDUM JULIE B. ROME
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CAROLYN S. RAEPPLE
GARY P. SAMS OF COUNSEL
ROBERT P. SMITH W. ROBERT FOKES
CHERYL G. STUART



TO: St. Johns Agricultural Forum

FROM: Ralph A. DeMeo
Kristin C. Rubin

RE: Amendments to FDEP Chapter 17-40, F.A.C., State Water Policy

DATE: August 26, 1993




The Florida Department of Environmental Protection ("DEP") is proposing significant
amendments to Chapter 17-40, Florida Administrative Code ("FAC"), which contains the State's
Water Policy. The proposed amendments are attached. The Water Policy sets forth the State's
goals with regard to planning and management of the state's water resources. The proposed
amendments will be discussed at workshops throughout the state between August 24, 1993 and
September 1, 1993. The Florida Administrative Weekly notice setting forth a schedule of the
workshops is also attached. The proposed amendments range from encouraging the development
of alternative water supplies, including reuse to flood and floodplain protection to pollutant load
reduction goals and protection areas for surface waters to governmental coordination with respect
to water management. These proposals are very broad in scope and will likely be used by the
DEP in its permitting activities as well as in its standard-setting functions. Due to the probable
use of the policies by the DEP in such ways and due to the breadth of the proposed goals, the
proposed amendments are troublesome. A summary of those proposed amendments follows.



Declaration and Intent

The DEP proposes additional statements in the declaration and intent section, including
a new goal to improve coordination between land and water management, a requirement that
special districts which manage water consider state water policy in the development of their
plans and programs, and a goal that the State protect entire ecological systems. These new
statements of intent are carried out in various ways throughout the chapter. DEP also proposes









St. Johns Agricultural Forum
August 26, 1993
Page 2

to add language reiterating the Legislature's intent, expressed in Section 373.0395, Fla. Stat.,
that future growth and development planning reflect the limitations of available water supplies.

Definitions

The definition section in a rule is always a key section in establishing the scope and
applicability of a particular regulation. In a rule as potentially broad as this policy-setting
Chapter 17-40, F.A.C., definitions become even more critical. DEP proposes adding definitions
to several new terms including floodplain, ground water availability, ground water basin, high
recharge areas, interim pollutant load reduction goal, pollutant load reduction goal, prime
recharge areas, surface water availability, water resource caution area, and watershed
management goal. Once adopted in this rule, such terms become fair game for inclusion in
other potentially applicable and more substantive DEP rules. Also noteworthy is the deletion
of environmentaltl enhancement of surface waters resulting from discharge of reclaimed water
having received at least advanced water treatment or from a discharge of reclaimed water for
wetlands restoration" as a deliberate application of reclaimed water for a beneficial purpose
evidencing reuse of such water.


General Policies

DEP proposes to add a specific policy regarding development of alternative water
supplies, including conservation, reuse of reclaimed water, and desalination, among other
alternatives. DEP's draft language includes a policy specifically emphasizing pollution
prevention.

DEP also proposes new language focusing on flood and floodplain protection. Currently,
DEP's policy is to manage the construction and operation of facilities which divert surface water
flow to "prevent increased" flooding, soil erosion, or excessive drainage. DEP proposes a
policy to manage such facilities to "minimize damage" from all. not just increased flooding, soil
erosion, or excessive drainage, as well as habitat alteration. DEP's draft policy again would
focus on the ecological functions of floodplains and other flood hazard areas. The draft policy
encourages strict floodplain management and avoidance of expenditure of funds for development
in high hazard flood areas.


