Another Fla Vs Feds Legal Fight Headed to Pensacola

By: Keith Laing, The News Service of Florida
By: Keith Laing, The News Service of Florida

THE CAPITAL, TALLAHASSEE, December 7, 2010 --

Florida will go to court to challenge tougher federal water standards slated to kick in next year, the state’s top legal and agricultural officials said Tuesday as they filed suit in federal court in Pensacola to block a controversial set of clean water standards they contend are inflexible and unworkable.

In the same court that is considering the state’s challenge to the federal health care reform, Florida’s Attorney General Bill McCollum, Agriculture Commissioner Charlie Bronson and their successors filed the lawsuit over federal water pollution standards that set specific numeric caps on pollutant levels for Florida lakes and rivers. The standards were announced last month by the U.S. Environmental Protection Agency.

Incoming Attorney General Pam Bondi and Ag Commissioner Adam Putnam have joined the challenge of the EPA’s water standards in the U.S. District Court for the Northern District of Florida in Pensacola, a sign they intend to continue the fight against the federal standards that have been uniformly criticized by state leaders from both sides of the political aisle.

“We all want clean water for Florida, and we all believe that scientifically sound and responsible numeric nutrient criteria will improve efforts to achieve this goal,” McCollum said in a statement announcing the lawsuit. “…The EPA numeric nutrient rule and its proposed criteria are not based on scientifically sound methodology, and were adopted in an arbitrary and capricious manner just to settle a lawsuit.”

An attorney for the group that filed the lawsuit prompting the federal standards, said Tuesday’s the state’s challenge was not unexpected and marks the next step in a case that will be decided in a higher court.

Florida environmental officials want to maintain existing state standards that base acceptable pollutant levels in Florida inland waters on a case-by-case basis based on a slate of factors including historical conditions, comparisons to similar areas or site-specific numeric limits know as total maximum daily load (TMDL).

The federal water pollutions standards, enacted in November, followed a lengthy back and forth between the EPA and the Florida Department of Environmental Protection, which questioned the science behind the EPA proposals and proposed its own nutrient standards. They also argued that the standards would be too expensive to comply with and unfair because they singled out Florida from the other states.

Bronson agreed with McCollum that there were questions about the legality of the water regulations, scheduled to take effect in 2013 over the objection of Florida environmental officials, businesses, farmers and a host of recently-elected state government leaders.

“I have been concerned from the beginning that EPA’s actions related to numeric nutrient criteria in Florida waters were not based on factual, verifiable science,” said Bronson, who is a separately named as a plaintiff in the lawsuit. “Florida has always been a leader in taking steps necessary to improve water quality and I was disappointed that EPA did not incorporate many of the state’s suggestions on the proposed rule.”

McCollum and Bronson lauded Bondi and Putnam for both pledging to continuing to wage the lawsuit when they take office Jan. 4. Both newly-elected Cabinet members said Tuesday they agreed with their predecessors’ take on the water regulations. All four are Republicans.

“Our communities cannot afford these new regulations which may not, in the long run, result in any meaningful improvements to our water quality beyond what our state has already implemented,” Bondi said in a statement. “As Florida’s next Attorney General, I will continue this lawsuit and will stand up on behalf of our citizens and our taxpayers.”

Saying it would be a “top priority” of his administration Putnam said the new regulations would cost consumers and localities billions of dollars and, in some cases, require technology not yet developed or too expensive to use.

“While we all would have preferred to avoid this litigation, this is but one strategy we will pursue to see that sound science prevails,” Putnam said. “I am hopeful the end result of today’s action will be the continued protection and improvement of Florida waters in a way that makes both scientific and economic sense.”

EarthJustice attorney David Guest, who filed the originally lawsuit that led to the EPA standards, noted the irony of the lawsuit being filed in the same court that is hearing the health care lawsuit, which has sided with state officials on key elements its challenge to federal law.

“In every complaint I have seen in my embarrassingly long career, which is well over 30 years now, this is the first one I’ve ever seen that did not include an explanation why a venue was (chosen),” Guest told the News Service of Florida Tuesday. “That’s a very revealing omission.”

Guest said that normally lawsuits are filed where either the plaintiffs or defendants live or where the contested issue took place. In this case, that would seem to favor the state’s capitol, Tallahassee, or Washington, D.C., the nation’s capitol, Guest said.

“There isn’t even a red-faced argument that there’s venue in Pensacola."

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