Notice of Proposed Rule

Southwest Florida Water Management District
40D-22.101: Definitions
40D-22.201: Year-Round Water Conservation Measures
40D-22.303: Variances and Waivers
PURPOSE AND EFFECT: Minor changes are proposed to enhance the effectiveness of Chapter 40D-22, F.A.C. Year-round Conservation Measures and consistency with Chapter 40D-21, F.A.C., Water Shortage Plan. The proposed amendments include adding or clarifying definitions for consistency between Chapters, clarifying allowable times for Spot Treatment, adding a schedule for plant establishment irrigation for large properties and allowing extra irrigation for salt flushing after tropical storms or hurricanes. This rulemaking also makes examples of circumstances for which a variance or waiver may be appropriate applicable only to variances, sets forth additional examples of circumstances warranting a variance and incorporates a new form, Petition for Variance Form No. LEG-R.42.00-0589 (9/28/10) required to be submitted in order to request a variance. The form will streamline processing of requests for variances from Chapter 40D-22, F.A.C.
SUMMARY: Chapter 40D-22, F.A.C. comprises the District’s Year-Round Conservation Measures and promotes long-term sustainability of the water resources of the District through efficient use of water by regulatory means during times when no water shortage has been declared. This rulemaking revises or adds definitions to make Chapter 40D-21, F.A.C. (Water Shortage Plan) and Chapter 40D-22, F.A.C. (Year-Round Conservation Measures) consistent. The rulemaking revises the definition of “Address” and “Agriculture” and adds a definition for the lawn and landscape practice of Core Aerification. Amendments are also made to specify that Spot Treatment of lawns shall only be accomplished during allowable hours for irrigation, provide for an allowance for extra watering of Turfgrass for a 14-day period after Core Aerification has occurred, add an establishment period schedule for irrigation of properties without discernable addresses, cemeteries and properties two acres or greater in size, and allow for extra irrigation for salt flushing after tropical storms or hurricanes. This rulemaking also incorporates a new Petition for Variance form No. LEG-R.42.00-058 (9/28/10) that will be used for requests for relief from Chapters 40D-21 and 40D-22, F.A.C., and Water Shortage Orders rendered under Chapter 40D-21, F.A.C.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The Statement of Estimated Regulatory Costs (SERC) describes the potential impacts associated with proposed revisions to Chapter 40D-22, F.A.C. The Chapter comprises the District’s Year-Round Water Conservation Measures. The Chapter applies to all water users engaged in irrigation. The revisions to the chapter are proposed to address minor glitches, omissions and consistency of definitions with Chapter 40D-21, F.A.C., the District’s Water Shortage Plan, and to incorporate a standardized form to be used for petitions for variances. If historical activity levels persist, it is anticipated that approximately 70 individuals or entities each year will elect to file a petition for a variance and so will be required to submit petitions for variance using the standardized form. The proposed Petition for Variance form includes a section “Helpful Tips and Samples” that includes a provision explaining that the District is authorized to establish limiting conditions for variances issued from Chapter 40D-22, F.A.C., in order to assure that the relief being provided is the minimum necessary to alleviate the circumstances for which the variance was requested. An example of such a condition is that if the variance is granted, the petitioner is to conduct an irrigation system evaluation in order to identify inefficiencies within the irrigation system such as inoperable sprinkler heads, time clock adjustments, over-irrigation or overlapping irrigation zones. These evaluations can be performed by the petitioner or by an irrigation contractor. Costs to have an irrigation evaluation performed by an irrigation contractor are likely to range from $125 to $1,500 depending on the size and complexity of the irrigation system. Self-conducted evaluations are likely to be less costly than evaluations conducted by a contractor. The costs of testing, adjusting, and replacing components causing inefficiencies may be offset by reduced water costs. Small businesses issued a variance from provisions of Chapter 40D-22, F.A.C., may incur the cost of irrigation system evaluations if the limiting condition is placed on the variance issued by the District. Implementation costs may be incurred by those local government entities that have adopted, by ordinance, specific provisions of Chapter 40D-22, F.A.C., that are in conflict or otherwise inconsistent with the proposed revisions to the Chapter. Small businesses, cities and counties may incur transactional costs associated with irrigation evaluations if they request variances. The proposed revisions are not expected to incur costs to the District or significantly affect the revenues of any state or local government entities.
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: 120.542, 373.044, 373.113, 373.171 FS.
LAW IMPLEMENTED: 120.542, 373.119, 373.171, 373.175(4), 373.219, 373.223, 373.246(7), 373.62, 373.609 FS.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Pam Gifford, Office of General Counsel, 2379 Broad St., Brooksville, FL 34604-6899, (352)796-7211 (4156) (OGC #2010039)


40D-22.101 Definitions.

