Title: SWFWMD Rule Chapter Title: Consumptive Use of Water
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Title: SWFWMD Rule Chapter Title: Consumptive Use of Water
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection : SWFWMD Rule Chapter Title: Consumptive Use of Water
General Note: Box 16, Folder 1 ( SWFWMD - 1997 - 1998 ), Item 22
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003929
Volume ID: VID00001
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SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

RULE CHAPTER TITLE: RULE CHAPTER NO.:

Consumptive Use of Water 40D-2, F.A.C.

RULE TITLE: RULE NO.:

Publications Incorporated by Reference 40D-2.091

Conditions for Issuance of Permits 40D-2.301

PURPOSE AND EFFECT:

Simultaneously with this notice of rulemaking, the District is also

giving notice of rulemaking to establish the Minimum Flows and

Levels required by Section 373.042, F.S. (1996), for the District's

designated priority water bodies within Pasco, Hillsborough and

Pinellas Counties by October 1, 1997. The changes to the Basis of

Review for Water Use Permitting set out below set forth how the

established Minimum Flows and Levels will be used in the District's

Water Use Permitting Program.

SUMMARY:

The proposed rules provide that:

1. Where the actual water level is at or above the Minimum

Flow or Level, all applications for permits (new or renewal) will

be evaluated to ensure that they do not cause the actual flow or

level to fall below the Flow or Level.



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2. Where the actual Flow or Level is below the Minimum Flow

or Level:

a. Unless allowed by the applicable recovery strategy,

no new quantities will be permitted and the applicant must compete

for water that would otherwise be authorized under the recovery

strategy.

b. Existing permits that cause the actual Flow or Level to

be below the Minimum Flow or Level are subject to a recovery

strategy when implemented by the District.

c. Until a recovery strategy is implemented by the District

a Minimum Flow or Level will have no permitting impact on existing

permittees or renewal applicants.

d. When a recovery strategy is implemented in Northern Tampa

Bay, applicants and existing permittees must comply with the

recovery strategy, Chapter 40D-2, F.A.C., and the Basis of Review,

with the exception that compliance with Rules 40D-2.301(b) and (c),

F.A.C., (wetland, lake, etc., impacts) and Section 4.2 of the Basis

of Review is not required as they relate to existing impacts.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COST:

SPECIFIC AUTHORITY: 373.0421, 373.044, 373.113, 373.149, 373.171

FS.


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LAW IMPLEMENTED: 373.0421, 373.219, 373.223, 373.229, 373.239,

373.243 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING

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

TIME AND DATE: To be announced.

PLACE: Southwest Florida Water Management District, Governing Board

Room, 2379 Broad Street, Brooksville, Florida

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Karen A.

Lloyd, Senior Attorney, Office of General Counsel, 2379 Broad

Street, Brooksville, Florida 34609-6899, (352) 796-7211, extension

4651.

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

40D-2.091 Publications Incorporated by Reference

The "Basis of Review for Water Use Permit Applications"

April 11, 1994, the "Agricultural Water Use Form,"

July 24, 1990, and the "Agricultural Water Allotment Form,"

July 24, 1990, are hereby incorporated by reference into this

Chapter and are available from the District upon request.

Specific Authority 373.0421. 373.044, 373.113 FS. Law Implemented

373.219, 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.

40D-2.301 Conditions for Issuance of Permits

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(1) In order to obtain a Water Use Permit, an Applicant must

demonstrate that the water use is reasonable and beneficial, is in

the public interest, and will not interfere with any existing legal

use of water, by providing reasonable assurances, on both an

individual and a cumulative basis, that the water use:

(a) through (c) No change.

(d) Will comply with the provisions of 4.3 of the Basis of

Review described in 40D-2.091 not cause water lev ls or rates of

flow to deviate from the ranges act forth in Chapter 40D 0;

(e) through (n) No change.

(2) and (3) No change.

Specific Authority 373.044, 373.113, 373.149, 373.171 FS. Law

Implemented 373.219, 373.223, 373.229 FS. History Readopted 10-5-

74, Amended 12-31-74, 2-6-78, 7-5-78, Formerly 16J-2.11, 16J-2.111,

Amended 1-25-81, 10-1-89, 2-10-93.




