Day 5, the Final Day of the Administrative Hearing on MFLs

Posted on June 14th, by in Current News. No Comments

This was the Suwannee River Water Management District’s day to call their witnesses. One of the SRWMD lawyers took the leading role for the FDEP/WMD/utilities team.

The first witness was Carlos Herd, who was introduced as a person who could speak to the recovery strategy for the Lower Santa Fe and Ichetucknee Rivers. Herd did a good job of explaining Table A-4 in one of the evidentiary documents that lists quite a few of the District’s efforts to help agriculturalists save water and to improve aquifer recharge. He mentioned agricultural cost sharing programs that promote irrigation efficiency and result in 3 million gallons a day (mgd) of water savings in the Santa Fe Basin (which includes the Ichetucknee); an agricultural offset program in Gilchrist County; a wetland project in Alachua County that is in the design phase; the “Our River Program,” a local government conservation program; efforts at the Lake City sprayfield that will improve conditions in the springs (a project that the Alliance supports); a 10 mgd recharge project at Mallory Swamp; a demonstration project that will use drip irrigation for corn, “one of the most efficient delivery systems” that “uses much less water”; and negotiations to purchase Brooks Sink in Bradford County for a dispersed water storage project.

David Guest of Earthjustice then called Herd’s attention to a footnote to Table A-4 that explained that the table was NOT a component of the recovery strategy but a “demonstration of ancillary benefits.” Guest asked if that statement applied to all projects in that table; the answer was yes.

Q:  Is Table A-3 the same?
Objection:  Witness did not speak to Table A-3.
Judge:  “It says what it says.”
Q:  The only part of the recovery strategy that’s listed is in Table A-2. The same (as for Table A-4) is true of A-5, is that correct?
A: That’s what it says.

No further questions from Earthjustice.

The SRWMD then called John Good, who manages MFL projects for the District. Good walked us through the process used to arrive at the MFLs, using a PowerPoint presentation for part of his talk. Subjects covered included setting the baseline flows for the rivers, a perceived “change in relationship” between rainfall and streamflow beginning around 1990, and discussion of the MFL technical report.

I noticed that many of the slides presented were for the Lower Santa Fe, not the Ichetucknee. The judge asked how recreation factored into setting the MFLs, to which Good replied that there was “no measurable metric” for recreation analysis but that the District did attempt to assess the recreation impact on the Ichetucknee.

The judge also asked a question about issues surrounding the boundaries used by various models. Good explained that linear water models do not use boundaries.

Regarding the District’s claim that water use has stabilized since 1990:

Q (from SRWMD lawyer):  Are you aware that the petitioners claim baseflows will continue to decline? Is it appropriate for them to extrapolate from the data in this way?
A: They are extending the slopes of the modeling and it is not appropriate to extend slopes in this way. These two models were not developed as predictive tools; they describe historical trends to assess the status quo and increasing water use. “Pumping appears to have been constant for a number of years…the recovery plan includes mitigation…eventually the system will reach equilibrium” and then declines in the system can be expected to level off.
Q: Is it possible that equilibrium exists presently?
A: Yes, but we need more time to determine that.

Good also said that “We did not develop the MFL with use of withdrawals” but used withdrawals in the water body status assessments. It is “commonly accepted that there is a relationship” in these systems and the “majority of impacts to this system are due to groundwater withdrawals.”

David Guest of Earthjustice called Good’s attention to Petitioner’s Exhibit #2, p. 9 (recovery strategy): Does this show an increase in water use since 1990?
A: “A slight increase” compared to other slopes.
Q: If more permits are issued after 2010, would that change your opinion (about the effect of groundwater withdrawals)?
A: I would differentiate between permits and actual withdrawals. If there were a net increase in withdrawals, I’d expect a decline in groundwater level.

The District then called Tommy Kiger.

Q: Referring to the petitioner’s claim of 400 new agricultural permits since 2010, does this give insight into the amount of increase in withdrawals?
A: No, because we looked at who would be affected by the rule, not permits that retire or drop off.

The District then called Warren Zwanka, who spoke about the difference in actual water use vs. permitted use and who does not think Earthjustice’s claim of increasing use is valid because of that and because of modifications that must be made to permits when crops or farming techniques change.

David Guest, Earthjustice:  If a consumptive use permit (CUP) holder uses more water than permitted, how is that permit out of compliance?
A: They are out of compliance with Rule 40B-2 of the Florida Administrative Code, the three-pronged test of “reasonable and beneficial” use and specifically, “a quantity that is necessary for economic and efficient use.”
Q: How many enforcement actions have you performed for such violations?
A: None.

Judge Canter:  How does the one-in-10-year drought factor into permitting?
A: The permit gives farmers the flexibility to use water if they need it.
Judge:  If a farmer applies for a permit, how does he know that maximum is allowed?
A: There is no specific wording; information is included in the application handbook.

The District then rested, and Earthjustice called Ken Weber for rebuttal.

David Guest:  Have groundwater declines stabilized?
A: No.

Weber cited SRWMD’s own data and 46 mgd in additional permits since 2010.

During cross-examination, Weber refused to back down from his opinion, cited his familiarity with SRWMD conditions, and stated that the numbers of new permits issued usually greatly exceed the numbers of permits that are retired.

I was struck by the similarity of these last exchanges and other exchanges I have witnessed in water meetings—the disagreement among expert scientists over what their data actually mean. I remain convinced that this is where a discussion of ethics—and especially the Precautionary Principle—can help to move the dialogue forward. Since this principle has not been codified into American law as it has been in the European Union, however, this was obviously not possible in this courtroom.

The hearing concluded shortly after noon. At the conclusion of the hearing, I was able to ask Judge Canter about the comment he had made earlier about this case’s being “unique.” He explained that was because only the regulatory portion of the recovery strategy was being challenged–not the non-regulatory portion.

Next steps:  An official transcript must be prepared for all parties, summaries from the lawyers are due to the judge on August 11, and the judge’s final order will be due by September 11.

Stay tuned.

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