The U.S. Environmental Protection Agency, which is supposed to enforce the nation's rules on water pollution, has suffered a pair of black eyes from two recent court cases in Florida.
In both cases, the agency has been forced to agree it has done a poor job of stopping pollution in Florida. In both, the EPA has now pledged to impose tougher standards to clean up the mess. In both, industry officials and politicians are strongly objecting to the EPA's crackdown because the fix will cost so much money.
"Had they been doing their job all along, we wouldn't be in this boat," said Paul Schweip, an attorney for Friends of the Everglades, one of the organizations that sued over pollution problems.
Both cases are causing the agency major headaches.
In one, Florida's two U.S. senators have been pushing the EPA to hold off applying its new pollution standards because of the cost to businesses. The agency is delaying the standards for a month.
In the other, EPA Administrator Lisa Jackson has been commanded to show up in court to explain how her agency will fix what it fouled up. Meanwhile, the state has told the judge that it cannot afford to do what the EPA says must be done.
EPA officials declined multiple requests to comment specifically about how the agency went wrong. Critics say the EPA's failure is more than just a bureaucratic kerfuffle.
By not enforcing the law, "they are putting the population of Florida at risk and endangering their health," said civic activist Ann Hauck, who has been complaining to Congress about the EPA for years. "The people of Florida should wake up because the government is not working in their best interest. It is working for special interests."
One case involves all of Florida's waterways, the other just the Everglades. Both involve EPA officials deferring to state officials on pollution questions.
In 1998, the EPA ordered all states to set numeric limits on nutrient pollution. Nutrients such as phosphorous and nitrogen flow into waterways from fertilized lawns, golf courses, leaking septic tanks and malfunctioning sewer plants.
In the past 30 years, nutrient pollution has become the most common water pollution problem in the state. It feeds the increase in algae blooms that kill fish and cause respiratory problems and rashes among swimmers and beachgoers.
Florida has vaguely worded limits on nutrients that have failed to prevent some waterways, such as the St. Johns River, from being heavily polluted. One state regulator testified in a pollution case that the state Department of Environmental Protection was supposed to look out for the public interest, but equated that with the interests of a paper company's pulp mill.
The EPA warned the states that if they took no action by 2004, the agency would step in — but it didn't do anything. So last year environmental groups filed a federal lawsuit accusing the EPA of failing for 10 years to force Florida officials to set numeric nutrient pollution limits.
The EPA settled the suit by agreeing to set new limits on how much nutrient pollution is allowed to foul Florida's waterways, a move likely to change everything from how suburban lawns are fertilized to how stormwater runoff and sewage are treated.
Under the 2009 settlement, the EPA had until January to propose the new limit for Florida's lakes, rivers and creeks, and then would finalize those rules by this past Friday. The agency then has until January to propose a limit for the state's coastal and estuarine waters, with a deadline of next October to finalize the rules.
But now business groups, agricultural leaders and politicians galore are complaining about the standards and the high cost of complying. Both Republican Sen. George LeMieux and Democratic Sen. Bill Nelson tried in vain to get Congress to order the EPA to delay the rules until December. The EPA did agree to delay implementation until mid November.
'Glacial' cleanup pace
The whole thing could have been avoided, Nelson said, if the EPA had just done its job instead of waiting to be sued. "They should have been working on it already," Nelson said. "Just like the Everglades situation."
In the Everglades case, U.S. District Judge Alan Gold ruled in 2008 that the EPA had ignored the requirements of Clean Water Act when it allowed the Florida Legislature to extend by 22 years the deadline for cleaning up pollution flowing into the River of Grass — pollution that's killing the Everglades.
"Nothing could justify a schedule so slow and glacial as to defeat the (Clean Water Act's) goals," the judge wrote. "Federal law does not authorize anything like a 22-year compliance schedule."
Gold found that EPA officials in Atlanta not only allowed the state to delay the deadline, but actually coached the state in how to do so in a way that appeared to comply with the Clean Water Act. He told the EPA to force Florida to fix the problem. It did not.
So in April, Gold put out a new order in which, to "express in the strongest possible terms my frustration and disappointment," he did something designed to really get the EPA's attention: He ordered the EPA's Jackson to show up in his court and explain her agency's actions, after "failure to comply with the law for more than two decades."
Last month, EPA officials told Gold the agency would now require the state to expand by 42,000 acres its existing network of reservoirs and pollution treatment marshes. In addition, the EPA ordered the state to amend all existing permits that allow pollution to spill into the Everglades so they would conform to Gold's decision.
But now the state agency facing those requirements, the South Florida Water Management District, is saying it cannot afford to do what the EPA is demanding. Declining property tax revenue has put the agency in too much of a financial bind.
If the EPA had pushed for those requirements prior to 2006, said water district chairman Eric Buehrmann, "we would've had more wherewithal to pay for it."
Craig Pittman can be reached at [email protected]