October 22, 1993South Florida Water Management District
3301 Gun Club Road P.O. Box 24680 West Palm Beach, FL 33416 -4680 (407) 686 -8800 FL WATS 1- 800 -432 -2045
MGT 10 -06 -06 RF:94026
October 22, 1993
The Honorable James E. Kirk
Mayor of the City of Okeechobee
55 S.E. Third Avenue
Okeechobee, FL 34794 -2932
Dear Mayor Kirk:
Subject: Economic Impact Statement for Proposed Rules Published in the October 8, 1993
Issue of the Florida Administrative Weekly, Volume 19, No. 40.
The South Florida Water Management District has prepared an Economic Impact Statement (EIS)
for proposed amendments to Chapters 40E -1, 40E -2, 40E -4, 40E -20, 40E -40, and 40E -41, F.A.C.
Included in the EIS is an analysis of the document entitled, "Basis of Review for Water Use
Permit Applications within the South Florida Water Management District," which is incorporated
by reference in Rules 40E- 2.091, 40E- 2.301, 40E -2.331 and 40E- 2.381, F.A.C.
I have enclosed a copy of this document as you requested in your October 20 letter.
Sincerely,
Til .rd Creel
Exec ve Director
TCC /JGD
Enclosure
c: Jim Drosakis
Governing Board:
Valerie Boyd, Chairman
Frank Williamson, Jr., Vice Chairman
Annie Betancourt
William Hammond
Betsy Krant
Allan Milledge
Eugene K. Pettis
Nathaniel P. Reed
Leah G. Schad
Tilford C. Creel, Executive Director
Thomas K. Mac Vicar, Deputy Executive Director
ECONOMIC IMPACT STATEMENT
FOR PROPOSED REVISIONS TO CHAPTERS 40E -1, 40E -2,
40E -20, 40E -4, 40E -40, AND 40E -41, F.A.C.
Including the Basis of Review for Water Use Permit Applications
(published by reference in Rule 40E- 2.091, F.A.C.) and the Basis
of Review for Surface Water Management Permit Applications
(published by reference in rule 40E- 4.091, F.A.C.).
October 15, 1993
I. INTRODUCTION
The proposed changes to Rule Chapters 40E -1, 40E -2, 40E -4,
40E -20, 40E -4, 40E -40, and 40E -41, F.A.C., and the Surface Water
Management Basis of Review and Water Use Basis of Review are
designed to improve the consistency, clarity, and organization of
District procedural, surface water management (SWM), and water
use (WU) rules. These changes also put into rule form a number
of incipient agency policies. The two Bases of Review are
substantially re- organized to make them more understandable to
the regulated community.
Regulation Department officials have identified three
related purposes to be served by the proposed changes to the SWM
and WU rules.
1. Certain administrative procedures and definitions which are
not effective in meeting the Regulation Department's resource
protection objectives were identified and rewritten.
2. Incipient policy, subject to new Chapter 120, F. S.,
requirements, was codified into the proposed rule amendments.
3. The SWM Basis of Review was extensively revised in format in
1
order to provide a more user friendly document.
Additionally, several minor criteria changes and one major
criteria change (relating to lake wetland separation) were
included in the revision of the SWM Basis of Review (Lamb, 1993).
Criteria changes for the determination of allocations for
improved pasture irrigation and thresholds for general permits in
south Dade County are also proposed.
Specific changes to the Water Use and SWM rules and Bases of
Review will be discussed under the following sub headings, with
applicable rule or Water Use or SWM Basis of Review sections
cited:
SWM provisions:
A. Forms for construction completion /construction
certification, construction commencement notice and
annual status report for construction (Rules 40E -4.381
and 40E- 40.381);
B. Changes in the duration for conceptual approvals and
for construction permits (Rules 40E -4.321 and 40E-
40.321);
C. Implementation of a no- notice general permit
program (Rule 40E- 40.041);
D. Allowance of general SWM permits in special basins
(Western C- 9,C -51, and Kissimmee River) (Deletion
of portion of Rule 40E- 41.011); and
E. Revised criteria for lake wetland separation
(Section 4.10 of Basis of Review).
WU provisions:
F. Increased general permit threshold for water use
permits in south Dade County (Rule 40E- 20.302(1)(b)2);
G. Conditions of transfer of water use permits (Rules 40E-
2.351 and 40E- 20.351;
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H. Changes to application forms and reorganization of
Basis of Review (various sections);
I. Letter modifications to water use permits (Rules 40E-
2.331 and 40E- 20.331); and
J. Revised criteria for improved pasture irrigation
(Section 2.3.5 of Basis of Review).
Because most of the revisions were to consist primarily of
administrative changes of a non technical nature in an effort to
codify existing incipient policy and to better define sections of
the rules that were subject to misinterpretation, (Lamb, 1993),
the economic impact of the proposed changes is less than if major
changes in technical criteria or policy were being proposed.
II. AN ESTIMATE OF THE COST TO THE AGENCY, AND TO ANY OTHER
STATE OR LOCAL GOVERNMENT ENTITIES, OF IMPLEMENTING AND
ENFORCING THE PROPOSED ACTION, INCLUDING THE ESTIMATED
AMOUNT OF PAPERWORK, AND ANY ANTICIPATED EFFECTS ON STATE OR
LOCAL REVENUES
The impacts of the proposed rule revisions on the costs and
revenues to the agency and to other state or local government
entities will be related to the impact areas identified in
Section I above.
