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2020 Florida Statutes
SECTION 042
Minimum flows and minimum water levels.
Minimum flows and minimum water levels.
373.042 Minimum flows and minimum water levels.—
(1) Within each section, or within the water management district as a whole, the department or the governing board shall establish the following:
(a) Minimum flow for all surface watercourses in the area. The minimum flow for a given watercourse is the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area.
(b) Minimum water level. The minimum water level is the level of groundwater in an aquifer and the level of surface water at which further withdrawals would be significantly harmful to the water resources or ecology of the area.
The minimum flow and minimum water level shall be calculated by the department and the governing board using the best information available. When appropriate, minimum flows and minimum water levels may be calculated to reflect seasonal variations. The department and the governing board shall consider, and at their discretion may provide for, the protection of nonconsumptive uses in the establishment of minimum flows and minimum water levels.
(2)(a) If a minimum flow or minimum water level has not been adopted for an Outstanding Florida Spring, a water management district or the department shall use the emergency rulemaking authority provided in paragraph (c) to adopt a minimum flow or minimum water level no later than July 1, 2017, except for the Northwest Florida Water Management District, which shall use such authority to adopt minimum flows and minimum water levels for Outstanding Florida Springs no later than July 1, 2026.
(b) For Outstanding Florida Springs identified on a water management district’s priority list developed pursuant to subsection (3) which have the potential to be affected by withdrawals in an adjacent district, the adjacent district or districts and the department shall collaboratively develop and implement a recovery or prevention strategy for an Outstanding Florida Spring not meeting an adopted minimum flow or minimum water level.
(c) The Legislature finds as provided in s. 373.801(3)(b) that the adoption of minimum flows and minimum water levels or recovery or prevention strategies for Outstanding Florida Springs requires immediate action. The department and the districts are authorized, and all conditions are deemed to be met, to use emergency rulemaking provisions pursuant to s. 120.54(4) to adopt minimum flows and minimum water levels pursuant to this subsection and to adopt recovery or prevention strategies concurrently with a minimum flow or minimum water level pursuant to s. 373.805(2). The emergency rules shall remain in effect during the pendency of procedures to adopt rules addressing the subject of the emergency rules.
(d) As used in this subsection, the term “Outstanding Florida Spring” has the same meaning as in s. 373.802.
(3) By November 15, annually, each water management district shall submit to the department for review and approval a priority list and schedule for the establishment of minimum flows and minimum water levels for surface watercourses, aquifers, and surface waters within the district. The priority list and schedule shall identify those listed water bodies for which the district will voluntarily undertake independent scientific peer review; any reservations proposed by the district to be established pursuant to s. 373.223(4); and those listed water bodies that have the potential to be affected by withdrawals in an adjacent district for which the department’s adoption of a reservation pursuant to s. 373.223(4) or a minimum flow or minimum water level pursuant to subsection (1) may be appropriate. By March 1, annually, each water management district shall include its approved priority list and schedule in the consolidated annual report required by s. 373.036(7). The priority list shall be based upon the importance of the waters to the state or region and the existence of or potential for significant harm to the water resources or ecology of the state or region, and shall include those waters which are experiencing or may reasonably be expected to experience adverse impacts. Each water management district’s priority list and schedule shall include all first magnitude springs, and all second magnitude springs within state or federally owned lands purchased for conservation purposes. The specific schedule for establishment of spring minimum flows and minimum water levels shall be commensurate with the existing or potential threat to spring flow from consumptive uses. Springs within the Suwannee River Water Management District, or second magnitude springs in other areas of the state, need not be included on the priority list if the water management district submits a report to the Department of Environmental Protection demonstrating that adverse impacts are not now occurring nor are reasonably expected to occur from consumptive uses during the next 20 years. The priority list and schedule is not subject to any proceeding pursuant to chapter 120. Except as provided in subsection (4), the development of a priority list and compliance with the schedule for the establishment of minimum flows and minimum water levels pursuant to this subsection satisfies the requirements of subsection (1).
