A new nullification on EPA's clean water rules

Almost exactly 150 years ago, the legislators, landowners and businessmen of Florida sought to justify the state's secession from the Union by blaming a president "without experience in public affairs or any general reputation" with an "often proclaimed hostility to our institutions and a fixed purpose to abolish them." They were nullifiers, convinced that if they didn't like what the federal government did, the state could ignore it or overturn it.

Back then, it was Abraham Lincoln who was so disparaged by the ruling class, and slavery the institution they feared he would abolish. These days Florida's neo-nullifiers diss President Barack Obama and fight the Environmental Protection Agency for daring to make us clean up our dirty water. Florida's legislators, landowners and business people scream like 2-year-olds when the grown folks take away the candy. As if polluting were a constitutional right.

The state, the Florida League of Cities, agricultural interests and some local governments, including Pinellas County, are suing the EPA for setting numeric standards for harmful sewage and fertilizer discharge in Florida's lakes, rivers, springs and streams. And just to show Washington who's boss, state Rep. Trudi Williams, R-Fort Myers, chair of the House Select Committee on Water Quality, has decided to attack water quality, filing a bill essentially forbidding the state of Florida from following the Clean Water Act. HB 239 is an exercise in nullification, attacking EPA rules as "lacking scientific support" and "undermining the state's science-based nutrient water quality programs."

Williams' bill implies the state of Florida is an intrepid defender of pristine water, adhering to the strict empirical methods of white-coated Ph.Ds, while the feds practice voodoo hydrology, shaking their chicken bones over Lake Okeechobee and conspiring to destroy Florida's economy. It also parrots the language of the state's lawsuit against the EPA, whining that Washington is picking on Florida.

Associated Industries of Florida has joined in, predicting that if EPA prevails in making us clean up the sewage, cow manure and fertilizer runoff befouling our groundwater, it will cost billions and bankrupt farmers. So what if scores of gulf beaches are closed because of the Red Tide, which might be indirectly tied to nutrient pollution, and rivers are suffocated by the noisome green algae that's definitely a result of fertilizer in the water? So what if at least a quarter of Florida's waters are officially impaired? Washington, that Babylon of Big Gummint, that sinkhole of socialism, must be resisted.

As AIF president Barney Bishop told NPR: "We don't need no stinking feds telling us what to do here in Florida."

Actually, given our stinking waterways and failure to fix them, we do. Back in 1998, the EPA and the federal Department of Agriculture decided that states should adopt numeric water quality standards. Florida had until 2004 to get its act together. We didn't. The EPA under the Bush administration failed to enforce its own rules, so finally a group of citizens and conservationists including St. Johns Riverkeeper, the Sierra Club and the Florida Wildlife Federation sued the EPA. (Full disclosure, I am a member of the board of directors of FWF, elected in fall 2010).

They won, and EPA agreed to implement quantifiable standards for these pollutants if, and only if, Florida did not adopt its existing proposed rule within 15 months. You know: Obey the law.

Despite that, Republicans complain that the EPA is picking on Florida. At a January lunch meeting in Tallahassee, newly minted Agriculture Commissioner Adam Putnam allowed as how the Clean Water Act does apply to Florida, "but not only to Florida." The fact is, 23 other states have already established numeric nutrient standards.

Now back to that much-debated science: The governor, the current and former attorneys general, and the current and former commissioners of agriculture argue that EPA's data and methodology are flat wrong. You might be tempted to argue that people who won't acknowledge global climate change or who express reservations over the teaching of evolution don't have a lot of scientific cred.

Indeed, one of the logical flaws in the state's lawsuit is that the data EPA uses actually come from the state's own Department of Environmental Protection. The state's water rule, the one Florida never bothered to adopt, used almost exactly the same science, so it's hardly surprising that the state's proposed rule and the EPA's rule are pretty much the same. The state, as FWF president Manley Fuller says, is "using semantics for political purposes."