WATER USE PERMITTING BASIS OF REVIEW

The following changes are made to Chapter 4.0:

4.0 CONDITIONS FOR ISSUANCE--TECHNICAL CRITERIA

4.3 MINIMUM FLOWS AND LEVELS

Applicants shall demonstrate compliance with established minimum

flows and levels as set forth in Chapter 40D-8. F.A.C., as follows:

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1. For water bodies where the actual flow or level is at or

above a Minimum Flow or Level, withdrawals shall not cause the

actual flow or level to fall below the Minimum Flow or Level on a

Long-term average basis. "Long-term" means an evaluation period

used in assessing withdrawal impacts through modeling or

statistical data analysis that represents a period of time of

sufficient length such that the evaluation period is insensitive to

unstable fluctuations of the variables utilized in the assessment

.e.g.. changes in withdrawal rates, and changes in hydrologic

conditions, in order to simulate steady state conditions. This

will vary because professional judgement is necessary to establish

the parameters to be used in the assessment of each application

depending on the geology and climate of the area of withdrawal, the

depth of and number of wells and the quantity to be withdrawn.

2. With regard to existing permits and renewal applicants.

where a withdrawal impacts a Minimum Flow or Level established in

Rules 40D-8.624 or 40D-8.626. F.A.C.. and the actual level at any

of the Minimum Flow or Level sites is below the Minimum Flow or

Level and the District has not yet implemented a recovery strategy

pursuant to Section 373.0421(2) F.S.. the provisions of this

Section 4.3 and Rule 40D-2.301(1)(d). F.A.C.. do not apply.


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3. For water bodies where the actual flow or level is below

the Minimum Flow or Level and the District has implemented

regulatory requirements as part of a recovery strategy pursuant to

Section 373.0421(2). F.S.. which will be contained within the

District's Water Management Plan. the following apply:

a. Unless otherwise provided for in the District's recovery

strategy, additional withdrawal quantities shall not be allowed and

applications for new uses of water must compete under Section

373.233. F.S.. for a quantity of water that would otherwise be

authorized by the District under the recovery strategy.

b. Existing permits with withdrawals that cause or contribute

to the existing flow or level being below the Minimum Flow or Level

will be subject to a recovery strategy as described in Rule 40D-

8.031(4)(b) and Chapter 40D-2. F.A.C.

4. Within those portions of Hillsborough County north of State

Road 60. and Pasco and Pinellas Counties for which a recovery

strategy has been implemented by the District, where a withdrawal

impacts a Minimum Flow or Level established in Rules 40D-8.624 or

40D-8.626. F.A.C.. and the actual level at any of the impacted

Minimum Flow or Level sites is below the Minimum Flow or Level,

applicants and existing permittees shall demonstrate compliance

with all the requirements of the recovery strategy adopted by rule

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and applicable to the affected water body. Chapter 40D-2, F.A.C.,

and this.Basis of.Review.with the exception that compliance with

Rules 40D-2 301(11Ib1 and lch F A C dS ti A 2 f h


., an ec on_ o t e Bas
is
of Review is not required as they relate to existing impacts.


Water withdrawal mut nGent course
1. Lake levels to be redueed below the applicable minimum

water level stabsliahed in Chapter 4 D 0, F.A.C.

2. Streamflew to be reduced below the minimum rcgulator-
















NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE:
flGoverning Board of the Southwest Florida Water Management District, F.A.
B. P-tentiometric- urfaee -r water table levels tee be

reduced below minimum-regulatory level established in







haptDATE PROPOSED RULE APPROVED: September 9, 1997F.A.

DATE OF PERSON ORIGINATING PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: June 6,nior
Attorney, Office of General Counsel

NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE:

Governing Board of the Southwest Florida Water Management District

DATE PROPOSED RULE APPROVED: September 9, 1997

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: June 6,

1997

The Southwest Florida Water Management District does not

discriminate on the basis of any individual's disability status.

Anyone requiring reasonable accommodation as provided for in the

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American's With Disabilities Act should contact Dianne Lee at


(352)796-7211 or 1-800-423-1476, extension 4658; TDD only number 1-


800-231-6103; FAX number (352)754-6878/SUNCOM 663-6878.