When used in this rule:

(1) “Address” means the numeric or alphanumeric designation assigned to a house, building or plot of land by the U.S. Postal Service or, if none, by the local government, “house” (a numeric or alphanumeric designation) that, together with the street name, describes the physical location of a specific property. This includes “rural route” numbers but excludes post office box numbers. If a lot number in a mobile home park or similar community is used by the U.S. Postal Service to determine a delivery location, the lot number shall be the property’s address. If a lot number in a mobile home park or similar residential community is not used by the U.S. Postal Service (e.g., the park manager sorts incoming mail delivered to the community’s address), then the community’s main address shall be the property’s address, unless otherwise designated by the local government.

(2) “Agriculture” means the science and art of production of plants and animals useful to humans, including to a variable extent the preparation of these products for human use and their disposal by marketing or otherwise, and includes aquaculture, horticulture, floriculture, zoological and botanical specimen exhibits, viticulture, forestry, dairy, livestock, pasture, poultry, bees, and any and all forms of farm products and farm production. This includes the irrigation of vegetables, fruits and other plants grown for human consumption at a residence or community garden, provided the plants are irrigated separately from any lawn or other landscape plant material. In order for irrigation of a fruit tree at a residence or community garden to be considered Agriculture, the irrigation shall not be applied to any Lawn or Landscape plant material. Plant nurseries and Turfgrass production (sod farming) are agriculture.; The however, the care of new or Existing Lawns, non-edible Landscapes, Cemeteries, Golf Courses and Athletic Play Areas are not classified as Agriculture for the purpose of this chapter.

(3) through (4) No change.

(5) “Core Aerification” means the process of mechanically removing cores or plugs of soil to relieve soil compaction and allowing oxygen, water and nutrients to enter the ground.

(5) through (30) renumbered (6) through (31) No change.

Rulemaking Specific Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.171, 373.219, 373.223 FS. History–New 3-24-92, Amended 9-15-03,________.


40D-22.201 Year-Round Water Conservation Measures.

(1) through (2) No change.

(3) Irrigation Uses – The following requirements shall apply to all Irrigation except Agriculture, for example: Lawns, Landscapes, Golf Courses, and other Athletic Play Areas.

(a) through (d) No change.

(e) Lawns may be Spot Treated without regard to the normally allowable watering days or times. Lawns may only be Spot Treated by Hand-Watering or other targeted, manual means. Spot Treatment shall only be accomplished during allowable irrigation hours.

(f) In order to promote necessary rhizome repair, extra watering of turfgrass may occur on any day of the week for a 14-day period after Core Aerification or Vertical Mowing has occurred. An entire zone of an Irrigation system, may only be used for extra rhizome repair watering if the zone in question is for an area that contains at least 50% Turfgrass recovering from Core Aerification or Vertical Mowing. If a zone contains less than 50% recovering Turfgrass, or if the recovering Turfgrass area is typically not watered by an Irrigation system, only the recovering Turfgrass is eligible for this 14-day exemption. Targeted watering may be accomplished by Hand Watering, or any appropriate method which isolates and waters only the recovering Turfgrass.

(g) New Plant Material shall only be irrigated as follows:

1. Any New Plant Material may be irrigated, for the purpose of maintaining plant health and encouraging root grow-in, during a 60-day establishment period. From day 1 through day 30 of this establishment period, irrigation may occur on any day of the week. From day 31 through day 60 of this establishment period, irrigation is limited to one application on each of three specified days, except as otherwise provided herein. The three allowable days shall be as follows: Even Numbered Addresses may provide establishment period irrigation on Tuesday, Thursday and Sunday and Odd Numbered Addresses may provide establishment period irrigation on Monday, Wednesday and Saturday. Cemeteries and other properties two acres or greater are permitted to use an alternative schedule to provide three days of establishment irrigation per week from day 31 through day 60 so long as a written schedule of establishment period watering is maintained at the property. From day 31 through day 60, properties with no discernable address, such as common areas and rights of way, are permitted to provide establishment period irrigation on Tuesday, Friday and Sunday.

2. through 7. No change.

(h) through (j) No change.

(k) One extra irrigation application may occur within 72 hours of the conclusion of a named tropical storm or hurricane warning, if needed, to flush salt from plant material that was inundated or subjected to spray from saltwater or brackish water.

(4) through (7) No change.

Rulemaking Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.171, 373.219, 373.223, 373.62 FS. History–New 3-24-92, Amended 9-15-03, 11-05-09,________.


40D-22.303 Variances and Waivers.

(1) Users may request relief from the provisions of this Chapter 40D-22, F.A.C., by 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, or by filing a petition for variance or waiver, as applicable, pursuant to Section 120.542, F.S., and Chapter 28-104, F.A.C. 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) through (d) No change.

(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.

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

(2) through (4) No change.

Rulemaking Specific 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 _________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Lois Sorensen, Demand Management Program Manager
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Southwest Florida Water Management District Governing Board