Judge orders state water pollution limits to go into effect by March 6

By | 02.21.12 | 10:34 am

An algal bloom in the Caloosahatchee River in 2005 (Pic by Florida Water Coalition)

A U.S. District judge on Saturday ruled that limits on sewage, manure and fertilizer contamination in state waters must take effect by March 6. Judge Robert Hinkle supported a set of federally mandated criteria for Florida waterways in his ruling, but argued that two portions of the EPA-drafted rules are “arbitrary and capricious.”

Though Hinkle’s ruling found that the EPA’s standards for lakes and springs are necessary to combat state algal blooms and fish kills caused and exacerbated by excess nutrients in waterways, those who supported a set of state-drafted standards also claimed victory after the ruling was announced.

In a statement, Tom Feeney — president and CEO of Associated Industries of Florida — said that Saturday’s ruling “[supports] the position that Florida knows how best to manage its own waters and the Environmental Protection Agency (EPA) has indeed overreached its authority when it comes to the protection of our state’s streams and rivers.” One of Florida’s most well-known business groupsand one of the most vocal opponents of the criteria, Associated Industries reported spending at least $630,000 on lobbying in 2011.

Saturday’s ruling, however, will ensure that the EPA’s version of the criteria be implemented by March 6, unless that rule is superseded by the state’s version. The ruling also includes a March 21 deadline for rules on state streams and default downstream-protection criteria for unimpaired lakes, “unless by that date the [EPA] Administrator has filed a notice that she has decided not to propose or adopt such criteria, together with an explanation of the decision.”

Some background on how Florida got to this point: In 1998, the federal government gave the state until 2004 to develop nutrient criteria as a way of limiting phosphorus and nitrogen in waterways, which often lead to algal blooms and fish kills. 2004 came and went, without any new standards for Florida, so a group of state environmental organizations filed suit, alleging that Florida was in violation of the Clean Water Act.

That suit was settled in 2009, with a mandate from the EPA requiring Florida to implement stricter rules. But the EPA’s criteria have been criticized for being too costly and, eventually, the EPA caved to demands from industry and lawmakers who argued that Florida should develop its own rules.

The state Department of Environmental Protection has since developed a set of standards it says will be less costly than the federal version. The problem, according to environmentalists, is that the state’s version is weaker than the federal regulations — and weak water rules are what got Floridians into this mess to begin with.

Many Florida lawmakers have chosen to side with industry groups, supporting the state’s standards and arguing that the federal regulations would be a “job killer.” Last week, Sen. Marco Rubio, R-Fla., introduced a bill that would force the EPA to scrap its set of Florida water quality standards and instead accept the rules drafted by the state.

Environmental law firm Earthjustice is currently challenging the state’s version of the criteria, which it says will prove ineffective. “Like the old rules,” argues Earthjustice, “the proposed rules only  require studies when an algae outbreak takes place. No corrective action can be required until the studies are completed, a process that takes five to ten years.”

The Department of Environmental Protection continues to defend its rules, arguing that they aren’t any less stringent than the rules drafted by the federal government.

“DEP’s rules are not weaker than the federal rules,” a department rep wrote in a statement to the Independent. “In fact, they are identical numerically to the rule established by the EPA, and when adopted. The DEP rules go beyond the federal rules by including additional criteria which measure biological health, coverage for numerous additional waterbodies, and provisions action for any adverse nutrient trends regardless of levels.”

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