Notice of SRWMD appeal of Nestle decision, purchase one tract, conservation easement another, Suwannee River, SRWMD Board 2021-04-13

The SRWMD board will decide next Tuesday on a land acquisition and a conservation easement amendment on two different parcels on the Suwannee River.

Plus SRWMD legal counsel was prodded by citizen petitions into filing a notice of appeal of SRWMD’s own Nestlé decision to approve that permit, and the Board now has to agree or do something else.

You can attend in person if you get there early enough to get one of the limited seats, or remotely via the usual GoToWebinar https://attendee.gotowebinar.com/register/1866408207680852239 and dialin 1-888-585-9008, Conference Room Number: 704-019-452 #. If you want to speak, don’t forget to fill out the public comment form: www.MySuwanneeRiver.com/Comments The board packet is on the WWALS website.

[SRWMD appeals its own Nestle order, acquisition, easement, steps]
SRWMD appeals its own Nestle order, acquisition, easement, steps

Agenda Item No. 14 – Lasky Tract Acquisition, Gilchrist County starts on page 29.

Agenda Item No. 15 – Warner-Harrell Conservation Easement starts on page 35. It’s all so somebody can build at their own expense some steps down to a sinkhole.

In more evidence the attorneys really run SRWMD, legal counsel George T. Reeves filed a notice of appeal of the SRWMD Board’s own decision in the Nestle case, and did it after the last SRWMD Board meeting. This only happened because persons un-named by counsel petitioned the SRWMD board at that last meeting that &ldqou;since Seven Springs did not own or control the Facility, the Renewal Permit should not have been issued.” That is the same reason the SRWMD issued its decision “under protest”. Since the SRWMD Board did not go ahead and file its own notice of appeal, the petitioners plan to appeal to the Division of Administrative Hearings. So SRWMD counsel filed a notice of appeal on behalf of SRWMD so SRWMD could be a party. The Board can agree with that at this meeting, or do what exactly instead is not clear.

On pages 14 and 15 of the board packet:

SUWANNEE RIVER WATER MANAGEMENT DISTRICT

MEMORANDUM

TO: Governing Board

FROM: George T. Reeves, Governing Board Legal Counsel

DATE: April 5, 2021

RE: Appeal of Final Order Number 21-003, Seven Springs Water Company v. Suwannee River Water Management District; SRWMD Renewal WUP App. No. 2-041-218202-3; DOAH Case Nos. 20-1329, 20-3581 (Consolidated)

RECOMMENDATION

The Governing Board of the Suwannee River Water Management District (the “District”) approve the appeal of the Final Order Number 21-003, Seven Springs Water Company v. Suwannee River Water Management District, SRWMD Renewal WUP App. No. 2-041-218202-3; DOAH Case Nos. 20-1329, 20-3581 (consolidated).

BACKGROUND

On February 23, 2021, the Governing Board held a special meeting to consider and enter a final order on the application of Seven Springs Water Company (“Seven Springs”) for a renewal water use permit (the “Renewal Permit’) to supply groundwater to Nestle’s water bottling facility (the “Facility”) in Gilchrist County, Florida. The Governing Board approved the issuance of the final order which directed staff to issue the Renewal Permit. The final order was filed, and the Renewal Permit was issued on February 24, 2021.

The Governing Board issued the final order “under protest” because the District did not agree with the ruling of the Administrative Law Judge that the District could not raise the fact that Seven Springs did not own or control the Facility. By issuing the final order “under protest” the District retained the right to appeal the final order to the District Court of Appeal if it wished. However, under Florida law, if the District was going to appeal the final order, the notice of appeal must be filed within 30 days after the final order was filed or by March 26, 2020 (February 24, 2021 + 30 days = March 26, 2021).

The only Governing Board meeting between the February 23, 2021 special meeting and the running of the appeal period on March 26, 2021 was the Governing Board’s March 9, 2021 regular meeting. The Governing Board did not instruct the general counsel to appeal at the March 9, 2021 meeting, so the general counsel was not intending to file the notice of appeal. However, after the March 9, 2021 regular meeting, the District received two petitions for administrative hearing concerning the Renewal Permit. The petitions have since been referred to the Division of Administrative Hearings for the Division to conduct hearings and the issuance of a recommended order.

In the petitions, the petitioners assert that since Seven Springs did not own or control the Facility, the Renewal Permit should not have been issued. These are the same reasons that the Governing Board issued the final order “under protest.” All parties have informed me that if they are not successful, they intend to appeal to the District Court of Appeal. Therefore, in any event, it now seems likely that the District will be drawn into an appeal where the issue of Seven Springs lack of ownership and control of the Facility will be raised and argued.

In order to preserve the District’s ability to argue these issues in the above appeals, we are required to file a notice of appeal on or before March 26, 2021. This is prior to our next meeting. So, upon consultation with the chair and executive director, the general counsel went ahead and filed the notice of appeal of the final order. This filing was necessary to preserve the District’s rights until you could instruct me how you wish to proceed in light of the changes in circumstances which occurred after the last meeting. Additionally, now that the appeal has been filed and the District’s rights preserved, the District is filing a motion with the District Court of Appeal requesting the court stay the appeal until the petitions are resolved so that all these issues may be heard by the District Court of Appeal at one time.

As the appeal was filed without the Governing Board’s prior approval (due to the circumstances that unfolded after the last Governing Board meeting) the Governing Board must instruct the undersigned whether it wishes to continue with the appeal. The appeal may be dismissed with no prejudice to the District.

However, my recommendation is to allow the appeal to proceed to keep the District’s options open at this time. As the petitions proceed before the Division, this issue may be revisited by the Governing Board as the need arises.

/gtr

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

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