• TABLE OF CONTENTS
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 Front Cover
 Title Page
 Acknowledgement
 Executive summary
 Table of Contents
 Introduction
 Florida Water Resources Act of...
 Other states' programs for maintaining...
 Conclusions and recommendation...






Group Title: Technical paper - Florida Sea Grant College Program ; no. 65
Title: Maintenance and restoration of freshwater flows to estuaries for fisheries habitat purposes
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 Material Information
Title: Maintenance and restoration of freshwater flows to estuaries for fisheries habitat purposes
Series Title: Technical paper
Physical Description: v, 130 p. : ; 28 cm.
Language: English
Creator: Wade, Jeff
Florida Sea Grant College
Publisher: Florida Sea Grant College Program, University of Florida
Place of Publication: Gainesville Fla
Publication Date: 1992
 Subjects
Subject: Fishes -- Habitat   ( lcsh )
Freshwater ecology -- Florida   ( lcsh )
Estuarine fisheries   ( lcsh )
Fisheries -- Florida   ( lcsh )
Genre: government publication (state, provincial, terriorial, dependent)   ( marcgt )
bibliography   ( marcgt )
technical report   ( marcgt )
non-fiction   ( marcgt )
 Notes
Bibliography: Includes bibliographical references.
Funding: Florida Department of Natural Resources.
Statement of Responsibility: by Jeffry S. Wade.
General Note: "Funded by Florida Saltwater Fishing License Fee Revenues."
General Note: "July 1992."
 Record Information
Bibliographic ID: UF00076606
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved, Board of Trustees of the University of Florida
Resource Identifier: oclc - 26845708

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Table of Contents
    Front Cover
        Front Cover
    Title Page
        Title Page
    Acknowledgement
        Acknowledgement
    Executive summary
        Unnumbered ( 4 )
        Unnumbered ( 5 )
        Unnumbered ( 6 )
    Table of Contents
        Table of Contents 1
        Table of Contents 2
    Introduction
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
    Florida Water Resources Act of 1872
        Page 7
        Page 8
        Page 9
        Protection of natural systems in the common law of water allocation
            Page 10
            Page 9
            Page 11
            Page 12
            Page 13
            Page 14
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        Consumptive use permitting
            Page 16
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        Planning directives
            Page 46
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    Other states' programs for maintaining optimum freshwater flows to estuaries
        Page 111
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    Conclusions and recommendations
        Page 125
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Full Text
t/3




Technical Paper No. 65






Maintenance and Restoration of Freshwater Flows


to Estuaries for Fisheries Habitat Purposes




Jeffry S. Wade








D-u
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Department of Natural Resoursce S
44 ____


Florida Sea Grant College Program


CKOUc PROGRAM
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Puded by Florida Saltwater Fihing Lioense Fee Reveaes.


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Maintenance and Restoration of Freshwater Flows
to Estuaries for Fisheries Habitat Purposes







by

Jeffry S. Wade
Center for Governmental Responsibility
University of Florida College of Law


Florida Sea Grant College Program
Building 803
P.O. Box 110409
University of Florida
Gainesville, FL 32611-0409
904-392-2801



Florida Department of Natural Resources
Project Number R/FDNR-3A
Contract Number C-6476





Funded by Florida Saltwater Fishing License Fee Revenues




Technical Paper No. 65



July 1992


DIVERSITY OF FLORIDA LIBRARIES












ACKNOWLEDGEMENTS


I would like to thank Richard Hamann, University of Florida College of Law for his
contributions to parts of this report. Karen West and Ty Porter contributed research and writing
assistance, and Dolores Chasteen provided invaluable help in word processing.










EXECUTIVE SUMMARY


Its reputation as a fishing mecca is one of the most important images that Florida
projects. Commercial and recreational fisheries represent a significant component of the state's
revenues. Over the period of 1953-1982, total commercial marine landings in Florida ranged
from 163 million to 215 million pounds annually. A 1982 study calculated that saltwater sport
fishing alone contributes approximately $2 billion per year to the economy. However, despite
continuing increases in the numbers of commercial fishing trips, and the establishment of many
fish hatcheries, total harvests of fish and shellfish have been generally declining since the mid-
1960s. As a result, the state's well deserved image may be in jeopardy. One factor in this
decline has been the loss or degradation of estuarine fishery habitat.
Estuaries play a critical role in the maintenance of fishery populations. Approximately
95% of Florida's commercial fisheries species and most of the recreational species depend on
estuaries during one or more life stages. Among other functions, estuaries provide important
habitat for the juveniles of many fishery species, as well as for the prey base supporting those
species. Studies suggest that shallow seagrass beds, tidal creeks, emergent marsh vegetation, and
mangrove prop roots serve as primary juvenile habitat for many species.
Several fishery species, including clams and oysters, spend their entire life cycles within
estuarine systems. Others, such as shrimp, migrate as larvae from offshore areas to estuarine
nursery habitat, developing into sub-adults before returning to deeper waters to complete their life
cycles. Some of Florida's best known estuarine-dependent species include spotted seatrout,
striped mullet, striped bass, red drum, snook, mangrove snapper, and tarpon. Spawning occurs
offshore for many of these, with larvae or early juveniles moving into estuaries to feed and
mature. Tampa Bay alone provides important nursery habitat for approximately twenty major
offshore commercial species.
An important factor in maintaining the biological health of an estuary is the salinity
regime, which is primarily affected by the quantity, timing and distribution of freshwater inflow
from rivers, creeks and groundwater. At various times in the life cycle of many species of fish
and shellfish, they are dependent on estuarine habitat, particularly the dynamic habitat (favorable
salinity regime) which overlaps favorable physical habitat. Freshwater inflow from rivers and
creeks is also important in furnishing detrital nutrients, transporting sediments into estuaries, and


i









in maintaining circulation patterns. Dry season inflow is very important in avoiding stressful
hypersaline conditions in an estuary.
This report examines several regulatory programs and planning initiatives addressing the
maintenance of freshwater inflow to estuaries. Many human activities have the potential to
influence inflow conditions in estuaries, including the consumptive use of groundwater and
surface water, and instream and offstream impoundments. In parts of Florida, estuarine
resources have been significantly affected by the impoundment, channelization and consumptive
uses of water. Other parts of the state are expected to experience similar effects in the near
future. The primary legislative authorization addressing the impacts of freshwater inflow
alteration is the Florida Water Resources Act of 1972 (Ch. 373, Fla. Stat.), which replaced
common law principles for determining water rights with a comprehensive administrative system
for the regulation and allocation of water. The Act assigns responsibility for consumptive use
permitting decisions, water shortage planning, and other planning initiatives to the state's five
water management districts.
Though one policy of the Act is to preserve natural resources, fish and wildlife, and
though criteria used in the consumptive use permitting (CUP) process allow for the protection of
such values, it is not clear that the protection of estuarine salinity regimes plays a role in most
permitting decisions. Water shortage plans and restrictions appear to assign very little weight to
the maintenance of dry season inflows to estuaries. Planning requirements under the Act have
been met to varying degrees by the different water management districts, with certain districts
allocating more resources to the problem of maintaining adequate timing and quantity of inflow to
critical estuarine habitats.
Another important approach to the pressures facing Florida's estuaries is the Surface
Water Improvement and Management (SWIM) Act (Section 373.451 et seq., Fla. Stat.), which
requires the water management districts to develop lists of prioritized waterbodies in need of
attention. Each district must prepare a plan for the research of and correction of problems faced
by each surface waterbody on the district's prioritized list. The Act recognizes that surface
waters serve several functions, including the provision of habitat for native plants, fish and
wildlife. Water quantity and timing issues are not specifically addressed in the Act, however
evaluations of the nature and extent of conditions adversely affecting each waterbody must
include consideration of its biological condition, physical conditions and fish and wildlife values,









which in turn can be affected by alterations in freshwater inflow. Though there are exceptions,
generally, the districts have not utilized their authority under the SWIM Act to give careful
consideration to issues concerning timing, quantities and distribution of freshwater inflow.
Other states have enacted legislation requiring consideration of riverine and estuarine
inflow needs in the permitting of many activities with potential effects on fishery habitat. The
improvement of Florida's approach to the problem can benefit from analysis of several of the
elements within those programs. Some of the most important recommendations for program
modification in Florida include: increase research and funding commitments in the area of
estuarine freshwater needs and reduce the financial burden on districts with less funding
capability; mandate consideration of and protection of fishery habitat values in the establishment
of minimum flows and levels; establish specific state policy to restore, maintain and protect
optimum freshwater inflows to estuaries for fishery habitat purposes; mandate consideration of
minimum flows and levels in the consumptive use and water shortage planning process; require
that water supply needs and sources analyses include consideration of water inflow needs of
estuaries and potential effects of surface and groundwater withdrawals on estuarine habitat;
require that SWIM plans and programs address the long-ter effects of inflow alterations on
estuarine habitat.
This report is one of two researched and written under Project Number R/FDNR-3A with
the Florida Department of Natural Resources and Florida Sea Grant College. The second report,
"Legal and Policy Options to Minimize Adverse Effects of Mosquito Control Practices on
Florida's Saltwater Fisheries," by John C. Tucker, has also been published as a Sea Grant
Technical Paper.
Please note that the research for and writing of this document were completed September
6, 1991, thus the report does not reflect changes in plans, policies and regulations as of that date.













iii










TABLE OF CONTENTS


INTRODUCTION ..................................... ........... 1

FLORIDA WATER RESOURCES ACT OF 1972 ........................... 7
I. Overview of the Act ................... ................. 7
II. Protection of Natural Systems in the Common Law of Water Allocation .... 9
A. The Natural Flow Doctrine ........................... 9
B. Reasonable Use Rule ............................... 10
C. Classification as a "Watercourse" or as "Diffused Surface Water" .. 14
III. Consumptive Use Permitting ............................... 16
A O verview ..................................... 16
B. Protection of Natural Systems in Permitting Criteria ............ 17
1. Reasonable-Beneficial Use ....................... 17
2. Existing Uses ............................... 19
3. Public Interest .................. ........... 21
C. Reservation of Instream and Inplace Water Needs in Consumptive
Use Permitting and Water Shortage Planning ................ 23
1. Southwest Florida Water Management District .......... 25
a. Consumptive Use Permitting ................... 25
b. Water Shortage Rules ....................... 28
2. South Florida Water Management District ............. 31
a. Consumptive Use Permitting ................... 31
b. Water Shortage Rules ....................... 33
3. St. Johns River Water Management District ............ 35
a. Consumptive Use Permitting ................... 35
b. Water Shortage Rules ....................... 38
4. Suwannee River Water Management District ............ 40
a. Consumptive Use Permitting ................... 40
b. Water Shortage Rules ....................... 41
5. Northwest Florida Water Management District .......... 43
a. Consumptive Use Permitting ................... 43
b. Water Shortage Rules ....................... 45
IV. Planning Directives ..................................... 46
A. State W ater Use Plan ............................... 46
B. District Water Management Plans ....................... 47
1. Southwest Florida Water Management District .......... 49
2. South Florida Water Management District ............. 53
3. St. Johns River Water Management District ............ 56
4. Suwannee River Water Management District ............ 58
5. Northwest Florida Water Management District . ... 60
C. Minimum Flows and Levels .......................... 61
1. Southwest Florida Water Management District . ... 63
2. South Florida Water Management District ............. 65
3. St. Johns River Water Management District ............ 67










4. Suwannee River Water Management District ............ 70
5. Northwest Florida Water Management District .......... 71
D. Groundwater Basin Resource Availability Inventories ........... 72
E. Planning for Water Supply Needs ....................... 73
F. Technical Assistance to Local Governments ................. 73
V. Surface Water Improvement and Management Plans ................ 74
A. Southwest Florida Water Management District ............... 78
B. South Florida Water Management District .................. 80
C. St. Johns River Water Management District ................. 94
D. Suwannee River Water Management District ............... 100
E. Northwest Florida Water Management District .............. 105

OTHER STATES' PROGRAMS FOR MAINTAINING OPTIMUM
FRESHWATER FLOWS TO ESTUARIES ............. 111
I. T exas .. . . . . . . . . . ... 111
II. C alifornia .. .. ... . .. .. . .. . .. ... 114
III. O region ... .. .. .. .. .. .. .. .. . .. .. ... 119
IV Connecticut ........................................ 122

CONCLUSIONS AND RECOMMENDATIONS .......................... 125










MAINTENANCE AND RESTORATION OF FRESHWATER FLOWS TO ESTUARIES
FOR FISHERIES HABITAT PURPOSES

INTRODUCTION
Its reputation as a fishing mecca is one of the most important images that Florida
projects. Commercial and recreational fisheries represent a significant component of the state's
revenues. Over the period of 1953-1982, total commercial marine landings in Florida ranged
from 163 million to 215 million pounds annually.' A 1982 study calculated that saltwater sport
fishing alone contributes approximately $2 billion per year to the economy.2 However, despite
continuing increases in the numbers of commercial fishing trips, and the establishment of fish
hatcheries, total harvests of fish and shellfish have been generally declining since the mid-
1960s.3 As a result, the state's well deserved image may be in jeopardy. One factor in this
decline has been the loss or degradation of estuarine fishery habitat.
Estuaries are features of the coastal landscape where the mainland, barrier islands, or
vegetation semi-enclose a waterbody made brackish by the mixing of salt and fresh water.4



1 Comp and Seaman, Estuarine Habitat and Fishery Resources of Florida, in FLORIDA
AQUATIC HABITAT AND FISHERY RESOURCES (Bill Seaman, ed.) 337-435, 376, American
Fisheries Society (1985).

2 BELL, SORENSEN AND LEEWORTHY, THE ECONOMIC IMPACT AND VALUATION OF
SALTWATER RECREATIONAL FISHERIES IN FLORIDA, Florida Sea Grant Report No. 47 (1982).

3 Comp and Seaman, Estuarine Habitat and Fishery Resources of Florida, in FLORIDA
AQUATIC HABITAT AND FISHERY RESOURCES (Bill Seaman, ed.) 337-435, 376, American
Fisheries Society (1985). During the first fifteen years of the period between 1953-1982, total
landings averaged 195 million pounds, while during the last fifteen years of the period, total
landings averaged 181 million pounds. Id. Statewide, fish and shellfish landings in 1988 totalled
about 163 million pounds. 1990 FLORIDA STATISTICAL ABSTRACT (Anne Shermyen, ed.) 288,
Bureau of Economic and Business Research (1990). Commercial finfish landings peaked in
Tampa Bay in 1964, while shellfish landings peaked in 1965. TAMPA BAY SWIM PLAN, 28,
Southwest Florida Water Management District (1988).

4 Estevez, Hartman, Kautz and Purdum, Ecosystems of Surface Waters, in WATER
RESOURCES ATLAS OF FLORIDA (Fernald and Patton, eds.) 92-107, 102, Institute of Science and
Public Affairs, Florida State University (1984). See also, CLARK, COASTAL ECOSYSTEM
MANAGEMENT, 29, Conservation Foundation (1983). Estuarine systems generally include
protected bays, sounds, lagoons, bayous and tidal rivers and streams. Id.


1









Among other functions, estuaries provide important nursery habitat for the juveniles of many
fishery species, as well as for the prey base supporting those species.5 Approximately 95% of
Florida's commercial fisheries species,6 and approximately 70% of recreational species,7 depend
on estuaries during one or more life stages.8 Studies suggest that shallow seagrass beds, tidal
creeks, emergent marsh vegetation, and mangrove prop roots serve as primary juvenile habitat
for many species.9 Seagrasses play several roles in the ecology of an estuary, including: habitat,
food source, nutrient buffer, and sediment trap.10 The grasses act as nursery grounds for
juvenile stages of some fish species; refuge for molting blue crabs, other invertebrates and
finfish; as a substrate for epiphytic plants and animals; and as habitat for all fauna subsisting







5 Browder, Tashiro, Coleman-Duffie, Rosenthal and Wang, Documenting Estuarine Impacts
of Freshwater Flow Alterations and Evaluating Proposed Remedies, in PROCEEDINGS OF AN
INTERNATIONAL SYMPOSIUM: WETLANDS AND RIVER CORRIDOR MANAGEMENT (Kusler and
Daly, eds.), 300-318, 300 (1989).

6 Id.

7 Lewis, Gilmore, Crewz and Odum, Mangrove Habitat and Fishery Resources of Florida,
in FLORIDA AQUATIC HABITAT AND FISHERY RESOURCES (Bill Seaman, ed.), 281-336, 316,
American Fisheries Society (1985).

8 It has been estimated that "at least two-thirds of the animal populations in the oceans spend
an essential portion of their life cycle in estuarine waters or are dependent upon species that do.
U.S. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY: FIRST ANNUAL
REPORT, 175-78 (1970). See also, Boynton, W., Some Relationships Between River Flow,
Estuarine Characteristics, and Economics in a Florida Coast Region, in FRESHWATER AND THE
FLORIDA COAST: SOUTHWEST FLORIDA (Seaman and McLean, eds.), 171-215, Florida Sea Grant
Report No. 22 (1977).

9 Browder, J., Watershed Management and the Importance of Freshwater Flow to Estuaries,
in PROCEEDINGS, TAMPA BAY AREA SCIENTIFIC INFORMATION SYMPOSIUM 2 (BASIS 2) (Treat
and Clark, eds.), 7-22, Tampa Bay Regional Planning Council (1991).

10 See generally, ZIEMAN AND ZIEMAN, THE ECOLOGY OF THE SEAGRASS MEADOWS OF
THE WEST COAST OF FLORIDA: A COMMUNITY PROFILE, U.S. Minerals Management Service,
U.S. Fish and Wildlife Service, Biological Report 85(7.25) (September 1989); THE FUTURE OF
TAMPA BAY, 1-23, Tampa Bay Regional Planning Council (1985).









directly on seagrasses and its epiphytes, or detritus derived from them." Freshwater inflow is
directly related to favorable salinities and nutrient transport necessary for healthy seagrass beds.
Submerged aquatic vegetation is eaten directly by some species, but its primary role is in
the detritus-based food web, where it adds to and accumulates detrital food for invertebrates such
as shrimp, which are in turn consumed by finfish.'2 In some estuaries, it appears that
submerged aquatic vegetation serves as a nutrient buffer by absorbing excess nutrients during
periods of high inflow, then releasing them later as detrital material, helping to moderate
phytoplankton blooms.13 Seagrasses also baffle water movement, enhancing the settling and
binding of sediment, and reducing turbidity, thereby stabilizing bottom sediments and reducing
shoreline erosion.14
In addition to the physical habitat they provide, estuaries and tidal reaches of coastal
rivers normally provide a range of favorable salinities, known as dynamic habitat, which are
extremely important to the growth and survival of juvenile fish, shellfish and invertebrates.
Salinity has been recognized as the single most influential parameter in an estuary.15 Generally,
organisms of different sizes within species appear to follow the salinity gradient within estuaries,
with the smallest individuals inhabiting the areas of lowest salinity.16 Juveniles of many species
depend on lower salinities to avoid predators at important points in their life cycles, while lower
salinity regimes tend to protect oysters from predation. The three species of economically



11 THE FUTURE OF TAMPA BAY, 1-23, Tampa Bay Regional Planning Council (1985).
12 Id.

13 Id.

14 Id.

"5 Beaumariage and Stewart, The Estuary--What's It To You?, in FRESHWATER AND THE
FLORIDA COAST: SOUTHWEST FLORIDA (Seaman and McLean, eds.) 133, Florida Sea Grant
Report No. 22 (1977).

16 Browder and Moore, A New Approach to Determining the Quantitative Relationship
Between Fishery Production and the Flow of Fresh Water to Estuaries, in PROCEEDINGS OF THE
NATIONAL SYMPOSIUM ON FRESHWATER INFLOW TO ESTUARIES, VOL. I (Cross and Williams,
eds.), 403-430, 406, U.S. Fish and Wildlife Service, Office of Biological Services, FWS/OBS-
81/04 (1981).









important shrimp respond to extremely slight salinity differences, becoming active in higher
salinity water and settling to the bottom at lower salinities. This allows the small juveniles of
these species to travel two or three miles on each flood tide when entering an estuary. Postlarval
and juvenile shrimp are so responsive to salinity differences that there appears to be a direct
correlation between commercial catches and an index of previous fresh water runoff to the
coast.17
The flow of freshwater from tidal creeks and rivers is an important factor in maintaining
natural salinity gradients in estuarine ecosystems, also contributing to the protective function
provided by reduced salinities in upstream sections of an estuary. Freshwater inflow is also
important in bringing detrital nutrients into estuaries, and sustaining proper circulation patterns,
thereby contributing to the health of seagrass habitat, and maintaining the transport mechanism
used by postlarval and juvenile invertebrates to find favorable habitat. Estuarine salinities may
be particularly sensitive to changes in dry season flows, with small variations in freshwater
inflow during the dry season strongly affecting estuarine salinities." Thus, the relative
magnitude of dry season flows may be more critical to fisheries than that of wet season flows,
with both shrimp and oyster production rates shown to be positively related to volume of
freshwater flow during dry seasons two and three years prior to harvest."
A growing source of concern to scientists studying fishery declines is the effect of
alterations in the quantity, timing and location of freshwater inflow on estuarine habitat.
Estuaries which experience extended or permanent changes in salinity become biologically



17 Browder, J., Relationship Between Pink Shrimp Production on the Tortugas Grounds and
Water Flow Patterns in the Florida Everglades, 37 BULLETIN OF MARINE SCIENCE 839-856
(1985). See also, Beaumariage and Stewart, The Estuary-What's It To You?, in FRESHWATER
AND THE FLORIDA COAST: SOUTHWEST FLORIDA (Seaman and McLean, eds.), Florida Sea Grant
Report No. 22 (1977).

"1 Browder, J., Watershed Management and the Importance of Freshwater Flow to Estuaries,
in PROCEEDINGS, TAMPA BAY AREA SCIENTIFIC INFORMATION SYMPOSIUM 2 (BASIS 2) (Treat
and Clark, eds.) 7-22, 15, Tampa Bay Regional Planning Council (1991).

19 Id. See, Browder, J., Relationship Between Pink Shrimp Production on the Tortugas
Grounds and Water Flow Patterns in the Florida Everglades, 37 BULLETIN OF MARINE SCIENCE
839-856 (1985); Wilbur, D., Associations Between Freshwater Inflows and Oyster Harvests in
Apalachicola Bay, (in prep.), Northwest Florida Water Management District.










stressed. Altering inflows not only affects the health of seagrasses and other physical habitat, but
reduces the important overlap between physical habitat and dynamic habitat (proper salinity
gradients). Effects may include: (1) the loss of some entire fisheries, (2) decreased dominance of
euryhaline species (tolerant of wide salinity ranges), and increased dominance of stenohaline
species (tolerant of narrow salinity ranges), with selection favoring species adapted to new
conditions, (3) increases in salt tolerant mosquito and other insect populations, and (4) destruction
of salt marshes, mangroves and seagrass beds.20 When estuaries are deprived of fresh water,
effects include:
(1) nearshore waters become more saline and mixing due to salinity differences is
diminished;

(2) salt wedges may develop farther inland and saltwater intrusion in coastal water
supplies can result;

(3) exchanges of material between the water and substratum are affected and sediment
chemistry is adversely impacted;

(4) patterns of sediment erosion, deposition, and littoral drift are altered;

(5) the estuary is starved of nutrients of terrestrial origin;

(6) salt marshes, mangrove forests, and seagrass beds deteriorate under constantly
elevated salinity;

(7) certain fisheries decline or disappear for a variety of reasons related to fresh
water;

(8) other species and communities develop in response to new conditions; and

(9) populations of nuisance species increase.21

Several types of human activities can affect the quantity and timing of freshwater inflow
to estuaries, including: instream and offstream diversions for consumptive use; dams for



20 SNEDAKER, DE SYLVA, AND COTTRELL, A REVIEW OF THE ROLE OF FRESHWATER IN
ESTUARINE ECOSYSTEMS, Final Report to Southwest Florida Water Management District (1977).

