Title: Minimum Flows and Levels; Establishment and Implementation
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Permanent Link: http://ufdc.ufl.edu/WL00004703/00001
 Material Information
Title: Minimum Flows and Levels; Establishment and Implementation
Physical Description: Book
Language: English
Publisher: Florida Chamber of Commerce
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Minimum Flows and Levels; Establishment and Implementation
General Note: Box 28, Folder 8 ( Water, Water Everywhere, But... - July 15, 16. 1997 ), Item 2
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004703
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text









Section 5. Section 373.042, Florida Statutes, 1996
Supplement, is amended to read:

373.042 Minimum flows and levels.--

(1) Within each section, or the water management district
as a whole, the department or the governing board shall establish

the following:

(a) Minimum flow for all surface watercourses in the area.
The minimum flow for a given watercourse shall be the limit at
which further withdrawals wold be significantly harmful to the

water resources or ecology of the area.


The minimum flow and minimum water level shall be calculated by

the department and the governing board using the best information

available. When appropriate, minimum flows and levels may be

calculated to reflect seasonal variations. The department and

the governing board shall also consider, and at their discretion

may provide for, the protection of consumptive uses in the

establishment of minimum flows and levels.

(2) By July 1, 1996, the Southwest Florida Water Management

District shall amend and submit to the department for review and

approval its priority list for the establishment of minimum flows

and levels and delineating the order in which the governing board

shall establish the minimum flows and levels for surface

watercourses, aquifers, and surface water in the counties of

Hillsborough, Pasco, and Pinellas. By November 15. 1997. and
annually thereafter, each water management district shall submit

to the department for review and approval a priority list and

schedule for the establishment of minimum flows and levels for

surface watercourses, aquifers, and surface waters within the









district. The priority list shall also identify those water
bodies for which the district will voluntarily undertake
independent scientific peer review. By January 1. 1998. and

annually thereafter, each water management district shall publish

its approved priority list and schedule in the Florida

Administrative Weekly. The priority list shall be based upon the

importance of the waters to the state or region and the existence

of or potential for significant harm to the water resources or
ecology of the state or region, and shall include those waters

which are experiencing or may reasonably be expected to

experience pricing adverse impacts and those waters which

are identified as possible new water supply sources proposing to
withdraw 5 million gallons or more per day in the future. The

development of The priority list and schedule shall not be
subject to any constitute a point of entry to an administrative

proceeding pursuant to chapter 120. Except as provided in
subsection (3). the development of a priority list and compliance

with the schedule for the establishment of minimum flows and

levels pursuant to this subsection shall satisfy the requirements

of subsection (1).

(3) Minimum flows or levels for priority waters in the
Counties of Hillsborough. Pasco. and Pinnellas subosetion (2)

shall be established by October 1, 1997. Where a minimum flow or

level for the priority waters within those counties has not been

established by the applicable deadline, the secretary of the

department shall, if requested by the governing body of any local
government within whose jurisdiction the affected waters are
located establish the minimum flow or level flows and Wlevel in
accordance with the procedures established by this section. The










department's reasonable costs in establishing a minimum flow or

level shall, upon request of the secretary, be reimbursed by the

appleicable district.

(4)(a) Upon written request to the department or governing

board by a substantially affected person, or by decision of the

department or governing board, prior to the establishment of a

minimum flow or level and prior to the filing of any petition for

administrative hearing related to the minimum flow or level, all

scientific or technical data. methodologies, and models.

including all scientific and technical assumptions employed in

each model. used to establish a minimum flow or level shall be

subject to independent scientific peer review. Independent

scientific peer review means review by a panel of independent.

recognized experts in the fields of hydrology, hydrogeology.

limnology. biology, and other scientific disciplines, to the

extent relevant to the establishment of the minimum flow or

level.

(b) If independent scientific peer review is requested, it

shall be initiated at an appropriate point agreed upon by the

department or governing board and the person or persons

requesting the peer review. If no agreement is reached, the

department or governing board shall determine the appropriate

point at which to initiate peer review, the members of the peer

review panel shall be selected within 60 days of the point of

initiation by agreement of the department or governing board and

the person or person requesting the peer review. If the panel is

not selected within the 60-day period, the time limitation may be

waived upon the agreement of all parties. If no waiver occurs.

the department or governing board may proceed to select the peer










review panel. The cost of the peer review shall be borne equally

by the district and each party requesting the peer review. to the

extent economically feasible. The panel shall submit a final

report to the governing board within 120 days after its selection

unless the deadline is waived by agreement of all parties.

