Our ersatz
governor, who has yet to realize he’s running a government instead of a
predatory corporation that collects hospitals and feeds on defrauding the
federal government of the elderly’s Medicare money, is determined to revert
Florida back to the time when environmental conscience was nonexistent. Despite the flowery crap he spews about how focused
he is on water and “getting it right,” he continues to have his DEP boy Vinyard
direct the destruction of Florida’s environmental protection programs at every
level.
As you might not know,
DEP has drafted a comprehensive rewrite of the state’s administrative rules
that, if adopted, will significantly change how consumptive use (water use)
permits are issued under Chapter 373.
Vinyard and his minions advertise their purpose as needing to create a
more common regulatory platform among the five water management districts so
water applicants will not have five different processes to follow
when seeking water use permits between districts.
Not an unreasonable concept (if one assumes there are a lot of
applicants that have to go to more than one district for water permits).
Problem is, none
of these clowns were around over the past 40 years it took to develop the
current rules which have been recognized nationwide as an equitable and
effective way to allow water to be used in ways that are fair among existing
and future users and the needs of natural systems. Consequently, they seem absurdly determined
to dredge up problems that were solved years ago by a lot of very brilliant
folks, including governors and legislators from both parties and scientists of
national repute. By tweaking good
solutions to complex problems they are only trying to make a round wheel more
round. It would be pure silliness if it
were not so sinister and costly in its result.
What is so wrong
with all this is that their collective justification for undertaking this
Quixotic thrust is based upon clearing the path for businesses to be able to
make more profits. They simply will not
accept the unalterable fact that some of this state’s most prosperous times
took place when environmental regulation was at its most inflexible and rigid
best. So, there just has to be more to
it.
(It’s worth noting
that during Mitt Romney’s acceptance speech at the RNC in recent weeks, he echoed
a lot of Scott-speak, like getting rid of job-killing regulations and creating jobs
in numbers only he can make happen.
Florida has always been a bellwether state so if you like what Scott’s
doing here, vote for Romney and the whole country will be handed over to
special interests.)
Regardless of what
their true purposes might be, DEP CEO and cowboy-boot-wearing Herschel Vinyard
has launched the comprehensive rewrite and now we are left to watch and wince
at the coming disastrous impacts it will likely have upon natural resource
management and protection in our state.
The Florida
Conservation Coalition (FCC) has sent Vinyard a fairly strong letter that
raises issues which hint at what the real reason behind the rewrite could be … and
it isn’t to standardize rules between the water management districts.
The letter points
out there are two themes apparent in the many significant changes being
proposed. First, it is clear that once a
permit is granted, the water pretty much becomes the property of the permit holder
during the term of the permit, i.e., nearly permanent, and it is essentially
impossible for the agency to review before the end of the term if circumstances
change as it can now. Such changed circumstances
might include conservation practices that cause the permittee to need less water,
changes in the permittee’s actual need because of changing business economics
or long term rainfall patterns, or unanticipated impacts upon natural systems
or the hydrologic system.
Under today’s
rules, water conserved can be reallocated to others such as a new
business. If an area is suffering from a
water shortage where all available water has been committed, freeing up a
quantity from an existing user creates additional supply that can then be
recommitted for public purposes such as a new user who might bring new jobs to
the area. Everyone wins under this
scenario. The existing user continues
his business using less water with no harm to him; the new user can start his
new business, and; the public is served because new commerce and jobs are
generated.
Under Vinyard’s
proposal, the current permit holder could conceivably sell water he has
conserved to a new user and if water is scarce, the price could be hefty. All the new user would need is to get a nod
from the district that the use meets legal requirements, i.e., be reasonable-beneficial
and in the public interest, etc.
Needless to say,
the public has spent hundreds of millions on programs designed to motivate farmers,
miners, power companies, private home owners and you-name-it, to conserve water
just so more water would be available to meet more growing demand. This was purely to foster economic
development in a manner that would preserve and sustain existing water supplies
and protect the environment. Scott and
Vinyard seem to be completely missing or ignoring this point and they are hell
bent on not letting any pesky truth, fact or incontrovertible reality convince
them otherwise.
The second theme
mentioned in the FCC letter relates to the 20-year term of the permits which would
be basically automatic and, again, the inability of the permits to be reviewed
at any given point even if it should be done in the public interest. This total control of a quantity of water,
whether or not it continues to be a reasonable and beneficial use (as required
by current law), begins to smell a lot like ownership of water instead of a
permit to use.
This isn’t the
first time water permit holders have tried to make water a marketable commodity. The most recent was the city of Tampa when it
proposed legislation that would remove the treated waste water it discharges into
Tampa Bay from the water permitting process as long as the water remained in a contained
condition. The maneuver would have
removed it from public stewardship and created virtual ownership of water under
their control. As demand for water
increases, the city appeared to be posturing itself to be able to sell its
treated water to others. The problem is
that this situation would not be limited to just the City of Tampa. It would been
operative for any permit holder that treats and contains used water before
discharging it, like farmers, power and mining companies, etc., all of which
are users and re-users of huge quantities of water.
