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Summer 2013
IN THIS ISSUE
d&G Lawyer News

  • Minimum Flow and Level Prevention and Recovery Strategies
  • By: Nicolas Q. Porter

    Under Chapter 373, Florida Statutes, each of the water management districts are required to adopt Minimum Flows or Levels (MFLs) for all water bodies in the state, with the exception of certain water bodies that no longer serve their historic hydrologic function, water bodies smaller than 25 acres in area, and certain constructed water bodies. The water management districts adopt MFLs pursuant to a priority list and schedule that identifies the water bodies that the districts develop based on the importance of the identified water bodies to the water resources of the state.
    The MFLs for each water body are then established based on the water management districts' determination of the limit at which further water withdrawals would be significantly harmful to the water resources or ecology of the area. Per Sections 373.042 and 373.0421, Florida Statutes, MFLs are to be set based on the best available information, take into account seasonal variations, and take into consideration the effect of structural alterations on the hydrology of the water body. MFLs are applied by the water management districts through their consumptive use permitting programs as criteria used in evaluating whether a proposed water use is permittable under the statutory three-prong test described in Section 373.223, Florida Statutes.

    When a water body is below, or projected to fall below its MFL within 20 years, the water management districts are required to implement a prevention or recovery strategy that recovers the water body to its established MFL as soon as practicable, or prevent the water body from falling below its established
    MFL. § 373.042(2), Fla. Stat. Under Section 373.0421, Florida Statutes, the water management districts are required to “expeditiously” adopt strategies when prevention or recovery are required, however recent guidance and rules adopted by the Florida Department of Environmental Protection require the water management districts to simultaneously adopt prevention or recovery strategies for a water body when the MFL is or is projected to be violated within 20 years.

    The water management districts have taken widely different approaches to the adoption of MFL prevention and recovery strategies. The Southwest Florida Water Management District and South Florida Water Management District have adopted and currently apply prevention and recovery strategies that apply in significant portions of their jurisdictions. The Northwest Florida Water Management District has not yet adopted MFLs.

    The Suwannee River Water Management District and the St. Johns River Water Management District each have adopted MFLs which are or are projected not to be met. However, to date, neither of these districts has adopted strategies to address those MFLs. Both of these districts are in the process of adopting prevention and/or recovery strategies for MFLs for the first time. The MFLs and strategies under consideration by the districts may have significant ramifications for water users throughout their jurisdictions. At this point, it is not clear what form the strategies for these districts will take. Section 373.0421(2), Florida Statutes give the water management districts broad discretion in what elements should be included in the strategy, though the strategy is required to include phasing or a timetable which will allow for the provision of sufficient water supplies to meet all existing and projected reasonable-beneficial uses, including the development of additional water supplies and the implementation of conservation or other efficiency measures, including reduction in permitted withdrawals. Presumably strategies would include a combination of strategy measures, including the development of alternative water supply projects, aquifer recharge projects, conservation, and other measures intended to achieve MFL compliance.

    A significant issue is determination of how the responsibility for bringing the MFLs into compliance is apportioned among water users whose permitted withdrawals impact MFL water bodies. This is a critical issue since it may determine potential permit reductions that may be imposed on water users, or the financial responsibility for developing projects identified as part of an adopted strategy. This determination involves technical and policy considerations that have the potential to significantly affect water users, even those that have an existing use that is otherwise compliant with its permit conditions.

    Given these significant implications, it is important for all water users to closely monitor the evaluation, consideration, and adoption of prevention and recovery strategies.

    For more information, please contact Nick Porter at nporter@dgfirm.com or (813) 229-2775.
    101 E. Kennedy Blvd., Suite 2000 | Tampa, FL 33602 | 813-229-2775 Fax: 813-229-2712
    Email: info@dgfirm.com | Site: www.dgfirm.com
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