TALLAHASSEE, FL – Florida Attorney General Bill McCollum, Agriculture
Commissioner Charles Bronson, Attorney General-elect Pam Bondi and
Agriculture Commissioner-elect Adam Putnam today announced that the State
of Florida has filed a lawsuit against the federal Environmental
Protection Agency (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.
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