STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
DEP #14-0238
IN RE: FLORIDA ADMINISTRATIVE CODE
RULES 40D-8.041(16) AND 40D-8.041(17)
_____________________________________/
OGC CASE NO. 13-0914
ORDER ON CONSISTENCY
The Southwest Florida Water
Management District (“District”) adopted Florida
Administrative Code Rules 40D-8.041(16) and 40D-8.041(17), which establish minimum flows for the Chassahowitzka and Homosassa River Systems. The scope of the
Department of Environmental Protection
’s (“DEP” or “Department”) review of the water management district ’s rules is limited only to ensuring “consistency with the water resource implementation rule” (Chapter 62-40 of the Florida Administrative Code). See
§ 373.114(2), Fla. Stat. (2014).
The District addressed a comprehensive range of biological and ecological concerns to ensure that neither river system would experience significant harm, in order to derive these minimum flows. Specifically, the flows were set with special consideration to protect the habitat of the West Indian Manatee, which is found in both river systems in abundance. The District’s strategy also includes “ongoing monitoring of flows and water levels; assessment of potential impacts associated with water supply development through the regional water supply planning process and other planning and assessment activities, and implementation of a protective water-use permitting

program” to help ensure significant harm does not occur at these levels and allow for the minimum flows to be adjusted in the future if necessary. See Southwest Water
Management District, Recommended Minimum Flows for the Homosassa River System, at pages 21-22 (October 30, 2012) [hereinafter Homosassa ]. Thus, the District’s rules set the minimum flow for the Chassahowitzka as 97 percent of its natural flow and for the Homosassa also as 97 percent of its natural flow.
1 Fla. Admin. Code R. 40D-
8.041(16)-(17).
Based on the extensive scientific review and careful compliance with legal requirements, the Department finds that the District
’s rules are consistent with the water resource implementation rule.
REGULATORY BACKGROUND
A minimum flow and level (
“MFL”) is a creature of state law that is part of
Florida’s exclusive authority to regulate the water quantity of its surface waters and groundwater.
2 Florida law gives shared authority to both the Department and the Water
Management Districts (“WMDs”) to set MFLs, with the Department maintaining final oversight authority to ensure that the WMDs’ MFLs are set in accordance with the statewide policy embodied in the water resource implementation rule promulgated by the Department. See § 373.114(2), Fla. Stat. (2014). The Department is required by
1 In the context of minimum flows development and implementation, the rules define
“natural flow” as “the flow that would exist in the absence of water withdrawal impacts.”
Fla. Admin. Code R. 40D-8.041(16)-(17).
2 The Florida Water Resources Act of 1972 created a statewide statutory framework for managing water supply, including water supply planning and allocating water through consumptive use permitting. Ch. 72-299, Laws of Fla.
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law to review WMD-established MFLs and, if found to be inconsistent, may order the
District to amend or repeal its MFL. Id. WMDs must also submit to the Department annual priority lists setting forth their plans to develop and adopt MFLs. See §
373.042(2), Fla. Stat. (2014).
A minimum flow is defined as “the limit at which further withdrawals would be significantly harmful to the water resources of the area” and are developed for flowing water bodies such as rivers and springs. See
§ 373.042(1)(a), Fla. Stat. (2014). A minimum level is defined as “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 of the area,” and are developed for standing water bodies such as lakes, wetlands, and aquifer systems. See § 373.042(1)(b), Fla. Stat. (2014). MFLs are used as a tool to protect resources through water supply planning and regulating water withdrawals. Recovery or prevention strategies are also required when flow is below an established MFL, or is expected to fall below an established MFL within 20 years. See §
373.0421, Fla. Stat. (2014).
MFLs do not grant any consumptive user, or all users combined, the right to use water. To withdraw water, a consumptive user must obtain a water use permit that meets the requirements of Part III of chapter 373, Florida Statutes, and associated
District rules. A permitted withdrawal may not be “harmful to the water resources of the area” and must meet a three-pronged test.
See
§§ 373.219 and 373.223, Fla. Stat.
