The National Cattlemen’s Beef Association (NCBA) and the Florida Cattlemen’s Association (FCA) went on the counterattack Thursday, filing a lawsuit challenging the Environmental Protection Agency’s (EPA) determination letter and final rule establishing numeric nutrient criteria (NNC) for Florida’s lakes, rivers, streams and springs. The lawsuit was filed in the U.S. District Court for the Northern District of Florida in Tallahassee (see the documents here, here and here). According to Tamara Thies, NCBA chief environmental counsel, the groups are asking the court to do two things.
“First, we ask the court to set aside and hold unlawful the letter and rule because they are arbitrary, capricious, go beyond EPA’s statutory authority and are in violation of the Administrative Procedures Act,” Thies says. “Secondly, we ask the court to set aside the letter and rule and stop EPA from further action on both due to the irreparable harm Florida agricultural producers will suffer if the agency’s actions are not stopped.”
Under the Clean Water Act (CWA), each state must develop water quality standards that relate to the designated uses the state chooses for its waters. In a review of its water quality standards, Florida determined on its own that numeric criteria would be appropriate. On Sept. 28, 2007, EPA approved Florida’s revised Numeric Nutrient Criteria Development Plan.
However, environmentalists then sued EPA for failure to develop new water quality standards for Florida. EPA initially contested the argument. But, in a December 2008 memo, EPA staff caved to the environmentalists, laying the foundation for EPA to establish numeric nutrient criteria in Florida, NCBA says. According to Jim Strickland, FCA president and a cattle rancher from Myakka, FL, EPA’s plan will likely serve as a model for other water basins across the country.
“There is no reason to believe that this is only a Florida or Florida agriculture issue. It touches every homeowner in the state. EPA has indicated that this rule in Florida will be a template for the rest of the country,” Strickland says. “I believe if this rule isn't stopped dead in its track, it will be a model for every water basin in the country, including the Mississippi River Basin, which is the lifeblood of rural America.”
EPA estimates that the cost to Florida we will be about $113 million in implementation costs and roughly $35 million annually. However, a study conducted by the Florida Department of Ag and Consumer Services, University of Florida and Soil and Water Engineering Technology, Inc., concluded the economic impact could easily reach $3.1 billion in implementation costs, while annual costs could top $974 million. The study also predicts 15,000 agricultural jobs will be lost.
Both Florida Attorney General Pam Bondi and Florida Agriculture Commissioner Adam Putnam have filed suit on behalf of the state of Florida against the rule, Strickland says. “Our elected leaders have been outspoken against this rule. Furthermore, just last week our own Department of Environmental Protection asked EPA to rescind this rule,” Strickland says.
Also this week, EPA and the U.S. Army Corps of Engineers (ACE) released a draft guidance document on April 27 to agency field staff instructing them on how to determine whether a water body falls under the federal CWA’s regulatory jurisdiction. NCBA says it strongly opposes the draft guidance because it would harm private property rights and give EPA and ACE more authority than did Congress in the CWA or the Supreme Court when deciding caselaw on the issue.
The draft guidance isn’t a rule, isn’t binding and lacks the force of law. But such documents are frequently used by federal agencies to explain and clarify their understandings of existing requirements.
“The guidance would greatly expand the number of waters that would be found ‘jurisdictional,’ potentially costing cattle producers millions of dollars in permitting costs and regulatory restraints,” NCBA says. See the draft guidance at water.epa.gov/lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf.