A:\NPR40D-2.CGA


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SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

RULE CHAPTER TITLE: RULE CHAPTER NO.:

Individual Environmental Resource Permits 40D-4, F.A.C.

RULE TITLE: RULE NO.:

Publications and Agreements Incorporated

by Reference 40D-4.091

PURPOSE AND EFFECT:

Simultaneously with this notice of rulemaking, the District is also

giving notice of rulemaking to establish the Minimum Flows and

Levels required by Section 373.042, F.S. (1996), for the District's

designated priority water bodies within Pasco, Hillsborough and

Pinellas Counties by October 1, 1997. The changes to the Basis of

Review for Environmental Resource Permitting set out below set

forth how the established Minimum Flows and Levels will be used in

the District's Environmental Resource Permitting Program.

SUMMARY:

The proposed rules require permit applicants to provide reasonable

assurances that the regulated activity and design will not reduce

or suppress the flow of watercourse or the level of a surface water

body below an established Minimum Flow or Level.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COST:


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Comparison of Current Rule with Proposed Rule Revisions. Proposed

revisions were made to Chapters 40D-2, 40D-4 and 40D-8 of the

Florida Administrative Code (F.A.C.). The proposed rule revision

sets minimum flows and levels for priority water resources in the

northern Tampa Bay area including (1) Floridan aquifer levels

within northern Hillsborough, Pasco and Pinellas Counties; (2)

northern Tampa Bay area Lakes Barbara, Big Fish, Cypress, Dosson,

Ellen, Helen, Little Moon, Sapphire and Sunshine; (3) Wetland

levels within northern Hillsborough, Pasco and Pinellas Counties;

and (4) the lower Hillsborough River and the Tampa Bypass Canal.

The proposed rule revision also sets out how the Minimum Flows and

Levels affect applicants and permittees under Chapters 40D-2 and

40D-4, F.A.C.

In considering the following discussion of estimated regulatory

costs, it is important to note that the proposed lake, wetland and

aquifer levels will expire on October 1, 1999 unless the proposed

levels, or other levels approved by the Governing Board, are re-

published for rule adoption by October 1, 1999.

The proposed minimum flow for the lower Hillsborough River will

take regulatory effect on January 1, 1999. The proposed minimum

flow for the Tampa Bypass Canal will take regulatory effect upon

the effective date of the proposed rule. The proposed minimum flow

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for the lower Hillsborough River is 10 cubic feet per second (cfs)

when water level is at or above 20 feet NGVD at USGS gage 02304500,

and zero cfs when the water level is below 20 feet. The proposed

minimum flow is zero cfs for the Tampa Bypass Canal.

Where actual water levels in the Northern Tampa Bay area are

determined to be below the proposed minimum levels, the proposed

minimum levels will have no regulatory effect on existing water use

permittees until applicable portions of a recovery strategy have

been implemented. Under current rule, permits to applicants for

new water use quantities are not being issued where existing

withdrawals have already caused unacceptable environmental impacts.

Where actual water levels are determined to be above the proposed

minimum water levels, water use permit applicants, including

renewals, must demonstrate compliance with the proposed minimum

levels as of the effective date of the proposed rule.

Comparison of the current rule with the proposed rule revision

finds that the rule revision is not significantly different from

current rule in terms of the permitted's or applicant's access to

water from the Floridan aquifer, lakes for which levels are

proposed, the Tampa Bypass Canal and the Hillsborough Reservoir in

the Northern Tampa Bay area. The proposed rule revision is not


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expected to impact existing environmental resource permittees.

Requirements for environmental resource permit applicants regarding

protection of wetlands will not be different from that likely to be

required under existing rule. New environmental resource permit

applicants who might have been able to take advantage of a

withdrawal-lowered surficial aquifer level may incur additional

costs under the proposed rule.

Permittees Likely to be Required to Comply with the Proposed Rule

Revision. Other than the City of Tampa, the proposed rule revision

will not affect existing water use permittees. The City of Tampa

may need to increase augmentation of the Hillsborough River

Reservoir with water from the Tampa Bypass Canal or may also

augment the reservoir from Sulphur Springs. The additional water

will be used to comply with the minimum flow requirements for the

lower Hillsborough River. The proposed rule revision will not

impact existing environmental resource permittees.