21 Estevez, Hartman, Kautz and Purdum, Ecosystems of Surface Waters, in WATER
RESOURCES ATLAS OF FLORIDA (Fernald and Patton, eds.) 92-107, 105, Institute of Science and
Public Affairs, Florida State University (1984).


I









irrigation and power; stormwater collection and treatment systems; increased impervious surface
from urban development; upland drainage canals; and deforestation, including clearcutting.22
By removing fresh water that would otherwise help maintain salinity regimes and transport
nutrients, the diversion of water for consumptive uses has obvious potential to negatively affect
habitat values in estuaries and tidal creeks. The dams used to impound instream flows for
consumptive use also block anadromous fish from moving into upstream areas of an estuary
which are important breeding and nursery habitat for these species. The operation of dams and
schedules of releases during times of high and low flows can have profound effects on estuarine
habitat.
Development in the river basin of an estuary typically involves several activities with
impacts on the estuary. Removing the vegetative cover reduces uptake of water by vegetation
and impairs the process by which overland flow is slowed and aquifers replenished. As a result,
natural hydroperiods are altered, with higher than normal flow into the river and estuary during
wet periods and lower base flow during dry periods. Drainage of areas for construction activity,
or for agricultural, silvicultural or other farming activities, also alters the normal quantities and
timing of flows into rivers and estuaries. The increased amounts of impervious surface
associated with residential and commercial development, and most stormwater collection and
treatment systems, have effects similar to, though greater than, those which result from the
removal of vegetative cover.
This report analyzes Florida's consumptive use permitting process, water shortage
planning process, and the several planning initiatives required under the Water Resources Act of
1972 and the Surface Water Improvement and Management Act. Emphasis is placed on the
regulatory and planning programs controlling withdrawals of water and the degree to which they
address potential impacts on estuarine fisheries habitat. Administrative programs for allocating
water in other states are summarized and analyzed for their potential use in recommending
revisions to Florida's current approach.



22 See, Browder and Moore, A New Approach to Determining the Quantitative Relationship
Between Fishery Production and the Flow of Fresh Water to Estuaries, in PROCEEDINGS OF THE
NATIONAL SYMPOSIUM ON FRESHWATER INFLOW TO ESTUARIES, VOL. I (Cross and Williams,
eds.), 403-430, U.S. Fish and Wildlife Service, Office of Biological Services, FWS/OBS-81/04
(1981).









FLORIDA WATER RESOURCES ACT OF 1972


I. Overview of the Act
One of Florida's primary legislative authorizations for addressing the impacts of
freshwater inflow alteration is the Water Resources Act of 1972.23 The Act was adopted in
1972 following a severe drought in South Florida, and was designed to provide for
comprehensive state regulation of the state's water resources, including consideration of
hydrological boundaries and the interrelationship of all forms of water in the hydrologic cycle.24
The Act was based largely on A MODEL WATER CODE, authored by Dean Frank Maloney and
several colleagues at the University of Florida College of Law.2s
The Water Resources Act provides for the management of state's water resources by the
Department of Environmental Regulation (DER) and the five water management districts.
Though primary legislative authority was vested in the DER, delegation to the districts is
encouraged,6 and has resulted in a shared responsibility in the regulation of water resources.
The DER has "general supervisory authority" over the districts,27 and authority to appeal district
decisions to the Land and Water Adjudicatory Commission.28
Water management district boundaries were set to conform closely to watershed
boundaries. The districts have the authority to build and operate water management structures
such as the Central and Southern Florida Flood Control Project.29 They may regulate the use of


23 FLA. STAT. 373.013-373.443 (1989).

24 Maloney, Capehart & Hoofman, Florida's "Reasonable Beneficial" Water Use Standard:
Have East and West Met?," 21 U. FLA. L. REV. 253 (1979).

Page proofs of A MODEL WATER CODE were made available to the Florida legislature
before the drafting of the legislation, thus the Model Code's commentary on the intent of its
sections is evidence of legislative intent in the passage of the Act.

26 FLA. STAT. 373.016(3), 373.026, 373.046 (1989); FLA. ADMIN. CODE Rule 17-
101.040 (11), (12) (June 1991).

27 FLA. STAT. 373.026(7) (1989).

28 FLA. STAT. 373.114 (1989).

29 FLA. STAT. 373.086 (1989).









district works,30 and may purchase and manage land for water management purposes." They
also have extensive regulatory authority over the consumptive uses of water,32 artificial recharge
facilities,3 and the construction and operation of facilities for surface water management.34
The districts' sources of financing include ad valorem taxation, direct state appropriations,
collection of permit fees, and limited authority to issue bonds.
The Water Resources Act authorizes or requires research and data collection for the
management of water and related lands, and requires several related planning efforts. The DER
is directed to develop an "integrated, coordinated plan for the use and development of the waters
of the state."35 This state water use plan is to be a functional element of the state
comprehensive plan, and together with the state's water quality standards and classifications,
constitutes the Florida Water Plan. The Act also directs the water management districts to
develop groundwater basin resource availability inventories,36 provide extensive technical
assistance to local governments in the preparation of their comprehensive plans,37 develop
surface water improvement and management plans,38 "engage in planning" to help local







30 FLA. STAT. 373.085 (1989). Defined as projects and works, including, but not limited
to, structures, impoundments, wells, streams, and other watercourses, together with the
appurtenant facilities and accompanying lands, which have been officially adopted by the
governing board of the district as works of the district. FLA. STAT. 373.019(15) (1989).

31 FLA. STAT. 373.086, 373.139, 373.59 (1989).

32 FLA. STAT. 373.175, 373.203-.249 (1989).

33 FLA. STAT. 373.106 (1989).

34 FLA. STAT. 373.403-.443 (1989).

35 FLA. STAT. 373.036 (1989).

36 FLA. STAT. 373.0395 (1989).

37 FLA. STAT. 373.0391 (1989).

38 FLA. STAT. 373.451-.459 (1989).









governments and regional water supply authorities meet water supply needs,9 and set minimum
flows and levels.40
II. Protection of Natural Systems in the Common Law of Water Allocation
The Water Resources Act was intended to supersede common law doctrines for the
allocation of water rights. The criteria for making allocation decisions, however, are based on
common law concepts. Thus, an understanding of how instream uses of water are protected
under the common law of riparian rights is helpful in interpreting the provisions of the Act.
A. The Natural Flow Doctrine
The common law which originally developed in England and the more humid eastern
United States was primarily concerned with maintaining the natural flow of streams and rivers for
the sole benefit of abutting riparian land. Under the natural flow doctrine, all owners of riparian
land are entitled to receive the full flow of the stream, undiminished in either quality or
quantity.41 Upper riparian owners are generally prohibited from altering the natural flow of the
stream, except for domestic uses.42
Though, in its original context, the natural flow doctrine was not directly concerned with
instream flows related to habitat, dtri developed during a period whn the primer
peoplead fwatercourses were for drinking bathing, navigation and water power, all of
which depended on maintaining flow. Application of the rule for these purposes had the
additional effect of maintaining natural flows to sustain environmental, recreational and aesthetic
values.


39 FLA. STAT. 373.1961(1) (1989).

40 FLA. STAT. 373.042 (1989).

41 An early English decision articulating the natural flow doctrine is Shury v. Piggot, 3
Bulstrode 339, 81 Eng. Rep. 280 (1626), in which the court said, "A watercourse begins ex jurae
naturae, and, having taken a certain course naturally, cannot be diverted." For early U.S.
decisions, see Tyler v. Wilkinson, 24 F. Cas. 472 (C.C.D.R.I. 1827), Evans v. Merriweather, 4
Ill. 492, 494 (1842). See also, Omerod v. Todmorden Mill Co., 11 Q.B. 155 (1883); Hendrix
v. Roberts Marble Co., 175 Ga. 389, 165 S.E. 223 (1932); Stein v. Burden, 24 Ala. 130 (1854);
Burden v. Stein, 27 Ala. 104 (1855); Stein v. Burden, 29 Ala. 127 (1856) (natural flow doctrine,
with natural use exception).

42 See Harris v. Brooks, 225 Ark. 436, 283 S.W.2d 129 (Ark. 1955); Prather v. Hoberg, 24
Cal.2d 549, 150 P.2d 405 (1944); Evans v. Merriwether, 4 Ill. (3 Scam.) 492 (1842).









Most natural flow cases involve the protection of the flows necessary to provide water
power to downstream mills. The conflict is often between a riparian who has diverted or
impounded a stream to supply power for a mill and lower riparians who depend on the flow to
supply their own mills or for consumptive uses. In Collens v. The New Canaan Water Co.. 355
Conn. 477, 234 A.2d 825 (1967), the court was more directly concerned with protecting less
utilitarian uses. The water company had diverted most of the flow of the Noroton River by
means of ditches and wells. The plaintiff riparian owners were thus unable to use the stream for
recreational activities such as swimming, boating and fishing. Fish kills had occurred, and the
scenic value of riparian lands was diminished. In ruling for the plaintiffs, the court simply stated
they were "entitled to the natural flow of the water of the running stream through or along their
land, in its accustomed channel, undiminished in quantity or unimpaired in quality."
B. Reasonable Use Rule
During the industrial revolution, the common law evolved to permit alteration of the
natural flow resulting from the "reasonable use" of water.4 This development in the common
law was carried forth in the water law of the eastern states.45 Under the reasonable use rule, all


43 355 Conn. 477, 486 (1967).

4 Tyler v. Wilkinson, 24 F.Cas. 472 (C.C.D.R.I. 1827).
Every proprietor of lands on the banks of a river has naturally an
equal right to the use of the water which flows in the stream
adjacent to his lands, as it was wont to run (currere solebat),
without diminution or alteration. No proprietor has a right to use
the water, to the prejudice of other proprietors, above or below
him, unless he has a prior right to divert it, or a title to some
exclusive enjoyment.... Though he may use the water while it runs
over his land as an incident to the land, he cannot unreasonably
detain it, or give it another direction, and he must return it to its
ordinary channel when it leaves his estate. Without the consent of
adjoining proprietors, he cannot divert or diminish the quantity of
water which would otherwise descend to the proprietors below, nor
throw the water back upon the proprietors above....This is the
clear and settled general doctrine on the subject, and all the
difficulty that arises consists in the application. Id.

45 In contrast, the water law of most western states evolved from a doctrine known as "prior
appropriation," in which a primary criterion in determining water rights was the chronological
(continued...)









governments and regional water supply authorities meet water supply needs,9 and set minimum
flows and levels.40
II. Protection of Natural Systems in the Common Law of Water Allocation
The Water Resources Act was intended to supersede common law doctrines for the
allocation of water rights. The criteria for making allocation decisions, however, are based on
common law concepts. Thus, an understanding of how instream uses of water are protected
under the common law of riparian rights is helpful in interpreting the provisions of the Act.
A. The Natural Flow Doctrine
The common law which originally developed in England and the more humid eastern
United States was primarily concerned with maintaining the natural flow of streams and rivers for
the sole benefit of abutting riparian land. Under the natural flow doctrine, all owners of riparian
land are entitled to receive the full flow of the stream, undiminished in either quality or
quantity.41 Upper riparian owners are generally prohibited from altering the natural flow of the
stream, except for domestic uses.42
Though, in its original context, the natural flow doctrine was not directly concerned with
instream flows related to habitat, dtri developed during a period whn the primer
peoplead fwatercourses were for drinking bathing, navigation and water power, all of
which depended on maintaining flow. Application of the rule for these purposes had the
additional effect of maintaining natural flows to sustain environmental, recreational and aesthetic
values.


39 FLA. STAT. 373.1961(1) (1989).

40 FLA. STAT. 373.042 (1989).

41 An early English decision articulating the natural flow doctrine is Shury v. Piggot, 3
Bulstrode 339, 81 Eng. Rep. 280 (1626), in which the court said, "A watercourse begins ex jurae
naturae, and, having taken a certain course naturally, cannot be diverted." For early U.S.
decisions, see Tyler v. Wilkinson, 24 F. Cas. 472 (C.C.D.R.I. 1827), Evans v. Merriweather, 4
Ill. 492, 494 (1842). See also, Omerod v. Todmorden Mill Co., 11 Q.B. 155 (1883); Hendrix
v. Roberts Marble Co., 175 Ga. 389, 165 S.E. 223 (1932); Stein v. Burden, 24 Ala. 130 (1854);
Burden v. Stein, 27 Ala. 104 (1855); Stein v. Burden, 29 Ala. 127 (1856) (natural flow doctrine,
with natural use exception).

42 See Harris v. Brooks, 225 Ark. 436, 283 S.W.2d 129 (Ark. 1955); Prather v. Hoberg, 24
Cal.2d 549, 150 P.2d 405 (1944); Evans v. Merriwether, 4 Ill. (3 Scam.) 492 (1842).









riparians are entitled to make reasonable use of water, limited only by a prohibition on interfering
with the reasonable uses of other riparians. If the amount of available water is insufficient to
meet all demands, the courts must balance and reconcile the competing riparian interests in
making a decision on allocation.
Environmental values supported by levels and flows of water are directly addressed under
the reasonable use doctrine. Though the rule primarily reconciles competing human uses, the
protection of environmental conditions that benefit humans is implicitly a factor in several ways.
The first is that all uses of water are subject to protection, not just consumptive withdrawals.
The reasonableness of instream or inplace uses such as fishing, swimming and boating by
riparians must be balanced against the reasonableness of other uses.46 The scenic and aesthetic
values of water to riparians must also be considered, particularly where they enhance the value of
riparian land.47


45(...continued)
order in which the water was originally appropriated. Riparian ownership was not considered
necessary to the right to make withdrawals. A fundamental principle of western water law is that
the water be used for a "beneficial use." In the western states, determination of beneficial use
now requires consideration of the purpose for which the use is being made and of the manner and
efficiency of the use. Thus, in many ways, the beneficial use doctrine has come to resemble that
of reasonable use. Maloney, Capehart & Hoofman, Florida's "Reasonable Beneficial" Water
Use Standard: Have East and West Met?," 21 U. FLA. L. REV. 253, 265 (1979).

46 Taylor v. Tampa Coal Co., 46 So.2d 392 (Fla. 1950); Litka v. Anacortes, 167 Wash.
259, 9 P.2d 88 (1932) (withdrawal from nonnavigable lake by municipality interfered with use by
riparian owner for domestic use, irrigation, mooring boats, fishing, swimming etc.); Harris v.
Brooks, 225 Ark. 436, 283 S.W.2d 129 (1955) (withdrawal or water from lake to irrigate rice
crop interfered with the rights of other riparians to make reasonable use of water for fishing,
boating and the operation of a commercial fish camp); Hoover v. Crane, 362 Mich. 36, 106
N.W.2d 563 (Mich. 1960) (boating and swimming recognized as riparian rights of cottage and
resort owner and balanced against withdrawal by orchard irrigator); Bouris v. Largent, 94 Ill.
App. 251, 236 N.E.2d 15 (1968) (impoundment caused lowering of lake level and interfered with
riparian rights to use lake for recreational and pleasure); Martha Lake Water Co. v. Nelson, 152
Wash. 53, 277 P. 382 (1929) (lowering lake levels and causing the water's edge to recede held to
damage owners of summer houses who used lake for bathing, boating, swimming and fishing);
Valparaiso City Water Co. v. Dickover, 17 Ind. App. 233, 46 N.E. 591 (1897) (waterworks
diverted water from lake and caused recession of water's edge from beach of land used for
summer resort).

47 Sturtevant v. Ford, 280 Mass. 303, 182 N.E. 560 (Mass. 1932); Los Angeles v. Aitken,
10 Cal.App.2d 460, 52 P.2d 585 (1935).









Second, the factors used by the courts in determining the reasonableness of competing
uses encompass consideration of the effects of each use on instream or inplace uses, as well as
consideration of the effects on the ecosystem. Commentators have identified several factors used
by the courts in determining whether a particular use is reasonable.48 These include: (1)
purpose; (2) suitability of the use for the waterbody; (3) economic value; (4) social value; (5)
extent of harm; (6) practicality of avoiding harm; (7) practicality of adjusting the quantity; (8)
protection of existing values; and (9) whether the user causing the harm is bearing the loss.49
The official comments to the Restatement (Second) of Torts, discuss the relevance of
environmental, aesthetic and nonconsumptive uses in evaluating several of these factors. A use
may be unsuitable for a particular stream segment, for example, because it degrades recreational
and environmental values downstream.50 In evaluating economic factors, the comments point
out the necessity of considering the economic values added to land by the presence of water and
the potential for recreational scenic uses." The social value of a use may be diminished by
adverse effects on others or the public interest." The extent of harm to environmental,
instream or inplace values is thus relevant to a consideration of reasonableness. Only the amount
of water needed to support those values, not the natural flow or level, however, may be
protected.
Florida's leading common law consumptive use case, Taylor v. Tampa Coal Co.,53
involved a conflict resulting from the withdrawal of irrigation water from a shallow, 26 acre
lake. Another riparian owner, the Taylor Coal Company, used the lake as a place for employees
to swim, fish, boat and picnic, and alleged the withdrawal lowered water levels to such an extent



48 RESTATEMENT (SECOND) OF TORTS 850A (1979); Maloney, Capehart & Hoofman,
Florida's "Reasonable Beneficial" Water Use Standard: Have East and West Met?," 21 U. FLA.
L. REV. 253, 256 (1979).

49 RESTATEMENT (SECOND) OF TORTS 850A (1979).

50 Id. at 225.

51 Id.

52 Id. at 226.

53 46 So.2d 392 (Fla. 1950).









as to interfere with those uses. A third riparian, Hays, who had a residence and fernery on the
lake, alleged that lowering the level of the lake would interfere with the growth and productive
capacity of the trees and ferns on his land. There was evidence that the lake level was 49 inches
below normal and that continuing irrigation was causing it to drop at a rate of one-half inch per
day, in addition to the one-half inch it was falling because of natural causes. On these facts, the
Supreme Court of Florida upheld an injunction that prohibited withdrawals whenever the lake
level was below normal." The court held that all riparians had an equal right to make
reasonable use of the water. It specifically rejected the notion that an artificial use such as
irrigation enjoyed a superior right over recreational uses that depended on the maintenance of
minimum lake levels for swimming, boating, fishing and aesthetics. The court also implicitly
recognized the right of Hays to the maintenance of that minimum lake level and related
groundwater level necessary to maintain the soil moisture needed by his trees and ferns.
A subsequent groundwater case, Koch v. Wick,55 also upheld the rights of landowners to
protection from unreasonable interference with soil moisture levels. In this case, the owner of a
large tract of land alleged that an adjoining four acre wellfield would drain moisture from his
land, reducing its productivity to such an extent that it would become a "desert waste." The
court held these allegations were sufficient to state a cause of action. As in Taylor, harm to the
general environmental condition of the land was held to be an actionable injury to the extent that
it depended on certain levels of water.56





54 Id. at 294.

55 87 So.2d 47 (Fla. 1956). The use of groundwater in Florida is also subject to a common
law rule of reasonable use. Tampa Waterworks v. Cline, 37 Fla. 586, 20 So. 780 (1896).

56 See also, Cason v. Florida Power Co., 76 So. 535, 536 (Fla. 1917) ("Where a riparian
owner by erecting and maintaining a dam across a stream raises the level of the stream so that
the flow of percolating waters from the adjoining lands of another owner are obstructed, and
because of the dam the waters from the stream percolate through the land of the riparian owner
into such adjoining land, causing its subsurface waters to rise and remain so near the surface as
to injure the land and the improvements and crops thereon, such use by the riparian owner of the
land and waters may be unreasonable with reference to the rights of the adjoining landowner, and
the party erecting and maintaining the dam may be liable in damages for such injuries to the
adjoining property as are proximately caused by the dam....")









C. Classification as a "Watercourse" or as "Diffused Surface Water"
The common law rules for resolving disputes over the consumptive use of water may vary
depending on whether the water at issue is classified as "diffused surface water," or as part of a
"watercourse," or other defined waterbody." Florida has not addressed the issue, but most
jurisdictions do not protect downstream landowners from consumptive use of diffused surface
water.8" The emphasis, instead, is on determining whether to protect an owner from flooding,
erosion or other property damage caused by the impoundment, diversion or channelization of
diffused surface water that increases the burden on the estate.9 All of the Florida decisions
defining a watercourse arise from this type of controversy.
For example, in Davis v. Ivey,' the Supreme Court of Florida determined the
circumstances under which a railroad could be liable for constructing an embankment that
impounded water and caused flooding of the plaintiffs property. The railroad would be liable
for obstructing or diverting the flow of a natural watercourse. The structure at issue crossed a
number of connected ponds and swamps, separated by ridges of higher ground. As the court
noted, these features, known as "strands...to all hunters, cattlemen, and woodsmen in





57 See generally, MALONEY, PLAGER AND BALDWIN, WATER LAW AND ADMINISTRATION
57.2, 71, University of Florida Press (1968).

58 Id. See cases collected in note 4, Davis, Law of Diffused Surface Water in Eastern
Riparian States, 6 CONN. L. REV. 227-245 (1973). See also, Dolson, Diffused Surface Water
and Riparian Rights: Legal Doctrines in Conflict, 1966 Wis. L. REV. 58; Note, The Ovnership
of Diffused Surface Water in the West, 20 STAN. L. REV. 1205 (1968). If the common law
remained in effect in Florida, the validity of such approaches is doubtful. The unity of the
hydrologic cycle, and the failings of the older classifications are now more widely accepted. A
similar rule of absolute ownership of groundwater has been widely rejected. It would be more
consistent to apply the rule of reasonable use to any interference with surface water, whether it is
diffused or in a watercourse, and whether the interference involves increasing or decreasing flow
on lower lands.

59 See generally, 5 POWELL, LAW OF REAL PROPERTY 731; 5 CLARK, Ch.26. In Florida,
the upper owner does have a right to increase the amount of water draining into a natural
watercourse. Edason v. Denison, 142 Fla. 101, 194 So. 342 (1940).

6 93 Fla. 387, 112 So. 264 (Fla. 1927).










Florida...form the natural water courses for...large areas of land."61 A natural watercourse, the
court held, is properly defined in Florida as:
a natural stream bed having bottom and sides in which water usually flows in a
defined bed or channel. It is not essential, to constitute a natural water course,
that the flowing should be uniform or uninterrupted. The other elements existing,
a stream does not lose its character or cease to be a natural water course because
in time of drought the flow may be diminished or temporarily suspended. It is
sufficient if it is usually a stream of running water.62

The court also held that where ponds and swamps are connected and drain large areas, they are
properly treated as natural watercourses under the law.63
This conclusion is consistent with other cases. In Libby. McNeil & Libby v. Roberts,6
although the court was not required to determine if an area known as Little Everglades was a
watercourse, as distinguished from a surface water,63 it quoted with approval the following
definition:
[T]he distinguishing characteristic of a watercourse is the existence of a stream of
water flowing for such a time that its existence will furnish the advantages usually
attendant on streams of water; it is the condition created by a stream having a
well-defined and substantial existence. A source, a current and a place of
discharge are implied."

Thus, case law suggests that common law rules controlling the allocation and diversion of water
would apply to many types of slowly flowing, or irregularly flowing surface waters.


