Florida's Waters: Significant Cases in the Works
 
January 26, 2005
 

Environmental advocacy groups and citizens have been in a litigation frenzy of late over the Florida Department of Environmental Protection’s (FDEP) alleged violations of the federal Clean Water Act (CWA) and related state law and the Environmental Protection Agency’s (EPA) failure to call FDEP on the carpet about the alleged violations. One suit challenges the wastewater permitting program for animal feeding operations (AFOs) in state court (the CAFO case). Another has challenged the state’s Identification of Impaired Waters Rule (IWR) in federal court as a change to Florida’s water quality standards (WQS) (the IWR case). The third, using the prior two cases for support, has challenged Florida’s National Pollutant Discharge Elimination System (NPDES) program delegation as a whole, seeking to force EPA to revoke delegation (the NPDES case). These plaintiffs’ groups have had at least initial success in the CAFO and IWR cases; the NPDES case has only recently been filed. All three of these cases are currently pending at some level, and all three bear watching to see what happens next.

The CAFO Case

Save our Suwannee, Inc., et al. v. Florida Dep’t of Envt’l Protection, ER FALR ’04:181, Case No. 2001-CA-001266 (Fla. 2d Cir. Ct. Mar. 5, 2004). In the CAFO case, the plaintiffs filed suit in the circuit court for the second judicial circuit in and for Leon County, Florida, pursuant to §403.412(2), Florida Statutes (F.S.), seeking injunctive relief. They allege that FDEP violated state law and the CWA by failing to require concentrated animal feeding operations (CAFOs) to apply for NPDES permits, failing to require dairy farms that could be CAFOs to even notify FDEP of their existence and putting the burden of proving that an NPDES permit is required on FDEP, rather than requiring the operation to prove entitlement to an exemption from permitting.

Rule 62-670, Florida Administrative Code (FAC), governs wastewater discharges from AFOs; CAFOs are feeding operations with larger numbers of animals, and in the case of dairy farms, more than 700 mature cattle. CAFOs are required by Rule 62-670 to apply for a NPDES permit from the FDEP. However, a permit application is not required under the rule until there has been an onsite inspection of the operation by FDEP and their determination that the operation should and can be regulated under the permit program. Rule 62-670.400(3) also allows a case-by-case determination by FDEP as to whether a permit is required for a particular AFO, even if it doesn’t meet the definition of a CAFO.

According to FDEP’s Web site, the FDEP has ordered large dairies (meeting the CAFO definition) to obtain permits for their operations. Of Florida’s 53 large dairies, four are closing because of enforceable orders and 44 are operating under permits or administrative agreements with the agency. Again according to FDEP, all operating large dairies were required to submit NPDES permit applications by the end of 2004, and 26 applications are already under review.

According to the evidence before the court in the CAFO case, FDEP has entered into voluntary partnerships with certain existing AFOs in the Suwannee River Basin Partnership (SRBP) in an effort to reduce pollution from their operations. While in the partnership, the AFOs are not required to obtain any groundwater or surface water permits. The voluntary program uses Best Management Practices (BMP) to achieve reductions in water pollution. At trial, FDEP apparently justified its AFO permitting and partnership program under §403.0611, F.S., which allows the FDEP to “explore alternatives to traditional methods of regulatory permitting, provided that such alternative methods will not allow a material increase in pollution emissions or discharges.”¹

The trial was held in November 2003, and on March 5, 2004, Judge Smith ruled that FDEP had failed to perform a nondiscretionary duty to abate pollution from CAFOs under both Article 11, §7(a) of the Florida Constitution, which requires the state to make adequate provisions to abate pollution, and Chapter 403, F.S. The judge found that FDEP’s CAFO program does not require an AFO to notify FDEP of its operation or affirmatively seek any authorization or approval to operate or exemption from permitting. Rather, the rules put the onus on FDEP to discover a animal feeding or dairy operation on its own initiative and independently inspect it to determine if a permit is required. According to the evidence before the judge, no dairy in Florida has ever been required to obtain a NPDES permit.

Judge Smith found fault with FDEP’s reporting requirements under the CAFO program. A dairy is required to file a report only if it operates pursuant to a permit. Dairies are not required to file a report that might enable FDEP to determine whether a permit is required; FDEP must figure this out on its own. Judge Smith held that “by failing to require the filing of such reports, DEP is not properly protecting the waters of the state from pollution, impairment or destruction,” in violation of state law. Judge Smith held that, pursuant to §403.061(13), F.S.,²  operations that do not yet have a permit should be required to submit reports to FDEP to allow FDEP to determine whether a permit is required. This requirement presumably applies regardless of the size of the facility in question.

