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By Drew Douglas
TAMPA, Fla.—A federal judge has upheld a 2009 formal determination by the Environmental Protection Agency that numeric nutrient standards are necessary for Florida's waters, but invalidated certain aspects of the water quality criteria the agency developed (Florida Wildlife Federation v. Johnson, N.D. Fla., No. 4:08-cv-00324, 2/18/12).
Judge Robert L. Hinkle of the U.S. District Court for the Northern District of Florida in a mixed decision Feb. 18 said EPA was correct in determining that standards were needed.
Hinkle upheld the criteria for lakes and springs, but invalidated the criteria for streams, saying they were arbitrary and capricious. Moreover, he upheld the decision to adopt downstream protection criteria and upheld some, but not all, of the criteria EPA set.
The judge also backed the EPA administrator's decision to allow site-specific alternative criteria and the procedures for adopting them. He also upheld a March 6 deadline, or an extended date approved by the court, for the validated portion of the rulemaking.
The ruling stemmed from a lawsuit filed in 2008 by Earthjustice on behalf of five environmental groups alleging EPA had failed to comply with its nondiscretionary duty to set numeric nutrient criteria for Florida as directed by the Clean Water Act.
The lawsuit sought a court order to require the agency to impose quantifiable and enforceable limits for nutrient contaminants in the state. EPA in January 2009 issued its determination that Florida should set numeric nutrient standards (11 DEN A-11, 1/21/09).
In making the determination under Section 303(c)(4)(B) of the act, EPA said the action also would help identify waters impaired because of nutrient pollution, establish total maximum daily loads and basin management action plans, and derive National Pollutant Discharge Elimination System permit limits.
EPA adopted lake and spring criteria based on modeling and field studies to determine the level at which an increase in nutrients ordinarily causes harmful effects on “sound science and are not arbitrary or capricious,” Hinkle wrote.
However, he said EPA was unable to develop acceptable stream criteria based on modeling and field studies and thus adopted stream criteria using a different approach.
EPA “identified a representative sample of minimally-disturbed streams for which nutrient data were available, calculated annual geometric means for each stream and in turn for the sample set of streams, and set the criteria at the 90th percentile,” he said.
“The Administrator apparently concluded only that an increase above this level ordinarily causes a change in flora and fauna—not that it causes a harmful change. If there is a basis in sound science for disapproving a nutrient increase that causes any increase in flora and fauna, not just a harmful increase, the Administrator did not cite it,” Hinkle wrote.
“And even if the Administrator's conclusion was that an increase in nutrients to a level above the 90th percentile ordinarily causes a harmful change in flora and fauna, the Administrator again did not cite a sound science basis for the conclusion,” Hinkle said. “Without a further explanation, the stream criteria are arbitrary or capricious.”
The decision had both supporters and opponents claiming victory.
Earthjustice said a “decade of delays in setting limits on sewage, manure and fertilizer contamination in Florida waters ended” with Hinkle's ruling. Earthjustice also said that enforceable new limits on such pollution cannot be delayed and must go into effect March 6.
“Florida political and environmental leaders have been struggling for 20 years to come up with a way to stop huge green toxic algae outbreaks that plague Florida lakes and rivers,” Earthjustice Attorney David Guest said in a statement. “Today, we finally turned the corner.”
Earthjustice also termed Hinkle's decision about streams “two technical defects in EPA's rule, and ordered them to be fixed by May.”
Opponents disagreed with the characterization.
Attorney General Pam Bondi (R) said the state has prevailed on a “key” issue.
“This is a major victory for the state because the bulk of the compliance costs associated with EPA's numeric nutrient criteria would have stemmed from the stream rule,” Bondi said in a written statement. “This ruling will give Florida an opportunity to enact rules to protect our streams without crippling our economy. Yet another instance of federal government overreach has been prevented.”
Bondi continued, “The Court upheld the site specific alternative criteria, or variance, process. Under this provision, if an applicant for a permit can show that the particular water body at issue should be governed by different numeric criteria, then a variance can be issued.”
Bondi and other officials also noted the state was submitting to EPA two numeric nutrient criteria rules (62-302 and 62-303) proposed by the Florida Department of Environmental Protection (FDEP). A bill (H.B. 7051) approving the rulemaking, in effect, was signed Feb. 16 by Florida Gov. Rick Scott (R) (27 DEN A-12, 2/10/12).
The rules would cover water quality in state lakes, streams, rivers, and certain estuaries.
, FDEP said Feb. 21 that it has submitted the rulemaking to EPA.
“Florida advanced its efforts in setting numeric nutrient standards for our waterbodies, by presenting our rules to the U.S. Environmental Protection Agency (EPA) for final review,” FDEP Secretary Herschel T. Vinyard Jr. said in a written statement. “A healthy environment depends on getting Florida's water right, in terms of both water supply and water quality. No one knows our water better than Floridians, and these rules will allow us to effectively protect water quality in our state.”
Vinyard continued, “Our rules provide a clear process for identifying waters impaired by nutrients, preventing harmful discharges and establishing necessary reductions. They provide a reasonable and predictable implementation strategy, and avoid unnecessary costs for Florida's households and businesses.”
Both sides in the Northern District lawsuit agreed that Hinkle's ruling would play a role in the state rulemaking.
The rules are under administrative challenge from Earthjustice (233 DEN A-7, 12/5/11).
“Like the old rules, 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,” Guest said in the statement.
Attorney David Childs, with the Tallahassee law firm of Hopping Green & Sams, said Hinkle's order “echoed a key criticism that opponents of EPA's rule have made from the outset of this case: that EPA adopted overly restrictive streams criteria that would misallocate limited government and private resources to reduce nutrient loads below levels necessary to protect Florida's streams.”
Childs also said in a memorandum on the case that Hinkle's ruling likely could substantially impact EarthJustice's administrative challenge.
“FDEP's springs and lakes criteria are virtually identical to EPA's criteria, and a federal court has upheld those two sets of criteria under the same legal standard of review that applies in the state hearing,” Childs wrote.
“Also, FDEP's streams criteria use the same numeric values as EPA's criteria, but the difference is that FDEP's streams criteria also have a biological confirmation step, while EPA relied solely on raw numbers,” Childs wrote. “It could be argued that FDEP's more detailed streams criteria rule truly interprets FDEP's narrative criterion and thus squarely addresses the fatal flaw in EPA's streams criteria that led Judge Hinkle to invalidate that portion of the EPA rule.”
By Drew Douglas
The decision by the U.S. District Court for the Northern District of Florida is available at http://myfloridalegal.com/webfiles.nsf/WF/MMFD-8RNT4T/$file/sjorder.pdf.
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