The State of Florida Department of Environmental Protection (“Department”), after considering a request by the South Florida Water Management District (“SFWMD”) to operate 14 temporary forward pumps at water control structures S-351, S-352 and S-354 on Lake Okeechobee, in the interest of public welfare and property and being otherwise fully apprised of the matter, issues this Emergency Final Order (“Order”) pursuant to Sections 120.569(2)(n), 373.026, 373.086, 373.439 and 373.119(2), Florida Statutes (“F.S.”), containing the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
1. The SFWMD is a public agency of the State of Florida existing pursuant to Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, F.S. and Title 40E, F.A.C., as a multi-purpose water management district with its principle office in West Palm Beach, Florida. The SFWMD is the local sponsor of the Central and Southern Flood Control Project (“C&SF Project”) for the U.S. Army Corps of Engineers pursuant to Sections 373.103(3) and 373.1501, F.S., and the public laws establishing the Central and Southern Florida Flood Control District (Chapters 25209 and 252270, Laws of Florida (1949)).
2. Lake Okeechobee is located in south central Florida, and occupies portions of Glades, Hendry, Martin, Okeechobee, and Palm Beach Counties within the C&SF Project. The U.S. Army Corps of Engineers and the SFWMD operate the structures that convey water to and from Lake Okeechobee within the C&SF Project for flood control, water supply, environmental protection and water quality purposes, pursuant to the federal Water Control Manual for the Lake Okeechobee and Everglades Agricultural Areas (“Water Control Plan”). See Sections 7-08 and 7-10 of the Water Control Plan.
3. Lake Okeechobee supplies water for agricultural irrigation, municipalities, industry, the Everglades Protection Area, and for regional groundwater control and salinity control. A primary use of Lake Okeechobee is to provide water supply for adjacent urban and agricultural lands and a backup water supply for lower east and west coast counties.
4. Lake Okeechobee provides the primary water supplies to the Lake Okeechobee Service Area (“LOSA”), through an extensive network of canals, levees, pumps and water control structures. The Everglades Agricultural Area (“EAA”) receives water supplies through Structures S-351, S-352, and S-354, which deliver water supply to areas south via the L-10 (West Palm Beach Canal), L-14 (Hillsboro Canal), L-20 (North New River Canal), and L-25 (Miami Canal). During normal conditions water is supplied through these structures via gravity. However, constraints on gravity water supply deliveries through these structures occur when the Lake reaches 10.2 feet NGVD or less. This limitation can be addressed by the use of forward pumps designed to deliver water from Lake Okeechobee during periods of low water levels.
5. The U.S. Army Corps of Engineers is in the process of revising the existing Lake Okeechobee water regulation schedule and associated Water Control Plan for the purpose of achieving a more refined balance between the competing needs of the Lake, which is expected to result in generally lower Lake levels than historically experienced. In recognition of the lower lake levels expected under a revised regulation schedule and based on experience gained from the 2000-2001 drought, the SFWMD included temporary forward pumps as part of the water supply contingency plan for Lake Okeechobee.
6. On October 18, 2006, the SFWMD submitted a request to the Department to modify the pending Lake Okeechobee structures permit application (Lake Okeechobee Protection Act (“LOPA”) permit pursuant to Section 373.4595, F.S.) to authorize operation of the temporary forward pumps.
7. On January 26, 2007, the Department issued its Notice of Intent to Issue the LOPA permit to the SFWMD for the operation and maintenance of water control structures discharging into and out of Lake Okeechobee (Permit Number 0174552-001-GL). The draft permit included authorization to operate the temporary forward pumps. However, at the request of third parties, the Department has granted an extension of time to file a petition on the Notice of Intent and hence the LOPA permit has not been become final and effective.
8. Portions of South Florida are currently in the midst of one of its worst drought in decades. On March 15, 2007, the SFWMD Governing Board declared Phase II Severe Water Shortage Restrictions imposing cutbacks on all uses of water from Lake Okeechobee or surface waters hydraulically connected to Lake Okeechobee. Phase II water shortage restrictions are intended to achieve up to a 30 percent cutback on consumptive use demands estimated for 1 in 10 year rainfall conditions. In addition, on March 15, 2007, the SFWMD Governing Board declared Modified Phase I Moderate Water Shortage Restrictions for all use classes withdrawing water from the Biscayne Aquifer and the surface waters within the Lower East Coast Region within Martin, Palm Beach, Broward, Miami-Dade, and Monroe Counties. The Phase I restrictions are intended achieve the goal of a 15 percent cutback in overall demand. These Lower East Coast restrictions were imposed to help conserve the primary source of water supply from the Water Conservation Areas, especially due to the projected inability to rely on Lake Okeechobee as a back-up supply source during this dry season.
9. On March 19, 2007, the Lake Okeechobee water level was 10.79 feet NGVD, approximately 4.5 feet below its historical average (1992-2000) for this time of year. This exceptionally low lake level reflects the lack of rainfall during 2006 and 2007, especially within the watersheds that typically act to recharge Lake Okeechobee during the wet months. Despite above-average December rains, 2006 ranks as the sixth driest year on record. Coupled with irregular 2006 rain patterns that disproportionately favored southern and southwestern portions of the region, District-wide rainfall was 40.75 inches for 2006, the lowest in South Florida dating back to 1931.