The fact that DEP is
continuing this path toward drastically changing the current water use permitting
rules, suggests we need to ask, why?
In response, we
are left with two nefarious, for lack of any other way of putting it,
scenarios: 1) either they are incredibly oblivious to all the careful thinking
that has gone into the development of Florida’s water laws over the last 40
years, or; 2) the Department is in bed with some very large water users who
have some very collusive designs on what they want to do with “their” water in
the future.
Current Florida
law is based upon the concept that water is a public resource owned by no one
and, by law, is managed in a manner that is intended to serve public interests. These interests would include an
equal-footing opportunity to apply for its use, assurance that the use is
reasonable and beneficial and does not interfere with other existing legal
users or cause environmental harm, and, if certain circumstances change, providing
that the use may be modified in a way that will continue to serve the interests
of the public. (These are my paraphrased words.
I fully appreciate that there will be lawyers, which I am not, who will
argue some nuance that is contra to what I say here or reference a court case to
prove I’m not saying it correctly. My response
is that if it always takes a lawyer to determine how we’re to discuss what all
Floridians need to understand, we’re in deep trouble.)
Certainly, permit
holders need to have a degree of certainty that the water use they are granted
will continue to be available as prescribed for a reliable period of time. There are valid public interest reasons,
however, that justify a permitting agency’s opportunity to review a long-term
permit before the permit is up for renewal.
And, these reasons need to be set forth in the terms of the permit and
authorized by law. Simply put, issuance
of permits for as long as 20 years with no opportunity to be reviewed in the
interim reflects an unrealistic level of knowledge about the future that no
person, agency or government has. We’re
talking about potentially hundreds of permits for huge quantities in a physical
and political world that can change vastly in a matter of months, much less 20
years.
Reasonable circumstances
that justify review of a permit, for example, might be when the initial
quantity granted is no longer needed by the permittee, or a water shortage
condition demands that everyone reduce usage, or if granting the permit is
later found to be causing unanticipated adverse impacts either to natural
systems or other existing legal users.
There could be other such reasonable circumstances that would justify a
review of permitted quantities in certain areas.
If the length and
permanence of control of water that the proposed DEP rule would afford permit
holders is adopted, it is probable there will be several inevitable and ill-advised
results. First, the water will become owned
by definition and, thus, could be sold at a profit to those who need it but can’t
get it anywhere else. Secondly, if the
permit holder decides not to allow others to have the water he no longer needs,
then the economic benefit from it going to a new use is denied to the area and
the state as a whole. The FCC asks the
question, would this “banking” or hoarding of unused water be reasonable and
beneficial and in the public interest as required by present law? These conditions are fundamental tenets for
the permitted use of water under Florida water law.
Florida water law also
provides that water use should always be allowed to migrate toward higher orders
of use. A higher order of use for
surplus water generated from a farm that has implemented water saving
methodologies, for example, would be to allow the conserved water to be
available to another farm that has no other alternative. Since it is a public resource, the new user should
not have to pay someone to have access to it. By the same token the needs of
the new farmer should not be met at the expense of the existing legal
permittee.
To be clear, no
water should ever be arbitrarily taken from a permitted legal user during
the approved term of the permit and given to another user no matter what the
priority. This is why permits are for
limited terms, so a proposed higher use can compete with an existing use
when the permit expires and is up for renewal. The only reason a reduction from
a permitted amount might be considered would be under such carefully considered
circumstances as mentioned earlier, and which would be clearly established in
the laws and rules of the state.
So, if the reason
for going through this masquerade of rewriting public policy really is to shift
the state closer toward making water a sellable, profit-making commodity and removing
the public as its proper steward, why doesn’t Scott and Vinyard just say so? The reason is, of course, is that this represents
a tectonic shift from current law that the public would never stand for. Clearly this is all about serving the
interests of large permit holders who have designs to make a lot of money
selling water to those who need it at a price that will only go higher as water
gets scarcer, and making a lot of money.
If you don’t think
this is a reasonable scenario, just remember the push by the Cattlemen’s
Association last legislative session to convert hundreds of thousands of publically
owned acres to private ownership simply by changing a few words in the law relating
to the Ordinary High Water Line.
Clearly, there is
not much thought being given to what they may wreak upon the state’s cherished
natural heritage with this so-called re-write of water laws that have evolved
over decades. One has to question the
genesis of their motives. What’s brought
them to this position that deems all which has gone before them by so many
bright people from all sides of the political spectrum so wrong that they must
begin all over again? One thing it certainly is not is public interest.
There’s apparently
nothing this governor and his micro-focused band of miscreants will not do out
of ignorance, the pursuit of Super PAC money and political power.