61 112 So. 264.

62 112 So. 269.

63 112 So. 271.

64 110 So.2d 82 (Fla. 2d DCA 1959).

65 The applicable rule applied if the Little Everglades was either a watercourse or diffused
surface water, so long as it was not a lake.

66 110 So.2d at 84, quoting 56 Am.Jur., Water 6. In Birdwell v. Moore, 439 N.E.2d 718
(Ind. App. 1982), the court similarly explained how something other than a typical stream could
be a watercourse. A channel, banks and bed are only indicia of a watercourse, the court held.
The essential characteristics are: substantial existence and unity, regularity, and dependability of
slow along a definite course. See also, People v. Weaver, 197 Cal. Rptr. 521, 147 C.A.3d
Supp. 23 (Cal. Super. 1983) (normally dry wash held to be a watercourse).









III. Consumptive Use Permitting
A. Overview
The Florida Water Resources Act of 1972 preempted the common law for allocating
water, and in its place substituted a comprehensive administrative system for creating and
apportioning water rights.67 All water in Florida is now subject to regulation, whether diffused
or defined, on the surface or below the ground, percolating or flowing in defined channels.6"
The water management districts are authorized to require permits for any consumptive use of
water except individual domestic use.69 The districts can impose reasonable conditions on
permits to ensure the use is "consistent with the overall objectives of the district" and "not
harmful to the water resources of the area."70 The permit applicant must establish that the
proposed use is a "reasonable-beneficial"71 one, that will not interfere with any presently
existing legal use of water, and that is consistent with the public interest.7
The permit criteria requiring reasonable-beneficial use and consistency with the public
interest incorporate consideration of ecosystem needs. The districts are also authorized to reserve
water from use by permit applicants for the protection of fish and wildlife7 and are required to
establish minimum flows and levels.74 Numerous other planning requirements can affect the
district's assessment of the availability of water and its determination of where the public interest
lies.





67 FLA. STAT. 373.217 (1989).

68 FLA. STAT. 373.019(8) (1989).

69 FLA. STAT. 373.219(1) (1989).

70 FLA. STAT. 373.219(1) (1989).

71 FLA. STAT. 373.019(4) (1989).

72 FLA. STAT. 373.223(1) (1989).

73 FLA. STAT. 373.223(3) (1989).

74 FLA. STAT. 373.042; 373.415(3) (Wekiva River) (1989).









Water use permits are issued for fixed terms, assuring that uses are subject to periodic
reallocation.7 If insufficient water is available to meet the needs of competing applicants, the
use that best serves the public interest will be favored."7 Water use may also be restricted
during times of water shortage.7
B. Protection of Natural Systems in Permitting Criteria
One policy of the Act is "to preserve natural resources, fish and wildlife."78 The
criteria utilized in the consumptive use permitting process evidence concern for the protection of
the quantity and timing of water deliveries to natural ecosystems.79
1. Reasonable-Beneficial Use
The criterion of reasonable-beneficial use is unique to the Act,80 which defines it as "the
use of water in such quantity as is necessary for economic and efficient utilization for a purpose
and in a manner which is both reasonable and consistent with the public interest.""81 According
to the authors of A MODEL WATER CODE, the standard is intended to combine the best features
of the riparian and prior appropriation systems, including consideration of the rights of the




75 FLA. STAT. 373.236 (1989). Permits may be granted for any period of time up to
twenty years, though governing boards or the DER may authorize a permit for up to fifty years
for municipalities, other governmental bodies, or public works or public service corporation
where necessary to provide for retirement of construction bonds for waterworks and waste
disposal facilities. Id.

76 FLA. STAT. 373.223 (1989).

77 FLA. STAT. 373.246 (1989).

78 FLA. STAT. 373.016(2)(3) (1989).

79 See, e.g., Pinellas County v. Lake Padgett Pines, 333 So.2d 472 (Fla 2d DCA 1976)
(Chapter 373, Florida Statutes, requires consideration of the overall environmental effects of a
prospective use, and not simply its effect on the water resource).

80 See generally, MALONEY, AUSNESS AND MORRIS, A MODEL WATER CODE, 170-173
(1972); Maloney, Capehart & Hoofman, Florida's "Reasonable Beneficial" Water Use Standard:
Have East and West Met?, 31 U. FLA. L. REV. 253-283 (1979).

81 FLA. STAT. 373.019(4) (1989); FLA. ADMIN. CODE Rule 17-40.210(12) (October
1990).









general public as well as those of riparian owners, and requiring efficient economic use of water
regardless of available quantities.82
The first part of the definition is derived from the beneficial use limitation on the amount
of water that can be appropriated under western water law systems. It limits potential waste of
water by requiring a permit applicant to demonstrate that the requested quantity will be used
efficiently and economically. The second part of the definition incorporates the common law
concept of reasonableness as a limitation on both the purpose and the manner of use. Thus the
effect of a withdrawal on usage by other riparians and on environmental systems sustained by that
water, is a factor to consider. Finally, the definition specifically incorporates consistency with
the public interest as one of the criteria for a reasonable beneficial use. The effect of a proposed
use on the environment and on fisheries habitat which supports an important component of
Florida's economy, would clearly be a significant factor in determining consistency with the
public interest.
Although the reasonable-beneficial use concept is informed by several centuries of
common law, its application in this state can benefit from further administrative clarification.
There have been no judicial decisions in Florida interpreting the reasonable-beneficial standard.
State water policy provides additional guidance,83 by incorporating the factors identified by the
Restatement (Second) of Torts, and the law review article authored by Dean Frank Maloney and
colleagues,4 as well as several factors addressing specific policy concerns. Included in the state
water policy rule are the following factors for determining reasonable-beneficial use, which are
potentially relevant to the instream and inplace water needs of estuarine fisheries habitat:
(a) the quantity of water requested for the use;
(c) the suitability of the use to the source of water;
(e) the extent and amount of harm caused;
(g) whether the impact of the withdrawal extends to land not owned or legally
controlled by the user;
(m) the extent of water quality degradation caused;
(o) whether the proposed use would significantly induce saltwater intrusion;


82 MALONEY, AUSNESS AND MORRIS, A MODEL WATER CODE, 86-87 (1972).

83 FLA. ADMIN. CODE Rule 17-40.110 (October 1990).

4 Maloney, Capehart & Hoofman, Florida's "Reasonable Beneficial" Water Use Standard:
Have East and West Met?, 31 U. FLA. L. REv. 253-283 (1979).









(p) the amount of water which can be withdrawn without causing harm to the
resource;
(r) other relevant factors.85

Considering these criteria, a proposed use could be found not to meet the reasonable-beneficial
standard if the requested withdrawal of surface or ground water would alter the timing or
quantity of inflows necessary to maintain an adequate estuarine salinity regime at important times
of the year. This is particularly clear if the withdrawal was from a surface water source that
provided the majority of inflow to an estuary, or if the withdrawal was from a groundwater
source with strong hydrological connections to an estuary or to a surface watercourse feeding an
estuary.
2. Existing Uses
The common law standard protected riparians who made nonconsumptive use of water for
fishing, swimming or boating from unreasonable use by other parties. The Water Resources Act
requires applicants to demonstrate that a proposed use "will not interfere with any presently
existing legal use of water."86 There is no regulatory definition of what constitutes an existing
legal use, thus it can be questioned whether existing nonconsumptive uses can be protected under
the Act. From the consumptive use perspective, it appears that the section only protects those
who actually withdraw water from the system for use.87






85 FLA. ADMIN. CODE Rule 17-40.401(2) (October 1990).

86 FLA. STAT. 373.223(1)(b) (1989). See also, Sarasota v. Harloff, DOAH Case No. 89-
0574 (Recommended Order, December 5, 1989) (Final Order, No. 90-01, Southwest Florida
Water Management District, January 5, 1990) af'd, 575 So.2d 1324 (Fla. 2d DCA 1991)
(upholding district authority to limit withdrawal which would otherwise damage pre-existing
public wellfield); West Coast Regional Water Supply Authority v. Gardinier, DOAH Case Nos.
85-0599, 85-0602 (Recommended Order, June 11, 1986) (Final Order, No. 86-04, Southwest
Florida Water Management District, September 3, 1986).

87 FLA. STAT. 373.219, 373.226 (1989). See, West Coast Regional Water Supply
Authority v. Southwest Florida Water Management District, DOAH Case Nos. 87-4644, -4645, -
4657, 88-1169 (Recommended Order, July 10, 1989); Final Order No. 89-20, Southwest Florida
Water Management District (August 30, 1989).









The issue of what constitutes an existing legal use was addressed in West Coast Regional
Water Supply Authority v. Southwest Florida Water Management District,s8 which dealt with
the effect of two public wellfields on a rancher's use of ambient water. The rancher relied on
natural surface water to water his cattle, and on existing soil moisture, sustained by groundwater.
to grow crops, but he did not utilize pumps or other facilities to withdraw the water. Though
there were problems of proof with his allegations that the wellfields were causing drawdowns of
the surface and ground water, the hearing officer also concluded that the rancher's uses of the
water were not in the class of uses protected by the Act. To be protected as an existing use
under the Act, a use must be exempt or permitted, and must involve an active withdrawal or
diversion of water."9 According to this interpretation, since freshwater inflows that support
estuarine fisheries habitat do not involve active withdrawals or diversions, they would not
constitute an existing legal use requiring protection under the Act.
Potential uses of water that would conflict with existing uses may not be permitted, except
during the permit renewal process, when a use that better serves the public interest may be
permitted instead of, or along with an adjusted existing use.9 The Act specifies that when two
applicants compete for a source of water that is inadequate to supply both uses, a renewal
application will receive preference only if it serves the public interest as well as the initial
application.91 The potential exists under this provision for monitoring and evaluating the effects
of existing legal uses on freshwater inflows. Competing uses that involve less harm to estuarine
values may be given preference if, by protecting the resource from harm, they are determined to
better serve the public interest. If harm to existing water users only becomes apparent after the








88 DOAH Case Nos. 87-4644, -4645, -4657, 88-1169 (Recommended Order, July 10, 1989);
Final Order No. 89-20, Southwest Florida Water Management District (August 30, 1989).

89 Id. at 23-25.

90 FLA. STAT. 373.223(1) (1989).

91 FLA. STAT. 373.233(2) (1989).









new use has been permitted, state water policy allows for modification of the permit to "curtail or
abate the adverse impacts."92
3. Public Interest
The requirement that a prospective consumptive use be "consistent with the public
interest" reiterates that component of the reasonable-beneficial use standard which requires that
the use be "for a purpose and in a manner which is both reasonable and consistent with the public
interest." In combination, the two criteria indicate significant support for the protection of
environmental and habitat values in the consumptive use permitting process.9 The Act also
requires consideration of the public interest in determining which of two otherwise equal
competing applications should be permitted,9 and in deciding whether to allow for transport of
water beyond overlying lands, outside of a watershed or across county boundaries.95
There is little direct interpretation of what constitutes the public interest, however
statutory and regulatory language provides some direction. The policy provisions of the Act
include support "to preserve natural resources, fish and wildlife,""96 and protect public lands.97
The Act also directs the DER, in formulating a state water use plan, to give due consideration to
"existing and contemplated needs and uses of water for protection and procreation of fish and
wildlife""9 and "careful consideration to the...protection and procreation of fish and wildlife.""99


92 FLA. ADMIN. CODE Rule 7-40.401(9) (October 1990). See also, FLA. ADMIN. CODE
Rule 40C-2.381(2)(a)5 (October 1990).

9 The commentary to A MODEL WATER CODE notes that although the public interest
criterion is not an inherent part of the riparian system, in most states with prior appropriation
antecedents, consumptive use permits may be denied if the proposed use would be contrary or
detrimental to the public interest. Thus, the incorporation of the beneficial use criterion of
western water law into the reasonable-beneficial use standard suggests that the public interest is
an important consideration in allocating uses of water. A MODEL WATER CODE, at 172.

9 FLA. STAT. 373.233(1) (1989).

95 FLA. STAT. 373.223(2) (1989). See also, FLA. ADMIN. CODE Rule 17-40.402
(February 1991).

96 FLA. STAT. 373.016(2)(f) (1989).

97 FLA. STAT. 373.016(2)(h) (1989).

98 FLA. STAT. 373.036(1), (2)(a), (7) (1989).









General state water policies include reserving from use "that water necessary to support essential
non-withdrawal demands, including navigation, recreation, and the protection of fish and
wildlife,"" and establishing "minimum flows and levels to protect water resources and the
environmental values associated with marine, estuarine, freshwater, and wetlands ecology.",,o
Another approach to defining the public interest is taken in Rule 17-40.402, F.A.C.
(Water Policy), concerning factors to be considered in determining whether a proposed transfer
of water across water management district boundaries is in the public interest."2 Both affected
districts must approve the transfer, considering the extent to which:
(1) comprehensive water conservation and reuse programs are implemented and
enforced in the area of need;

(2) the major costs, benefits, and environmental impacts have been adequately
determined, including the impact on both the supplying and receiving areas;

(3) the transport is an environmentally and economically acceptable method to supply
water for the given purpose;

(4) the present and projected water needs of the supplying area are reasonably
determined and can be satisfied even if the transport takes place;

(5) the transport plan incorporates a regional approach to water supply and
distribution including, where appropriate, plans for eventual interconnection of
water supply sources; and

(6) the transport is otherwise consistent with the public interest based upon evidence
presented."03





99(...continued)
99 FLA. STAT. 373.036(7) (1989).

100 FLA. ADMIN. CODE Rule 17-40.310(2) (October 1990).

101 FLA. ADMIN. CODE Rule 17-40.310(11) (October 1990).

102 FLA. ADMIN. CODE Rule 17-40.402 (February 1991). See also, FLA. STAT.
373.223(2) (1989).
103 Id. See also, Osceola County v. St. Johns River Water Management District, 504 So.2d
385 (Fla. 1987) (Florida Supreme Court upheld DER's statutory authority to promulgate rules for
interdistrict water transfers).









Other than the general purposes and policies of the Water Resources Act,'" State Water
Policy,105 and the elements listed above, there is no additional direction in Florida's statutes or
administrative rules to aid in understanding what factors should be considered in determining
when a consumptive use is in the public interest. To a certain extent, public interest
considerations are inherent in the structure and processes established by the Act. Water
management district governing boards are composed of lay persons, who make subjective, case
by case determinations of the public interest in the permitting process, a process which allows for
input from the public and the consideration of a potentially broad number of factors.
However, more specific guidelines for determining the public interest would assist
governing boards in making these decisions, particularly so as pressure increases for consumptive
use of the resource. Information gained through district research initiatives concerning water
needs and sources, and minimum flows and levels should be incorporated into consumptive use
permitting rules, in the form of appropriate criteria for determining the public interest. Several
of these research and planning initiatives are discussed in later sections of this report.
C. Reservation of Instream and Inplace Water Needs in Consumptive Use
Permitting and Water Shortage Planning
Clearly, one component of the reasonable-beneficial use standard involves the integrity of
natural systems and fish and wildlife habitat. The Act addresses protection of instream and
inplace freshwater needs for habitat purposes by authorizing the DER and each district governing
board to reserve from permitted uses "water in such locations and quantities, and for such
seasons of the year, as in its judgment may be required for the protection of fish and wildlife or
the public health and safety."" Provision for such reservations must be made by rule or
regulation and must be subject to periodic review and revision in light of any change in
conditions.
Similarly, as a basis for its review of district programs, the DER rule on State Water
Policy asserts that, district programs, rules and plans shall "seek to reservee from use that water



104 FLA. STAT. 373.016 (1989).
105 FLA. ADMIN. CODE Rule 17-40 (February 1991).

106 FLA. STAT. 373.223(3) (1989).









necessary to support essential non-withdrawal demands, including navigation, recreation, and the
protection of fish and wildlife."107 As part of the consumptive use permitting process. watertr
shall be reserved from permit use in such locations and quantities, and for such seasons of the
year, as in the judgment of the Department or District may be required for the protection of fish
and wildlife or the public health or safety."108 More research and regulatory attention would be
devoted to the freshwater inflow needs of estuaries if the discretionary nature of these rule
requirements was removed, and replaced with mandates for the consideration and protection of
fishery habitat values in the consumptive use permitting process.
The water management districts have addressed policies requiring consideration of
riverine and estuarine habitat values to varying degrees in their consumptive use permitting
requirements and water shortage plans. There are also large differences among the districts in
the ability to address the impacts of a proposed use on environmental values. Even for those
districts with greater resources, sufficient expertise to fully evaluate the impacts of a proposed
use on estuarine values in a reasonable amount of time is often lacking. The Water Resources
Act does not require that the districts engage in dialogue with, or accept comments or
modifications from any other federal or state agency with expertise in environmental matters, as
does the state's Surface Water Improvement and Management (SWIM) Act. Such a requirement
would clearly allow for more scientifically informed decisions, and provide for better
representation of the public interest.
Another weakness in the existing regulatory scheme involves the process by which
impoundments and instream water withdrawals are permitted. Generally, the water management
districts do not have permit systems addressing dam and reservoir operations. Though
occasionally subject to general requirements concerning dam operations, water withdrawals are
often permitted without express consideration of the manner in which the dam is operated relative
to instream flows. The current approach makes it difficult to separate a diversion's impacts on






107 FLA. ADMIN. CODE Rule 17-40.310(2) (October 1990).

108 FLA. ADMIN. CODE Rule 17-40.401(3) (October 1990).

24









the downstream river from the more basic, and usually more significant, impact of the dam and
reservoir.'1
1. Southwest Florida Water Management District
a. Consumptive Use Permitting
The district publication, "Water Use Permit Information Manual" (October 1989),
incorporated by reference in Rule 40D-2.091, F.A.C. includes several performance standards and
presumptions applicable to withdrawals from lakes and streams within the district.110 The
relevant consumptive use permitting requirement is that the proposed use not cause adverse
environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural
resources.11 Additionally, a proposed use must not cause water levels or rates of flow to
deviate from the ranges established in Chapter 40D-8, F.A.C.,12 or otherwise harm the water
resources of the district."1


109 Letter from Dr. Ernest Estevez, Senior Scientist, Mote Marine Laboratory, Sarasota
Florida (March 7, 1991).

110 BASIS OF REVIEW FOR WATER USE PERMIT APPLICATIONS, Part B, Section 4, Southwest
Florida Water Management District (October 1989).

11 FLA. ADMIN. CODE Rule 40D-2.301(1)(c) (May 1990).
112 FLA. ADMIN. CODE Rule 40D-2.301(1)(b) (May 1990). See also, BASIS OF REVIEW FOR
WATER USE PERMIT APPLICATIONS, B-37, Southwest Florida Water Management District
(October 1989). Permittees must stop or reduce surface water withdrawals, as directed by the
district, if rates of flow in streams fall below the minimum rates established in Rule 40D-8.
FLA. ADMIN. CODE Rule 40D-2.381(3)(h) (May 1990).
113 FLA. ADMIN. CODE Rule 40D-2.301(1)(n) (May 1990). See also, BASIS OF REVIEW FOR
WATER USE PERMIT APPLICATIONS, B-37, Southwest Florida Water Management District
(October 1989). In West Coast Regional Water Supply Authority v. Southwest Florida Water
Management District, 10 FALR 4239 (Final Order, May 17, 1988), an earlier district rule was
invalidated. The "5-3-1" rule prohibited the permitting of a consumptive use if the withdrawal,
measured at the boundary of the applicant's property, would cause more than a five foot lowering
of the potentiometric surface, more than a three foot reduction in the water table, or more than a
one foot lowering of surface water levels. Though the rule was based partially on a USGS
hydrologic report, the hearing officer determined the rule was hydrologically unsound because
data on which the report was based were not site-specific and were too short-term, and because
the water levels measured by USGS could not be assumed to be representative of those in the rest
of the district.
(continued...)









Environmental impacts evaluated by district staff include: surface water bodies, such as
lakes, ponds, impoundments, sinks, springs, streams, canals, estuaries, or other watercourses:
wetland habitats; onsite environmental features and their relationship to local and regional
landscape patterns; habitat for threatened or endangered species; and other environmental features
dependent on the water resources of the district.114
Impacts to canals, springs and estuaries are evaluated using the criteria applicable to
streams. The performance standards require that flow rates must "not deviate from the normal
rate and range of fluctuation to the extent that water quality, vegetation, and animal populations
are adversely impacted in streams and estuaries. "11 Similarly, flow rates must not be reduced
from existing levels of flow to the extent that "salinity distributions in tidal streams and estuaries
are significantly altered as a result of withdrawals."116 Recreational and aesthetic qualities of
the water resource must not be adversely impacted by deviations in the flow rate.
Where there is the potential for significant impacts to environmental features, because of
the proposed size of a withdrawal, its predicted impact on surface waters or water tables, or the
sensitivity of associated environmental features, the district may require monitoring of several
types of parameters."7 For streams, springs, canals, estuaries or other water courses,
monitoring parameters may include surface water levels; groundwater levels; rainfall at the site;
surface water quality, including salinity distributions in estuaries; biological parameters such as


'3(...continued)
The district contended that the rule would allow a balancing of net withdrawals and net
recharge, thereby maintaining regional water levels. The hearing officer found that this "water
crop" approach would be valid as a planning tool, but not as a rule for determining allowable
withdrawals from individual parcels. It was also determined there was no relationship between
the restrictions of the 5-3-1 rule and harm to water resources, natural systems or other users,
since in some locations, compliance with the rule would result in harm, while in others exceeding
the limits of the rule would not cause harm. On these bases, the hearing officer determined the
rule was arbitrary and capricious.

114 BASIS OF REVIEW FOR WATER USE PERMIT APPLICATIONS, B-33, Southwest Florida
Water Management District (October 1989).

15 Id. at B-36.

116 Id.

117 Id. at C-32.









the abundance and species composition of benthic fauna, fishes, zooplankton, phytoplankton,
submersed macrophytes, emergent or intertidal plants, and periphyton; sediment characteristics;
aerial photography identifying the distribution of riparian or estuarine vegetation; and
hydrographic parameters, such as bathymetry and distribution of bottom features."1
Once a permit is granted, the district requires permittees to mitigate any adverse impacts
to environmental features which occur, or are imminent, as a result of withdrawals.119 Adverse
impacts which must be mitigated include significant reductions in established levels or flows in
lakes, streams and other watercourses, and damage to the habitat of endangered or threatened
species.120 The mitigation effort is based on a mitigation plan required prior to permitting or as
an additional condition to an existing permit, when the potential exists for environmental
impacts.'21 It is not clear what measures would adequately mitigate significant reductions in
levels or flows which help maintain salinity balances for habitat purposes. An existing
consumptive use may be revoked if it causes significant adverse impacts to the water resources,
environmental systems, or existing legal users, and the permitted does not modify the activity or
mitigate the impacts.122
In addition to performance and monitoring standards, the district has established the
regulatory presumption that a proposed use will not cause unacceptable environmental impacts if,
combined with other withdrawals, it does not reduce the rate of daily flow by more than ten
percent at any point in the drainage system at the time of withdrawal.123 The effects of water




18 Id. at C-34.

119 FLA. ADMIN. CODE Rule 40D-2.381(3)(m) (May 1990).
120 Id.

121 BASIS OF REVIEW FOR WATER USE PERMIT APPLICATIONS, B-65, Southwest Florida
Water Management District (October 1989).
122 FLA. ADMIN. CODE Rule 40D-2.341(2)(e) (May 1990).

