Challenges To New Water Standards Tossed Out
Siding with the Department of Environmental Protection on procedural grounds, an administrative law judge has rejected a series of challenges to controversial new state water-quality standards.
Judge Bram D.E. Canter on Tuesday issued an 11-page ruling that dismissed the challenges filed last month by the Seminole Tribe of Florida, the city of Miami, Martin County and Florida Pulp and Paper Association Environmental Affairs, Inc.
A key focus of the ruling was whether the challengers met a legal deadline for filing their cases in the state Division of Administrative Hearings, which operates under different requirements and guidelines than circuit or county courts. In part, the challengers argued that a "notice of correction" published by the department after a July 26 hearing on the water standards bought them more time to file the petitions.
But Canter's ruling, reflecting the somewhat-arcane system of administrative law, said such a deadline extension could only apply if the department had published a "notice of change" to the standards, not a notice of correction.
"Some petitioners argued that the notice of correction, for the first time, made (a rule that contained the new water standards) comprehensible," Canter wrote. "Even if true, it does not establish that the rule was changed. The rule was not changed. If the notice of correction revealed an effect of the proposed rule that was not previously apparent, that is no different than if this effect was revealed by an oral or written statement from a DEP (Department of Environmental Protection) employee. Such statements do not change the rule that is proposed for adoption."
The standards, which were developed by the Florida Department of Environmental Protection and approved July 26 by the state Environmental Regulation Commission, have been highly controversial. They involve new and revised limits on chemicals in waterways, with the department saying the plan would allow it to regulate more chemicals while updating standards for others.
But opponents raised a variety of objections, with the Seminole Tribe, for example, saying tribal members would be harmed because the standards don't take into account people who eat fish and other types of wildlife at a "subsistence level." As another example, the city of Miami argued that the plan "loosens restrictions on permissible levels of carcinogens in Florida surface waters with absolutely no justification for the need for the increased levels of the toxins nor the increased health risks to Florida citizens."
Immediately after the Environmental Regulation Commission approved the standards, some Florida Democratic members of Congress called on the federal Environmental Protection Agency to closely scrutinize the plan.
In his ruling Tuesday on the challenges, Canter pointed to a legal timeline that required petitions to be filed by Aug. 5. The Seminole Tribe filed its petition at 5:02 p.m. on Aug. 5, but the Department of Environmental Protection cited a rule that said petitions had to be filed by 5 p.m., Canter wrote. That meant the petition wasn't technically filed until 8 a.m. Aug. 8, after a weekend.
The tribe and other challengers, who filed petitions later, argued that notice of correction published Aug. 4 gave them more time. But Canter disagreed in dismissing the cases.