Applicants Likely to be Required to Comply with the Proposed Rule

Revision. The impacts of the proposed rule revision on water use

permit applicants will not be significantly different under the

proposed rule than under existing rule. The proposed rule revision

is consistent with the purpose and intent of the existing Chapter

40D-2.301, Conditions for Issuance of Permits, and the actions that

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the District has taken to address adverse impacts of withdrawals

within northern Hillsborough, Pasco, and Pinellas Counties.

There exists a region in the northern Tampa Bay area in which new

Floridan aquifer withdrawals are typically not permitted due to

existing unacceptable environmental impacts. Applicants for new

withdrawals would have to do so under the competing applications

provisions of Section 373 Florida Statutes, and Chapter 40D-2,

F.A.C., under both existing rules and proposed rules (unless

specifically provided for under a proposed recovery strategy). The

proposed rules have the potential to cause a small increase in the

size of this region in which additional withdrawals are typically

not permitted. It is not possible to obtain a meaningful estimate

of the future number of permit applicants who will request

withdrawals from this very small additional area. However, it is

possible that one or more persons who would have been able to

obtain permitted quantities in this area under the current rule

would not be as successful under the proposed rule revision.

The proposed rule revision as it applies to the minimum flows

established for the lower Hillsborough River will not change the

ability of applicants to obtain a water use permit for withdrawals

from this river.



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New environmental resource permit applicants who might have been

able to take advantage of a withdrawal-lowered surficial aquifer

level will not be able to do so under the proposed rule revision

and, therefore, may incur additional site development costs under

the proposed rule. Under the proposed rule revision, new regulated

40D-4 permitted activities may not suppress a ground or surface

water level below the minimum level. Therefore, the design of the

surface water management system would have to be based on higher

surficial aquifer levels.

Cost to the District, the State and Local Government Entities. The

proposed rule revisions are not anticipated to incur significant

costs to either the State of Florida or to local government

entities in terms of changes in tax revenues or changes in non-

water-related governmental costs. Tax revenues and the level of

government services are not anticipated to change as a result of

the proposed rule revision.

The cost to the Southwest Florida Water Management District

(District) are those costs that are incremental to current permit

review, monitoring, and enforcement activities that are directly

related to implementation of the proposed rule revisions. The total

one-time cost associated with the proposed rule revision is

estimated to be $509,916. The total annual recurring cost

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associated with the proposed rule revision is estimated to be

$65,549. In addition, the incremental cost to review permit

applications for new water quantities to determine if the proposed

minimum flows and levels would be violated will add about $20 per

application to permit application review costs.

Transaction Costs to Permittees and Applicants. Transaction cost

to the City of Tampa is estimated to be $271,180 per year. This

cost includes estimated capital and annual O&M requirements to pump

additional water from the Tampa Bypass Canal into the lower

Hillsborough River to meet minimum flow requirements.

The proposed rule revision is not anticipated to incur transactions

costs to other existing water use and environmental resource

permittees.

In areas where the actual water level is above the minimum level,

water use permit applicants, including water use permittees who

request additional withdrawals, may incur transaction costs as a

result of the proposed rule revision. Because current rule is

consistent with the proposed rule revision, the additional

transaction costs are not expected to be significantly different

than that which would occur under existing rule.

For environmental resource permit applicants, site development

costs would be expected to increase for those applicants who could

7 -










have based their surface water management system design on the

incidentally-lowered water table.

Impact on Small Businesses. Small Cities and Small Counties. There

are no small counties in the affected area. There appear to be

three small cities in the affected area. Small cities are not

expected to be impacted by the proposed rule revision.

Of the 110 water use permittees in the affected area, 91 appear to

be private businesses. An estimated 92 percent or 84 businesses

have 100 or fewer employees. None of these permittees is expected

to incur transaction costs under the proposed rule revision. Some

new environmental resource permit applicants in the area may be

small businesses and may be affected by the proposed rule revision.

However, at this time, it is not possible to predict the number or

the cost.