123 BASIS OF REVIEW FOR WATER USE PERMIT APPLICATIONS, at B-37. For an explanation
of the research history and rationale behind the district's adoption of this approach, see Flannery,
M., "Memorandum to David Moore, Re: Part II Rule Revision: Evaluation of Potential Impacts
to Streams and Estuaries," Southwest Florida Water Management District (February 28, 1989).










retention in instream impoundments are included in the determination of flow reductions.'4
Scientifically sound, site specific studies may be used to support variances from the ten percent
figure.
The ten percent figure also applies to groundwater withdrawals with potential impacts on
riverine and estuarine systems, but as yet, such impacts have not been observed in the district.
probably due to the hydrological isolation of most streams from the aquifers from which most
groundwater is withdrawn. However, in northwest Hillsborough County, Pinellas County and
Pasco County, there are well established interconnections between groundwater and many surface
water courses, suggesting that in those areas, and possibly others, the consumptive use permitting
process for groundwater withdrawals could require consideration of effects on surface water
flows.
b. Water Shortage Rules
The Southwest Florida district has adopted rules related to the declaration of water
shortages and emergencies, and implementation of restrictions on use.125 Several water quality
and quantity parameters are monitored to determine whether a shortage or emergency should be
declared. Among others, these include: levels in surface and groundwaters; flows of surface
waters; demand of natural systems; and impacts on fish and wildlife.126 Current data are
periodically compared to historical data to determine whether estimated present and future water
supply within any source class will be insufficient to meet estimated human needs, or whether
"serious harm to water resources" can be expected.127
Factors considered in determining whether serious harm to the water resource may occur
include:
(1) the occurrence of or potential for saltwater intrusion or other ground water
contamination;




124 Id.

125 FLA. ADMIN. CODE Rules 40D-21.011--40D-21.641 (1989).

126 FLA. ADMIN. CODE Rule 40D-21.401(3) (May 1987).

127 FLA. ADMIN. CODE Rule 40D-21.221(2) (1989).









(2) significant reductions of stream flow or spring discharge, or significant lowering
of the water table;

(3) the occurrence of or potential for adverse impacts on fish and wildlife; and

(4) other factors adversely impacting the water resource.128

The Southwest Florida district is one of two districts which expressly include consideration of
stream flow, spring discharge and water table levels in its evaluation of serious harm to the
resource.129 It is also one of only two districts which do not qualify the types of adverse
impacts to fish and wildlife to be included in the analysis.1 3
For the purposes of water shortage determinations, the freshwater inflow needs of fish
and wildlife are not included in the analysis of present and anticipated demands.'31 However,
the factors considered in estimating water supplies include, among others: historic, current, and
anticipated flows in surface waters; and historic, current, and anticipated demand of natural
systems, including losses due to evapotranspiration and seepage."32
In deciding whether a water shortage emergency should be declared, the district utilizes
the same factors used to evaluate available water supplies for water shortage purposes, including
surface water flows and the needs of natural systems.'33 The analysis is to "determine whether
present and anticipated future available water supply would be insufficient to protect the public



128 FLA. ADMIN. CODE Rule 40D-21.221(2)(c) (1989).

129 See also, "Water Shortage Plan," 11, Suwannee River Water Management District
(August 1988).
130 See also, "Water Shortage Plan," 11, Suwannee River Water Management District
(August 1988). Compare, South Florida Water Management District ("potential for irreversible
adverse impacts on fish and wildlife"); St. Johns River Water Management District ("potential for
significant adverse impacts on fish and wildlife, and the ecology of the area"); Northwest Florida
Water Management District ("potential for significant adverse impacts on fish and wildlife, and
the ecology of the area").

"1 FLA. ADMIN. CODE Rule 40D-21.221(2)(b) (1989).
132 FLA. ADMIN. CODE Rule 40D-21.221(2)(a) (1989).

133 FLA. ADMIN. CODE Rule 40D-21.331(3)(a) (May 1987).

29









health, safety or welfare, or the health of animals, fish or aquatic life, a public water supply, or
commercial, industrial, agricultural, recreational, or other reasonable-beneficial use.""3
The district provides for three types of restrictions to be used in responding to a water
shortage declaration or water shortage emergency."' These range from a Phase I (moderate)
water shortage,"" to a Phase II (severe) shortage,"37 to a Phase III (extreme) shortage.13
Restrictions applicable to each phase specify which type of uses must implement cutbacks, and to
what degree. For Phase I through Phase III restrictions, the rule states that augmentationin shall
be limited to the minimum necessary to maintain and preserve the long-term integrity of the
surface water body and associated habitat for fish and wildlife.""'
Additional language in the Phase I rule requires that, whereee minimum water levels
have been established by the District, no augmentation shall occur when water levels are above
the applicable minimum water level."140 Phases II and III require that where minimum water
levels have been established, no augmentation shall occur "when water levels are above the
extreme low management level."141 The water shortage and emergency rules do not
specifically address minimum flows for watercourses. The district's rules do allow for variances
from any restrictions that may be imposed.'42



134 FLA. ADMIN. CODE Rule 40D-21.331(2) (May 1987).

135 FLA. ADMIN. CODE Rule 40D-21.251 (July 1986).

136 FLA. ADMIN. CODE Rule 40D-21.621 (May 1987).

137 FLA. ADMIN. CODE Rule 40D-21.631 (1989).

138 FLA. ADMIN. CODE Rule 40D-21.641 (1989).

139 FLA. ADMIN. CODE Rules 40D-21.621(7)(d), 40D-21.631(7)(d), 40D-21.641(7)(d)
(1989).
140 FLA. ADMIN. CODE Rule 40D-21.621(7)(d) (1989).

141 FLA. ADMIN. CODE Rules 40D-21.631(7)(d), 40D-21.641(7)(d) (1989). Extreme low
management levels are operating levels established in Rule 40D-8, F.A.C. for lakes and
impoundments.
142 FLA. ADMIN. CODE Rule 40D-21.291 (1989).









2. South Florida Water Management District
a. Consumptive Use Permitting
The district requires that a proposed consumptive use not cause significant environmental
impacts,43 that it not cause significant inland movement of surface saline water,'44 and that it
be consistent with State Water Policy requirements that the districts reserve from use the water
necessary to support essential non-withdrawal demands, including protection of fish and
wildlife.145
Additional technical criteria contained in the district publication, "Basis of Review for
Water Use Permit Application" (September 1989), are incorporated by reference. The impacts
which are evaluated include environmental features directly related to the water resource, such
as: (1) wetland habitat, except wetlands previously affected by drainage, land clearing,
earthwork, or those which have been degraded, and (2) natural water bodies.'46 They also
include impacts with an indirect relationship to water resources, such as intermittent ponds, and
significant habitat diversity support systems, usually consisting of highly productive mixed upland
and wetland systems.147 Other environmental features are evaluated on a case by case
basis. 14
In re: South Dade Agro Homes'49 involved the denial of an agricultural consumptive
use permit, based on a finding that it would have caused adverse environmental impacts in a
portion of the Everglades. Irrigation water was sought for a 256 acre tomato field created by


143 FLA. ADMIN. CODE Rule 40E-2.301(1)(c) (May 1990).

144 FLA. ADMIN. CODE Rule 40E-2.301(1)(a) (May 1990).

145 FLA. ADMIN. CODE Rule 40E-2.301(1)(h) (May 1990), citing FLA. ADMIN. CODE Rule
17-40.030 (transferred to FLA. ADMIN. CODE Rule 17-40.310).
146 Section 3.2.1.1.5.1, BASIS OF REVIEW FOR WATER USE PERMIT APPLICATION, A-15,
South Florida Water Management District (September 1989).

147 Id. at A-16.

148 Id.

149 In the matter of: Application No. 03285-F for a Water Use Permit filed by South Dade
Agro Homes, Inc., Dade County, Florida, 7 FALR 3645 (Final Order, South Florida Water
Management District) (June 13, 1985).









rockplowing, that would have eliminated undisturbed wetlands in the East Everglades serving as
critical habitat for the endangered Cape Sable Sparrow. The district evaluated whether there
would be compliance with Rule 40E-2.301, F.A.C., requiring a demonstration that the proposed
use will not cause adverse environmental effects. It also cited state water policy requiring
consideration of the extent and amount of harm caused. In evaluating consistency with the public
interest, the rules looked to declarations of policy provided for in Sections 373.016 and .036,
Fla. Stat., including the policy "to preserve natural resources, fish, and wildlife. "'1 The
district determined that the applicant did not demonstrate adequate compliance with the criteria
for a reasonable-beneficial use, based on findings that significant adverse environmental effects
would result from the proposed use.
With reference to salinity gradients important to estuarine habitat, the district requires that
any use of fresh water not: (1) cause significant inland movement of saline surface water, (2)
cause significant inland movement of the saline water interface within an aquifer system, or (3)
otherwise reduce the amount of potable water because of inland movement of the saline water
interface, upcoming of saline water that may be beneath the fresh water, or vertical leakage of
connate saline water.151 "Significant movement" is defined as saline water encroachment that
adversely affects the applicant, or other existing legal uses, or is otherwise detrimental to the
public interest or the public health, safety and general welfare.152 The applicant is required to
submit proof that the proposed use will not cause the listed problems, though in this context, it is
not clear that the public interest is meant to include consideration of estuarine salinity regimes
and base flows to water courses.
If a proposed use is located near saline water, or if movement of saline water toward the
source of water is possible as a result of future withdrawals, staff may recommend that a "saline
water intrusion monitoring" program be required as a special condition.15 Importantly, the


150 FLA. STAT. 373.016(e) (1989).

151 BASIS OF REVIEW FOR WATER USE PERMIT APPLICATION, A-16, South Florida Water
Management District (September 1989). See FLA. ADMIN. CODE Rule 40E-2.301(1)(a) (May
1990).
152 Id.

153 Id. at A-17.









rule does not address potential problems involving the cumulative effects of all permitted
withdrawals. When taken separately, withdrawals from a basin may not cause significant
movement of saline surface water, however when assessed cumulatively, the withdrawals may
represent a significant total diversion of freshwater inflow which disturbs estuarine salinity
regimes. Rule amendments which required evaluation of potential cumulative impacts would
increase the level of protection provided under the district's consumptive use permitting scheme.
b. Water Shortage Rules
The South Florida district's water shortage plan is for the purpose of declaring shortages
and restricting water use, in order to maintain minimum flows and levels in the Lake Istokpoga-
Indian Prairie area," though the regulatory flows do not appear to be oriented to the
freshwater needs of riverine or estuarine fisheries. The district's approach to water shortages and
emergencies15s is similar to, though less inclusive of environmental values than, that of the
Southwest Florida Water Management District. In determining whether to declare a shortage or
emergency, the district utilizes essentially the same factors as the Southwest Florida district.156
Its analysis of available water supply includes historic, current and anticipated flows in surface
waters, and the historic, current and anticipated demand of natural systems.'57
One factor in determining whether a shortage exists is whether serious harm to water
resources may occur. To evaluate the potential for serious harm to water resources, the district
considers: (1) potential for increased saltwater intrusion or other ground water contamination; (2)
potential for irreversible adverse impacts on fish and wildlife; and (3) other factors adversely
impacting the water resource.5ss Thus, its analysis of such harm is less sensitive to the needs
of fish and wildlife than that of the Southwest Florida district.


154 FLA. ADMIN. CODE Rule 40E-21.132(1) (February 1991). FLA. ADMIN. CODE Rule
40E-22 (1989) establishes regulatory minimum water levels for Lake Istokpoga and the canals
within the Indian Prairie Basin, and minimum flows for the canals within the Indian Prairie Basin
and Arbuckle Creek and Josephine Creek.
155 FLA. ADMIN. CODE Rules 40E-21.011--40E-21.691 (April 1991).

156 FLA. ADMIN. CODE Rule 40E-21.221 (February 1991).

157 FLA. ADMIN. CODE Rule 40E-21.221(3)(a) (February 1991).

158 FLA. ADMIN. CODE Rule 40E-21.221(3)(c) (February 1991) (emphasis added).

33









In deciding whether a water shortage emergency should be declared, the district utilizes
the same factors used to evaluate available water supplies for water shortage purposes, including
surface water flows and the needs of natural systems.159 As with other districts, the analysis is
to "determine whether any user's or classes of users' estimated present and anticipated available
water supply will be insufficient to protect the public health, safety or welfare, or the health of
animals, fish or aquatic life, a public water supply, or commercial, industrial, agricultural,
recreational, or other reasonable-beneficial use.""
The district utilizes four phased water use restrictions, including Phase I (moderate),161
Phase II (severe),162 Phase III (extreme), 63 and Phase IV (critical).'64 The restrictions
associated with each phase are designed to reduce overall demand by 15% for Phase I, 30% for
Phase II, 45% for Phase III, and 60% for Phase IV.'65 The restrictions associated with each
phase do not specifically reference the need to protect or augment flows for fish and wildlife
habitat, though additional restrictions may include provisions designed to maintain minimum
flows and levels, and others as are necessary to protect the water resources from serious
harm.166 The district's water shortage rules include provisions for variances from any
restrictions that may be imposed."67







'59 FLA. ADMIN. CODE Rule 40E-21.331(3)(a) (February 1991).

160 FLA. ADMIN. CODE Rule 40E-21.331(3) (February 1991).

161 FLA. ADMIN. CODE Rule 40E-21.521 (February 1991).

162 FLA. ADMIN. CODE Rule 40E-21.531 (February 1991).

163 FLA. ADMIN. CODE Rule 40E-21.541 (February 1991).

164 FLA. ADMIN. CODE Rule 40E-21.551 (February 1991).
165 FLA. ADMIN. CODE Rule 40E-21.251(2) (February 1991).

166 FLA. ADMIN. CODE Rule 40E-21.251(3)(d), (j) (February 1991).

167 FLA. ADMIN. CODE Rule 40E-21.275 (February 1991).

34









3. St. Johns River Water Management District
a. Consumptive Use Permitting
The district's conditions for use permits include the requirements that a proposed use be
reasonable and beneficial, and consistent with the public interest.168 A proposed use does not
meet these criteria if it will cause surface water levels to be lowered so that stages or vegetation
are "adversely and significantly affected on lands other than those owned or controlled by the
applicant,"69 or if it will cause the rate of flow of a surface water course to be lowered below
minimum flows established pursuant to Section 373.042(1), Fla. Stat.170 Additional criteria
include prohibitions on significantly inducing "saline water encroachment""17 or lowering "the
water table or surface water level...so that stages or vegetation will be adversely and significantly
affected" on other lands."7 In addition, the criteria provide that "the environmental...harm
caused by the consumptive use must be reduced to an acceptable amount. ,173



168 FLA. ADMIN. CODE Rule 40C-2.301(2) (October 1989). A "reasonable and beneficial"
use is one which has a purpose which is reasonable and consistent with the public interest, which
reduces environmental harm to an acceptable amount, and which does not seriously harm the
water quality of the receiving body. FLA. ADMIN. CODE Rule 40C-2.301(4) (October 1989).

169 FLA. ADMIN. CODE Rule 40C-2.301(5)(a)2 (October 1989). See also, APPLICANT'S
HANDBOOK: CONSUMPTIVE USES OF WATER, 31, St. Johns River Water Management District
(October 4, 1989).
170 FLA. ADMIN. CODE Rule 40C-2.301(5)(a)5 (October 1989).

171 FLA. ADMIN. CODE Rule 40C-2.301(5)(a) (October 1989).

172 Id.

173 FLA. ADMIN. CODE Rule 40C-2.301(4)(d) (October 1989). The validity of this standard
was among several tested in Zellwood Drainage & Water Control District v. St. Johns River
Water Management District, DOAH Case No. 88-5486R (Final Order, May 24, 1989).
Petitioners alleged that the adopted standard was vague, had no scientific meaning, did not put an
applicant on notice as to what discharge would be permitted, and left too much discretion to the
agency. The hearing officer noted that the test for vagueness is more lenient when an
administrative rule, rather than a penal statute is being examined, and that the petitioner had cited
no cases in which similar rule language had been found vague, arbitrary or capricious. In
upholding the validity of the rule, the hearing officer also accepted district staff testimony that the
standards are not interpreted in a vacuum, but in the context of many other statutory and
regulatory requirements governing the use of water.









The interpretation of these requirements was addressed in Friends of Fort George v.
Fairfield Communities,174 A citizens' group challenged the issuance of a consumptive use
permit by the district, which allowed development of a community on a small, relatively
undeveloped island north of Jacksonville. Though it was argued that environmental harm would
result, the hearing officer determined that, rather than causing environmental harm, the proposed
use would in some ways be beneficial. Similarly, the effects of the proposed withdrawal on
potentiometric surfaces and saltwater interfaces were reviewed and found to involve no adverse
effects. A slight lowering of water tables was expected but, it was determined, would not
adversely affect vegetation or wildlife on offsite lands. On these findings, the hearing officer
concluded, and the governing board agreed, that the use was reasonable-beneficial.
Proposed amendments to the conditions for consumptive use permits require that, in order
to be considered reasonable-beneficial, a consumptive use must not cause water levels or flows to
fall below the minimum limits set forth in Chapter 40C-8, F.A.C.175 The draft amendments
state that a proposed use does not meet the criteria for a permit if it will cause the rate of flow of
a surface water course to be lowered below a minimum flow which has been established pursuant
to Section 373.042(1), Fla. Stat. or Rule 40C-8.624, F.A.C.,176 or if it will cause the rate of
flow of a surface water source to be lowered below a minimum level which has been established
pursuant to Section 373.042(2), Fla. Stat. or Rule 40C-8.624, F.A.C.1"
As of this writing, a draft rule is being considered for the establishment of minimum
surface water levels and flows, which posits five categories of regulatory elevations and flow






174 24 Fla. Supp. 2d 192 (Recommended Order, DOAH Case Nos. 85-3537, -3596) (1986).

175 Draft Rule 40C-2.301(4)(j), F.A.C. (April 29, 1991). At present, a rule establishing
minimum flows for points on the Wekiva River and on Blackwater Creek is being developed.
Draft Rule 40C-8, F.A.C. (April 29, 1991).
176 Draft Rule 40C-2.301(5)(a)5., F.A.C. (April 29, 1991).

177 Draft Rule 40C-2.301(5)(a)6., F.A.C. (April 29, 1991). See also Draft Revisions to
Applicant's Handbook, Section 9.4.1(d)-(f) (tracking the language of the Draft Rule, and
requiring that proposed uses not impact water reserved from use by the governing board).










discharges for watercourses in the district.178 The draft rule specifies that in establishing
minimum flows and levels, the governing board "must consider, and at its discretion may provide
for, the protection of non-consumptive uses, including navigation, recreation, and the
preservation of natural resources, fish and wildlife."'79 The protection of non-consumptive
uses would be enhanced if this factor were made to be non-discretionary, at least with regard to
natural resources, fish and wildlife.
Under the draft rule, one category of regulatory elevation or flow is the "minimum
average surface water level." This is considered an optimum level for the health of the system,
corresponding to approximately the 60 percent of inundation level based on the overall period of
record, and approximately 0.3 foot below the floodplain surface.'s8 The "minimum frequent
low surface water level" is a low water level that may be reached during extended periods of
reduced rainfall.18 The "minimum infrequent low surface water level" is the water level which
may be reached during periods of extreme drought.182
Water levels and flows above the minimum average surface water level include the
"frequent high surface water flood level," and the "infrequent high surface water level." The
first of these is the high water level expected to be reached frequently during periods when
rainfall is normal,'83 while the second is an infrequent high water level expected to be reached
during or immediately after periods of high rainfall with a frequency of approximately one in five
years.184




178 Draft Rule 40C-8, F.A.C. (April 29, 1991). The draft rule is scheduled for presentation
to the governing board no sooner than December 1991, with an adoption date of approximately
March 1992.

179 Draft Rule 40C-8.041(1), F.A.C. (April 29, 1991).

180 Draft Rule 40C-8.021, F.A.C. (April 29, 1991).

181 Id.

182 Id.

183 Id.

184 Id.









In the draft rule, the only watercourses for which regulatory minimum flows are proposed
are the Wekiva River and Blackwater Creek.185 Until minimum flows are established for all
water courses and estuaries in the district, including consideration of instream and inplace water
needs, the district's consumptive use permitting conditions will not reflect, to a significant
degree, the protection of estuarine habitat.
b. Water Shortage Rules
The St. Johns River district water shortage plan'86 is similar to that of the Southwest
Florida district. The district includes in its resource monitoring parameters the levels of surface
and ground waters, the demand of natural systems, and impacts on fish and wildlife."17
However, in its monitoring of demands, it also includes data related to the needs of natural
systems,188 a factor not expressly considered by other water management districts under
demand monitoring. In estimating present and anticipated available supply, the district considers,
among other factors: historic, current and anticipated levels in surface and ground waters;
historic, current and anticipated flows in surface waters; and historic, current and anticipated
demand of natural systems.'89
As with other districts, one factor in determining whether a shortage will be declared is
the potential for serious harm to the water resource. In evaluating the potential for serious harm
to the resource, the district considers: (1) potential for increased saltwater intrusion or other
ground water contamination; (2) potential for significant adverse impacts on fish and wildlife, and
the ecology of the area; and (3) other factors adversely impacting the water resource.190 Thus,



185 See Draft Rule 40C-8.624, F.A.C. (April 29, 1991). By March 1, 1991, the district was
to have established minimum flows and minimum water levels for surface watercourses in the
Wekiva River System and minimum water levels for the groundwater in the aquifer underlying
the Wekiva Basin. FLA. STAT. 373.413(3) (1989).
186 FLA. ADMIN. CODE Rules 40C-21.001--40C.21.651 (1989).

187 FLA. ADMIN. CODE Rule 40C-21.401(3) (1989).

188 FLA. ADMIN. CODE Rule 40C-21.401(4)(c) (1989).

189 FLA. ADMIN. CODE Rule 40C-21.221(3)(a) (1989).

190 FLA. ADMIN. CODE Rule 40C-21.221(3)(c) (1989) (emphasis added).

38









the approach of the St. Johns River district appears to be slightly more sensitive to habitat
impacts than that of the South Florida district,19 and slightly less sensitive than that of the
Southwest Florida district.192
In deciding whether a water shortage emergency should be declared, the district utilizes
the same factors used to evaluate available water supplies for water shortage purposes, including
surface water levels and flows, and the needs of natural systems.19 Similarly to other districts,
the analysis is to "determine whether any user's estimated present and anticipated available water
supply will be insufficient to protect the public health, safety or welfare, or the health of animals,
fish or aquatic life, a public water supply, or meet the minimum needs of commercial,
industrial, agricultural, recreational, or other reasonable-beneficial use."'94 In evaluating the
potential for such adverse impacts, the district considers the same factors it uses to determine
present and anticipated user demands, and the potential for serious harm to the water resource,
including potential for "significant adverse impacts on fish and wildlife, and the ecology of the
area. "95
The St. Johns River district has established four water shortage phases,196 with
corresponding restrictions aimed at reducing overall demand by 15% (moderate shortage),197
30% (severe shortage),198 45% (extreme shortage),'99 and 60% (critical shortage).200




191 See supra, note 158, and accompanying text.

192 See supra, notes 127-130, and accompanying text.

193 FLA. ADMIN. CODE Rule 40C-21.331(3)(a) (February 1991).

194 FLA. ADMIN. CODE Rule 40C-21.331(3) (1989).

195 FLA. ADMIN. CODE Rule 40C-21.331(3)(b) (1989), referencing FLA. ADMIN. CODE Rule
40C-21.221(3)(b), (c) (1989).
196 FLA. ADMIN. CODE Rule 40C-21.251(2) (1989).

