ARCHIVE SITE - Last updated Jan. 19, 2017. Please visit www.NACWA.org for the latest NACWA information.
Florida Wildlife Federation, et al v. EPAA federal court in Florida issued a ruling in February 2012 striking down key elements of EPA’s controversial numeric nutrient criteria for the state, while at the same time upholding the Agency’s decision to impose federal criteria in place of existing state standards.
The court’s decision in Florida Wildlife Federation v. EPA to invalidate EPA’s nutrient criteria for flowing streams is an important victory for NACWA’s Florida utility members, which had challenged the Agency’s actions. The ruling is also consistent with arguments made by NACWA in a brief filed last June that contested the scientific basis for EPA’s nutrient limits. The court’s decision found that EPA had established the “wrong target” in developing stream limits by focusing on criterion designed to identify any increase in nutrient level, instead of establishing the “right target” of criterion to identify only harmful increases in nutrients.
The court further found that because EPA failed to establish sufficient scientific reasoning for criteria based on any increase in nutrients as opposed to a harmful increase, the overall stream criteria were fatally flawed and could not survive judicial review. The court appeared, however, to provide EPA with a fairly clear roadmap on how the Agency could fix these flaws, such as providing additional scientific rationale or adjusting the overall baseline criteria target.
On a more disappointing note, the court dismissed all challenges to EPA’s federalization of Florida’s criteria, finding that EPA acted properly in replacing the existing state narrative approach with federal numeric criteria. This decision runs counter to arguments made by NACWA and others that EPA violated the Clean Water Act and illegally usurped the state’s primary role in setting water quality standards. NACWA disagrees with this portion of the court’s decision and is concerned about its potential national precedent in other states where EPA may seek to federalize criteria. NACWA will closely monitor any potential developments regarding this issue, including any appeals that might be filed to this element of the court’s ruling.
In a related development, the Florida Department of Environmental Protection (FDEP) submitted revised state nutrient criteria to EPA in late February 2012, requesting the Agency approve the state plan in place of the contested federal criteria. EPA approved the criteria on November 30, 2012, and also proposed rules for Florida waters not covered by the State’s approved rules. Additional information is available on EPA’s website .