-i i, -
-t~X ~: ~ : .Yl CTr.i^
Tuesday July 15
7:30 8:30 a.m.
8:30 10:10 a.m.
10:10 10:30 a.m.
10:30 12:10 p.m.
12:10 1:30 p.m.
1:30 3:10 p.m.
3:10- 3:30 p.m.
3:30 5:10 p.m.
Registration and Continental Breakfast
WATER RESOURCE AND WATER SUPPLY DEVELOPMENT; ISSUES AND ANSWERS
Instructors: Jake Varn, Cathy Vogel, Estus Whitfield, John Wehle, Fred Rapach
EMERGING ISSUES IN CONSUMPTIVE USE PERMITTING; MEASURING,
MONITORING, AND MITIGATING EFFECTS OF WATER WITHDRAWALS
Instructors: Roger Sims, Stephen Menton, Paul O'Neil, Scott Burns, Janet Llewellyn
Speaker: Sonny Vergara
MINIMUM FLOWS AND LEVELS; ESTABLISHMENT AND IMPLEMENTATION
Instructors: Bill Hyde, Rich McLean, Dave Fisk, Chuck Aller
ALTERNATIVE WATER SUPPLIES; ISSUES AND OBSTACLES
Instructors: Dale Twachtmann, Richard Harvey, Tom Missimer, Bob Bailey
Wednesday July 16
8:00 8:30 a.m.
8:30 10:00 a.m.
ADVANCED DISCUSSION OF WATER POLICY ISSUES
BEFORE THE 1997 LEGISLATURE AND BEYOND
10:00 10:20 a.m. Refreshment Break
10:20 12:00 p.m. ISSUES AND ANSWERS; OPEN EXCHANGE BETWEEN PANELISTS AND AUDIENCE
Instructors: Dale Twachtmann, Senator Jack Latvala,
Representative John Laurent, Jake Varn, Estus Whitfield, Frank Matthews,
Rich McLean, Jim Garner, Fred Rapach, Sally Mann, Dave Fisk
Chuck Aller-Director, Office of
Agricultural Water Policy, Department
of Agriculture, Tallahassee
Bob Bailey, PE.-Vice President, Florida
Water Business Group Leader, CH2M
Scott Burns, P.G.-Director of Water Use,
South Florida Water Management
District, West Palma Beach
Dave Fisk, P.G.-Assistant Director,
Suwannee River Water Management
District, Live Oak
Jim Garner-Partner, Pavese, Garner,
Haverfield, Dalton, Harrison & Jensen,
Richard Harvey, P.E.-Director, EPA
South Florida Office, West Palm Beach
Bill Hyde-Partner, Gunster, Yoakley,
Valdes-Fauli & Stewart, Tallahassee
SenatorJack Latvala-Chairman, Senate
Natural Resources Committee, Florida
Representative John Laurent-
Chairman, House Water and Resource
Management Committee, Florida
Janet Llewellyn-Director, Office of Water
Policy, Department of Environmental
Sally Mann-Associate, Maguire, Voorhis
& Wells, PA., Tallahassee
Frank Matthews-Partner, Hopping Green
Sams & Smith, Tallahassee
Rich McLean-Deputy Executive Director,
Southwest Florida Water Management
Stephen Menton-Attorney, Rutledge,
Ecenia, Underwood, Purnell and
Tom Missimer-President and Principal
Hydrogeologist, Missimer International,
Inc., Ft. Myers
Paul O'Neil-Director, Technical
Services, Southwest Florida Water
Management District, Brooksville
Fred Rapach, REP-Policy and Program
Coordinator, Palm Beach County Water
Utilities, West Palm Beach
John Shearer, P.E.-Executive Vice
President and Director of Environmen-
tal Services, Post, Buckley, Schuh &
Jernigan, Winter Park
Roger Sims-Partner, Holland & Knight,
Dale Twachtmann-Senior Consultant,
Post, Buckley, Schuh & Jernigan,
Jake Varn-Partner, Steel, Hector &
Sonny Vergara-Executive Director,
Southwest Florida Water Management
Cathy Vogel-Director of Government
Relations, Pavese, Garner, Haverfield,
Dalton, Harrison & Jensen
John Wehle, P.G.-Assistant Executive
Director, St. Johns River Water
Management District, Palatka
Estus Whitfield-Environmental Policy
Coordinator, Office of Governor,
Planning & Budgeting, Tallahassee
-- I|1 NEWANSMMMA
Water, Water, Everywhere, But....
July 15-16, 1997
Marco Island Marriott Marco Island, Florida
Aller, Chuck ........................................
Department of Agriculture & Consumer Services
The Capitol, LL 29 FL 32399
Bailey, Bob .........................................
225 E. Robinson Street, Suite 405 FL 32801
Burns, Scott ........................................
South Florida Water Management District
Post Office Box 24680 FL 33416-4680
Fisk, David .......................................
Suwannee River Water Management District
Route 3, Box 64 FL 32060
Garner, Jim ...................... ..................
Pavese, Garner, Haverfield, Dalton, Harrison a Jensen
Post Office Drawer 1507 FL 33902
Drew, M im i ........................................
Department of Environmental Protection
2600 Blairstone Road, MS 3500 FL 32399
Hyde, Bill ..........................................
Gunster, Yoakley, Valdes-Fauli & Stewart
515 North Adams Street. FL 32301
Llewellyn, Janet ......................................
Department of Environmental Protection
3900 Commonwealth Blvd., MS 46 FL 32399-3000
M ann, Sally .........................................
Maguire, Voorhis & Wells, P.A.
315 S. Calhoun Street, Suite 505 FL 32301
M atthews, Frank .....................................
Hopping, Green, Sams & Smith
Post Office Box 6526 FL 32302
McLean, Rich ........................................ 352-796-7211
Southwest Florida Water Management District
2379 Broad Street FL 33609-6899
M enton, Stephen .....................................
Rutledge, Ecenia, Underwood, Purnell a Hoffman
215 S. Monroe Street, Suite 420 FL 32301
M issimer, Tom .......................................
Missimer International, Inc.
8140 College Parkway, Suite 202 FL 33919
O 'N eil, Paul ........................................
Southwest Florida Water Management District
2379 Broad Street FL 34609-6899
Rapach, Fred ........................................
Palm Beach County Water Utilities
2065 Prairie FL 33416
Shearer, John ........................................
Post, Buckley, Schuh a Jernigan
1560 Orange Avenue FL 32789
Sim s, Roger .........................................
Holland & Knight
Post Office Box 1526 FL 32801
Twachtmann, Dale ....................................
Post, Buckley, Schuh & Jernigan
5300 W. Cypress Street, Suite 300 FL 33607-1066
Varn, ake .......................................... 904-222-2300
Steel, Hector a Davis
215 S. Monroe Street, Suite 601 FL 32302
Vergara, Sonny ...................................
Southwest Florida Water Management District
2379 Broad Street FL 34609-6899
Vogel, Cathy ........................................
Pavese, Garner, Haverfield, Dalton, Harrison e Jensen
Post Office Drawer 1507 FL 33902
W ehle, John ........................................
St. Johns River Water Management District
Post Office Box 1429 FL 32078-1429
W hitfield, Estus ......................................
Office of The Governor, Planning e Budgeting
The Capitol, Room 1501 FL 32399-0001
THE FLORIDA WATER COUNCIL, INC.
4524 West Gun Club Road
West Palm Beach, FL 33415
A REVIEW OF 1997 WATER LEGISLATION
The water resource legislation passed by the Florida legislature during the 1997 session is
an excellent first step in addressing the long-term water supply needs of this state. The bill is the
result of much consensus building among many diverse interest groups. The Governor's Office,
through the work of the Governor's Water Supply Development and Funding Work Group,
played a pivotal role in developing much of the legislation's content relating to water and water
supply planning. In addition, an ad hoc group representing major water users throughout the state
the Florida Water Coalition forged a unified position regarding the legislation and participated
in the Governor's Work Group to reach agreement on various provisions. The Coalition was
unique in that it brought together both public and private entities and interests that have
traditionally been at odds over water policy. The existence of the Coalition and its unified
support for passage of House Bill 715 demonstrated quite remarkably the degree of commitment
and concern that exists throughout the state over water supply. The legislature responded very
decisively (the legislation passed unanimously in the Senate and on a 114-3 vote in the House) to
direct that measures be taken to ensure adequate water supply now and in the future.
The following discussion and interpretation of portions of this bill is provided by the
Florida Water Council. Members of the Council were active participants in both the Governor's
Work Group and the Florida Water Coalition.
INTENT OF THE LEGISLATURE
The major message echoed repeatedly throughout House Bill 715 is the legislature's
intent that water will be managed so that it is available for all existing.and future reasonable-
beneficial uses and to meet the needs of natural systems. In the bill's "Declaration of Policy;" in
sections mandating the adoption of District Water Management Plans and Regional Water
Supply Planning; and again in the portion dealing with Water Resource Development, the bill
gives explicit direction to the water management districts to see that water will be available. The
emphasis here is on making sure that water supply is dealt with through the development of
adequate resources rather than through a purely regulatory process that seeks to simply reallocate
a limited resource.
This legislation is no retreat from the state's commitment to protection of water resources
and the environment. Indeed, in the bill the legislature makes clear its intent that water resources
must be managed to ensure their sustainability. However, at the same time that the legislation
A NON-PROFIT ORGANIZATION ADVOCATING EFFECTIVE WATER
RESOURCE POLICIES AT STATE, REGIONAL AND LOCAL LEVELS
reinforces environmental protection, it puts the responsibility for water supply squarely on the
shoulders of the water management districts. In a sense the bill puts the districts "on notice" that
they are charged with implementing this state policy and that their considerable resources must
be directed to this task.
The legislation also represents the mood of the legislature in taking a much more direct
and active role in overseeing the development and implementation of state water policy.
Interestingly, the state water policy rule is replaced by the "Water Resource Implementation
Rule." This revised nomenclature subtly places emphasis on making sure that policy is carried
out, that something is done to implement policy. Furthermore, the bill provides that any
amendments to this rule will only take effect after the legislature has had an opportunity to
WATER RESOURCE DEVELOPMENT AND WATER SUPPLY DEVELOPMENT
The legislation establishes an important concept in defining and assigning responsibility
for water resource development and water supply development. The bill requires that water
management districts will undertake water resource development, whereas local governments,
water utilities and authorities are responsible for water supply development. The bill, however,
makes clear that these activities must be integrated and that assistance should be provided from
one level of development to the other. By inducing coordination between water resource
development and water supply development, the legislation underscores the "partnerships" that
must be forged to address the need for adequate water supply.
The concept of water resource development is one in which the water management
district will develop strategies, collect data and fund the construction, operation and maintenance
of works to ensure that water is available in ground or surface systems to meet the needs of
local suppliers and end users. The bill clarifies that local suppliers will continue their traditional
responsibility for funding the facilities to collect, produce, treat and distribute water supplies.