(2014). A permit applicant must demonstrate that the withdrawal: (1) is a reasonablebeneficial use; (2) does not interfere with any existing use of water; and (3) is consistent
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with the public interest. An applicant demonstrates that it meets the three-prong test by providing reasonable assurances that the proposed use meets the conditions for issuance that are identified in the rules of the WMDs. See, e.g., Fla. Admin. Code chapter 40D-2.
The
Department’s water resource implementation rule is a statewide rule
“intended to provide water resource implementation goals, objectives, and guidance for the development and review of programs, rules, and plans relating to water resources.
”
See Fla. Admin. Code R. 62-40.110(2); see also Southwest Fla. Water Mgmt. District v.
Charlotte County, 774 So.2d 903, 907 (Fla. 2d DCA 2001)(reflecting that the water resource implementation rule is intended as a guide to the water management districts).
Rule 62-40.473 is the portion of the water resource implementation rule specific to the establishment of MFLs. When reviewing an MFL, the Department makes its consistency determination under section 373.114(2), Florida Statutes, by comparing the
MFL to the requirements of Rule 62-40.473.
That rule states that in establishing MFLs, “consideration” must be given to
“natural seasonal fluctuations in water flows or levels, nonconsumptive uses, and environmental values associated with coastal, estuarine, riverine, spring, aquatic, and wetlands ecology, including:
(a) Recreation in and on the water;
(b) Fish and wildlife habitats and the passage of fish;
(c) Estuarine resources;
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(d) Transfer of detrital material;
(e) Maintenance of freshwater storage and supply;
(f) Aesthetic and scenic attributes;
(g) Filtration and absorption of nutrients and other pollutants;
(h) Sediment loads;
(i) Water quality; and
(j)
Navigation.”
Fla. Admin. Code. R. 62-40.473(1).
The rule also provides that MFLs
“should be expressed as multiple flows or levels defining a minimum hydrological regime, to the extent practical and necessary to establish the limit beyond which further withdrawals would be significantly harmful to the water resources or the ecology of the area as provided in Sec tion 373.042(1), F.S.”
See
Fla. Admin. Code R. 62-40.473(2). The rule also establishes guidance on when a WMD should conduct voluntary peer review. See Fla. Admin. Code R. 62-40.473(10).
PROCEDURAL HISTORY
The District adopted minimum flows for the Chassahowitzka and Homosassa
River Systems in Rules 40D-8.041(16) and 40D-8.041(17) of the Florida Administrative
Code on February 28, 2013, with an effective date of March 20, 2013.
3 On March 28,
2013, the Department received a request for a hearing under Section 373.114(2)(a),
3 The validity of the District’s rules were not challenged pursuant to Section 120.56 of the Florida Statutes.
5

Florida Statutes, 4 to address the consistency of Rules 40D-8.041(16) and (17) with the water resource implementation rule.
5
On July 19, 2013, the Department published notice in the Florida Administrative
Register ( “FAR”) at Volume 39, Number 140, pages 3605-3606, of a public hearing to be held on September 10, 2013. The purpose of the public hearing was to receive evidence and argument relating to the consistency of the District’s rules with the
Department’s water resource implementation rule. At the public hearing any affected person was allowed to provide, orally and in writing, evidence and argument relating to the consistency of the District’s rules with the Department’s water resource implementation rule. The information gathered orally and in writing assisted the
Department’s consistency review, and the hearing remained open to accept written comments until 5:00 p.m. on Friday, September 27, 2013. All written submittals and the audio recording of the public hearing were made available on a publicly accessible FTP web site after the public hearing through to the close of the hearing at 5:00 p.m. on
Friday, September 27, 2013.
4 “Within 30 days after adoption of a rule, any affected person may request that a hearing be held before the secretary of the department, at which hearing evidence and argument may be presented relating to the consistency of the rule with the water resource implementation rule . . .” § 373.114(2)(a), Fla. Stat. (2014).
