Enviros Bask in Water Reg Win, Brace for Lawsuits

By: Keith Laing
By: Keith Laing

THE CAPITAL, TALLAHASSEE, Nov. 15, 2010 --

Despite winning a clear victory from the U.S. Environmental Protection Agency over water pollution standards, the environmentalists who prodded the agency to create tougher limits expects to have to continue to fight over the issue in court.

EarthJustice attorney David Guest said environmentalists who have clamored for the new standards would likely not be able to celebrate the new numeric limits on the amount of pollution in state bodies of water for long.

U.S. Environmental Protection Agency Administrator Lisa Jackson announced Monday that the rules had been finalized over the objection of Florida environmental officials, businesses, farmers and a host of recently-elected state government leaders at the end of a 30-day delay period intended to mollify critics.

“I assume…we will see a plethora of lawsuits filed by a rogue’s gallery of polluters all over this state,” said Guest, who filed the lawsuit that led to the nutrient standards. “I expect that they will all be consolidated to one place, but in ligation land we will have World War III.”

Guest quickly said he was confident he and other environmentalists would win a second legal battle, much as they did when they won a 2008 settlement over their contention Florida and the federal government had failed to enforce the federal Clean Water Act.

“We have reviewed carefully the science and the economics of this rule and are of the conviction that it is scientifically correct and economically justified,” Guest said.

Guest’s lawsuit touched off a lengthy back and forth between the EPA and the Florida Department of Environmental Protection that resulted in Monday’s announcement of the new water rules. As the regulations were being developed, the state argued that all the standards would be unfair because they would only be applied to Florida, and also said they would be too expensive.

DEP questioned the science behind the EPA proposals and proposed its own nutrient standards, which sought to maintain the state’s flexibility by including four possible approaches for setting the standard. Those were based on healthy existing conditions, historical conditions, comparisons to similar areas or limits based on the amount of pollutants in bodies of water known as Total Maximum Daily Load (TMDL).

EPA went instead with an approach comparing bodies of water to certain other bodies that are determined to be “unimpaired.”

DEP found a silver lining, noting that the EPA won’t impose the rules for 15 months – and telegraphed that the fight will continue.

“I am pleased that EPA has responded to our request for additional time to implement numeric nutrient criteria in Florida by setting an effective date 15 months beyond the date of promulgation,” interim DEP Secretary Mimi Drew said in a statement. “This extra time will allow everyone to reach a better understanding of the criteria and develop implementation strategies.”

Drew was appointed to head the agency late this year after long-time DEP Secretary Mike Sole resigned. She was tapped by outgoing Gov. Charlie Crist, who lawmakers are out to prove is the lamest of lame ducks this week by overriding several vetoes with their new super majorities in the Florida House or Senate.

Working on his transition in Fort Lauderdale, Gov.-elect Rick Scott has not yet started naming agency heads, so Drew might not be the one to develop the DEP implementation strategies she spoke of Monday.

Scott’s transition team did not respond to request for comment Monday, but he possibly foreshadowed a challenge to the new rules from his administration in a letter to EPA Administrator Jackson on Friday.

“We are very concerned about the cost of this onerous regulation to Floridians," Scott wrote along with Attorney General-elect Pam Bondi, Agriculture Commissioner-elect Adam Putnam and new U.S. Reps. Richard Nugent, David Rivera, Dennis Ross, Steve Southerland and Daniel Webster. "Florida is the first state to be subjected to such federal rules, and we must ensure that the science is sound and the benefits are worthy of the costs."
Despite the criticism however, EPA defended the process that lead to the finalized rules Monday.

"Anyone who has seen the green sludge coating Florida’s waters has experienced the consequences of excess nutrient pollution. This is a serious environmental problem that harms Florida’s economy and quality of life," EPA Regional Administrator Gwen Keyes-Fleming said in a statement. "EPA sought extensive public comment and scientific input during the rulemaking process, and these standards respond to that feedback by providing a practical, flexible approach to meeting the expectations of Florida’s citizens for clean, healthy water."

On his way out the door in two months, Crist, who was once regarded as one of the most environmentally-friendly Republicans in the nation, echoed Drew’s praise of only the 15 month delay.

“This delay will allow the Florida Department of Environmental Protection, local governments, business and residents more time to plan and evaluate the cost, effectiveness and best method for implementing these standards which address one of our state’s most pressing environmental issues – nutrient pollution,” Crist, who left the GOP to run for U.S. Senate as an independent, said in a statement Monday.

However, there was no such faint praise from “Don't Tax Florida," a group including business associations like Associated Industries of Florida and government spending watchdog associations like Florida TaxWatch. Led by former DEP secretaries Virginia Wetherell, Colleen Castille and Jake Varn, Don’t Tax Florida has fought the standards since the successful EarthJustice lawsuit.

“This is an unprecedented federal action on a state that is going to cost Florida’s families and taxpayers billions of dollars,” Don’t Tax Florida spokesman Ryan Banfill told the News Service of Florida Monday. “This is exactly what the election was about a couple weeks ago. People are concerned about a federal government that is too big and choking off economic growth.”

Banfill said it was too early to tell if the EPA rules would be challenged in court, but “every option is being reviewed and considered.”


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