A decade-long legal dispute over Florida's process of listing waterways that require cleanups has taken another yet another turn.
Chief U.S. District Judge M. Casey Rodgers in Tallahassee last week ordered the U.S. Environmental Protection Agency to review Florida's revised "impaired waters" rule to determine whether it has caused some waterways to be dropped from the state's cleanup list.
Environmental groups, who say the state is attempting to drop waterways from its list rather than clean them up, are claiming victory in the latest ruling. An attorney for industry groups that backed the state rule at issue said it was scientifically valid as upheld by a state hearing officer.
Environmental groups in 2001 challenged the Florida Department of Environmental Protection rule that established the process for listing "impaired waters" as required by the federal Clean Water Act.
The groups said DEP was seeking to avoid forcing industries to reduce pollution by removing waterways from the list. DEP said in a news release at the time that the goal was to identify and focus restoration efforts on waterways that are truly degraded.
The 11th Circuit U. S. Court of Appeals has stated that the U.S. Environmental Protection Agency must determine whether water bodies will be removed from the cleanup list under the initial 2001 rule and subsequent revisions. Rodgers ruled last week that the EPA had not done so and gave the agency 120 days to take action.
A U.S. Environmental Protection Agency spokeswoman said the agency was reviewing the order. A DEP spokeswoman said the agency stands by its state rule, which she said was not questioned by the judge's ruling.
"In fact, the judge’s ruling upholds every technical aspect of those sections of the IWR (impaired waters rule) that EPA has reviewed and approved," spokeswoman Dee Ann Miller said. "It simply directs EPA to expand or further document its evaluation and analysis of those sections of the rule that EPA has not reviewed."
The judge's ruling is a huge boost for environmentalists who now want the federal EPA to give up its appeals, said Linda Young, director of the Clean Water Network of Florida. She said the EPA should review the list to determine what water bodies were being dropped because of the rule changes, not because they had been restored.
"Honestly I'm so happy about this ruling," Young said. "The Obama administration has been so disappointing in so many ways. I'm hoping and praying this will not be another disappointment."
Other environmental groups that are plaintiffs in the latest lawsuit filed in 2009 are the St. Johns Riverkeeper and the Conservancy of Southwest Florida. The court earlier denied requests by industry groups seeking to intervene on behalf of EPA.
DEP has reported that the number of miles of impaired waterways increased from about 1,000 miles in 2008 to about 1,900 miles in 2010, according to a federal EPA web site. Impaired acres of lakes increased from 350,000 acres in 2008 to 378,000 in 2010.
The case is separate from the dispute over proposed federal water quality rules that has raged during the past two years and led to HB 7051, waiving adoption by the Legislature of proposed alternative state rules.
Reporter Bruce Ritchie can be reached at britchie@thefloridacurrent.com.
With the state’s growth management agency dismantled last year by lawmakers and Gov. Rick Scott, agriculture and development interests are seizing the opportunity, he said.
He pointed to the appointment of Peña to the panel recommending changes in wetlands laws as particularly troubling. She’s president of the Las Palmas community association — several hundred small nurseries, ranches and farms west of Krome Avenue long known as the 8.5 Square Mile Area. Residents in the area have repeatedly ran afoul of DERM, racking up some 90 code and wetlands violations in the last decade, according to county records.
“It’s such a grim scenario that when it comes to participating in these county task forces and working groups, I don’t see any point to it,” he said.
The county’s environmental agency, charged with monitoring and enforcing a wide range of county, state and federal laws, has long been a lightning rod for criticism. But the tone has grown more strident.
During last month’s commission meeting, Peña ticked off a long list of complaints: inspectors jumping fences, DERM dragging people to court over unpaid fines and forbidding residents from using portions of their lands.
“Is this America, or are we now going to legitimize Gestapo tactics in this country?” she said.
Several commissioners were quick to share in the disdain, branding regulators as overzealous and out to bolster the agency’s budget by assessing fines. Despite “the best intentions,” Commissioner Bruno Barreiro said, “a great idea has morphed into something that’s basically a monster.”
Complaints grew so heated at early wetlands advisory meetings that the county ordered police protection, said Deputy Mayor Jack Osterholt, who oversees the planning, zoning and environmental agencies.
But Osterholt insisted the administration was looking to overhaul outdated and inconsistent environmental regulations and permitting requirements that cost businesses time and money — not to loosen regulations.
“The focus is unchanged,’’ Osterholt said. “The mission is unchanged.”
Bell, in an interview, insisted her goal in pushing for the wetlands laws wasn’t intended to open the door to more development but to “balance the needs of the average worker and the average small business.”
“I’m not trying to gut anything,” Bell said. “We are perceived as a county that’s unfriendly toward business. We have to change that.”
Environmentalists are skeptical. They contend the verbal attacks combined with shuffling leadership and staff cuts have undermined morale and created a “bunker mentality.” Since 2000, the DERM staff has dropped from 556 to 482, with another 56 cuts proposed for next year.
“There is a lot of pressure on them,” said Laura Reynolds, executive director of the Tropical Audubon Society. “The climate is so bad, they’re afraid to say anything.”
