Christopher Curry has authored an article in today’s Gainesville Sun (Nov. 12, 2014) outlining the action taken by the DEP to recover from their recent setback when Administrative Law Judge Bram Cantor ruled in September that their proposed guidelines were unacceptable due to vagueness.
E nvironmental groups, especially MFLs challengers Ichetucknee Alliance and Paul Still, were hoping that the DEP would revisit the entire set of guidelines with an open mind taking into consideration the logic and concerns of those wanting to improve the health of Florida’s ailing and dying springs and rivers.
But this was not to be, as the goal of the DEP is to quickly re-write the language so that it acceptable to the judge “…in a manner that minimizes procedural delays in establishing more environmental protection for the Santa Fe and Ichetucknee Rivers and associated springs.” said DEP representative Drew Bartlett.
Do we see irony here, when we remember that the State of Florida mandated the establishment of these guidelines 42 years ago? Why this haste after more than 4 decades of inaction?
Mr. Curry’s article can be see here in the Sun, or continue reading for a reproduction in this post. OSFR is grateful to the Sun for permission to re-publish this article.
DEP plugs data holes for minimum flow rules on 2 area rivers”
By Christopher Curry
Two months after an administrative law judge threw out the state’s proposed protections for the Lower Santa Fe and Ichetucknee rivers on narrow and technical grounds, the Florida Department of Environmental Protection is moving ahead with slight changes to the rule establishing minimum flows and levels for the two rivers.
On Friday the DEP added two pieces of technical data that the agency had left out of the prior proposed rule, an omission that led an administrative law judge to rule the MFLs invalid as too vague.
That judge’s Sept. 11 ruling dismissed the vast majority of the arguments that the environmental group the Ichetucknee Alliance and water activist Paul Still, with the Bradford Soil & Water Conservation District, had raised in their legal
challenges. They said the MFLs were too weak to protect the rivers and their springs and improperly grandfathered in existing permitted water uses that already had impacted the rivers with their groundwater pumping.
The MFLs establish acceptable flows for rivers after which any additional pumping of the rivers will lead to “significant” environmental harm. The DEP has said both the Ichetucknee and Lower Santa Fe are already flowing below their proposed MFLs. But after a coalition of water utilities considered a legal challenge, the department adopted rules that did not address the impact on the rivers from the groundwater pumping of utilities, agricultural operations or other users who currently hold water-withdrawal permits. Under DEP rules, any existing groundwater pumping permit that comes up for renewal without a requested increase to allowable withdrawal levels “shall be” approved for up to 20 years, with the caveat that they will be revisited after a new computer groundwater flow model for North Florida and South Georgia is in place. In a 54-page ruling released Sept. 11, Administrative Law Judge Bram D.E. Canter said the proposed rules setting minimum flows and levels for the two rivers did not include enough technical information to support them.
Specifically, Canter said the rules were invalid because the DEP left out the period of record, or the time span covered, for the flow duration curve of the rivers. That curve shows the percentage of time that the flow of a river, as measured in cubic feet per second, equals or exceeds a specific level.
In his ruling, Canter said the DEP also left out “synthetic” data, or numbers used to fill in gaps in data obtained by direct measurement, or a reference to a technical report that contained all of that information.
Last Friday, the DEP added that information, which was compiled in other reports, to the proposed rule. The period of record for the flows in the Ichetucknee at U.S. 27 and the Lower Santa Fe near Fort White covers the time span from Oct. 1, 1932, to Sept. 30, 1990.
In September, a representative of the Ichetucknee Alliance said the group hoped the judge’s ruling would prompt the DEP to sit down with environmental groups and take their concerns into account before revisiting the MFLs.
Late last month, a high-ranking DEP official indicated that the agency’s plan was to add the information the judge said was lacking into the proposed rule.
“We are currently looking at a means to include the technical information in the rule,” DEP Deputy Secretary for Water Quality and Ecosystem Restoration Drew Bartlett said in an Oct. 28 statement. “Our goal is to do so in a manner that minimizes procedural delays in establishing more environmental protection for the Santa Fe and Ichetucknee Rivers and associated springs.”
Still said Tuesday afternoon that he is considering another legal challenge. He said he feels the MFLs are based on “bad science” and does not want them to become a precedent. He also objects to the fact that, for the next few years, the MFLs will only be taken into account on new groundwater pumping applications, not existing permits.
“If there is a shortage of water, any user contributing to that shortage should be affected, no matter how long they’ve had a permit,” Still said.