Initiation of peer review pursuant to this paragraph shall toll

any applicable deadline under chapter 120 or other law or

district rule regarding permitting, rulemaking. or administrative

hearings, until 60 days following submittal of the final report.

Any such deadlines shall also be tolled for 60 days following

withdrawal of the request or following agreement of the parties

that peer review will no longer be pursued. The department or

the governing board shall give significant weight to the final

report of the peer review panel when establishing the minimum

flow or level.
(c) If the final data. methodologies, and models including

all scientific and technical assumptions employed in each model

upon which a minimum flow or level is based, have undergone peer

review pursuant to this subsection, by request or by decision of

the department or governing board, no further peer review shall

be required with respect to that minimum flow or level.
(d) No minimum flow or level adopted by rule or formally

noticed for adoption on or before May 2. 1997. shall be subject

to the peer review provided for in this subsection. Prior to the

establishment of minimum flews or levels for water r.. .our.

area identified in sub tion (2), and prior to filing any

petition for admini4trativo haring,- iontific or technical deata

and methodologies, if in dispute, shall, upon written requeot to
the governing board by a substantially affected person, bo











subject to independent scientific peer review. The membrnors of
the peer review panel shall be selected by agreement of the
parties in interest within GCO days after receipt of the requscat.
In the event the panel is not selected within this time, then,

upon the agreement of all parties, the time may be waived, or, if-
no wairvr occurs, the governing board may proceed to establish
the minimum flows and levels. The coat of the peer review shall
be borne equally by the particas selecting the panel, to the
extent economically feasible. The panel shall conduct at least

one public meeting of the full panel in accord ane with C.
208.01l(1) and () prior to the submission of the final report.
The panel shall submit a final report to the governing board
within 120 days after selection. Upon request by all members of

the panel and agreement of the parties, the time for submittal
may be extended for up to 30 additional days. In the ovent the

final report is not submitted within such time, the governing
board may proceed to establish the minimum flows and levels
pursuant to this socetion. Filing of a requscat shall toll any
applicable deadline under chapter 120, or other law or district
rule, until CO days following submittal of the final report. Any
such deadlineos shall also be tolled for CO days following the
withdrawal of the requcost, agreement of the parties that peer
review will not longer be pursued, or failure to moeet any
deadline sct forth in this subsection. If the socoction of the
panel is subject to the requirements of chapter 207, then the
panel shall submit its final report to the governing board within
120 days after the completion of the process required pursuant to
chapter 207. The governing board shall give significant weight
to the final report of the panel in establishing the minimum flow









or level, as appropriate. The final report may ael be entered

into the record by any party to the proceeding in which the

minimum flew or level is applicable.

(5) If a petition for administrative hearing is filed under
chapter 120 challenging the establishment of a the minimum flow

or level flews er levels, the report of an the independent

scientific peer review conducted under subsection (4) is

admissible as evidence in the final hearing, and the
administrative law judge hearing effier must render the order

within 120 days after the filing of the petition. The time limit

for rendering the af order shall not be extended except by

agreement of all the parties. To the extent that the parties

agree to the findings of the peer review, they may stipulate that

those findings be incorporated as findings of fact in the final

order.

Section 6. Section 373.0421, Florida Statutes, is created
to read:

373.0421 Establishment and implementation of minimum flows

and levels.--

(1) ESTABLISHMENT.--

(a) When establishing minimum flows and levels pursuant to
s. 373.042. the department or governing board shall consider
changes and structural alterations to watersheds, surface waters.

and aquifers and the effects such changes or alterations have

had, and the constraints such changes or alterations have placed.

on the hydrology of an affected watershed, surface water, or

aquifer, provided that nothing in this paragraph shall allow

significant harm as provided by s. 373.042(1) caused by

withdrawals.










(b) Exclusions.--

1. The Legislature recognizes that certain water bodies no

longer serve their historical hydrologic functions. The

Legislature also recognizes that recovery of these water bodies

to historical hydrologic conditions may not be economically or

technically feasible, and that such recovery effort could cause

adverse environmental or hydrologic impacts. Accordingly. the

department or governing board may determine that setting a

minimum flow or level for such a water body based on its

historical condition is not appropriate.

2. The department or the governing board is not required

to establish minimum flows or levels pursuant to s. 373.042 for

surface water bodies less than 25 acres in area. unless the water

body or bodies, individually or cumulatively, have significant

economic, environmental, or hydrologic value.