Sara Fain, an attorney for the Everglades Law Center, said the complaints have come largely from landowners who have repeatedly flouted county laws and refused to pay court-ordered fines.
“It would be the same things as if I decided to install new windows in my house and didn’t apply for a permit,” she said. “This idea that DERM is trying to stop them from using their land is a fallacy.”
via miamiherald.com
The ruling was drawn narrowly around the issue of judicial review rather than the larger question of the E.P.A.’s jurisdiction over wetlands. Nonetheless, property-rights advocates hailed it as a victory for individual freedoms over governmental authority.
For years, the E.P.A. has invoked its authority under the Clean Water Act to issue so-called compliance orders declaring a site to be a wetland and requiring owners to stop construction or to restore the land. Property owners could not seek judicial review of these orders without taking other administrative steps like applying for permission from the Army Corps of Engineers to build on a wetland.
Wetlands have been accorded federal protection because of their role as natural incubators and as water-cleansing filters within larger ecosystems. The agency argued that compliance orders are crucial to its ability to step in and guard such areas from illegal development, and that immediate judicial review of these administrative actions would undermine the Clean Water Act.
But the couple bringing the case, Michael and Chantell Sackett, argued that they should be able to ask a court to rule immediately on an agency order that carries with it the threat of fines of $75,000 a day.
The Sacketts had sought a hearing with the E.P.A. but were denied one. They then sued for judicial review of the wetlands determination.
Justice Antonin Scalia, writing for the court, said, “There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review.”
The ruling in Sackett v. Environmental Protection Agency, No. 10-1062, did not address the question of the E.P.A.’s jurisdiction, particularly over wetlands. This issue was addressed — but not clearly decided — in a 2006 case involving a Michigan developer, John Rapanos.
In a statement, the E.P.A. said, “E.P.A. will, of course, fully comply with the Supreme Court’s decision, which the agency is still reviewing, as we work to protect clean water for our families and future generations by using the tools provided by Congress to enforce the Clean Water Act.”
In a concurring opinion, Justice Samuel A. Alito Jr. called on Congress to end the ambiguity over the E.P.A.’s jurisdiction. “Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act,” he wrote.
The Sacketts were represented by the Pacific Legal Foundation, a libertarian group in California. Their case drew support from groups including the National Association of Home Builders, the National Federation of Independent Business, the U.S. Chamber of Commerce, the National Association of Manufacturers and the Competitive Enterprise Institute.
via nytimes.com
BY FRED GRIMM
MiamiHerald.com/columnists Selling off our national parks to private developers…. well, you got to give it to Cliff Stearns. That’s just good modern Republican business sense. Sell ’em. Drill ’em. Frack ’em. Turn the Grand Tetons into a ski resort. Hang a zip line over the Grand Canyon. Convert Yosemite into a corporate retreat. Strip mine the Smokies. Erect drill rigs in the Everglades. But comparing a sell-off of so much scrubby parkland to getting rid of the family Caddy — that’s near about blaspheme where I’m from. Stearns, a ranking congressman from Ocala (better known, lately, as a Florida’s most prominent birther), uttered his slander on the most sacred of down-home family values last month at constituent meeting in Belleview. He was railing against a proposed new national trail commemorating the route Buffalo Soldiers rode through California back at the turn of the last century. The black Army outfit, essentially America’s first park rangers, patrolled the newly created Sequoia and Yosemite national parks, protecting the federal land from wildlife poachers, timber rustlers and illegal grazing. “Would you want to walk 200 miles?” Stearns asked his constituents. (That suggests that, if Stearns had been around in 1921, he’d have been even less enthused by the construction of the Appalachian National Scenic Trail. Would you want to walk 2,181 miles?) Stearns said that “we don’t need more national parks in this country. We need to actually sell off some of our national parks, and try and do what a normal family would do.” Normal families usually don’t have national parks in their domestic portfolio. But Stearns persisted. “They wouldn’t ask Uncle Joe for a loan, they would sell their Cadillac.” This was too much. Back where I’m from, in West Virginia, rednecks with Caddies would sooner sell their kids (a relatively plentiful commodity) than part with an Eldorado. If it happened to be the 1959 model with soaring fins and Marilyn Monroe bumpers, well, he’d consider tossing the wife and her momma into the negotiations. Previously, Rep. Stearns’ peculiar interest in the national parks system had focused on legislation to rescind the ban on firearms inside the parks. But other Republican members of Congress have lately proposed selling off chunks of parkland and national forests. Or opening up parks to oil and gas exploration. The new Smokey the Bear poster comes with either of two mottos: either “Don’t Shoot” or “Drill, baby bear, drill.” Under Gov. Rick Scott, Florida’s state parks have similarly been re-imagined as commodities. Last year, Gov. Scott’s administration, pushing a flurry of new proposals to reengineer state government as a business enterprise, decided that the state’s 160 parks should each be self-sufficient — or else. The state park service decided 53 “unprofitable” state parks would be shut down. Private operators would be able to build campgrounds, with RV hook-ups, inside another 56 parks. Another proposal would allow a single, well-connected company to construct and operate fancy golf courses in other parks. The public, which tends to regard a state park somewhat differently than, say, a strip shopping center in Kendall, was not amused. A great howl ensued. Scott suddenly decided he didn’t mind the unprofitable park system so much. This past session the Legislature did pass bills allowing commercial advertising along state scenic trails, giving “scenic” an odd new definition, but opponents managed to limit the damage to just seven trails. A bill to allow gas and oil drilling in state parks died a worthy death. No one, in the past session, proposed selling off the state’s oceanfront parks to condo developers. Maybe the Legislature’s big dogs are only waiting for the real estate market to recover. In the new Florida, you gotta think like a entrepreneur. Oddly enough, Cliff Stearns’ antipathy toward the creation of new historic parks was not so apparent in 2006, when the onetime operator of a small motel chain pushed through federal legislation (and funding) to designate Fort King, site of a major dust-up in the Second Seminole War, as a national historic landmark. On July 1, 2008, Stearns rightfully took full credit for the dedication of the 39-acre national historic site, which — I’m sure this is just a coincidence — happens to be located right there on 39th Avenue in his hometown of Ocala. “Our nation is rich in natural resources, scenic wonders and historic events and locations” he said. When Stearns said “rich,” who knew he was speaking as a real estate speculator? I bet Fort King would make a dandy location for a new motel. Do I hear bids? Anyone want to swap their old Caddy?