Importantly, while the legislation declares that water policies be construed as a whole, it
specifies that water resource development and water supply development must receive
priority attention where needed to make water available for existing and future uses and
the natural systems. Furthermore, the legislature makes a clear statement of intent that
sufficient water be made available to avoid competition for water supply. These are very
strong messages from the legislature and should leave no doubt as to the emphasis and
importance that water management districts are expected to place on water resource
THE WATER PLANNING PROCESS
The sections of the bill dealing with water planning and water supply planning are a
direct result of the Governor's Water Supply Development and Funding Work Group. As such,
these sections represent a consensus approach to water resource planning that is supported by the
state, the water management districts, and the many public and private interest groups that
collaborated during many months to reach agreement. The bill streamlines existing water
resource planning by calling for a three-tiered, integrated process that includes the development
of the Florida Water Plan, the development of District Water Management Plans and the
development and approval of Regional Water Supply Plans.
The legislation mandates a consistent approach statewide to water resource planning and
clearly specifies the content of these plans. In the case of District Water Management Plans, the
legislation puts obvious emphasis on the water supply portion of the plan by requiring detailed
information relating to water supply. The bill directs that the water management districts include
in the District Water Management Plans the scientific methodologies for establishing minimum
flows and levels; the identification of water supply planning regions; technical data relating to
surface and groundwater availability; any completed water supply plans; and most importantly, a
districtwide water supply assessment.
This requirement of districtwide water supply assessments is extremely significant. Since
all five water management districts are required to undertake the assessment, it in essence means
that for the first time ever, the state of Florida will have a statewide analysis of water sources
and available supply. Such an analysis will demonstrate where water sources are inadequate and
where extra efforts must be undertaken to increase water supply. Perhaps more importantly, the
assessment will also demonstrate throughout the state where ample water resources exist.
REGIONAL WATER SUPPLY PLANS
House bill 715 creates a new section of law that requires the water management districts
to develop and implement water supply plans. By October 1, 1998 the governing boards must
initiate water supply planning in those areas where it has been determined that water sources are
not adequate to meet existing and future demands. Interestingly, the bill provides that the
determination by a governing board that sufficient water supply exists to meet demands for the
next twenty years can be challenged. In essence, this gives substantially affected parties an entry
into the process at the point of a "no action" decision by the governing boards!
The legislation establishes specific criteria that must be observed as part of the Regional
Water Supply Plans. For example, the plans must be based on a twenty-year planning horizon.
This requirement will tie water planning periods to the twenty-year consumptive use permitting
periods that are mandated in the bill. The Florida Water Council believes that if water supply
planning is done well and if water supply plans are implemented, then long-term permits should
become the rule rather than the exception.
Seven detailed components must be addressed in Regional Water Supply Plans. These
include a water supply development component that is based on the goal of making sure enough
water is available so that cutbacks will not be necessary during a one-in-ten-year drought event.
In essence this creates a level of service for which the districts should plan. The water supply
development component must include a list of water source options, including the costs and
sources of funding for these options. However, the legislation allows for local flexibility by
pointing out that local governments and local suppliers are not required to select one of the
options developed in the plan.
Closely tied to the water supply development component is the water resource
development component of the plan. This component must contain a list of projects that will
support water supply development. For each project, the districts must include an estimate of
how much water will be made available by the project; information on the costs of and funding
for the project; and timetables and responsibilities for implementing the project. A third
component of the plan calls for a funding strategy for these water resource development projects
that is reasonable and sufficient to cover the costs of implementing the projects. This
information will clearly document the extent to which water management districts will comply
with their mission of water resource development and, in doing so, support local water supply
A fourth component of the Regional Water Supply Plan is the consideration of how water
supply development and water resource development options that are outlined within the plan
will 1) serve the public interest; or 2) save costs overall by either preventing the loss of natural
resources or by avoiding greater future expenditures. The emphasis on saving costs and the
degree of detailed information regarding costs and funding sources sends a clear message
that the responsibility for making water available for existing and future uses and natural
systems should be accomplished both efficiently and in the most cost-effective manner.
Regional Water Supply Plans must also include the minimum flows and levels that have
been established for water resources within the region and a recovery or prevention strategy for
those resources where minimum flows or levels have been, or are expected to be, exceeded.
House bill 715 mandates other important provisions with respect to Regional Water Supply
Any existing plan or plans under development as of July 1, 1997 must be revised to
include water supply development and water resource development. (We would
suggest that existing plans be revised to comply with all the requirements of
House Bill 715's Regional Water Supply Planning directive.)
Plans must be approved by the Governing Board, and those portions of the plans
which affect the substantial interests of a party shall be subject to rulemaking.
A detailed status report on regional water supply planning must be submitted
annually to the Governor and Legislature.
MINIMUM FLOWS AND LEVELS
The requirement that water management districts establish minimum flows and levels
(MFLs) for water resources has been mandated under state law since 1972. During the past
twenty-five years, the districts either have not done or have done a very inadequate job of
complying with this requirement. House bill 715 clarifies state statute and distinguishes between
the establishment and the implementation of minimum flows and levels. This legislative
guidance will assist the water management districts in carrying out their responsibility and will
greatly improve the probability that minimum flows and levels will be adopted in Florida. In
essence, the legislation overcomes the "nebulous cloud" that has enshrouded minimum flows and
levels by explaining what must be taken into account when establishing MFLs and by outlining
the steps that must be taken to implement MFLs.
The bill codifies the Governor's Executive Order directive that the water management
districts annually adopt a priority list and schedule for the establishment of minimum flows and
levels. It is important to point out that the bill also provides that the adoption of this priority list
and compliance with the schedule constitutes compliance with the requirement that minimum
flows and levels be established. This is important as it will protect the water management
districts against undue pressures to establish minimum flows and levels for water courses that are
not listed as priorities in a given year.
The bill requires that changes and structural alterations to water resources and the effects
and constraints of such alterations must be taken into account when establishing minimum flows
and levels. In other words, the department or governing boards must deal with the reality of
development that has occurred in Florida and the need for balanced water management when
establishing MFLs. This "reality check" does not undermine protection of the resource as the bill
clearly states that the establishment of MFLs shall not allow significant harm to the resource
caused by withdrawals.
The legislation also provides for exclusions. In cases where water bodies no longer serve
their historical hydrologic functions and it would not be economically or technically feasible to
recover these functions, a minimum flow or level is not required. Similarly, MFLs are not
required to be set on water bodies less than 25 acres in size or on surface water bodies that have
been constructed pursuant to a permit, an exemption or a reclamation plan except in cases
where these water bodies have significant hydrologic, economic or environmental values.
We believe that these provisions relating to the establishment of MFLs make it clear that
minimum flows and levels are not the singular tool by which a policy decision is made to restore
a water resource to prior or historic levels or functions. The Florida Water Council fully
supports the need for restoration of natural systems; however, we emphasize that restoration
programs have far-reaching impacts and the decision to undertake restoration programs and the
matter in which such programs are undertaken should be the subject of extensive public
discourse and should not be determined on the basis of a single decision point such as the setting
of minimum flows and levels.
The legislation sets up a process for scientific peer review of all technical data,
methodologies, and models including the assumptions upon which those models are based in
the establishment of MFLs. This is critical since previously for there has been no mandate for a
technically-based review of a proposed minimum flow and level prior to its adoption by the
department or governing board. The ability of substantially affected persons to request that peer
review be conducted as part of the process of establishment should reduce the need to challenge
an MFL on the basis of inadequate or inappropriate scientific basis.
In implementing minimum flows and levels, the bill requires that recovery or prevention
strategies be undertaken to ensure that water resources are protected and that MFLs are not
exceeded. At the same time, the bill mandates that such recovery and prevention strategies are
designed to provide sufficient water supplies for all existing and future uses in order to offset any
required reductions in permitted withdrawals. In this way, the legislation places equal emphasis
on protecting water users as well as water resources.
The bill includes a number of provisions relating to the governance and financial
management of water management districts. The Florida Water Council supports these
provisions and, particularly, with respect to the requirement that districts provide a five-year
work plan relating to the implementation of water resource development, we feel that this
information will improve communication between the districts and their water user constituents.
We are also pleased with those provisions relating to district governing boards. For
example, the requirement that board members' terms be staggered will provide greater stability
and predictability in terms of how the districts carry out their missions. And, we are especially
pleased with the specific reference to "utilities" within the section dealing with areas of expertise
of governing board members. This legislative direction should debunk any existing
interpretations that an inherent conflict of interest would occur if a public or private utility
director were to be appointed to a governing board.
This review of House bill 715 is by no means a comprehensive analysis of the legislation.
Rather, it summarizes the Florida Water Council's most critical interest in the bill and
underscores what we interpret as the legislative direction contained in the bill. The enactment of
the water resource legislation of 1997 will provide a "road map" for carrying out the policies of
this state with respect to making sure that adequate water exists to meet the needs of our people
and our environment.
THE FLORIDA WATER COUNCIL, INC.
4524 West Gun Club Road
West Palm Beach, FL 33415
LEECISIATIVE IEPORCT INAL WIEFI
The water resources bill passed! Early Friday morning en the last
day of session the House took up the Senate's "strike everything"
amendment to CS/HD 715 and voted it out on a 114-3 vote. The
final debate on the bill dealt with the deletion of the "local
sources first" provision which, as originally worded in the 1House
version, would have made it permissable for the Department or
Ccvernino Board to give significant weight to various factors when
considering a ccnsumptive use permit involving the transport of
water across political boundaries. Many rural legislators and
particularly those from the Iasco County area fought hard to keep
"local sources first" lanouace in the bill. Cn a proposal by
Representative John Laurent, Chairman of the louse Water &
Resources Manaoement Committee, to brino this issue back to the
legislature in 19 5, the iouse voted out the bill.
Following is a brief description of what the bill contains. litht
now, I plan to brine copies to the next oard of Directors meeting
on May 19. If you would like one sooner than that, please call
373.01 Ieclaration of Uolicy is amended to 1) require that the
IIII and Covernina Board take into account cumulative impacts
on water resources and manage those resources to ensure
sustainability; and 2) promote replenishment, recapture, and
enhancement of water resources; 3) ensure that the policies of
Chapter 373 are applied in the whole, with no specific police
applied in isolation from the others.
373.019 Provides definitions of District Water Manauement Plan;
Florida Water Plan; Ieional Water Supply Ulan; Water Resource
Implementation Pule; Water Resource Development; and Water
A NON-PROFIT ORGANIZATION ADVOCATING EFFECTIVE WATER
RESOURCE POLICIES AT STATE, REGIONAL AND LOCAL LEVELS
373.C3C- Amended to include the Florida Water Dlan and District
Water Manadement Plans. Outlines the contents of the plans,
process for amending the Water Resource implementation rule.
