October 9, 2013 –
Florida rule changes to affect water users

Florida’s five water management districts and the Florida Department of Environmental Protection (DEP) are poised to complete rulemaking this year on substantial changes to Florida’s rules regulating permits for the withdrawal and allocation of water, known as consumptive use permits or CUPs.

Creating greater regulatory consistency has been a chief goal of DEP since Governor Scott took office in 2011. The water management district and DEP rulemaking is the culmination of efforts to bring greater regulatory consistency to CUP rules.

The first phase began with rulemaking by Florida DEP in 2012. That phase made the following changes to the DEP rule that directs water management district water policy:

• Prohibited water management districts from reducing existing water allocations due to temporary changes in economic conditions or population growth rates.
• Prohibited water management districts from reducing agricultural water allocations due to events such as changes in crop type, weather events, or disease during the term of the permit.
• Required water management districts to simultaneously approve recovery and prevention strategies when setting a Minimum Flow or Level (MFL) if the water body is below or projected to fall below the MFL.
• Allowed water management districts, in exchange for successful water conservation, to offer permit extensions commensurate with the amount of water saved.

These rule changes became effective at the end of the 2013 legislative session.

A provision removed from DEP’s rule related to supplemental water in the first phase has been reworked over the summer and is now back in rulemaking. Supplemental water is water that can be used to supplement re-used water so that the re-used water use can be extended to meet peak season demand. The rule establishes that supplementation of re-used water from a better quality water source is allowed, and sets out conditions for the use of the supplemental water.

Meanwhile, the second phase of the CUP consistency effort formally kicked off this summer with the water management districts announcing how they would conform their rules to the DEP rulemaking in phase one. The major changes being undertaken by the water management districts:

• Provide that all consumptive use permits will now come only in two main varieties and the criteria for each such permit type will be the same in every water management district.
• Establish a consistent means of measuring water conservation by utilities, and allows those utilities who agree to meet certain reduction goals to use the saved water in the future without a new CUP.
• Finalize rules for public water supply use of re-used water, as the result of HB 639 passed during the 2013 legislative session.
• Provide standard application and reporting forms across the water management districts.
• Provide standard “limiting conditions” in every CUP.

The water management districts are striving to complete their phase two rulemaking, absent any legal challenges, by the end of 2013. The DEP is planning to finish its rulemaking on supplementation before the start of the legislative session in early March 2014. If the DEP keeps to this schedule, its new rule would become effective at the end of the current legislative session.

These changes could affect water users seeking new or additional water, or renewing their applications for existing uses.

For more information, contact Greg Munson, a new addition to Gunster’s environmental and land use practice and the former DEP Deputy Secretary for Water Policy.