Toward a Definition of Public Interest

What is terrifying in this judgement is the disregard for the state’s resources when confronted with an issue related to money making.  This is Florida’s story that has been written and re-written with no changes in sight.

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Tom Swihart of Watery Foundation

Tom Swihart of the Watery Foundation has published an article entitled “Florida’s Hidden Water Markets,” which we would like to use as a base upon which to expound our thoughts a bit.  Not to detract from our hero Tom, we will post here his excellent article.  But please continue afterward to see the horror that takes place with this episode, which Tom spares us in his piece.

 

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Florida’s hidden water markets

Having a hard time securing a Florida water use permit? Is the proposed water withdrawal just plain too controversial? Here’s how you get around those problems. It is a bit cumbersome, and will amount to buying a water use permit, which is not strictly legal. You will have to operate behind the scenes.

First, find some nearby water user that might sell their land to you. Like, say, a sod farm or two that could be converted to the massive cattle pasture you want to create. Make sure they have a valid water use permit! After you buy the property, go to the water management district and get that permit, including the original water use conditions, transferred to you. That’s routine. But your purpose is not to continue growing sod. Make a second trip to the WMD and request a “permit modification.” Great news for you!–this is not a new permit application with all that associated hassle! A permit modification usually just slides right through. Best of all, you get the original allocated amount, even if the sod farm wasn’t using the full amount.

This convoluted process has been followed a number of times in the “Southern Water Use Caution Area” of the Southwest Florida Water Management District. (SWFWMD even estimated how much an irrigation permit added to land values.) This process probably also explains why the “Sleepy Lands” cattle ranch in St. Johns River Water Management District decided to buy two sod farms and then go for permit modifications. It worked: an Administrative Law Judge found that the permit modifications met all requirements.

You got your water and the owners of the sod farms got a nice implicit payment for their water use permits. No one knows how often this happens, what the payments are, or how much it undermines the regular permitting system. Shhhh!

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Now let us examine Administrative Judge E. Gary Early’s reasoning for his actions.  As we know, to obtain a water use permit from a water management district in Florida, the applicant must prove that his permit will be “in the public interest.”  To do this, the judge cites a precedent of the Fifth District Court of 108 Appeal which limits consideration to issues of “whether the use of water is efficient, whether there is a need for the water requested, and whether the use is for a legitimate purpose; and the inquiry focuses on the impact of the use on water resources and existing legal users.” Marion Cnty. v. Greene, 5 So. 3d 775, 779 (Fla. 5th DCA 2009).

The judge writes:  “The preponderance of the evidence in this case, including the Irrigation Demand Analysis and the Water Conservation Plan, demonstrates that the proposed use of water by Sleepy Creek is necessary for the economic and efficient utilization of the Sleepy Creek grass-fed cattle ranch.  Due to the fact that grass-fed beef cattle cannot be fed with grain or feed other than green forage crops, irrigation is necessary to provide the reliability and quality of forage crops to support the cattle.SleepyCreekLogo

He further states: “313.  For the reasons set forth herein, Petitioners failed to prove by a preponderance of competent and substantial evidence that the water withdrawals proposed were not in such quantity as is necessary for the economic and efficient utilization of the Sleepy Creek grass-fed cattle ranch.”

So the question is not  should someone be allowed to create a huge cattle ranch and use the public’s water even if it draws down the public’s Silver Springs, this for his private gain?  The question is someone has put thousands of cattle on this land, so yes, he really needs to draw a lot of water out to grow feed for them,  the cows really need their green forage crops, so there is a definite need for this water withdrawal.

The judge writes more:  “316.  Although Sleepy Creek could operate a typical Florida cattle ranch on the property without irrigation, such a use would entail shipping calves to the mid-west for fattening, slaughter, and processing, thus eliminating the benefits of those activities to the Florida job-market and economy.  Although there was no evidence of the number of full-time and part-time jobs that would be necessary to support the grass-fed beef production and processing operation, the undersigned can reasonably infer that the number of jobs will be substantial.”

Read from this:  it is OK to draw down our springs as long as some one has a job and the Florida economy benefits.  One might wonder how much tourism will be affected when the judge’s thinking takes us to the end result of no more Silver Springs and no more other springs.  Does the judge think that agriculture benefits the Florida economy more that tourism?

The Fifth District Court of Appeal says the public interest test is limited, among other things, to  “whether the use of water is efficient…”  And so the judge says:  “The Water Conservation Plan submitted with the application demonstrates that the irrigation means of application is of a high rate of efficiency than the District’s system efficiency standard.”

In spite of evidence to the contrary, the judge says the withdrawal is OK and won’t harm the springs:  “For the reasons set forth herein, Petitioners failed to prove by a preponderance of competent and substantial evidence that the environmental or economic harm caused by the consumptive use has not been reduced to an acceptable amount.”

And this is evident because:  “The preponderance of the evidence in this case, including the series of three APTs performed by Sleepy Creek and the District, demonstrates that the upper Floridan aquifer is capable of producing the requested amounts of water.”

Yes, that water is there under the ground.   Because it is there does not make it right to give it away to one individual so he can grow feed for thousands of cows to sell and make money.  And reduce the flow of the people’s springs and river.

So in his wisdom, the judge concludes:  “The preponderance of the evidence in this proceeding supports a conclusion that the water use proposed by Sleepy Creek is efficient, that Sleepy Creek demonstrated a need for the water requested and the legitimacy of the purpose for the use, and that the proposed use will not harm the water resources of the District.”

What is terrifying in this judgement is the disregard for the state’s resources when confronted with an issue related to money making.  This is Florida’s story that has been written and re-written with no changes in sight.

 

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