Disenfranchised – Science/Public Interest Lose Again

What a crazy ride this has been.  In December 2018 Nestle Waters North America (“Nestle”) purchased the bottling plant about a mile from two wells at Ginnie Springs owned by Seven Springs Water Company (“Seven Springs”), and in March of 2019 Seven Springs started application for a renewal of a permit, set to expire in June 2019, that it had held for over twenty years allowing the withdrawal of 1.152 million gallons per day of water from the two wells. The average draw through that period was about 270,000 gallons per day, and the highest annual average was 387,000 gallons per day.  OSFR and other environmental groups were alarmed at the projected tripling or more of the withdrawal that Nestle was planning.

The Suwannee River Water Management District (“District”) had many questions that led to three Requests for Additional Information and in March 2020, the staff recommended denial of the permit citing three administrative reasons, none of which bore on the negative effects to the resource itself. Days before the District Board was to vote, Seven Springs filed a petition with the Division of Administrative Hearings (DOAH) disputing the issues and asking for an order to approve the permit.  On that same day Seven Springs published a notice in the Gainesville Sun announcing the intent to deny, citing the pending Board vote, citing the 21 day rule for relief from affected parties if the Board doesn’t go along with the staff recommendation, and stating that failure to file results in a waiver or filing rights. As a result of the filing, the Board struck the vote from its agenda.

The expected flurry of paperwork filings ensued.  Leading up to a June 29 decision, Seven Springs sought and was granted a motion to limit any further proceedings to the three issues cited in the initial District staff report.  District lawyers tried to argue that additional issues could be brought up in discovery, but the judge denied them that.  The three issues, in short, were as follows:

• The District was not provided the contract between Nestle and Seven Springs, and the memorandum of agreement that they were provided didn’t demonstrate sales/purchase commitments
• Applicant failed to demonstrate physical and/or financial means to perform its project
• Applicant failed to assure that all bottling would be done at the High Springs facility

At the end of July, the parties appeared to come to a settlement, whereby Seven Springs agreed to a modestly lower allocation at 984,000 gpd and the District staff professed satisfaction with the three administrative points (without explanation), gave a green light to the science and changed their recommendation to approval. With that change of recommendation OSFR found it necessary to enter the dispute as a party since for the first time our interests were negatively affected.  Even as the Board of Governors tabled the vote to ask for Nestle to become a co-applicant, thus negating the agreement, we felt that we needed to get into the dispute to promote our experts’ opinions that the District staff had effectively greenwashed a permit exacerbating already substantial damage to the resource.

On August 24, OSFR officially filed our petition, to be immediately rebuffed by Seven Springs, questioning our timing and our standing.  A few motions back and forth later, the judge granted the Seven Springs motion to dismiss OSFR from the case, but pointed to two sections of the statutes – one that would allow us in as intervenors, and the “Springs Protection Act” that might allow us to enter resource-related arguments.

Accordingly, on September 28, OSFR entered a motion to intervene, citing all of the science and public interest arguments that we wanted in play.  Undeterred, Seven Springs returned with a motion for dismissal, but further requested that, in absence of dismissal, the judge not allow science and public interest arguments as prejudicial to the three-point case they had been contesting.  The judge followed suit, granting OSFR intervenor status but warning us not to raise the issues we felt were imperative to justify permit denial.

This left OSFR in a critically weak – and legally expensive – position.  All we could do is argue the three points initially raised, all of which seem to have been worked out at this point.  Presumably, Seven Springs issued an amended memorandum of contract that satisfied the district as to sales/purchase commitments.  Seven Springs had an engineer study physical plant modification by Nestle to be able to assert that they could indeed physically process the requested allocation, and the District hired an engineer to review it who attested that it was indeed possible, though barely. And, based on the scuttled settlement agreement, Seven Springs was apparently willing to accept a limiting condition that all bottling would be done in the District.

On October 3, OSFR made the decision to withdraw from the suit.  This is not a capitulation, it is a strategic move to save our limited funds, generously provided by the many donors willing to keep us afloat through this costly process, for a later expected point of entry, where we can file the science and public interest issues where we believe that the District staff let us down. We will continue to appeal to the Board, who will still make the final decision.  We firmly believe that this huge gash in the “death by 1,000 cuts” of the Santa Fe River and its springs system must not be allowed. We firmly believe that the written opinions of over 18,000 concerned citizens, virtually unused in the District staff decision process, should speak to a public interest argument allowed by the legislature years ago.  We firmly believe that such damage should not be allowed merely due to technical legal roadblocks taken advantage of by a skilled legal firm with virtually unlimited funding.  Given the funding, we have the resolve to fight this until the Supreme Court tells us to stop.  We, the people, will prevail.

Mike Roth President
Our Santa Fe River, Inc.
2070 SW CR 138
Fort White,
Florida 32038