Judge Smith ordered FDEP to immediately require all dairies in the state with more than 700 mature cattle to apply for NPDES permits (without an inspection first) or demonstrate the applicability of an exemption. He also ordered FDEP to require all dairy operations, regardless of size, to file reports that contain information relative to their operations and to develop an enforcement program for unpermitted CAFOs. Judge Smith specifically enjoined FDEP from relying on either the SRBP or on §403.0611, F.S., as an alternative to requiring NPDES permits for dairies. In fact, Judge Smith enjoined FDEP from using §403.0611, F.S., as authority for alternatives to permitting for any other industrial operations needing NPDES permits. The judge ordered FDEP to submit a full report to the Legislature outlining “any future projects undertaken pursuant to §403.0611,” before initiating them and mandated that the report “must demonstrate” that the proposed project will not result in an increase in pollution. In a final blow, Judge Smith awarded the plaintiffs attorneys’ fees and costs pursuant to §403.412(2)(f), F.S., even though an award of fees in an action involving an NPDES permit is discretionary under that section.

As might be expected, FDEP has appealed Judge Smith’s ruling, filing a notice of appeal in the First District Court of Appeal. The case has been fully briefed, and oral argument has been scheduled for February 22. Case No. 1DCA04-1258.

The IWR Case

Florida Public Interest Research Group Citizen Lobby, Inc., et al., v. Environmental Protection Agency et al., 59 ERC 1166 (11^th Cir. Oct. 4, 2004). FDEP promulgated Rule 62-303, FAC, the IWR, as mandated by the Florida Legislature, to establish a methodology to identify surface waters to be included on the state’s list of water segments not meeting state WQS. As required by the CWA, FDEP will develop Total Maximum Discharge Limits (TMDL) for waters on those lists. The final IWR became effective on June 10, 2002. Following an unsuccessful challenge to the IWR in state proceedings, environmental groups and citizens filed suit against EPA in the federal district court for the Northern District of Florida seeking declaratory and injunctive relief. The plaintiffs charged that EPA had failed in its mandatory duty under the CWA to review the IWR as a change to Florida’s WQS.

The CWA requires the EPA to review changes to state WQS to determine whether the state has followed its own statutory procedures for revising standards and whether the new standards, if they do not include the water’s designated uses, are based upon appropriate technical and scientific data and analysis. Under the CWA, a state’s WQS can be revised only if consistent with the state’s anti-degradation policy. 33 U.S.C. §1313(c), (d); 40 CFR §§131.5, 131.12. The plaintiffs contended that the IWR changed the water quality provisions that “unless otherwise stated, all criteria express the maximum not to be exceeded at any time” in Florida waters and that “in no case” shall nutrient concentrations cause an imbalance in natural populations of flora and fauna, because the IWR requires more than one sampling event to confirm impairment. See Rule 62-302.530, FAC. The plaintiffs also contended that the current narrative nutrient standard in the WQS was changed by the IWR’s method for calculating numeric concentrations of nutrients to establish impairment.

After the complaint was filed, FDEP was granted leave to intervene.³  The judge granted FDEP and EPA’s motions for summary judgment on May 29, 2003, holding that the IWR did not revise state WQS because FDEP did not expressly initiate rulemaking to amend its WQS and because the IWR on its face expressly states that it is not intended to change the standards. In addition, the district court noted that the IWR merely establishes a methodology for identifying waters not achieving WQS and that EPA is required to review – and did review – lists of waters identified pursuant to the IWR. When conducting such a review, EPA is required to consider a state’s WQS. If Florida’s IWR resulted in an impaired waters list inconsistent with Florida’s WQS, then EPA would be required to disapprove the list in whole or in part and make its own listing decisions. The judge held that, as a result, the IWR could not possibly have the effect of revising Florida’s WQS.

The plaintiffs appealed the judge’s order to the Eleventh Circuit Court of Appeals, and on October 4, 2004, the appellate court reversed and remanded, concluding that the lower court erred in determining as a matter of law that the IWR did not establish new or revised WQS. The Court held that the judge should not have relied on FDEP’s failure to follow its own procedures (i.e., to initiate rulemaking to revise its standards), nor on the statement contained in the IWR that it does not change WQS, as such reliance would allow a state to circumvent EPA review of changes to its standards merely by saying that the standards were not being changed. Further, the district court should not have relied on EPA’s subsequent review of the lists as a “cure,” because this eliminates a layer of protection envisioned by the CWA; any changes to WQS must be reviewed by EPA before they are made effective. EPA’s actual review of the IWR and determination that the IWR is a “reasonable” method is not the level of review required under the CWA for WQS revisions.

Rather, the Court found that EPA should have reviewed the IWR to determine whether it had the practical effect of loosening Florida’s WQS and, if so, should conduct the review required by the CWA. Whether the state has followed its own statutory procedures for changing its standards and whether the revised standards, if they do not include the water’s designated uses, are based upon appropriate technical and scientific data and analysis remains to be determined.

