40D-2.091: Publications and Forms Incorporated by Reference
40D-2.301: Conditions for Issuance of Permits
40D-2.321: Duration of Permits
40D-2.322: 20 Year Permit Requirements
PURPOSE AND EFFECT: The rulemaking is intended to set forth the conditions to be met to obtain a water use permit with a 20 year duration and eliminates six year permit durations. The proposed amendments also set forth the conditions under which a 10 year duration will be issued and those conditions for which permit durations for greater or less than 10 years or 20 years is appropriate. In addition, the rulemaking is intended to set forth environmental resource permitting requirements for issuance of a water use permit for multi-phase projects that require both a water use permit and an environmental resource permit.
SUMMARY: The proposed amendments are to the District’s water use permitting rules in Chapter 40D-2, F.A.C., and Part B, Basis of Review For Water Use Permit Applications, of the Water Use Permit Information Manual regarding the standards that must be met if an applicant elects to apply for a water use permit with a duration of 20 years, and also addresses durations for permits that do not meet the criteria for a 20 year permit. Small General permits will be issued with a 20 year duration. General or Individual permits applicants may elect to request a permit with up to a 20 year permit duration the applicant elects to demonstrate or commit to development of alternative water supplies; or a per capita water use rate of 110 gallons or less; or exceptional implementation of reclaimed water; or an approved FARMS system and meets other conditions; and if there are any pre-existing adverse impacts resulting from the permittee’s existing permit being addressed through a mitigation plan that includes a minimum flow and level recovery strategy the impacts must be eliminated by the tenth year of the permit. The proposed rules describe when permit compliance reports are required and the information to be reported for 20 year permits. Agricultural permits issued for 20 year permits will be required to submit documentation confirming property ownership and water use activities as specified in the permit. The proposed rules also eliminate six year duration permits so that longer durations of 10 or 20 years are issued instead subject to environmental or other considerations. Finally, the rulemaking sets forth environmental resource permitting requirements for issuance of a water use permit for multi-phase projects that require both a water use permit and an environmental resource permit. The rulemaking specifies that phosphate mining projects are not required to have a complete environmental resource permit application prior to the issuance of a water use permit.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
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.
SPECIFIC AUTHORITY: 373.044, 373.103, 373.113, 373.118, 373.171 FS.
LAW IMPLEMENTED: 373.036, 373.0361, 373.042, 373.0421, 373.0831, 373.103, 373.116, 373.117, 373.118, 373.149, 373.171, 373.1963, 373.216, 373.219, 373.223, 373.229, 373.236, 373.239, 373.243 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Ken Weber, Water Use Permitting Program Director, Strategic Program Office, 2379 Broad Street, Brooksville, FL 34604-6899, (352)796-7211, extension 4303
THE FULL TEXT OF THE PROPOSED RULE IS:
40D-2.091 Publications Incorporated by Reference.
The following publications are hereby incorporated by reference into this Chapter, and are available from the District upon request:
(1) Water Use Permit Information Manual Part B, “Basis of Review” (______ 07-01-09);
(2) through (3) No change.
Rulemaking Specific Authority 373.044, 373.113, 373.118, 373.171 FS. Law Implemented 373.036, 373.0361, 373.042, 373.0421, 373.0831, 373.116, 373.117, 373.118, 373.149, 373.171, 373.1963, 373.216, 373.219, 373.223, 373.229, 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, 7-15-98, 7-28-98, 7-22-99, 12-2-99, 8-3-00, 9-3-00, 4-18-01, 4-14-02, 9-26-02, 1-1-03, 2-1-05, 10-19-05, 1-1-07, 8-23-07, 10-1-07, 10-22-07, 11-25-07, 12-24-07, 2-13-08, 2-18-08, 4-7-08, 5-12-08, 7-20-08, 9-10-08, 12-30-08, 1-20-09, 3-26-09, 7-1-09,________.
40D-2.301 Conditions for Issuance of Permits.
(1) In order to obtain a Water Use Permit, an Applicant must demonstrate that the water use is reasonable and beneficial, is consistent with 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 (n) No change.
