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HomeMy WebLinkAboutFYI NFUCG Ltr to FDEP Re.LSFIR Workshop `gyp.( cotiA,i` Clay County Utility Authority Working together to 3176 Old Jennings Road protect public health, 011411 Middleburg,FL 32068-3907 conserve our natural G • Telephone(904)272-5999 resources,and create ���IT OQ`� www.clayutility.org long-temi value for 1'AU(H our ratepayers. December 30, 2021 VIA EMAIL OWP rulemaking@floridadep.gov Ms. Stefani Weeks, PE Florida Department of Environmental Protection Office of Water Policy and Ecosystems Restoration 3900 Commonwealth Blvd., MS 24 Tallahassee, FL 32399 Re: Notice of Rule Development for Minimum Flows and Recovery and Prevention Strategies -0a Lower Santa Fe and Ichetucknee Rivers and Priority Springs Dear Ms. Weeks: 0 On behalf of the North Florida Utilities Coordinating Group (NFUCG), I write to you regarding the ongoing mreevaluation of the Lower Santa Fe and Ichetucknee Rivers and Priority Springs (LSFIR) MFLs and the proposed rulemaking discussed at the Florida Department of Environmental Protection's (Department) December 10, 2021, workshop. The NFUCG consists of 8 public water supply utilities in North Florida serving over 1.2 million residents. The NFUCG's member utilities are committed to providing clean, safe, affordable potable water to our communities while protecting our shared water resources and natural systems.We achieve those goals in part through long-term planning and coordination with the Suwannee River Water Management District (SRWMD), St. Johns River Water Management District (SJRWMD), the Department, other regulatory agencies, and other key community stakeholders. The NFUCG and its member utilities were participants in both the development and adoption of the existing LSFIR MFLs and associated recovery strategy that took effect in 2015. We remain engaged in the current ongoing rule development process for the adoption of updated LSFIR MFLs,and representatives of the NFUCG attended the Rule Workshop on December 10, 2021. To date,only certain portions of the draft Recovery Strategy have been presented by the Department, including the outline of potential regulatory measures presented at the December 10, 2021,workshop. We invested a significant amount of time evaluating the MFL and associated Recovery Strategy. We were not able to understand how the published documents comply with the requirements of Chapter 373, Florida Statutes. We were also unable to understand how the regulations proposed would protect the LSFIR from significant harm while assuring existing and projected water uses are met. All interested parties should see and understand the complete picture that these regulations and Recovery Strategy are intended to achieve. 1 Based on the proposed MFL, we consider the most critical aspect of the Recovery Strategy will be the identification of water resource development and water supply projects. We continue to believe that the Recovery Strategy and associated regulatory components will only be as good as the projects identified and developed to achieve MFL compliance. Feasible projects that can be implemented to address all water users' impacts, whether they are regulated or unregulated by a consumptive use permit (CUP), are the keys to a strategy that addresses the MFL issues for these water bodies.We do not see or understand a Recovery Strategy at this time due to the fact potential projects have yet to be announced or described by the Department and no one has any understanding of the potential feasibility or costs of such projects. As such, the materials presented by the Department are without context for the big picture and implications on water users, and taxpayers, and ratepayers. Nonetheless, we provide the following comments on the materials presented at the December 10, 2021, workshop for consideration by the Department: 1. For a successful MFL recovery, feasible water resource development projects in close enough proximity to the MFLs must be implemented to address water users' proportional impact. Proposed projects in the Recovery Strategy need to be implemented in close enough proximity to the MFL water bodies to cost-effectively address the impacts to the water bodies. Preliminary evaluation of the proposed regulations and supporting technical models indicate that projects implemented at significant distances from the regulated water bodies will have very little positive impact in addressing liabilities determined under these rules and regulations. This means that regulated water uses distant from the MFL water bodies cannot address their impacts to the regulated water bodies solely by projects in their own service areas as suggested by the proposed Supplemental Regulatory Measures. Successful recovery will require identification and development of projects in the Recovery Strategy near to the MFLs, and a mechanism for those projects to provide offsets to more distant water users. As mentioned, these have to not been proposed or determined by the Department. 2. The Supplemental Regulatory Measures should apply to all users impacting the MFL water bodies and not be limited to the North Florida Water Supply Planning Area (NFRWSPA). The evaluations previously presented by the Department indicate that significant portions of the impacts to the MFL water bodies are caused by water withdrawals by currently unregulated users, such as water users in the State of Georgia, water users below current individual permitting thresholds, and water users outside the NFRWSPA. All of these water users should be taken into account as part of the Recovery Strategy. For example,the draft regulatory measures presented indicate they would only apply within those portions of SRWMD and SJRWMD in the NFRWSPA. Based on information provided by the Department, permitted water users outside the NFRWSPA reduce the flow in the MFL water bodies by several cubic feet per second (cfs). By limiting the proposed rules to water users within the NFRWSPA, these impacts will not be directly offset by the responsible users.Therefore, water users within the NFRWSPA, or alternatively taxpayers and ratepayers,will be responsible for funding the projects required to offset those uses.Since the Department is promulgating the rules pursuant to Section 373.042(5), Florida Statutes, which provides for application of a Department-adopted recovery strategy by water management districts without further rulemaking, there is no reason to arbitrarily limit the geographic scope of applicability,when the regulatory strategy can be applied to water users in SRWMD and SJRWMD outside of the NFRWSPA and water users in the Southwest Florida Water Management District that are causing or contributing to impacts to the MFL water bodies. For example, the regulatory prevention strategy components of SJRWMD's Silver Springs MFLs require impacts from all permitted water users within the applicable model domain to be addressed. 