BEFORE THE ST. JOHNS RIVER WATER MANAGEMENT DISTICT SIERRA CLUB INC. and ST. JOHNS RIVERKEEPER INC. Petitioners v. ST JOHNS RIVER WATER MANAGMENT DISTRICT and SLEEPY CREEK LANDS LLC Respondents PETITION FOR ADMINISTRATIVE HEARING Petitioners Sierra Club Inc. and St Johns Riverkeeper Inc. respectfully petition for an Administrative Hearing pursuant to Sections 120.57(1), 120.569, Florida statutes and Rule 28-106.201, Florida Administrative Code to consider the St. Johns River Water Management District's proposed issuance of an environmental resource permit and a consumptive use permit to Sleepy Creek Lands LLC and state: THE PARTIES 1. Petitioner Sierra Club Inc. ("Sierra Club") is a non-profit corporation with national headquarters at 85 Second Street, Second Floor, San Francisco, CA 94105. Sierra Club consists of members living throughout the state and around the nation. There are approximately 30,000 Sierra Club members living in the State of Florida. The Sierra Club represents the interests of its members in state and federal litigation, public policy advocacy, administrative proceedings, and before state, local, and federal lawmakers. The Sierra Club is for preserving wetlands, improving water quality, and stopping polluted agricultural runoff. All of these activities support Sierra Club s mission to
explore, enjoy, and protect the wild places of the earth and educate and enlist humanity to protect and restore the quality of the natural and human environment. A substantial number of Sierra Club's members use the Ocklawaha River and Silver Springs for water based recreational activities, including kayaking, swimming, and wildlife observation. 2. St Johns Riverkeeper, Inc. ("Riverkeeper") is a Florida non-profit membership based corporation with its primary place of business in Jacksonville, Florida. Riverkeeper is dedicated to the protection, preservation and restoration of the ecological integrity of the St. Johns River watershed. Riverkeeper's more than 1000 members use and enjoy the St Johns River and its tributaries, including the Ocklawaha River, Silver and Salt Springs for boating, fishing, wildlife observation and other water based recreational activities. 3. For purposes of this proceeding, all correspondence and pleadings should be addressed undersigned counsel. 4. The agency that intends to issue the challenged permits, the St. Johns River Water Management District is located at 4049 Reid Street, Palatka, FL 32178-1429. 5. The permit applicant is Sleepy Creek Lands LLC. The applicant's address is 700 S. Federal Highway, Suite 200, Boca Raton, FL 33432. 6. Constructive notice of the intended District decisions is imputed upon Petitioners by virtue of publication of notices in the Ocala Star Banner. Page 2 of 11
PROPOSED AGENCY ACTIONS 7. On May 12, 2014 the District issued a notice of its intent to issue an Individual Environmental Resource Permit, Permit No. IND-083-130588-4 for construction and operation of a stormwater management system to serve improved pastures for grass fed beef. The permit area is 7,207 acres. 8. On May 14, 2014, the District issued a notice of its intent to issue Individual Consumptive Use Permit (CUP) 2-083-91926-3. The proposed CUP would authorize the withdrawal of 1.46 million gallons per day of groundwater from the Upper Floridan aquifer via new and existing wells for irrigation of 2,231 acres of improved pasture and other crops and watering of cattle. The applicant is consolidating two consumptive use permits that authorized withdrawal of water for two non-contiguous sod farms into a single permit. 9. The CUP application to pump 1.46 million gallons per day of groundwater is the first of three phases of a 30,000 acre grass-fed beef operation to be located in the Silver and Ocklawaha, St. Johns river watersheds and Silver and Salt Springs springsheds that will ultimately withdraw 5.3 million gallons of water per day. SUBSTANTIAL INTERESTS OF PETITIONERS 10. A substantial number of members of the Sierra Club and Riverkeeper engage in water based recreational activities, including kayaking, swimming, canoeing, fishing, boating, snorkeling, nature observation and nature Page 3 of 11