5 The persons requesting a hearing were Save the Homosassa River Alliance, Inc.,
Chassahowitzka River Restoration Committee, Save the Manatee Club, Inc., Brad
Rimbey, Mitchell Newberger, and Priscilla Watkins.
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FINDINGS
The District developed specific methodologies for establishing minimum flows for both the Chassahowitzka and Homosassa River Systems and subjected those methodologies to independent scientific peer-review and evaluation by numerous stakeholders. See, e.g., Southwest Florida Water Management District, Recommended
Minimum Flows for the Chassahowitzka River System, at pages 1 and 100 (October 30,
2012) [hereinafter Chassahowitzka ] ; Homosassa, at pages 27 and 178 .
The District held public meetings and rule development workshops to solicit feedback resulting in thousands of emails and extensive discussions of data and methods that could be used to develop minimum flows. See, e.g., Chassahowitzka, at pages xvi and 103;
Homosassa , at page 181. The input received through all outreach efforts and submitted directly to the District was carefully considered by District scientists in association with minimum flow development for the Chassahowitzka and Homosassa River Systems.
See, e.g., Chassahowitzka, at page 104; Homosassa , at pages 182-183.
The Chassahowitzka and Homosassa minimum flows were developed utilizing the best available scientific information. As part of the rule development effort, the
District voluntarily engaged in a robust data collection effort to ascertain the environmental characteristics of the two river systems. See Chassahowitzka, at page 1;
Homosassa, at page 26. Using all of this information, the District thoroughly evaluated the environmental values listed in Rule 62-40.473 during the development of minimum flows for both the Chassahowitzka and Homosassa River Systems.
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The District approached setting minimum flows by first ascertaining the environmental value that is most sensitive to a reduction in flow. See, e.g.,
Chassahowitzka, at page xv. The District concluded that the habitat or biological resource most sensitive to reduced flow was the acute thermal refuge for the West
Indian Manatee for the Chassahowitzka River, and the potential changes in low salinity river bottom habitat for the Homosassa River. See Chassahowitzka, at page 94;
Homosassa, at page 176 .
In turn, those values dictated the limit at which further withdrawals would be significantly harmful to the Chassahowitzka and Homosassa
River Systems.
In evaluating the variety of ecological resources’ response to reduced flows, the
District employed both numeric models and empirical regressions. In conducting these and other analyses, the District properly considered each of the elements of the Rule
62-40.473(1), including, collectively, the “natural seasonal fluctuations in water flows or levels, nonconsumptive uses, and environmental values associated with coastal, estuarine, riverine, spring, aquatic, and wetlands ecology.” In reviewing the District’s supporting documentation, the Department found consideration of the rule as follows. a) Recreation in and on the water was explicitly included in the descriptions of designated use in the Chassahowitzka and Homosassa River System reports. See Chassahowitzka, at page 48; Homosassa, at pages 24, 76,
115, 127. Other environmental values that contribute to recreational use that were considered as representative of recreation in and on the water for
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the minimum flow determinations, include fish and wildlife habitats, the passage of fish, estuarine resources, water quality, and navigation. b) Fish and wildlife habitats and the passage of fish were considered by studying bathymetry, river bottom substrates and shoreline characterizations, water residence time, primary productivity, aquatic and semi-aquatic vegetation, benthos, fish and invertebrate plankton/nekton, blue crabs, thermally-based habitat for manatees and other organisms, and salinity-based water column, river bottom and shoreline habitats. Water depth, which is a primary factor for characterization of fish passage in both the Homosassa and Chassahowitzka River Systems, is strongly affected by tidal, seasonal, and long-term sea level trends and variation, and would therefore not be expected to substantially vary based on changes in spring flow. See Chassahowitzka, at pages 25, 30-36, 48, 55, 58, 75-78, 81, 92-94,
97, 103; Homosassa, at pages 35, 46, 68-73, 115, 127, 141, 145, 172, 176,
187, 192, 201. c) Estuarine resources were considered through the study of bathymetry, river bottom substrates and shoreline characterizations, water quality characterization (including impaired water body listings), water residence time, nitrate concentration, primary productivity, aquatic and semi- aquatic vegetation, benthos, fish and invertebrate plankton/nekton, blue crabs, thermally-based habitat for manatees and other organisms, and salinitybased water column, river bottom and shoreline habitats. See
