40E-8.011: Purpose and General Provisions
40E-8.021: Definitions
40E-8.221: Minimum Flows and Levels: Surface Waters
40E-8.321: Minimum Flows and Levels: Surface Waters
40E-8.341: Minimum Flows and Levels: Surface Waters for Upper East Coast Regional Planning Area
40E-8.421: Prevention and Recovery Strategies
PURPOSE AND EFFECT: To update the District’s rules to ensure that its rules are correct and comply with statutory requirements, in accordance with Section 120.74, F.S.
SUMMARY: The proposed amendments update incorporation language in accordance with Section 120.55(1)(a)4. and 5., F.S.; add ePermitting as an option, which is consistent with other rules; update delegation pursuant to Section 373.079(4) and 373.083(5), F.S.; correct typographical errors; and add acronym to title.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:
The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.
The proposed amendments are procedural in nature and do not have an economic impact.
The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The proposed amendments are procedural in nature and do not have an economic impact.
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.
RULEMAKING AUTHORITY: 373.042, 373.044, 373.113, 373.119, 373.129, 373.136, 373.171 FS.
LAW IMPLEMENTED: 373.016, 373.036, 373.0361, 373.042, 373.0421, 373.175, 373.216, 373.219, 373.223, 373.246 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: August 9, 2012, 9:00 a.m.
PLACE: South Florida Water Management District, B-1 Auditorium, 3301 Gun Club Road, West Palm Beach, FL 33406
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: South Florida Water Management District Clerk, 1(800)432-2045, ext. 2087, or (561)682-2087. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Paulette Glebocki, Lead Hydrogeologist, South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, FL 33406, pglebock@sfwmd.gov, 1(800)432-2045, ext. 6941, or (561)682-6941. For procedural questions contact Jan Sluth, Senior Paralegal, South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, FL 33406, jsluth@sfwmd.gov, 1(800)432-2045, ext. 6299, or (561)682-6299
THE FULL TEXT OF THE PROPOSED RULE IS:
40E-8.011 Purpose and General Provisions.
(1) through (3) No change.
(4) The recovery and prevention strategies set forth in Rule 40E-8.421, F.A.C., the consumptive use permitting procedures described in paragraph 40E-2.301(1)(i), Rule 40E-8.431, F.A.C., Section 3.9 of the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District – September 10, 2001,”, incorporated by reference in Rules 40E-2.091 and 40E-20.091, F.A.C., the water shortage plan implementation provisions specified in Rules 40E-8.441, 40E-21.531, and 40E-21.541, and Part III of Chapter 40E-22, F.A.C., September 10, 2001, are inseparable components of the MFLs minimum flows and levels established in Rules 40E-8.321 and 40E-8.331, F.A.C., September 10, 2001. The District would not have adopted the MFLs minimum flows and levels set forth in Rules 40E-8.321 and 40E-8.331, F.A.C., for Lake Okeechobee, the Everglades, the Biscayne Aquifer, the Lower West Coast Aquifers, and the Caloosahatchee River without simultaneously adopting their related implementation rules. If the rules cited above, as they pertain to a specified MFL water body, are found to be invalid, in whole or in part, such specified minimum flow(s) or level(s) in Rule 40E-8.321 or 40E-8.331, F.A.C., (including Lake Okeechobee, Everglades, Biscayne Aquifer, Lower West Coast Aquifers, Caloosahatchee River) (month, year) shall not be adopted, or if already in effect, shall not continue to be applied, until the District amends the applicable regional water supply plan(s), as necessary, and amends the subject rules, as necessary to address the reason for invalidity consistent with the requirements of Section 373.0421, F.S. This section shall be triggered after a rule is found to be invalid pursuant to a final order issued under Section 120.56, F.S., and after appellate review remedies have been exhausted.
(5)(a) through (d) No change.
(e) Establish MFLs Minimum Flows and levels for other tributaries to the Northwest Fork of the Loxahatchee River including Loxahatchee Slough, Cypress Creek, Kitching Creek and Hobe Grove Ditch as committed to in the District’s Priority Water Body List, as updated.
Rulemaking Specific Authority §§ 9, 10 P.L. 83-358, 373.044, 373.113, 373.171 FS. Law Implemented 373.016, 373.036, 373.0361, 373.042, 373.0421 FS. History–New 9-10-01, Amended 4-1-03, 1-19-06,_________.
40E-8.021 Definitions.
(1) through (15) No change.
(16)(17) MFL Minimum Flow and Level Exceedance – means to fall below a minimum flow or level, which is established in Parts II and III of this chapter, for a duration greater than specified for the MFL water body.
(17)(18) MFL Minimum Flow and Level Violation – means to fall below a minimum flow or minimum level, which is established in Parts II and III of this chapter, for a duration and frequency greater than specified for the MFL water body. Unless otherwise specified herein, in determining the frequency with which water flows and levels fall below an established MFL for purposes of determining an MFL violation, a “year” means 365 days from the last day of the previous MFL exceedance.
(18)(20) MFL Water Body – means any surface water, watercourse, or aquifer for which an MFL is established in Part II or III of this chapter.
(19)(16) Minimum Flow – means a flow established by the District pursuant to Sections 373.042 and 373.0421, F.S., for a given water body and set forth in Parts II and III of this chapter, at which further withdrawals would be significantly harmful to the water resources or ecology of the area.
(20)(19) Minimum Level – means the level of groundwater in an aquifer or the level of surface water established by the District pursuant to Sections 373.042 and 373.0421, F.S., in Parts II and III of this chapter, at which further withdrawals would be significantly harmful to the water resources of the area.