Water Supply Protection and Management

DEP is proposing several policy changes with regard to Water Supply Protection and
Management, which has been termed "Water Use and Reuse." DEP proposes a policy stating
that ownership of land does not entitle the owner to consumptive use of water below the
property. In addition, DEP wants to require consideration of whether the use would significantly


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St. Johns Agricultural Forum
August 26, 1993
Page 3

affect ecosystem functions and natural resources. This ties in with the policy to protect the
functions of entire ecosystems. DEP also wants to require consideration of the feasibility, rather
than availability, of alternative water supplies. DEP also seeks to establish a policy to prohibit
permitted water use from exceeding ground water or surface water availability, with water
management districts ("Districts") providing the highest protection for water supplies of natural
systems when determine such availability. DEP proposes to insert a statement that "Competing
Applications" pursuant to Section 373.233, F.S., shall be the sole method for allocating water
being sought by and insufficient for two or more competing applications. Any reallocation of
an existing permitted quantity of water shall require a permit. Once again, DEP has sought to
insert the ecosystem concept into the decision to permit a consumptive use.


Water Conservation

DEP proposes a new section relating to water conservation. The proposed section
contains the goal of preventing and reducing wasteful, uneconomical, impractical, or
unreasonable use of water resources. Districts shall assist local governments to conserve water
and establish efficiency standards to restrict inefficient irrigation standards.


Water Reuse

Significantly, DEP proposes a policy that reclaimed water is a water resource in the state
that must be used in a reasonable beneficial manner. This could subject the use of reclaimed
water to consumptive use permitting requirements. DEP renames what was known as "critical
water supply problem areas" as "water resource caution areas." More importantly, DEP
proposed to delete the language providing that reclaimed water must be used within the water
resource caution areas "unless such use is not economically, environmentally, or technically
feasible." The policy now reads: "A reasonable amount of reuse of reclaimed water from
domestic wastewater treatment facilities shall be required within designated water resource
caution areas." DEP also proposes a statement that the regulatory mechanism for District
requirements related to reuse of reclaimed water shall be through consumptive use permits.
However, DEP includes a statement that Districts are prohibited from requiring consumptive use
permits for wastewater facilities for the sole purpose of requiring reuse (i.e. when the facility
would not otherwise need such a permit). The draft rule currently contains some repetitive
language that presumably was an oversight that will be deleted in the final rule.









St. Johns Agricultural Forum
August 26, 1993
Page 4

Interdistrict Transfer

DEP proposes renaming the term "water transport" as "interdistrict transfer," and
revising the policy language to include specifically ground water as well as surface water.
However, while the transfer of surface water requires the approval of each involved District, the
transfer of ground water only requires approval of the District where the withdrawal occurs.

Surface Water Protection and Management

DEP proposes to delete pollutant discharge reduction as the the primary purpose of water
management goals. DEP also proposes that watershed management goals shall be included in
District Water Management plans. With regard to stormwater, DEP proposes that the state shall
implement a stormwater management program in Districts which do not have the economic and
technical resources to implement the program. In addition, DEP proposes that special district
which manage water must establish a stormwater management program.

DEP also proposed that watershed specific stormwater pollutant load reduction goals shall
be established in a new way. For all water bodies having approved SWIM plans, interim
pollutant load reduction goals shall be established. Interim pollutant load reduction goal is
defined as a best judgment numeric estimate of the level of pollutant load reduction anticipated
to result from planned corrective actions as an interim step toward the goal of preserving or
restoring designated uses and maintaining water quality consistent with state standards.

In addition, DEP proposes that each District shall develop water body specific pollutant
load reduction goals for non-SWIM water bodies on a priority basis. Each District shall submit
recommendations to implement the Total Maximum Daily Loads Process for water bodies that
receive discharges from stormwater management systems that are required to obtain a NPDES
municipal stormwater discharge permit.


Flood and Floodplain Protection

DEP proposes new sections on flood protection and floodplain protection. The proposals
for flood protection include nonstructural protection through avoidance or reversal of
incompatible uses in floodplains and flood prone areas and would be implemented within the
context of other interrelated water management responsibilities. DEP's amendments recognize
that local governments have the primary responsibility for regulating land use to protect flood
prone areas. DEP's proposed language states that development in flood prone areas should be
discouraged. The draft rule would prohibit issuance of Management and Storage of Surface
Water (MSSW) Permits unless appropriate precautions are taken to protect public health and
safety in the event of failure of any water control structures.


