BEFORE THE GOVERNING BOARD OF THE ST. JOHNS RIVER WATER MANAGEMENT DISTRICT. v. Application No

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1 BEFORE THE GOVERNING BOARD OF THE ST. JOHNS RIVER WATER MANAGEMENT DISTRICT ST. JOHNS RIVERKEEPER, FLORIDA DEFENDERS OF THE ENVIRONMENT, SILVER SPRINGS ALLIANCE, AND ALICE GARDINER, Petitioners, v. Application No ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Respondent. / ST. JOHNS RIVERKEEPER, FLORIDA DEFENDERS OF THE ENVIRONMENT, SILVER SPRINGS ALLIANCE, AND ALICE GARDINER S PETITION FOR FORMAL ADMINISTRATIVE PROCEEDINGS St. Johns Riverkeeper, Florida Defenders of the Environment, Silver Springs Alliance, and Alice Gardiner ( the Petitioners ), petition for a formal administrative hearing to contest the issuance of consumptive use permit application No.: and state: 1. The affected agency is: St. Johns River Water Management District (the District ), 4049 Reid Street, P.O. Box 1429, Palatka, Florida !1

2 2. The District s file or identification number is Consumptive Use Permit Application No The Petitioners are St. Johns Riverkeeper ("Riverkeeper"), Florida Defenders of the Environment ( FDE ), Silver Springs Alliance (the Springs Alliance ), and Alice Gardiner. 4. St. Johns Riverkeeper is a Florida non-profit membership based corporation with its primary place of business located at 2800 University Blvd. N., Jacksonville, Florida FDE is a Florida not-for-profit corporation with its primary place of business at 309 State Road 26 Melrose, FL Silver Springs Alliance is a Florida not-for-profit corporation, with its primary place of business at 309 State Road 26, Melrose, Florida, Alice Gardiner s address is 550 Midway Drive, Ocala, Florida The address for all petitioners is the of their counsel: jrthomasesq@gmail.com. INTRODUCTION 9. This petition challenges a proposed permit modification that the District denied two years ago because it would have unacceptable adverse effects on spring flows. 10. This reversal of position was based on a new version of the Northern District Model, which is a large-scale scientific model used to establish!2

3 minimum flows and levels. The required peer-review for the model explained that there are two distinct types of model in use by the District: a) scientific models that are used to generally understand the hydrologic system; and b) regulatory models that are used to make consumptive use permitting and related decisions. In essence, the scientific models are like state road maps, and the regulatory models are like property boundary surveys; a state road map cannot be used to survey land boundaries. Recently, a new version of this model version 5 was developed. When this new version was peer-reviewed three months ago, the peer-review stated that District s use of proprietary and non-reviewed code that is available exclusively to owners of that code was improper because it served only to prevent members of the public from being able to verify that the model had been used correctly. 11. Instead of accepting the outcome of the peer-reviews, the District used the new model to revisit the permit denial and reverse that decision. In doing so, it used proprietary software that prevented verification of the model exactly what the peer review had found was improper. 12. Over the course of over two years, the District granted the applicant numerous extensions. But, in mid-december, the decision to reverse the earlier denial was put onto a fast track. The notice of the proposed permit modification was published on December 15, with the result that any!3

4 challenge would have to be mounted during the Christmas holidays and filed by January 4. The District s website stated that the staff s technical support document would be posted as soon as it was available. However, the District sent a copy of the Technical Staff Report to the permit applicant on December 13, indicating it was available before notice of the permit modification, but did not post it on the District website until December 28 four working days before the petition was due on January 4. The Petitioners sought an extension because of the Christmas holidays but the District granted an extension of only two and a half working days, until noon on January 9. The applicant then sought and received an extension that allowed it file a challenge three hours after the petitioners. 13. Thus, the District used a model that is not for regulatory purposes, using proprietary code in direct contravention of the outcome of two peer reviews, and then rushed the permit through during the Christmas holidays. Because of these circumstances, this petition contains only the grounds for invalidation of the permit that have been uncovered to date. The Petition will be amended when the Petitioners have a fair opportunity to find out how and why the District reversed its decision to deny this permit. 14. The consumptive water use permit at issue is to Sleepy Creek LLC (referred to herein as the applicant ) and would almost double the permitted groundwater withdrawals under an existing permit. That existing permit is in!4

