Agri Leader

Legal battle over numeric nutrient criteria continues

The coalition of environmental groups that brought legal action five years ago that led to intervention by the U.S. Environmental Protection Agency (EPA) in a dispute over the development of numeric nutrient criteria for Florida's water bodies plans to appeal a Jan. 7 ruling by a federal court judge that allows EPA to withdraw from the terms of a consent decree that terminated the original lawsuit.

Under the terms of the agreement reached in 2009, EPA would have imposed hard limits on nutrients such as nitrogen and phosphorus in Florida's flowing water bodies. Until then - and since - Florida Department of Environmental Protection (DEP) proposed limit targets that would be further evaluated based on the overall biological health of a particular water body.

Because DEP, supported by Florida Department of Agriculture and Consumer Services (FDACS), has steadfastly stuck to its position as scientifically superior, a long battle has raged for almost five years.

The environmental coalition that has waged the fight includes Sierra Club, Florida Wildlife Federation, Conservancy of Southwest Florida, Environmental Confederation of Southwest Florida, St. John's Riverkeeper. Earthjustice has provided legal support.

Last year, after long, detailed discussions with DEP, EPA agreed to allow Florida to set its own standards and evaluation process if a federal judge ruled favorably in a pending hearing in Florida federal court. That ruling came Jan. 7 from U.S. District Judge Robert L. Hinkle.

A number of agricultural organizations hailed the ruling.

It "strongly rebuts environmental litigants' arguments - which stated that it is primarily the job of the federal government to set water quality criteria - and instead shows support for Florida's ability to manage its own water resources," The Fertilizer Institute said in a statement. "[Judge] Hinkle, in support of the cooperative federalism approach taken in the Clean Water Act, takes great strides in the ruling to explain that the EPA takes over only if the state fails to adopt appropriate standards."

Cris Costello, regional organizing representative for the Florida regional staff office of Sierra Club, had a sharply different interpretation of the ruling.

"It allows EPA to get off the hook," Costello said. "Per the consent decree, EPA was required to step in and set hard limits. But instead, EPA met in secret with the Scott administration and representatives of polluting industries and EPA then made the decision to surrender to the Scott administration and the polluters. And that surrender was in the form of a determination by EPA last year that they would not comply with the consent decree. And they asked the court to let them off the hook." Judge Hinkle did that, she said.

Costello said she expects an appeal to be filed in the 11th Circuit Court of Appeals based on a fairly simple legal premise.

"The consent decree is a contract," she said. "It's a contract between EPA and the litigants. So EPA should not be able to simply decide on its own that it doesn't want to comply with that contract. It has to prove that it can't comply. And in no way has EPA done that. Therefore, we think Judge Hinkle got the law wrong."

Rich Budell, director of agricultural water policy at FDACS, said he was not surprised the environmental groups plan to appeal. "I think many people were anticipating that," he said. 'This is a legal battle that could go on for another decade."