SURFACE WATER MANAGEMENT PROVISIONS
A. Forms for construction completion /construction
certification, construction commencement notice and annual status
report for construction The revisions to Rules 40E- 4.381(2)
(d),(e), and (f) require the filing of construction commencement
3
reports, annual construction status reports, and construction
completion reports for District SWM permits. Under existing rule
40E- 40.381, general SWM permits are subject to the limiting
conditions of Rule 40E- 4.381; thus general SWM permittees will
be required to file the same types of commencement, status, and
completion reports as individual permittees. In the existing
rule only construction completion certification by a Florida
registered Professional Engineer is required.
This revision largely reflects existing incipient agency
policy. Processing the commencement and construction completion
forms will cause a minor increase in the paperwork burden to the
District. In Fiscal Year 1991 the District processed 123 new
applications for individual SWM construction and operations
permits, 6 applications for new operations permits, 374
applications for new SWM general permits, and 2 applications for
new landfill SWM permits. (David M. Griffith and Associates,
1992a). If historic permitting levels continue, then
approximately 500 completion reports per year will need to be
processed by the District. To estimate the cost of processing
these completions reports, the cost estimates from the Griffith
report for SWM letter modifications, exemptions, and no permit
required were used ($46.65 per report). Using these figures,
total costs to the District are estimated at approximately
$23,000 per year, as shown in equation (1) below.
500 x $46.65 $23,325 (1)
The District achieves enhanced protection of the resource
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and of adjacent and /or offsite property owners affected by
permitted SWM projects through better information on the status
of permitted activities and through an improved ability to
monitor and enforce permit conditions. This provision also will
enhance the ability of the District to require mitigation for
impacts caused by violation of SWM permit conditions.
B. Chances in the duration for conceptual approvals and
for construction permits The changes in the duration of
conceptual approvals and construction permits contained in Rules
40E -4.321 and 40E- 40.321 are expected to reduce the cost to the
agency of monitoring compliance with special and limiting
conditions of SWM permits. Partially offsetting these cost
savings are increased costs associated with processing an
anticipated increased number of applications for construction and
operation permits filed to prevent conceptual approvals from
expiring.
The duration of conceptual approvals is being amended so
that a construction and operation application pursuant to terms
of the conceptual approval must be applied for every two years to
maintain the conceptual approval. This change will enable
District staff to remain advised of the status of projects
conducted pursuant to District conceptual approvals.
The cost savings to the District will be specific to each
conceptual approval and each associated construction and
operation permit. Having a limited duration for conceptual
approvals allows the District to reduce the adverse impacts
5
which can arise when applicants are able to avoid being subject
to revised review criteria and permit conditions imposed by the
District between the time of issuance of a conceptual approval
and the time of issuance of a construction and operation permit.
Allowing for the expiration of conceptual approvals allows for
the application of revised permit criteria to projects which have
obtained only conceptual approvals without obtaining necessary
construction and operation permits.
Currently, the duration of SWM individual and general
construction permits is changed from the current three years, or
for the duration of the project if the permitted discharge
structure or equivalent has been completed. The duration is
being amended to provide a fixed duration of five years from the
date of issuance of the construction permit. Construction permit
modifications, other than letter modifications, automatically
extend the duration of the construction permit for three years.
This change will reduce the cost to the District of monitoring
the progress of construction activities pursuant to a SWM
construction permit. This change also allows the District to
avoid situations where construction permits for inactive or
abandoned projects remain valid solely on the basis of having a
completed permitted discharge structure.
Local governments obtaining conceptual approvals and
associated SWM permits from the District will be affected by the
proposed rules in much the same way as other directly affected
parties. Impacts on local governments as permit applicants and
6
permittees are addressed below in the Section on cost and
benefits to those directly affected.
C. Implementation of a no notice aeneral SWM permit
program Section 40E- 40.041 authorizes the issuance of no- notice
general SWM permits for projects falling into one or more of the
categories specified in the rule and meeting the conditions for a
general SWM permit specified in Section 40E- 40.302. District
officials indicate that a major purpose of implementing a no-
notice surface water management permit program is to replace the
noticed exemption process which is currently in place. Cost
savings to the agency associated with this provision are
estimated at approximately $22,000 per year. This estimate is
based on data from the Griffith report, which showed 481 surface
water management letter modifications and exemptions (no permit
required) in FY91. Full costs to the District associated with
issuance of a letter modification or exemption (no permit
required) were estimated in 1992 at $46.65; Cost savings to the
District associated with permitting projects with no- notice
general permits are estimated at $46.65 per qualifying project.
Based on FY91 letter modification and exemption (no permit
required) levels of 481 projects, total cost savings to the
agency are estimated at approximately $22,400, as calculated in
Equation (2) below.
481 x $46.65= $22,438.65 (2).
No application fee is applicable to the no- notice general
SWM permit application. Because no fees are presently collected
for surface water management letter modifications and exemptions,
no change in District revenues is expected.
D. Allowance of general SWM permits in special basins
The allowance of general SWM permits in the Western C -9, C -51,
and Kissimmee River basins is expected to reduce both District
permit review costs and District revenues. "The technical review
is not likely to be reduced by this proposal, but much of the
administrative and clerical time required to process individual
type applications would be eliminated." (Lamb, 1993.)
