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HomeMy WebLinkAboutFYI 2022.04.08 NFUCG OFS Comment Letter II sM GAINESVILLE REGIONAL UTILITIES � w-- - W More than E n e r g yr" Water/Wastewater Division April 8, 2021 VIA EMAIL OWPrulemaking@floridadep.gov Stefani Weeks 3900 Commonwealth Boulevard Mail Station 46 Tallahassee, Florida 32399 Re: North Florida Utility Coordinating Group OFS Rule Development Workshop Dear Ms.Weeks: On behalf of the North Florida Utilities Coordinating Group (NFUCG), I am writing to provide comment regarding the Florida Department of Environmental Protection's (FDEP) March 21, 2022 workshop for the development of uniform rules for issuing permits and a uniform definition of the term "harmful to the • water resources" in relation to Outstanding Florida Springs (OFS). NFUCG's members have long been a committed to providing clean, safe, affordable potable water to our communities while protecting our `° shared water resources and natural systems, including the many springs that provide immeasurable natural, recreational, and economic value to North Florida. We achieve these goals in part through long- ' term planning and coordination with FDEP, the water management districts, other regulatory agencies, and other stakeholders. As you know, NFUCG and its members have been long-time participants in FDEP and water management district efforts to protect OFS. We recognize the critical importance of protecting OFS and appreciate FDEP's initiation of rulemaking to implement the provisions Chapter 2016-1, Laws of Florida, as codified in Section 373.219(3), Florida Statutes regarding OFS. It is also very important that rules are structured so that we and other stakeholders are able to understand how to comply with the rules. NFUCG offers the following comments on the draft rule language that was discussed at the recent workshop: • The draft rule should be consistent with the Legislature's direction. Section 373.219(3), Florida Statutes provides that: For OFS, the department shall adopt uniform rules for issuing permits which prevent groundwater withdrawals that are harmful to the water resources and adopt by rule a uniform definition of the term "harmful to the water resources" to provide water management districts with minimum standards necessary to be consistent with the overall water policy of the state. This subsection does not prohibit a water management district from adopting a definition that is more protective of the water resources consistent with local or regional conditions and objectives. The language of this provision makes it clear that rulemaking to adopt a "harm" standard for OFS is intended to establish "minimum standards," and contains no suggestion that the "harm" P.O. Box 147117, Station A136, Gainesville, Florida 32614-7117, Phone: (352) 393-1218 standard of definition of "harmful to the water resources" should be more restrictive than the "harm" standards that can be found in existing water management district regulations. For example, in 2014 the water management districts coordinated in the adoption of consistent statewide consumptive use permitting criteria referred to as CUPCon. This included the water management district adopting consistent "harm" permitting criteria. It is reasonable to conclude that these existing harm standards reflect the "overall water policy of the state" referenced in Section 373.219(3). It is also instructive that in addition to the "harm" rulemaking applicable to OFS, Ch. 2016-1, Laws of Florida also directed FDEP to adopt a "single uniform definition of the term 'harmful to the water resources' consistent with the term's usage in s. 373.219" for the Central Florida Water Initiative (CFWI) Area. This "harm" definition was ultimately adopted by FDEP in 2021. Given that Ch. 2016-1 uses similar language with regard to the adoption of the "harmful to the water resources" definition for both OFS and CFWI, the definition of "harmful to the water resources" and associated conditions for permit issuance adopted for OFS should be consistent with those adopted for the CFWI Area. • The interaction between the draft rules and OFS MFLs and prevention/recovery strategies should be addressed. Ch. 2016-1, Laws of Florida also directed the water management districts and/or FDEP to adopt minimum flows and levels (MFLs) for OFS no later than July 1, 2017 (with the exception of the Northwest Florida Water Management District), and concurrently adopt a to recovery or prevention strategy for those OFS that are below or projected within 20 years to fall below the established MFL that achieves the MFL no more than 20 years after the adoption of the recovery or prevention strategy. FDEP and the water management districts have subsequently devoted significant resources to the establishment of OFS MFLs and when necessary associated prevention or recovery strategies that provide a comprehensive approach to achieve MFL compliance.The draft rules should explain the interaction between evaluation of compliance with the new OFS criteria and compliance with an OFS MFL or prevention/recovery