373.C3C1 Creates a section dealing with Recional Water Supply
llans. Boards must initiate planninobv Cctober 1, 1 98 in regions
where water supply is determined to be inadequate. Planning will
be based on a 2 -year horizon and conducted in an open, public
process. Plans will include quantification of needs for existing
and future reasonable-beneficial uses based on planning Qcal of
1-in- lC year drought events water source options for supply
development; potential sources of funding; detailed information
on proposed water supply development projects; minimum flows
and levels. Ieoional water supply plans completed by July 1,
1937 will be revised to comply with these requirements. 1v
November 1 1997 the districts will submit an annual report to
the Governor and legislature on progress toward achieving water
resource development Roals. Does not require local governments
and local utilities to select a water supply development option
contained in the plan.
373.042 Minimum flows and Levels is amended to provide for the
adoption of an annual priority list and schedule for adoption of
MFLs. Establishes a process for scientific peer review of the
establishment of MlfLs.
373.C421 Creates a section on the establishment and
implementation of MALs which requires that the Department or
Covemine Board consider changes and structural alterations to
waters and the effects and constraints such changes and
alterations have placed on the hydrolocy of the watershed,
surface water or aquifer. Provides exclusions from the
establishment of ftLs for water bodies that no longer serve their
historic hydroloic function (as determined by the doard); surface
water bodies less than 23 acres in size (unless these have
significant economic, hydrolocic or environmental value); and
surface water bodies constructed pursuant to a Chapter 373, 403
or 378 permit or prior to the requirement for a permit (unless these
have significant hydroloeic value or are an essential element of
the water resources of the area). Such exclusions do not apply to
the Everalades Protection Area.
Ircvides that the Department or Ccvernin Bo9card must
implement a recovery or prevention strategy in those cases where
flows or levels fall belcw or are expected to fall below an
established A L. The strategy' must include development of
additional water supplies and a phasing timetablewhich allows for
sufficient water supplies to be developed for all existing and
projected reasonable-beneficial uses. The development of
additional supplies must be concurrent with and offset any
required reductions in permitted withdrawals.
373.04C Adds a provision that water management districts, with
the concurrence of affected local governments, can enter into
interaaencY agreements whereby one district will be designated to
implement rules within a aecoraphic area of a project or Iccal
government that crosses water management district boundaries.
373.C73 Amends the section on Goveming Boards to provide for
staggered terms of Coard members. Provides that the failure or
refusal of the Senate to confirm an appointment to a Board
position creates a vacancy in that office. Ueauires that Board
members be selected who have significant experience in a variety
of disciplines, including but not limited to, agriculture,
development industry, local covemment, water utilities, law, civil
engineering, environmental science, hydrolorg, accounting or
373.C79 Amends this section to 1)authorize Ccvernin Bocards to
employ cmbudsmen; 2) require gubernatorial approval of the
selection of an Executive Director; 3) require that the Executive
Director is confirmed by the Senate upon employment and
thereafter during the second regular legislative session fcllowinU a
oubematcrial election; 4) specifing the responsibilities of the
district legal staff.
373.C831 Creates a new section dealing with water resource
development and water supply development. Outlines the role of
the water management districts and their responsibility for
identifying, implementing and securing funding for reaionallv
significant water resource development projects. Identifies the
role and responsibility of clcal ocvemment and local water
suppliers to provide water supply development. Directs that
beneficiaries of water supply development projects should pav fcr
those projects. Leauires cGvernina Boards to include in their
annual budget the funding necessary to implement water resource
development projects. Authorizes the state or districts to provide
funding assistance to those water supply development projects
which meet certain criteria.
373.139 Amends the section on Acquisition of Real Prcperty to
provide that except in cases where prohibited by covenant or
ccnditicn, lands owned, managed and ccntrclled by water
management districts may be used for multiple purposes including
agriculture, silviculture, water supply and recreation.
373.23C Amends Iuration of Permits to require that Gvernina
Eoards issue 2C year consumptive use permits under certain
conditions. Provides for a five-year compliance report for 2C-year
permits. Also requires that the IDII develop a proposal for
reevaluating areas of the state previously delineated as having
contaminated water supplies including contamination from
ethylene dibromide in order to determine If the threat from
contamination has been reduced and the delineation can be
373.C07 Amends the section dealing with district budgets to
require detailed reporting, notice and review cf tentative district
budgets. Districts must identify administrative and operating
expenses proposed including information on expenditures relating
to Icbbvina, intergovernmental relations and advertising as well as
regulation, operations, planning, land acquisition. Districts must
provide a five-year water resource development work program
and the CGvernor's ffce shall review the prcpcsed budget and
work program to determine if adequate funds are included to
implement the program.
373.~9 Authorizes that lands acquired through the Water
Management Lands Trust fund may be used for permittable water
resource development and water supply development where
compatible with the purposes for which the land was purchased
and where MIlLs have been established in the event that such
lands involve priority water bodies.
1 8.00(7/1 8.C00C/373.1 03/373.114/373.41S/373.415/403.CS91 -
Rewords those sections of state law tc reference the Water
Resource Implementaticn Rule instead cf "state water police" and
to reference the florida Water Ulan instead of the "state water use
plan." Repeals certain sections of Chapters
Clarifies that the establishment of AMrLs and the scientific peer
review for those M fLs for water bodies in Hillsborouoh, Pasco and
Pinellas counties shall be done pursuant to Chapter 9C-339 and
that any conflicts between this law and statutory or case law
existinU prior to the effective date of this law shall be ocvemed by
prior law. Provides that the establishment of MFLs for the
Hlillsborouuh Iiver and the Ualm river/Tampa Bay Iy-Uass Canal
shall be governed by the provisions of this law.
373.1 02 Amends sections dealing with regional water supply
authorities to provide that authorities may develop, construct,
operate and maintain projects for alternative sources of potable
water and pipelines either by themselves or iointly with a water
management district. In the event that such projects are privately
developed or owned, authorities and water management districts
are authorized to contribute funds to reduce the wholesale cost of
373.1 93 Amends sections dealing with the West Ccast IPeicnal
Water Supply Authority specifying provisions for the reconstitution
of the governance of the Authority under a voluntary interlocal
agreement amono its member governments. Provides a Joint
process between the Authority and the Scuthwest florida Water
Management District for the development of alternative water
sources including desalination and provides for the financial
participation of the district in the development of such sources.
370.307 Amends sections dealing with the Water Cuality
Assurance Trust Fund to provide that persons permitting or
construction potable water wells on or after July 1, 1997 may be
elllble for subsidies or filters under certain conditions.
Creates a new section which prohibits the payment of severance
pay by a water management district except under certain
Creates a new section which directs the Cffice of Proaram Policy
Analysis and Government Accountability to prepare a study of
water management district employee compensation plans and to
present findings and recommendations to the Governor and
legislature by January 3C, 199S. Appropriates SC,0CCC from the
Water Aanauement Lands Trust Fund to conduct the study.
The water resources bill was amended during Senate debate to
include provisions relating to marine fisheries and the
enforcement of net bans.
The bill was also amended to include provisions under 4(3.CSS2
for the discharge of demineralization concentrate.
In all, the water resources bill is an excellent step in the right
direction to address the need for adequate water supply in the
future. The Florida Water Council in cooperation with the florida
Water Coalition worked hard to pass this bill and can be proud of
this accomplishment. In particular, Chairmen John Laurent
(IHouse Water Committee) and Jack Latvala (Senate Natural
Resources Committee) deserve special thanks for their diligent
efforts to pass this bill.
In addition to the water bill, many other pieces of legislation were
adopted including HI 111 Lands 1ill, HI1 1271 Urinkine Water
Ievolvina Loan Trust Fund and ID 1323 DIEP IDrinkin Water
Loan Iroram, IH 57 Uredline of Natural Water Oodles, IH 5C01 -
Water Control Districts, UH 1775 Leolslative Cversiht of
Everolades Uestoration, and S 1154 Revisions of Crowth
Management Laws. I am also trying to track down bills which may
have been amended onto other vehicles. The process of digestino
what all took place this session will be onaolna for some time.
If you have any questions about this report or wish to receive a
copy of the water bill, please call me at 5C1/471-13CC.
I. STATUTORY FRAMEWORK FOR THE REGULATION OF WATER AND
EMERGING ISSUES IN CONSUMPTIVE USE PERMITTING
J. Stephen Menton
A. STATUTORY FRAMEWORK
The Legislature has directed the water management districts to implement a
consumptive use permitting program and has authorized rule making necessary to
effectuate such a program. Chapter 373 provides broad authority to the districts to
adopt reasonable and appropriate criteria necessary to implement a permitting program
and otherwise carry out the districts' statutory goals. See, Section 373.616 and Section
373.6161 providing that the statute "shall be liberally construed in order to effectively
carry out its purposes." 1
Section 373.216, F.S., requires the districts to "implement a program for the
issuance of permits authorizing the consumptive use of particular quantities of water
covering those areas deemed appropriate by the governing board." Section 373.219,
F.S. provides that a district "may require such permits for consumptive use of water
and may impose such reasonable conditions as are necessary to assure that such use is
consistent with the overall objectives of the district..."
Section 373.019(8) broadly defines "Water" or "waters in the state" as "any and
all water on or beneath the surface of the ground or in the atmosphere, including
natural or artificial watercourses, lakes, ponds, or diffused surface water and water
percolating, standing, or flowing beneath the surface of the ground, as well as all
coastal waters within the jurisdiction of the state."
2. History of Water Use Law
1The courts have noted the significance of Sections 373.616 and 373.6161, F.S., in construing Chapter
373 in a manner which effectuates the overall purposes of the chapter. See, Osceola County v. St. Jones
River Water Management District, 504 So.2d 385 (Fla. 1987)(authority to adopt rules providing for inter-
district consumptive use permitting could reasonably be implied from the comprehensive scheme of state-
wide water management contemplated by Chapter 373 despite the absence of specific language
authorizing such transfers; Chapter 373 should be liberally construed to effectuate its purposes); Booker
Creek Preservation. Inc. v. Southwest Florida Water Management District, 534 So.2d 419 (Fla. 5th DCA
1989)(liberal interpretation is mandated in favor of statutory construction which protects isolated
wetlands from mining activities); accord, Pinellas County v. Lake Padgett Pines, 333 So.2d 472, 479 (Fla.
2d DCA 1976).
A discussion of the background and history of water use regulation is necessary
to fully and fairly understand the legislative intent underlying Chapter 373.
Historically, the law in this country has treated water differently than other natural
resources such as timber or minerals. These other resources generally can be legally
converted to private ownership. For water, however, the I .
S See, Maloney, Capehart & Hoffman, "Florida's
Reasonable Beneficial Water Use Standard: Have East and West Met?" 31 U.Fla. L.
Rev. 253 (Winter 1979).