Between July 1, 1992 and June 30, 1993 fifteen permits under
the 40 acre general permit threshold were processed in these
three basins: one in the Western C -9, 14 in the C -51, and none in
the Kissimmee River. District costs for processing an individual
SWM permit are estimated at $5,538, compared to $518 for
processing a general SWM permit application. (Griffith, 1992a)
Due to the sensitive water resource issues particular to these
basins, the costs of processing a general SWM permit in these
basin will likely be higher than those typical of other basins,
as approximated by the $518 estimate. For both individual and
general SWM permits, the ratio of total costs to direct labor
costs is 2.681. (Calculated from Griffith, 1992a, p. 84) Based
on information from Lamb(1993) and Griffith (1992a and 1992b),
costs were partitioned between technical review costs and
clerical and administrative review costs. For permits newly
8
eligible for processing as general permits, the clerical and
administrative costs were based on general permit processing
costs, while technical review costs were held at the level of
individual permit review costs from the Griffith study. On the
basis of this breakdown, it is estimated that processing permits
as individual permits is approximately 1.25 times as expensive as
processing them as general permit authorizations, holding
technical review costs constant.
Cost savings to the District from being able to process
qualifying applications as general permit authorizations, rather
than as individual permits are estimated at approximately $16,400
per year as shown in Equation (3) below.
($5,538- ($5,538/1.25)) x 15 $16,614 (3)
The reduction in District revenues from the issuance of
general SWM permits (with a $650 permit application fee) rather
than individual permits (with a $3,050 application fee) is
estimated at approximately $36,000 per year as shown in equation
(4) below.
($3,050 -$650) x 15 $36,000 (4)
E. Revised criterion for lake wetland separation The
revised lake wetland separation criterion in Section 4.10 of the
SWM Basis of Review is expected to reduce the costs to the agency
by providing a more technically based criterion for determining
allowable separation between lakes which may adversely affect
wetland areas and associated upland areas. The proposed
criterion is designed to better reflect potential for adverse
9
impacts on wetlands and is expected to facilitate agreement with
applicants on acceptable lake wetland designs which protect the
environmental resources of the District without unduly burdening
permit applicants.
WATER USE PROVISIONS
F. Increased general permit threshold for water use
permits in south Dade County Section 40E- 20.302(b)(2) increases
the threshold for general water use permits in the South Dade
Water Use Basin from 100,000 gallons per day to 500,000 gallons
per day.
This increase in the threshold for south Dade County is
based on the unique characteristics of the Biscayne Aquifer in
that area. District staff has indicated that hydrologic modeling
has shown minimal potential for adverse impacts on water
resources and the environment at the levels of pumpage allowed at
the higher general permit thresholds in south Dade County because
of hydrogeologic conditions in the area (Ward, 1993).
This is expected to reduce the costs to the District by
allowing many permit applications in the South Dade County
Agricultural Area to be processed as general permit applications
rather than as individual applications. Table I below shows
comparative acreage thresholds for general permits for some of
the major crops in South Dade based on a 100,000 gallon per day
threshold and a 500,000 gallon per day threshold.
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Table I: Calculated Acreage Thresholds for General Water Use Permits in South Dade
County for Selected Crops at 100.000 and 500,000 Gallons Per Day*
Crop Irrigation Inches /month Inches /day Gal. /day Acres Acres
System (gross) (gross) per acre @100,000 @500,000
Avocado Portable Gun 4.3 0.14 6280 16 80
Tomato Drip 4.8 0.16 6970 14 72
Container Overhead 18.9 0.63 27370 3.7 18
Nursery
Based on 0.8 soil type, with SWM system in place, and Homestead weather station.
Assumes that project is permitted before nursery irrigation standard becomes
effective in south Dade County. (See Section 2.3.3.3.1 of Water Use Basis of
Review).
As can be seen from Table 1 above, the increase in the
thresholds for general permits in South Dade County will allow
farms which would require individual permits under the existing
District rules to qualify for general permit authorizations. For
each category of crop, irrigation system, and soil combination
the increase in the acreage threshold is directly proportional to
the increase in the water quantity threshold.
The District will receive lower permit application fees for
those projects which now would qualify for general water use
permits, instead of individual permits. The permit application
fee for an individual irrigation water use permit is $1000,
while the permit application fee for a general water use permit
authorization is $350 (Rule 40E- 1.607(1)). The proposed
expiration date of individual irrigation permits in South Dade
County is December 15, 1997, while general irrigation permit
authorizations are issued with up to a twenty year duration.
District staff has estimated that under the existing 100,000
gallon per day threshold there would be 1200 individual and 500
general irrigation permits issued for South Dade County; with the
11
500,000 gallon threshold, there would be approximately 600
individual and 1100 general irrigation permits. (Ward, 1993)
An analysis was completed to estimate the annualized and
amortized 20 year net present value of District costs and
revenues associated with irrigation WU permit applications in
south Dade County. This analysis assumed that all individual
irrigation permits are renewed in December, 1997, with a ten year
permit duration, and that all existing and newly qualified (as a
result of this rule change) general irrigation permits are
reissued in December, 1997, with a twenty year permit duration.
These results are shown in Tables II and III below, based on
permit application fees of $1,000 and $350 for individual and
general irrigation permits, respectively, and processing costs of
$1356 and $353 for individual and general irrigation permits,
respectively.
Table II: Change in District costs associated with changed
general permit thresholds in south Dade County, annualized costs
and twenty year net present values, using a 10% discount rate.*
Reduction in 20 year Net present value of costs
Reduction in 20 year annualized costs
Reduction in 20 year Net present value of revenues
Reduction in 20 year annualized revenues
12
$288,122
33,843
assumes permit application revenues are received in year 1
with general permit and in years 1 and 11 with individual
permit.
Table III: Change in District revenues associated with changed
general permit thresholds in south Dade County, annualized costs
and twenty year net present values, using a 10% discount rate.*
$158,674
18,638
assumes permit review costs are incurred in year 1 with general
permit and in years 1 and 11 with individual permit.