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Chassahowitzka, at pages 48, 58, 77, 82, 92, 98, 103; Homosassa, at pages
76, 127, 141, 148, 176, 181, 201. d) Transfer of detrital material was considered through water depth, which is a primary factor affecting the potential transfer of allochthonous detrital material from the floodplain to the channel in both river systems. It is strongly affected by tidal, seasonal, and long-term sea level trends and variations. Effects of the transfer of autochthonous detrital material, which is detritus generated within the river systems, for the flow reductions that would be allowable based on the adopted minimum flows would be minimal. This conclusion is based on reviews of potential changes in water residence times and the magnitude of the potential flow reductions. e) Maintenance of freshwater storage and supply was considered through the study of discharge estimates, historical changes in discharge, long-term expected flows, and the evaluation of the effects of existing and permitted water use that affect flows in the River Systems. See Chassahowitzka, at pages 15, 20, 95; Homosassa, at page 65. f) The unique aesthetic and scenic attributes of the two systems were considered to determine if potential changes to these attributes would occur in association with the implementation of the minimum flows. Consideration of the aesthetic and scenic attributes occurred concurrently with the evaluation of other environmental values, because the aesthetic and scenic attributes are so interrelated to the other environmental values, including fish
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and wildlife habitats and the passage of fish, estuarine resources, water quality, and navigation. g) Filtration and absorption of nutrients and other pollutants were considered by studying bathymetry, river bottom substrates and shoreline characterizations, water quality characterization (including impaired water body listings), water residence time, nitrate concentration, primary productivity, aquatic and semi-aquatic vegetation, thermally-based habitat for the water column, and salinity-based water column, river bottom and shoreline habitats. Additionally, the factors used to evaluate fish and wildlife habitats and the passage of fish, estuarine resources, and water quality environmental values were considered applicable to the filtration and absorption of nutrients and other pollutants. h) Sediment loads were considered in the evaluation of both the
Chassahowitzka and Homosassa River Systems; but because the water discharge is dominated by spring flow rather than surface water runoff, it was determined that the change in sediment loads would be negligible. i) Water quality was considered by studying water quality characterization
(including impaired water body listings), water residence time, nitrate concentration, primary productivity, thermally-based habitat for manatees and other organisms, and salinity-based water column, river bottom and shoreline habitats. The District determined that the minimum flows are not expected to negatively affect water quality in the systems or impair the
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waterbodies’ designated use. See, e.g., Chassahowitzka, at page 99;
Homosassa, at page 201. Additionally, for the Chassahowitzka River
System, the District determined that the allowable reduction in flow will not result in an increase of nutrients in the system. Id. The nitrate concentration was found to be independent of flow and the minimal change in residence time that results from the minimum flow would not itself alter water quality conditions. For the Homosassa River System, the District observed an increasing trend in nitrate concentrations and found a relationship between the concentration of this water quality constituent and time, but did not find a relationship with the flow rate. See Homosassa, at page 203. The minor changes in flushing time resulting from the minimum flow would not be expected to exacerbate existing impairment associated with nitrate concentrations. Id.
j) Navigation was considered by evaluating water depth and physical characteristics of the River Systems. The Homosassa and Chassahowitzka
River Systems are both strongly affected by tidal, seasonal and long-term sea level trends and variation, thus any allowable reduction in flow was expected to be negligible based on the evaluation of water depth change that may occur. See Chassahowitzka, at pages 13, 25, 72; Homosassa, at page 65.
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Accordingly, the required environmental factors were properly analyzed and applied in establishing the adopted minimum flows so that any further withdrawals would not be significantly harmful to these River Systems.
Issues raised in Request for Hearing
The primary issues raised at the public hearing that need clarification were confusion by some over the interplay between MFLs – a state water quantity regulatory requirement
– and water quality standards – a framework of state and federal requirements for addressing pollution in water bodies. As explained below, the two regulatory regimes are separate and distinct.