Two distinct approaches to granting water use rights developed in this country
and are roughly split geographically by the Mississippi River. In the eastern states, a
riparian system that paralleled English common law for surface watercourses was
typically followed. Under the "natural flow" doctrine of riparian rights, a riparian
owner was entitled to have a stream flow through his land undiminished in quantity
or quality. In many areas, this doctrine evolved into a "reasonable use" standard where
_-t- ---- __L -- -- .1 -^
Using this "reasonable use" standard, a lower riparian owner was entitled to
protection when diversion by an upper riparian owner unreasonably interfered with his
use of the water. Under this concept,
2 The determination of whether a use was reasonable was a
question resolved on a
In western states, water law developed differently. Many of the concepts of
western water law evolved with the early gold miners who "appropriated" water for
their needs. The western system of "prior appropriation" or "first in time, first in
right" was recognized by the courts and riparian ownership was not considered a
requisite of the right to use the water or to make withdrawals. A user was entitled to
as much water as he could successfully divert, so long as he could beneficially employ
it. Under this approach, water rights are perpetual in duration, although they may be
lost or abandoned through nonuse. The concept of "beneficial use" was developed and
refined over the years in an attempt to prevent waste and is a now fundamental
principle in most western water law jurisdictions. Many states that have followed this
prior appropriation system have adopted comprehensive statutory and administrative
modifications of this approach.
2 The Florida Supreme Court recognized the in Tampa Waterworks v.
Cline. 20 So. 780 (Fla. 1896), which also Subsequent Florida decisions
adopted a similar riparian reasonable use analysis for consumption of water from surface water bodies
and See Taylor v. Tamia Coal Co.. 46 So.2d
392 (Fla. 1950); Lake Gibson Land Co. v. Lester, 102 So.2d 833 (Fla. 2d DCA 1958); cf., Village of
Teouesta v. Jupiter Inlet Corp.. 371 So.2d 663 (Fla. 1979) cert. denied, 444 U.S. 965, 100 S.Ct. 453
Both the eastern and western law principles governing water allocation
developed during times when there was limited understanding of groundwater systems
and limited technological capability to access those systems to produce water or to
develop accurate hydro-geologic data. Regulation of the use of groundwater involves
many complex scientific issues which are not easily addressed under either eastern or
western water law concepts.
In Florida, there has never been an "ownership interest in the waters below the
ground, as the right of the owner to groundwater underlying his land was to the use
of the water and not the water itself." Village of Teouesta v. Jupiter Inlet Corp., 371
So.2d 663 (Fla. 1979) cert. denied, 444 U.S. 965, 100 S.Ct. 453 (1979); "The-
.. llI-l -C ..- 7. _L .111
_ O ..." Id.
With very little legislative direction prior to 1957, Florida courts struggled with
defining and prioritizing the sometimes conflicting goals inherent in water use
regulation. For example, in Duval v. Thomas, 107 So.2d 148 (Fla. 2d DCA 1958), the
Court quoted with approval the Supreme Court of Arkansas' discussion of the
reasonable use doctrine:
Reasonable Use Theory. This theory appears to be based on
the necessity and desirability of deriving greater benefits
from the use of our abundant supply of water. It recognizes
that there is no sound reason for maintaining our lakes and
streams at a normal level when the water can be beneficially
used without causing unreasonable damage to other riparian
owners. The progress of civilization, particularly with
regard to manufacturing, irrigation and recreation, has
forced the realization that a strict adherence to the
uninterrupted flow doctrine places an unwarranted
limitation on the use of water, and consequently the court
developed what we now call the ..l
Id. at 152, See also, Brown v. Ellington. 224 So.2d 391 (Fla. 2d DCA
1969)(complaint alleging defendants unreasonably caused the normal water level of
Crooked Lake to be lowered so that the shoreline receded markedly and large areas of
the lake bottom were exposed was deemed to sufficiently state a cause of action.)
In 1955, recognizing that Florida's fragmented approach of dealing with water
issues was inadequate and incapable of providing a long term framework for handling
future problems, the Florida Legislature created the Florida Water Resources Study
Commission. See, Fla. Water Resources Study Commission, "Florida' Water Resources,
A Report to the Governor and the 1957 Legislature" (1956). "
reomedtin Id. at pp. 14, 15, and made
recommendations which led to the passage in 1957 of the first major piece of legislation
in Florida related to water. See, Chapter 57-380, Laws of Florida (the "1957 Act").
The 1957 Act established a statewide administrative agency housed within the State
Board of Conservation to oversee the development of Florida's water sources.
Even after the adoption of the 1957 Act, Florida's water problems, including
saltwater intrusion, water shortages, destruction of wetlands, and deterioration of water
quality, continued throughout the 1960's and early 1970's.
3. Florida Water Resources Act of 1972
In an attempt to address the state's escalating water problems, a group of water
law experts at the University of Florida, including Dean Frank Maloney, was enlisted
in the early 1970's to draft a comprehensive water code for Florida. Dean Maloney had
been collaborating with other scholars since the late 1960's on a Model Water Code
which was published in 1972. The efforts of these water law scholars culminated in the
adoption of the Florida Water Resources Act of 1972, Ch. 72-299, Laws of Florida, (the
"Water Resources Act") which was largely based on the Model Water Code. The Water
Resources Act created a comprehensive, interrelated set of laws that seek to further the
conservation, protection, management, and control of the state's water resources while
maximizing their beneficial use. The Water Resources Act provided that the Florida
Department of Environmental Regulation (now the Department of Environmental
Protection, or "DEP") and the state's five regional water management districts (the
"districts") would be the governmental entities principally responsible for assessing and
regulating the water needs of citizens, industry, agriculture and natural systems.
The Water Resources Act was codified, with the remnants of the 1957 Act, as
Chapter 373, F.S.
Part II of Chapter 373, which was enacted as part of the Water Resources Act
of 1972, governs the permitting of the consumptive use of water.3
Section 373.217, F.S. provides that Part II is the exclusive authority for requiring
permits for the consumptive use of water. Subsection 3 of that statute provides
...if any provision of Part II...is in conflict with any other provision,
limitation, or restriction, which is now in effect under law or ordinance
of this state..or any rule or regulation.... Part II shall govern and control,
and such other law or ordinance or rule or regulation promulgated
thereunder shall be deemed superseded for the purpose of regulating the
consumptive use of water...
'Individual uses for domestic consumption are exempt from the permitting requirements of Chapter
373. See. Section 373.219(1), F.S. In addition, water can be reserved from the permitting process to
ensure the integrity of the resource and to protect fish and wildlife.
A consumptive use permit application must establish that the proposed use: "(a)
Is a Wi I -LI as defined in Section 373.091(4); (b)
- Section 373.223(1), F.S. This statutory basis for issuing permits is commonly
referred to as the "Three-Prong Test."
The three-prong test
This notion is fundamental to the Model Water
Code's melding of eastern and western water law concepts. See, Commentary to Model
Water Code, pp. 86 and 156-160. Under the reasonable use doctrine that developed
under eastern water law,
.E IIII .. ... I i -1
i. One of the major perceived drawbacks of this system was the lack of
certainty afforded existing uses. In addition, there is little or no consideration given
to the public interest. There is also a great deal of difficulty and confusion in applying
the concept of riparian ownership to groundwater.
The prior appropriation doctrine of western water law afforded prior uses
absolute certainty, as these uses could only be modified if abandoned or not considered
beneficial, which basically encompassed the concept of avoiding waste. This approach
has proved to be inflexible and there is very limited ability to accommodate new uses.
There is also limited ability to protect the resources and environment. See,
Commentary to Model Water Code, pp. 75-81.
By establishing a permitting system with specific permit durations, the Model
Water Code and the Florida Water Resources Act sought to incorporate the best aspects
of both systems. The Model Water Code and Florida Water Resources Act clarify these
See, Commentary to Model
Water Code, pp. 156-160, 170-173. Under Chapter 373, a permitted is afforded a degree
of certainty as to the continuance of the permitted use for the life of the permit, while
at permit renewal uses are reevaluated to determine whether they are still "reasonable"
in light of current conditions. This approach minimizes the possible unlimited
continuance of uses that no longer represent the most efficient or beneficial use of the
water resources, as can occur under the prior appropriation system. Id.
The ideal permit system can strike a measure of balance
between prior appropriation and the doctrine of reasonable
use. It can
This compromise, which has been
--- -II -*-
statutorily adopted in Iowa, appears workable and more
beneficial to the welfare of the community.
Commentary to Model Water Code, p. 79.
As a fundamental premise of water use regulation, the Florida Water Resources
Act adopted a "reasonable-beneficial" use standard, which was developed in the Model
Water Code. "Reasonable-beneficial use" is defined 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." Section
373.019(4), F.S. See, Commentary to Model Water Code, pp. 170-173; Maloney,
Capehart & Hoffman, supra, 31 U. Fla. L.Rev. 253. Until the 1996 and 1997 legislative
sessions, there were few substantive changes to Chapter 373.
1 the in Florida
See, City of St. Petersburg v. Southwest Florida Water Management District, 355 So.2d
796, 798 (Fla. 2d DCA 1977) cert. denied, 368 So.2d 1364 (Fla. 1979), citing Koch v.
Wick, 87 So.2d 47 (Fla. 1956). The --- -' of the Model Water Code and
Florida Water Resources Act was to e
Section 373.217(4), F.S. provides that:
(4) Other than as provided in subsection (3) of this section,
Part II of the Florida Water Resources Action of 1972, as
amended, preempts the regulation of the consumptive use of
water as defined in this act.
In Village of Tequesta, the Florida Supreme Court determined that after
enactment of the Florida Water Resources Act in 1972, ad hoc judicial determinations
regarding the allocation of water supplies were precluded. Village of Tequesta, supra,
371 So.2d at 670. In Osceola County, the Court stated that:
In 1972, Florida's legislature broke from the common law
and enacted chapter 373, the "Florida Water Resources Act
of 1972"..., in order to implement a statewide and
comprehensive administrative system of regulation, resource
protection, and water use permitting. Under the Act, the
DER and five water management districts are charged with
the responsibility of protecting and conserving Florida's
precious water resources.
Osceola County, supra, 504 So.2d at 396.
The Declaration of Policy in Section 373.016 recognizes that the dual purpose of
the Water Resources Act is to provide for conservation of the available water resources
while maximizing beneficial use. It provides "The waters of the state are among its
most basic resources. Such waters should be managed to conserve and protect water
resources and to realize the full beneficial use of these resources." See also, Sections
373.026(10) and 403.061(33), F.S., Concerned Citizens of Putnam County v. St. Johns
Water Management District, 622 So.2d 520, 521 (Fla. 5th DCA 1993). These sometimes
The commentary to Section 1.07(2) of the Model Water Code recognizes that
diverse and sometimes conflicting interests must be balanced in achieving the maximum
beneficial use of water and indicates that the consumptive use permit system is an
important tool for achieving this goal. In discussing "Regulation of Consumptive Uses
as a Planning Tool" the authors of the Model Water Code stated:
Water resources management, however, also includes
regulation of consumptive uses and M
The actions of private
parties affecting water must be regulated to avoid
inconsistency with the policies of the planning agency. A
system of consumptive water use permits coordinated with
a program of comprehensive planning is the most effective
means of implementing planning objectives and directing
development along planned lines. This would enable state
officials to prevent overdevelopment and competition for
Underdevelopment as well as overdevelopment can be
avoided by a choice of a better use when pending
applications for water use relate to the same supply and the
available water is not sufficient for both. Also, when a large
development project is foreseeable, smaller, less efficient
projects can be vetoed in favor of the greater benefits
promised by the later, larger one. In some areas
continuation of present water use patterns will eventually
exhaust available supplies despite full regulation of
consumptive uses. from agricultural to
industrial, mul, municipal,anrecreational uses can also increase
developmental potential for some areas and
Reallocation of this sort,
however, requires efficient mechanisms for the transfer of
water from lower to higher value uses. This means that
water must be transferred to industrial and urban uses, and
water devoted to agricultural uses must be applied to the
most productive lands and crops. Long-range plans must
not only anticipate such changes in water use patterns, but
must actually induce transfers to higher value uses.
