Environmentalists object to a DEP proposal that would deem as polluted only waterways not suitable for swimming and fishing.
By CRAIG PITTMAN
© St. Petersburg Times, published November 6, 2000
Last year the state Department of Environmental Protection stirred up a storm of protest by trying to wipe about 200 rivers, lakes, streams and bays off a list of polluted waterways around Florida by simply changing the standards for listing.
Environmental groups and local government officials accused the DEP of kowtowing to polluters. In the end DEP Secretary David Struhs reversed course, putting the 200 back on the list.
Now controversy over the list is simmering again.
DEP officials recently put out a draft rule for drawing up the next version of the polluted-waters list that would set a new standard for picking which waterways belong on the list, and it has drawn sharp criticism from 52 environmental groups and the U.S. Environmental Protection Agency.
"DEP has just been hellbent on de-listing a huge number of the polluted waters in the state," Linda Young of the Clean Water Network contended last week. She said the new rule shows DEP puts the demands of the state's polluting pulp mills, power plants and phosphate companies ahead of the public's need for clean water.
"It will simply assure that most of Florida's polluted waters will never be protected and restored to an unpolluted condition," she wrote in an Oct. 24 letter to DEP officials, which was also signed by the Save the Manatee Club, Friends of the Everglades, the Citrus County Audubon Society and dozens of other environmental groups.
Among the objections by EPA and the environmental groups: The DEP's rule defines "pollutant" and "pollution" only as something illegally dumped in a waterway in a sufficient quantity to alter its nature.
"The state's definition says that the presence of ... contaminants ... in quantities or levels which are not or may not be potentially harmful or injurious to human health or welfare, animal or plant life or property is not pollution," EPA officials wrote to the DEP. "The definition also says that pollution does not exist if it is authorized by applicable law."
But federal law says any substance that taints clean water is a pollutant, regardless of whether it has been authorized or if it is being dumped in by the barrelfull.
The EPA and the environmental groups also contend the new rule, slated for final adoption early next year, would limit the definition of a waterway impaired by pollution to those rivers, bays, streams and lakes where conditions have gotten so bad that fishing and swimming are no longer possible.
By doing that "you will allow many polluted water bodies to continue to degrade until they finally reach the point of not being fishable or swimmable," Young wrote in her letter to DEP officials.
Young and David Guest of the Earthjustice Legal Defense Fund, which won a lawsuit against EPA to require the states to start drawing up the polluted waterways lists, both said the DEP may be playing election-year politics with the rule.
"What they may be banking on is waiting until the presidential administration changes, and then they'll have a different EPA secretary who will rubber-stamp this," Guest said. "They would never get that proposal through the current EPA."
But DEP officials said such objections are an overreaction to what is, at this point, only a draft.
"We are very much in the preliminary preparation stage," said Jan Mandrup-Poulsen of the DEP's water resource management division. "We've got to start somewhere, so we put that draft on the table... . We see this as being a work in progress."
This work was supposed to be done years ago.
The federal Clean Water Act required all the states to compile a list of polluted waterways and then set limits on future dumping by 1979.
But the EPA failed to force Florida to set those limits until Guest's organization sued three years ago. As a result, the EPA pushed the DEP to draw up its first-ever list in 1998.
The list of more than 700 impaired waterways included any river, lake or bay where the state has seen a water sample indicating some form of pollution has been found there at some point in the past.
The list ranged from the Fenholloway River, the only Florida river ever classified as an industrial waterway to accommodate a polluter, to the Loxahatchee River, the state's only National Wild and Scenic River. It included Perdido Bay and Escambia Bay in the Panhandle, where polluters have dumped waste for years without getting formal permits.
The list also included parts of Tampa Bay as well as the Hillsborough River, the Alafia River and the Tampa Bypass Canal, all of which have had longstanding problems with too little oxygen and too much phosphorous and nitrogen.
Then, faced with having to start setting limits on how much more pollution could be dumped in those waterways every day, DEP officials proposed simply dropping 200 off the list. Half would be declared clean enough to pass muster, and the other half would be dropped because the state lacked enough recent, reliable information to say they were really polluted.
Among the 200 proposed to be removed: the Fenholloway, Loxahatchee, Hillsborough and Alafia rivers, the Tampa Bypass Canal and Tampa Bay, Perdido Bay and Escambia Bay.
"We're just trying to get the list down to the water bodies that are truly impaired," said Mimi Drew, director of the DEP's Division of Water Resource Management, said at the time. "We have a very long list, and we'd like to get through it in some reasonable time frame."
But the subsequent furor -- which brought criticism from environmental groups, county officials, a grand jury in Pensacola and even the DEP's own regional offices -- persuaded Struhs to drop the plan.
Struhs said the complaints made it "abundantly clear that Floridians care deeply about clean water and that this state will not tolerate even the perception that a river, lake or stream will be less protected as a result of being removed from this historic list."
But now Struhs' agency is proposing a new method of drawing up its next version of the list which, Young contended in her letter, "is an even more extreme attempt to pare hundreds of water body segments" from the list.
Under the new rule, the only waterways that could be put on a future pollution list would be the ones that met a far more stringent test than the ones on the current list. Instead of one sample, there would have to be 10 samples over a 10-year period. The range of the samples would have to be less than 5 years old taken at least a week apart, and from at least three of the four seasons.
"These arbitrary rules are designed to make sure that few polluted water body segments qualify for listing," Young wrote.
"We just want to make sure that the waters that are listed as impaired really are impaired," the DEP's Mandrup-Poulsen said. "It doesn't make sense to commit a lot of the state's resources and other people's resources to fix water bodies if we can't say they are impaired or how impaired they are."
- Times researcher Barbara Oliver contributed to this story.