10. Lake levels are expected to continue to decline and projections have indicated that the Lake could drop below the 10.2 feet NGVD gravity constraint within the next 45 days. In anticipation of the imminent cessation of gravity flows from the Lake, the SFWMD has begun installation of the 14 temporary pumps. A total of 4 weeks is required to install all 14 pumps plus an additional week for the contractor to mobilize the pumps and equipment to the first site. As of March 19, 2007, 2 of the 14 pumps have been installed. Once installed, the pumps impede gravity flows and the pumps must be operated in order to maintain water deliveries. Therefore, the temporary forward pumps will need to be operated prior to the Lake reaching 10.2 feet NGVD.
11. Authorizing operation of the temporary forward pumps will allow the SFWMD to continue to make limited water supply deliveries to users within the LOSA. In addition, the temporary forward pumps could also be used for protecting the water quality functions of the Stormwater Treatment Areas through water deliveries to Submerged Aquatic Vegetation cells, as well as providing water for muck fire fighting. In extreme emergencies, water deliveries to coastal areas could become necessary, although this would require stopping water supply deliveries to the LOSA for a significant time period due to the reduced capacity of the temporary forward pumps.
12. There is great potential for catastrophic impacts to the Everglades Agricultural Area and significant economic impacts to the communities south of the Lake if the temporary pumps are not operated. In addition, without pumps there would be no ability to deliver water from the Lake to the Stormwater Treatment Areas or the Lower East Coast urban areas. Operation of the temporary pumps will help mitigate, but not eliminate, the impact of low water levels on water supply users, as it is recognized that even with the temporary forward pumps, the capacity of delivering water out of the Lake is greatly reduced.
13. During the current period of low Lake stages, the District has initiated and intends to continue numerous beneficial activities within Lake Okeechobee to improve its ecology and navigation. These activities include controlled burns for removal of exotic plants, removal of storm-created berms within the Lake, planting of native vegetation for habitat enhancement, and navigation sediment removal.
14. Based on the above, an emergency threatening the public welfare and property exists in areas where water can no longer be delivered from Lake Okeechobee.
CONCLUSIONS OF LAW
15. Subsection 373.026(7), F.S., authorizes the Department to exercise any power granted to a Water Management District within Chapter 373 F.S.
16. Subsection 373.119(2), F.S., gives the Department the authority, in the event of an emergency requiring immediate action to protect the public health, safety, or welfare, to issue an order reciting the existence of such an emergency and requiring that such action be taken as deemed necessary.
17. Section 373.439, F.S., authorizes the Department, to immediately employ any remedial means to protect life and property including lowering water levels by releasing water from any impoundment or reservoir or taking other steps as may be essential to safeguard life and property.
18. Pursuant to Section 373.086, F.S., the SFWMD is authorized to operate works of the District, including the C&SF Project and those affected structures that are the subject of this Order.
19. An emergency exists meriting the entry of an emergency order and authorization to operate 14 temporary forward pumps at the S-351, S-352 and S-354 structures on Lake Okeechobee for the purposes of water supply.
THEREFORE, IT IS ORDERED:
A. The SFWMD is hereby authorized to operate 14 temporary forward pumps installed at the S-351 (six pumps 100 cfs each), S-352 (four pumps 100 cfs each), and S-354 (four pumps 100 cfs each) structures. Operation of these temporary forward pumps shall be in accordance with the existing Water Supply and Environmental Regulation Schedule, Chapters 40E-21 and 40E-22, F.A.C., and the associated LOPA permit application documents on file with the Department.
B. This Order only provides relief from the specific regulatory requirements addressed herein for the duration of the Order, and does not provide relief from the requirements of other federal, state, or local agencies.
C. During the effective period of this Emergency Order, the SFWMD shall monitor water quality and volume of discharges through these structures.
D. This Order may be rescinded or modified as conditions warrant.
E. This Order shall automatically expire when Lake levels rise above 11.2 feet NGVD and are projected to continue rising or when the LOPA permit authorizing the operation of the temporary pumps becomes final and effective, whichever occurs first, unless otherwise extended or terminated.
NOTICE OF RIGHTS
Pursuant to Section 120.569(2)(n) of the Florida Statutes, any party adversely affected by this Order has the right to seek an injunctive relief in circuit court or judicial review of this Order under Section 120.68 of the Florida Statutes. Judicial review must be sought by filing a notice of appeal under Rule 9.110 of the Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, Mail Station 35, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000, and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the appropriate district court of appeal. The notice of appeal must be filed within thirty days after this Order is filed with the Clerk of the Department.
DONE AND ORDERED on this ____ day of March, 2007, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF
MICHAEL W. SOLE
3900 Commonwealth Blvd
Tallahassee, FL 32399-3000
Filed on this date, pursuant to §120.52 Florida Statutes,