Commentary to Model Water Code, pp. 74-75.
4. Chapter 373 General Provisions
The declaration of policy set forth in Section 373.016(1), F.S., recognizes that the
waters of the state have not been conserved or fully controlled so as to realize their full
beneficial use. The Water Resources Act specifically includes a state policy to "preserve
natural resources, fish and wildlife." Section 373.016(2)(e), F.S.
Chapter 373 mandates a cooperative effort between all governmental agencies
in regulating the water resources of the state. See e.g.. Section 373.026(3); 373.046;
373.047; 373.036(3), (4), (6), and (10); and 373.0395.
Section 373.0395, F.S. directs the districts to develop groundwater inventories
and make them available to each affected municipality, county and regional planning
agency. This provision specifically sets forth a legislative intent that future growth and
development planning reflect the limitations of the available groundwater or other
available water supplies.
The water production authority of the districts must be considered in the context
of the powers and duties of regional water supply authorities. In 1974, the Florida
Legislature amended Chapter 373 to provide for the establishment of regional water
supply authorities in an attempt to further the cooperative efforts mandated by Chapter
373. See, Section 1, Ch. 74-114, Laws of Fla. In 1974, the Legislature authorized the
creation of regional water supply authorities to develop, recover, store and supply water
for local governments "in such a manner as will give priority to reducing adverse
environmental effects of excessive or improper withdrawals of water from concentrated
areas." See, Section 373.1962, F.S. As the collective agent for member local
governments, a regional water supply authority obtains water use permits, develops
well fields or other sources of water, and wholesales the water produced to its member
governments for retailing to consumers within each member's jurisdiction.
Among the considerations taken into account in the establishment of a regional
water supply authority are the maximization of economic development of the water
resources within the territory of the proposed authority, the availability of a dependable
and adequate water supply and the existing needs of water users within the area.
Chapter 373 includes two separate provisions that authorize a district to declare
a water shortage in parts or all of a district when "insufficient ground or surface water
is available to meet the needs of the users or when conditions are such as to require
temporary reduction in total use within the area to protect water resources from
serious harm." See, Section 373.175(1), and 373.246(2), F.S. Section 373.175 provides
that restrictions can be imposed on individual users and Section 373.246(2) authorizes
water use restrictions for each affected water source by class of use.
These water shortage provisions can be used to address temporary water
shortage conditions. They provide methods for imposing cutbacks on permittees
without the need to formally modify permitted quantities before the expiration of the
permit term. In the event the restriction imposed on water users pursuant to a water
shortage declaration appear inadequate to sufficiently protect water resources or water
users, the executive director of a district, with the concurrence of the governing board,
may declare a water shortage emergency and impose immediate restrictions. See,
Sections 373.246(7) and 373.175(4), F.S.
5. State Water Policy and Water Use Plan
Section 373.026(10), F.S., was enacted in 1989 and directed DEP to adopt by rule
a "State Water Policy." The State Water Policy is intended to provide policy guidance
to DEP and the districts for the development and implementation of comprehensive,
coordinated, statewide water management programs and rules relating to water
resources. See, Section 7 of Ch. 89-279, Laws of Fla. This section mandates
consistency between the state water policy and the State Comprehensive Plan contained
in Chapter 187, F.S. (the "State Comp Plan").
The State Water Policy is defined as "the comprehensive statewide policy as
adopted by DEP pursuant to as 373.026 and 403.061 setting forth goals, objectives, and
guidance for the development and review of programs, rules and plans relating to water
resources." Section 373.019(16), F.S. In 1994, DEP transferred the State Water Policy
to Chapter 62-40, F.A.C.
Section 373.114(2), F.S. requires a water management district's rules to be
consistent with the State Water Policy.
Section 373.036(1), F.S. directs DEP to cooperate with the Executive Office of
the Governor to "formulate, as a functional element of a comprehensive state plan, an
integrated, coordinated plan for the use and development of the waters of the state...".
This plan is to be known as the "state water use plan." The State Water Use Plan
together with water quality standards and classifications adopted by DEP are supposed
to constitute the Florida Water Plan. See, Section 373.039, F.S. On December 8, 1995,
the Florida Water Plan 1995 was released by DEP with the expressed intent that it
was meant to satisfy the requirements of Section 373.036 and Section 373.039.
B. EMERGING ISSUES
1. Minimum Flows and Levels
The Florida Water Resources Act recognized that an important aspect of water
resource planning and allocation was a determination of the extent and limits of the
state's water resources. Section 373.042, F.S., directs the districts and DEP to establish
minimum flows for all surface watercourses and minimum water levels for surface
waters and groundwaters within their respective jurisdictional areas. The concept of
minimum flows and levels was adopted from the Model Water Code. -- f
to Model Water Code, Sections 1.07(4) and (5), pp. 105-106.
"Minimum flow" refers to the limit for a watercourse (e.g., a river or stream) at
which further withdrawals would be significantly harmful to the water resources or
ecology of the area. Similarly, "minimum water level" is statutorily defined as the level
of groundwater in an aquifer and the level of surface water (e.g., a lake) at which
further withdrawals would be significantly harmful to the water resources of the area.
_i 1 I. I1_ MFLs must
be calculated using the and M
when appropriate. Section 373.042, F.S.
The establishment of MFLs is intended to provide districts with baseline
information to utilize in the water permitting process, and it provides a way to include
public purposes, such as recreation, wildlife protection and ecological protection, in the
water allocation process. In addition, MFLs can provide local governments and
potential consumptive use permittees with advance notice of the locations and amounts
of available water supplies. See, Sections 373.0391-.0395, F.S.
Rule 62-40.473(2) of the State Water Policy provides that minimum flows and
levels established by a water management district shall be "a consideration where
relevant to...the issuance of [consumptive use] permits."
In Concerned Citizens, supra, 622 So.2d 520, the court recognized the importance
of the establishment of minimum flows and levels.
The establishment of minimum water levels and flows allows
the monitoring of Florida's water supply for the purpose of
determining when emergency restrictions on water usage
must be activated or when supply will no longer meet
Concerned Citizens, supra, 622 So.2d at 523.
While MFLs can provide a baseline against which the cumulative effect of water
withdrawals can be measured, the establishment of a minimum flow or level for any
particular water body or course can be an immensely complicated task. Moreover, the
interdependency between groundwater and surface water which varies greatly
throughout the state and fluctuates as climate and hydrologic conditions change is
only beginning to be understood. This interdependency can greatly affect how MFLs
can be used for regulatory purposes.
"and of achieving beneficial use
ofthe water resources for human activity. The is highly infused
with policy considerations and in order to
decide what impacts are significant. Section 373.042
This authority was further clarified during
the 1997 legislative session. New provisions were added to require the districts to
"consider" changes and structural alterations to wetlands, surface waters, and
groundwater and the effects such changes have had on the water resource when
establishing MFLs. Exactly how these factors are to be considered is likely to be a
source of controversy and debate.
The -_ -IT -.
See, Commentary to Model Water Code, section 1.07(5),
p. 106. Ecological values are certainly part of the balancing, but
In 1996, the legislature amended Chapter 373 to provide for the establishment
of minimum levels by a panel of independent experts. However,
legislature adopted an additional provision regarding MFLs entitled "Regional Water
Supply Planning." Section 373.0361 provides that by October 1, 1998, the governing
board of each district shall initiate a regional water supply plan for any region that
cannot supply water for all current and projected uses in the 20-year planning period.
The plan is to include a water supply development component and a water resource
development component. With respect to water supply development, the plan must
address the needs of a 1-in-10 year drought event. A water resource development
component should include a listing of projects, a timetable for their implementation,
and information on how the project will be implemented and funded. The plan is not
subject to Chapter 120 rulemaking procedures. The Department of Environmental
Protection has been directed to submit a report to the Legislature and Governor by
November 15, 1997, and annually thereafter, stating the status of regional water supply
planning in each district.
Section 373.042, F.S., was amended during the 1997 session to require each
water management district to submit to DEP a priority list and a schedule for the
establishment of MFLs by November 15, 1997, with an update annually thereafter.
Each water management district must publish its approved priority list in the Florida
Administrative Weekly starting January 1, 1998. All scientific and technological data
is subject to an independent scientific peer review prior to an administrative hearing.
New Section 373.0421 states that districts can decide that it is not practical to
try to restore certain water bodies to thoir historic hydrologic function. In such
instances, a district does not have to set a MFL.
The districts are directed to implement a recovery or prevention strategy if a
water body falls or is projected to fall below its MFL within 20 years. Starting January
1, 1998, the districts are required to submit annual reports to the Legislature and
Governor detailing their progress in water resource management.
contemplates that the District will use minimum levels in the
permitting process, but it
In this regard, it should be
noted that every provision within Section 1.07 of the Model Water Code was enacted
into law by the legislature essentially verbatim except subsection 1.07(6), which
(6) The governing boards shall condition permits under
chapter 2 of this code [Regulation of Consumptive Uses] in
such a manner as to preserve minimum flows and levels
under this section.
The Florida Legislature did not adopt this provision which would have mandated that
minimum levels be enforced through permit conditions. Instead, Section 373.219(1),
F.S. provides the districts with authority to
___ I l I I___ _III_] I_11_II I ..... .. ......___
2. Duration and Renewal of Permits
The authors of the Model Water Code specifically contemplated and rejected a
preference for the renewal of uses that predated the permitting program. See,
Commentary to Model Water Code, p. 183. There is no clear indication that the Florida
Legislature intended to adopt a renewal process for uses that is different than the
Model Water Code. In adopting the Florida Water Resources Act, the legislature clearly
intended to supplant the common law allocation system. See, Commentary to Model
Water Code, pp. 163 and 167, and Sections 2.03 and 2.07 of the Model Water Code with
In Village of Tequesta, the Florida Supreme Court recognized that Part II of
with a permitting
system. The Court noted:
The Water Resources Act of 1972 recognizes a right to use
water under the common law as separate from the right to
use water under a permit granted pursuant to the act. This
is done by a provision concerning the termination of the
common-law right and a transitional procedure. The holder
of such a common-law water use right was given two years
to convert the common-law water right into a permit water
right. Section 373.226(3), Fla. Stat. (1973).
