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Court Clears Way For Challenge To Water Standards

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
p1 lawyer
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

Nearly a year after a state regulatory commission approved controversial new water-quality standards, an appeals court Tuesday ruled that a pulp-and-paper industry group should be able to challenge the measures.
The 1st District Court of Appeal overturned a decision by an administrative law judge that blocked the challenge by Florida Pulp and Paper Association Environmental Affairs, Inc., a group that includes companies such as Georgia-Pacific, International Paper Co. and Packaging Corporation of America.

Administrative Law Judge Bram D.E. Canter in a September 2016 decision also blocked challenges filed by the city of Miami and the Seminole Tribe of Florida to the water standards. The city and tribe filed appeals in South Florida's 3rd District Court of Appeal, which is scheduled to hear arguments Sept. 11, according to online dockets.

The standards, which were developed by the Florida Department of Environmental Protection and approved in July 2016 by the state Environmental Regulation Commission, were highly controversial. They involved 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 the pulp-and-paper industry group argued, for example, that the department relied on flawed “scientific methodology and assumptions in developing the water quality criteria,” the association argued in its challenge.

Canter's decision to dismiss the cases focused heavily on whether the challengers met legal deadlines for filing their cases in the state Division of Administrative Hearings, which operates under different requirements and guidelines than circuit or county courts.

The ruling Tuesday by the appeals court dealt only with legal procedures and did not address the arguments about whether the water-quality standards are valid.

A three-judge panel of the appeals court said the department on Aug. 4 published a notice that it had revised what is known as a “statement of estimated regulatory costs.” That notice came after a July 26 meeting in which the Environmental Regulation Commission approved the standards.

The pulp-and-paper association filed its challenge Aug. 23, which it contended was within a required 20-day window after the Aug. 4 notice about the revised statement of estimated regulatory costs. The department, however, argued that the revised statement did not “trigger a new point of entry” --- effectively meaning that the association's petition was too late, Tuesday's ruling said.

The appeals court, in a nine-page opinion written by Judge T. Kent Wetherell and joined by judges Mark Osterhaus and M. Kemmerly Thomas, sided with the association and sent the case back to the Division of Administrative Hearings for consideration of the arguments about the validity of the water-quality standards.