2 3. Impacts from non-individually permitted users must be addressed. Information presented at the October 14, 2021, workshop indicated that, for uses in the Partnership area, about 39% of the impacts to the Ichetucknee River are the result of self-supply and water users operating under a general permit by rule. Under Section 373.219, Florida Statutes, the only category of water use exempt from permitting is domestic consumption of water by individual users,which includes water use for drinking, bathing, cooking, or sanitation. Notably, irrigation is not included in this exemption. While a small component of these uses causing impacts to the MFL water bodies may be exempt of regulation, the majority of these impacts could be addressed by regulatory changes. The proposed Supplemental Regulatory Measures do not address uses which are not subject to an individual permit. We recommend inclusion of regulatory changes to address impacts from these users,given that they consist of a significant component of the impacts. 4. Impact thresholds should be clarified. The proposed Supplemental Regulatory Measures indicate that permittees must "fully address (i.e., 100%) their impacts". This is essentially the same requirement as under the current Recovery Strategy for these water bodies. Nonetheless, since enactment of the current recovery strategy in 2015, the SRWMD has issued permits to over 100 "small" users who impact these water bodies and have cumulatively decreased flows in the MFL water bodies by many cfs. We request that the regulatory language make it clear that when permittees are required to address 100% of their impacts, there is no exemption for "small" users, since the cumulative impacts of these users are significant. 5. The timing and scope of permittee obligations must be clear. to We consider,of paramount importance,that any proposed rule provides sufficient clarity and specificity to allow any regulated person or entity the ability to reasonably understand what their obligations are, and when those obligations come due. The outline of regulatory requirements presented at the December 10, 2021, workshop indicates that regulated entities must submit a plan for review that demonstrates how the permittee will offset their proportionate share of impacts through projects or strategies, including a schedule for implementation including a start and completion date, the latter of which should be as soon as practicable and in no case more than 20 years from the effective date of the rule. The members of the NFUCG need much greater specificity to understand how this requirement would be interpreted, applied, and implemented, for example: • As stated above, the Department premised the strategy and/or regulation on identification and construction of projects that would offset all impacts contributing to a violation of the proposed MFLs. However, to date, the Department, the Districts, regulated entities, and others have not identified the projects that may be developed. Therefore no one would be capable of evaluating the level of offset that may be provided by each of those entities, or what options may exist to achieve offsets through the regional water resource projects that will necessarily be a critical component of recovery. • Permittees must start offsetting projects and other strategies "as soon as practicable" however there is no guidance regarding how this may be applied. Development of projects and other strategies, particularly on a large scale, requires significant timeframes for the planning,design,and implementation of those investments. Our members, and likely most large industries and other regulated entities, need to know what timeframes are applicable, and whether compliance is even feasible as the MFL is currently constructed.As written,the draft regulatory language would appear 3 to vest in the Districts unbridled discretion to decide what projects are feasible, and what timeframes are practicable, with the consequence that rejection of a plan could result in denial of a permit or imposition of permit limitations that would be contrary to the requirements of Chapter 373. Any regulatory requirements should establish adequate standards so regulated entities can plan appropriately and be assured that all regulated entities will be treated equally. 6. Rewrite Contradictory Language In "Recovery of MFL Compliance Points"Section. The language of the first sentence of the second paragraph under the"Recovery of MFL Compliance Points" section states that in determining a permittee's proportionate share, the District will consider the magnitude of the permittee's withdrawals along with any offsets. The second sentence of this paragraph then provides that benefits associated with a permittee implemented offset project will be calculated and applied to the permittee's offset of their proportionate impact. These two sentences are inherently contradictory because the first sentence requires the use of the permittee's offset to establish the permittee's proportionate impact whereas the second sentence says that same offset is used to offset the permittee's proportionate impact. This section should be rewritten to state that first the permittee's proportionate impact will be established considering the magnitude and location of the permittee's withdrawals. Then permittee implemented offsets will be calculated and applied to offset the permittee's proportionate impact considering the magnitude, nature, and location of such offset. This proposed change eliminates the ambiguity and is consistent with the formulas presented by the Department at the December 10, 2021, workshop. The NFUCG's member utilities continue to make large investments and take significant actions to assure that water served in our communities is used efficiently.We also remain committed to participating in recovery and prevention to plans to the proportional share of our customers' impacts relative to the total impact by all users as they are supported by sound science and public policy. We look forward to working with you on this important rulemaking, and we would be happy to meet to further discuss these comments. Sincerely, my Jo nston, E, MBA Executive Director Clay County Utility Authority Submitted on behalf of NFUCG cc: Hugh Thomas(Hugh.Thomas@srwmd.org) SRWMD Executive Director Adam Blalock, Esq. (adam.blalock@FloridaDEP.gov) FDEP Deputy Secretary Ecosystem Restoration Mike Register, P.E. (mregiste@sjrwmd.com) SJRWMD Executive Director NFUCG Members 4