(21) Northwest Fork of the Loxahatchee River: Means those areas defined below:
(a) Northwest Fork of the Loxahatchee River that has been federally designated as Wild, Scenic and Recreational uses (as defined in the Loxahatchee River Wild and Scenic River Management Plan 2000) (see Map 1, incorporated herein), including the river channel that extends from river mile 6.0 (latitude 26.9856, longitude 80.1426) located near the eastern edge of Jonathan Dickinson State Park and continues upstream to the G-92 structure (latitude 26.91014, longitude 80.17578), including the South Indian River Water Control District Canal C-14 Canal. The river channel includes the physical water flow courses and adjacent floodplain up to the limits of the floodplain swamp and wetlands within Riverbend Park, as determined by state wetland delineation criteria;
(b) through (d) No change.
(22) through (31) No change.
Rulemaking Specific Authority §§ 9, 10 P.L. 83-358, 373.044, 373.113, 373.119, 373.129, 373.136, 373.171 FS. Law Implemented 373.016, 373.036, 373.0361, 373.042, 373.0421, 373.175, 373.216, 373.219, 373.223, 373.246 FS. History–New 9-10-01, Amended 11-11-02, 4-1-03, 1-19-06, 12-12-06,_________.
40E-8.221 Minimum Flows and Levels (MFLs): Surface Waters.
(1) through (5) No change.
Rulemaking Specific Authority §§ 9, 10 P.L. 83-358, 373.042, 373.044, 373.113, 373.119, 373.129, 373.136, 373.171 FS. Law Implemented 373.016, 373.036, 373.0361, 373.042, 373.0421, 373.175, 373.216, 373.219, 373.223, 373.246 FS. History–New 9-10-01, Amended 4-1-03, 12-12-06.
40E-8.321 Minimum Flows and Levels (MFLs): Surface Waters.
No change.
Rulemaking Specific Authority 373.044, 373.113, 373.119, 373.129, 373.136, 373.171 FS. Law Implemented 373.016, 373.036, 373.0361, 373.042, 373.0421, 373.175, 373.216, 373.219, 373.223, 373.246 FS. History–New 9-10-01.
40E-8.341 Minimum Flows and Levels (MFLs): Surface Waters for Upper East Coast Regional Planning Area.
No change.
Rulemaking Specific Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.016, 373.036, 373.0361, 373.042, 373.0421 FS. History–New 11-11-02.
40E-8.421 Prevention and Recovery Strategies.
(1)(a) through (b) No change.
(c) The rules implementing water resource protection tools, including Chapters 40E-2, 40E-8, 40E-20, 40E-21, 40E-22, F.A.C., and the “Basis of Review for Consumptive Use Permits Within the South Florida Water Management District – April 23, 2007”, incorporated by reference in Rules 40E-2.091 and 40E-20.091, F.A.C., identify the specific factors and conditions that will be applied and considered in implementing the conceptual model. Due to the extreme variations in water resource conditions, climatic conditions, hydrologic conditions, and economic considerations that will be faced when implementing these rules, it is critical to apply such criteria flexibly and to reserve for the governing board the ability to implement water resource protection and allocation programs considering all of the District’s missions under Chapter 373, F.S., and to balance water supply, flood protection, resource protection and water quality protection needs. Implementation of the recovery and prevention strategies will be achieved in compliance with the assurances to consumptive users and to natural systems contained in the LEC Plan and the LWC Plan.
(d) through (f) No change.
(2) through (5) No change.
(6) Northwest Fork of the Loxahatchee River Recovery Strategy: Purpose and Intent.
(a) The Northwest Fork of the Loxahatchee River is currently not meeting the MFL and requires implementation of a recovery strategy to achieve the MFL as soon as practicable, consistent with Section 373.0421, F.S. The recovery strategy consists of projects contained within the following approved plans: the Lower East Coast Regional Water Supply Plan (LEC Plan), the Comprehensive Everglades Restoration Plan (CERP), and the Northern Palm Beach County Comprehensive Water Management Plan (NPBCCWMP). Four phases of recovery are identified in the Technical Documentation to Support Development of Minimum Flows and Levels for the Northwest Fork of the Loxahatchee River, November 2002, which are projected to increase flows to meet the MFL for the Northwest Fork of the Loxahatchee River. As part of the recovery strategy, as provided in this rule, the consumptive use permitting and water shortage requirements in this Chapter and Chapters 40E-2, 40E-20, 40E-21, F.A.C., and the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District – April 23, 2007”, incorporated by reference in Rules 40E-2.091 and 40E-20.091, F.A.C., including Section 3.2.1.E. regarding Restricted Allocation Areas for Lower East Coast Everglades Waterbodies and North Palm Beach County/Loxahatchee River Watershed Waterbodies, shall apply to consumptive use direct and indirect withdrawals from surface and groundwater sources from the Northwest Fork of the Loxahatchee River and those areas directly tributary to the Northwest Fork.
(b) through (f) No change.
(g) As reservations are adopted to restore the Loxahatchee River beyond that to be achieved by the MFL, the District shall revise the MFL minimum flow and level and associated prevention and recovery strategy, as appropriate, under Sections 373.042 and 373.0421, F.S., to be consistent with the reservation.
(7) through (8) No change.
Rulemaking Specific Authority §§ 9, 10 P.L. 83-358, 373.044, 373.113, 373.171 FS. Law Implemented 373.016, 373.036, 373.0361, 373.042, 373.0421, 373.175, 373.216, 373.219, 373.223, 373.246 FS. History–New 9-10-01, Amended 11-11-02, 4-1-03, 1-19-06, 12-12-06, 4-23-07, 10-14-08,_________.