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Winter 2011
IN THIS ISSUE
Florida Water Law Update
d&G Lawyer News
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What is Wrong with Florida’s Minimum Flows and Levels Program?
By: Nicolas Q. Porter
The Florida Water Resources Act (Chapter 373, Florida Statutes) contains numerous tools, such as permits, plans and rules, for protecting the water resources of the state. One of the most interesting and least understood tools is the minimum flows and levels program (“MFLs”). Under Section 373.042(1), Florida Statutes, an MFL is the limit at which further water withdrawals would cause significant harm to the water resources or ecology of the area. MFLs must be established for all water bodies in the state, with the exception of water bodies that no longer serve historic hydrologic functions, water bodies less than 25 acres in area, and constructed water bodies that do not provide a significant hydrologic value. § 373.0421(1)(b), Fla. Stat.,. The term “significant harm to the water resources” is not defined in the statute, and the water management districts are given wide latitude to define, implement and enforce MFLs. This latitude has resulted in widely differing approaches to MFLs among the five districts.
The South Florida Water Management District (SFWMD) has adopted a rule defining “significant harm” as “the temporary loss of water resource functions, which result from a change in surface or ground water hydrology, that takes more than two years to recover,” and thus explicitly ties the establishment of MFLs in SFWMD to the period of time in which a water body is predicted to take to recover from a change in water resource functions. Rule 40E-8.021(31), F.A.C.. By comparison, the other water management districts have not defined “significant harm” and take a more site specific approach to defining significant harm.
These differences in methodology and implementation create problems for water users, especially those users located at or near the boundaries of two or more water management districts. For example, in the central Florida region, where the boundaries of SFWMD, Southwest Florida Water Management District, and St. Johns River Water Management District come together in one of the most densely populated areas in the State of Florida, permit holders in the area must contend with MFLs that are only the same in name. This lack of consistency results in unnecessary regulatory costs, contradictory regulatory outcomes and inadequate protection of the water resources. Thus, MFLs have become an example of where too much flexibility has become a bad thing.
We at de la Parte & Gilbert have extensive experience dealing with MFLs and water management district planning and permitting. For more information please contact Nicolas Porter at nporter@dgfirm.com.
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