(2) For projects that require both an Environmental Resource Permit (ERP) and a Water Use Permit (WUP), an application for an ERP must be deemed complete prior to issuance of the WUP when the design of the surface water management system can affect the quantities developed from the project site and the quantities needed to supply project water demands. The applicant may submit an application for a Conceptual ERP to satisfy this requirement, provided that the application contains information from which supplemental irrigation demands, potable water demands, other water use demands, and water supply quantities derived from the surface water management system can be calculated. Otherwise, the applicant shall submit an application for an Individual or General ERP. Phosphate mining projects are not required to have complete ERPs prior to WUP issuance. If the District determines that a permit application involves an area where there are the Water Use Permit may not be granted because of water resource problems and due to the quantity, type or location of the proposed withdrawal it is unlikely that a water use permit will be issued, the requirement for a complete ERP permit application shall may be waived by the District. Where such waivers are granted, and if a WUP the Water Use Permit is issued, it shall specify that a well construction permit will not be issued and that withdrawals cannot commence until the appropriate ERP District surface water permit is issued.
(3) No change.
Rulemaking Specific Authority 373.044, 373.113, 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, 8-3-00, 4-14-02, 1-1-07,________.
(Substantial rewording of Rule 40D-2.321 follows. See Florida Administrative Code for present text.)
40D-2.321 Duration of Permits.
(1) When requested by an applicant, a water use permit shall have a duration of 20 years if the applicant provides reasonable assurance that the proposed withdrawals and use meets the conditions for issuance in Rule 40D-2.301, F.A.C., and the criteria in Part B, Basis of Review, of the Water Use Permit Information Manual, incorporated by reference in Rule 40D-2.091, F.A.C., there is a demonstrated demand of at least 20 years, that one or more of the criteria in paragraphs (a)-(f) will be met and where mitigation measures are proposed by the applicant (g) is met:
(a) The permit is for the development of an Alternative Water Supply. A longer duration shall be granted where the permittee demonstrates a longer duration is required by the bonding authority for the retirement of bonds issued for the construction of the project and the applicant provides reasonable assurance that the proposed use meets the conditions for issuance in Rule 40D-2.301, F.A.C., and the criteria in Part B, Basis of Review, of the Water Use Permit Information Manual, and that there is a demonstrated demand for the requested duration.
(b) The applicant demonstrates that at least 75 percent of their total annual average water needs will be met using an Alternative Water Supply or Supplies by the tenth year of the permit.
(c) The applicant demonstrates that it has achieved and will maintain a compliance per capita rate of less than 110 gallons per day per person, or will achieve such per capita by the tenth year of the permit. For regional water supply authorities, the per capita rate requirements shall refer to the weighted average compliance per capita rate of the member governments.
(d) The applicant demonstrates for its system-wide use of reclaimed water including imports and exports that it will beneficially reuse at least 75 percent of its treated domestic waste water, and at least 75% of that quantity will offset existing and planned water supplies by the tenth year of the permit. The term offset means the amount of traditional, potable quality water supplies that will be replaced by reclaimed water, expressed as an annual average in MGD.
(e) The applicant demonstrates that the project meets the Conditions of Eligibility of the Facilitating Agricultural Resource Management System (FARMS) program as specified in Rule 40D-26.101, F.A.C. and has an approved Facilitating Agricultural Resource Management System (FARMS) application and, by the tenth year of the permit, demonstrates that it will develop an Alternative Water Supply or Supplies that offset a minimum of 50 percent of the applicant’s current fresh or brackish water supply.
(f) The permit to be issued is a Small General.
(g) Any pre-existing adverse impacts resulting from the permittee’s existing permit being addressed through a mitigation plan that includes a minimum flow and level recovery strategy must be eliminated by the tenth year of the permit.
(2) Permits that do not qualify for a 20 year permit duration pursuant to subsection 40D-2.321(1) above, shall have a duration of 10 years provided the applicant provides reasonable assurance that the proposed use meets the conditions for issuance in Rule 40D-2.301, F.A.C., and the criteria in Part B, Basis of Review, of the Water Use Permit Information Manual, and that there is a demonstrated demand of at least 10 years.
(3) When an applicant fails to provide reasonable assurance that the proposed use meets the conditions for issuance in Rule 40D-2.301, F.A.C., and the criteria in Part B, Basis of Review, of the Water Use Permit Information Manual, for a 10 year permit duration, a permit may be issued for a shorter duration that reflects the period for which such reasonable assurances can be provided.