Village of Teauesta, supra. At 671.4
Chapter 373 does not provide that a permit is automatically entitled to renewal
upon expiration of the permit term. Instead, users are subject to the three-prong test
of Section 373.223 upon permit renewal. See. Section 373.229, F.S. Outside the
competing applications process,
A key component of the legislature scheme established in Part II of Chapter 373
is the flexibility to shift water uses to more productive uses. See, Commentary to
Model Water Code, pp. 74-75 and 189. "[T]he authors believe that water rights
exercised under the proposed code should not become so inflexible that water resources
cannot meet new needs and demand..."
Id. at p. 173 and 189.
The Commentary to the Model Water Code recognizes that one of the most
important attributes of a permit system is that it provides some certainty to water uses.
The ideal permit system can strike a measure of balance
between prior appropriation and the doctrine of reasonable
use. It can
-..It would be most unfortunate for
eastern legislatures to adopt a rule which would tend to
freeze water rights through the creation of vested rights in
the first user....The recognition of such vested rights in the
first user has been said to "seriously impede a high level of
beneficial use of a state's water resources" and to be a
"Even under the common law, M .. .
t.See e.g. Labruzzo v. AfticD eng onst. Co.. Inc. 54
So.2d 673 (Fla. 1951)(plaintiff stated a cause of action where it was alleged that adjoining landowner
interfered with the flow of a subterranean stream so as to cause damage to adjoining lands); Taylor v.
Tampa Coal Co., 46 So.2d (Fla. 1950)(citrus grove properly enjoined from pumping water from lake for
irrigation purposes where the water in the lake was about 49 inches lower than normal).
serious legal barrier to wise water development. [citations
Id. at p. 79.
The authors of the Model Water Code noted "...under the Code, permits are not
granted in perpetuity...while priority in time has a place in the Code's permit system,
it is not determinative of water rights as in the prior appropriation system."
Commentary to Model Water Code, p. 159, See also, Commentary to Section 2.05(2), pp.
The Model Water Code contemplates that factors such as capital investment and
available alternatives can be considered in establishing permit duration. See,
Commentary to Model Water Code, p. 173 and Section 2.06, p. 189. In addition, such
issues could arguable be pertinent in certain permitting contexts in evaluating the
Section 373.236, F.S., was amended during the 1997 session to require water
management districts to issue permits for 20 years "if sufficient information is available
to provide a reasonable assurance that permit conditions will be met." Five year
compliance reports can be required to ensure that the conditions of the permit continue
to be met. In addition, the new provisions provide that modification of a permit will
not subject the permit holder to competition from other uses if there is no increase in
the permitted allocation, no change in source and no increase in the duration of the
1i. The authors of the Model Water Code recognized that prioritizing uses may
be unavoidable when demand exceeds supply. See, Commentary to Model Water Code,
pp. 74-75, 188-189. In fact, the authors suggest that there is a partial hierarchy
implicitly built into the Code. Id. at p. 85; See, Sections 373.036(7) and (9), F.S. To
date neither the legislature nor any regulatory agency has attempted to specify a
hierarchy of uses from a public interest perspective.
Section 373.171(2) and (3), F.S., provide some protection for existing rights to
water and preclude a water management district from promulgating rules or issuing
orders that require modification of existing uses absent a demonstration that the use
is detrimental to other water users or the water resources of the state. There is some
question whether Section 373.171 should be applied to protect an expiring permit upon
Section 373.171 was codified prior to the adoption of the Florida Water
Resources Act. As noted above, that Act established the permitting system which is set
forth in Part II of Chapter 373. Section 373.217 provides that the permitting scheme
set forth in Part II was intended to supersede and control all existing statutes and
regulations. It should be presumed that the legislature intended Section 373.171 to
have some continuing purpose since it has not been repealed. A reasonable
interpretation is that
- 1 I" .- mmmma T I 11 *
.. ..... ....but this limitation should
not apply at the time of renewal of a permit.
3. Competing Applications
F.S., provides a when
granting water use permits from a limited supply. This statute gives the district
governing boards the responsibility and the
which "best serves the public interest." Section
TheF. I I e I II
There are as to how the
competing applications process works. As the completion for limited resources becomes
more fierce, it may be necessary to adopt procedures, including adjustments to permit
duration and/or pooling of applications, so that the determination on renewal is not
simply a random process of when a permit happens to come up for renewal in relation
to the minimum level at the time.
i including whatever renewal rights exist, I Under some such
proposals, the districts would play only an incidental role and would not be directly
involved in determining use priorities. Water users would be allowed to determine the
allocation of scare water supplies by private agreement through permit sales and
Some believe that this type of
approach will allow for the protection of the resources while avoiding major economic
disruption by reducing the possibility of drastic and immediate restrictions on pumpage.
As noted above, the adoption of an appropriative type system creating vested
water rights was specifically considered and rejected during the legislative process
leading to the passage of the 1957 Act. See, Fla. Water Resources Study Commission,
Florida's Water Resources, A Report to the Governor and the 1957 Legislature, pp. 14,
15 (1956). Similarly, the authors of the Model Water Code specifically rejected the
notion of creating vested rights in the first users of a resource. See, Commentary to
Model Water Code, pp. 79-80, 173, 177. Arguably, the 1MM
See, Capeletti Bros. v. Dept. of Transportation, 499 So.2d 855
(Fla. 1st DCA 1986).
4. Utilization of Local Resources
The Florida Water Resources Act authorizes the transport and use of ground or
surface water beyond the overlying land and outside the watershed. Chapter 373
establishes a procedure for transferring water from one water management district for
use in another district. See, Section 373.2295, F.S. No specific procedures or
requirements are imposed for the transfer of water within the boundaries of a district.
In fact, Section 373.223(2), F.S., provides:
[The District]mayauthorize the holder of a use permit to
transport and use ground or surface water beyond overlying
land, across county boundaries, or outside the watershed
from which it is taken if [the District] determines that such
transport and use is consistent with the public interest, and
no local government shall adopt or enforce any law,
ordinance, rule, regulation, or order to the contrary.
This statute was enacted as part of the Florida Water Resources Act in 1972 and
See, Commentary to
Model Water Code Section 2.02(2), p. 180-181.
I- IJl. ... ..-I I_ ---y
.. n. That subsection provides that
See also, Section 373.1962(5), F.S. No
time frame is provided for determining the needs of the county from which water is to
One of the state policies sought to be furthered by the comprehensive planning
process is "the development of local and regional water supplies within the water
management district instead of transporting surface water across district boundaries."
See, Section 187.201(8)(b)3, F.S. The pumping of groundwater in one district to meet
demands in another district is authorized, but only upon a finding that such an
interdistrict transfer of water is in the public interest as determined through an
elaborate statutory scheme. See, Section 373.2295, F.S.; Kidder, "Water Transfer: An
Invitation to Confrontation," Fla. Bar Journ. Nov 1988 p. 41.
*. This authority is constrained by Sections 373.1961(5) and
373.1962(5), but the statute does not otherwise prioritize or limit the use of
groundwater to meet demands in a district based upon political or hydro-geologic
boundaries. While there may be a strong economic, political and practical reasons to
manage groundwater supplies in a manner that maximizes or priorities the needs of
the areas immediately adjacent to the withdrawal point of the water,
The withdrawal of water from one political subdivision for use within another
political subdivision is extremely controversial. This issue is all the more difficult
because of the complex hydro-geology and interconnectedness of groundwater aquifers.
Chapter 373 recognizes that residents and/or potential users within the area from
which water is withdrawn cannot be ignored. Section 373.196(3), F.S., provides that
the continued operation of existing water production and transmission facilities and the
development of cooperating arrangements and regional water supply authorities for the
production of water to meet the needs of the municipalities and counties "shall not be
done in a manner which results in upon the areas from whence such
water is withdrawn." Section 373.1961(5), F.S., provides that the District "shall not
deprive, directly or indirectly, any county wherein water is withdrawn of the prior right
to the reasonable and beneficial use of water which is required to supply adequately the
reasonable and beneficial use of water which is required to supply adequately the
reasonable and beneficial needs of a county or any of the inhabitants or property
owners therein." The statute does not provide any time frame for determining the
needs of the county. See also, Section 373.1962(5), F.S. (dealing with regional water
Efforts during the 1997 legislative session to add such a provision were
Both the Fifth District Court of Appeal and the Florida Supreme Court have
recognized that the Florida Water Resources Act, in particular Section 373.223(2),
represent a favor of a regulatory
framework of managing water resources at both the state and regional level. See.
Osceola County, supra, 504 So.2d 385, affirming and approving Osceola County v. St.
Johns River Water Management District, 486 So.2d 616 (5th DCA 1986).
The spirit of the statute [Section 373.233(2)], which allows
transfers of water not only "beyond overlying land" and
"across county boundaries," but also from "outside the
watershed from which [the water] is taken," is broad,
generous and in keeping with the legislature's expressed
intent to foster a cooperative and effective interaction
between the various districts and the DER in order to put to
the most beneficial use possible to the entirety of the state's
water resources. As aptly noted by the district court below,
"Political boundaries are artificial divisions that may and
sometimes should be transcended when planning for the
most beneficial use of our state's water resources."
504 So.2d at 388, quoting from the 5th DCA decision, 486 So.2d at 619.
Chapter 373 views development of adequate water supplies as a cooperative
venture. Section 373.1961(1), F.S., requires the District "to assist counties,
municipalities, and regional water supply authorities in meeting water supply needs in
such manner as will give priority to encouraging conservation and reducing adverse
environmental effects of improper or excessive withdrawals of water from concentrated
In some cases, obtaining water from a local source may involve less
environmental impact in terms of transmission mains and other facilities than a remote
source. Moreover, a requirement to look at the possibility of using local resources may
also further conservation and reuse goals. A district has the authority to determine
whether a proposed use is reasonable-beneficial, which can include an assessment of
whether the use would be an efficient/productive use. Thus, ---i--'- --m
The legislature has recognized that the reuse of reclaimed water is a desirable
goal. See, Section 7 of Chapter 89-324 and Chapter 94-243, Laws of Florida, codified
in part at Section 373.250, F.S. A water management district can establish and
encourage reuse programs that help reduce the demand for potable water supplies from
stressed aquifers and other systems.
Section 403.064(7), F.S., provides that, in issuing a permit, the "permitting
agency shall take into consideration the local reuse program." This provision allows
a district to consider an existing reuse distribution system in issuing permits.
Additional legislative authority regarding reuse in the permit process is derived from
Section 373.250(5), F.S.
Under Section 373.250(2)(b), F.S., reclaimed water is presumed available to an
applicant if "a utility exists which provides reclaimed water, which has uncommitted
reclaimed water capacity, and which has distribution facilities that are initially provided
by the utility at its cost to the site of the affected applicant's proposed use." This
statute implicitly recognizes that an applicant cannot be required to use reused water
unless it is "available".
