Yesterday, a coalition of environmental groups announced their decision to file a petition against the state Department of Environmental Protection’s “numeric nutrient criteria,” a set of water pollution standards they argue are not strong enough to fully protect Florida’s waterways. The Florida Independent spoke with both the St. Johns Riverkeeper, one of the plaintiffs in the suit, and Earthjustice attorney David Guest, who is representing the plaintiffs, to discuss the potential effects of the petition.
“For us, this is a continuation of a 14-year struggle in the St. Johns River to deal with nutrient pollution,” said the Riverkeeper’s Neil Armingeon, shortly after a press conference announcing the petition. “This is the fourth or fifth time we’ve had to basically file suit in order to get anything done.”
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 environmental organizations (the Riverkeeper included) filed suit, alleging that Florida was in violation of the Clean Water Act.
That suit was settled in 2009, with a federal mandate from the EPA requiring Florida to implement a more strict set of standards. But the EPA recently caved to demands from industry and lawmakers arguing that Florida should develop its own rules. So the state Department of Environmental Protection did just that. The problem, according to environmentalists like Armingeon, is that the state’s version is weaker than the federal version — and weak water rules are what got Floridians into this mess to begin with.
Florida’s Environmental Regulation Commission is set to consider the state’s draft rule on Thurs., Dec. 8. If it is approved (which many say is likely), it will next go before the Florida Legislature, after which the EPA will have its chance to approve or deny the final regulation.
“[The state’s version] allows waterways to further degrade before anything’s done,” says Armingeon, “so we filed the administrative challenge. In administrative law, you can challenge a rule before it goes through the regulatory process. The real question is: Does our challenge prevent the ERC from taking action? That’s unknown.”
According to Earthjustice attorney David Guest, who is representing the environmental groups in the case, the ERC doesn’t have to hold off on going forward just because of the challenge.
“Legally, they have in the past gotten away with going forward in a circumstance like this, because of legislative amendments,” says Guest. “If we were big polluters raising this question, there’s no doubt that the commission would wait. But we are representing the public.”
Guest says the purpose of filing the petition goes beyond simply making a statement — it is a challenge to both the state’s draft rule and to existing law. Florida now relies on a narrative standard which states, rather vaguely: “In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna.” The Department of Environmental Protection’s draft rule, says Guest, doesn’t go much further than that.
“We are challenging this … narrative imbalance of ‘when it turns slime green, something must be wrong,’ on the grounds that it does not comply with state law or the Clean Water Act,” he says. “It doesn’t protect it, it only acknowledges the destruction after the destruction has taken place. The rule itself is fully dependent on that principle. It’s entitled ‘numeric criteria,’ but if you read it, it’s nothing different than the narrative ‘wait till it turns green’ standards.”
Guest says he will attend the Dec. 8 meeting of the Environmental Resource Commission. “I’ll be given the opportunity to speak,” he says. “Whether the ERC will listen to anything that the public has to say is in doubt.”
Should the Commission submit the rule to the state Legislature for ratification, Guest says there is “every signal in the world that the Legislature will do something.” What that “something” is, though, remains unknown.
“It’s not the habit of the Legislature to rubber-stamp anything,” says Guest. “The rule will come out very differently.”