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CAREY, O'MALLEY, WHITAKER & LINS, P.A.
FIRST UNION CENTER, TAMPA, FLORIDA
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Wf eA^Ct-V C et A lM4P.A
LANDERS & PARSONS
A ~S cSa UiMT
pox: cindy L. Bartin, Landers a Parsog n
oDAT: August 29, 1994
Rit. ""Issues Raised by 40D-2, 40D-s and Amendments to Basis of
R review, chapters X-
These issues are a compilation of comments to the 8-7-94,
draft.24fle changes. Because the new draft rule dated 8-15-94 has
not been reviewed by interested parties in detail, there may be
additional issues raised by the 8-15-94 draft.
: Procedural Issues:
There has been much discussion relating to the district's
consideration of the input by the users provided over the past two
ye;aSs of tha development of this rule. Those involved have
.indicate* that the concepts of the Management Plan have bean
s.:niWfic1ntly and drastically changed in the more detailed rule.
Soe6 believe that the district may never have intended to use the
input, cOncerns, technical expertise and comments provided by the
S sasra. *uch conomrn has been raised over the fact that the final
st 4es of the development of the'.rule itself have occurEd-^ vth..
: such speed. The first draft, apparently issued in May, 94 was
followed by several other versions, each somewhat difficult to
Sfollov. n: addition there is concern over the adoption of the
S SStrcA r-le in conjunction witl other changes to the rule.
As a procedural issue, the Governing Board apparently approved
fi or: publication the August 7, i94 dratt ... additional changes
vwer^ dade by staff subsequent to this approval and were published
Sas :ho proposed rule. Some of these changes are very significant.
.For exa ple, the map depicting the "mnst impacted areas" of the
SWUCA wa" modified.
As a result of the August 26, 1994 summit meeting, it was
: agreed that each user group should consider the following:
21) contact the Board members, prior to the Wednesday meeting,
and seek withdrawal of the rule.
Withdrawal is necessary to step hbe clock on the deadline
for filing petitions under 120.$4, *.S. If the rule is
not withdrawn, petitions will be due on September 18,
:, n l "1
iiH 11 1 1 [ 11 1 L I I
August 29, 1994
1994. Based on past experiences, X would predict that
the district will fiyht hard to continue the process but
wil. agroe to ingotate."N This vil require the filing
of petitions, thus educatinq the district as to the
issues which may be resolved to divide the OgpOastion.
write to eac.h foard member and request withdrawal of tha
3). make presentation at the meatirng seeking withdrawal.,
substantive rssues: Referance to the 8-15-94, draft rule.
1. psaa. S: AO0-2.O51(1l) (Ca), ACs Ixemption provided by 40D-.
2.,201(l) (a), FAC is amended to define domestic water as water
ua4d for irrigation of one acre or less of lawn or gardare at
a p'rlv't.a residence. This definition#, W4 limitation of the
exemption, may affect a multitude of landwners with lot tis.e
abo6ve one acre.
a2 pg 8: 400-2.1011 TAC: This provision has been changed to
rejuira the applicant, as part of the &ppli'cation pr6ocsi, -to
2iZ I'the notice to all owners of real property, takRe from the
i latt tax rolls, together with the owners of any new owners
t- yt plv4 'J?1 the tax rol1m the 4pF114;aL. hatucL.'al
kn6.oIege within certain, distances of the property as
deiceled in the rulo.
The previous rule required the applicant to include a
list ard %iailinig address only of tbAxe property own*ar,
rather than requiring the applicant to malet the isaiiLnqs.
3. pg 14-17% 400-2.301,, 7AC.. Conditlonti for issuance Qf Peralts;
a) Throughout this provision the District has proposed the
addition of the words Nunacoeptale-" The previous criteria
inclilded the determination whether the vater uwe would create
an "adverse f mpat on water rOscux&a,,t an sadvei.s
environmental impact," adverselyy impact an existing leg4a
SwitVhdawal,n or madversely impact offsite land uses."t
~'~4l~nq in each ot these criterion has been amended to be
:"unaecetable- -adver. ." This somewhat nebulousg threshold
will leave a great deal of discretion to the staff.
