Striving for More Consistent Water-Related Permitting: “CUPcon” and Statewide ERP

The Florida Department of Environmental Protection (DEP) has been heading two efforts to increase the efficiency and statewide consistency of water-related permitting in Florida. These efforts focus on the Consumptive or Water Use Permitting (CUP/WUP) program and the Environmental Resource Permitting (ERP) program. An effort called the Consumptive Use Permitting Consistency Initiative—commonly referred to as “CUPcon”—addresses the CUP/WUP program, whereas a 2012 state law initiated the efforts to make the ERP program more consistent.
Along with the five water management districts (WMDs), which are responsible for implementing the CUP/WUP program, DEP has been working on CUPcon since 2011. The CUP/WUP program, one of the regulatory programs created by Florida’s Water Resources Act, is designed to provide for comprehensive water resource management, and it directs WMDs to regulate the use of ground and surface water by requiring permits for the withdrawal and consumptive use of larger quantities of water—quantities exceeding specified threshold amounts. However, over the years (the Act was passed in 1972), the individual WMDs have developed various and different rules regulating the CUP/WUP program, despite the fact that the WMDs all operate under the same statutory authority for the program. These complaints come, most notably, from permit applicants, especially those applicants seeking permits for the border areas of the WMDs or permits for more than one WMD jurisdiction.
To address the inconsistencies, Governor Rick Scott directed DEP (soon after he became governor) to carry out its legal obligation to supervise the WMDs so as to achieve greater statewide consistency among the WMDs’ regulatory activities; hence, the emergence of CUPcon. To date, DEP and the WMDs have worked toward a more streamlined scheme and greater consistency by holding a variety of stakeholder meetings, organizing work groups to develop solutions for the issues raised by stakeholders, and promulgating several amendments to the rules implementing the CUP/WUP program. As the CUP/WUP program has been developing for decades, it will continue to require reassessment and updating; however, for CUPcon purposes, these recent amendments essentially complete the initiative. So, stay tuned.
Unlike CUPcon, which was established at the behest of the Governor, the effort to establish a more consistent ERP program was mandated by legislation passed by the legislature in 2012. However, like CUPcon, the legislature sought to address the same kind of concern—i.e. inconsistency. With the help of the WMDs, DEP has already complied with the legislative mandate to adopt a statewide ERP rule by amending Chapter 62-330 of the Florida Administrative Code. The legislative mandate required, among other things, that the statewide DEP rule, which is also considered a rule of the WMDs, consist of various standardized ERP provisions to govern all ERP permits in the state, such as standardized forms and fees for permit applications and conditions for issuance of permits. Currently, the statewide rule authorizes three types of permits—general permits, conceptual permits, and individual permits, and DEP continues to make specific amendments and updates to Chapter 62-330 through the required rulemaking procedures.

Statutory Authority for CUP/WUP program
Statutory Authority for ERP program
DEP’s statewide ERP rule (62-330)