September 15, 2023
Shawn Hamilton, Secretary Florida Department of Environmental Protection
3900 Commonwealth Boulevard M.S. 49 Tallahassee, FL 32399
Dear Secretary Hamilton:
This letter is in reference to the Department’s draft proposed rules 62-41.400 - 62-41.403 released in August 2023.
On January 21, 2016, Governor Rick Scott signed into law Senate Bill 552 which amended section 373.219 F.S. by adding a new subparagraph (3) requiring the Department to adopt: (1) rules for issuing consumptive use permits which prevent groundwater withdrawals that are harmful to Outstanding Florida Springs; and (2) a uniform definition for “harmful to the water resources” to be applied consistently to prevent such impacts.
In SB 552, the Florida Legislature found that many of Florida’s springs are threatened by “flow reductions and declining water quality,” and exhibit signs of “significant ecological imbalance,” and therefore “action is urgently needed.” Nonetheless, for more than seven years the Department has disregarded the law, extending the rulemaking deadline under the dubious and circular rationale that “the department needs additional time to further develop and solicit public comments on the rules associated with this rulemaking effort.” However, considering the lack of workshops during those extensions, the delay certainly was not to gather public input through any transparent public process.
In March 2022, more than six years after SB 552 was signed into law, the Department finally released draft proposed rules 62-41.400, 62-41.401, and 62-41.402. Those proposed rules, to be applied only within Outstanding Florida Springs springsheds, were essentially identical to the rules adopted in 2014 that apply to all consumptive use permit (“CUP”) applications in Florida. The 2014 rules were already in effect for more than a year at the time that SB 552 was signed into law. Adding nothing at all to the existing rules, the proposed rules were clearly inconsistent with the
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requirements of statute and, after near unanimous public objection, were withdrawn by the Department.
Now, a year and a half after the first attempt at rulemaking, the Department has again proposed permitting rules that are nearly identical to the existing rules adopted in 2014, prior to the passage of SB 552. This second set of proposed rules are no more valid than the draft rules proposed in 2022.
The passage of Section 373.219(3) demonstrates the Legislature knew the rules in effect in 2016 were inadequate to prevent groundwater withdrawals that are harmful to Outstanding Florida Springs, and new rules were necessary.
The definition given to the term “harmful to the water resources” may be more protective, or less protective. For example, proposed rules 62-41.400(4) and 62-41.403(1) provide that the new rules do not prohibit an agency from “adopting a definition of the term “harmful to the water resources” that is more protective of the water resources consistent with local or regional conditions and objectives.” A comparison of the general standard in 373.219(1), applying to all CUP applications, and the standard in 373.219(3), to be applied to CUP applications affecting OFS only, demonstrates that the rules for OFS were intended to be more protective :
373.219(1) The governing board or the department may require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure that such use is consistent with the overall objectives of the district or department and is not harmful to the water resources of the area. However, no permit shall be required for domestic consumption of water by individual users.
373.219(3) For Outstanding Florida Springs, 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. (bold added)
Where section 373.219(1) establishes the general and discretionary authority to issue consumptive use permits with “reasonable conditions as are necessary to assure that such use...is not harmful
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to the water resources of the area,” section 373.219(3) requires adoption of uniform rules “which prevent groundwater withdrawals that are harmful” to OFS. These subsections are very different. The specific requirement to adopt rules and a definition to prevent groundwater withdrawals that are harmful to springs is new.
The words of former State Senator David Simmons, the principal author and sponsor of Senate Bill 552, when discussing 373.219(3) during the 11/4/2015 meeting of the Senate Environmental Preservation and Conservation Committee, are telling:
“It is something that is a major, major, step forward in the protection, preservation and clean-up of our springs... What we are doing, is we are putting together a new standard here, not something that has previously been done, but a new standard that defines what is going to control the issuance of the permits and it says we shall prevent groundwater withdrawals which are harmful... I don’t know how much better the Legislature can do in putting something together than this.”
There can be no debate that the Legislature intended DEP to create “a new standard here, not something that has been done before” for the protection of Outstanding Florida Springs against harm from groundwater withdrawals.
