'Glades standards challenged

By Neil Santaniello
Saff Writer

December 4, 2003

A legal challenge that seeks to toss out a proposed state pollution standard -- charging it fails to protect the Everglades -- starts today in Tallahassee.

The Miccosukee Tribe and Friends of the Everglades are pushing ahead with a request for a state administrative law judge to invalidate the rule crafted by the state Environmental Regulation Commission.

They maintain the rule won't provide the necessary reduction of damaging phosphorus that washes into the marsh with farm and suburban stormwater and argue it could worsen water quality in the 'Glades.

Still, the ranks of those rejecting the rule as bad environmental policy thinned last week. After first bashing the rule, state and national Audubon officials, the Florida Wildlife Federation and Everglades Foundation reached a settlement over it with the Florida Department of Environmental Protection just before Thanksgiving.

Audubon of Florida Senior Vice President Charles Lee said the groups extracted promises from the DEP to amend the water quality standard closer to Audubon's ideal. That would include the state removing some loophole language that Audubon said watered down the rule's adoption of 10 parts per billion of phosphorus for the 'Glades, a tough but scientifically supported target.

"We have a significantly better rule than before" with those pending fixes, Lee said.

The tribe views the rule as beyond repair, said Joette Lorion, a tribe representative.

"We don't believe anything can make this rule better," she said. "We think it's a blatant violation of the Clean Water Act. It will carve out large sections of the Everglades and allow them to continue to be destroyed."

The matter is even more complicated than those opposing views. A clock is ticking.

A 1994 state law stipulates that if the state does not adopt a phosphorus cleanup goal by Dec. 31, the pollution standard automatically becomes what environmentalists want. It defaults to 10 parts per billion without all the fine print and caveats on how to measure phosphorus hotly disputed in the legal challenge.

That is not a given, either. Attorneys for Florida's sugar industry have asked a Leon County court to halt that cleanup default contained in Florida's Everglades Forever Act, with a hearing set for Dec. 16.

The Environmental Regulation Commission devised the rule on phosphorus, blamed for causing an imbalance of flora and fauna, to translate an existing Everglades water quality standard into a numerical limit easier to enforce.

The ERC accepted the DEP's proposal for 10 parts per billion but couched it inside a rule that the tribe and Friends of the Everglades argue undermines that limit.

For example, tribe consultant Terry Rice said the rule employs a type of math to measure phosphorus illogical for ecological purposes, a trick to soften its impact. The rule also would let the DEP pour dirty water into clean areas of the 'Glades if the agency finds it will cause some other net benefit, such as rehydrating wetlands, Rice maintains.

DEP spokeswoman Deena Wells said, "We have confidence this is a good protective rule."

Neil Santaniello can be reached at nsantaniello@ sun-sentinel.com or 561-243-6625.

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