TMDL DECISIONS

     Pursuant to Section 303(d) of the federal Clean Water Act (CWA), each state is required to identify water bodies within the state for which traditional point source control of surface water discharges are not sufficient to assure that the affected water bodies meet state water quality standards. For those waters identified as not meeting standards, the state must identify the pollutant or pollutants causing the exceedance(s) of water quality criteria and establish a pollutant budget or Total Maximum Daily Load (TMDL) for the water body. A TMDL is the amount of a pollutant that a water body may assimilate and still meet applicable water quality standards.

     Florida's TMDL program was established by the Florida Watershed Restoration Act of 1999 and primarily codified as Section 403.067, Fla. Stat., entitled "Establishment and implementation of total maximum daily loads." The FWRA mandated the development, by rule, of a methodology to identify those waters that are "impaired" or not meeting standards and in need of a TMDL. The Department promulgated Chapter 62-303 of the Florida Administrative Code, entitled "Identification of Impaired Surface Waters," which is more commonly known as the Florida Impaired Waters Rule or IWR. The IWR establishes a science-based methodology for identifying those waters that are truly impaired (verified list) as well identifying those waters that may be impaired but require additional study for verification (planning list). The National Academy of Sciences supports Florida's two step or two list approach and other states around the nation are using the assessment methodology as a model.

     Florida's Impaired Waters Rule was recently upheld both at the state appellate level and in a federal lawsuit. The state case, Jacqueline M. Lane et el v. Department of Environmental Protection, 1st DCA Consolidated Cases, Nos.: 1D02-2043 and 1D02-2319 L.T. Consolidated Cases, Nos: 01-1332RP, 01-1462RP through 01-1467RP and 01-1797RP, opinion filed May 20, 2003, was a rule challenge brought by 6 public interest groups and 2 individuals. The appellate court found that Chapter 62-303, F.A.C., is a valid exercise of DEP’s legislatively delegated authority.

     In approving the Department's methodology regarding Florida’s impaired waters, the First DCA rejected appellants argument that rulemaking authority must be granted in the same subsection of 403.067, F.S. that requires DEP to develop a impaired waters list. On May 20, 2003, the First DCA issued a per curiam opinion affirming an exceptionally thorough May 2002 administrative order issued by Administrative Law Judge Stuart Lerner. The rule was created by DEP after significant public input and adopted by the Environmental Regulation Commission on April 26, 2001. It establishes scientific criteria for identifying polluted water bodies and prioritizing them for clean-up.

     In Florida Public Interest Research Group Citizen Lobby, Inc., et al., vs. U.S. Environmental Protection Agency (EPA),Case No. 4:02CV408-WS, the plaintiffs argued that Florida’s Impaired Waters Rule constitutes a revision in water quality standards which requires mandatory review by EPA. On May 29, 2003, the U.S. District Court for the Northern District of Florida granted summary judgment in favor of EPA, finding that since Rule 62-303, F.A.C, does not constitute a revision of Florida’s water quality standards found in Rule 62-302, F.A.C., the Court had no subject matter jurisdiction to consider the case. Additionally, Judgment was entered in favor of EPA and costs were taxed against Plaintiffs.


BUFFER PRESERVE RULE AMENDMENTS

     On May 28, 2003, the Board of Trustees of the Internal Improvement Trust Fund (which consists of the Cabinet) adopted amendments to Chapter 18-23, F.A.C., to ensure that the State Buffer Preserves and natural islands within the State Aquatic Preserves are managed to protect the natural and cultural resources in accordance with the Board of Trustees' conservation lands management policies. The rules also include compatible public use of these properties and civil penalties of up to $500 for rule violations. These changes are scheduled to become effective June 29, 2003.


STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, vs. WILLIS D. GAY and GREG WILSON, 10 Fla. L. Weekly Supp. 311a (Fla. 1st Cir. Ct. March 23, 2003)

     In striking a request for jury trial, this holding recognizes the limited right to jury trial in environmental enforcement cases. This is a storage tank enforcement case where the Department sought both equitable relief and civil penalties. The First Circuit Court held that it is well established that where the right or remedy is equitable in nature there is no right to a jury trial. See Robbins v. Section 3 Property Corp., 609 So.2d 670, 671-672 (Fla. 3d DCA 1992), affirmed, 632 So.2d 596 (Fla. 1993). Likewise, there is no right to having a jury determine the amount of the civil penalties in a regulatory enforcement cases. Tull v. United States, 481 U.S. 412, 425-427 (1987).

     In Tull, the Unites States Supreme Court ruled that the trial court, not a jury, was responsible for setting civil penalties for violations of federal environmental laws. The Tull Court opined “highly discretionary calculations that take into account multiple factors are necessary in order to set civil penalties under the Clean Water Act. These are the kinds of calculations traditionally performed by judges.” Tull, 481 U.S. at 427. In Department of Revenue v. Printing House, 644 So.2d 498, 501 n.6 (Fla. 1994), the Florida Supreme Court specifically adopted the Tull decision. Additionally, the First Judicial Circuit went on to state, the reasoning of the Tull Court is consistent with the Florida Air and Water Pollution Control Act and the Water Quality Assurance Act, both of which provide “It is the legislative intent that the civil penalties and criminal fines imposed by the court be of such amount as to ensure immediate and continued compliance with this section.” Environmental violators may be entitled to a jury trial on the legal issue of liability. However, liability had already been determined in this case and therefore on the issues of equitable relief and the amount of penalties, there is no right to trial by jury.


GLOBAL RBCA AND CLEANUP TARGET LEVELS RULE WORKSHOP

     On June 27, 2003 the Florida Department of Environmental Protection held a one-day combined rule workshop for Chapters 62-777 and 62-780, F.A.C. Chapter 62-777, F.A.C. is the existing rule that addresses contaminant clean-up target levels. While Chapter 62-780, F.A.C. is the proposed rule to implement the recently passed Global Risk Based Corrective Action legislation created in 376.30701, F.S. (HB 1123, signed by the Governor on June 6, 2003). A draft copy of the proposed rule Chapter 62-780, F.A.C., and a draft flowchart on implementing RBCA are available on the Division of Waste Management’s web site at http://www.dep.state.fl.us/waste/default.htm. For existing copies of the draft rule Chapter 62-777, F.A.C. and its associated tables of cleanup target levels, visit http://www.dep.state.fl.us/waste/default.htm.