There is an ongoing debate whether water management districts can require
public utilities to develop a reuse system as a condition in obtaining or renewing a
water use permit. The Reuse Conventions Committee has identified what has been
referred to by some as a "loop hole" in the state reuse program. That "loop hole" is
the provision in Section 403.064(3), F.S., which provides that a waste water treatment
plant applicant's determination of the feasibility of developing reuse for purposes of a
DEP discharge permit is final. Section 403.064(5) directs water management districts
to accept a feasibility study prepared for DEP permitting to satisfy a district's
feasibility investigation requirement.
When the legislature recognized reuse of reclaimed water as a desirable goal
that should be encouraged, it specifically gave utilities the power to decide whether to
construct the necessary facilities. See, Section 7 of Chapter 89-324, Laws of Florida.
This policy choice was reaffirmed when the legislature adopted Section 373.250 in 1994.
See, Chapter 94-243, Laws of Florida. However, the State Water Policy includes a
directive that reuse programs be implemented in water resource caution areas. See,
Rule 62-40.416 of the 1995 Revised State Water Policy.
Without question, there is a need for long term planning, infrastructure
investment and development of alternative sources of water. See, Section 7 of Chapter
95-323, Laws of Florida. How these responsibilities should be allocated among classes
of users is a matter of continuing controversy.
Section 373.196, F.S., provides:
...cooperative efforts between municipalities, counties, water
management districts, and [DEP] are mandatory in order to
meet the water needs of rapidly urbanizing areas in a
manner which will supply adequate and dependable supplies
of water where needed without resulting adverse effects
upon the areas from whence such water is withdrawn. Such
efforts should utilize all practicable means of obtaining
water, including...recycling of waste water, and desalination,
and will necessitate not only cooperation but also well-
Thus, Chapter 373 recognizes that desalination and the needs of urbanized areas
are some of the regional issues that require a cooperative, regional approach to water
While desalination of brackish water or seawater is potentially a way to help
alleviate water-shortage problems, there are a number of technical problems involved
including brine disposal issues. Moreover, massive expenditures for plant and
infrastructure are necessary before desalinated water is a viable alternative source.
There are a number of site specific factors involved in the ultimate construction of a
desalination facility, however there are also a number of technical and financial issues
which lend themselves to a regional strategy.
II. OVERVIEW OF 1997 WATER SUPPLY LEGISLATION
Roger W. Sims
After several years of discussion and an intense but unsuccessful effort in 1996,
the Legislature adopted significant changes to the Florida Water Resources Code during
the 1997 session. The bill, generally referred to as House Bill 715, incorporated
elements from several House and Senate bills as developed by committee deliberations.
The following summary includes some of the "highlights" of the legislation.
A. WATER MANAGEMENT PLANS
The bill requires the Department of Environmental Protection (DEP) to develop
the Florida Water Plan, in cooperation with the Water Management Districts (WMD's),
regional water supply authorities, and other key entities.
The Florida Water Plan includes DEP programs and activities related to water
supply, water quality, flood protection, flood plain management and natural systems.
The Florida plan also includes district water management plans. The DEP water policy
(Chapter 62-40, FAC) is renamed the "Water Resource Implementation Rule."
Each WMD is required to develop a district water management plan to address
water supply, water quality, flood protection, flood plain management and natural
By October 1, 1998, each district governing board must initiate water supply
planning for each water supply "region" identified in the District Water Management
Plan where sources of water are not adequate for the planning period to supply water
for existing and projected reasonable-beneficial uses and to sustain the water resources
and related natural systems.
Beginning November 15, 1997, DEP is required to submit annually a report on
the status of regional water supply planning in each district, for consideration by the
Governor and legislature.
B. MINIMUM FLOWS AND LEVELS
On November 15, 1997, and each year thereafter, each WMD shall submit to
DEP a priority list and schedule for establishment of the flows and levels for surface
water courses, aquifers and surface waters within the state. DEP is directed to review
and approve the list, which will be published in the Florida Administrative Weekly.
Each priority list must identify water bodies for which the WMD will voluntarily
undertake independent scientific peer review.
Upon written request by a substantially affected person, or by decision of the
DEP or governing board, all data, methodologies and models for establishing minimum
flows or levels shall be subjected to an independent scientific peer review process.
However, no minimum flow or level adopted or formally noticed for adoption on or
before May 2, 1997 is subject to peer review.
The minimum flows and levels provisions of HB 715 do not modify requirements
of the 1996 legislation directing SWFWMD to establish flows and levels for
Hillsborough, Pasco and Pinellas Counties. The Hillsborough River and Palm
River/Tampa Bypass Canal, however, are governed by House Bill 715.
When establishing minimum flows and levels, the DEP or governing board is
required to consider changes and structural alterations to watersheds, surface waters
and aquifers and the constraints such changes have placed on the hydrology of the
affected watershed, surface water or aquifer. However, significant harm may not be
caused by withdrawals.
Certain exceptions are provided, including a categorical exemption from
establishment of flows or levels for surface water bodies less than 25 acres in area,
unless the water body has significant economic, environmental or hydrologic value.
If the existing flow or level is below, or is projected to fall (within 20 years)
below the established minimum flow or level, DEP or the WMD governing board, as
part of the Regional Water Supply Plan, shall expeditiously implement a recovery or
C. WATER SUPPLY DEVELOPMENT AND WATER RESOURCE
House Bill 715 provides that water management districts are primarily
responsible for planning and water resource development, although they are not
precluded from providing assistance with water sumDlv (system) development. WMDs
are required to take the lead in identifying and implementing water resource
development projects, and be responsible for securing necessary funding for regionally
significant water resource development projects.
The role of local government, regional water supply authorities and government-
owned and privately-owned water utilities is for water supply development, although
they are not precluded from providing assistance with water resource development.
Local governments, regional authorities and utilities are directed to take the lead in
securing funds for and implementing water supply development projects (i.e., systems).
The bill authorizes use of areas acquired by water management districts i.e., by
Preservation-2000 or Save Our Rivers) for water resource development, provided
minimum flows and levels of priority water bodies on such district lands have been
established and the project otherwise complies with all requirements for issuance of
permits under part II of Chapter 373. The project must be compatible with the
purposes for which the land was acquired.
D. WEST COAST REGIONAL SUPPLY AUTHORITY
The bill provides for reconstitution of West Coast Regional Water Supply
Authority with board representation from member local governments specified in detail.
The restructured Authority may acquire a full or lesser interest in property and
facilities of the existing authority for water production, supply and delivery. Upon
execution of a voluntary interlocal agreement, the Authority is directed to jointly
develop (with SWFWMD) alternative sources of potable water and transmission
pipelines to interconnect regionally significant water supply sources. These sources are
to be sufficient to meet the needs of all member governments for at least 20 years, and
sufficient for natural systems. Costs of developing a desalination facility must be borne
as mutually agreed by the Authority and SWFWMD.
E. WATER MANAGEMENT DISTRICT ADMINISTRATION AND BUDGETS
The bill revises provisions relating to appointment of governing board members
and staggering of terms. The Governor is directed to consider selecting governing
board members on the basis of an equitable cross-section of regional interest and
technical expertise. Members should have experience in various areas, including
agriculture, local government, utilities, law, engineering, environmental science,
hydrology, and accounting or financial matters.
The appointment of the Executive Director by the governing board is subject to
approval by the Governor and confirmation by the Senate, and the Executive Director
must be reconfirmed after each gubernatorial election.
The Governor is authorized to approve or disapprove the budget of each water
management district. Criteria are set forth to provide a basis for the Governor's review
F. OTHER PROVISIONS
Twenty-year Permits: The bill sets forth conditions under which water
management districts may issue a 20-year water use permit. There must be sufficient
data to provide "reasonable assurance" that the conditions of the permit will be met for
the duration. Compliance reports may be required from the permitted every five years
during the term of the permit. The report must contain sufficient data to confirm that
the initial conditions for permit issuance continue to be met.
Discharge of Concentrate from Desalination Plants: The bill authorizes
discharge of demineralization concentrate from small water utility businesses as a
presumed allowable activity in all waters of the state. Such discharge may only result
in "minimal negative impact."
G. SELECTED "EMERGING ISSUES"
Local Sources First: This provision was deleted from the 1997 legislation, but
is likely to reappear in 1998.
Reallocation: The SWUCA rules allowed for transfer of permitted uses to new
permittees under tightly controlled conditions. Reallocation was not authorized in
1997, but is likely to be reconsidered in 1998.
Linkage of Land and Water Use: Pasco County initiated a change to its growth
management plans in 1997 whereby any proposed wellfields would be subject to local
review and approval and would otherwise not be allowed as a land use within the
county. Does this attempt conflict with the WMD's statutory authority to regulate
water uses? The need to consider land and water linkage and future growth
management are likely to be topics of considerable discussion in the coming year.
Section 373.233: According to the SWUCA rule challenge decision, the current
statutory language for resolving competing applications ( 373.233) is the only
mechanism allowed by law for allocating limited quantities of water. SWFWMD is
developing a rule to implement the statute, which provides as follows:
1. If two or more applications which otherwise comply with the provisions
of Part II of Chapter 373 are pending for a quantity of water that is inadequate for
both or all, or which for any other reason are in conflict, the governing board can
approve or modify the application which "best serves the public interest".
2. If two or more competing applications qualify equally, the governing board
shall give preference to a renewal over an initial application.
How will SWFWMD when two applications are "pending for a quantity of water
that is inadequate" and what criteria will be applied to determine the application which
"best serves the public interest'? How will the District decide when two applications
WATER USE MITIGATION
Janet G. Llewellyn
A. WHY SHOULD THE USE OF MITIGATION DIFFER
BETWEEN ERP AND CUP PERMITTING?
LAND OWNERS OWN A SPECIFIC WATER SUPPLIERS HAVE
PARCEL OF PROPERTY. OPTIONS REGARDING WATER
MITIGATION PROTECTS SOURCE. GROUND AND
PROPERTY RIGHTS BY SURFACE WATER WITHDRAWAL
ALLOWING LANDOWNER LOCATIONS CAN BE CHOSEN TO
REASONABLE USE OF HIS/HER AVOID HARM. ALTERNATIVE
PROPERTY SOURCES THAT DO NOT HARM
WATER RESOURCES CAN BE
IMPACTS USUALLY LIMITED TO IMPACTS FREQUENTLY EXTEND
PROPERTY OWNED BY BEYOND PROPERTY OF WATER
IMPACTS USUALLY SITE IMPACTS FREQUENTLY
SPECIFIC REGIONAL IN NATURE
B. CUP MITIGATION QUESTIONS AND ISSUES
1. If the use of mitigation, in some form, is determined to be appropriate for
consumptive use permitting, does adequate statutory authority exist to
incorporate its use into the program?
