Environmental Intersection by George Lindemann

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.

 

The Everglades Foundation on Monday released a report showing that 76 percent of phosphorous pollution entering the Everglades comes from agricultural operations while that sector pays 24 percent of the cost.

The group says it hopes the findings help Gov. Rick Scott as he negotiates a new Everglades restoration plan with federal agencies. The information also could be used by the Legislature to shift the cost burden more to agricultural interests, Everglades Foundation officials said.

The Everglades ecosystem extends from south of Orlando south to Lake Okeechobee, Everglades National Park and Florida Bay. Excess nitrogen and phosphorus from a variety of sources has contributed to some areas of the national park having become choked with cattails.

Sixty-eight percent of Florida voters in 1996 approved a state constitutional amendment requiring that those who cause pollution in the Everglades to be "primarily responsible" for the cost of cleanup. The Everglades Foundation says its report, produced by RTI International, uses public data to help identify who is causing the pollution and who has been paying for the cleanup.

While 24 percent of the money for nutrient removal comes from agricultural sources, 39 percent comes from property taxes collected by the South Florida Water Management District, which operates 45,000 acres of stormwater treatment areas. State and federal governments pay 27 percent and wastewater customers pay 10 percent of the cost.

"I think it's hard to fathom how any honest person could suggest that the big sugar and agricultural interests are complying with the constitutional amendment by picking up only 24 percent of the cost right now," Everglades Foundation Executive Director Kirk Fordham said.

In response, U. S. Sugar Corp., Florida Crystals Corp. and the Sugar Cane Growers Cooperative of Florida issued a statement condemning the Everglades Foundation for producing studies "resulting in hocus pocus economic conclusions."

"The Everglades Foundation’s report is riddled with so many erroneous assumptions, then hedges the conclusions with an equal number of caveats and uncertainties, that it serves no purpose except to throw mud on productive restoration efforts," the statement said.

The Florida Department of Environmental Protection in response issued a statement that did not address the cost issues raised in the report. The statement said the report noted progress made on Everglades cleanup and agriculture's role in that effort.

Some sugar industry representatives have said the state should focus more attention on reducing phosphorus and nitrogen pollution in the northern Everglades north of Orlando. But Fordham noted that his group's report says that only about 13 percent of the phosphorus reaching the stormwater treatment areas is coming from Lake Okeechobee.

The Everglades Foundation decided in the fall of 2010 to do the study, so its release after the 2012 legislative session while the governor is negotiating with federal agencies is coincidental, Fordham said.

"I think it really is up to the Legislature to determine how to shift the cost," Fordham said. "If that doesn't take place, then I think taxpayers ought to take a look at whether or not there are other means to guarantee it is enforced."

He added, "Certainly if the question is, is the Everglades Foundation looking to file a lawsuit right now -- the answer is no."

Read key findings of the report at http://www.evergladesfoundation.org/pages/1708.  Download the 107-page Everglades Foundation report by clicking here.

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.”

 

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.

 

Scott again faces decision on vetoing environmental restoration projects

Bruce Ritchie, 03/21/2012 - 01:47 PM

A year after Gov. Rick Scott vetoed $10 million for environmental restoration projects, two senators are supporting about the same amount again -- and are hoping for a better outcome.

When he signed his first state budget as governor last year, Scott vetoed $10 million for St. Johns River restoration projects among $615 million in spending vetos. He didn't give a reason for vetoing the river projects but said Florida families were having to get by with less and so should state government.

The 2012-13 state budget passed by the Legislature has $19 million in water quality projects (Line 1683A) including $5.6 million for St. Johns River restoration, $3.5 million for a Hendry County airport utility system, and $2.3 million for a LaBelle sewage treatment plant. 

An additional $400,000 was appropriated for an economic analysis of the St. Johns River by the University of North Florida. Another $4.8 million is appropriated (Line 1863A) for restoration projects for Lake Apopka north of Orlando, one of Florida's largest lakes.

Sen. John Thrasher, R-St. Augustine, said Tuesday that he wants to get Scott onto the river, but not to press him on the budget item.

"I think we're going to be OK on the budget -- that's my gut feeling," Thrasher said. "We want to get him out there as governor soon, to see what we consider a real treasure for our area."

The St. Johns River has algal blooms caused by nitrogen and phosphorus from wastewater treatment plants, discharges from farms and dairy operations and dirty stormwater runoff. The St. Johns River Water Management District is considering a 2011 list of projects that could receive some of the $5.6 million, district officials said.

