Day 3 of the Administrative Hearing on MFLs
The tiny Ichetucknee silt snails that live at Coffee Spring may move faster than what felt like the interminable events on Day 3!
The day began with a discussion about revisions to a document called a “pre-hearing stipulation” on which all parties needed to agree. At the end of that discussion, one of the lawyers at the FDEP/SRWMD/utilities table informed Judge Canter that after Paul Still finishes calling his witnesses, those lawyers would file a motion for involuntary dismissal of the case. Alliance President John Jopling, who is an attorney, tells me that this is a “procedural matter”—a common legal action to have the judge dismiss the case on the grounds that insufficient evidence has been presented.
Paul Still, who filed four petitions and was allowed to proceed on the one petition that included all of his issues, is his own legal representative even though he is not a lawyer.
I was pleased to hear that in his opening statement, Still mentioned the need to develop a water budget. The idea of a water budget is often compared to a financial budget because of the importance of knowing how much cash or water you have coming in (to your bank account or a natural system) before spending money or issuing water permits that might cause you to be overdrawn. Still made the points that any recovery strategy that does not consider the water budget is bad and that there is no accounting for a water budget in the proposed MFLs.
Still’s case involves four documents:
- The technical report, which is the basis for setting flows.
- The MFL rule itself.
- The proposed recovery strategy.
- The Statement of Estimated Regulatory Costs (SERC) including the lower cost regulatory alternative.
Still’s petition argues that the definition for “flow duration curve” included in the rule differs from the definition of that term in the code that governs the SRWMD. He also thinks there are deficiencies in how the MFLs were created: “This MFL does not protect those springs.”
He was then sworn in as his own witness and talked about his professional experience—including a Ph.D. in plant pathology and his current job as administrator of the Bradford County Soil & Water Conservation District—and his qualifications for legal standing to challenge. Still owns land in Bradford County that is currently planted in timber, but wants to convert some of it to blueberries. “You’re a farmer,” Judge Canter said.
One of the agency lawyers objected to Still’s mention of water modeling on the grounds that “the witness is not qualified in modeling.” The judge overruled the objection, saying, “At this level (of discussion), I will allow it.”
Still’s first witness was Warren Zwanka, senior hydrologist in the water use permitting area at SRWMD. In response to one of the inevitable objections from the agency lawyers, Judge Canter remarked that “permitting is very relevant” to this case, although it cannot be challenged.
In response to an ongoing dialogue about Still’s wanting to move exhibits into evidence, the judge said, “I will look at any law that is relevant whether you give it to me or not.” And, later, “Why do you need exhibits? Think back to villages when people talked. The purpose of a hearing is to talk.”
Zwanka then explained how SRWMD evaluates permit applications and “harm” that might be caused to natural systems.
The next witness was Tom Kiger, who had taken the stand on a previous day. Still questioned him about the recovery strategy, the SERC, the proposed 5-year limit on new agricultural permits, and, in particular, the District’s lack of a complete water supply plan. From notes to myself: “Is it all a rule until there is a plan? This is why it’s unique.”
One aspect of Still’s case is that he is challenging the rule; another aspect is that he is challenging the District’s acceptance of the rule. Attorney de la Parte pointed out that this is “a procedural issue.”
The next witness was Janet Llewellyn of FDEP’s water policy section who had also been on the stand previously. This was an interesting exchange between Still, who was the questioner, and the witness (not verbatim):
Q: Did DEP evaluate the water management district’s work on the MFL?
A: The District did the technical work.
Q: It was not further reviewed by DEP?
Q: Did DEP take the peer review into consideration?
A: We were aware of it, as well as the District’s responses to the peer review.
Q: Did DEP conclude that the responses were adequate?
A: We relied on District staff.
The ensuing discussion involved when specific documents were created and posted to the SRWMD’s website, whether agricultural concerns about new 5-year permits were considered, and how the District would deal with issuing new water permits when/if the MFL rule is adopted.
Toward the end of the afternoon, the judge went off the record to talk to the lawyers about whether to proceed into the evening to try to finish or to set a date to reconvene. Paul Still stated his need to question three or four more employees of the District.
All parties then agreed that the hearing would resume, most likely for two days, in Tallahassee on June 12-13. All parties also reserved the date of June 17 in case the hearing needs extra time after those two days.