Under the proposed Basis of Review revisions, the expiration
date for the 120 irrigation permits in the Dade /Monroe irrigation
basin are scheduled to expire December 15, 1997.
G. Conditions for transfer of water use permits The
proposed revisions to sections 40E -2.351 and 40E- 20.351 are
expected to have no significant impact on those directly
affected. These revisions merely incorporate into chapters 40E -2
and 40E -20, F.A.C., changes already adopted in to Chapter 40E -1,
F.A.C.
H. Chances to application forms and reorganization of
Water Use Basis of Review The changes to the application forms
for individual and general water use permits have been designed
to reflect changes in information needed from the applicant to
evaluate the permit application under the revised rules and the
revised Water Use Basis of Review. These changes are designed to
simplify the application process for applicants and are expected
to reduce District costs associated with review of consumptive
use permit applications, both by reducing the time needed by
District staff to review initial applicant submittals and also by
reducing the number of requests for additional information, which
District staff send to obtain complete information. These
changes are more likely to be reflected in an improved quality of
permit review, than in an actual change in the agency budget for
reviewing permit applications.
The reorganization of the Water Use Basis of Review into
separate sections dealing with: (1) permitting procedures; (2)
13
methods for determining water demand; (3) methods for evaluating
water resource availability; (4) monitoring requirements; and
(5) standard and special permit conditions make this document
more understandable by the regulated community and reduce
District permit review costs.
I. Letter modifications to water use permits Rules 40E-
2.331 and 40E- 20.331 have been changed to allow for the issuance
of letter modifications for certain minor modifications to water
use permits which meet specified conditions designed to ensure
that the modification does not have potential for adversely
affecting the water resources of the District, other
environmental features, or other existing legal users.
Under existing District rules, the fees for an application
to modify a consumptive use permit are: (a) $2,700 for
modification of a public water supply permit; (b)$1,800 for
modification of a mining dewatering permit; (c) $1,000 for
modification of an agricultural irrigation permit; (d) $1,400 for
modification of an industrial permit, and (e) $350 for
modification of a general permit authorization. The 1992 study
by David M. Griffith and Associates (1992a) did not separate
modification applications from new applications for classes of
water use applications other than industrial. Only two individual
industrial water use permit modifications were processed in FY91
(Griffith, 1992a, p. 70).
The major impact of the letter modification process is
likely to be that users who previously modified their water use
14
activities without notifying the District will now request a
letter modification. This change will allow the District to
obtain better knowledge of current water use activities and
resource uses as well as provide better public service without
placing a significant economic burden on the regulated community.
The prior notice will allow District staff to review the proposed
changes with regard to water resource impacts. No significant
impacts on District revenues or costs are expected.
At present no reliable quantitative estimates are available
to estimate the costs to the District for processing letter
modifications. District staff has indicated that the number of
letter modifications and the time spent processing these letter
modifications will be tracked for determination of an appropriate
fee to be charged in the future for letter modification
application reviews.
J. Revised criteria for improved pasture irriaation
Section 2.3.5 of the Basis of Review has been changed to require
the applicant to document the amount of improved pasture acreage
reasonably expected to be irrigated in any given growing season
as the basis for the net irrigated acreage. This change is
expected to reduce the acreage of improved pasture which
qualifies for an irrigation allocation. At present,
approximately 250,000 acres of improved pasture are permitted for
irrigation by the District. Most of this acreage is seepage
irrigated and does not have a permitted SWM system. As such, the
pasture would qualify under Section 2.3.3.1 of the Basis of
15
Review for an allocation coefficient multiplier of 1.67. This
acreage would account in total for an allocation in excess of
362,000 mgy.
K. Summary No changes in District staffing requirements
are expected to directly result from the proposed rule changes.
Agency cost savings identified above are likely to be realized by
shifting staff to perform other activities more effectively
rather than through a direct change in District personnel levels.
Specific changes which are expected to allow the District to
utilize existing resources more efficiently are: changes to the
duration of conceptual approvals; initiation of a no- notice
general permitting system for SWM activities with minimal
potential for violating the provisions of Rule 40E- 40.302(1)
allowance of general SWM permits in the C -51, Kissimmee River and
Western C -9 Basins, increased general permit thresholds for water
use permits in south Dade County, and provisions for letter
modification of individual and general water use permits.
III. An Estimate of the Cost or the Economic Benefit to All
Persons Directly Affected by the Proposed Action
The impacts of the proposed rule revisions on the cost or
the economic benefit to all persons directly affected will be
analyzed under the impact areas identified in Section I above.
SURFACE WATER MANAGEMENT PROVISIONS
A. Forms for construction completion /construction
16
certification, construction commencement notice and annual status
report for construction The new requirements in Rule 40E-
4.381(2)(d), (e) and (f) are expected to impose minor additional
costs on those directly affected. These costs are associated
with the submittal of additional paperwork. Using the figure of
129 new individual SWM permits, 3 new landfill applications per
year, and 374 new general permit applications per year (David M.
Griffith and Associates, 1992a, p. 21), a total of approximately
500 projects per year will need to submit construction
commencement and completion reports and, where applicable, annual
construction status reports.
A member of the regulated community has expressed the
concern that permittees, and particularly public entities, may
have difficulty complying with the requirement in Rule 40E-
4.381(d) that the construction commencement notice be filed with
the District within thirty days of permit issuance. It was
stated, "Thirty days is not an adequate amount of time. Remember,
most agencies do not advertise for improvements until you issue
the permit." (Capri,1993). Permittees will provide the District
with the information for the construction commencement notice
based on information available to the permittee at the time of
filing the notice. Flexible interpretation of these provisions
by District staff is expected to prevent the notification
requirements from becoming a major burden on permittees, while
providing District staff with adequate information on project
status to monitor compliance with and enforce permit conditions.
