PENSACOLA, Fla. (CN) – Florida has filed a lawsuit to stop the Environmental Protection Agency from replacing certain state water quality regulations with its own. This is the first time the EPA has deemed a state’s water quality regulations inadequate and imposed federal regulations in their place.
The federal regulations replace Florida’s narrative standards for permitting the discharge of nitrogen and phosphorus waste into lakes and rivers with standards based on numeric thresholds.
The state’s action comes on the same day that the EPA issued the first regulations that would impose federal standards under the Clean Water Act after determining that a state’s regulatory framework is insufficient to protect the environment from harm.
In January 2009, the agency determined that Florida’s use of a narrative standard that based permitting on whether or not a discharge would “cause an imbalance in natural populations of aquatic flora and fauna,” had lead to expensive and time consuming studies for each discharge, which leads to disparate impact on waterways through out the state.
Under the Clean Water Act, the EPA is authorized to submit its own standards for controlling regulated pollutants if it determines that a state’s standards or procedures are not up to the task.
The EPA’s 2009 determination was a reversal of its previous position that Florida’s ongoing development and implementation of its own numeric standards was sufficient to meet Clean Water Act standards.
Florida’s attorney general, Bill McCollum, said in a press release announcing the state’s bid to block the federal regulations that “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.”
The suit McCollum referred to was a 2008 action brought by several environmental groups that tried to force the EPA to impose federal standards while Florida developed its own standards. The January 2009 determination by the agency was issued as part of a settlement the agency reached with the environmental groups.
As evidence that the EPA is only imposing a federal standard to head off potential lawsuits by environmental groups in other states, Florida’s complaint quotes an internal memo to the former administrator of the agency from an assistant administrator stating that “EPA does not agree with the plaintiffs’ allegation that we made a CWA determination in our 1998 Strategy that numeric nutrient criteria are necessary for Florida to meet the requirements of the CWA. There is, however, some risk that the court could agree with the plaintiffs that the 1998 Strategy constitutes a CWA determination that nutrient criteria are necessary for Florida. Such a ruling could spur similar litigation in other states. Presently, 49 states have one or more 303(d) listings for waters impaired by nutrients.”
In announcing the new standards the EPA recognized “that Florida has a comprehensive regulatory and non-regulatory administrative water quality program to address nitrogen/phosphorus pollution.” However, the agency found that Florida’s program has not dealt with the issue properly and that “water quality degradation from nitrogen/phosphorus over-enrichment remains a significant challenge in the State and conditions are likely to worsen with continued population growth and land-use changes.”