Lawsuit Aims To Block Controversial Water Rule
December 7, 2010 Florida Attorney General Bill McCollum, Agriculture Commissioner Charles Bronson, Attorney General-elect Pam Bondi and Agriculture Commissioner-elect Adam Putnam announced the State of Florida has filed a lawsuit against the EPA over the agency’s intrusion into Florida’s previously approved clean water program.
The lawsuit alleges that the EPA’s action is inconsistent with the intent of Congress when it based the Clean Water Act on the idea of cooperative federalism whereby the States would be responsible for the control of water quality with oversight by the EPA. Control of nutrient loading from predominately non-point sources involves traditional States’ rights and responsibilities for water and land resource management which Congress expressly intended to preserve in the Clean Water Act. It specifically alleges that the EPA rule and the January 2009 necessity determination by the EPA for promulgating numeric nutrient criteria for Florida’s waters were arbitrary, capricious, and an abuse of discretion, and requests the court to enjoin the EPA Administrator from implementing the numeric criteria for Florida in the rule.
“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. Florida was in the process of developing such criteria under an EPA-approved plan when the EPA decided to preempt the state’s plan,” said Attorney General McCollum. “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. I appreciate the commitments made by my successor, Attorney General-elect Pam Bondi, and the next Commissioner of Agriculture, Adam Putnam, to continue protecting Florida’s rights, citizens and waterways through this lawsuit.”
“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 Commissioner Bronson, who is a separately named 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. The final rule as written would place a severe financial burden on the citizens of Florida while not necessarily improving the state’s waters. The action being taken today is unfortunate but necessary to ensure EPA makes decisions affecting Floridians based on sound science. I am pleased that Attorney General-elect Bondi and Agriculture Commissioner-elect Putnam recognize the great importance of this issue and will continue to protect our citizens from unnecessary and costly regulations.”
“These new rules will have a drastic financial impact on local governments and communities who are already working to comply with Florida’s existing standards under the Clean Water Act. 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,” said Attorney General-elect Bondi. “As Florida’s next Attorney General, I will continue this lawsuit and will stand up on behalf of our citizens and our taxpayers.”
“I am grateful to Attorney General McCollum and Commissioner Bronson for their leadership, and I look forward to working with Attorney General-Elect Bondi on this critically important issue. This regulation is estimated to cost consumers and localities billions of dollars and, in some cases, will require technology that may not be attainable,” said Commissioner-elect Putnam. “While we all would have preferred to avoid this litigation, this is but one strategy we will pursue to see that sound science prevails. 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. As Florida’s next Commissioner of Agriculture, I will make achieving that goal a top priority of my Administration.”
Prior to the EPA’s announcement that it would be implementing new rules for Florida, the state had been diligently working through its Total Maximum Daily Load (TMDL) Program to adopt numeric standards for impaired bodies of water. The EPA had already approved Florida’s program on the basis that it was sufficient to meet the requirements of the Clean Water Act, referenced in a letter dated September 28, 2007. Additionally, as recently as January of last year, the EPA praised Florida for implementing “some of the most progressive nutrient management strategies in the nation.” Florida’s plan had a timetable for implementation through 2011.
Despite the fact that Florida was working to implement its approved plan and was seeing successes, the EPA reversed its determinations in 2009 and informed the state that new federal rules and criteria would be developed and implemented by the EPA, preempting the approved state plan. The EPA’s announcement was based on its effort to settle a lawsuit pending against the agency. At the time of its announcement, the EPA said that “making such a determination could give the EPA a basis to propose a settlement to the plaintiffs or to request that the court dismiss the case.”
According to the state’s lawsuit, the EPA has continued to rely on a methodology that is not scientifically sound and not site specific for Florida’s waters. In April, the EPA’s own Science Advisory Board joined the chorus of the Florida Department of Environmental Protection, the Florida Department of Agriculture and Consumer Services, the University of Florida Institute of Food and Agricultural Sciences, the Florida Legislature and others expressing serious concerns that the EPA’s methods for developing nutrient standards are scientifically flawed.
Also of significant concern to the state is the cost implication of implementing the new criteria. Studies produced by the Florida Department of Environmental Protection and the Florida Department of Agriculture and Consumer Services, as well as two independent studies all show that the impact to Florida’s economy will be in the billions. The EPA’s anticipated cost is the outlier, projecting a cost closer to $200 million. Costs for implementation are likely to be uneven across the state – high in some places, minimal in others. Unfortunately, the impact on the areas where the cost will be high is not offset by low costs elsewhere. These costs will be borne by the local users or in the case of government-owned utilities by higher tax rates.
Click here to view a copy of the lawsuit.
Source: Office of the Attorney General of Florida news release