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Winter 2012
d&G Lawyer News

  • Consumptive Use Permitting Consistency
  • By: Nicolas Q. Porter

    In 2011, the Florida Department of Environmental Protection (FDEP) initiated a process to identify areas in which the consumptive use permitting/water use permitting (CUP) rules of Florida’s five water management districts could be made more consistent. This revision process has been labeled CUPCon. Though the five water management districts’ CUP permitting rules are all based upon Chapter 373, Part II, Florida Statutes, over time, each of the districts permitting rules have evolved to impose varying standards on permit applicants seeking to use water in Florida. The purpose of the CUPCon process is to amend FDEP’s and the water management districts’ CUP related rules to provide consistent permitting standards statewide.

    In August 2012, FDEP and the water management districts initiated rulemaking workshops throughout the state to identify the areas of CUP regulation in which they intend to pursue rule amendments to achieve greater consistency. FDEP and the water management districts have divided CUPCon into three tiers, the first tier including items which can be quickly addressed through rulemaking, the second tier more complex issues which will require stakeholder participation, and the third tier the most complex consistency issues to be addressed.

    Some of the CUP-related areas identified for potential rulemaking include:
    • Reclaimed water regulation
    • Use of reclaimed water to offset potential impacts
    • Approval of substitution credits for replacing potable water with reclaimed water
    • Supplementation of reclaimed water
    • Minimum flow and level prevention and recovery strategy adoption
    • Issuance of no-notice general CUPs
    • Uniform CUP conditions for issuance
    • Uniform water conservation measures
    • CUP compliance reporting
    • Demand projections
    • MFL/reservation adoption
    • Use of models
    • Standards for review of environmental harm
    After the August 2012 workshops, FDEP and the water management districts solicited public comment on the first tier of proposed CUPCon rule revisions. A number of public comments were submitted in response to the agencies’ request, and subsequently FDEP issued draft rule language revising portions of the Water Resource Implementation Rule, Chapter 62-40, Florida Administrative Code. FDEP held workshops regarding the proposed rule language on November 14-16, 2012 and requested that additional comments on the proposed rule language be submitted by December 3, 2012. It appears that FDEP intends to adopt the proposed Chapter 62-40 rule revisions by the end of December, so they can be presented to the Florida Legislature for potential consideration in its 2013 session.

    The CUPCon rule revision process will have significant effects on the permitting, planning, and evaluation of water uses throughout the state. We strongly encourage any water user, or parties who are affected by water use to participate in the CUPCon process.

    If de la parte & Gilbert, P.A. can help answer and address any questions or concerns you may have concerning this issue, please contact Nick Porter at with your inquiries.
    101 E. Kennedy Blvd., Suite 2000 | Tampa, FL 33602 | 813-229-2775 Fax: 813-229-2712
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