Florida wins EPA decision
JOHN BUCHANANAfter a hotly contested four-year legal battle, Florida Department of Agriculture and Consumer Services and the Department of Environmental Protection have won an important victory in a fight over numeric nutrient criteria for the state's waterways.
Published: December 12, 2012
Published: December 12, 2012
On Nov. 30, the U.S. Environmental Protection Agency accepted most of the state's proposed standards, despite an aggressive challenge from environmental groups.
"We are very pleased with the EPA action to approve the state's numeric nutrient criteria rule in its entirety," said Rich Budell, director of the Office of Agricultural Water Policy at the FDA. "What that means is that for all Florida lakes, rivers, streams, springs and virtually all of the South Florida peninsula estuaries, Florida' proposed nutrient criteria are now final. That means the vast majority of water bodies within the state are now covered by Florida's numeric nutrient criteria and not EPA's"
The only exceptions, Budell said, are certain estuaries, mostly located in the Panhandle, and some artificial waterways such as canals and storm water conveyances. And, he added, current discussions are underway to resolve the remaining differences between the EPA and the state.
As a result, Budell said he expects that the EPA will repeal its proposed standards for such estuaries and artificial waterways within 12 months.
The EPA decision ends a long process that began in July 2008 when a coalition of environmental organizations sued the EPA in order to impose stricter nutrient standards on Florida. The groups included the Florida Wildlife Federation, the Conservancy of Southwest Florida, the Environmental Confederation of Southwest Florida, the St. Johns Riverkeeper and the Sierra Club.
In 2009, under the terms of a consent decree settlement with the litigants, the EPA announced the more stringent standards it intended to impose on the state.
In June of this year, administrative law judge Bram D.E. Canter approved the alternative standards proposed by the DEP, setting the stage for the EPA decision.
The EPA decision represents another victory in a protracted effort by the DEP to maintain control of state policy.
However, a Dec. 2 report from the Associated Press — based on misinformation first provided by Earthjustice — mischaracterized DEP's victory as a "split decision" that only applied to about 15 percent of the state's waterways, with the EPA imposing its new rules on the other 85 percent.
"That story is absolutely erroneous," Budell said. "It is a complete misrepresentation of (the EPA's decision)."
Charles Shinn, director of government and community affairs at the Florida Farm Bureau Federation in Gainesville, agreed with Budell that the AP article misreported key facts.
"In the same article, our president, John Hoblick, was quoted, so it looked like we were disappointed with the entire decision," Shinn said. "That was not the case."
In the AP article, Frank Jackalone, staff director of the Florida regional field office of the Sierra Club in St. Petersburg, said that the EPA ruling would bring Clean Water Act standards to Florida and correct a failure by state officials to protect its waterways.
"That is also incorrect," Budell said. "My interpretation of it is that the EPA had, in some way, discounted or not approved, the new standards Florida had submitted and instead submitted their own, more stringent standards. And that's not what they did. And if Jackalone actually said that, if he was quoted correctly, I think he simply made the statement before he'd looked at the actual decision. He just jumped to a conclusion prematurely."
Jackalone acknowledged that his statement was incorrect.
"When I made my comment to AP, our understanding was that EPA had not adopted the state's rules," he said. "So in part, I'd have to change that statement. But I am not pleased that the state's rules were put in place. I am pleased that EPA had proposed a stronger rule for the rest of Florida's waters."
Jackalone also disputed Budell's statement that the EPA will ultimately repeal its own proposed standards in lieu of Florida's.
"That is not correct," he said. "They will only substitute state rules if those rules provide equivalent protection. They have not said anywhere they are going to withdraw their rules."
The EPA did not return phone calls seeking clarification.
The key difference between Florida's standards and those proposed by EPA is that the state's guidelines include standards not only for nitrogen and phosphorus, but also for the evaluation of biology.
"That means that in circumstances where the nitrogen and phosphorus numbers are exceeded for a given water body, you can evaluate biology to make a truly informed decision," Drew Bartlett, director of the DEP's Division of Environmental Assessment and Restoration, said earlier this year.
"The real benefit to farmers is that true, sound science is being used to develop standards that are achievable," Shinn said of the EPA decision.
Budell commended the EPA for making an informed decision to allow Florida scientists to remain in control of the state's water policy. "They have acknowledged that we are in the best position to know what is right for Florida," he said.