I









St. Johns Agricultural Forum
August 26, 1993
Page 5

The proposed section on floodplain protection provide that DEP and the Districts shall
provide leadership to protect floodplains by developing information about floodplains, identifying
them for potential acquisition or restoration, developing a program to enhance their integrity and
minimizing incompatible activities in floodplains by requiring reasonable assurances that water
levels and surface water storage will not be adversely affected. The Districts shall provide
floodplain information to local governments.

Natural Systems Protection & Management

DEP proposes a new section to set goals for natural systems protection and management,
which include: avoiding adverse impacts to natural systems; improving the water quality that
supports natural systems; avoiding adverse effects on fish and wildlife; and promoting restoration
of existing or historic natural systems.


Minimum Flows and Levels

DEP proposes to require that minimum flows and levels be protected, rather than merely
a consideration, in issuing MSSW and consumptive use permits.


Protection Areas for Surface Waters

DEP proposes a new section to address protection for surface waters. DEP proposes a
policy to encourage Districts to establish protection areas adjoining surface water bodies and
wetlands to enhance and preserve the ecological quality and integrity of the water resource.
The Districts would establish the protection areas as part of SWIM plans or basin-specific
management plans. The protection areas should be sufficiently wide to prevent harm to the
water, and DEP proposes factors to consider in determining the width of the protection area.
In this respect, DEP is taking a very broad approach to regulating the use of uplands through
regulations originally designed to protect water resources.


Florida Water Plan

The proposed amendments include a new section which would require DEP to formulate
an integrated, coordinated plan for management of the state's water resources. The plan would
emphasize water conservation, pollution prevention, reuse of reclaimed water and protection of
entire ecosystems. It would be developed in coordination with District plans and would include
goals and responsibilities of the DEP and Districts, implementation strategies, intergovernmental
coordination, procedures for plan development, and methods for assessing program effectiveness.


A. I








St. Johns Agricultural Forum
August 26, 1993
Page 6

While the draft rule would allow the plan to be phased, the rule would require that the plan be
completed by July 1, 1995 and updated every five years after initial plan development.


District Water Management Plans

DEP proposes amendments to the section relating to District Water Management Plans.
The proposed amendments include a list of required components in the District plans, a
requirement that the Districts establish a procedure for evaluating the plans and a requirement
that the District allow for public and governmental participation in the development of the plan.
In addition, DEP proposes a new section setting forth a procedure whereby the DEP would
review and comment upon the District Plans.


Water Data

DEP also proposes a new section designating DEP as the state's lead water quality
monitoring agency and central repository for surface water and ground water information. All
other local governments and state agencies must make all scientific and factual data available to
DEP. The Districts and DEP are required under the proposed amendments to develop a
standardized data base to track activities authorized by permits in wetlands and waters of the
state. Additional proposed goals are set forth, such as requiring the District to implement a
strategy for measuring, estimating and reporting withdrawal and use of water by permitted and
exempt users, and requiring appropriate monitoring of water quality and water withdrawal by
all permittees. DEP's State Water Quality Assessment (305(b) Report) shall be the state's
general guide to and basis for water quality assessment unless more recent, accurate, or detailed
information is available.


Water Program Administration and Evaluation

Finally, with regard to program administration, DEP proposes to delete the provision
encouraging delegation to Districts to eliminate duplication of water quality and quantity
permitting functions.


Conclusion

These amendments proposed by DEP significantly alter and broaden the State's Water
Policy. It provides for extensive planning and attempts to increase coordination among the
agencies with water management responsibilities. In addition, it provides for flood, floodplain,
and ecosystem protection and water reuse requirements as has not been done before by the DEP.










St. Johns Agricultural Forum
August 26, 1993
Page 7

We cannot be sure how the proposals might affect your Florida operations, but if the issues are
tied to permitting requirements, the amendments could present substantial new problems for
existing and new facilities. If you have any questions about the amendments or need any
assistance in attending or commenting on the workshops, feel free to contact us.


24856.


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