197 See FLA. ADMIN. CODE Rule 40C-21.621 (1989) for specific restrictions applicable to
Phase I shortages.

198 See FLA. ADMIN. CODE Rule 40C-21.631 (1989) for specific restrictions applicable to
Phase II shortages.









Specific restrictions for the different phases do not reference the need to maintain and preserve
the long-term integrity of surface waterbodies and associated habitat for fish and wildlife,
however the general water use restrictions which may be imposed include provisions designed to
maintain minimum flows and levels established pursuant to Section 373.042, Fla. Stat.231 The
water shortage rules include provisions for variances from any restrictions that may be
imposed.202
4. Suwannee River Water Management District
a. Consumptive Use Permitting
The district has not yet addressed minimum flows in its planning efforts, nor does it make
any specific reference to minimum flows in its permitting regulations. There is oblique reference
to minimum flows in its Conditions for Issuance of Use Permit,203 which require that proposed
withdrawals satisfy Section 373.223, Fla. Stat. and comply with the rule on State Water
Policy.24 Section 373.223, Fla. Stat. requires that proposed uses be consistent with the public
interest, and authorizes the district governing boards to reserve from use "water in such locations
and quantities, and for such seasons of the year, as...may be required for the protection of fish
and wildlife or the public health and safety."205
For uses in excess of two million gallons per day average daily rate of withdrawal, permit
conditions may be added which require analysis and reporting of specified water quality
parameters, reporting of water withdrawal, use or discharge at specified intervals and locations,




199(...continued)
199 See FLA. ADMIN. CODE Rule 40C-21.641 (1989) for specific restrictions applicable to
Phase III shortages.
200 See FLA. ADMIN. CODE Rule 40C-21.651 (1989) for specific restrictions applicable to
Phase IV shortages.

201 FLA. ADMIN. CODE Rule 40D-21.271(3)(c) (1989).

202 FLA. ADMIN. CODE Rule 40C-21.275 (1989).

203 FLA. ADMIN. CODE Rule 40B-2.301 (June 1988).

204 FLA. ADMIN. CODE Rule 17-40 (February 1991).

205 FLA. STAT. Section 373.223(3) (1989).
40


I









and measurement and reporting of ground and surface water levels and surface water flows at
specified intervals and locations.26
Among other mandates, the State Water Policy rule requires that water management
district programs and rules seek to "reserve from use that water necessary to support essential
non-withdrawal demands, including navigation, recreation, and the protection of fish and
wildlife."207 The rule also reiterates the statutory requirement that water be reserved from
permit use in locations, quantities and seasons as necessary to protect fish and wildlife or the
public health and safety.208 There has been no case in the district in which a consumptive use
permit was denied or modified based on instream or inplace water needs.
b. Water Shortage Rules
The Suwannee River district water shortage plan209 is fairly consistent with those of the
three larger districts. The district's demand monitoring parameters do not include the needs of
natural systems.210 Its resource monitoring parameters include the levels of surface and ground
waters; flows of rivers and streams and lake levels; demand of natural systems; and impacts on
fish and wildlife, a similarity it shares with the St. Johns River district.211 In estimating
present and anticipated available supply, the district considers, among other factors: historic,
current and anticipated levels in surface and ground waters; historic, current and anticipated
flows in surface waters; and historic, current and anticipated demand of natural systems.212
As with other districts, one factor in determining whether a shortage will be declared is
the potential for serious harm to the water resource. In evaluating the potential for serious harm
the district considers: (1) the occurrence of or potential for saltwater intrusion, upcoming of less



206 FLA. ADMIN. CODE Rule 40B-2.381(3) (June 1988).

207 FLA. ADMIN. CODE Rule 17-40.310 (October 1990).

208 FLA. ADMIN. CODE Rule 17-40.401(3) (October 1990).

209 "Water Shortage Plan," Suwannee River Water Management District (August 1988).

210 Id. at 22.

211 Id. at 21-22.

212 Id. at 10.









potable water or other groundwater contamination; (2) significant reductions of stream flow or
spring discharge or significant lowering of the water table; (3) the occurrence of or potential for
adverse impacts on fish and wildlife; and (4) other factors adversely impacting the water
resource.213 Factor (3) tracks the approach of the Southwest Florida district, which also does
not qualify the types of adverse impacts which will be considered.
In deciding whether a water shortage emergency should be declared, the district utilizes
the same monitoring parameters and the same factors used to evaluate available water supplies for
water shortage purposes, including surface water levels and flows, and the needs of natural
systems. Consistent with other districts, the analysis is to "determine whether estimated present
and anticipated future available water supply would be insufficient to protect the public health,
safety or welfare, or the health of animals, fish or aquatic life, a public water supply, or
commercial, industrial, agricultural, recreational, or other reasonable-beneficial use."214
The plan includes four water shortage phases related to the reduction in overall
withdrawals needed to reduce present and future uses to available supplies and to protect water
resources from serious harm. A Phase I shortage (Water Shortage Advisory) is declared when
regional potentiometric levels in an aquifer or aquifers fall below the tenth percentile of historical
values, or if surface water levels or flows fall below the twenty-fifth percentile of historical
values.215 Subsequent phases are declared based on the severity of the situation.216
A Phase I shortage does not require mandatory restrictions on use.217 All other phases
include specific restrictions. Phases II (Moderate Water Shortage), III (Severe Water Shortage)
and IV (Critical Water Shortage) include restrictions on "augmentation use."218 Phases II and
III require that augmentation be limited to the minimum necessary to maintain and preserve the


213 Id. at 11.

214 Id. at 18.

215 Id. at 13.

216 Id.

217 Id. at 29.

218 Defined as augmentation of natural or man-made surface water bodies to maintain and
protect habitat for fish and wildlife, or to provide for recreational or aesthetic values. Id. at 27.










long-term integrity of the surface water body and associated habitat for fish and wildlife.219
For these phases, no augmentation is allowed when water levels are above the twenty-fifth
percentile of historical levels or flows for the affected water body.220 For Phase IV
restrictions, no augmentation may occur when such levels are above the tenth percentile of
historical figures.221 As with other districts, the Suwannee River district allows for variances
from the restrictions.
5. Northwest Florida Water Management District
a. Consumptive Use Permitting
The Northwest Florida district takes a similar approach in permitting of consumptive uses
to that of the Suwannee River district. The district's Conditions for Issuance of Permits222
track the three criteria of Section 373.223, Fla. Stat. (reasonable-beneficial use, consistent with
the public interest, and no interference with existing legal uses). They also require compliance
with Subsection 17-40.04 of the Water Policy Rule,223 which bases reasonable-beneficial
determinations on, among other factors:
(c) the suitability of the use to the source of water;
(e) the extent and amount of harm caused;
(g) whether the impact of the withdrawal extends to land not owned or legally
controlled by the user;
(m) the extent of water quality degradation caused;
(n) whether the proposed use would cause or contribute to flood damage;








219 Id. at 37, 45.

220 Id.

221 Id. at 54.

222 FLA. ADMIN. CODE Rule 40A-2.301 (January 1991).

223 Transferred to FLA. ADMIN. CODE Rule 17-40.401 (October 1990).









(o) whether the proposed use would significantly induce saltwater
intrusion;224
(r) other relevant factors.225
The district requires a Standard Water Use permit for any proposed surface water
withdrawal exceeding 2,000,000 gallons per day, or withdrawing more than ten percent of the
base flow of the supplying water body.226 The rule does not refer to minimum flows, but to
"base flow" which is defined as the sustained or fair-weather streamflow. It is the difference
between streamflow (total runoff) and direct runoff.227 No reference is made to protection of
water resources, natural seasonal fluctuations, or environmental values of estuarine, aquatic and
wetlands ecology, as required by the State Water Policy section on minimum flows and
levels.228 Nor does the district rule address the need to consider cumulative withdrawals in
calculating the ten percent figure. Other than this oblique reference, there is no other reference
to minimum flows in the permitting conditions.
For Standard Water Use permits, the district's limiting conditions allow the governing
board to impose conditions necessary to insure that a withdrawal or use of water will not cause a
potentiometric surface or surface water body level to fall below established minimum levels, and
that a withdrawal will not be harmful to the water resources of the district.229 The conditions
do not address maintaining minimum flows, and as of this writing, the district has not established
regulatory minimum levels. Protecting the "water resources of the district" may be interpreted to
include instream and inplace water needs for habitat purposes, but clearer statements of the need




224 Compare, FLA. ADMIN. CODE Rule 40E-2.301(1)(a) (May 1990) (South Florida Water
Management District rule which includes the requirement that a proposed use not cause
significant inland movement of surface saline water).
225 FLA. ADMIN. CODE Rule 17-40.401(2) (October 1990).

226 FLA. ADMIN. CODE Rule 40A-2.041(3)(d) (August 1989).

227 FLA. ADMIN. CODE Rule 40A-2.021(4) (August 1989).

228 FLA. ADMIN. CODE Rule 17-40.405 (February 1991).

229 FLA. ADMIN. CODE Rule 40A-2.381 (August 1989).

44









to provide for such needs would assure their protection as minimum flow planning studies are
completed.
b. Water Shortage Rules
The Northwest Florida district's Water Shortage Plan is incorporated by reference in its
consumptive use permitting rules regarding declarations of water shortage.230 The district's
demand monitoring parameters do not include the needs of natural systems.231 Among its
resource monitoring parameters are included: existing management levels;232 historic, current
and anticipated levels in surface and ground waters; historic, current and anticipated flows in
surface waters; and historic, current and anticipated demand of natural systems, including losses
due to evapotranspiration and seepage, and needs of fish and wildlife.233 The district compares
current data to historical data to determine whether estimated present and anticipated available
water supply will be insufficient to meet the estimated present and anticipated demands, or
whether serious harm to the water resources can be expected.234
Factors considered in determining whether serious harm may occur include: (a) potential
for increased saltwater intrusion or other ground water contamination; (b) potential for significant
adverse impacts on fish and wildlife, and the ecology of the area; and (c) other factors adversely
impacting the water resources.235 Thus, the Northwest Florida district considers the same
factors as does the St. Johns River district in making this determination, an approach which could
be considered slightly more sensitive to habitat impacts than that of the South Florida district, and
slightly less sensitive than that of the Southwest Florida district.


230 FLA. ADMIN. CODE Rule 40A-2.511 (August 1989).

231 "Water Shortage Plan," 22, Northwest Florida Water Management District (Revised May
1985).

232 Defined as that potentiometric level or surface water level below which it has been
determined that further declines could possibly cause water quality degradation or could interfere
with any existing legal uses of water in the area according to the best hydrologic information
available. Id. at 3.

233 Id. at A-9.

234 Id. at A-9.

23 Id. (emphasis added).









IV. Planning Directives
Several types of planning efforts are mandated by the Water Resources Act, including the
requirement that DER establish the state water use plan and state water policy. The districts are
required to prepare district water management plans, surface water improvement and management
plans and groundwater basin resource availability inventories, perform research to establish
minimum flows and levels, and provide technical assistance and information to local
governments. Many of the planning elements include references to protection of fish and wildlife
habitat, and their consideration in the establishment of more refined water use and water
management permitting criteria is critical to the protection of freshwater flows to estuaries.
A. State Water Use Plan
Section 373.036 of the Water Resources Act requires the Department of Environmental
Regulation (DER) to "study existing water resources in the state; the means of conserving and
augmenting such waters; existing and contemplated needs and uses of water for protection and
procreation of fish and wildlife, irrigation, mining, power development, and domestic, municipal,
and industrial uses; and all other related subjects....""36 The DER must cooperate with the
Office of the Governor to formulate an "integrated, coordinated plan for the use and development
of the waters of the state, based on the above studies."237 The plan is to be known as the state
water use plan, intended to serve as a functional element of the state comprehensive plan,"8





236 FLA. STAT. 373.036(1) (1989).

237 Id.

238 The state water use plan, together with the DER's water quality standards and
classifications was intended to constitute the State Water Plan. This plan has yet to be formally
developed. The state comprehensive plan, Chapter 187, Fla. Stat., includes several policies and
goals directly supporting the maintenance of adequate freshwater flows, including: (1) establish
minimum seasonal flows and levels for surface watercourses with primary consideration given to
the protection of natural resources, especially marine, estuarine, and aquatic ecosystems
(187.201(8)(b)4.); (2) protect and restore long-term productivity of marine fisheries habitat and
other aquatic resources (187.201(9)(b)7.); (3) discourage the channelization, diversion, or
damming of natural riverine systems (187.201(8)(b)7.); (4) reserve from use that water
necessary to support essential nonwithdrawal demands, including navigation, recreation, and the
protection of fish and wildlife (187.201(8)(b)14.).

46









and to aid in the guidance of the district governing boards and other agencies in the
administration and enforcement of the Act.239
In preparing the state water use plan, the DER must "give careful consideration to the
requirements of public recreation and to the protection and procreation of fish and wildlife."240
On certain designated waterbodies, it may prohibit or restrict other future uses which may be
inconsistent with these objectives.241 The DER must consult with and carefully evaluate the
recommendations of concerned federal, state and local agencies, particularly the water
management districts.242 In turn, each district must cooperate with the DER in conducting
surveys and investigations of water resources, furnish available technical data, and advise the
DER in formulating those parts of the plan applicable to the district.243
B. District Water Management Plans
A primary role established for the districts in complying with the requirements of Section
373.036, Fla. Stat. is the research and preparation of district water management plans (DWMPs).
Part V of the State Water Policy rule provides direction to the districts for the preparation of the
plans.2" Each district must adopt its plan by November 1, 1994, and plans must be updated
every five years.24 At present, the DWMPs and other planning efforts required of the districts
are moving on separate tracks. Recent district efforts have been aimed at incorporating the
various planning initiatives into the DWMP process and achieving a consistent format to be
followed by all districts in preparing their plans.2


239 FLA. STAT. 373.036(10) (1989).

240 FLA. STAT. 373.036(7) (1989).

241 Id.

242 FLA. STAT. 373.036(3) (1989).

243 FLA. STAT. 373.036(4) (1989).

244 See FLA. ADMIN. CODE Rule 17-40.501 (February 1991).

245 FLA. ADMIN. CODE Rule 17-40.501(6), (7) (February 1991).

246 See Christianson, R., "Memorandum to District Water Management Plan Work Group,
Re: Format and Guidelines for DWMPs," St. Johns River Water Management District (June 6,
1991).









Current drafts of the revised schedule call for a standardized DWMP format to be adopted
by October 1, 1991, with revised plans of study from each district due on the same date.247
First drafts of each district's DWMP are scheduled for completion on October 1, 1992, based on
best available information. Though essentially all planning studies required under the Act may
eventually be incorporated into the DWMP process, the following discussion will treat the topics
separately.
Opportunities for protection of freshwater flows exist in several plan requirements. By
November 1, 1991, each district must adopt by rule designated areas with water supply problems
which have, or are anticipated to become critical within the next twenty years.248 Within these
critical water supply areas, a reasonable amount of reuse of reclaimed water from domestic
wastewater treatment facilities must be required, unless economically, environmentally or
technically infeasible.249 Based on analysis of these factors, the plans must also include a
course of remedial or preventive action for each current or anticipated future critical
problem,250 and provide for identifying areas where data collection, resource investigations or
regulatory programs are needed to prevent water resource problems from becoming critical.25
Critical water supply problem area designations must be updated within one year after DWMPs
are updated.252
A primary tool in the designation of critical water supply problem areas is an assessment
of water needs and sources. The districts are required to perform an assessment of water needs




247 Id.

248 FLA. ADMIN. CODE Rule 17-40.401(5) (February 1991).

249 Id.

250 FLA. ADMIN. CODE Rule 17-40.501(2) (February 1991). Remedial or preventive
measures include but are not limited to: water resource projects, water resources restoration
projects (Section 403.0615, F.S.), purchase of lands; conservation of water; enforcement of
district or DER rules; and actions by local governments under a local comprehensive plan,
ordinance or zoning regulation. FLA. ADMIN. CODE Rule 17-40.501(3) (February 1991).
251 FLA. ADMIN. CODE Rule 17-40.501(4) (February 1991).

252 FLA. ADMIN. CODE Rule 17-40.401(5) (February 1991).









and sources for the next twenty years, as part of each DWMP.253 At present, the districts are
at different stages in the preparation of the water needs and sources studies. Given the prominent
role assigned to protection of environmental and habitat values in the Act, the freshwater needs of
estuarine fisheries habitat could be considered an important part of each water needs and sources
assessment, though generally, such habitat-based needs are not being addressed by the districts.
In some districts, analysis of the effects of withdrawals on sources of supply does include
consideration of the effects of the withdrawals on habitat values, at different times, places and
withdrawal rates.
1. Southwest Florida Water Management District
The major categories of water need addressed by the district in its needs and sources
assessment include public supply and other potable demands, agricultural water use, industrial
water use, mining water demands and recreational water needs.254 The instream and inplace
needs of estuarine dependent fisheries are not included in the needs assessment. Primary sources
of water include ground water and surface water. Though in parts of the district, ground water is
important to the maintenance of riverine flows during periods of low rainfall, the effects of large
ground water withdrawals on the base flow of surface watercourses are not discussed within the
water sources analysis."' However, the potential effects of withdrawals from surface
watercourses on instream and estuarine habitats are considered within Section 5.3 of the draft
needs and sources document.256


253 FLA. ADMIN. CODE Rule 17-40.501(1) (February 1991).

254 WATER SUPPLY NEEDS & SOURCES: 1990-2020 (DRAFT), 247-253, Southwest Florida
Water Management District (April 29, 1991). The draft sections explaining potential needs and
sources, and the policies used to define acceptable withdrawals, are expected to remain essentially
unchanged in the final draft document, which will be transmitted to the district governing board
for approval in December 1991. (Phone interview with David Moore, Southwest Florida Water
Management District, August 1991).
255 In that part of the Southwest Florida district with the highest levels of groundwater
withdrawal, potable aquifers are hydrologically separated from surface water flows by
impermeable aquicludes.
256 WATER SUPPLY NEEDS & SOURCES: 1990-2020 (DRAFT), 236-238, Southwest Florida
Water Management District (April 29, 1991). The district has also developed "Water Resource
(continued...)









The district currently has several creeks and rivers from which water is taken for
municipal water supplies and other consumptive uses. These include the Peace River, Shell
Creek, Myakkahatchee Creek-Big Slough, Manatee River, Braden River, Little Manatee River.
and Hillsborough River.257 Some watercourses are being considered for the expansion of
existing withdrawals or creation of new withdrawals. The needs and sources document section
on surface water supply emphasizes that rivers, springs, lakes and estuaries are among the state's
most valuable assets, from an aesthetic and ecological perspective, but also from an economic
perspective, based on the role they play in tourism, sport and commercial fishing, real estate
development, and quality of life.258 Thus, the utilization of surface water bodies for water
supply purposes should be based on a multi-purpose management scheme which accounts for the
water needs of the natural resource for ecological functions, aesthetic qualities and recreational
use.259
The general guideline established for withdrawals from water courses is that, combined
with all other withdrawals from that drainage basin, any proposed use should not reduce the
existing ambient stream flow more than ten percent at any point in the system.260 To increase
cost-effectiveness and to maximize yields, the document encourages that withdrawals be done in
the lower river reaches, sufficiently upstream of brackish tidal influence, thus preserving ambient
flows in upstream, freshwater environments.261 The ten percent threshold is considered a



256(...continued)
Assessment Projects" (WRAPs) for each county in its jurisdiction, which provide more specific
information and assessment of the existing and potential sources of water supply.
257 Id. at 247-253.

258 Id. at 236.

259 Id.

260 Id., section 4.2.C.2., at B-37. See Flannery, M., "Memorandum to David Moore, Re:
Part II Rule Revision: Evaluation of Potential Impacts to Streams and Estuaries," Southwest
Florida Water Management District (February 28, 1989) (discussion of supporting studies and
rationale behind the ten percent rule).
261 WATER SUPPLY NEEDS & SOURCES: 1990-2020 (DRAFT), 238, Southwest Florida Water
Management District (April 29, 1991).










guideline which can be modified by site specific information demonstrating for example, that
greater withdrawals would not cause unacceptable environmental impacts. Such information can
also be used to justify a lesser rate of withdrawal in order to sustain environmental values.262
The needs and sources assessment bases its analysis of dependable yields on the ten
percent figure, since the likelihood of greater withdrawals is uncertain. The resulting yields are
considered a conservative estimate of supply for a given period, allowing additional investigations
into the possibility of increasing stream diversions or maximizing water storage, developing
alternate sources of supply, or improving water use efficiency.263 It is noted that the ten
percent diversion figure is exceeded to various degrees in five streams which were impounded
earlier in this century. These include the Hillsborough, Manatee and Braden rivers, and Shell
and Myakkahatchee creeks. Additionally, a sliding scale of allowed percentages of withdrawal,
from ten to fifteen percent, is being considered for the Peace River near Ft. Ogden, based on
ambient level of streamflow.264 Thus, during higher levels of flow, higher rates of withdrawal
might be considered acceptable.
For most streams in the region, the majority of flow occurs during the summer rainy
season, with long periods of low flow common during the dry season.265 For these streams,
particularly the Myakka, Peace and Little Manatee rivers, some form of water storage is
necessary before they could be dependable water supplies. Though instream reservoirs have been
constructed and used for municipal supplies on the Hillsborough, Manatee and Braden rivers, and
on Shell Creek, the report notes that many resource managers have concluded that such
reservoirs have serious drawbacks. Instream reservoirs are typically very shallow, with small
storage volumes, requiring large surface areas in order to achieve adequate volume. The large
surface area, however, allows high evaporative water loss. The reservoirs also tend to






262 Id. at 239.

263 Id.

264 Id.

265 Id. at 240.










accumulate pollutants and sediments, impacting fish and wildlife, and making withdrawals less
inherently safe.26
Importantly, the report recognizes that instream reservoirs can cause severe environmental
impacts to riverine ecosystems. These include loss of valuable wetlands, excessive algal and
macrophyte growth in the reservoir, and flow reductions and water quality changes in
downstream river and estuarine environments.267 An example is the Manatee River, on which
a dam and reservoir reduce the river's flow by approximately 90% about 80% of the year.261
Offstream reservoirs, as an alternative to instream reservoirs, have the advantage of leaving the
stream channel and wetlands intact, and minimizing impacts to water quality. They are also less
susceptible to pollutant accumulation, and can be constructed deeper to maximize storage and
minimize evaporative loss.269
The negative downstream effects of reservoirs on estuarine or riverine habitat may in the
future be mitigated by increasing the volume of the reservoirs, thus allowing an increase in dry
season releases, and supplying more control over large volume releases of freshwater during wet
seasons.270 The report notes that existing percentages of withdrawal at several reservoirs would
require downward adjustments if additional withdrawals were permitted at upstream






266 Id.

267 Id.

268 Estevez, Dixon and Flannery, West-Coastal Rivers of Peninsular Florida, in THE RIVERS
OF FLORIDA (Robert Livingston, ed.), 187-221, 215, Springer-Verlag: N.Y. (1991).
269 Id. A 4000 acre offstream reservoir is currently used on the Little Manatee River by
Florida Power and Light Corporation, and an 80 acre offstream reservoir on the Peace River is
used by General Development Utilities for municipal supply.
270 Phone interview with Sid Flannery, Southwest Florida Water Management District
(August 1991). The recent permit renewal for an existing consumptive use at an instream
reservoir on the Manatee River required additional modeling and study in order to investigate the
effects and feasibility of adding reservoirs or increasing the size of the existing reservoir, in
order to increase yield and allow for better quantity and timing of freshwater inflows. Similar
approaches are being taken for permitted instream withdrawals on the Hillsborough River. Id.









locations.271 The potential for creating or expanding withdrawals on eligible water courses is
evaluated, based in part on the potential effects to estuarine and riverine habitat.272
The report recommends that hydrological and ecological monitoring of water resources
should continue, in order to detect short- and long-term trends and apply the data to future water
resource projects. It states that emphasis should be placed on collecting data for the
Withlacoochee, Hillsborough, Manatee, Little Manatee, Braden, Myakka, and Peace Rivers, and
Shell Creek, to ensure that surface water diversions are optimized while maintaining the integrity
of the riverine and estuarine ecosystems.273
2. South Florida Water Management District
The district has completed a draft report of its water needs and sources assessment, based
on urban and agricultural demands for 1990 and projected demands for the year 2010.274
Needs and sources are designated for sixteen counties, or parts of counties which are not wholly
within the district's jurisdiction. Environmental demands are not quantified in the draft
assessment.275 Environmental concerns and issues are discussed for each county, and as stated
in the document, a special working group has been formed to delineate environmentally sensitive
areas and assess environmental needs.276 The goal of the working group is to develop a
quantitative and qualitative categorization system for evaluating adverse impacts to key





271 WATER SUPPLY NEEDS & SOURCES: 1990-2020 (DRAFT), 248-270, Southwest Florida
Water Management District (April 29, 1991).
272 Id.