3. The department or the governing board shall not set

minimum flows or levels pursuant to s. 373.042 for surface water

bodies constructed prior to the requirement for a permit, or

pursuant to an exemption, a permit, or a reclamation plan which

regulates the size. depth. or function of the surface water body

under the provisions of chapter 373. chapter 378. or chapter 403.

unless the constructed surface water body is of significant

hydrologic value or is an essential element of the water

resources of the area.


The exclusions of this paragraph shall not apply to the

Everglades Protection Area. as defined in s. 373.4592(2) (h).
(2) If the existing flow or level in a water body is below.

or is projected to fall within 20 years below, the applicable










minimum flow or level established pursuant to s. 373.042. the
department or governing board, as part of the regional water
supply plan described in s. 373.0361. shall expeditiously
implement a recovery or prevention strategy, which includes the

development of additional water supplies and other actions.
consistent with the authority granted by this chapter, to:
(a) Achieve recovery to the established minimum flow or
level as soon as practicable: or
(b) Prevent the existing flow or level from falling below
the established minimum flow or level.


The recovery or prevention strategy shall include phasing or a
timetable which will allow for the provision of sufficient water
supplies for all existing and projected reasonable-beneficial
uses. including development of additional water supplies and
implementation of conservation and other efficiency measures
concurrent with to the extent practical. and to offset.
reductions in permitted withdrawals. consistent with the
provisions of this chapter.
(3) The provisions of this section are supplemental to any
other specific requirements or authority provided by law.
Minimum flows and levels shall be reevaluated periodically and
revised as needed.













Florida Water Management Districts
Minimum Flow & Level Sites


Alandk OceOs


GucOfMexico


I










Draft June 19, 1997


Statewide Compilation
Minimum Flows and Levels Priority Lists
(Compiled From WMD Lists Submitted in November, 1996)


WMD Name of Waterbody Waterbody County Date to be
Type Established
NWFWMD
Apalachicola River/ River/Estuary Six Counties 1998
Bay

SRWMD
Surface
Watercourses
Lower Suwannee River Dixie, Levy, Gilcrist, 2000
Lafayette

SJRWMD
Surface Waters 1999
160 Lakes that need Lake Lakes in Priority 17 Lakes
MFL's (out of 1300 in Water Resource Each Fiscal
WMD) Based on Caution Areas and/or Year (50
projected impacts Identified in Settlement Lakes With-
from groundwater Agreement. in 3 Years).
withdrawals.
Surface
Watercourses
Taylor Creek Brevard 1997

Lake Washington Brevard 1998

Lake Griffin Lake 1999
St. Johns River Brevard/Volusia 1999

Orange Creek Basin Marion 1999
Groundwaters -- (Upper Floridan)
Blue Spring Volusia 1997
Two of the (to be determined) 1997?
following:
Clifton Spring Seminole ?


r









WMD Name of Waterbody Waterbody County Date to be
Type Established

Green Spring Volusia ?
Gemini Spring Volusia ?

Gourdneck Spring Lake ?

SFWMD
Surface Waters
Caloosahatchee Estuary Lee 1999
Estuary

St. Lucie Estuary Estuary St. Lucie 2000

Biscayne Bay Estuary Dade 2004

Lake Kissimmee Lake Osceola 2004

Lake Tohopekaliga Lake Osceola 2006
East Lake Lake Osceola 2006
Tohopekaliga
Alligator Lake Lake Osceola 2006
Lake Jackson Lake Osceola 2006
Cypress Lake Lake Osceola 2006
Lake Hatchineha Lake Osceola 2006
Lake Marian Lake Osceola 2006
Fish Lake Lake Osceola 2006
Lake Pierce Lake Polk 2006

Lake Rosalie Lake Polk 2006
Surface
Watercourses
Okeechobee Multiple (5 counties) 1996

Everglades Nat. Park Dade/Monroe 1996

Water Conservation Palm Beach., Broward, 1996
Areas Dade

Big Cypress Nature Collier 1999
Preserve










WMD Name of Waterbody Waterbody County Date to be
Type Established

Loxahatchee River Palm Beach 2000

Kissimmee River (5 Counties) 2004

Groundwaters
Biscayne Aquifer Aquifer (Lower Easrt Coast) 1997

Surficial Aquifer Aquifer (Lower West Coast) 1997

Floridan Aquifer Aquifer (Upper East Coast) 2000

Floridan Aquifer Aquifer (Kissimmee Basin) 2004

SWFWMD
Surface Waters
(Priority
Northern Tampa
Bay Lakes)
Barbara Lake Hillsborough 1997
Cypress Lake Hilsborough 1997
Dosson Lake Hillsborough 1997
Ellen Lake Hillsborough 1997
Helen Lake Hilsborough 1997
Little Moon Lake Hillsborough 1997
Sapphire Lake Hilsborough 1997
Big Fish Lake Hilsborough 1997
Sunshine
Priority Northern
Tampa Bay
Lakes


