Day 2 of the Administrative Hearing on MFLs

The “big news” of the day was the fact that Attorney Ed de la Parte, who is representing JEA and a consortium of utility companies in North Florida, is now leading the questioning not only for the utilities but also for the state agencies that are opposing our challenge—the Florida Department of Environmental Protection and the Suwannee River Water Management District.

I watched as de la Parte took the lead role in questioning witnesses—indeed, he was the only attorney to cross-examine the day’s expert witness!—and in offering objections to almost every question from the Earthjustice team. I then watched as the lawyers for FDEP and SRWMD fell into lockstep behind every single objection that de la Parte offered.

Members and friends of the Alliance, take painful note of this:  Our tax dollars, in the form of salaries that are being paid to these agencies’ lawyers, are not supporting efforts to reverse the damage to our waters. Instead, these particular taxpayer dollars are paying lawyers who are working AGAINST any meaningful changes to the status quo that might help to bring about recovery of the Lower Santa Fe River, the Ichetucknee River, and the associated springs.

On a more positive note, two more Alliance members, Lars Andersen and Gina Alvarez, attended today’s session and spoke on behalf of the Ichetucknee.

Andersen, who is an outfitter and river guide whose business is based in High Springs, described the decline in our rivers as “a crisis that’s happening so fast it’s alarming…our new normal is low.” He mentioned how the MFLs at Manatee and Fanning Springs “are not helping much” and pleaded with those in attendance to “err on the side of caution and go with the number that leaves the most water on the river…we rely on the health of these rivers for our own physical health.”

Alvarez, who is a student at the University of North Florida who is interested in marine biology and systems ecology, spoke about the importance of the rivers and springs for her education. She mentioned how our system of springs “has direct contact with the aquifer.”

The day’s expert witness for the Alliance was Ken Weber, former hydrologist with the Southwest Florida Water Management District (SWFWMD). Weber held several jobs at that agency, including overseeing the water use permitting area. During the questioning, de la Parte and the agency lawyers continued to object to acceptance of SRWMD’s own documents as evidence—including a copy of the monthly hydrologic report issued by the district at a recent governing board meeting! There was also a strenuous attempt made to disallow the District’s 2010 Water Supply Assessment report as evidence, but eventually the judge accepted that document.

Judge Canter:  “In the rulemaking process, you need to live with what’s been published by the agency.”

The next witness was Janet Llewellyn, who works in FDEP’s Office of Water Policy and led the DEP team that worked with the SRWMD on the recovery strategy and the Statement of Estimated Regulatory Costs (SERC). During this questioning—some of which revolved around Earthjustice’s assertion that FDEP negotiated with de la Parte about changes in the MFL rule language, an assertion that did not seem to bother the judge—it was pointed out that we are “challenging the rule as an invalid exercise of delegated legislative authority.”

Here we entered a huge bog of legalese that I will not attempt to explain except to say that Judge Canter took control of the conversation:  (to Earthjustice) “Only one part of the rule has been challenged. Does the rule obstruct the recovery? Is your position that you can’t wait five years to see something on the regulatory side?”

Reimer:  “No. The intent of the rule is to maintain the status quo.”

Opponents:  “No statute says we have to do this (recovery plan) in the rule.”

Judge:  “It’s hard for me to see how you can’t criticize something that’s not dealt with holistically. When is the thing holistically examined? What if the recovery plan doesn’t say anything? You’re coming close to saying you could never establish the invalidity of the regulatory portion.”

Opponents:  There is a policy side and a regulatory side. Policy is exempt from rule making.

The judge then stunned me by remarking that this case is unique and he repeated that—“very unique.” (Yes, I know that’s grammatically incorrect, but that’s what he said.)

Opponents:  “Does the rule impede the plan?” There is no substantial demonstration that this is so. Suggestion:  Have the Florida Land & Water Adjudicating Commission address concerns with the water supply plan.

Judge:  “The recovery plan is singular with the rule portion. If the recovery plan says it will act within 10 years and the rule says we won’t do anything within 10 years, couldn’t I determine that since the plan doesn’t affect recovery, then you don’t have time to recover the water body?” He stated again that this case is “definitely unique” and said he knows of no other case like it. “I have to follow the law, and the law is flawed.” (emphasis mine)

Reimer mentioned Ch. 373.042, a new cross-boundary statute that gives DEP the authority to set rules and includes language about “recovery strategy” as rule. “We don’t believe that a rule that allows increased harm is consistent with this statute…DEP cannot adopt as a rule something that will allow these water bodies to worsen” over the next five years.

We reconvene at 8:30 a.m. on Friday, May 30. Oh, joy.