273 WATER SUPPLY NEEDS & SOURCES: 1990-2020 (DRAFT), 329-330, Southwest Florida
Water Management District (revised section, June 13, 1991).
274 DRAFT WATER SUPPLY NEEDS & SOURCES: 1990-2010, 1, South Florida Water
Management District (June 1991). See also, DRAFT WATER SUPPLY POLCY DOCUMENT, South
Florida Water Management District (April 1991) (policy-setting document to guide several district
activities, including how the district allocates future water supplies, and how it approaches the
review and potential reallocation of water rights as existing permits are renewed).
275 Id.

276 Id.









environmental areas, and to approximate relative water needs.277 Contracts have been executed
for aerial photography to update the identification of environmentally sensitive areas, and to
conduct a hydroperiod study to evaluate the impact of withdrawals on environmentally sensitive
areas.278 Assessment of environmental water needs will not be available until detailed water
supply plans are developed.279
The document's discussion of environmental considerations addresses estuarine systems in
nearly every coastal county in the district,280 though as mentioned, the needs of these systems
are not quantified. The district shares jurisdiction over Charlotte Harbor with the Southwest
Florida Water Management District. In addition to the southern half of Charlotte Harbor, Lee
County includes the Caloosahatchee River and San Carlos Bay estuarine system. In Collier
County, sloughs, strands, and wet prairies channel freshwater surface flow to productive estuaries
in the southwestern part of the county, including one of the largest existing intact mangrove
systems, the Ten Thousand Islands. Monroe County also contains large amounts of estuarine
habitat, including the Ten Thousand Islands on the west coast, most of Card Sound Sanctuary,
Barnes Sound and Florida Bay.
An extensive system of barrier islands and bays lines coastal Dade County, including
Biscayne Bay, which originally received freshwater as groundwater seepage, sheetflow across
adjacent marshlands and from a series of small rivers that cut through the coastal ridge, draining
the Everglades. Broward County was historically also a part of the Everglades system, with open
marshland extending westward from the coastal ridges. Forested floodways through the ridges
drained the Everglades during high rainfall periods, and mangrove habitat lined the shores of the
estuaries. Palm Beach County also contains estuarine ecosystems which have been severely
impacted by human activity, including the Loxahatchee River which has experienced significant
saltwater intrusion. Establishing a reasonable base flow for the river will involve competition



277 Id.

278 Id. at 3.

279 Id.

280 See generally, DRAFT WATER SUPPLY NEEDS & SOURCEs: 1990-2010, South Florida
Water Management District (June 1991).









with other uses. Martin and St. Lucie counties also contain important estuarine areas, including
the St. Lucie Estuary and the Indian River Lagoon, both of which have been impacted by
drainage and manipulation of freshwater inflows.
For essentially all areas in the district, general demand for potable water is forecast to
increase significantly. Though recommendations for demand management and augmentation will
mitigate to some extent the pressures on the resource, the district faces difficult decisions in
attempting to maintain adequate timing and quantities of freshwater to estuarine areas.
The South Florida district has developed a draft rule on critical water supply problem
areas,281 defined according to the following criteria:
(1) areas that have been designated as a reduced threshold area282 and identified in
Rule 40E-20.302;

(2) areas that are anticipated to experience water supply problems in the next twenty
years;

(3) areas of special concern as determined pursuant to criteria contained in the ("Basis
of Review for Water Use Permit Application");

(4) areas that have frequently experienced water shortage restrictions;

(5) areas that have been designated as a restricted allocation area283 pursuant to
criteria contained in the ("Basis of Review for Water Use Permit Application");

(6) areas that are experiencing saline water intrusion; or




281 Draft Rule 40E-23, F.A.C. (May 22, 1991).

282 Defined as areas established by the district for which the threshold separating a general
permit from an individual permit has been lowered from the maximum limit of 3 MG per month
(100,000 gpd) to 600,000 gallons per month (20,000 gpd). These areas are typically resource
depleted areas where there has been an established history of sub-standard water quality, saline
water movement into ground or surface water bodies or the lack of water availability to meet
projected needs of a region. Draft Rule 40E-23.021(2), F.A.C. (May 22, 1991).
283 Defined as areas designated within the district for which allocation restrictions are applied
with regard to the use of specific sources of water. The water resources in these areas are
managed in response to specific sources of water for which there is a lack of water availability to
meet the needs of the region from that specific source of water. Draft Rule 40E-23.021(3),
F.A.C. (May 22, 1991).









(7) other areas with known water supply problems.284


The draft rule includes a figure depicting the approximate boundaries of the district's proposed
critical water supply problem areas, in relation to the boundaries of the district. The proposed
problem areas cover approximately 80-85% of the entire district, including most of the southern
part of the state around and below Lake Okeechobee, from the west coast of Florida to the east
coast, down to and including the Florida Keys.285 The final draft rule will be considered for
adoption by the district governing board in October, 1991.286 It is not clear that the criteria
include consideration of freshwater inflow needs. As stated in the draft needs and sources
assessment, environmental demands have not been quantified, thus it should be assumed that
current evaluations of critical water supply areas do not address instream and inplace water needs
of the district's estuaries.
3. St. Johns River Water Management District
The district is in the process of developing its water needs and sources assessment,
though the only section available at present is a summary of planned and continuing research,
which has been included in the "Local Government Technical Assistance Report," published in
June 1991.287 The report states the district's intent to provide assessments of the regional water
resource needs and sources by July 1, 1991, as part of its local government assistance data,
though as of this writing, it does not appear this goal has been met.
Major components of the projected study include: an inventory of existing and projected
water supply needs; inventory of existing and projected water supply sources; evaluation of the
impacts of development of water supply sources to meet water supply needs; waste water reuse;





284 Draft Rule 40E-23.053, F.A.C. (May 22, 1991). See also, DRAFT WATER SUPPLY
NEEDS & SOURCES: 1990-2010, 3, South Florida Water Management District (June 1991).
285 Draft Rule 40E-23, F.A.C. (Figure 1) (May 22, 1991).

286 DRAFT WATER SUPPLY NEEDS & SOURCES: 1990-2010, 3, South Florida Water
Management District (June 1991).
287 LOCAL GOVERNMENT TECHNICAL ASSISTANCE REPORT, 89-100, St. Johns River Water
Management District, Technical Publication No. SJ 91-2 (June 1991).









and a summary of groundwater models.288 Water use needs are being calculated on data from
1989 and projected for the year 2010, based on surveys of several categories of water need,
though not including resource based or habitat-based needs.89
Similarly, water supply sources data were collected for the 1989 base year and are
projected for the year 2010. Water supply sources information is still being compiled. To
evaluate the impacts of water supply source development in 1989 and 2010, regional and sub-
regional groundwater and surface water models are being developed. Withdrawal impacts will be
considered unacceptable if they meet any one of the following criteria:
1.) significantly induce saline water encroachment; or

2.) cause the water table or surface water level to be lowered so that surface water
stages or vegetation will be adversely and significantly affected on lands other
than those owned, leased or otherwise controlled by the applicant; or

3.) cause the water table level or aquifer potentiometric surface level to be lowered so
that significant and adverse impacts will affect existing legal users; or

4.) require the use of water which pursuant to Ch. 373.223(3), Fla. Stat., and Rule
40C-2.301(6), the Board has reserved from use by permit; or

5.) cause the rate of flow of a surface water course to be lowered below a minimum
flow which has been established pursuant to Ch. 373.042(1), Fla. Stat.; or

6.) cause the level of a water table aquifer, the potentiometric surface level of an
aquifer source, or the water level of a surface water source to be lowered below a
minimum level which has been established pursuant to Ch. 373.042(2), Fla.
Stat.290







288 Id. at 91-95.

289 The categories of water use include: domestic (public and self supply), agricultural
(including vegetables, citrus, fruits other than citrus, field crops, ornamental, sod and grass, and
improved pasture), commercial/industrial, power generation, and recreational (golf courses). Id.
at 91.
290 Id. at 93.










Thus, where minimum flows have been adopted by rule, they will be part of the water
sources analysis.29' To the extent that establishment of minimum flows includes consideration
of riverine and estuarine habitat needs, the water sources assessment has the potential to improve
protection of such inflows. Areas where there are unacceptable impacts will be identified as
having inadequate water supplies to meet the projected user demand. The district will develop
alternative water supply scenarios allowing development of water supplies at a level with
acceptable impacts. Generally, these strategies will involve changing withdrawal points, varying
the quantities withdrawn, using advanced treatment methodologies, increasing water conservation.
reusing reclaimed water, and other appropriate techniques.292
4. Suwannee River Water Management District
The Suwannee River district water needs and sources study is being presented to the
district governing board in September 1991 for review and possible adoption. Drafts of the study
are unavailable as of this writing. The plan of study for the district's DWMP includes language
recognizing that water resources assessments should embrace the needs of natural systems.293
It appears that the district's research projects will eventually result in identification of minimum
flows and levels necessary for the protection of estuarine habitat. The schedule for this program
of research projects that studies will not be completed until 1993 or 1994.
The district withdraws most of its potable water from groundwater sources, thus the
primary focus of its water sources analysis will be groundwater. The plan of study recognizes
that the water needs of human uses for agricultural, industrial, and domestic purposes are easier
to quantify than those of natural systems29 and identifies minimum flows and levels studies for
surfacewater bodies as a mechanism to provide for the needs of natural systems.295 One project


291 At present, no surface water flows have been adopted, though the district is considering a
draft rule setting minimum flows on the Wekiva River, at two points, and on Blackwater Creek.
Draft Rule 40C-8, F.A.C. (April 29, 1991).
292 Id.

293 PLAN OF STUDY FOR THE SUWANNEE RIVER WATER MANAGEMENT DISTRICT WATER
MANAGEMENT PLAN, 5, Suwannee River Water Management District (1989).
294 Id. at 11.

295 Id.









under the plan's water use element specifically addresses the ecological roles played by the
freshwater discharge from the Suwannee River.296 However, the program of research only
addresses the relationship between groundwater and surface water flows in the Suwannee River
basin.297
The plan of study asserts that almost all of the projects listed in the groundwater and
surface water elements will contribute to a definition of natural system needs.298 One project
under the groundwater resources element states that based on natural resource and economic
considerations, the governing board will determine the criteria for minimum groundwater levels
in preparation for the development of minimum levels and flows standards.299 However, the
project does not refer to the need to consider the importance of groundwater levels in maintaining
minimum flows for surface watercourses other than those in the Suwannee River basin.
Two surface water assessment projects are geared to understanding the impacts of water
resource development on the hydrology and water quality of the watercourses. The first of these
recognizes that surface water flows in the Suwannee River Basin are highly influenced by
groundwater inflows, and proposes to examine current and projected groundwater withdrawals to
determine their effects on surfacewater and groundwater quantity and quality.3' The second
project is also specific to the Suwannee River basin, and will evaluate the need for the
development and implementation of water quantity and quality models. According to the plan of
study, modelling could be used to calculate watershed runoff quantity and quality, and to simulate
major physical processes, salinity changes, and pollutant concentrations in estuarine waters due to
changes in freshwater inflow quantity and quality.3" According to the plan of study, the





296 Id.

297 Id. at 9-10.

298 Id. at 11.

299 Id. at 6.

00 Id. at 9.

301 Id.









schedule for implementation of such models, and the scale at which they can be implemented
depend on several variables, including availability of funds and trained personnel.
Staff has indicated that no critical water supply problem areas will be identified in the
draft study.302
5. Northwest Florida Water Management District
As with most of the its programs, budgeting constraints have limited the degree to which
the district is able to pursue the research and planning agenda expressed in the 1989 plan of
study.303 Research projects addressing water needs and sources are still in the planning
stage.304 The water needs and sources analysis will involve subdividing the district into
discrete planning units, for which population and related water use projections will be
developed.5" Where industrial and agricultural uses are significant, projection for such uses
will be included with those of public supply for planning and management purposes. The
document states that, whereee pertinent, recreational, navigational and other in-stream uses of
water will be considered. This may entail environmental assessments, such as the ongoing
freshwater needs analysis for Apalachicola Bay."36
For its water resources availability analysis, the district plans to focus on groundwater,
since this is the principal source of potable water in the district. The primary exception is Deer
Point Lake, which serves as a source of potable water for a large part of Bay County. Earlier



302 Phone interview with Marvin Raulston, Suwannee River Water Management District
(August 1991).
303 The primary source of district funding is ad valorem taxation. The Northwest Florida
district is constitutionally limited to a maximum ad valorem tax rate of .05 mills, as compared to
a maximum rate of 1.0 mills for the other districts. FLA. CONST. art. VII, 9. Current
legislatively set maximum millage rates are: Northwest Florida district (.05 mills), Suwannee
River district (.75 mills), St. Johns River district (.6 mills), Southwest Florida district (1.0 mills),
South Florida district (.8 mills). FLA. STAT. 373.503 (1989).
304 Phone interview with Doug Barr, Northwest Florida Water Management District (August
1991).
305 "District Water Management Plan: Plan of Study," 8, Northwest Florida Water
Management District (1989).
306 Id.









studies have been completed as part of the district's ground water basin resource availability
inventory, and additional hydrogeological studies will be instituted where population and water
use projections are high. Groundwater models are scheduled for development in order to
determine levels of sustainable withdrawal without impacting the resource or existing uses of the
aquifer. That part of the district with strong connections between groundwater and surface
watercourses includes the Jackson County area, bordering Georgia's Chattahoochee River
(Apalachicola River in Florida). Though the potential exists for high groundwater withdrawals to
affect the Apalachicola River in the Jackson County area, it is not expected to experience high
consumptive use demand in the foreseeable future.307
Research plans include surface water availability studies utilizing hydrologic models and
flow frequency analyses.308 The document anticipates that "(a)n outcome of the needs and
sources assessment will be the establishment of minimum flows and levels for both surface and
ground water bodies."09 The district's designation of critical water supply areas will focus on
existing areas which have previously been designated as "areas of water resource concern."
These include the coastal margins of Santa Rosa, Okaloosa and Walton counties, where saltwater
intrusion is a continuing problem.31
C. Minimum Flows and Levels
One of the most important sections of the Water Resources Act requires DER or the
water management districts to establish minimum flows for all surface watercourses,311 and
minimum levels for all aquifers and lakes.312 Minimum flows must be set at the limit at which



307 Phone interview with Doug Barr, Northwest Florida Water Management District (August
1991). Lake Seminole, part of the Chattahoochee/Apalachicola River system which borders
Jackson County, is not a source of significant surface water withdrawal for the county.
308 Id. at 9.

309 "District Water Management Plan: Plan of Study," 10, Northwest Florida Water
Management District (1989).
310 FLA. ADMIN. CODE Rule 40A-2.802 (April 1991).

311 FLA. STAT. 373.042(1) (1989).

312 FLA. STAT. 373.042(2) (1989).









further withdrawals would be significantly harmful to the water resources or ecology of the
area.313 Minimum levels are those groundwater and surface water levels at which further
withdrawals would be significantly harmful to the water resources of the area.3" Calculations
of minimum flows and levels must be made using the best available information.31
The DER and water management districts must also consider, and may at their discretion
provide for, the protection of nonconsumptive uses in the establishment of minimum flows and
levels.316 In this context, nonconsumptive uses include the instream and inplace water needs of
estuarine fisheries habitat. The protection of such uses is crucial to the restoration and
maintenance of Florida's fisheries, and should not be approached as a discretionary factor.
Statutory changes mandating the protection of nonconsumptive uses related to minimum flows
and levels would increase the likelihood of restoring and maintaining proper freshwater inflows to
estuaries.
The State Water Policy section addressing minimum flows and levels requires that
consideration be given to the protection of water resources, natural seasonal fluctuations in water
flows or levels, and environmental values associated with coastal, estuarine, aquatic, and
wetlands ecology, including:
(1) recreation in and on the water,
(2) fish and wildlife habitats and the passage of fish,
(3) estuarine resources,
(4) transfer of detrital material,
(5) maintenance of freshwater storage and supply,
(6) aesthetic and scenic attributes,
(7) filtration and absorption of nutrients and other pollutants,
(8) sediment loads,
(9) water quality, and
(10) navigation.317



313 FLA. STAT. 373.042(1) (1989).

314 FLA. STAT. 373.042(2) (1989).

315 FLA. STAT. 373.042 (1989).

316 Id.

317 FLA. ADMIN. CODE Rule 17-40.405(1) (February 1991).









Where minimum flows and levels are established, they must be considered in the construction
and operation of water resource projects318 and works of the district,319 and the permitting of
consumptive uses and management and storage of surface waters.320 Importantly, minimum
flows and levels must also be considered in the declaration of water shortages, and the
procedures followed in responding to water shortages.321 Since estuarine fisheries are much
more sensitive to salinity changes during the dry season, it is crucial that dry season minimum
flows be established that reflect their relative importance to fisheries, and that such instream and
inplace needs be more seriously considered in determining when the restrictions associated with
water shortage declarations will be necessary to help preserve proper salinity regimes in an
estuary.
The districts have addressed these requirements to varying degrees, depending on the
numbers of surface water withdrawals in the district, the relationship between groundwater
withdrawals and surface water flows, population pressures, amount of estuarine acreage and
numbers of rivers and creeks, pressures on the fisheries, and funding capabilities. Generally,
there is a need to increase the amounts of research being devoted to nonconsumptive minimum
flow values, and to incorporate the findings into the districts' permitting processes at every level.
1. Southwest Florida Water Management District
The Southwest Florida Water Management District is one of two districts to have adopted
minimum levels in its rules at present.322 An approach to establishing minimum flows for
planning purposes is utilized at the staff level, but it has not been formally adopted, nor have
regulatory minimum flows been established using the approach. Data sources for the


318 FLA. ADMIN. CODE Rule 17-40.405(2)(a) (February 1991).

319 FLA. ADMIN. CODE Rule 17-40.405(2)(b) (February 1991).

320 FLA. ADMIN. CODE Rule 17-40.405(2)(b) (February 1991).

321 FLA. ADMIN. CODE Rule 17-40.405(2)(c) (February 1991). See, FLA. STAT. 373.246
(1989) for water shortage plan requirements, and FLA. STAT. 373.175 for procedures
applicable to declaration of water shortages or emergencies.
322 See FLA. ADMIN. CODE Rule 40D-8 (March 1991). South Florida Water Management
District has also established certain minimum flows and levels. See infra, notes 332-336, and
accompanying text.









establishment of flows and levels include technical publications, topographic maps, USGS
reports, aerial mapping, hydrographs, bottom contour maps, stage-duration curves, precipitation
data, and field investigation of marks and vegetation. For many lakes and impoundments with
water control structures, the district has established non-regulatory operating levels which include
a "high operating level" and a "low operating level," and a prescribed schedule for operation of
such lakes and impoundments, including time sequences.323
For those lakes and other impoundments which have been addressed, regulatory minimum
levels include a low management level and an extreme low management level.324 The low
management level is intended to be the applicable minimum water level on that lake or
impoundment until four consecutive years pass without a natural fluctuation to the extreme low
management level. At that point, the extreme low management level becomes the applicable
minimum water level until the actual water level recedes to or below the extreme low
management level. When that occurs, the minimum water level is reset to the low management
level, and the cycle continues.25 The approach is intended to allow fluctuations necessary for
the preservation of natural resources, fish and wildlife, and for the protection of nonconsumptive
uses.326
In the mid-1970s, the district adopted a rule addressing the process for setting minimum
flows, though it has not used the rule to establish regulatory flows for any watercourses. Under



323 FLA. ADMIN. CODE Rule 40D-8.621 (February 1988). Both levels are set by the
governing board, considering public testimony and best surface water management practices in
the design, construction, operation and maintenance of structures or devices. "Best surface water
management practices" require consideration and evaluation of long- and short-term effects of the
activity on water resources, based on (a) conservation and proper utilization of surface water, (b)
prevention of damage from floods, soil erosion, and excessive drainage, (c) preservation of
natural resources, fish, and wildlife, (d) storage for aquifer recharge, and (e) non-consumptive
uses, including, but not limited to, navigation, recreation, and aesthetics. FLA. ADMIN. CODE
Rule 40D-8.021 (February 1988).
324 FLA. ADMIN. CODE Rule 40D-8.605 (February 1988); see also, FLA. ADMIN. CODE Rule
40D-8.624 for listing of ten year flood warning levels, minimum flood levels and minimum water
levels for many lakes and impoundments in the district.

325 FLA. ADMIN. CODE Rule 40D-8.605(2) (February 1988).

326 FLA. ADMIN. CODE Rule 40D-8.605(1) (February 1988).

64









this process, unless otherwise deemed appropriate by the board, minimum rates of flow on
streams and other watercourses would be established for each month of the year. For each
month of the year, the five lowest monthly mean discharges for the preceding twenty years are
averaged. The minimum rates of flow for streams and watercourses are established as 70% of
those values for the four wettest months (July through October), and 90% of those values for the
remaining eight months.327
The older approach has been largely abandoned, and based on more recent hydrological
and biological studies on the Peace River and the South Prong of the Alafia River, the district has
taken a new approach to minimum flows. For resource planning purposes and as a general
guideline in the permitting process, minimum flow is now established at the 90 percent
exceedance flow (the level of streamflow which has been exceeded 90 percent of the time for the
period of record), or at 10 cubic feet per second (cfs), whichever is greater.328 The only
specific exception to this approach is on the Peace River, at the General Development Utilities
withdrawal, where regulatory minimum flows have been established seasonally at 100 to 130
cfs.329 Though its studies indicate that this approach protects freshwater inflows to estuaries,
the district recognizes that optimally, selection of minimum flows should be done using site
specific information for each stream. There is no specific program for restoring historic optimal
flows to estuaries, based on conditions existing prior to large scale water development projects.
2. South Florida Water Management District
In its technical criteria manual, "Basis of Review for Water Use Permit Application"
(September 1989), incorporated by reference in its permitting rules, the district recognizes that
certain withdrawals will be subject to limitations because of minimum surface or groundwater
levels defined in district rules, operation schedules, management plans, or prior district





327 FLA. ADMIN. CODE Rule 40D-8.041(2) (1989).

328 WATER SUPPLY NEEDS & SOURCES: 1990--2020 (DRAFT), 241-242, Southwest Florida
Water Management District (April 29, 1991).
329 Id. The two streamflow levels have been exceeded about 92 percent and 88 percent of
the time, respectively, at a nearby gaging site.


mwwm









permits.33 According to the manual section, the geographic coverage of these levels can van'.
and will change as new permits are issued and old permits cancelled.331
The district has established minimum flows and levels for certain lakes, creeks and canals
in the Lake Istokpoga/Indian Prairie Area, and the St. Lucie County Agricultural Area.332
These include minimum levels for Lake Istokpoga and sections of several canals in the
Agricultural Area, and minimum flows for several canals in the Indian Prairie Basin, Arbuckle
Creek, Josephine Creek and several water control structures in the Agricultural Area.333 The
rule states that the restrictions on water use associated with levels and flows in the Lake
Istokpoga/Indian Prairie are established to assure that water resources within that Area will not
suffer serious harm.334 Though the district's water shortage plan335 includes consideration of
"irreversible adverse impacts on fish and wildlife" in its evaluation of serious harm to water
resources,336 it is not clear that prevention of such impacts is a primary goal of these levels and
flows. The rule section addressed to the St. Lucie County Agricultural Area does not include
any goals or purposes behind the establishment of levels and flows.
Most of the district's research efforts in this area address the need to set minimum aquifer
levels, in order to adequately protect a crucial source of drinking water from excessive
consumptive use.337 At present, three estuarine systems are being studied, with one goal being
to define the biologically based freshwater needs of the estuaries. The Loxahatchee estuarine
system study is scheduled for completion by January of 1992. The approximate completion date


330 Section 3.2.1.1.8, BASIS OF REVIEW FOR WATER USE PERMIT APPLICATION, A-17,
South Florida Water Management District (September 1989).
331 Id.

