Rule Updates

Amendments to 40D-22, Year-round Water Conservation 40D-22, F.A.C.

Amendments to Chapter 40D-22, F.A.C., Year-round Water Conservation Measures went into effect on September 15, 2003. The Board approved the year-round conservation measures to ensure that water conservation is a part of everyday water use and not practiced only during a drought. The amendments limit irrigation to two days per week. These rules replace rules adopted in 1984 – which primarily banned watering between the hours of 10 a.m. and 4 p.m. – and water shortage orders that have been in place since 1992. The two-day restrictions on irrigation have been in effect District-wide as part of water shortage orders since 1992 with the exception of recent temporary one-day restrictions to address the drought. The two day a week year round conservation measure is one of the most proactive year-round conservation measures in the state.

The year-round measures will serve as a baseline for conservation. Any future water shortage or emergency water shortage restrictions declared through the District’s water shortage rules or orders would be in addition to these year-round measures. The District will continue to require additional water conservation by all water users, including public supply, industry, agriculture and golf courses, through their water use permits.

Rescission of Water Shortage Orders

The Governing Board originally passed a District-wide watering restrictions emergency order in April 2000 during the most severe phase of a three-year drought. The emergency order reducing landscape irrigation to one day per week, along with additional restrictions on all water users including agriculture and golf courses. The one-day restriction on irrigation was lifted in October 2001 for all users except Tampa Bay Water wellfield customers. Hydrologic conditions at those wellfields continued to be depressed until this summer, following a wetter than normal spring and more than double the normal June rainfall.

The Governing Board rescinded its one-day-a-week restriction on irrigation for customers who receive water from Tampa Bay Water Consolidated Permit Wellfields because the emergency drought conditions in the wellfields no longer existed.

Pursuant to Chapter 40D-22, Year Round Water Conservation, F.A.C., effective September 15, 2003, landscape irrigation is now limited to two days per week.

Rule Development For Chapter 40D-6, Works of the District, F.A.C.

In March 2003, the Governing Board authorized staff to begin the rulemaking process to re-examine the scope of and necessity for Works of the District (WOD) permits in light of the breadth of the current permitting programs under Parts II (Water Use) and IV (ERP) of Chapter 373, F.S.

In September 2003, District staff discussed WOD permits with the Governing Board and stated that it does not believe that WOD permits are necessary to prevent adverse impacts to the water resources. The Governing Board authorized staff to amend the WOD rules, Chapter 40D-6, F.A.C., so that WOD permits are no longer required. In addition, the Governing Board authorized staff to proceed to limit the list of water bodies designated as Works of the District to those water bodies connected or related to District water control structures, flood control operations or resource recovery and restoration projects or operations. Staff will conduct public workshops and bring specific language back to the Board for approval.

Uniform Mitigation Assessment Method

A new rule pertaining to the assessment of wetland impacts and mitigation, Rule 62-345, F.A.C. was adopted on August 6, 2003 and will become effective February 24, 2004. Pursuant to Section 373.414(18), F.S., the Florida Department of Environmental Protection (DEP) and the water management districts were required to develop and the DEP to adopt a uniform mitigation assessment method by rule.

Subsection 373.414(18), F.S, provides that the uniform mitigation assessment method shall be binding on the DEP, the water management districts, local governments, and any other governmental agencies. It will be the sole means to determine the amount of mitigation needed to offset adverse impacts to wetlands and other surface waters and to award and deduct mitigation bank credits. A water management district and any other governmental agency subject to Chapter 120 may apply the uniform mitigation assessment method without the need to adopt it pursuant to Section 120.54.

In accordance with the statutory requirements, the uniform mitigation assessment method determines the value of functions provided by wetlands and other surface waters considering the current conditions of these areas, utilization by fish and wildlife, location, uniqueness, and hydrologic connection, and, when applied to mitigation banks, the factors listed in Section 373.4136(4), F.S. The uniform mitigation assessment method also accounts for the expected time lag associated with offsetting impacts and the degree of risk associated with the proposed mitigation. The uniform mitigation assessment method accounts for all ecological communities in all areas of the state.

Though the rule was adopted in August 2003, it will not be effective until February 4, 2003 to allow for statewide training on the rule. The DEP and the water management districts will conduct training workshops at various times and locations. For information on the training workshops to be conducted by this District, e-mail www.Clark.Hull@swfwmd.state.fl.us and ask to be put on the e-mail list for notice of workshops. This District will use the DEP 62-345 rule e-mail list and any additional addresses sent to Clark Hull to send notices of workshops. If you are already on the DEP's e-mail list you do not need to e-mail Clark Hull.


CASE UPDATES

Water Use Permitting – Whether Staff's Denial of a Permittee's Request For an Extension of Time Under A Consent Order Is Agency Action

Karen A. Lloyd and Margaret Lytle

In Aloha Utilities, Inc. v. Southwest Florida Water Management District, 851 So.2d 156 Fla 2nd DCA 2003), the Second District Court upheld the Governing Board's decision that a staff decision to deny a request for an extension of time to comply with a Consent Order is not an agency action. Aloha Utilities entered into a Consent Order with the District to resolve violations of its water use permit (WUP). Aloha had been exceeding the quantities authorized by its WUP by 30% to 50% consistently since November 1995. The Consent Order provided that Aloha was to be in compliance with its permit within 180 days of the date of the Consent Order (by August 25, 2002). The Consent Order included a provisions allowing for extensions of time by the District upon good cause being shown.

Shortly before the expiration of the 180 days, Aloha requested an extension of time to come into compliance. After staff review, staff issued a letter denying the extension of time. When Aloha failed to comply with the WUP and Consent Order, the District filed suit in circuit court to enforce the Consent Order pursuant to Sections 120.69, 373.083(1) and 373.129, F.S. Aloha subsequently filed a petition with the Governing Board requesting an administrative hearing on the denial of the extension request. The petition was denied based on the grounds that the letter from staff denying the request for a time extension was not an agency action. In December 2002, Aloha appealed the decision to the Second District Court of Appeals.

In its Initial Brief, Aloha argues that the staff letter denying the request for an extension of time to comply with the consent order was a proposed agency action, which affects Aloha's substantial interests, thus entitling Aloha to an administrative hearing pursuant to Sections 120.569 and 120.57, F.S.

The District in its March 4, 2003 Answer Brief argued that the denial was not an agency action. Rather, the denial was an implementation of the Consent Order and was contemplated by and a part of the Consent Order. The District further argues that the denial was not a rule, order, or equivalent action. The Consent Order is a contract between the parties and can be enforced in circuit court, which the District has filed to do. The District argued that the circuit court is the appropriate forum for litigating Aloha's issues concerning the denial of the request for extension. Aloha's substantial interests would not actually be impacted until a judgment is entered by the circuit court.

Oral argument was held on June 18, 2003. On June 27, 2003, the Second District Court of Appeal entered its decision affirming the final order of the Board that denied Aloha's petition for hearing on staff's denial of a request for a time extension.