17
B. Changes in the duration for conceptual approvals and
for construction permits The change in the duration of
conceptual approvals, as specified in Rule 40E- 4.321(1)(a), is
expected to result in a minor increase in cost to some permittees
by requiring that an application for a construction and operation
permit be filed for any portion of the project at least once
every two years to prevent the conceptual approval from expiring.
A member of the regulated community has indicated that this
provision for the expiration of conceptual approvals may impose a
burden on some permittees. The concern was expressed by a local
government official that, "For these phased projects, it is
probable that the time between phases will most likely be greater
than two years." (Gonzalez, 1993). Similar concerns were
expressed by an associate of a Naples consulting engineering firm
who stated, "We believe that the time limit of two years for
conceptual approvals is too short, especially for large phased
projects.... At a minimum we suggest allowances be made so that
a client can request a longer conceptual time providing he gives
documentation of his need." (Means, 1993).
Related concerns were expressed by at least one
representative of local government who noted that many public
capital facilities projects are planned on the basis of long -term
needs identified in the approved County Comprehensive Plan. "The
importance of this permit type is that it provides certain vested
rights to the owner based on projected land use patterns in light
of the existing regulatory framework. A short duration of two
18
years may render the permit useless since it may not be
practicable to initiate any new construction phase (or even
design and permitting activities) before the two year window
expires." (Gonzalez, 1993).
A review of District conceptual SWM permit data for the
period January, 1990 through June, 1991 indicates that for 57 of
these approvals (out of 74 total approvals) there was a two -year
period after issuance during which no construction and operation
permits were issued. If the provisions of Rule 40E- 4.321(1)(a)
had been in effect the conceptual approvals would have expired.
Using these figures as a reference point, approximately 38 of 50
(77 percent) conceptual approvals per year would expire if the
proposed rule had been in effect. District staff has indicated
that the proposed restriction will only apply to conceptual
approvals issued after the effective date of the proposed rule,
so that conceptual approvals already issued will not be subject
to expiration for lack of construction and operation permit
activity.
The potential costs imposed by this rule provision can
largely be avoided by members of the regulated community by
timing the phases of large phased projects so that applications
for construction and operation permits do not result in the
expiration of the two -year time period. The rule provision
limits the flexibility which permittees have in timing
construction activities without subjecting themselves to any more
stringent permit conditions implemented after the issuance of the
19
conceptual approval. By keeping District staff informed of the
status of construction activities, particularly when construction
is phased, excessive costs to members of the regulated community
largely can be avoided. However, those with conceptual approvals
will in many cases need to change the timing of their
construction and operation permitting activity to comply with the
revised criteria.
In a worst -case scenario, application of this provision
would result in an applicant having to obtain an additional
construction and operation permit once every two years. With an
application fee of $3,050 for an individual surface water
management construction and operations permit, the additional
cost associated with permit application fees would be $1,525 per
year. This figure does not include any engineering design or
other costs associated with application preparation incurred by
permittees. Using the estimate of 38 conceptual approvals per
year expiring as a result of this provision, the aggregate added
cost associated with District permit application fees could be as
high as $57,950 per year. However, the impact is unlikely to be
this large since the District typically extends conceptual
approvals upon reasonable justification at no cost to the
applicant. Other impacts would vary depending upon circumstances
unique to each project.
Most members of the regulated community who are affected by
the change in duration of construction permits are expected to
benefit from the extension of the duration of construction
20
permits from three to five years. (Rule 40E- 4,321(1)(d)).
Elimination of the provision that a construction permit is valid
for the duration of the project if the permitted discharge
structure or equivalent has been completed is expected to impose
some added costs on those permittees who have completed permitted
discharge structures without completing the project within five
years. However, for the large majority of permittees, there is
expected to be no impact from the elimination of this provision.
C. Implementation of a no notice aeneral SWM permit
proctram The implementation of a no- notice general permit
program is expected to result in significant cost savings to the
regulated community. These no- notice general permits are issued
without a permit application fee, whereas the permit application
fee for a general SWM permit authorization is $650. The proposed
rule essentially replaces the "Request for Exemption" provisions
of existing Section Rule 40E -4.053 with the no- notice general
permit provisions of proposed Section 40E- 40.041. Exemptions are
still authorized, pursuant to Sections 373.406 and Section
403.813 (2) (f), F. S.
D. Allowance of general SWM permits in special basins
Under the provisions of existing Rule 40E- 41.011, Chapter 40E -40
is not effective within the basins covered by Rule 40E -41
(Western C -9, Kissimmee River, and C -51). This means that all
non exempt projects in these basins must apply for individual SWM
permits. Officials of the District Regulation Department
indicate that approximately 10 to 20 permits per year which are
21
presently processed as individual permits would qualify for
processing as general permit authorizations. For the 12 -month
period July 1, 1992 through June 30, 1993, only 14 SWM permits or
modifications for projects under 40 acres were issued in the C -51
basin and one SWM permit for a project in this size range was
issued in the Western C -9 Basin. No SWM permits in this size
range were issued in the Kissimmee River Basin during this time
period (Fanson, 1993).