(4) Permits with a duration greater than 10 but less than 20 years as provided in subsection (2) above shall be granted based upon facts presented by an applicant.
(5) The District is authorized to issue permits for a period up to 50 years in accordance with Section 373.236(3), F.S.
(6) Permits based upon non-renewable leases less than 10 years shall be granted for 10 years. If the permitted water use activity ceases for more than 2 years the permit shall be subject to revocation unless documentation is provided indicating that use will recommence within the next year. Permits based upon non-renewable leases greater than 10 years or with renewable leases will be issued under the provisions of this Rule 40D-2.321, F.A.C., with a permit condition requiring submittal of a new or a renewed lease in order for the permit to remain in force.
(7) Permits that are modified prior to renewal will maintain the original expiration date unless the applicant requests the modification be deemed by the District to be substantial as described in the Basis of Review Section 1.12, and treated as a renewal with modification. If the District determines that the criteria of Basis of Review Section 1.12 are met, the application shall be processed as a renewal application with modification.
(8) Subject to the limitations on groundwater allocations explained in the provisions under the heading “REQUIREMENTS FOR APPLICANTS FOR GROUNDWATER WITHDRAWALS WITHIN THE CENTRAL FLORIDA COORDINATION AREA” set forth in Section 3.6 of the Basis of Review (“he Provisions”), within the portion of the Central Florida Coordination Area that does not lie within the Southern Water Use Caution Area the maximum permit duration for a Public Supply Utility or Similar Applicant proposing to withdraw groundwater shall be limited to December 31, 2013, unless the applicant will satisfy the requirements of B.2.a. or b., of the Provisions. If the applicant satisfies the requirements of B.2.a., or b., the permit duration shall be up to 20 years.
Rulemaking Specific Authority 373.044, 373.103, 373.113, 373.171 FS. Law Implemented 373.103, 373.171, 373.236 FS. History– Readopted 10-5-74, Amended 12-31-74, 10-24-76, 1-6-82, 3-11-82, Formerly 16J-2.13, Amended 10-1-89, 7-28-98, 1-1-03, 1-1-07, 2-13-08, 12-30-08,________.
40D-2.322 20 Year Permit Requirements.
(1) This Rule 40D-2.322, F.A.C., shall apply to new and renewal permits issued after [effective date of rule] and permits that are substantially modified after [effective date of rule].
(2) Except for permits issued pursuant to Section 373.236(6), F.S., where necessary to maintain reasonable assurance that the conditions for issuance of a 20 year permit or greater continue to be met during the term of a General or Individual permit, the District will require the permittee to submit a compliance report at year 10 and 15. Compliance reports shall be submitted every 5 years for permits issued pursuant to Section 373.236(6), F.S. The report shall contain sufficient information to provide reasonable assurance that the permittee's use of water will continue, for the remaining duration of the permit, to meet the conditions for permit issuance set forth in the existing District rules. In providing such reasonable assurance, the compliance report must, at a minimum, include all information specifically required by the compliance report condition(s) on the permit. The District shall take action on compliance reports only in cases where the District finds that the report indicates that the conditions for issuance are not continuing to be met. In those cases, the District shall modify the permit as necessary to ensure that the use of water authorized by the permit will continue to meet the conditions for permit issuance set forth in District rules. Only in those cases shall the District provide notice of intent to modify the permit as required by Sections 120.569 and 120.60, F.S., and Rule 40D-1.1010, F.A.C., which allows the permittee or substantially affected persons to petition for a hearing on the proposed action.
(3) For 20 year General and Individual Public Supply Permits, if the actual population growth in the tenth year of the permit is less than 90 percent of what was predicted for the preceding 10 year period, the permitted quantities shall be reduced consistent with the actual growth rate experienced unless the projected population for the final year of the permit has not changed by more than 10% based on the District's BEBR medium based GIS model or equivalent methodology or non-population based factors such as large industrial or other uses are demonstrated to require the allocated quantity.
