The Palm Beach Post

For clean water in Florida, depend on judge, not state

December 6, 2011

With the state Department of Environmental Protection reverting to what critics once derisively called "Don't Expect Protection," Floridians who want clean rivers, lakes, streams and estuaries must depend on the federal courts.

Today, the Florida Environmental Regulation Commission almost certainly will approve the state's proposed anti-pollution rules that most certainly would not protect the state's waters. Call it a temporary victory for polluting industries and the Obama reelection effort.

In 2008, the environmental law firm Earthjustice filed a lawsuit, alleging that the U.S. Environmental Protection Agency was not enforcing the Clean Water Act in Florida. Martin County residents in the St. Lucie River estuary - where fresh water meets salt water - who have seen canals turn green from pollution-laden runoff understand the damage from this failure. As a result of the lawsuit, EPA agreed to set specific anti-pollution standards if the state didn't propose its own sufficient standards. Though the DEP did craft some strong rules in 2009, the rules quickly were quashed after the agriculture and phosphate industries and public utilities criticized them as too expensive.

So in November 2010, the EPA proposed rules that nearly matched what the state proposed. Of the 22,000 public comments to the EPA, 20,000 were favorable. The two agencies took 13,000 water samples. This was sound science. The EPA gave the state 15 months to implement the standards. Instead, the state sued in January to block the standards. Then last month, the EPA basically agreed to the state standards, no doubt because President Obama didn't want the hassle in the largest swing state.

Earthjustice attorney David Guest said in an interview that the state rules would give polluters a "get-out-of-jail-free card." Any body of water found to be substandard, he said, could shed that designation with a "biological assessment" that a private consultant could provide. "These standards will be easy to manipulate. And the standards were written by industry. This wasn't just a matter of 'input.' They wrote them."

Fish kills and algae blooms continue to be problems in state waters. This state's leaders regularly proclaim that Floridians live in "paradise." That description will not apply if the state continues to stall on rules that would protect the most important resource of "paradise." Notably, according to material on the Environmental Regulation Commission's website, the proposal set for a vote today does not include the St. Lucie River estuary.

Fortunately, Earthjustice went back to back to court last week. Officially, the defendant is the Department of Environmental Protection, but the lawsuit is a reaction to the EPA backing down. Perhaps the courts can persuade Florida that never is too long to wait on clean water.

- Randy Schultz,

for The Palm Beach Post Editorial Board