Importantly, the Court held that it appeared that the IWR could indeed have the effect of changing Florida’s WQS, noting that “if waterbodies that under pre-existing testing methodologies would have been included on the list were left off the list because of the [IWR], then in effect the Rule would have created new or revised water quality standards, even if the language of the regulation said otherwise.” Thus, the Court remanded the case back to the district court to determine the practical effect of the IWR on state WQS. The Court ordered the judge below to “examine whether there were waterbodies that were equally polluted both before and after the [IWR] took effect, but that were classified differently depending on whether or not the Rule was used.” If in fact waterbodies were delisted simply based on application of the IWR, as opposed to a reduction in pollution in the interim, the effect of the IWR “may indeed” have been to loosen WQS. The implication in the opinion is clear: the methodologies in the IWR cannot be used to remove a water from the list of impaired waters without first adopting the IWR as a WQS.

The case is currently on remand to the U.S. District Court for the Northern District of Florida, where as of this writing, little activity has yet taken place.

NPDES Case

Sierra Club et al. v. EPA, Case No. 04-CV401-RH/WCS (N.D. Fla.). As a condition precedent under the CWA, on March 19, 2004, the plaintiffs filed a petition asking EPA to withdraw Florida’s NPDES permitting authority. The NPDES program governs permits for stormwater and wastewater discharges to surface waters, and similar petitions have been filed in 13 other states. FDEP submitted a response to the petition to EPA on April 26, 2004, but EPA did not act on the petition within 60 days, and the present complaint was filed in federal district court for the Northern District of Florida on October 4, 2004.⁴

The plaintiffs allege that EPA had a mandatory duty to withdraw delegation of the NPDES program from Florida because Florida has failed to administer the program in accordance with the CWA. The plaintiffs have alleged several bases for the suit, including FDEP’s failure to require NPDES permits for CAFOs and its use of the IWR to change Florida’s WQS (see above). The plaintiffs also allege that FDEP has not yet adopted a WQS for dioxin and has taken the position in administrative proceedings that the federally-adopted dioxin standard is not applicable to the state’s NPDES program. The plaintiffs also allege that the FDEP has failed to promulgate a phosphorus standard for the Everglades by the deadline set forth in the Everglades Consent Decree between FDEP and EPA. The plaintiffs further allege that FDEP in several instances has failed to require permits for different types of industrial discharges and has improperly authorized permits, compliance schedules and permit continuances longer than five years in duration. The plaintiffs next allege that FDEP has limited administrative and judicial review and public participation of NPDES permitting decisions in various ways. Finally, the plaintiffs assert generally that FDEP routinely fails to take enforcement action against NPDES permit violators.

The plaintiffs have requested the Court to declare that Florida’s NPDES program does not comply with the CWA and require EPA to withdraw Florida’s authority to administer the program. This would mean that EPA would once again review and issue all NPDES permits within the state of Florida.

As of this writing, EPA has not yet responded to the complaint and may seek a stay to finish compiling its profile of the state’s NPDES program (see footnote 4, above). FDEP has not yet sought to intervene, but can be expected to do so.

Summary

These three pending cases could significantly alter the landscape of wastewater regulation in Florida. If the CAFO case stands, all operations with any potential to pollute may find themselves in the position of having to prepare and submit detailed reports analyzing their operations to the FDEP, even if exempt from permitting, and to prepare lengthy justifications of any exemptions. FDEP’s attempts to develop alternatives to traditional permitting schemes under §403.0611, F.S., could likewise be hampered by this decision. If the judge in the IWR case finds that the IWR has the effect of changing Florida’s water quality standards, all listing activities – both to delete and add waterbodies to the verified lists – may well be suspended until the IWR can be adopted as a “water quality standard” and reviewed as such by EPA. TMDL development for truly impaired waters could likewise be delayed. Adoption of the IWR as a WQS would create yet another opportunity to challenge the rule, and this too would cause more delay. Perhaps most significantly, if Florida’s NPDES program authority is withdrawn, wastewater and stormwater permitting in Florida will become more complex, duplicative and time-consuming, not to mention expensive. Regulated entities would be required to follow a dual permitting track with both EPA and the FDEP, with opportunities for administrative challenges at both the state and federal level.

These cases bear close watching. Stay tuned.

For more information, e-mail Susan L. Stephens at susan.stephens@hklaw.com or call toll free, 1-888-688-8500.

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[1] This section directs FDEP to consider “specific limited pilot projects to test new compliance measures” and to report to the Legislature prior to implementing such projects.

[2] §403.061(13), F.S. gives FDEP the power and duty to adopt rules to “[r]equire persons engaged in operations which may result in pollution to file reports which may contain information relating to” that pollution. However, FDEP typically requires reports only from permitted facilities.

[3] Petitions to intervene filed by industry groups in support of the IWR were not ruled on by the district judge.

[4] EPA has stated that it is in the process of collecting NPDES permitting program profiles from states in order to conduct a comprehensive review of the NPDES program and is not in a position to respond to any of the petitions until this effort was completed.