By the way, I called Herschel Vinyard, Rick Scott's new DEP secretary, for a response. Nobody ever called me back.

Florida shuns actual measurements — parts-per-billion — to determine if a water body is messed up. Instead, it uses a vague "narrative standard": If the fish ain't floating belly up, the water must be "clean." This makes no sense, given that without measurements no one really knows what's happening.

"As soon as you set specific number limits on pollutants, it becomes apparent that Florida has a real pollution problem that needs to be addressed," says David Guest, the lead attorney in the lawsuit against EPA. "It also becomes obvious who's causing the problem."

Those causing the problem would be Big Ag, Big Sewer and Big Phosphate. You will not be shocked to learn that, with pockets as deep as Wakulla Springs, they are among the Big Money campaign contributors to the politicians fighting clean water. Rep. Trudi Williams, for example, gets thousands of dollars from AIF, agribusinesses such as A. Duda and Sons, developers, and mining interests — all polluters or polluter enablers.

The whole thing comes down to money. AIF's Bishop loses no chance to spook Floridians, claiming "independent studies" show that if EPA gets its way, the cost of cleaning up the water could run anywhere from $3 billion to $8.5 billion per year, and people's bills could increase by $800 per year. But calling these studies "independent" is like calling Hosni Mubarak a Jeffersonian Democrat: You can say it all you like, but it's demonstrably untrue.

The analyses were commissioned by outfits called the Florida Water Environment Association and the Florida Water Quality Coalition, and while they sound as green as Al Gore in a rain forest, they're actually made up of groups such as the Florida Farm Bureau, utilities such as Jacksonville Electric, and construction companies. Estimates from the EPA (which isn't interested in profits) are much lower, putting the cost to Florida ratepayers at around $5 per month.

Why the big gap? The only way AIF and the state's pollution defenders get to multiple billions of dollars is by implying our water must be cleaned up using reverse osmosis, a prohibitively expensive process. The flaw in that argument is that reverse osmosis is so pricey it's explicitly excluded as an appropriate technology in the EPA rule itself.

David Guest casts the financial impact of Florida's dirty water in a different light: "This is an issue of private property rights. The most valuable property in the state is waterfront property. What if you can't use the beach because of the stench of dead fish from a Red Tide? What if there's green slime in the lake in front of your house?" Guest points to the half-billion dollars in lost property values in St. Lucie County alone and says polluted water amounts to a "taking of property rights."

Nutrient-choked rivers are ugly and smelly; they're also hazardous to your health. Some of the larger algal outbreaks in our rivers are 140 times the World Health Organization's recommended toxin limits. If you swim in that water you can suffer liver damage, skin problems and respiratory distress. If your dog swims in it, he can die. In 2008, part of the Caloosahatchee became so poisonous, the Olga Water Treatment Plant, serving 35,000 people, had to be shut down. That's just upriver from Trudi Williams' district, so you'd think she'd notice.

"Algae-covered springs and closed beaches are a drain on Florida's economy," says Manley Fuller. "If visitors come for a vacation and see green slime, they might not be repeat customers."

We aren't just talking about recreational use of water or the aesthetics of water: this is our drinking water. When it comes to cleaning it up, Floridians are presented with choices: big profits for the few or general welfare for the many.

This has long been the tension in American democracy, going back to the founding of the country. The few wrap themselves in the Gadsden Flag and claim it's a states' rights issue. David Guest has no patience with this line of reasoning: "It's not like the Union army is poised on the Georgia line, waiting to invade."

The states were given the right to clean up their water on their own. Most did; some didn't. That's why we have a Clean Water Act in the first place. It's also why we have a Civil Rights Act and a Voting Rights Act. The privileged won't always act in the interests of all people. Sometimes laws created by the better angels of our nature must prevail.

Diane Roberts is a professor at Florida State University.

A new nullification on EPA's clean water rules 02/19/11 [Last modified: Saturday, February 19, 2011 3:31am]

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