5 place with a limit of 1.46 million gallons per day ( mgd ) because the District found that the additional withdrawal of 1.12 mgd would cause unacceptable impacts. After that reduction down to 1.46 mgd, the existing permit was challenged unsuccessfully in Sierra Club v. St Johns District Water Management District, DOAH case no The modification would allocate an additional million gallons of water per day to Sleepy Creek Lands, LLC ( the applicant ) to be used for a grass-fed beef cattle operation. PETITIONERS RECEIPT OF NOTICE OF PROPOSED ACTION 16. On December 12, 2016, the District forwarded for newspaper publication its notice of intent to grant the applicant s permit application. 17. On December 13, 2016, the Department forwarded to the applicant a copy of Technical Staff Report which contains the staff s recommendation to approve the permit application and the basis for its decision. 18. On December 15, 2016, the notice of intent to issue the permit was published, triggering a 21-day period during which a challenge to the permit could be filed. 19. Petitioners received notice of the District s intent to grant the permit application on December 15, 2016 via this publication. 20. The published notice stated that when the Technical Staff Report was available it would be posted on the District s website.!5

6 21. However, even though the Technical Staff Report had been sent to the applicant on December 13, 2016, the Report was not posted on the internet for public perusal until December 28, 2016 four working days before the end of the 21-day challenge window. 22. The Technical Staff Report, and only that Report, explains that the basis for the abrupt about face of the District was the product of a new method for determining the cumulative end of permit impact on Silver Springs and the Silver River. 23. That new methodology uses a new version of a new model referred to as the Northern District Model Version 5 (referred to herein as Northern District 5, but in many documents is abbreviated to NDMv5 ). This is a numerical groundwater model that simulates large groundwater flow in an area of the SWFWMD and the SJRWMD that occupies several thousand square miles. 24. An important change in the new version is that it includes transmissivity and hydraulic conductivity values (the rate at which groundwater moves through the underground formations) from a subregional model of aquifer performance test results on the applicant s land.!6

7 25. Although District rules require the applicant to acquire such data (Applicant Handbook Section 3.3.1), 1 the District paid a consultant over $150,000 to perform the study on the applicant s lands. 26. Limited modeling information was not posted on the District s permitting website until December 21, 2016, one week into the three-week period for analytical review of the basis for the District s decision. 27. The posted information does not include the recently uncovered peer review of Northern District 5 from three months ago. That document included a 2015 peer review of version 4 of the Northern District model. THE PETITIONERS SUBSTANTIAL INTERESTS 28. St. Johns Riverkeeper, Inc. is dedicated to the protection, preservation and restoration of the ecological integrity of the St. Johns River watershed. A substantial number of Riverkeeper's more than 1000 members use and enjoy the St Johns River and its tributaries, including the Ocklawaha River, Silver River, and Salt Springs for boating, fishing, wildlife observation and other water-based recreational activities. 29. Florida Defenders of the Environment, Inc. is a not-for-profit corporation, incorporated under the laws of the State of Florida in 1970 with its primary place of business in Putnam County, Florida. A substantial 1 Hydrologic data collection and evaluations by the applicant are a requirement for a consumptive use permit except when the District possesses sufficient hydrologic information to enable it to evaluate the application.!7

8 number of FDE s members use and enjoy the St Johns River and its tributaries, including the Ocklawaha River, Silver Springs, Silver River, and Salt Springs for boating, fishing, wildlife observation and other water-based recreational activities. 30. The Springs Alliance, Inc. is dedicated to the protection, preservation and restoration of the ecological integrity of Silver Springs and related distributary waters including Silver River, the Oklawaha River and the St. Johns River. A substantial number of Silver Springs Alliance members use and enjoy those waters for boating, fishing, wildlife observation and other water-based recreational activities. 31. Alice Gardiner resides in Marion County less than ten miles from Silver Springs and is a board member of Silver Springs Alliance. She regularly uses and enjoys Silver Springs and related distributary waters including Silver River, the Oklawaha River and the St. Johns River for boating, fishing, wildlife observation and other water-based recreational activities. DISPUTED ISSUES OF MATERIAL FACT 32. Whether the Northern District 5 model can be used to make this permitting decision.!8

9 33. Whether the Northern District 5 model is on such a large scale that the range of error makes it unusable for permitting decisions, particularly the permitting decision at issue here. 34. Whether the Northern District 5 model has predictive error levels that make it unusable for the permitting decision at issue here. 35. Whether the Northern District 5 model can be used to determine whether an applicant has met its burden of showing it has provided reasonable assurance that its proposed consumptive use of water on a cumulative basis will not cause harmful hydrologic alterations to natural systems or otherwise cause harmful hydrological alterations to the water resources of the area. 36. Whether the method of using the Northern District 5 model to apply to the permit modification was a subregional model. 37. Whether the Northern District 5 model s use of data from a subregional model was proper where the data from the subregional model was not calibrated as part of the Northern District 5 model. 38. Whether Sleepy Creek has provided reasonable assurance that its water use will not result in an unacceptable level of adverse cumulative impact on Silver Springs and the Silver River given the use of the Northern District 5 model to calculate cumulative adverse impacts to water resources in the area.!9