Eva
Estes
Fuller
Gibson
Glass
Grace
Little Deer
Little Halfnoon
Little Hobbs
Marlee


Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake


iillsborough
Hillsborough
Hillsborough
Hillsborough
Hilisborough
Hillsborough
Hilisborough
Hillsborough
HEllsborough
Hillsborough


1999
1999
1999
1999
1999
1999
1999
1999
1999
1999









WMD Name of Waterbody Waterbody County Date to be
Type Established


Merry
Morley
Myrtle
Rebel
Round
Thorpe
Unnamed 35-27-18
Unnamed 2-27-18
Wastena
Williams
Wood
Zambito


Priority Pasco
County Lakes


Green
Blanton
Boiler
Dowling
Ferguson
Sumner


Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake


Lake
Lake
Lake
Lake
Lake
Lake


Hillsborough
Hillsborough
Hilisborough
Hillsborough
Hillsborough
Hillsborough
Hillsborough
Hillsborough
HMlsborough
Hillsborough
Hillsborough
Hlllsborouih


Pasco
Pasco
Pasco
Pasco
Pasco
Pasco


Lake Rousseau Lake Citrus 1999

(List "A") Century Lake Herando 2001
Double Cypress Lake Herando 2001
Highland Lake Hernando 2001
Hog Pond Lake Hemando 2001
Hunters Lake Herando 2001
Tooke Lake Hernando 2001
Voss Lake Hernando 2001
Weeki Wachee Prairie Lake Hernando 2001

Brush Lake Polk 2001
Crews Lake Polk 2001
Davenport Lake Polk 2001
Dinner Lake Polk 2001
Edward Lake Polk 2001
Flora Lake Polk 2001
Gadau Lake Polk 2001
Galloway Lake Polk 2001
Gordon Lake Polk 2001


1999
1999
1999
1999
1999
1999
1999
1999
1999
1999
1999
1999


1999
1999
1999
1999
1999
1999


,,









WMD Name of Waterbody


Ina
Lester
Lizzie
Long
Lucerne
Mud
Myron
Pembroke
Perch
Rattlesnake
Saddle Blanket


Seward
St. Ann Shrine
Star


Sturges
Tillman


Twin
Unnamed # 4
Unnamed # 10
Unnamed # 11
Unnamed # 12
Unnamed # 13
Unnamed # 14
Unnamed # 15
Unnamed # 18
Unnamed # 20
Unnamed (M)


County


Waterbody
Type
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake


(List "B") Bonnet Pond Lake Hernando 2006
Irvin Lake Herando 2006
Townsen Lake Hernando 2006
Unnamed # 28 Lake Herando 2006

Grassy Pond Lake Sumter 2006
Gator Pond Lake Sumter 2006

Basket Lake Highlands 2006
Blue Lake Highlands 2006
Blue # 2 Lake Highlands 2006
Counterfeit Lake Highlands 2006
Deer Lake Highlands 2006


Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk


Date to be
Established
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001
2001











WMD Name of Waterbody


Fox
F. Taucher Res.
Grassy Pond
Granada
Hog
Isis
Lillian
Lucas
Lynn
Mud
Pansy
Silver
Unnamed (G)
Unnamed (H)
Unnamed (I)
Unnamed (J)
Unnamed (K)
Unnamed (1k)
Unnamed (M)
Unnamed (N)
Unnamed (0)
Unnamed (P)
Unnamed (Q)


County


Waterbody
Type
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake


Caroline
David
Dinner


East


Engineers
Grassy
Helen
Isabell
Lake of the Hills
Little Gordon
Little St. Ann Shrine
Livingston
Loralin
Marrow
Midget
Mountain
Pador


Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake


Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk


2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006


Highlands
Highlands
Highlands
Highlands
Highlands
Highlands
Highlands
Highlands
Highlands
Highlands
Highlands
Highlands
Highlands
Highlands
Highlands
Highlands
Highlands
Highlands
Highlands
Highlands
Highlands
Highlands
Highlands