2. What definition is appropriate for "mitigation" in the context of CUP
Permitting? The term "mitigation" has been used in the CUP program to
apply to a reduction of water withdrawals, which actually reduces or
eliminates the harm. If the term is to be applied in the same context as in
the ERP program, "mitigation" would mean allowing the harm and offsetting
it elsewhere. If the latter definition is accepted, should any or all of the CUP
permitting criteria be allowed to be offset with mitigation?
a. Harm to existing legal users?
b. Reasonable-Beneficial Use?
c. Consistent with the Public Interest?
3. If discussion is limited to harm to natural systems, what types of harm
can/should be allowed to be offset with mitigation? Loss or degradation of
wetlands and surface waters? Salt water intrusion?
4. In the ERP program, applicants are required to reduce or eliminate adverse
impacts before mitigation will be accepted. Since water suppliers have
options related to what water source to use, should a more rigorous
requirement be applied in the CUP program before mitigation is considered?
Should an alternatives test be applied? If so, what should be considered in
determining if alternatives are "practical"?
5. Should there be a tie between regional water supply plans developed by a
WMD pursuant to Ch. 373.0361, F.S. and the allowance of mitigation? For
example, should mitigation be allowed if the regional water supply plan
identifies an alternative source of water that would not cause harm to the
water resources and would not require mitigation?
6. Is it realistic to expect that mitigation can truly offset lowering of a water
table that effects wetlands and lakes on a regional basis? Should there be
thresholds (such as acreage of wetland) beyond which mitigation should not
7. Should mitigation be allowed to offset a withdrawal that would cause a
violation of an established minimum flow or level? Should mitigation be
allowed to offset "harm" but not "significant harm" as these terms are used
in Part II of Chapter 373, F.S.?
8. Should a distinction be made regarding off-site vs. on-site impacts? If off-site
impacts are allowed, should permission be required of the off-site landowner?
9. Should mitigation be required for wetlands already permitted for dredging
and filling? Should mitigation requirements be partitioned between the water
withdrawer and the developer?
10. How should mitigation requirements be determined for partial drawdown
11. Mitigation for withdrawals would need to be based on model predictions of
the anticipated harm. What mechanism should be developed to monitor
actual harm vs. predicted harm, and how should this be tied to the mitigation
12. What types of mitigation should be allowed? Should the provisions of the
ERP rules regarding type and amount of mitigation be used for the CUP
13. Augmentation of lakes and wetlands has been proposed as a form of
mitigation. This type of mitigation is not self-sustaining and would probably
not be allowed in the ERP program. Should this type of mitigation be
allowed in the CUP program?
Consumptive Use, Minimum Flows and Levels, Water Shortage:
A Conceptual Management Model
Wm. Scott Burs P.G.
Director, Water Use, SFWMD
During the 1980's, growth in water demands combined with climatic dry cycles to alert the public to
the value of limited water resources. The public in turn urged the districts to identify future needs and
sources of water, implement demand management programs, develop alternative sources of supply,
and adopt minimum flows and levels to protect the water resources from over-development. There has
been much discussion on how and where to define minimum flows and levels (MFLs). For many, the
adoption of MFLs is the 'silver bullet' necessary to protect water resources from being significantly
harmed by man. Without MFLs, water use permits could be indiscriminately authorized until the water
resources are depleted or destroyed. The water management districts and the Department of
Environmental Protection were charged in the 1972 Water Resource Act (Act) to define MFLs.
However, both technical and policy issues limited the success of these early attempts.
When MFLs which conflicted with no existing permitted allocations and long range plans were
proposed, water users objected. The districts' technical basis and authority to implement MFLs were
challenged. As a result, uncertainty in how to plan for long term water supply grew. These issues have
raised such concern that the state legislature has become involved in the debate and has provided
additional direction to water managers.
Today, water resource and water supply development are the focus of the districts' water supply
planning efforts. Minimum flows and levels are an integral part of these planning efforts in that they
help define the availability of supply from a given source. The objective of this paper is to explore how
MFLs can be used in conjunction with other statutory objectives to define water supply availability and
to propose a management process to implement MFLs.
MFLs and Consumptive Use
Much of the current debate involving MFLs began in southwest Florida. Of particular interest is the
role of consumptive uses in the historic decline of water levels within the Floridan aquifer. Unlike
surface water systems, which are often subject to operational/drainage impacts, the declining levels of
the Floridan aquifer were directly related to consumptive uses and over-allocation of the resource
through the permit process. MFLs were touted as the necessary tool to force cutbacks in Consumptive
Use Permit (CUP) allocations. Cutbacks in existing CUP allocations along with restrictions on the
issuance of new permits were proposed to prevent further environmental harm and moderate the rate
of saltwater migration in the Floridan aquifer.
Data was presented in support of the alternative premise that a prolonged deficit in rainfall was the
cause for increases in irrigation demands and reductions in aquifer recharge. The combination of these
two factors, rather than over-allocation, was attributed to be the cause of the lowered aquifer levels
and observed environmental stress. If drought was the cause of the water resource problems, the water
shortage process was proposed as the proper management tool. Proponents of this premise held that
the use of MFLs to restrict permits was inappropriate since normal rainfall patterns would restore the
Despite the conflicting opinions in this debate, two questions regarding the role MFLs play in the
management of water resource emerged.
a) What is the role of MFLs in the CUP process?
b) How are variations in the hydrologic cycle accounted for when implementing MFLs?
Possible solutions to these questions can be found through the examination of the origins of the Water
The term "" "is i in the Water Resource Act as "... the limit at which
surface water flows (Chapt.373.042 (1) F.S.) and "... the
(Chapt.373.042 (2) F.S.). The origin of Water Resource Act is discussed in a
paper entitled "A Model Water Code" (Code) by Maloney, Ausness, and Morris. The purpose of this
paper was to provide legislators with a model water resource management program to replace the
state's common law doctrine, which was straining under the pressures of growth and drought. The
authors of the Code proposed statutory concepts along with commentary which documented the basis
for their conclusions and recommendations.
The concept of MFLs is addressed in the Code under section 1.07 (4) (5) and (6) entitled "State Water
Use Plan." The language in the Code is very similar to the statutory language in Chapter 373.042 F.S.
with the of the ". In the commentary, the
authors provided their recommendations on the relationship of MFLs and the issuance of water use
permits. Specifically, commentary on section 1.07 (5) of the Code states "..
commentary under section 1.07 (6)
The affects of variations in the hydrologic cycle were also addressed in the Code, Section 2.09, entitled
"Declaration of Water Shortage." In this section the Code provided for the Governing Boards to
implement a water shortage plan to temporarily reduce demands. The objective of this program is to
protect water resources from "serious harm."
Based on this text, the __l.ll, W contemplated the necessity ofefm.'g if eL--utf
S------ ---- The authors also identified the consumptive
use permit as the O and .
However, in drafting the Water Resource Act of 1972, state .. ...
.--I I.- Q"- ,with regard to MFLs and the CUP process in
several important ways. The first significant change appears in consumptive use permitting section of
the Code and Act. Section 2.01 of the Code entitled "Permits Required" states that "No person shall
make any withdrawal, diversion, impoundment, or consumptive use of water without obtaining a
permit from the governing board." This language was modified in the Act under Chapt.373.219 F.S.
"Permits Required" to read: "The governing board or the department may require such permits for
consumptive use of water and may impose such reasonable conditions as are necessary to assure that
such use is consistent with the overall objectives of the district or department and
__I_ ." (emphasis added). In drafting the Act, legislators expanded the scope of
the language in the Code to not only identify the activities which needed a permit, but also define the
purpose of the permits. These purposes were a) to assure consistency with the objectives of the district
and b) n i _____ In defining the purpose of CUPs to prevent
As discussed above, the in MM between the Code and the Act occurs as theA lf
when defining MFLs in Chapt.373.042 F.S. The m /
In addition, a third standard of water resource protection was identified for use during drought.
In this case, both the authors of the .. __ l _
The use of the words "significant" and "serious" to distinguish between the levels of protection
afforded routinely by MFLs and temporarily during water shortage appears deliberate. Webster's
dictionary I- I
Serious, on the other hand, is defined as having le
Proposed Management Model
From the statutory distinctions outlined above, it is postulated that the legislators directed the districts
and the department to define MFLs at levels and rates where the impacts of use were not to produce a
measurably large or meaningful amount of harm to the water resource. This is clearly different from
the standard of protection covered under the CUP program which is to prevent harm altogether.
But how can these management goals be attained as the hydrologic cycle varies from year to year?
During wet years, demands for water decline, potentially below the allocations authorized by the
permit, and aquifer recharge is high resulting in no harm. However during dry times, demands increase
and may even exceed the allocation authorized by the permit while recharge is low. Under these
conditions, the water resources may experience stress or significant harm. Thus, for example, the
reasonable supplemental irrigation requirements of a hypothetical crop could produce no water
resource impacts one year but produce harmful impacts the next.
This raises the "level of certainty" concept, which was added to the Water Resource Act this year.
Under this concept, permit allocations should be based on the supplemental demands during a 1-in-10
year drought condition, and the impact of that proposed withdrawal should be evaluated under those
same drought conditions. By applying the permit standards described in Chapt.373.219 F.S., the
impact of this demand shall not be harmful to the resource. However, MFLs by definition would occur
at lower flow rates or water levels than the threshold of harm but not be significantly harmful for the
water resources (see figure).
The question then arises; what is the role of MFLs if they always occur below the permit levels? Since
allocations should be restricted at levels where no harm occurs during a 1-in-10 year drought
condition, the only times the water resources would be subjected to significant harm is during droughts
more severe than the 1-in-10 condition. As a result, the exposure to significant harm should occur
rarely and for short durations only (until normal rainfall returns). However, the district is authorized to
take actions to reduce this risk and duration of exposure to low water levels through the
implementation of the water shortage plan. The water shortage plan should therefore be closely tied to
the MFLs, coupled with actual water level/flow data. Historically, the first two phases of water
shortage are geared towards enhancing water conservation. These levels of cutback should not result
in economic hardships to the users of water, neither should they permit any significant harm to the
resource. In the more critical droughts, the levels of cutbacks will result in some economic losses.
Under these conditions, the water resources would also experience serious harm such as large scale
saltwater migration, aquifer subsidence and long lasting environmental losses. The return frequency of
this type of drought would be on the order of 1-in-50 or 1-in-100 years.
Of significance in this proposed model is the premise that during a severe drought, water use permit
holders will still be allowed to use some water, under the direction of a water shortage emergency
order, when water levels drop below MFLs due to drought. The types of uses and the amounts that
can be approved would be directed through the water shortage plan with consideration of the balance
between impacts to permitted users and the water resources.
This paper has been prepared to stimulate discussions during the Marco Island Permitting Summer
School. The SFWMD is currently discussing the issues related to defining and implementing MFLs
and has not finalized these discussions. Therefore, the ideas contained herein should not be
considered as an agency position or policy.
Proposed Inter-relationship of