Senate Bill 552 also required the Department to create a uniform definition of “harmful to the water resources,” that would apply within the Central Florida Water Initiative area. The “uniform definition of harmful to the water resources” proposed in 62-41.401 is essentially copied and pasted, nearly word for word, from the Central Florida Water Initiative (CFWI) definition established in the Supplemental Applicants Handbook adopted in 2022. Common sense dictates that if the Legislature intended one definition of “harmful to water resources” to be applied throughout Florida, the Legislature would not have authorized the Department to create two new rule definitions “consistent with local or regional conditions and objectives” in two very different parts of Senate Bill 552 that address different water resource issues.
The ”local or regional conditions and objectives” of each rulemaking effort could not be more different. The context of the CFWI is that the water managers determined “the Floridan Aquifer system is locally approaching the sustainable limits of use” which requires “exploring the need to
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develop sources of water to meet the long-term water needs of the area.” The purpose of 373.219(3) is to “prevent groundwater withdrawals that are harmful” to springs. Hence, 373.0465 is designed to make more groundwater available by adoption of an interpretation of “harmful to water resources” that, as a matter of necessity, is at least somewhat less protective of water resources. While section 373.219(3) is designed to be more protective of one class of water resources, Outstanding Florida Springs, which are threatened by “flow reductions and declining water quality,” and many of which exhibit signs of “significant ecological imbalance.”
Clearly, the nature, cause, and acceptable level of impact considered not “harmful to water resources” may be specific to the water resource context, but a single rule defining the standard of “harmful to water resources” cannot yield permitting decisions that are both more protective of Outstanding Florida Springs, and also make more groundwater available for consumptive use, consistent with these authorizing statutes and their contexts.
Proposed draft rule 62-41.403 is itself an admission that the Department knows that 62-41.401 and 62-41.402 will not prevent groundwater withdrawals that are harmful to OFS, and the Department is planning for the rules to fail. If the Department adopted rules preventing consumptive use permits that harm Outstanding Florida Springs, there would be no “withdrawals which are causing or are reasonably anticipated within the next 20 years to cause adverse impacts to the Outstanding Florida Spring or its spring run” to justify the consideration of a “restricted allocation area.”
Moreover, the very concept of “additional protections” and “restricted allocation areas” as described in 62-41.403 is nothing more than a blatant attempt to deceive the public. First, no agency may regulate water use directly or indirectly, other than a water management district or the Department, but the Districts have created the problem and the Department refuses to fix it.. Further, the “restricted allocation areas” do not require restricting allocations. They don’t even require water conservation. They only require alternative water supply projects to meet future demand. But alternative water resource projects must already be included in the applicable regional water supply plans. Which means there will be no“additional protections.”
The Department’s blatant disregard for its mission has caused untold damage to Florida’s springs, cost valuable time and money, and eroded the faith of the people of Florida in a once respected institution. It has become so captured that it now represents only the most greedy and destructive
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part of Florida’s regulated industries lobby. Senate Bill 552 was supported by Associated Industries of Florida, the Florida Farm Bureau, the Florida Chamber of Commerce, and nearly every other industry group. Yet, it is being derailed by the Florida Department of Environmental Protection.
The public is taking note. Only a handful of people attended the initial public workshop in March 2022. Over 100 showed up in August 2023 to express their anger and frustration at the Department’s continued failure to protect Florida’s springs.
Three years ago, the Florida Springs Council worked with our partner organizations, attorneys, and scientists to develop effective rule language consistent with the legislative intent, which is included as an appendix to this letter. Our language prioritizes the protection of Outstanding Florida Springs, relies on existing regulatory programs, and recognizes the relationship between water quantity and water quality. As we have expressed across multiple meetings we believe this should be the starting point for future rulemaking discussions to implement 373.219(3).
The public would be ill-served if DEP were to withdraw this rule and wait a year or more before proposing another flawed rule. FSC would urge your Department to approve this flawed rule promptly so that interested parties will have the opportunity to promptly challenge its legality. Failure to promptly complete this proposed rule adoption proceeding is cause for any person substantially affected by the Department’s failure to protect Florida’s Outstanding Springs to file a Petition to Initiate Rulemaking under Section 120.54(7) of the Florida Statutes.
