Background Information on the Alliance’s Petition for an Administrative Hearing on MFLs
The clear purpose of Florida’s 1972 water law, in mandating that minimum flows and levels (MFLs) be determined and set, was to guarantee preferential water rights not only to Florida’s springs, but also to the natural ecosystems they support. –Former Florida Governor Buddy McKay in “Give priority to our springs”
Why did the Ichetucknee Alliance decide to join a petition for an administrative hearing on the proposed MFL Rule for the Lower Santa Fe and Ichetucknee Rivers?
1. Recent changes to the MFL Rule have led the Alliance to reconsider its position on the proposed minimum flows and levels (MFLs); we have done so reluctantly.
The Ichetucknee Alliance reluctantly decided to petition for an administrative hearing on proposed Florida Department of Environment Protection (FDEP) Rule # 62-42 because recent revisions to that rule have severely weakened and postponed protections for the Ichetucknee River System and made recovery of flows and restoration of that system much more difficult.
The Alliance felt that the original MFLs set for the Ichetucknee were inadequate to protect the river; however, because we understand and support the need for a balanced and practicable approach, we were willing to accept those MFLs for the chance they provided us to work with FDEP and the Suwannee River Water Management District (SRWMD) on a recovery strategy and improved MFLs in about five years. The revisions that have been made to the rule over the past several months, however, when coupled with the other problems detailed below, caused the Alliance to reconsider its position.
We remain committed to working in good faith with FDEP and SRWMD but as the MFL rule currently reads, a proper balance that protects the Ichetucknee River ecosystem has not been established between human consumptive needs and ecosystem needs. The Alliance’s objective in petitioning for an administrative hearing is to ensure that protection now.
2. The Alliance’s vision is for “a healthy Ichetucknee River System that is preserved and protected for future generations.” The Alliance’s goal is to ensure the recovery, restoration, preservation, and protection for future generations of the ecosystems along the full 5.5-mile length of the Ichetucknee River, including all its associated springs. We consider that protection of the Floridan Aquifer is an integral part of these goals.
3. The water model and software used by SRWMD to evaluate the impacts of consumptive use permits and used in the MFL process to estimate a range of pumping effects on flows of the Ichetucknee River are inadequate for those tasks. Here are our reasons for making that claim: (1) the model and software fail to account for the karstic characteristics of the Floridan Aquifer in the Ichetucknee area, including the presence of underground saturated conduits; (2) they fail to account for the cumulative amount of water being withdrawn from the Floridan Aquifer by holders of consumptive use permits; (3) they are based on inaccurate assumptions about the amount of water entering and leaving the hydrologic system surrounding the Ichetucknee; and (4) they fail to show the documented impacts to groundwater levels from the existing groundwater withdrawals.
4. The MFLs for the Ichetucknee River were inaccurately calculated. In the Alliance’s June 2013 and December 2013 comments to SRWMD about the Ichetucknee MFLs, we requested an MFL equivalent to the river’s historical average flow of 350 cubic feet per second (cfs) or 226 million gallons per day (mgd); the long-term average flow in the river has not been above that level since 1989 and has been continuously declining since 1967.
Moreover, the MFLs for the Ichetucknee River were calculated in a way that fails to account for loss of flow that occurred before the 1990s. The result of these inaccurate calculations is an automatic loss or “takeaway” of 90 cfs or 58 mgd that has not been factored into the MFLs and is not targeted for recovery in the proposed recovery strategy. This situation shortchanges the river and assures its continuing impairment indefinitely.
5. The proposed rule offers no certainty for the Ichetucknee River. At the same time that 58 mgd has inaccurately been removed from the MFL calculations, the MFL Rule has been revised to “grandfather in” existing large water users because the SRWMD acknowledges that these users need certainty for their consumptive use permits—yet the proposed rule offers no corresponding certainty to the health of the river.
6. The proposed recovery plan is inadequate for the task of restoring the Ichetucknee River System. This system has suffered flow reductions that are unaccounted for by the MFLs. The recovery plan is an underachieving strategy that requires no sacrifice or changes from anyone and fails to explain how the strategy will be implemented to result in real recovery of flows in the Ichetucknee.
The Alliance believes that if the Ichetucknee River System is to be restored, sacrifice and changes must be compelled by the SRWMD from all water users. Anything less would elevate consumptive use over resource and ecological protection, contrary to the intent of Chapter 373, F.S., and in conflict with the requirement to expeditiously implement a recovery or prevention strategy to achieve recovery to the established minimum flow as soon as practicable.
The Alliance also notes with dismay the situation at Manatee and Fanning Springs, which have had MFLs in place since 2006 but have continued to suffer flow declines. A similar situation cannot be permitted on the Ichetucknee.
7. The MFL fails to account for adverse effects of low flows on unique and endangered species including the Ichetucknee silt snail and the Florida manatee. The Ichetucknee silt snail is found only on the Ichetucknee River. If the river is too low during the winter, manatees are unable to enter the warmer Ichetucknee River from the cooler Santa Fe River because they are unable to navigate over the limestone shelf at the confluence of these two rivers.
8. The proposed rule exempts all existing large water users, including utilities and agriculture, from the statutory requirement now in place to demonstrate that their use will not cause significant harm to our waters. We note that a CUP is not a vested interest in water; it is permission to use water subject to regulation, yet the SRWMD is vesting the rights of current holders of consumptive use permits in relation to river impacts. Current CUP holders are not required to do anything and may renew their full previous allocation for up to 20 years without taking action to help bring about recovery.
9. The proposed rule prevents the water management districts from considering, during the consumptive use permitting process, the impacts that these uses have on our waters.
10. The proposed rule purports to treat impacts caused by withdrawals in Georgia differently from impacts caused by withdrawals in Florida, which is not authorized by Ch. 373. The result is that as long as CUP-holders can show that water loss is attributable to withdrawals in Georgia, CUP-holders may continue their water use and take no action even if the river faces catastrophic water loss. A better solution is required.
11. The proposed rule fails to acknowledge that we hold our waters in trust for future generations. Instead, the rule emphasizes only the rights of today’s consumptive use permit holders and ignores the rights of those who may need permits in the future.
12. The proposed rule does not follow the Precautionary Principle. The Alliance recognizes that reasonable scientists may reach different conclusions from the same data and that this is a normal part of how the scientific process works. We believe that, when faced with uncertain or conflicting scientific theories in situations that have the potential to cause great damage to our natural systems, Floridians are best served by adoption of a precautionary or conservative approach: “When in doubt, do no harm.” In other words, we should err on the side of caution to protect the river. The proposed MFL Rule does not follow this Precautionary Principle.
13. As a result of modifications that have been made to the original proposed MFL rule, the Ichetucknee Alliance now believes that the Ichetucknee River will have fewer protections under the new proposed rule than it would have with no rule at all.
Summary. As stated above, the Ichetucknee Alliance remains committed to working toward full restoration of the Ichetucknee River System, including working in good faith with the Florida Department of Environmental Protection and the Suwannee River Water Management District on that restoration whenever and wherever we can.
The Alliance believes, however, that an improved rule—a rule that offers a level of certainty to the Ichetucknee River System that is comparable to that which is offered to existing consumptive use permit holders—is required in order for restoration efforts to be effective.