Water Quality Standards
Water quality in Florida and nationwide is regulated under the authority of the
Federal Water Pollution Control Act (“the Clean Water Act”) 33 U.S.C. 1251 et seq. The
Act assigns states primary responsibility for setting water quality criteria and otherwise administering the water quality program. Florida has set water quality criteria for waters around the state, including the Chassahowitzka and Homosassa.
See generally Fla.
Admin. Code R. 62-302.500 - .540. The Department has designated the
Chassahowitzka and Homosassa River Systems primarily as Class III waterbodies with designated uses of recreation, propagation and maintenance of a healthy, wellbalanced population of fish and wildlife, and providing fish safe for consumption.
Portions of the Homosassa River in coastal areas of Citrus County are classified as a
Class II water body with a designated use of shellfish propagation or harvesting.
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As previously discussed, the MFL statute is aimed at preventing significant harm to “the water resources or ecology” of the subject water body through the regulation of water quantity. See § 373.042(1)(a), Fla. Stat. (2014). During development of MFLs,
Rule 62-40.473 explicitly requires consideration of potential effects on water quality.
Contrary to the argument made at the public hearing on consistency, setting an MFL is not a new or revised water quality standard under the Clean Water Act or Florida law.
6
The MFL statute and Rule 62-40.473 are aimed at the ecological injuries that could be caused by harmfully low water flows and levels, not water pollution. Florida law makes clear what constitutes a surface water quality standard: 1) a designated present and future most beneficial use of each water body; 2) water quality criteria (numeric and narrative) for each water body; 3) an antidegradation policy; and 4) moderating provisions such as mixing zones. See Fla. Admin. Code R. 62-302.200(2). Water flows or water levels appear nowhere within those standards, nor do they appear in the federal definitions on which these state laws are predicated. See 40 C.F.R. § 131.3(i).
The reference to water quality in Rule 62-40.473 is simply one of 10 different environmental values that must be considered, which informs the MFL analysis. In this case, based on the information provided in the technical scientific reports, the District’s minimum flows for Chassahowitzka and Homosassa address the required considerations and indicate that the minimum flows set have no effect on relevant state water quality standards.
6 Compliance with federal law is irrelevant in these administrative proceedings. See
Curtis v. Taylor , 648 F.2d 946, 948 (5th Cir. 1980); Metro. Dade County v. Coscan
Florida, Inc., 609 So.2d 644, 650 (Fla. 3d DCA 1992).
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Existing Uses
During the hearing, a concern was also raised that the
District’s minimum flows will not protect each riverine syste m’s existing uses. As required by Rule 62-40.473, however, the District specifically evaluated environmental values (fish and wildlife habitats and the passage of fish, estuarine resources, and water quality) that if protected inherently protect aquatic life uses. This argument incorrectly conflates the
“existing use” protections provided under state water quality standards and the distinct ecological values specifically targeted for consideration in Rule 62-40.473. The
District’s decision must be based on the law and the science. There was no evidence or argument presented that any species will be left unprotected by the District’s minimum flows.
7 Furthermore, the technical scientific reports made specific reference to particular species and found no adverse impact on their habitat as a result of the minimum flows. This provides additional evidence that the existing and designated use of each waterbody is protected.
Antidegradation Policy
Likewise, t he state’s antidegradation policy – a component of Florida’s water quality standards
– does not apply to minimum flows and levels. The Department’s antidegradation policy, set forth in Rules 62-302.300(11) –(18) (Findings, Intent, and
Antidegradation Policy for Surface Water Quality) and 62-302.700 (Special Protection,
7 While irrelevant to the MFL consistency analysis under Rule 62-40.473, no evidence was presented to the Department that the water quality
“designated use” is different from the “existing use” for either water body, or that the designated or existing uses will not be protected.
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Outstanding Florida Waters, and Outstanding National Resource Waters), is implemented through certain permitting programs which do not include, by law or regulation, consumptive use permits or by extension, minimum flows and levels.