332 See FLA. ADMIN. CODE Rule 40E-22 (1989).

333 Id.

334 FLA. ADMIN. CODE Rule 40E-22.132(1) (1989).

335 FLA. ADMIN. CODE Rule 40E-21 (1989).

336 FLA. ADMIN. CODE Rule 40E-21.221(3)(c)2 (February 1991).

337 Phone interview with Dan Haunert, South Florida Water Management District (August
1991).









for a study of the St. Lucie estuary will be May of 1992, while a study of the
Caloosahatchee/San Carlos Bay system will not be completed until approximately August of
1992.33 It is anticipated that eventually, these studies may become part of the district's water
use planning process, and be translated into minimum flows and levels for use in consumptive
use permitting conditions, though there is no schedule or plan of study for the process.39
3. St. Johns River Water Management District
The district's course of research is designed to eventually result in a computer model
which will help regulate the consumptive uses of water in relation to the instream and inplace
needs of lakes and rivers. The fresh water needs of estuarine systems are not being studied at
present, though it is anticipated that the district will eventually include such considerations in its
research program, and in its permitting criteria.340 The district's research program recognizes
the close relationship between groundwater levels and minimum surface water flows and levels in
the St. Johns River district. One of the research strategies is to determine what aquifer levels are
necessary to maintain environmentally sound surface water levels and flows. The research is
ongoing, with no planned deadline, however if incorporated into the DWMP process, minimum
flows addressing estuarine habitat should be adopted, at the latest, by November 1994.
The district has focused primarily on lakes, with newer riverine studies only developed
within the past year. There are several sub-components to the research project, including:
minimum flows and levels criteria development; lake analysis and characterization; stream
analysis and characterization; and wetland functions and hydrology.341 The purpose of the
minimum flows and levels criteria development sub-component is to develop and test ecologically
sound criteria on which minimum flows and levels can be determined for lotic (lake) and lentic




338 Id.

339 A very tentative projected date for adoption of minimum flows and levels is the third
quarter of 1992, according to staff. Id.
340 Phone interview with Cliff Neubauer, St. Johns River Water Management District
(August 1991).

341 LOCAL GOVERNMENT TECHNICAL ASSISTANCE REPORT, 112, St. Johns River Water
Management District, Technical Publication No. SJ 91-2 (June 1991).









(river) systems.342 The purpose of the lake analysis and stream analysis sub-components is to
collect physical, chemical and ecological data from several "classes" of lakes and streams, to be
used in testing the criteria developed in the minimum flows and levels criteria development
component.343 For the wetland functions sub-component, a long term study site was established
at Hopkins Prairie, in the Ocala National Forest, to investigate the effects of fluctuating water
levels on wetland ecological functions.44
The stream analysis and characterization studies include data collection on: depths of
streams at selected cross-sections, vegetation transects (with elevations) across wetlands adjacent
to streams and rivers, and water quality sampling.345 The wetland functions and hydrology
studies include: mapping of vegetation communities; determination of juvenile fish community
composition; monitoring changes in water quality with changing hydrology; determining water
quality and sediment nutrient interactions as a function of hydrology; determining the effects of
wetland hydrology on macrophyte primary production and litter decomposition; and investigating
changes in microinvertebrate populations with changing hydrology.346
Minimum levels for lakes and streams are to be subdivided into five categories,
recognizing the need of such systems to fluctuate in order to maintain ecological health. A
"minimum infrequent low surface water level (or flow)" is the lowest level to which a lake will
be allowed to fall, before curtailing all withdrawals. It is an acutely low water level or flow
which may occur during periods of extreme drought and below which there will be a significant
negative impact on the biota of the surface water and associated wetland systems."?
The "minimum frequent low surface water level (or flow)" is a level at which there will
be some ecological impacts to the system, such as those from boat props and canoe paddles



342 Id.

343 Id.

344 Id.

345 Id.

346 Id.

347 Id. at 115.










destroying emergent vegetation and at which voluntary restrictions on water use would be
encouraged. This is a chronically low water level or flow that is normally expected to be
exceeded except during periods of reduced rainfall such that the following will not be
deleteriously affected: composition and structure of floodplain soils, species composition and
structure of floodplain and instream biotic communities, and the linkage of aquatic and floodplain
food webs.348
As a surface water level starts declining from the frequent towards the infrequent
minimum low level, a four-step series of phased water restrictions will be applied, based on 30-
day mean levels and flows. Under this amendment to the district water shortage plan, a phase 1
reduction will cut overall water use in the basin by 15%, phase 2 by 30%, and phase 3 by 45%,
while a phase 4 reduction will cut water use by 60%.349 The minimum frequent low surface
water level (or flow), minimum infrequent low surface water level (or flow), and the four
intermediate levels for the district water shortage plan are regulatory levels, since the district
takes specific actions when the levels are reached.
The level or flow around which a system is designed to fluctuate will be known as the
"minimum average surface water level (or flow)" though the term is not meant to imply an
averaging of water levels. It is the minimum water level or flow necessary over a long period
for maintenance of the integrity of hydric soils and wetland plant communities.350 On the high
side of this level will be two additional management levels, which the system occasionally should
be allowed to reach to prevent significant ecological harm from occurring.351
The "minimum frequent high surface water level (or flow)" is a chronically high water
level (or flow) expected to be reached or exceeded approximately annually that allows the
following to occur: inundation of the floodplain at a depth and duration sufficient for maintenance
of wetland vegetation and soils, linkage of aquatic and floodplain food chains, and fish spawning


348 Id.

349 Phone interview with Cliff Neubauer, St. Johns River Water Management District
(August 1991).
350 LOCAL GOVERNMENT TECHNICAL ASSISTANCE REPORT, 115, St. Johns River Water
Management District, Technical Publication No. SJ 91-2 (June 1991).
351 Id. at 115.









on the floodplain.52 The "minimum infrequent high surface water level (or flow)" is an
acutely high water level (or flow) expected to be reached during or immediately after periods of
high rainfall with a frequency, no less than nor significantly greater than that prescribed, such
that the following processes can occur: inundation of a floodplain at a depth and duration
sufficient for the maintenance of biota; the exchange of nutrients and detrital material; the
dispersal of plant seeds and propagules; and the passage of aquatic organisms onto and
throughout the wetlands of the floodplain.353
4. Suwannee River Water Management District
The Suwannee River district has not established minimum flows or levels for rivers or
estuaries within its jurisdiction. The 1989 plan of study for the district's DWMP is organized
into three major issue areas, including: water resources availability, water use, and water
resources allocation and management." One of the projects in the water use issue is a natural
system water needs assessment, which states that understanding the water needs of natural
systems is critical to the maintenance of healthy river, lake and estuarine systems."' As
explained in the project description: "An understanding of the ecology of the Suwannee River
estuary and the ecological roles played by the freshwater discharge from the river will be an
important component of the minimum flows and levels determinations. "356 The project's
activity schedule requires that recommendations on water requirements of natural systems be
made in conjunction with minimum flows and levels criteria, and be submitted for approval in the
first quarter of fiscal year 1992-93.357




352 Id. at 114-115.

353 Id. at 114.

54 "Plan of Study for the Suwannee River Water Management District Water Management
Plan," 5, Suwannee River Water Management District, Live Oak, Florida (1989). A revised
plan of study is scheduled for adoption in October, 1991.

355 Id. at 11.

356 Id.

357 Id. at 12.









The resource allocation and management issue of the plan of study includes a water use
permitting project, which recognizes that a review of district rules will be needed to assess the
need for additional policies regarding transfer of water from one district to another and that these
policies must reflect minimum flows and levels standards when available.35" The concern
addressed in this section is that, as the consumptive water needs of other districts increase,
relatively untapped waterbodies in the Suwannee River district will be seen as potentially
productive sources of potable water, with less consideration for the instream and inplace needs of
fish and wildlife. The Suwannee River estuary, particularly, supports an important oyster fishery
which would be subject to severe disruption if adequate freshwater inflows were not maintained.
As stated in the project description, the standards for minimum flows and levels should
establish a point beyond which the district will not allow a reduction in the flow of a stream or
river or in the level of an aquifer that would result in permanent harm to water and related
resources.59 Based on natural resource and economic considerations, the governing board is
scheduled to determine the criteria for levels and flows during the first quarter of fiscal year
1992-93, and adopt minimum flows and levels standards during the fourth quarter of the same
fiscal year.'" It is not clear that funding will be available to properly carry out and complete
the necessary research on this schedule. To assure the consideration of habitat values in setting
minimum levels and flows criteria, the instream and inplace needs of the district's estuarine
dependent fisheries should be specifically included in the process.
5. Northwest Florida Water Management District
The Northwest Florida district has not established an approach to setting minimum flows
and levels, nor has it adopted regulatory flows or levels in its rules. As with many of its
research agendas, the district is limited to a certain extent by funding restrictions. There are
several estuarine systems in the district for which the establishment of minimum flows will be
necessary in order to properly address the permitting of consumptive uses and surface water
management systems.


358 Id. at 12.

359 Id. Recent drought conditions have given staff the opportunity to gather data on low flow
conditions applicable to the Suwannee River and its estuary.

360 Id. at 12-13.









Tnhe district will be addressing the freshwater inflow needs of the Apalachicola River and
estuary as part of its contribution to a comprehensive interstate study of the Apalachicola/
Chattahoochee/Flint River system.361 Funding for the project will be shared by the district and
the Army Corps of Engineers. A biological component of the study will establish the salinity
ranges necessary to reduce predation and favor oyster productivity, while hydrodynamic
modelling will be used to determine freshwater inflow requirements consistent with maintaining
the salinity ranges.62
Growing pressures on riverine and estuarine systems in the Northwest Florida district
make it necessary that research programs be funded and completed in the near future, in order to
establish freshwater inflow needs and protect the fishery habitat values of those systems.


D. Groundwater Basin Resource Availability Inventories
Section 373.0395 of the Act requires the water management districts to develop
groundwater basin resource availability inventories, covering those areas deemed appropriate by
the governing board. The inventory must include, but is not limited to the following:
(1) a hydrogeologic study to define the groundwater basin and its associated recharge
areas,

(2) site specific areas in the basin considered prone to contamination or overdraft
from current or projected development,

(3) prime groundwater recharge areas,

(4) criteria to establish minimum seasonal surface and groundwater levels,

(5) areas suitable for future water resource development within the basin,

(6) existing sources of wastewater discharge suitable for reuse as well as the
feasibility of integrating coastal wellfields,

(7) potential quantities of water available for consumptive uses.63


361 The district study is being included in the 1991-92 fiscal year SWIM planning budget.

362 APALACHICOLA BAY FRESHWATER NEEDS ASSESSMENT: SCOPE OF WORK, 2, 16,
Northwest Florida Water Management District (January 1991).
363 FLA. STAT. 373.0395 (1989).









Copies of the completed inventories must be submitted to each affected local government and
regional planning council, to be reviewed for consistency with local comprehensive plans. The
information must be considered in future revisions of comprehensive plans.64 As defined, the
required categories of information do not directly contemplate consideration of minimum flows
and freshwater needs of habitat, though several would allow such concerns to be addressed.
Research required to complete these inventories is being incorporated into the district water
management planning process, and the water supply needs and sources analysis.
E. Planning for Water Supply Needs
Section 373.1961 of the Act requires districts to "engage in planning" to assist local
governments and regional water supply authorities in meeting water supply needs, with priority
given to encouraging conservation and reducing adverse environmental effects of improper or
excessive withdrawals.365 The districts are addressing this requirement under the auspices of
the needs and sources technical research being performed for district water management
plans.66
F. Technical Assistance to Local Governments
By July 1, 1991, the districts are required to have prepared and disseminated extensive
amounts of technical information to local governments for use in the preparation, implementation
and revision of local comprehensive plans.67 Among the required types of information and
data are included:
(1) information reflecting the minimum flows for surface watercourses to avoid harm to
water resources or the ecosystem and information reflecting the minimum water levels for
aquifers to avoid harm to water resources or the ecosystem,

(2) a description of regulations, programs, and schedules implemented by the district,

(3) identification of regulations, programs, and schedules undertaken or proposed by the
district to further the State Comprehensive Plan,


36 Id. The revision process for local comprehensive plans in Florida occurs every five
years, on a phased basis, with the first set of revised plans due in 1993.
365 FLA. STAT. 373.1961(1) (1989).

366 See supra, notes 244-310, and accompanying text.
367 373.0391(2)









(4) a description of surface water basins, including regulatory jurisdictions, flood-prone
areas, existing and projected water quality in district operated facilities, surface water
runoff characteristics and topography regarding floodplains, wetlands and recharge areas.

(5) a description of groundwater characteristics, including existing and planned wellfield
sites, existing and anticipated cones of influence, highly productive groundwater areas,
aquifer recharge areas, deep well injection zones, contaminated areas, assessment of
regional water resource needs and sources for the next twenty years, and water
quality.368

All water management districts are providing the required information to local
governments as that information is developed and analyzed. To varying degrees, the Southwest
Florida, South Florida and St. Johns River districts have performed technical studies to establish
minimum flows and levels as of this writing.69
Due primarily to budgetary constraints, the Suwannee River and Northwest Florida
districts have not progressed as far in their research programs to establish minimum flows. The
Suwannee River district DWMP activity schedule requires that minimum flows and levels criteria
include recommendations on the water requirements of natural systems, and be submitted for
approval in the first quarter of fiscal year 1992-93.370 The Northwest Florida district has
begun some preliminary hydrodynamic modeling and data analysis related to inflows to the
Apalachicoloa Bay estuary, though planned research on other estuarine systems is tentative.

V. Surface Water Improvement and Management Plans
The Surface Water Improvement and Management Act37 was adopted in 1987 to help
address several problems associated with the state's surface waters. Among the many functions
of surface waters recognized by the Act are included: (a) providing aesthetic and recreational
pleasure, (b) providing habitat for native plants, fish, and wildlife, including endangered and



368 FLA. STAT. 373.0391(2) (1989).

369 See, e.g., LOCAL GOVERNMENT TECHNICAL ASSISTANCE REPORT, St. Johns River Water
Management District, Technical Publication No. SJ 91-2 (July 1991).
370 "Plan of Study for the Suwannee River Water Management District Water Management
Plan," 12, Suwannee River Water Management District, Live Oak, Florida (1989).
371 FLA. STAT. 373.451--373.4595 (1989).









threatened species, (c) providing safe drinking water, and (d) attracting visitors and accruing
other economic benefits.372 Factors contributing to the decline in these values include point and
nonpoint sources of pollution, and destruction of the natural systems which purify surface waters
and provide habitat.73
The Act requires the water management districts to develop prioritized lists of water
bodies in need of restoration or protection, with the highest needs for water quality restoration.
Criteria for evaluating waterbodies include consideration of water quality standards violations,
nutrients entering the waterbody and its trophic state, existence or need for aquatic weed control,
biological condition of the waterbody, reduced fish and wildlife values, and threats to public
water supplies.374
Once priority lists are established and approved by the DER, the districts are required to
develop surface water improvement and management (SWIM) plans for each listed waterbody.
The plans must include a wide range of information involving:
(a) the history and hydrology of the waterbody,
(b) applicable regulatory jurisdictions,
(c) land uses within the drainage basin and those of important tributaries,
(d) a list of pollution sources and their owners,
(e) a description of the existing and potential strategies for restoring or protecting the
waterbody to Class III standards or better,
(f) listings of existing and planned studies of the waterbody,
(g) the research and feasibility studies to be performed to determine the necessary
restoration strategies,



372 FLA. STAT. 373.451(2) (1989).

373 FLA. STAT. 373.451(4) (1989).

374 FLA. STAT. 373.453(1)(b) (1989). See also, FLA. ADMIN. CODE Rule 17-43.030 (May
1990). Criteria used in preparing the lists include: (a) the degree to which water quality
standards are violated, (b) the nature and extent of the conditions adversely affecting the
waterbody, including biological and physical conditions, and reduced fish and wildlife values, (c)
threats to water supplies, particularly agricultural and urban supplies, and recreational
opportunities, (d) threats to or need for protection of exceptional or outstanding waterbodies
which are currently in good condition, (e) extent to which local plans, ordinances and policies are
consistent with the district's efforts to restore or protect the waterbody, (f) feasibility of
monitoring the success of restoration or protection efforts, and (g) economic and environmental
feasibility of accomplishing the restoration or protection goals. FLA. ADMIN. CODE Rule 17-
43.030(1) (May 1990).









(h) measures needed to manage and maintain the waterbody once it has been restored.
(i) a schedule for restoration and protection of the waterbody, and
(j) estimates of the funding needed to carry out restoration or protection
strategies."3

Before presentation to the water management district governing board for approval, a
proposed SWIM plan must be submitted to the DER, the Department of Agriculture and
Consumer Services, the Department of Community Affairs, the Florida Game and Fresh Water
Fish Commission, the Department of Natural Resources, and local governments.376 After
considering the comments and recommendations of these agencies and the public, the governing
board must approve the plan and submit it to the DER for a final review, to assure consistency
with the State Water Policy and the State Comprehensive Plan. The changes which DER
recommends in order to achieve consistency may or may not be adopted by the governing board.
If they are adopted, the district must publish notice of adoption of the approved plan. If the
recommendations are not adopted, the plan must state the reasons for not adopting them.37
Plans must be updated every three years."7
Water quantity and timing issues are not specifically addressed in the Act, however
evaluations of the nature and extent of conditions adversely affecting the waterbody must include
consideration of its biological condition, physical conditions, and reduced fish and wildlife
values,79 which in turn are affected by the location, quantity and timing of freshwater flow.
Freshwater inflows are closely related to issues of water quality, point and nonpoint source
pollution, nutrient inflows and trophic states, all of which are essential components of healthy
estuarine habitat.380 There are also questions involving the potential treatment of an imbalanced


375 FLA. STAT. 373.453(2) (1989). See also, FLA. ADMIN. CODE Rule 17-43.035 (May
1990) (including the requirement for a listing and current status of active restoration or protection
projects for the waterbody).
376 FLA. STAT. 373.455 (1989).

377 FLA. STAT. 373.456(5)(b) (1989); FLA. ADMIN. CODE Rule 17-43.035 (May 1990).

378 FLA. ADMIN. CODE Rule 17-43.035(5) (May 1990).

379 FLA. ADMIN. CODE Rule 17-43.030(1)(c) (May 1990).

380 See FLA. ADMIN. CODE Rule 17-43.030(1)(a), (b) (May 1990).

76









salinity regime as a water quality issue to be addressed because of its effect on fish and wildlife
values.
In some cases, the districts have included consideration of freshwater inflow timing,
quantity and distribution in the SWIM planning process for estuarine systems. Some plans
discuss the importance of such factors, yet fail to include specific projects addressing the factors,
or fail to provide adequate funding for the completion of such projects. In other plans,
freshwater inflow timing and quantity are not discussed, though this may be because the issue is
not considered important for the estuary at present. Statutory and regulatory amendments should
require that such factors be considered, since they promote the legislative intent to provide habitat
for native plants, fish, and wildlife, prevent destruction of the natural systems which provide
habitat, and maintain the biological health of the estuary. Additionally, estuarine systems should
be carefully considered for higher priority treatment under the Act, with all estuaries eventually
included in the SWIM planning process.
Funding is a critical component of the process by which problems are studied and
rectified. State and water management district commitment to restoring and maintaining proper
freshwater inflow to estuaries must be expressed in the level of financial support provided for
inflow related projects. The Florida legislature recently changed the percentage of matching
funds required from the water management districts for projects funded out of the Surface Water
Improvement and Management Trust Fund. The former percentage of required match was 20%
for the districts, with the DER funding 80% for such projects.381 As of July 1, 1991, the
percentage of required match from the districts is 40%, with the DER funding 60% of the
total.382 The increase in required matching funds will be a significant burden on the districts.
The two districts with less ability to raise revenue, the Northwest Florida district and the
Suwannee River district, will be effectively prohibited from planning or completing projects that
require higher amounts of funding, even if those projects are necessary to understanding and
correcting essential problems identified in SWIM plans.





381 FLA. STAT. 373.459 (1989); FLA. ADMIN. CODE Rule 17-43.060 (May 1990).

382 1991 Fla. Laws 79, 14. (to be codified at FLA. STAT. 373.459).









A. Southwest Florida Water Management District
The district currently has eight waterbodies on its ranked priority list, with Tampa Bay
and Charlotte Harbor/Placida Harbor as the only two estuaries.'" The Charlotte
Harbor/Placida Harbor SWIM plan is currently being researched and written. According to
staff, it is close to final draft form, and is expected to be submitted for approval in November
1991.
Tampa Bay, the state's largest open water estuary,38 is the number one priority for the
district.385 The Tampa Bay SWIM plan covers a large area including the estuary and its
watershed. Coverage extends from the barrier beaches of Boca Ciega Bay and Anna Maria
Sound to upland areas where freshwater vegetation predominates.86 As defined, the estuary
encompasses a 398 square mile area of open water and surrounding wetlands.387 The defined
watershed area includes most rivers and tributaries feeding into Tampa Bay: the Hillsborough,
Alafia, Little Manatee, Manatee, and Braden rivers; Bullfrog Creek; Lake Tarpon and Lake
Seminole.388 The plan states that the most critical use of Tampa Bay is as a protected nursery
for more 270 species of fish.389 The great variety of species is due in part to the salinity
regime of the bay.39 The plan also recognizes that freshwater flows from the rivers and
tributaries contribute to salinity balances which are vital to bay plants, fish, and animals.39'




383 Other listed waterbodies include Rainbow River (Blue Run), Banana Lake, Crystal
River/Kings Bay, Lake Panasoffkee, Lake Tarpon, and Lake Thonotasassa.