Sincerely,
Ryan Smart Florida Springs Council Executive Director
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Appendix – FSC Proposed Draft Rule 62-41.400 Outstanding Florida Springs, Scope of Rules
(1) Rules 62-41.400 through 62-41.402, F.A.C., implement section 373.219(3), F.S. These rules regulate consumptive uses of water that impact an Outstanding Florida Spring springshed as defined in section 373.802(4), F.S. (2) The phrases “Consumptive Use Permit,” “Consumptive Use Permitting,” or “Consumptive Use Applicants” are synonymous with “Water Use Permit,” “Water Use Permitting,” or “Water Use Applicants,” respectively, as used by the Districts. Rulemaking Authority: 373.026, 373.219, 373.813, FS. Law Implemented: 373.219, 373.802, FS.
62-41.401 Outstanding Florida Springs, Uniform Conditions for Issuance of Permits 1) In order to prevent groundwater withdrawals which are harmful to Outstanding Florida Springs, the governing board or Department shall presume a consumptive use permit application within the springshed of an Outstanding Florida Spring with an adopted Basin Management Action Plan pursuant to 373.807, F.S., or an adopted recovery or prevention strategy pursuant to 373.805, F.S. is not consistent with the public interest pursuant to 373.223(1)(c), F.S., unless: (a) An application for a renewal or modification of an existing consumptive use permit reduces permitted water use to no more than 75 percent1 of the permittee’s cumulative average daily water use as measured during the most recent three-year period, or concurrently offsets any groundwater withdrawals above the 75 percent threshold. 1. An applicant for a renewal or modification of an existing consumptive use permit may receive a temporary allocation, for a period not to exceed two years, to use up to the permittee’s cumulative average daily water use as measured during the most recent three-year period. The applicant must implement water conservation projects approved by the governing board or Department to meet the requirements of paragraph (a) within two years. 2. Two years from the date the temporary allocation is granted, the consumptive use permit shall be reduced to no more than 75 percent of the permittee’s cumulative average daily water use as measured during the most recent three-year period. 1 Percent reductions are a placeholder for the actual reductions necessary to pre-1973 conditions.
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3. The permittee may apply for a single extension of up to 1 year. The governing board or Department may grant the extension if the applicant provides reasonable assurances that the extension is clearly in the public interest. 4. If an applicant chooses to offset groundwater withdrawals, the applicant shall propose the retirement or reduction of existing consumptive use permits within the same Outstanding Florida Spring springshed. The applicant shall identify legal existing use allocations to be terminated or reduced and must demonstrate that water is available by providing documentation that the modification or retirement of the historic consumptive use permit is effective before issuance of the proposed permit. (b.) An application for a new groundwater consumptive use permit includes an offset of at least 125% of the requested water use through the retirement or reduction of existing consumptive use permits within the same Outstanding Florida Spring springshed. The applicant shall identify legal existing use allocations to be terminated or reduced and must demonstrate that water is available by providing documentation that the modification or retirement of the historic consumptive use permit is effective before issuance of the proposed permit. (2) An applicant granted a temporary allocation or consumptive use permit pursuant to this section shall monitor and report withdrawal quantities from each withdrawal facility or point of diversion to the applicable water management district no less than once every 90 days for the duration of the permit. (3) If a permittee exceeds the temporary allocation or permitted amount over any 12-month period the governing board or Department shall immediately revoke the temporary allocation or consumptive use permit. A permittee may not apply for a new consumptive use permit, renew an existing permit, or modify an existing permit within the springshed of an Outstanding Florida Spring for a period of 10 years following the revocation of a permit for failing to meet the requirements of this section. (4) An applicant for a renewal or modification of an existing consumptive use permit, which has previously met the requirements of this section and does not propose an increase in water use, shall be exempt from the requirements in this section. 62-41.402 Outstanding Florida Springs, Uniform Definition of Harmful to the Water Resources “Harmful to the water resources” means a groundwater withdrawal which, in comparison to pre-1973 conditions of the system, on an individual or cumulative basis will: (a) lead to increased concentrations of a pollutant of concern in an impaired Outstanding Florida Spring;
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(b) contribute to the proliferation of algae in an Outstanding Florida Spring; (c) reduce spring flow in an Outstanding Florida Spring; (d) adversely impact fisheries, wildlife, or submerged vegetation in an Outstanding Florida Spring; or (e) adversely affect the recreational values in an Outstanding Florida Spring.
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