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Protectors of lagoon prepare to sue EPA

STORY BY STEVEN M. THOMAS, (Week of March 7, 2013)

Indian Riverkeeper Marty Baum and four other Florida Riverkeepers are planning concerted legal action to stop the EPA from withdrawing federal limits on nutrient pollution in the Indian River Lagoon and other Florida waters.

Ten years into a tangled chronology of state and federal lawsuits, consent decrees and dueling agency actions, EPA seems poised to let DEP – the Florida Department of Environmental Protection – set and enforce its own nutrient pollution standards for all Florida waters in the near future.

The Riverkeeper groups and other environmental organizations are fighting hard to stop the transfer of authority because they view DEP as a weakened and politically compromised organization more likely to serve the interests of well-connected polluters than to protect the environment.

“The state’s rules are far weaker and wait too long to be enforced – only after a water body is polluted with slime – and do not include a timeline for clean-up action,” according the Sierra Club.

“It is hard to disagree with the Sierra Club’s characterization,” says Vero Beach environmental consultant David Cox.

“Governor Scott has gutted the enforcement arm of the DEP,” says Baum. “His supporters in big agriculture and ag-chem are in charge. The worst thing we could do for Florida waters is turn this over to the DEP.

“I and the other Florida Riverkeepers have made a unanimous decision to take action. Some powerful attorneys have offered to represent us in this matter pro-bono, and we are taking it to our boards to see if they support legal action. My board is very conducive to the idea.”

Each riverkeeper organization is an independent non-profit group governed by a board of directors. The riverkeepers themselves – Baum and four others who keep watch over the St. Johns, Chattahoochee, Suwannee and Apalachicola waterways – are fulltime environmentalists who patrol local waters investigating pollution problems and demanding accountability. They also develop and implement educational programs for school children and the general public and advocate for clean water polices.

U.S. Senator Bob Graham shares the river keepers’ concerns about Scott’s policies and DEP’s record of environmental protection.

“Efforts in Tallahassee have focused on rolling back environmental safeguards and growth-management guidelines, cutting funding for conservation and regulation, and reducing enforcement against polluters,” he wrote in a Jan. 30 column in the Orlando Sentinel. “Efforts are underway now by DEP to streamline permitting requirements . . . [to] benefit select industries at the expense of our water resources and the majority of Floridians.

“On Gov. Rick Scott's watch, unwise policy decisions, draconian budget cuts and the excessive influence of special interests have put Florida on the brink of losing 40 years of progress on environmental protection, land conservation and growth management. This is bad water-management policy and even worse economic policy for our state.”

DEP spokesperson Dee Ann Miller says environmentalists’ fears are unfounded.

“The DEP standards are largely the same as the EPA standards because both were based on data collected by DEP,” she wrote in an e-mail to Vero Beach 32963. “Florida is responsible for enforcing water quality standards applicable in the state. The ability to implement NNC [numeric nutrient criteria], and therefore to enforce them, will be made more practical and effective with one set of standards adopted by the State and approved by EPA.

“Florida embarked on NNC rule development more than a decade ago because we knew then, just as we know now, that nutrients are a primary water quality challenge in this state. DEP has never wavered from the certainty that establishing and implementing rigorous NNC is necessary.”

Despite that supposedly unwavering determination to set standards and protect Florida waters – which began in 2002 – it took a 2009 Florida Wildlife Federation lawsuit and a resulting federal consent decree to expedite adoption of numeric nutrient criteria in the state.

DEP’s progress in setting standards has continued to lag since the consent decree. EPA had to put in effect its own standards for nutrient levels in some waterways in November to satisfy the federal court.

Miller says DEP is committed to NNC and that its standards are the same as EPAs, but DEP has argued against the federal standards on the basis they are prone to error and “would drive millions of dollars in unnecessary cleanup costs,” according to an article published on the law news website

In “Numeric Nutrient Criteria in Florida – An Overview,” attorneys John Fumero and Thomas Mullin report DEP’s claims that “the EPA approach will result in a significant amount of error” and that EPA “severely underestimated” the costs to achieve its proposed nutrient criteria.

How DEP can have standards identical to EPA’s and champion those standards while calling them badly flawed at the same time is not clear.

“DEP has a less than stellar record in enforcement,” says Cox. “In the past the agency has allowed bodies of water and bays to continue to be impaired for decades and not taken any real vigorous enforcement action against corporations or municipalities that were very likely the cause of the impairment.”

Cox says EPA withdrawing federal standards in favor of state standards would leave a dangerous gap in enforcement.

“There would not be anybody left to wield the hammer to make DEP do something if it chose not to act.”