With the provision prohibiting the issuance of general SWM
permits repealed, approximately 10 to 20 permit applicants per
year would be able to benefit from the reduced permit costs
associated with obtaining a general permit authorization rather
than an individual permit. Using the figure of 15 permits which
could be processed as general permits rather than individual
permits, and a permit application fee difference of $2,400 ($650
for a general permit versus $3,050 for an individual permit), the
aggregate cost savings to permit applicants from the availability
of general surface water permits in the special basins is
estimated at approximately $36,000 per year.
E. Revised criterion for lake wetland separation Some
permit applicants are expected to benefit from the proposed
revision of the lake wetland separation requirement in proposed
Section 4.10 of the SWM Basis of Review. The practical
implications of this criterion change have been summarized as
follows:
22
Present criteria make it very difficult to
obtain or issue a permit when excavations are
proposed within 200 feet of an existing
wetland. The proposed language will protect
the environmental objectives of the District,
but gives technical framework to allow
excavations closer than 200 feet when
evidence can be developed indicating the
excavations will not adversely impact the
wetland. It may be used to limit excavations
more distant than 200 feet from wetlands
when adverse impacts are probable. Existing
language provides little or no protection
when excavations are more distant than 200
feet. (Lamb, 1993)
Section 4.10 of the SWM Basis of Review gives permit
applicants objective quantitative standards, based on established
engineering and hydrologic principles, for determining if, and
under what conditions, lake excavation in the vicinity of
wetlands will be allowed. Public concern has been expressed
about the lack of precision in the terminology "edge of wetland
elevation," used in Section 4.10(1) in calculating the-driving
head from which the gradient is derived (Hayden, 1993).
Concerns were expressed regarding the technical
considerations for development of the lake wetland separation
criterion. (Means, 1993).
Each of the concerns raised could result in potential
adverse economic and /or resource impacts. Where adverse resource
impacts result, additional economic costs may need to be incurred
to mitigate these impacts, while still complying with the lake
wetland separation criterion. The revised language gives permit
applicants the opportunity to use elevations other than natural
23
grade as the starting elevation if site specific conditions
warrant. (Unsell, 1993)
The revised criterion is expected to benefit those whose
lakes have stages significantly above the wetland elevation and
are in areas with soils of low horizontal permeability, while
adversely affecting those whose lake stages are lower than or
close to the same elevation as nearby wetlands and are in areas
of high horizontal permeability. The revised criterion is
expected to require some re- configuration of lakes to ensure
compliance.
WATER USE PROVISIONS
F. Increased general permit threshold for water use
permits in south Dade County The proposed increase in the
permit threshold for general water use permit authorizations in
south Dade County is expected to reduce the costs to agricultural
water users in south Dade County of obtaining authorization from
the District to use water.
The revised permit thresholds initially will not impact
those who already have obtained water use permits in south Dade.
Existing permittees may apply for a general permit at the time of
expiration of an existing individual permit (December 15, 1997)
or at the time of permit modification. New permittees will be
able to take advantage of the higher general permit threshold
immediately after rule adoption. This reduced cost should
further the District's major effort to comprehensively permit
south Dade agricultural water uses.
24
The cost savings attributable to the increased threshold for
a general permit are related both to the higher application fees
for individual permits ($1000 for a new permit application) and
general permit authorizations ($350 each for new permit
applications) and to the shorter duration of individual permits,
which are based on the basin expiration date, compared to general
permits which typically have a permit duration of up to 20 years
(limited to the period that legal control is retained). As shown
in Table III above, the savings to permittees and applicants are
estimated at approximately $18,700 per year (10 year net present
value of approximately $159,000 per year) based on current levels
of permit activity.
G. Conditions for transfer of water use permits The
proposed revisions to sections 40E -2.351 and 40E- 20.351 are
expected to have no significant impact on those directly
affected. These revisions merely incorporate into chapters 40E -2
and 40E -20, F.A.C., changes already made to chapter 40E- 1,F.A.C.
H. Changes to application forms and reorganization of
Water Use Basis of Review -The changes to the application forms
for individual and general consumptive use permits are expected
to simplify the application process for applicants, thus reducing
the costs of filing applications. The reorganization of the
Basis of Review into separate sections dealing with: (1)
permitting procedures; (2) methods for determining water demand;
(3) methods for evaluating water resource availability; (4)
monitoring requirements; and (5) standard and special permit
25
conditions should make this document more understandable to the
regulated community and reduce the time required to acquire the
necessary information and complete the permit application form.
It is also expected that the revised application forms will
reduce both the number of requests for additional information
which the District makes of applicants, and the associated costs
to applicants of acquiring and providing this additional
information. With improved understanding, applicant acceptance of
the water use regulatory program is expected to increase.
I. Letter modifications to water use permits The
inclusion of a letter modification process for consumptive use
permits is expected to significantly reduce the costs of making
minor modifications to water uses. In order to be eligible to
utilize the letter modification process the proposed modification
must:
(1) not increase the amount of water permitted to be used;
(2) not increase the duration of the existing permit except
when the current expiration date is based on a lease
expiration date which is being modified and which does
not exceed the applicable basin expiration date;
(3) not create a potential for interference with any
existing legal use of water, the potential for adverse
environmental impacts, the potential for saltwater
intrusion, the potential for pollution of the aquifer,
or the potential for adverse impacts to offsite land
uses or does not otherwise require additional analysis
26
of whether such impacts would occur pursuant to
criteria in the Basis of Review; and
(4) not change the permitted withdrawal sources or use
classification.
The availability of these letter permit modifications is
expected to be of significant economic benefit to those
applicants who are able to utilize the letter modification
process. Significant cost savings to applicants are expected to
result from the avoidance of the permit application fees for
other types of water use permit modifications (ranging from $350
for modification of a general permit authorization to $2,700 for
modification of a public water supply permit).