34 TAMPA BAY SWIM PLAN, 10, Southwest Florida Water Management District (1988)

385 Id.

386 Id. at 5.

387 Id.

388 Id. at 6.

389 Id. at 22.

390 Id.

391 Id. at 27.










Residential development along the rivers and tributaries is a major threat to the habitat of
estuarine species.392 As residential development along the rivers and tributaries increases, the
freshwater flows into the bay carry increased pollutants caused by the development. Existing
habitats are lost by dredging and filling required to development the property.93 Moreover,
the damming of freshwater flows in order to meet consumptive use needs of the communities
creates imbalances in salinity regimes and changes in natural water levels which are necessary for
the development of many estuarine species.39
As presented in the district's Tampa Bay SWIM plan, there are three major goals for the
bay:
(1) to reverse the environmental degradation of the Tampa Bay estuarine system,

(2) to optimize water quality and other habitat values, thereby promoting the sustained
existence or re-establishment of thriving, integrated biological communities, and

(3) to insure the maintenance ad infinitum of a productive, balanced ecosystem
complementary with human needs and uses of the resource.395

Eighteen priority programs have been targeted to address these goals. One of the
programs is the protection and restoration of freshwater flows.396 The program aims at
characterization of existing flows and protection of natural inflows, and suggests establishment of
criteria for optimum flows, based on instream and estuarine effects.397
A list of priority projects were developed to meet the aims of the priority programs.
Among the priority projects is one for the development of a predictive model of ecosystem
functions and responses to changes within the estuary.398 Such a project provides no immediate


392 Id.

393 Id.

394 Id.

395 Id. at 45.

396 Id. at 64.

397 Id. at 55.

398 Id. at 84.









protection of natural inflows essential to the growth and propagation of estuarine species, but may
provide a foundation for setting minimum flows that will be adequate to protect the ecosystem in
the future. Other priority projects will focus on restoration of habitat,399 reduction of
agricultural contaminants in stormwater runoff,4" and the development of model ordinances to
promote establishment of a productive ecosystem.401
As a complement to the modeling project, several short-term research projects will be
conducted to address questions related to species of plants, fish, and animals indigenous to the
bay's ecosystem.402 The studies will look at the specific needs of certain species as well as the
success of restoration projects, and will analyze the distribution of wildlife and use of habitat
throughout the study area. The Tampa Bay SWIM plan which was published in 1988 is currently
being revised as required by the Act,403 and will be submitted for adoption in December 1991.
It is anticipated that the revised plan will be substantially similar to the original 1988 plan, but
will provide a progress report on each of the priority projects.
B. South Florida Water Management District
The district has prepared SWIM plans for three important estuaries: the Indian River
Lagoon, Biscayne Bay, and that section of the Everglades plan which includes Florida Bay. The
Indian River Lagoon SWIM plan was developed in cooperation with the St. Johns River Water
Management District, which shares jurisdiction over the lagoon with the South Florida district.
The plan is addressed below under the discussion of SWIM plans prepared by the St. Johns River
district.
An extensive system of barrier islands and bays lines coastal Dade County, including
Biscayne Bay. Originally, freshwater entered these bays as groundwater seepage, sheetflow
across adjacent marshlands, and from a series of small rivers that cut through the coastal ridge,
draining the Everglades. There have been drastic alterations in the quantities, distribution and


399 Id. at 75.

400 Id. at 77.

401 Id. at 80.

402 Id. at 83.

403 FLA. ADMIN. CODE Rule 17-43.035(5) (May 1990).

80










timing of inflows to the estuaries, with most freshwater inflow concentrated at the mouths of
canals, containing nutrients and other contaminants from urban and agricultural drainage. Pulses
of stormwater drainage seriously stress aquatic communities during wet periods.
The area covered by the Biscavne Bay SWIM plan extends south from Dumfoundling
Bay to the A1A causeway across Barnes Sound. The area includes the intracoastal waterway
north to the Broward County line and is bounded on the west by the L-30, L-31 and C-111
canal/levee systems.44 Freshwater enters the bay through canals, rivers, tributaries and
groundwater seepage.405
The plan is organized around three groups of issues: those affecting the entire bay, those
related to specific areas of the bay, and those specified in the SWIM legislation and DER rule on
SWIM plans.406 Freshwater flows407 and habitat resources408 are recognized as bay-wide
concerns. Salinity balance related to the alteration of freshwater flows is also recognized as a
specific problem in the South Bay,4" Card Sound and Barnes Sound410 segments of the study
area.
Before the construction of a series of drainage canals in 1932, freshwater entered the bay
through sheets of upland runoff and groundwater seepage.411 Since the installation of the
canals, freshwater is collected and channeled out to the Bay when water levels in the canals reach
certain stages.412 The use of canals as a water management tool has resulted in an alteration of


404 SURFACE WATER IMPROVEMENT AND MANAGEMENT (SWIM) PLAN FOR BISCAYNE BAY,
4, South Florida Water Management District (1989).
405 Id. at 8.

406 Id. at 40.

407 Id. at 44.

408 Id. at 45.

409 Id. at 61.

410 Id. at 62.

411 Id. at 44.

412 Id. at 45.









natural hydroperiods in coastal areas. The canal discharge releases freshwater at varying
intervals which often do not coincide with the natural hydroperiods. Further, the channelized
releases dump large volumes of freshwater in localized areas, causing tremendous reduction in
salinity levels at the discharge points. Conversely, salinity levels rise where sheet flow is
collected before it reaches the bay and is diverted into drainage canals.
The alteration of quantity and timing of freshwater inflow has had serious impacts on the
estuarine communities that require regular seasonal low-salinity levels for growth and
development. Though the inflow transports nutrients and detritus from adjacent marshes and
uplands into the bay, the rapid reduction in salinity during periods of discharge from the canals
destroys marine communities. Yet the reduction is not sustained a sufficient amount of time for
estuarine communities to be established based on those salinity levels.413 The alteration also
impacts marshlands and mangroves which provide valuable habitat for invertebrates, juvenile
fishes, birds and animals. The mangroves act as a filter for upland runoff and provide nutrients
as freshwater flows flush detritus from the mangroves into the bay. The channeling of freshwater
flows into canals reduces the effectiveness of the mangroves as natural filters and causes loss of
habitat.414 Marshlands along the shore of the Bay provide habitat for freshwater species. As
natural freshwater flows have been diverted through the canals, salt water has intruded farther
into shorelines allowing saline vegetation to replace freshwater plants.415
Specific problems identified in the South Bay section of the study area include the
interruption of sheet flow to the wetland fringe as well as the impacts from the periodic releases
of freshwater from the canals.416 The primary problem in the Card Sound and Barnes Sound
area is the occurrence of hypersaline conditions due to reduced circulation and flushing caused by
diverted sheet flow. These areas serve as a nursery habitat for many estuarine species.




413 Id. at 46.

414 Id. at 50.

415 Id. at 51.

416 The South Bay section of the study area extends from Rickenbacker Causeway south to
Arsenicker Key. Id. at 61.










Moreover, Card Sound and Barnes Sound are critical habitats for a number of Florida's
threatened and endangered species.417
The plan recommends management of canal flows and structural changes to the canal
system to allow freshwater and sheet flows to occur which more closely approximate the natural
hydroperiod.418 Specific projects recommended to effect this goal include:
(1) Analysis of impacts of freshwater discharges from canals and mitigation of
adverse impacts.

(2) Evaluation of methods to restore sheet flow to South Bay, Card Sound, and
Barnes Sound areas.419

(3) Redistribution of canal discharges into adjacent marshlands in South Bay to
improve flushing and restore natural salinity gradients in the coastal marshes.420


(4) Development and implementation of methods to restore wetland and upland
habitats which may include restoring water flow through previously drained
areas.421

(5) Inclusion of Barnes Sound in the existing Biscayne Bay/Card Sound Aquatic
Preserve Area.422

The plan categorizes its priority efforts as: medium, high and very high. Ranked third on
the Very High Priority list is the "protection of existing resources of South Bay, especially
Biscayne National Park, Card Sound, Barnes Sound, including restoration of marshlands and
development of a management plan for Card Sound and Barnes Sound."423 Other Very High
Priority efforts are retrofitting of stormwater systems, continuation and expansion of monitoring


417 Id. at 63.

418 Id. at 47.

419 Id. at 89.

420 Id. at 47.

421 Id. at 91.

422 Id. at 93.

423 Id. at 104.









programs, and development of a computerized land use database. The priority list does not
indicate how these priorities correspond with proposed budgeted projects. For example, the
management of canal discharges to improve the estuary on a baywide basis is not designated as a
priority, yet canal discharge redistribution does appear as a proposed budgeted project.424
The proposed budget, which indicates the anticipated funding for specific projects, is not
consistent with the emphasis placed on the protection and restoration of resources of South Bay,
Card Sound, and Barnes Sound. No funding was proposed in the first two years for bay
management programs except for a Miami River Committee project which is designated a
medium priority effort.425 Specific projects related to planning for bay preservation/restoration
and management of Card Sound and Barnes Sound are among the least funded of all priority
projects. The specific program to improve circulation and flushing was proposed to receive
funding after the first year, but the total amount of the funding is less than half of the amount
budgeted for other very high priority efforts.426
Florida Bay is a triangular, tropical lagoon/bay which occupies a shallow, rocky trough
between the relic, exposed barrier reefs of the Florida Keys and a series of mangrove-lined bays
and sounds at the southern end of the Florida peninsula.427 Florida Bay is functionally a part of
the Everglades system, and is addressed in the Everglades SWIM plan.428 The eastern coastal
edge of the planning area is the border between Barnes Sound (including Manatee Bay) and Card
Sound. The western coastal edge lies just south of the 10,000 Islands area on Florida's lower
Gulf Coast. Western portions of Florida Bay, particularly, are of vital importance to the survival
of many fishery species, including snook, tarpon, redfish, pink shrimp, spotted seatrout and spiny





424 Id.

425 Id.

426 Id.

427 SURFACE WATER IMPROVEMENT AND MANAGEMENT PLAN FOR THE EVERGLADES, VOL.
III, (FINAL DRAFT), 111-346, South Florida Water Management District (September 28, 1990).
428 SURFACE WATER IMPROVEMENT AND MANAGEMENT PLAN FOR THE EVERGLADES, VOL.
I, (FINAL DRAFT), 1-5, 11, South Florida Water Management District (September 28, 1990).










lobster.429 The Everglades SWIM plan covers a broad area of the state, as well as a large
number of complex issues. The following discussion does not address all issues related to
Florida Bay, but attempts to summarize the primary concerns and projects related to freshwater
inflow.
The Everglades ecosystem originally covered approximately 4,000 square miles from
Lake Okeechobee to the Gulf of Mexico. The area between Lake Okeechobee and Florida Bay
included pond apple swamp, sawgrass swamp, wet prairies, sloughs, tree islands, emergent
marshes, pine-forested uplands, hardwood hammocks and cypress swamps.430 Water would
generally flow southward in a continuous sheet from Lake Okeechobee, ultimately discharging
into brackish estuaries which lay between the freshwater Everglades and the higher salinity
waters of Florida Bay and the Gulf of Mexico.431
In the late nineteenth and early twentieth century private and public interests constructed
canals designed to drain the Everglades, by moving water out of inland marshes, past coastal
communities, to tidal waters.432 During dry periods, the canals overdrained interior wetlands,
causing extensive fires and coastal saltwater intrusion. The Central and Southern Florida Project
for Flood Control and Other Purposes (C&SF Project) was constructed in the mid-twentieth
century to improve flood control and water supply, correct hydrologic deficiencies, protect
remaining wetlands and reduce saltwater intrusion.433 Additions to the project have resulted in



429 SURFACE WATER IMPROVEMENT AND MANAGEMENT PLAN FOR THE EVERGLADES,
VOLS. II, III, (FINAL DRAFT), 11-65, 1-369, 370, 371, South Florida Water Management
District (September 28, 1990). There appears to be a strong positive relationship between
quarterly landings of pink shrimp on the Tortugas fishing grounds and an index of freshwater
levels discharged to Florida Bay during the previous quarter. Browder, J., Relationship Between
Pink Shrimp Production on the Tortugas Grounds and Water Flow Patterns in the Florida
Everglades, 37 BULL. MAR. SCL. 839-856 (1985).
430 SURFACE WATER IMPROVEMENT AND MANAGEMENT PLAN FOR THE EVERGLADES, VOL.
I, (FINAL DRAFT), 1-7, South Florida Water Management District (September 28, 1990).

431 Id. at 1-5, 11.

432 SURFACE WATER IMPROVEMENT AND MANAGEMENT PLAN FOR THE EVERGLADES,
VOL.II, (FINAL DRAFT), 11-48, South Florida Water Management District (September 28, 1990).
433 Id.


1









a complex, highly managed, artificial system of canals, impoundments, levees, pumps and water
control structures.434 The plan notes that operation of the C&SF Project to meet flood control
and water supply needs has altered the timing, quantity and distribution of freshwater flows into
the Water Conservation Areas (WCAs), Everglades National Park (ENP), and Florida Bay."3
Within Florida Bay, the most important environmental parameters are the quantity,
quality, distribution and timing of freshwater runoff from the Florida mainland.436 Generally,
changes in coastal estuaries, including Florida Bay, are due in part to overall reductions in
quantities of freshwater flow through the Everglades, effects of constructing levees and canals
near the coast to provide drainage and flood protection (WCAs), and the problems with lower
groundwater levels along the southeast coast. The primary freshwater source for Florida Bay is
Taylor Slough, which receives its freshwater from local rainfall; overland sheet flow originating
from the Shark River overflow and Tamiami Canal between levees 30 and 67A; and pump station
S-332.437 Since 1960, construction of the C-11l canal and increased development in the upland
retention areas affecting Taylor Slough, such as the "Frog Pond," have slowly lowered
freshwater discharges from the system.438 The alteration of freshwater inflow from Shark
River Slough to the ENP and Florida Bay is also implicated in the decline of fisheries in the
Bay.439
The Everglades SWIM plan identifies central Florida Bay as one of several critical areas
having known or potential water quality/quantity problems. In recent years, Manatee Bay, Barnes
Sound, Card Sound and the central portions of Florida Bay have experienced hypersaline




434 Id. '

435 SURFACE WATER IMPROVEMENT AND MANAGEMENT PLAN FOR THE EVERGLADES, VOL.
I, (FINAL DRAFT), I-11, South Florida Water Management District (September 28, 1990).
436 SURFACE WATER IMPROVEMENT AND MANAGEMENT PLAN FOR THE EVERGLADES, VOL.
III, (FINAL DRAFT), III-344, South Florida Water Management District (September 28, 1990).

437 Id. at III-339.

438 Id.

439 Id. at 111-378.









conditions resulting from reduced freshwater flow.44 Seagrass and fish die-offs have been
reported in Florida Bay as a result.44 The plan includes four principal management areas,
including the Water Conservation Areas (WCAs), Everglades National Park (ENP), the C-11l
Basin, and Florida Bay.442 Overall goals for the Florida Bay area are to protectet and improve
natural surface water quality, quantity, distribution and timing of flows through ENP, C-111 and
Florida Keys in order to maintain the ecosystem integrity and habitat diversity of Florida
Bay."443
Three of the plan's seven sets of priority issues for the Everglades system have
importance for the inflow needs of Florida Bay. These include: (1) water quantity, distribution
and timing, (2) environmental resource management, and (3) water supply.444 The following
discussion addresses each of these priority issues. Regional management issues related to water
quantity, distribution and timing recognize that the C&SF Project has altered necessary inflows to
Florida Bay.445 Under this category, specific issues with effects on Florida Bay include
reduction of inflows, reduced variation of water levels, impacts of construction of canals, levees,
and impoundments, regulation schedules and Everglades water resources, minimum deliveries,
rainfall plans and baseflow requirements.446 Florida Bay is also discussed under hydroperiod
management issues. While water delivery plans based on rainfall patterns are effective in
modifying wet season distribution of water supply, it is not known if such plans will provide


440 SURFACE WATER IMPROVEMENT AND MANAGEMENT PLAN FOR THE EVERGLADES, VOL.
II, (FINAL DRAFT) 11-50, South Florida Water Management District (September 28, 1990).

441 SURFACE WATER IMPROVEMENT AND MANAGEMENT PLAN FOR THE EVERGLADES, VOL.
III, (FINAL DRAFT), 111-350, 356, South Florida Water Management District (September 28,
1990).
442 SURFACE WATER IMPROVEMENT AND MANAGEMENT PLAN FOR THE EVERGLADES, VOL.
I, (FINAL DRAFT), I-11, South Florida Water Management District (September 28, 1990).

443 Id.

444 SURFACE WATER IMPROVEMENT AND MANAGEMENT PLAN FOR THE EVERGLADES, VOL.
II, (FINAL DRAFT), 11-47, 63, South Florida Water Management District (September 28, 1990).

445 Id. at 11-48.
446 Id. at 11-48, 49, 50.









adequate baseflow conditions to meet requirements of Florida Bay, Whitewater Bay and other
estuaries."4
Management options for water quantity, distribution and timing discuss the lack of
information related to the water needs of the Everglades system. As a result, urban and
agricultural areas generally have first priority for water management during flood or drought
conditions.44 The plan states that it "should eventually address the need for policies or
strategies to allow for 'shared adversity' between human and natural needs when there is
insufficient or surplus water.""' Primary management options for restoring appropriate
hydroperiod conditions are to implement structural changes or modifications to the WCA
regulation schedules to provide for reflooding of overdrained wetlands, restore sheet flow and
provide appropriate seasonal water level fluctuations to protect the integrity of tree islands and
wetland systems.450
Regional management options for this issue include modifications of water management
practices to maximize historical sheet flow characteristics within the WCA marshes where
practical, instead of moving water rapidly through the system via canals. The intent would be to
restore historical flow patterns, connections and circulation between upland marshes and
downstream estuaries, "including restoration of natural flow conditions into ENP and Florida Bay
through historic channels such as Taylor Slough and Shark River Slough."451 Concern is also
expressed that the C-111 Basin, which empties into Barnes Sound,-is overdrained. In addition to
options aimed at establishing minimum dry season water levels, the district, in conjunction with
the U.S. Fish and Wildlife Service, has proposed to restore sheet flow of freshwater through
marshes west of Highway U.S. 1 into Florida Bay, as part of the C-111 Basin interim plan.45



447 Id. at 11-51.

448 Id. at 11-51, 52.

449 Id. at II-52 (emphasis added).
450 Id. at 11-52.

451 Id.

452 Id. at 11-53.










The plan identifies goals, objectives and strategies for addressing the issues in each
management area. As mentioned above, the overall management goal for Florida Bay is to
protectet and improve natural surface water quality, quantity, distribution and timing of flows
through ENP, C-111 and Florida Keys in order to maintain the ecosystem integrity and habitat
diversity of Florida Bay."453 The regional goal, under the category of water quantity,
distribution and timing, is to protect and restore natural functions of the system by constructing,
modifying and operating water management facilities in a manner that will simulate natural
hydrologic conditions to meet the needs of native ecosystems, including estuaries.454
Objectives for water quantity, distribution and timing include: improve timing and distribution of
flow; avoid unnatural hydroperiods, salinity fluctuations or discharges; restore sheet flow; protect
adjacent wetlands, monitor and document hydroperiod impacts; and define historic and present
flows.455 Under these categories of objectives, there is a network of strategies that may have
potential impacts on inflows to Florida Bay, and several are specific to the needs of the Bay.
The first of these is to have the district, DNR, ENP and the Corps of Engineers (COE) work
together to define the appropriate freshwater/salinity balance required to maintain optimal
productivity and diversity of Barnes Sound and its estuaries, and to evaluate district operations
and management methods to provide appropriate minimum, maximum and spatially-distributed
patterns of water delivery.456 Similarly, a second strategy is to have the district, DNR, and
COE assess and develop operations and management methods to provide optimal water deliveries
and maintain appropriate salinity balances and ranges to protect the productivity and diversity of
Florida Bay.457
A third strategy is to have the district and COE consider operational and structural
changes to facilities in order to restore more natural sheet flow into ENP and Northeast Shark




453 Id. at 11-86.

454 Id. at 11-87.

455 Id.

456 Id. at 11-88.

457 Id.









River Slough, thus providing more flow to Taylor Slough.458 A fourth is to have the district,
National Park Service (NPS), DNR and Florida Game and Fresh Water Fish Commission
(FGFWFC) develop and implement biological studies and monitoring programs to document
responses of plant and animal communities to changes implemented in the physical delivery
system.459 The fifth strategy is to define Florida Bay hydrology, by developing and
implementing data collection programs for parameters such as freshwater inflow, temperature,
salinity, bathymetry, hydrodynamic relationships, water quality and impacts of district
facilities.4" Related to this is a sixth strategy, which is to have the district and NPS initiate a
cooperative effort by 1996, for data collection and analysis to develop hydrologic and
hydrodynamic models for the ENP/C-111/Florida Bay system. The intent would be to define the
hydrologic needs of the southeastern panhandle of ENP and Manatee Bay, and determine the
hydrologic interactions of the western C-ill basin, Barnes Sound and the ENP panhandle.46
Initial plan elements addressing water quantity, timing and distribution include three new
programs for the C-111 basin: (1) spoil removal to improve sheet flow from the canal into the
marshes of the Everglades panhandle and into Florida Bay; (2) the Taylor Slough rainfall project
to assess the relationship between rainfall and pre-development runoff to Taylor Slough, in order
to determine appropriate water supply to Taylor Slough from the C-111 basin; and (3) begin
planning, design, and evaluation necessary to modify the C-111E canal and divert additional
waters to lands already purchased under the Save Our Rivers (SOR) program. This would be a
demonstration test for a comprehensive program to divert stormwater from C-111 and reduce
direct discharges to Manatee Bay and Barnes Sound.462 This set of projects was scheduled for
funding during fiscal years 1992-94, with an assumption that the district would be responsible for
20% of the total. Recent changes in the SWIM project funding formula may result in less




458 Id. at 11-89.

459 Id.

460 Id. at 11-90.

461 Id.

462 Id. at 11-115.









support for these projects, if available district funds are reallocated to cover what may be
considered more important projects.
The second set of priority issues with implications for inflows to Florida Bay concerns
environmental resource management. Environmental resource management issues include
hydroperiod concerns, which recognize that changes in hydrology have impacted the natural
growth and reproductive cycles of Everglades vegetation, fish and wildlife. The plan states that
the impacts of water management activities in upper parts of the Everglades system on the
extreme downstream reaches of Florida Bay are not presently known, and that changes in
hydrology and the volume of freshwater inflows through ENP "have the potential" to affect
critical salinity balances for estuarine organisms in Florida Bay.463 The primary management
option for this category of issues is to improve hydroperiod conditions and restore water quality,
with regional options including structural or operational changes to restore overdrained or
degraded wetland communities. One concern is how to achieve optimal habitat for one species
without damaging or eliminating habitat for another.464
Environmental resource management goals and objectives include managing the WCAs to
provide "adequate quantity and quality of water to maintain environmental values of downstream
systems including ENP and coastal estuaries, to the extent these goals are compatible."465 The
objective most applicable to fisheries is to "maintain the spatial complexity, diversity and
productivity of Everglades plant and animal communities."466 Under this objective the most
applicable strategy for saltwater fisheries is to restore, maintain or enhance healthy native sport
fisheries and other animal populations in the Everglades. The district would pursue this by
cooperating with the DNR and Marine Fisheries Commission, to develop and implement a
saltwater fisheries resource management plan which would identify research and management
needs. Research would be aimed at developing a detailed understanding of saltwater fisheries,




463 Id. at 11-63, 64.

464 Id. at 11-67.

465 Id. at 11-96.

466 Id.




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