Expected Benefits of Reduced Groundwater Pumping in Northern

Hillsborough. Pasco. and Pinellas Counties. The proposed minimum

flow at the Hillsborough River Reservoir may improve ecological

conditions in the lower portion of the river, particularly between

the Reservoir and Sulphur Springs. Until a recovery plan is

adopted, it is unlikely that groundwater pumping will be reduced

from current levels. Under a recovery strategy, it is unlikely that

groundwater and surface water levels within the withdrawal impact

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area will rise above those levels that would result from the

stringent application of existing rules. However, groundwater and

surface water levels in aquifers, lakes and wetlands where minimum

levels and recovery strategies are established are expected to

increase relative to current conditions. Also, other lakes and

wetlands in the region may experience increased water levels.

Higher water levels may reduce damage to property owners, other

existing legal water users and environmental resources.

SPECIFIC AUTHORITY: 120.54(8), 373.0421, 373.044, 373.046, 373.113,

373.171, 373.414 FS.

LAW IMPLEMENTED: 120.54(8), 373.046, 373.403, 373.413, 373.414,

373.416, 373.429 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING

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

TIME AND DATE: To be announced.

PLACE: Southwest Florida Water Management District, Governing Board

Room, 2379 Broad Street, Brooksville, Florida

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Karen A.

Lloyd, Senior Attorney, Office of General Counsel, 2379 Broad

Street, Brooksville, Florida 34609-6899, (352) 796-7211, extension

4651.

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:


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40D-4.091 Publications and Agreements Incorporated by

Reference.

The following documents are hereby incorporated into this

chapter and Chapters 40D-40 and 40D-400, F.A.C.:

(1) "Basis of Review for Environmental Resource Permit

Applications within the Southwest Florida Water Management

District, _July 223, 10:." This document is available

from the District upon request.

(2) and (3) No change.

Specific Authority 120.54(8), 373.0421. 373.044, 373.046, 373.113,

373.171, 373.414 FS. Laws Implemented 120.54(8), 373.0421. 373.046,

373.103(8), 373.114, 373.403, 373.413, 373.414, 373.416, 373.429,

373.441 FS. History New 4-2-87, Amended 3-1-88, 9-11-88, 10-1-88,

4-1-91, 11-16-92, 1-30-94, 10-3-95, 12-26-95, 5-26-96, 7-23-96, 4-

17-97,

BASIS OF REVIEW FOR

ENVIRONMENTAL RESOURCE PERMIT APPLICATIONS WITHIN

THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

The following changes are made to Chapter Three Environmental:

3.2.2.4 Water quantity impacts to wetlands and other surface

waters:


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Pursuant to paragraph 3.1.1(a), an applicant must provide

reasonable assurance that the regulated activity will not change

the hydroperiod of a wetland or other surface water, so as to

adversely affect wetland functions or other surface water functions

as follows:

(a) through (c) No change.

(d) The activity shall not reduce or suppress the flow of a

watercourse or the level of water in a wetland or other surface

water below a minimum flow or level that has been established

pursuant to Section 373.042. F.S.

The following changes are made to Chapter Four Water Quantity:

4.6 Overdrainage and water conservation Where practicable,

systems shall be designed to:

1. through 6. No change.

4.6.1 In addition to the design considerations in 4.6 above.

the system shall not reduce or suppress the flow of a watercourse

or the level of water in a wetland or other surface water or the

level of ground water below a minimum flow or level that has been

established pursuant to Section 373.042. F.S.

NAME OF PERSON ORIGINATING PROPOSED RULE: Karen A. Lloyd, Senior

Attorney, Office of General Counsel



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-----------











NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE:

Governing Board of the Southwest Florida Water Management District

DATE PROPOSED RULE APPROVED: September 9, 1997

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: June 6,

1997

The Southwest Florida Water Management District does not

discriminate on the basis of any individual's disability status.

Anyone requiring reasonable accommodation as provided for in the

American's With Disabilities Act should contact Dianne Lee at

(352)796-7211 or 1-800-423-1476, extension 4658; TDD only number 1-

800-231-6103; FAX number (352)754-6878/SUNCOM 663-6878.

C: \WINDOWS\NPR40D-4. CGA


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