J. Revised criteria for improved pasture irriaation The
revised criteria for improved pasture irrigation will require
permittees to demonstrate that the proposed acreage can
reasonably be expected to be irrigated in any given growing
season. This change should reduce the overall allocation for
improved pasture irrigators, while potentially increasing the
amount of water available to be used for other reasonable
beneficial uses. This could be a significant economic benefit in
areas with significant acreages permitted or potentially
permitable for improved pasture and with actual or potential
water scarcity problems.
IV. An Estimate of the Impact of the Proposed Action on
Competition and the Open Market for Employment
27
The proposed action is not expected to have a large impact
on competition and the open market for employment. Specific
identifiable impacts on competition are likely to be associated
with the provision for No- Notice General SWM Permits in Rule 40E-
40.041 which will give those qualifying for No- Notice General
permits a competitive advantage relative to those who must obtain
either individual or noticed general permits. Another area of
significant impact on competition and the open market for
employment relates to the higher General Permit threshold in
south Dade County (Rule 40E- 20.302(1)(b)2), which provides a
competitive advantage, through lower General Permit application
fees to irrigators qualifying for General Permits in south Dade
County relative to irrigators withdrawing similar quantities of
water who are required to obtain Individual Permits because of
lower general permit thresholds elsewhere in the District. These
differential impacts are very dependent on water resource
availability and locations of specific properties.
These impacts are largely mitigated because of the extremely
limited nature of the competition between different classes of
permittees. For example, a shopping center with a general SWM and
a residential community with an individual SWM permit are only
very broadly in competition with one another. Thus, although a
number of differences between different classes of permittees and
between permittees in different geographic areas exist, these
differences have an impact on competition only in a very broad
sense.
28
V. Impact on Small Business as Described in the Small and
Minority Business Assistance Act of 1985 In addition to the
impacts discussed under the Section, An Estimate of the Cost or
the Economic Benefit to all Persons Directly Affected by the
Proposed Action," the impacts of the proposed rule revisions will
generally be similar for small businesses and other types of
business. Provisions which should be of particular benefit to
small business are the No- Notice General SWM Permit as specified
in Rule 40E- 40.041, the revised General Permit threshold for
consumptive use permits in south Dade County as specified in Rule
40E- 20.302(b)(2), and the letter modification process for
consumptive use permits as specified in Rules 40E- 2.331(4) and
40E- 20.331(4), the availability of general SWM permits in the
special basins covered by Rule Chapter 40E -41. The applicable
thresholds in these rules relate to acreage or quantity of water
withdrawn or used rather than directly to net worth or
employment as referenced in the definition of small business in
the Small and Minority Business Assistance Act of 1985 (Section
288.703, F. S.). These provisions represent an attempt to tier
the rule requirements to avoid disproportionate impacts on small
business and to avoid regulating businesses which do not
contribute to the problem the rule is designed to regulate.
VI. A Comparison of the Probable Costs and Benefits of the
Proposed Rules to the Probable Costs and Benefits of Not
Adopting the Rules If the proposed rules were not adopted the
29
existing versions of the affected rules and bases of review would
continue in force as they currently exist. One identified reason
for rule adoption is that incipient policy, subject to
new Chapter 120, F. S, requirements, was codified into the
proposed rule amendments." (Lamb,1993). Specifically, these
incipient policies are included in the rule pursuant to the
requirements contained in Section 120.535, F.S. The adoption of
these rules, then, was not a matter of agency discretion.
The specific benefits to the regulated community arising
from the provisions of the proposed rule would not be obtained if
not adopted. In particular, the regulated community would not
obtain the identified reduced costs associated with: (1) No-
Notice General SWM Permits (Rule 40E- 40.041); (2) higher General
Permit threshold for consumptive use permits in south Dade County
(Rule 40E- 20.302(b); (3) letter modification process for
consumptive use permits (Rules 40E-2.331(4) and 40E- 20.331(4);
and (4) the availability of general SWM permits in the special
basins covered by Rule 40E -41 (Revision of Rule 40E- 41.011). The
probable costs to the regulated community would be higher if the
existing rules remained in place unchanged than if the proposed
rule were adopted. The proposed rules should also improve the
ability of the District to protect the resource through better
focusing limited regulatory resources on activities most likely
to have significant impacts on the resource or on other water
users or offsite land uses affected by SWM and WU activities.
30
VII. A determination of whether less costly methods or less
intrusive methods exist for achieving the purpose of the proposed
rule The purposes of the proposed rule are identified in
Section I of this Statement. In developing rules to meet the
resource protection objectives of the Regulation Department,
there is a need to consider both the costs borne by the regulated
community and the costs, benefits and risks borne by the public
at large. The proposed rules attempt to adequately protect
District resources without imposing excessive costs on the
regulated community.
The District considered an option of raising additional
surface water and water use general permit thresholds, in
addition to the increased water use general permit thresholds in
south Dade County and the allowance for general SWM permit
authorizations for qualifying projects in the C -51, Western C -9,
and Kissimmee River Basins contained in the present proposal.
The District is currently considering revising a number of
technical SWM and consumptive use permit criteria in upcoming
rulemaking activities. To allow the present rulemaking to
proceed in a timely manner, changes which were likely to raise
controversy, including raising additional general permit
thresholds and other changes which have the potential for
reducing applicant costs, but which raise substantive issues
which would delay rule adoption, were deferred for future
rulemaking.