10 39. Whether it costs approximately $5,000 to purchase the proprietary software needed to verify whether the District has accurately used scientific information in assessing impacts of pumping groundwater. 40. Whether the use of proprietary software in the Northern District 5 model served only to thwart public accountability. 41. Whether imposition of that proprietary software cost has the effect of preventing the public from assessing the validity of the basis for the District s permitting decisions. 42. Whether the substantial barrier to public accountability imposed by the use of proprietary software in the District s permitting decisions is in the public interest. 43. Whether the District s methodology for determining end of permit cumulative impact rests upon erroneous and or/unproven assumptions. STATEMENT OF ULTIMATE FACTS ALLEGED 44. Sleepy Creek has failed to provide reasonable assurance that the proposed consumptive use of water, on a cumulative basis, is a reasonable and beneficial use given that this large scale scientific model cannot be used for this permitting decision. Facts showing that this is a regional model, that its predictive error values make its error levels too high to be useful, and that the regional sub-model was not even calibrated as part of the Northern District 5 model warrant reversal of the District s decision.!10

11 45. Sleepy Creek has failed to provide reasonable assurances that the proposed consumptive use of water, on a cumulative basis, is consistent with the public interest given the District s use of the proprietary Northern District 5 model to determine that the proposed use was reasonablebeneficial. Facts showing that the model is proprietary and is formulated using non-peer reviewed code which thwart public accountability warrant reversal of the District s decision. SPECIFIC STATUTES AND RULES REQUIRING REVERSAL INCLUDING AN EXPLANATION OF HOW THE ALLEGED FACTS RELATE TO THE SPECIFIC RULES OR STATUTES 46. The specific statutes and rules preliminarily identified by Petitioners as requiring reversal of the intended decision to issue the challenged consumptive use permit modification include: Section (1)(a)&(c), Fla. Stat.; Rules 40C-2.301(1)(a)&(c); 40C-2.301(2)(g)(4)&(5); and Applicant s Handbook Sections Sections (1)(a)&(c), require an applicant to establish that the proposed use of water is (a) a reasonable-beneficial use as defined in Section ; and (c) is consistent with the public interest. 48. Rules 40C-2.301(1)(a)&(c) require an applicant to provide reasonable assurances that the proposed consumptive use of water, on an individual and cumulative basis, is (a) a reasonable-beneficial use; and (c) Is consistent with the public interest.!11

12 49. Rules 40C-2.301(2)(g)(4)&(5) require an applicant to provide reasonable assurance that the proposed consumptive use of water, on an individual and cumulative basis, will not cause harm to the water resources of the area in any of the following ways: (4) will not cause harmful hydrologic alterations to natural systems, including wetlands or other surface waters, and (5) will not otherwise cause harmful hydrologic alterations to the water resources of the area. 50. Handbook section defines public interest for the purpose of making consumptive use permitting decisions in the following manner: Public interest means those rights and claims on behalf of people in general. In determining the public interest in consumptive use permitting decisions, the District will consider whether an existing or proposed use is beneficial or detrimental to the overall collective wellbeing of the people or to the water resource in the area, the District and the State. 51. The facts alleged related to the Northern District 5 model show that the applicant has failed to provide reasonable assurance that the proposed use will not cause adverse cumulative impacts to water resources of the area because the model used to determine those impacts is scientifically invalid when used for that purpose. 52. The alleged facts relating to the Northern District 5 model and its peer review show that a permit based on the District s use of proprietary software that serves solely to thwart public accountability is contrary to the public!12

13 interest in that substantial barriers to accountability of state agencies are detrimental to the overall collective well-being of the people, the water resource in the area, the District, and the State. RELIEF SOUGHT BY PETITIONERS 53. The petitioners respectfully request that this petition be forwarded to the Division of Administrative Hearings for an administrative hearing pursuant to Section and , Florida Statutes. 54. The petitioners respectfully request that the proposed agency action be found to controvert controlling law. 55. The petitioners respectfully request any other relief that is appropriate under the circumstances. Respectfully submitted this 9th day of January, 2017.! John R. Thomas, Esq. Florida Bar No NE Boulevard, # 11 Gainesville, Florida Telephone No.: (352) jrthomasesq@gmail.com Counsel for Petitioners CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Petition for Formal Administrative Proceedings (CUP) was furnished by electronic mail to the District!13

14 Clerk for the St. Johns River Water Management District at and to John Wharton, counsel for the applicant, at this 9th day of January, 2017.! John R. Thomas, Esq. Florida Bar No NE Boulevard, # 11 Gainesville, Florida Telephone No.: (352) jrthomasesq@gmail.com Counsel for Petitioners!14