EarthJustice Files Suit to Prevent Proposed DEP Response to EPA Standards

Dennis G. Corrick

Earthjustice (formerly the Sierra Club Legal Defense Fund) and others have filed a petition with the Florida Department of Administrative Hearings to invalidate a current Florida Department of Environmental Protection (FDEP) rule, and to prevent adoption of rules proposed in response to the EPA’s Numeric Nutrient Standards. The petition seeks to invalidate Florida Administrative Code rule 62-302.530(47)(b), the “Imbalance Criterion,” established in 1979, which provides that the surface water quality standard for nutrients is: “In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna.” This narrative standard has been the focal point for the EPA position, and Florida’s failure to establish more specific standards has been EPA’s justification for imposing its own numeric standards. The Earthjustice challenge is largely based on the allegation that the existing rule requires waterbodies to become significantly degraded before action is required, which it alleges violates statutory requirements to prevent pollution. The petition also seeks to invalidate DEP’s proposed rules on similar grounds.

EPA has withheld enforcement of its numeric standards while awaiting the outcome of the DEP rulemaking process. While EPA did not commit to permanently suspending implementation of its numeric standards, its last letter to DEP was more conciliatory than previous statements, and indicated a willingness to seriously consider suspending its proposed standards in favor of the proposed DEP rules. An invalidation of the existing and proposed DEP standards would leave a vacuum EPA would most likely feel obligated to fill, given their public positions on the matter.

A copy of the petition is attached for your review. If you have questions, please contact Dean Mead shareholder, Dennis G. Corrick, at dcorrick@www.deanmead.com.