The Chassahowitzka and Homosassa River Systems have both been designated as Outstanding Florida Waters (
“OFW”) under the state water quality regulations. The antidegradation policy for OFWs in Rule 62-302.700 s pecifically provides that the “policy of this section shall be implemented through the permitting process pursuant to Rule 62-
4.242, F.A.C.” See Fla. Admin. Code R. 62-302.700(7). On its face, Rule 62-4.242 only applies in the context of certain permitting programs, which do not include consumptive use permits subject to established minimum flows and levels. Thus, any activity that does not need a Department permit is not subject to the antidegradation requirements of Rule 62-4.242.
A minimum flow is not a permit issued to a person or entity to withdraw water from a water body. Instead, as described above, a minimum flow is “the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area.” § 373.042(1)(a), Fla. Stat. (2014). Since Florida’s antidegradation policy is only implemented through certain Department permits,
Florida’s antidegradation policy does not apply to the establishment of a minimum flow.
Although the Florida water quality standards, including the antidegradation policy, do not apply to MFLs, it is nevertheless important to note that this does not mean that the Chassahowitzka and Homosassa minimum flows will allow a designated use impairment or water quality degradation of the waterbodies. District scientists found no
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evidence demonstrating a connection between the potential future reduced flow in the
Chassahowitzka and Homosassa River Systems and any potential water quality or ecological impairments associated with those systems. See, e.g., Final Staff
Recommendation dated September 27, 2013.
Rule 62-40.430, F.A.C., does not provide guidance to the water management districts when establishing minimum flows and levels .
Again, the Department’s water quality regulations do not apply to MFLs. Rule
62-40.430 provides guidance to the Districts and Department for the regulation of point and nonpoint sources of pollution and establishes a watershed management approach for the development and implementation of Total Maximum Daily Loads for waters that have been listed as impaired for certain pollutants. The rule states that water quality standards “shall be enforced pursuant to Chapters 403 and 373, [Florida Statutes], to protect waters of the State from point and nonpoint sources of pollution .” Fla. Admin.
Code R. 62-40.430(1)(a).
MFLs are simply District regulations that cannot and do not fall even remotely within the meaning of point or nonpoint sources of pollution. Rule 62-620.200(37) defines a point source as “any discernible, confined and discrete conveyance… from which pollutants are or may be discharged .” While nonpoint source is not defined, it is understood to mean non-discrete conveyances from which pollutants are or may be discharged. The “discharge of a pollutant” means, in relevant part, “any addition of any pollut ant or combination of pollutants… to waters from any point source….” Fla. Admin.
Code R. 62-620.200(13). MFLs are merely regulations; regulations cannot be sources
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of pollution. Therefore, Rule 62-40.430 is not applicable to the review of minimum flows established by WMDs.
CONCLUSION
In establishing the minimum flows for the Chassahowitzka and Homosassa River
Systems, the District appropriately addressed all of the provisions in Rule 62-40.473.
THEREFORE, IT IS ORDERED that Rules 40D-8 .041(16) and (17) of the
Florida Administrative Code, which establish minimum flows for the Chassahowitzka and Homosassa River Systems, are consistent with the water resource implementation rule.
Any party to this proceeding has the right to seek judicial review of this order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the clerk of the
Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35,
Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal.
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The Notice of Appeal must be filed within 30 days from the date this order is filed with the clerk of the Department.
day of November, 2014, in Tallahassee, DONE AND ORDERED this
Florida.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
HERSCHEL T. VINYARD JR.
Secretary
Marjory Stoneman Douglas Building
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
FILED ON THIS DATE PURSUANT TO § 120.52,
FLORIDA STATUTES, WITH THE DESIGNATED
DEPARTMENT CLERK, RECEIPT OF WHICH IS
HEREBY ACKNOWLEDGED.
CLERK DATE
ELECTRONIC COPIES FURNISHED TO:
Francine M. Ffolkes, FDEP
Matt Leopold, FDEP
Kristine Papin Morris, FDEP
Laura Donaldson, SWFWMD
John R. Thomas, Esq.
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