The following was written by OSFR President Mike Roth and will soon appear in the Gainesville Sun. Roth points out unanswered issues which need resolution and which leave a bad taste in the mouth. Nothing here is pretty.
Comments by OSFR historian Jim Tatum.
– A river is like a life: once taken,
it cannot be brought back © Jim Tatum
Is our Water Management and Judicial system in the “Public Interest”?
In case you were worried that your right to clean and plentiful water has not been protected by the legislature, know that Section 373 of the Florida Statutes, the section that governs water permitting, makes 46 references to “public interest”. Previous legislative bodies (no, not the current one) were interested in protecting the public. What they forgot to do, unfortunately, is define “public interest”. Anywhere.
So when Judge Chisenhall, the administrative judge ruling on the Seven Springs (Nestle?) permit, pointed out that “…Seven Springs has the burden of proving, by a preponderance of the evidence, that the reasonable assurances required by Rule 40B-2.301 exist”, why did he not consider the almost 19,000 comments from the public in opposition to this permit since the aforementioned required assurances cite “public interest” not once, but twice?
Maybe it is because the issue was specifically banned from discussion in the case, primarily because it was not raised by the Suwannee River Water Management District in the first place. It would be interesting to see the workpapers in their files where the District even considered “public interest”. For every water permit they approve, they assert that the request is in the public interest. How can they make this assertion when the term isn’t even defined in the law?
Judge Chisenhall also alludes to Rule 40B-2.301 when he asserts that “all of the water withdrawn by Seven Springs will be utilized for a beneficial use, i.e., bottled water for personal consumption.” Beneficial to whom? Nestle? It is certainly not beneficial to the health of the Ginnie Springs complex springshed which, by the way, might be considered to be in the “public interest”. Our Santa Fe River tried to get into the skirmish and have our very experienced and diligent scientists demonstrate that the withdrawals would be harmful to the springshed and the Santa Fe River, but that issue, too, was banned from discussion because it was not raised by the Suwannee River Water Management District in the first place.
Even the Seven Springs attorneys happily pointed out that “none of the grounds for denial at issue in this proceeding include any environment or resource protection criteria”. Well, why the heck not?
And while we’re speaking of “beneficial use”, does the Suwannee River Water Management District recognize that the Santa Fe River has been running below Minimum Flows and Levels since MFLs were established? With water beneficial to everyone, part of their job is triage. When Seven Springs asserts that their withdrawal “…represents between 0.6% and 0.9% of the combined Ginnie Springs flow rate…For reference, the 2018 SRWMD permitted groundwater withdrawals within the Ginnie Springs complex springshed for agriculture …represents between 15% and 22% of the approximated spring flow”, is there any consideration of the relative importance of grain and meat compared to putting water in polluting plastic bottles?
“Ownership and control” was yet another disallowed issue, even though it is a major underlying concept of Section 373 of the Florida Statues and the related Rule 40B-2.301. Why? Because the Suwannee River Water Management District never brought it up. Seven Springs does not own the wells, the pipeline from the wells to the bottling plant, or any part of the bottling plant or the land that it is on. It does indeed have an “extraction agreement” with the owner of the wells that the land is on, the matriarch of the family that owns Ginnie Springs Outdoors. Presumably, then, you or I could dig a well in our backyard, pull out a million gallons a day and sell it to a third party. It only took SRWMD Board member Donald Quincy a few minutes when this permit first came before the Board last August to question this, going so far as to cause the Board to table the permit to get the ownership and control matter settled. But Judge Chisenhall wasn’t hearing any part of it: “An agency may not deny a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant within (a) 30-day period.” So I guess he feels that the Board had better vet permits in the first 30 days. As for me, I am confused as to why the Board has to vote on a staff vetted permit at all if they’re not allowed to question missed details like ownership and control. Don’t such decisions render the Board toothless?
We sincerely hope the Board of the Suwannee River Water Management District has the backbone to deny this permit on grounds other than those that Judge Chisenhall felt were satisfied. There are plenty, and “public interest” is watching.