photography in and on the Ocklawaha, Silver and St. Johns River and Silver Springs and Salt Springs. 11. The Ocklawaha, Silver and St. Johns River and Silver and Salt Springs will be adversely impacted by the permitted activities. With the exception of Salt Springs, all of these water bodies are already degraded because of excess nutrients and reduced flows, and are included on Florida's list of water bodies verified as impaired because they do not meet applicable water quality standards. 12. The Ocklawaha river, the largest tributary to the St. Johns, will receive an increased nutrient load from the permitted site via Mill Creek. Nutrient enrichment in St. Johns is linked to fish kills, submersed aquatic shoreline vegetation being covered with algal mats, excessive epiphytic growth further blocking light from submerged aquatic vegetation, river sediment conditions indicative of low benthic animal diversity, excessive organic matter sedimentation and prolonged anoxia and the presence of potentially toxic dino flagellates such as the Pfisteria like Crytoperidiniopsouds and Prorocentrum minimum, which are associated with fish kills and ulcerative disease syndrome in fish. Efforts to restore the Ocklawaha by removing "Kirkpatrick Dam" have been thwarted based upon concerns that excessive nitrates from the Ocklawaha would further exacerbate water quality problems in the St. Johns. The Ocklawaha, Silver and St. Johns River and Silver and Salt Springs Page 4 of 11
are all currently experiencing an imbalance of flora and fauna because of nutrient pollution and diminished flows. 13. A substantial number of members of the Sierra Club and Riverkeeper use and enjoyment of the Ocklawaha, Silver and St. Johns River and Silver and Salt Springs will be adversely affected by the permitted activities, which will exacerbate the degradation of those water bodies by lowering flows and contribute to existing water quality violations. DISPUTED ISSUES OF MATERIAL FACT AND LAW A. Environmental Resource Permit 14. Whether Sleepy Creek has provided reasonable assurance that the construction and operation of the proposed stormwater management system will cause adverse water quantity impacts to receiving waters and adjacent lands. Rule 62-330.301(1)(b) FAC. 15. Whether Sleepy Creek has provided reasonable assurance that the construction and operation of the proposed stormwater management system will cause adverse impact to surface water conveyance capabilities. Rule 62-330.301(1)(c) FAC. 16. Whether Sleepy Creek has provided reasonable assurance that the construction and operation of the proposed stormwater management system will cause adverse impacts to the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Rule 62-330.301(1)(d), F.A.C. Section 10.2.2, AH. Page 5 of 11
17. Whether Sleepy Creek has provided reasonable assurance that the proposed Nutrient Management Plan will adequately control nutrients discharged from the site as to prevent adverse impacts to the quality of receiving waters such that state water quality standards set forth in Chapters 62-4, 62-302, 62-520 and 62-550 F.A.C., including the antidegredation provisions of paragraphs 62-4.242(1)(a) and (b) F.A.C., subsections 62-4.242(2)and (3), F.A.C., and Rule 62.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subjections 62-4.242(2) and (3) will not be violated. Rule 62-330.301(1)(e) F.A.C. 18. Whether Sleepy Creek has provided reasonable assurance that the proposed project will cause or contribute to existing water quality violations. Rule 40C- 44.065, F.A.C. 19. Whether Sleepy Creek has provided reasonable assurance that the proposed project will cause adverse secondary impacts in violation of Rule 62-330.301(f) F.A.C. and Section 12.2.7 of the Applicant's Handbook. 20. Whether Sleepy Creek has provided reasonable assurance that the proposed project will be capable, based upon generally accepted engineering and scientific principles, of performing and functioning as proposed. Rule 62-330.301(1)(i) F.A.C. 21. Whether Sleepy Creek has provided reasonable assurance that the proposed project will comply with the Sensitive Karst Area Basin design criteria. Rule 62-330.301(1)(k) F.A.C. and Rule 40C-41.063(7). Page 6 of 11
22. Whether Sleepy Creek has provided reasonable assurance that the proposed project will be harmful to the water resources of the District. Section 373.413(1) Fla. Stat. 23. Whether Sleepy Creek has provided reasonable assurance that the proposed project will cause adverse impacts to groundwater quality. See Section 403.927(2), Fla. Stat. 24. Whether Sleepy Creek has provided reasonable assurance that the proposed project will cause unacceptable cumulative impacts upon wetlands and other surface waters. Section373.414(8)(a), Fla. Stat., Rule 62-330.302(1)(b), F.A.C. and Rule 40C-41.063(7), F.A.C. 25. The specific statutes and rules preliminarily identified by Petitioners as requiring reversal of the intended decision to issue the challenged environmental resource permit include Section 373.413(1), Fla. Stat., Section 373.414(8)(a), Fla. Stat., Section 403.927(2), Fla. Stat., Rule 40c-41.063(7), F.A.C., Rule 40C-44.066(4), F.A.C., Rule 40C-44.065, F.A.C., Rule 62-330.301, F.A.C., Rule 62-330.302(1)(b). B. Consumptive Use Permit 26. Whether Sleepy Creek has provided reasonable assurance that its proposed use of water is a reasonable-beneficial use as defined in Section 373.019, Fla. Stat. Section 373.223(1)(a), Fla. Stat., 40C-2.301, Section 10.3(a), AH. Page 7 of 11