Asked what criteria he will use to veto environmental projects, Scott told reporters Tuesday, "What I will do with anything in the budget having to do with the environment -- I will look at it (and) get advice from the Department of Environmental Protection to make sure it is money well spent."

In December, Sen. Alan Hays, R-Umatilla and chairman of the Senate Budget Subcommittee on General Government Appropriations, co-hosted the Lake Apopka Restoration Summit to review progress being made and discuss its future. 

Lake Apopka lost 20,000 acres of shoreline wetlands to farming beginning in the 1940s and received high-phosphorus discharges from those farms until the late 1990s. The district purchased the farmland in the late 1990s and created a marsh treatment flow-way in 2003.

Recalling how Lake Apopka was a prized fishing lake before its ecological collapse, Hays told The Florida Current that the $4.8 million will be used to identify new technologies that can accelerate the lake's restoration. The budget language requires the Florida Fish and Wildlife Conservation Commission to submit a list of projects to the Legislature before it receives the money.

"I think it is incumbent on those of us who care about the health of Lake Apopka and about the health of the St. Johns River to impress upon the governor why those projects are important to the long term health of the state of Florida," Hays said. "I don't stand to gain a single thing out of either one of those."

Reporter Travis Pillow contributed to this report.

South Florida, low-lying and smack in the middle of Hurricane Alley, has the greatest number of people and places at risk from rising sea levels, according to a new report released on Wednesday.

The report from Climate Central, an independent research and journalism organization, suggests Miami-Dade and Broward counties alone have more people vulnerable to flooding than any state except Florida and Louisiana.

The “Surging Seas” report, which echoes and expands on previous studies by universities and government agencies that have pinpointed South Florida as ground zero for global warming impacts, can be found at climatecentral.org. It includes an interactive map that can zoom in to show which communities would inundated under different potential levels of sea level rise.

The analysis was based on a projected potential rise of four feet, with increased damage from hurricane storm surge and flooding from seasonal high tides compounding the threats.

Overall, Florida also ranks as the most vulnerable to sea level rise, with some 2.4 million people, 1.3 million homes and 107 cities at risk from a four foot rise, according to the report. Louisiana, by comparison, has 65 cities below the four-foot mark. New Jersey and North Carolina have 22 each, Maryland 14 and New York 13.

The study projects that under current trends, the most vulnerable areas could see increased flooding as early as 2030. The Intergovernmental Panel on Climate Change, an international science panel, officially estimates that the average sea level could rise from seven to about 24 inches by 2100 but notes it could be higher under some scenarios.

If the state approves the $47 million plan, it means the aquifer would be depleted a little more slowly. But it also means people in the tri-county area could be drinking treated wastewater every time they turn on the tap.

The concept of recharging the aquifer with treated sewage isn't new, but the city's project is different, said Rick Nevulis, a water reuse coordinator with the South Florida Water Management District. Pembroke Pines will inject the water directly into the ground. West Palm Beach, Sunrise, Tindall Hammock, Pahokee, Wellington and Homestead pump their purified sewage into wetlands, lakes or fields, where it percolates into the aquifer over a period of months or years.

Those six utilities now pump a combined 6.5 million gallons of purified sewage into the water supply each day. Pembroke Pines' plan would double that.

This is a long time coming, Nevulis said. The rest of the state already pumps much of its sewage back into its water supplies, and South Florida is behind.

Only about 71 million gallons of the approximately 640 million gallons of sewage the tri-county area produces each day gets reused in any way, and almost all of that goes toward irrigation.

The plan does have an "ick" factor, admitted City Manager Charles Dodge. But he guarantees the water will be pure and drinkable.

"The water will be very, very well treated," he said. "It's not as if you would know it went through this process."

Pembroke Pines' 7 million gallons a day may go into the ground in the city, but there's no way of telling where it will come out, said Harold Wanless, professor and chair of geological sciences at the University of Miami.

"Aquifers flow," Wanless said. "It's difficult to tell where any particular water will move to. We don't have the large conduits inside the aquifer well mapped."

The plan is necessary to regain the city's water use permit from the South Florida Water Management District. The aquifer — a 4,000 square mile system of underground limestone caves filled with water — is running low and the district has ordered that utilities come up with additional sources of water.