County votes to challenge MFL rule
Published: Tuesday, April 1, 2014 at 9:40 p.m.
Last Modified: Tuesday, April 1, 2014 at 9:40 p.m.
The Alachua County Commission decided Tuesday to authorize filing a petition against the final version of proposed protections for the Ichetucknee and Lower Santa Fe rivers, reversing its decision last week not to challenge the proposed rule.
The County Commission voted 3-1 to authorize filing a petition to challenge the rule that the Florida Department of Environmental Protection plans to adopt, with Commissioner Susan Baird in dissent and Commissioner Lee Pinkoson, who left the meeting early, absent.
However, the commission also authorized staff to negotiate with the agencies involved, as well as other stakeholders, prior to filing the petition.
If they could find some middle ground and negotiate a better version of the rule, Commissioner Robert “Hutch” Hutchinson said it could prevent the county from needing to challenge it.
Challenging it could cost the county around $100,000, although the government has already spent some money on relevant preparations.
The proposed rule would set minimum flows and levels, or MFLs, and related recovery strategies for both rivers as well as their springs.
If approved, this would be the state DEP’s first time adopting MFLs, which set the water levels above which there may be permitting without causing significant environmental harm to a particular body of water.
Both the Lower Santa Fe and Ichetucknee rivers are expected to be below the MFLs once they are set, which is where the recovery strategies are supposed to come in. The MFLs would apply to both the St. Johns River and Suwannee River water management districts.
The County Commission’s decision Tuesday came a week after the board ruled the opposite way, with Commissioners Susan Baird, Mike Byerly and Lee Pinkoson voting against a motion to challenge the rule.
However, the day after that vote, Byerly sent an email to his fellow commissioners and to county staff members in which he explained he had come to believe he made the wrong decision after having conversations with people more familiar with the administrative and legal aspects of the situation.
The County Commission reconsidered the issue Tuesday at Byerly’s request.
Hutchinson pointed out that the county had anticipated utilities or some other entity would challenge the earlier version of the rule that the county supported. But changes the utilities wanted were made, so now the county is in the position of wanting to file a challenge.
Jennifer Springfield, outside legal counsel for the county, said part of the problem is that, while the proposed rule has been significantly changed, she doesn’t think the latest draft has been vetted the way it should be.
The final version of the rule did away with an earlier provision for a five-year limit on some consumptive use permits and instead allows for 20-year permits.
Once the forthcoming North Florida Southeast Georgia Regional Groundwater Flow Model is finished, the proposed rule also would require re-evaluating the MFLs, which must happen by the end of 2019 at the latest.
Ann Shortelle, executive director of the Suwannee River Water Management District, said the recovery plan for the rivers and their springs would be implemented in phases.
“It is a phased plan, and I know this has been part of the angst. It takes many years to accomplish a recovery plan, but we didn’t get here overnight either,” she said.
The first phase would specifically address new water uses and new applications for consumptive use permits, for which any impacts to the MFL-protected bodies of water must be offset. Existing users would be considered consistent with the recovery plan during that phase.
“Phase one won’t get us to the goal line but it will most definitely keep the situation from getting worse and also from getting more expensive,” Shortelle said.
County Environmental Protection Director Chris Bird said if the county could help come up with a better rule that doesn’t hold existing users harmless, that would be a good measure of success that could justify challenging the rule.
“What I don’t believe is success is merely getting the rule thrown out,” he said.
Baird, who voted against challenging the rule both this week and last week, said it sounded like challenging the rule could create more unintended consequences that wouldn’t help the community overall.
John Jopling of the Ichetucknee Alliance, who spoke during the meeting, told The Sun afterward that his organization intends to challenge the rule before the filing deadline later this month unless the rule has been improved by then.
Like the county, he said his organization was unhappy with the most recent version, which Jopling said took the teeth out of the MFLs.
“To have an MFL just to say you have an MFL we feel is counterproductive,” he said.