Date to be
Established
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006









WMD Name of Waterbody


County


Ski
Tater Patch Pond
Unnamed # 2
Unnamed # 3
Unnamed # 5
Unnamed # 6
Unnamed # 7
Unnamed # 8
Unnamed # 9
Unnamed # 21
Unnamed (A)
Unnamed (B)
Unnamed (C)
Unnamed (D)
Unnamed (E)
Unnamed (F)
Unnamed (G)
Unnamed (H)
Unnamed (I)
Unnamed (J)
Unnamed (T)
Unnamed (U)
Unnamed (V)
Unnamed (W)


Waterbody
Type
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake
Lake


Surface
Watercourses
Lower Hillsborough/ River Hillsborough 1997
Tampa Bypass Canal

Upper Hillsborough River Hillsborough 1999
River System
Little Manatee River Hillsborough 1999
South Fork Alafia River Hillsborough / Polk 1999

Upper Peace River Charlotte 1999
Shell Creek River Charlotte 1999

Manatee River Manatee. 1999
Braden River Manatee 1999

Alafia River Hillsborough 2001


Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk
Polk


~


Date to be
Established
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006
2006










WMD


Name of Waterbody Waterbody
Type

Lower Withlacoochee/ River
Lake Rousseau/Cross
Florida Barge Canal

Middle Peace River

Myakka River

Crystal River
Withlacoochee River

Anclote River / River
Brooker Creek
Pithlachascotee River

Homosassa River River
Chassahowitzka River

Floridan Aquifer Aquifer


Tampa Bypass Canal Aquifer Hillsborough 1999
Linear Wellfield

Weeki Wachi River/ Aquifer Hernando 2001
Ground Water Basin

Northern Ground Aquifer Nine Counties 2006
Water Basin

Priority Intermediate Aquifer Multi-County 2006
Aquifer Units: Coastal
Counties

Surficial Aquifer Aquifer Highlands/Polk 2011

Intermediate Aquifer Aquifer Multi-County 2011
(Balance of SWUCA)


County Date to be
Established

Citrus, Marion, Levy 2001


Charlotte

Charlotte

Citrus
Citrus

Pasco

Pasco

Citrus
Citrus

Northern Tampa Bay
WRAP Area


Groundwaters


2001

2006

2006
2006

2011

2011

2011
2011

1997










CHARLOTTE COUNTY, ET AL. V. SOUTHWEST FLORIDA WATER MANAGEMENT
DISTRICT, CONSOLIDATED DOAH CASE NOS. 94-5742RP--94-5766RP AND 94-5734RX

On March 26, 1997, Division of Administrative Hearings Administrative Law Judge J.
Stephen Menton entered a 652 page final order in the above-referenced proceeding may have been
the longest and most complex administrative hearing ever to take place during DOAH's history. The
order invalidated a number of Southwest Florida Water Management District ("SWFWMD")
existing rules, proposed rules, and non-rule policies including, but not limited to, SWFWMD's basic
water use permitting rule, local sources ? rule, presumptions, reuse rule, and desalination rule. It also
upheld several existing and proposed rules, e.g., per capital use rule, water conservation rate rule, and
water use permit modification rule.

Of particular relevance to this minimum flow and level debate, the order upheld the
minimum level established in the Floridan Aquifer for the Southern Water Use Caution Area
("SWUCA"), but invalidated proposed amendments which would have exempted existing water use
permits from complying with the minimum level and reallocation program for transferring water
rights from existing users to new users. The hearing officer's interpretation of what constitutes
"significant harm" pursuant to section 373.042, Florida Statutes, as it read prior to the 1997
legislative amendment, is of particular note. SWFWMD's position, as well as that of numerous
environmental groups and perhaps some in the Florida Department of Environmental Protection, is
that "significant harm" should be defined strictly based on science without any social or economic
considerations. According to Administrative Law Judge Menton, this interpretation conflicted with
section 373.042, Florida Statutes, which in his opinion required the balancing of societal interest in
order to decide what impacts are "significant."

The establishment of minimum flows does not have to be based on precise historical
averages. The statute seeks to prevent "significant" harm to the water resources.
Preventing any and all measurable impact to the water resources is not the stated
legislative goal as some impact is an unavoidable element of achieving beneficial use
of water resources for human activity. Thus, the establishment of MFLs (minimum
flows and levels) is highly infused with policy considerations and requires a
balancing of societal interest in order to decide what impacts are significant.


Final Order at p. 478.




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