27. Whether Sleepy Creek has provided reasonable assurance that its water use is necessary for economic and efficient utilization of water. Rule 40C-2.301(4)(a), Section 10.3(a), AH. 28. Whether Sleepy Creek has provided reasonable assurance that the proposed use is both reasonable and consistent with the public interest. 373.223(1)(a), Fla. Stat., 40C-2.301(4)(b), Section 10.3(b) and Section 9.3, AH. 29. Whether Sleepy Creek has provided reasonable assurance that the Floridan aquifer is capable of producing the requested allocation. Rule 40C-2.301(4)(c). 30. Whether Sleepy Creek has provided reasonable assurance that the proposed modification would not cause environmental harm, or that the harm has been reduced to "an acceptable amount." Fla. Stat., 40C-2.301(4)(d), 10.3(d), AH. 31. Whether Sleepy Creek has provided reasonable assurance that the water quality of the source of the water will not be seriously harmed by the consumptive use. 10.3(j) AH. 32. Whether Sleepy Creek has provided reasonable assurance that the consumptive use will not cause or contribute to a violation of state water quality standards in receiving waters of the state as set forth in Chapters 62-3, 62-4, 62-302, 62-520, and 62-550, F.A.C., including any anti-degradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62-4.242(2) and (3), and Rule 62-302.300, F.A.C., and any special standards for Outstanding National Waters set forth in subsections 62-4.242(2) and (3), F.A.C. 10.3(k) AH. Page 8 of 11
33. Whether Sleepy Creek has provided reasonable assurance that the conditions for issuance of the permit will be met for the duration of the permit. Section 373.236, 6.5.1, AH 34. Whether Sleepy Creek has provided reasonable assurance that its water use will not cause the water table or surface water to be lowered so that stages or vegetation and wetlands will not be adversely and significantly affected. 35. Whether Sleepy Creek has provided reasonable assurance that its consumptive use will cause or contribute to a violation of state water quality standards in receiving waters of the state. 36. Whether the Sleepy Creek has provided reasonable assurances that it adequately documented the drawdown impacts on groundwater levels and water resources that will be caused by the proposed water use. 37. Whether the reasonable assumptions were used in modeling the groundwater impacts that will stem from the proposed withdrawal. 38. 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 373.019, Fla. Stat., Section 373.223(1), Fla. Stat., Section 373.236(1), Fla. Stat., Section 403.927(2), Fla. Stat., and Rule 40C-2.301(2)(a), 40C-2.301(4)(a),(b),(d)(j) and (k). ULTIMATE FACTS ALLEGED The environmental resource permit should be denied because Sleepy Creek has failed to provide reasonable assurances that the construction and Page 9 of 11
operation of the proposed surface water management system will cause adverse direct, secondary and cumulative water quality impacts to ground water and surface water and will be harmful to the water resources of the district. The consumptive use permit should be denied Sleepy Creek has failed to provide reasonable assurances that the proposed withdrawal is not a reasonable beneficial use and is not inconsistent with the public interest. RELIEF SOUGHT BY PETITIONERS The Sierra Club Inc. and the St John Riverkeeper Inc. respectfully request: 1) that this petition be forwarded to the Division of Administrative Hearings for a formal administrative hearing pursuant to Section 120.569 and 120.57, Fla. Stat., 2) that the proposed agency actions be reversed, 3) any other relief that is appropriate under the circumstances. CONCLUSION The Petitioners make all of the above assertions of fact and law based upon a good faith belief formulated after appropriate and reasonable inquiry that the permit applications challenged herein do not comply with the requirements of Chapters 373, Part II and Part IV. Such assertions may include good faith argument for the application, extension, or modification of existing law, or the establishment of new law. Page 10 of 11
Respectfully submitted this 2nd day of June, 2014. Marcy I LaHart, Esquire 4804 SW 45th Street Gainesville, FL 32609 marcy@floridaanimallawyer.com Attorney for Petitioners (352) 224-5699 CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of the foregoing has been sent by electronic mail to the District Clerk for the St. Johns River Water Management District at Clerk@sjrwmd.com and Michael D. Minton, counsel for the applicant, at MMinton@deanmead.com this 2nd day of June, 2014. /S/ Marcy LaHart, Esq. Page 11 of 11