strategy, and provide for demonstrating compliance with the proposed criteria through compliance with the requirements of an adopted OFS MFL prevention/recovery strategy. • The draft rule should make it clear when and where its requirements apply. Draft Rule 62- 41.400, F.A.C. indicates that the draft conditions for issuance and "harmful to the water resources" definition apply to consumptive uses of water that "impact an Outstanding Florida Spring springshed." It is not clear from the draft rule language when a given existing or proposed consumptive use of water is considered to be subject to the proposed conditions for issuance or "harm" definition. As currently written, it is not clear when a given water use would be considered to "contribute" to a change in the discharge of a given OFS, which would lead the water management districts and water users throughout the state uncertain as to where these requirements do or do not apply. The draft rule should provide clear standards that allow stakeholders to determine when the proposed requirements apply. Without this guidance, there is a risk that the rules could be applied in an arbitrary or inconsistent manner, depending on the permittee or permit issuer. This concern is particularly significant since the draft rules are potentially of state-wide application. Unlike other water use regulations, which are applicable within a particular water management district's jurisdictional boundaries, or in the case of regional rules such as those adopted by FDEP for the CFWI Area which apply to a defined geographic area, the OFS regulations would potentially apply to any water user in the state whose groundwater withdrawals occur in an aquifer which contributes to an OFS, even if the impact of that withdrawal is only theoretical or is de minimis. This is particularly the case since the draft rule also provides that the conditions must be considered on an individual and cumulative basis. As a result, the draft rule should provide clear guidance as to the areas and/or levels of impact to which it is applicable. • The draft rule should make clear whether it supersedes existing water management district or FDEP rules, or how conflicts between the proposed rules and existing rules should be interpreted. Existing water management district rules contain their own conditions for issuance and in some cases their own definitions of "harmful to the water resource." In many cases these existing criteria are identical to or very similar to the new proposed OFS permitting criteria and "harm" definition, though there are some differences depending on the water management district or area of the state. The draft rule should provide clear guidance regarding whether the draft rules are considered to supersede other water use regulations, and how they are to be interpreted in consideration of other existing regulations. to • The draft rule should clearly outline the information applicants must provide to comply with the "harmful to the water resources" criteria. The current rule draft's new uniform definition of "harmful to the water resources" would impose new undefined permitting criteria. For example, proposed Rule 61-41.402(2)(d) would require consumptive use permit (CUP) applicants to demonstrate that their proposed water withdrawal would not result in hydrologic alterations to an OFS that "cause adverse impacts to the aquatic or wetland dependent flora or fauna in the spring" But the current rule draft does not define what is an "adverse impact" in this context nor does it provide any details on what a CUP applicant must do to show no adverse impact. This also means that the water management districts have no details on how to evaluate a proposed use for an adverse impact. In addition,the inconsistent use of terms like "harmful," "adverse impact," and "increase" are vague and leave those applying or interpreting the draft regulations to guess as to whether or to what extent these terms are intended to impose differing standards of review for the identified items, and depending on how they are interpreted, could impose a "no change" standard that is inconsistent with Chapter 373, Florida Statutes. Without this information, CUP applicants have no guidance on how to comply with this criterion and the water management districts have no clear means of determining whether a CUP application meets this criterion. DEP should revise the current rule draft to address these vague and potentially overbroad criteria. For example, in CFWI "harmful to the water resources" is defined as "a determination of harm to the water resources following an evaluation of the conditions for issuance of permits set forth in subparagraphs 62-41.301(2)(g), F.A.C." A similar definition of"harmful to the water resources" for OFS would address this issue. As always, we look forward to continuing to work with you on these important issues, and we would appreciate the opportunity to meet with you to further discuss this important rulemaking effort. Sincerely, Rick Hutton, PE Supervising Water and Wastewater Engineer, GRU Submitted on behalf of NFUCG to