David Guest joined the Earthjustice team for Day 4 of the hearing and I finally got to meet him. He is obviously a powerhouse and he engaged in some very interesting legal debates in the afternoon with the judge and the other attorneys on the case. The debates revolved around differences between federal and state perspectives on the testimony of agency representatives who interpret legal rules while in the midst of a legal case; evidently federal law requires careful deliberation and consideration of agency interpretations of rules, whereas state law is not similarly constraining and allows individuals to state their opinions more freely. (The debate ensued during the testimony of the woman who is head of the Office of Water Policy at FDEP.)
Here are some highlights of the day.
One of the SRWMD attorneys moved for involuntary dismissal of our case, claiming that we had not “met our burden” of demonstrating that we actually have a case. Judge Canter disagreed. “The Ichetucknee Alliance has met their burden,” he said. “I’m not going to cut anything off at this point.”
I asked two members of the Earthjustice team why they thought Judge Canter had referred to the case as unique. Neither remembered that specific remark, but said they thought it probably had to do with the fact that the Florida Department of Environmental Protection, rather than the water management district, is the agency that is set to adopt this MFL rule—this is the first time that has been done in Florida and is a result of the fact that the rule will apply to two WMDs, Suwannee River and St. Johns River.
Much of the day involved technical questions from the other petitioner, Paul Still, to witnesses from the SRWMD. Questions included how the MFLs were developed, the water models used to assess hydrologic conditions, the location of river gauges, the effect of floods in the Suwannee on conditions in the Ichetucknee and Lower Santa Fe Rivers, anthropogenic effects on hydrology, etc. Some standout quotes and Q&A summaries follow.
“There is uncertainty in the model.” –Carlos Herd, in response to a question about the impacts of withdrawals on river gauges
Judge: How are MFLs at springs determined?
John Good, SRWMD: There is a paucity of data on the springs. We assigned MFLs based on their contribution to the river. The best way to do this is to assess with the groundwater model and see if there is a cumulative change. We cannot determine MFLs based on one moment in time.
Judge: So you must look at the gauges to determine?
A: Yes. If the groundwater model affects the spring, it will affect the gauge.
Q: When you came up with baseline MFLs, did you assume a linear relationship between rainfall and flow?
A (same witness): Yes.
Q: What was response of peer review?
A: They did not review the final model that we used, which deals with one of their exceptions.
Q: Is that still a linear model?
A: Yes.
Q: Did the peer review question the linear relationship?
A. The report speaks for itself.
Q: From 1990-2010, was the area in a major drought?
A: Certainly from 2000 on.
Q: Would that drought impact groundwater levels?
A: Yes.
At one point, Guest pointed out that there have been 400 new consumptive use permits issued since 2010 and made the argument that the State’s assumption that water use has leveled off since 1990 is false.
“If you wanted to evaluate conditions today, you’d need a real-time transient model and those are few and far between.” –SRWMD Hydrologist Trey Grubbs
Q: Is the goal to have transient models?
A: Yes…that’s my goal.
Janet Llewellyn of the FDEP Office of Water Policy was accepted as an expert witness in a number of areas, but not on groundwater or surface water modeling. She spent some time answering questions from the FDEP lawyer about how the MFL rule was developed and how she thinks it will be implemented (which sparked the discussion mentioned earlier).
“We’ve left a lot of flexibility for creativity on the part of the applicant” for suggesting offsets to impacts on water bodies, according to Llewellyn.
Q from David Guest: Will the regional water supply plan include MFLs?
A: I believe so.
Q: Is there any impediment to the WMD’s advising farmers to use less water today?
A: No.
Q: Any impediments to starting to do that today?
A: No, but it’s “good to have it codified as a recovery strategy.”
Q: Are there any errors in the Statement of Estimated Regulatory Costs that you know of? Any mistakes?
A: “It is a good faith estimate of the cost of the rule.”
The hearing resumes on Friday, June 13 (!), at 8:30 a.m.