31
VIII. A Description of anv Reasonable Alternative Methods,
Where Applicable, for Achieving the Purpose of the Proposed Rules
Which Were Considered by the Agency, and a Statement of the
Reasons for Rejecting Those Alternatives in Favor of the Proposed
Rules Two broad alternatives to the proposed rules were
considered: either to do nothing or to undertake a major
technical revision of District SWM and consumptive use permitting
programs, along with a less far reaching alternative to change
the SWM general permit threshold District wide. The "do nothing"
alternative was rejected because of the need to modify District
rules to formally include incipient policies which the District
had been using, but which needed to be incorporated into District
rules to comply with the requirements of Chapter 120, F. S.
The need for rapid adoption of rules incorporating District
incipient policy was a major factor in the decision to defer a
major technical re -write of District technical criteria and the
decision not to change general permit thresholds, except for the
consumptive use threshold in south Dade County. Recent
enactment of the Florida Environmental Reorganization Act of 1993
(commonly called the "streamlining bill will require a number
of changes to District SWM rules. District staff deemed it highly
desirable to complete the present rulemaking, which largely
consists of administrative criteria, before undertaking the major
technical revisions which will be necessary in the near future.
Technical criteria issues addressed in the first draft of the
rule revision were removed, since they will be considered in a
32
consistent manner with the Department of Environmental Protection
and the other water management districts as part of streamlining
rulemaking.
IX. A Detailed Statement of the Data and Methodoloay Used in
Making the Estimates Required by This Paragraph
Data used in making the estimates contained in this
statement were obtained primarily from the Regulation Department
of the District. Other published reference materials which were
utilized are listed below. The basic methodology used in
preparation of this Statement involved several steps:
(1) The proposed rule was reviewed to obtain an idea of the
major impact areas needed to be addressed;
(2) District staff attended public workshops and comments
made at the workshops were considered to help further
refine impact areas and to identify likely impacts;
(3) Quantitative and qualitative data was obtained from
District Regulation Department on specific impact
areas;
(4) Correspondence from concerned parties to the District
was reviewed to assess perceived impacts from the
regulated community and other members of the public;
(5) These data and other issues were discussed with
Regulation Department staff, final impact assessments
were made and this statement was prepared.
The framework utilized was to identify present regulatory
33
practices, to isolate areas of incipient policy, and to assess
likely impacts of changes expected to occur under the revised
rules on the various distinct groups i. e., the agency, all
persons directly affected, and small business) and on competition
and the open market for employment. Alternatives considered were
identified and the reason for rejection of competing alternatives
to the proposed rule were isolated through review of District
backup materials prepared for the proposed rule and discussions
with Regulation Department officials, The relative cost of
identified alternatives was evaluated qualitatively. On the basis
of this information, the economic impact statement was prepared.
Specific published materials and written or oral communications
which were directly referred to in the preparation of this
statement are listed below.
34
1. Memorandum from Steve Lamb, Director, Regulation Department,
to Jack Dempsey, Assistant Executive Director, Water Resource
Management, June 25, 1993.
2. David M. Griffith and Associates, Fees for Services: A
Cost /Revenue Study, Fiscal Year 1992, Tallahassee, Florida,
prepared for South Florida Water Management District, July, 1992.
3. David M. Griffith and Associates, Fees for Services: A
Cost /Revenue Study, Fiscal Year 1992: FASTR Worksheets,
Tallahassee, Florida, prepared for South Florida Water Management
District July, 1992.
4. Letter from Adolfo A. Gonzalez, P. E., Senior Engineer,
Capital Projects Department, Collier County, to James G.
Drosakis, June 28, 1993.
5. Letter from J.D. Boone Kuersteiner and Vikki R. Shirley, Huey,
Guilday, Kuersteiner, and Tucker, P. A., Tallahassee, to James G.
Drosakis, Rules Analyst, South Florida Water Management District,
June 28, 1993.
6. South Florida Water Management District, Economic Impact
Statement Prepared for Revisions to Chapter 40E -1, F.A.C., March,
1993.
7. Letter from Joseph W. Capri, P. E., Project Engineer, Keith
and Schnars, to Jim Drosakis, Rules Analyst, South Florida Water
Management District, July 6, 1993
8. Letter from Stephen A. Means, P. E., Senior Associate, Wilson,
Miller, Barton, and Peek, Inc., to Dave Unsell, P. E., South
Florida Water Management District, June 30, 1993
9. Letter from Tracy L. Hayden, Assistant Manager -Land Division
Harper Brothers, Inc., to James G. Drosakis, Rules Analyst, South
Florida Water Management District, June 28, 1993
10. Hank Higginbotham, P. E., and Ken Weber, P. G., "Water Table
Drawdown Effects Due to Ditching of Subsurface Drains,"
Southwest Florida Water Management District, Resource Regulation
Department, Technical Procedure SWP- 20 -02, April 20, 1990
11. Charlie H. Miller, P. E., and Kenneth A. Weber,. P. G.,
"Estimation of Construction Setback Distance and Water Table
Dewatering Near Wetlands in a Flatwoods Farming Area," Southwest
Florida Water Management District, Resource Regulation
Department, Technical Procedure SWP -020, June 7, 1989.
12. Donald Koch, Mine Hvdroloav, User's Manual, Koch and
Associates, 1982,1984.
35
1
13. Unpublished data, Regulation Department, South Florida Water
Management District, 1993.
14. Walter Ward, Presentation at South Florida Water Management
District Workshop, Homestead, Florida, June 14, 1993.
15. Personal Communications with Walter Ward, Ralph Fanson, and
David Unsell Regulation Department, and James G. Drosakis, Office
of Counsel, South Florida Water Management District, 1993.
36