FGRIMM@MIAMIHERALD.COM
For many, the Florida Everglades’ spectacular vistas exist in black and white images from the lens of landscape photographer Clyde Butcher.
Butcher’s large-format prints hang in museums around the country, adorn Florida’s Capitol and even brighten Miami International Airport. Five decades after he moved to Florida, drawn by Ivan Tors’ mid-’60s TV series Flipper, Butcher is guided by the same belief: nature matters.
via miamiherald.com
Suwannee River Water Management District Executive Director David Still has announced his resignation, making him the fourth water district chief to resign in the past year.Suwannee River Water Management District Executive Director David Still, who warned a Senate panel on Tuesday that residents in his region are "mad as hell" and are taking revenge on water management districts, has announced he is resigning effective May 1. He becomes the fourth water district chief to resign within the past year.
Florida has five water management districts, established by the Legislature in 1972 and established in the Florida Constitution by voters in 1976. Some observers say the resignations are part of an effort to run the regional water management districts from the state capital in Tallahassee
Gov. Rick Scott last year directed the Florida Department of Environmental Protection to oversee the districts to ensure they focus on their core missions of water supply, flood prevention and resource protection.
Still, who spoke at a Senate confirmation hearing on Tuesday, said Wednesday he had no idea he would be asked to resign by the district's governing board later in the day.
"I think they [board members] were looking for somebody different -- that is the bottom line," Still said. He joined the district in 1994 and has been executive director since 2008.
On Tuesday, Still told the Senate Committee on Environmental Preservation and Conservation that he had met Monday night with some Suwannee County residents and "they are mad as hell."
"And they are going to get some revenge and they are getting it on us, the water management districts," he said. Still said Wednesday that he didn't think his resignation request was related to his comments.
The Suwannee River Water Management District is holding a series of public meetings in the coming weeks with Still and Hans Tanzler, the executive director of the St. Johns River Water Management District, to address groundwater issues.
The Suwannee River Water Management District said the Alapaha River basin, the upper Suwannee River region and the upper and lower Santa Fe river basins may be short of groundwater within 20 years. Some studies have pointed to groundwater pumping in Jacksonville as contributing to water shortages in the Suwannee River region.
DEP and the Suwannee River Water Management District are supporting HB 157, which requires water management districts to identify water bodies that could be affected by water use in neighboring districts. Some environmentalists say the bill doesn't address over-pumping that already is occurring.
"Senators, we are at a crossroads with water supply in our area," Still told the Senate committee on Tuesday. "And what we need to do is look at conservation as the main key.
"We also need to look at alternative water supplies and implement those fully as we go forward. A lot of that burden falls on the Legislature, in my opinion, to set new water policy," he said.
Sen. Charlie Dean, R-Inverness and committee chairman, said his visits to the Suwannee region had convinced him that "there is nothing on the agenda in the state of Florida more precious or more at risk than our water supply."
"People have asked me, 'How you like what you're doing in the Legislature?" he said. "The truth of the matter is I really want to tell them -- you wont hear this out of me very often -- I'm scared. I'm scared what is going to happen in our future with water."
His committee on Tuesday voted to confirm Still and three other district executive directors.
Once Still resigns, Doug Barr of the Northwest Florida Water Management District will become the only executive director remaining from when Scott took office.
And Barr appears to be on thin ice with at least one senator. Sen. Jack Latava, R-St. Petersburg, signaled during the committee meeting his unhappiness with what he called "business as usual" at the Northwest Florida Water Management District, including the agency having $30 million in unallocated reserves.
Sonny Vergara, a former executive director of the Southwest Florida Water Management District, said Still is "an extremely good person and was a perfect professional fit for the Suwannee district."
"His departure reflects an assault that is endemic upon the water management districts," Vergara wrote in an email.
Reporter Bruce Ritchie can be reached at britchie@thefloridacurrent.com.
