Published May 15, 2002 (Tampa Tribune)
TALLAHASSEE-- A state administrative law judge has rejected claims by environmentalists that Florida is weakening rules meant to indentify and clean up polluted waterways.
Judge Stuart Lerner, in a 468-page order, approved a new rule the state Department of Environmental Protection will use to list polluted waters. The rule increases the amount of testing and data needed for river or bay to be listed.
Only waterways on the "impaired waters list" will have strict limitations set by the state on the amount of pollutants that can be discharged into that section of the river or bay. Lerner rejected environmentalists' argument that the rule does not comply with the 1999 state law requiring polluted waters to be listed and cleaned up.
"He looked at the rule and he looked at DEP's statuatory authorization for the rule and found that the rule complies with the statuatory requirements," said Jim Alves, an attorney for power companies, chemical manufacturers and municipal sewer plant operators who intervened on the side of the state.
Environmentalists say Lerner's ruling could potentially gut the federal Clean Water Act. They plan to sue in federal court to invalidate the rule.
"I think it means DEP has so far been effective in providing a huge loophole to get around or through the Clean Water Act...and in doing so, setting a precedent nationwide," said Linda Young, Southeast Regional head of the Clean Water Network and one of the petitioners who challenged the rule.
The U.S. Environmental Protection Agency has signaled tacit approval of Florida's apporach for namng rivers, bays and streams to the federally mandated impaired waters list. Once a water-way is listed as impaired, the state has to set firm limits on pollutants entering the water. The limits are called "total maximum daily loads."
Philip Mancusi-Ungaro, an EPA lawyer said the federal agency favors states increasing the amount of data they collect to assess their waterways.
What is Reasonable?
Environmentalists say the methods the state will use under the new rule will keep many polluted waters off the impaired list. For instance, the rule requires that tests must show pollution during three-quarters of a year for the water to be declared impaired. Environmentalists say that ignores pollutatns, such as nutrients, that spike during hot weather. The rule also doesn't count pollution surges after a heavy rainstorm.
The rule also creates ways industries can avoid pollution limits. For instance, the DEP rule says a waterway won't make the impaired list if industries or local governments give "reasonable assurance" that pollution control technology will clean up the waterway, or that "reasonable progress" is being made toward that goal.
But environmental groups say the rule provides no standards to define "reasonable progress," nor does it give a deadline to achieve the better water quality.
They also argue that nothing in Florida law says waters shouldn't be listed based on "supposition" that the pollution will improve.
DEP officials say they are not trying to weaken environmental regulations. The new rule, they say, only means the agency will employ more rigorous science to make sure the waters listed are really impaired.
"This way we have more confidence about the waters on the impaired list and we won't waste our resources on waters that aren't impaired," said Daryll Joyner, administrator for the state's watershed management program.
The state must send its final impaired waters list to EPA by Oct. 1. Joyner said he doesn't know how many waterway segments will be on the list.
DEP has been reviewing data for more than a year on 1,340 rivers, streams and bays identified on a federal database as polluted. Pollution data that was more than 5 years old was discounted.
DEP Wants Information
At the same time, Joyner said DEP has been "beating the bushes" to collect more data from local pollution control agencies or non-profit groups.
For example, Richard Boler, a scientist with the Hillsborough Environmental Protection Commission, said the most polluted part of the Alafia River is not on the list DEP is evaluating.
"We think we will provide pretty good information for DEP to perhaps put that segment of the river on the list," Boler said.
Reporter Mike Salinero can be reached at (850) 222-8382.