(4) Where data indicate adverse impacts to environmental or other water resources, offsite land use or a legal existing use, non-compliance with a minimum flow or level or associated recovery or prevention strategy, or interference with a reservation, or where data indicate the impacts predicted at the time of permit issuance were underestimated to the degree that the previous analysis is inadequate, an updated ground-water modeling analysis and data analysis shall be required to address compliance with conditions for issuance.
(5) Permits that are issued for 20 year duration based on meeting the requirements set forth in paragraph 40D-2.321(1)(b), (c), (d) or (e), F.A.C., within 10 years shall include a timeline of activities proposed to result in achieving these requirements, and progress reports. If these requirements are not achieved within 10 years, the permit duration shall revert to the applicable duration provided in Rule 40D-2.321, F.A.C., unless this reversion would result in the permit having expired or less than a year of remaining duration. In such cases, the permit will expire one year following the final determination of non-achievement and will be limited to a permitted quantity that equals an additional two years future demand beyond current demand, as determined pursuant to section 3.0 of Part B, Basis of Review, of the Water Use Permit Information Manual incorporated by reference in Rule 40D-2.091, F.A.C., from the point of final determination of non-achievement.
Rulemaking Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.103, 373.171, 373.236 FS. History–New ________.
WATER USE PERMIT INFORMATION MANUAL
PART B, BASIS OF REVIEW
Incorporated by Reference in Rule 40D-2.091, F.A.C.
1.0 PERMITTING PROCEDURES
1.1 through 1.8 No change.
1.9 PERMIT DURATION
Revised 8-23-07, 2-13-08, 12-30-08, Repealed _______.
1.9.9 through 1.14 No change.
2.0 ADMINISTRATIVE CONSIDERATIONS
This section describes administrative requirements which may apply to certain water users. All water users must demonstrate legal control over the property and activities for which they are requesting a permit. Certain water users may be required to comply with other requirements described in this section.
2.1 CONTROL OF PROPERTY AND ACTIVITIES
Paragraphs 1.-5. No change.
6. As specified in the permit, agricultural permittees shall periodically submit written documentation confirming property ownership and that the permitted water use activities are consistent with the approved permit.
2.2 WATER USE INTEGRATED WITH A SURFACE WATER MANAGEMENT SYSTEM
1. For projects that require both an Environmental Resource Permit (ERP) and a Water Use Permit, an application for an ERP must be deemed complete prior to issuance of the Water Use Permit when the design of the surface water management system can affect the quantities developed from the project site and the quantities needed to supply project water demands from other sources. The applicant may submit an application for a Conceptual ERP to satisfy this requirement, provided that the application contains information from which supplemental irrigation demands, potable water demands, other water use demands, and water supply quantities derived from the surface water management system can be calculated. Otherwise, the applicant must submit an application for an Individual or General ERP. Phosphate mining projects are not required to have complete ERPs prior to WUP issuance. For projects which require both a water use permit and a surface water management permit, the Water Use Permit Application will not be deemed complete until the Surface Water Management Permit Application required by District rules is deemed complete. This requirement is based on the fact that design changes may occur during the Surface Water Permit evaluation process which may impact the water use aspects of the project. The impact of withdrawals on the Applicant's existing or conceptually permitted surface water management system must be evaluated and submitted with the Water Use Permit Application. This evaluation shall include an assessment of the impacts of withdrawals and discharges on the surface water management system design in terms of percolation rates, storage volumes, and design discharge, etc.
2. If the District determines that a permit application involves an area where there are the Water Use Permit may not be granted because of water resource problems, and due to quantity, type or location of the proposed withdrawal it is unlikely that a water use permit will be issued, the requirement for a complete ERP surface water permit application shall may be waived by the District. Where such waivers are granted, and if a the Water Use Permit is issued, it shall specify that a well construction permit will not be issued and withdrawals cannot commence until the appropriate District ERP surface water management permit is issued.
3. Where a project requires a complete ERP pursuant to subsection 40D-2.302(2), F.A.C., and Basis of Review Section 2.2.1, the permittee shall be required to re-evaluate water demands and sources at the submittal of any General or Individual ERP applications pertaining to the project. If the re-evaluation indicates sources or demands have changed from those presented in the original application, or that required water conservation elements have not been achieved, the water use permit shall be modified, to take into account the updated information, provided, however, that the water use shall continue to meet all conditions for issuance of a water use permit.