'This raises the issue as to whether the i-1 e is
conisstent with the statutorY reqtiroement which requires
that a water use must not yteztere wit.. any existing
11i 1 i I C I i I I
Au t 29, 1994
legal use of water. ThIis new language may allow an
*acceptable odv.ers impact on an emistiqng legal
*:-j vithdraval,," and may not meet this statutory test.
b) Two new criteria have been added as conditions for
igs~uaice, 40D-2.301(i) (e) and (f) PAC. These criteria are
capable to all. water use verztts and require that the
proposeded Water use,
(a) Will not cause aurfcac water
flows to deviate from the flows set
in'- Captex 40)-8;
(f) Will not cause ground water
levels ta fall hMloV the lavols set
forth in Chapter 400-81
These new pro viions, create a Sqkifie-tnt cone**n With
the rule on a district vide basis. It is important to
all users in the sWUCA. For those groundwa~tar users,
40D-8 inoludas a poterntioxetric map of the SWUCh& area and
depicts the minimum water level for the upper Floridan
Mcqpaifer which will act as the threshold for determining
whether an application for water use will zoet the
ctit.6tioz in 40o0>.3ol(l)(f).
Part M0.0. (page XID-44) states that for SWtZCA, new
jrounwvater qiantitidi will be permitted to be withdrawn
rox the Floridan .qTFitfr within the SNUCA, whn *the
p'Vlntioxetrio surface has, for fiva consecutive yeors,
bean above the minimum level established in 40D-$*d20,
and that the proposed withdrawals together with the
annual average withdrawal for the previous Live yeaxs
V iii remain above the miniiam levels.
Th~1e consensus of users' technical experts users is that
ihis potantiometric map and the ndiliz=u water levels
depicted are not based on a sound scientific analysis.
4. ot0er issues raised and discussed*
a) Tgi:Ltatlan ofticincy wreu3.rc-onts are %at viw@L u+. known
t.eOhiology to meet the effiCIency requirements. No credit is
or conservation and increased efficiency a1X*&adj
*O~c*faplikhed. Allocation* are being cut based oh ftoric
4040: aVer last three year period.
g August 29, 1994
.b) ; The rule will require mitigation for historic impacts, not
:41ti prospective impacts. This is apparently applicable on a
dtrii ct wide basis.
c) The rule allows the WxK to consdlar the applicant's
S compliance history. Does this mean one violation at one
SA '.ar'i.' s property or facility may preclude water use permit at
a#,ther? In addition, does it mean a violation of a MSSW or
SERP permit will be considered? Similar language allowing
.oE4,sideration of compliance Lo found in theo DP ~ rul, but
t4.is leaves a great deal of discretion to the staff.
4d) Transfer of permits and etteot on property values: This
p vision implemented together with the 5-3-1 and 2' rule may
'siae any transfer impossible. Apparently, in order to avoid
.ekteisiva economic impacts (and make the EIS appear less
ioii.Ous), the W must make it appear as though users may
frelkiy 6tansfer vater withdrawal rights. When seeking a
It'asfer, the rule will apply the efficiency and impact
standardss and will also look at actual usage, not permitted
b Aitity. This may significantly preclude transfer and affect
). The rule requires the use of the lowest quality of water,
Vith.. public supply given the highest quality. However, it
*ploacs additional burdens oan users whare the quality of
a t'e hr they use will drop below a certain quality
threshld. This may have a significant and inequitable burden
on a ricultural users.
f) How will the WMD calculate the annual average water use?
Thire may be'difficulty with overlapping seasons and the use
oe:a' "running or rolling average.* This will open up the
p; tonitial for entfrcament actions E4 signifitent panaltiea.
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