(4) Minimum flows or minimum water levels for priority waters in the counties of Hillsborough, Pasco, and Pinellas shall be established by October 1, 1997. Where a minimum flow or minimum water level for the priority waters within those counties has not been established by the applicable deadline, the secretary of the department shall, if requested by the governing body of any local government within whose jurisdiction the affected waters are located, establish the minimum flow or minimum water level in accordance with the procedures established by this section. The department’s reasonable costs in establishing a minimum flow or minimum water level shall, upon request of the secretary, be reimbursed by the district.
(5) A water management district shall provide the department with technical information and staff support for the development of a reservation, minimum flow or minimum water level, or recovery or prevention strategy to be adopted by the department by rule. A water management district shall apply any reservation, minimum flow or minimum water level, or recovery or prevention strategy adopted by the department by rule without the district’s adoption by rule of such reservation, minimum flow or minimum water level, or recovery or prevention strategy.
(6)(a) Upon written request to the department or governing board by a substantially affected person, or by decision of the department or governing board, before the establishment of a minimum flow or minimum water level and before the filing of any petition for administrative hearing related to the minimum flow or minimum water level, all scientific or technical data, methodologies, and models, including all scientific and technical assumptions employed in each model, used to establish a minimum flow or minimum water level shall be subject to independent scientific peer review. Independent scientific peer review means review by a panel of independent, recognized experts in the fields of hydrology, hydrogeology, limnology, biology, and other scientific disciplines, to the extent relevant to the establishment of the minimum flow or minimum water level.
(b) If independent scientific peer review is requested, it shall be initiated at an appropriate point agreed upon by the department or governing board and the person or persons requesting the peer review. If no agreement is reached, the department or governing board shall determine the appropriate point at which to initiate peer review. The members of the peer review panel shall be selected within 60 days of the point of initiation by agreement of the department or governing board and the person or persons requesting the peer review. If the panel is not selected within the 60-day period, the time limitation may be waived upon the agreement of all parties. If no waiver occurs, the department or governing board may proceed to select the peer review panel. The cost of the peer review shall be borne equally by the district and each party requesting the peer review, to the extent economically feasible. The panel shall submit a final report to the governing board within 120 days after its selection unless the deadline is waived by agreement of all parties. Initiation of peer review pursuant to this paragraph shall toll any applicable deadline under chapter 120 or other law or district rule regarding permitting, rulemaking, or administrative hearings, until 60 days following submittal of the final report. Any such deadlines shall also be tolled for 60 days following withdrawal of the request or following agreement of the parties that peer review will no longer be pursued. The department or the governing board shall give significant weight to the final report of the peer review panel when establishing the minimum flow or minimum water level.
(c) If the final data, methodologies, and models, including all scientific and technical assumptions employed in each model upon which a minimum flow or level is based, have undergone peer review pursuant to this subsection, by request or by decision of the department or governing board, no further peer review shall be required with respect to that minimum flow or minimum water level.
(d) No minimum flow or minimum water level adopted by rule or formally noticed for adoption on or before May 2, 1997, shall be subject to the peer review provided for in this subsection.
(7) If a petition for administrative hearing is filed under chapter 120 challenging the establishment of a minimum flow or minimum water level, the report of an independent scientific peer review conducted under subsection (6) is admissible as evidence in the final hearing, and the administrative law judge must render the order within 120 days after the filing of the petition. The time limit for rendering the order shall not be extended except by agreement of all the parties. To the extent that the parties agree to the findings of the peer review, they may stipulate that those findings be incorporated as findings of fact in the final order.
(8) The rules adopted pursuant to this section are not subject to s. 120.541(3).
History.—s. 6, part I, ch. 72-299; s. 2, ch. 73-190; s. 2, ch. 96-339; s. 5, ch. 97-160; s. 52, ch. 2002-1; s. 1, ch. 2002-15; s. 6, ch. 2005-36; s. 1, ch. 2013-229; s. 5, ch. 2016-1; s. 16, ch. 2017-3; s. 38, ch. 2018-110.
Note.—Former s. 373.036(7).