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COLUMNS
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DEP Update |
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Kelly Samek &
Amanda G. Bush |
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ACF Update
On March 28, the U.S. Army Corps of Engineers issued a public notice
advising that its Mobile District had completed an Environmental Assessment and
Finding of No Significant Impact for modifications to the Woodruff Dam Interim
Operations Plan describing minimum releases and maximum fall rates for releases
to the Apalachicola River from the dam. Florida sent a 60-Day Notice of Intent
to Sue to the Corps and the U. S. Fish and Wildlife Service for violations of
the Endangered Species Act in the operation of Woodruff Dam under the Modified
Interim Operation Plan.
The federal panel on multidistrict litigation entered an order transferring part
of State of Alabama v. U.S. Army Corps of Engineers, et al., 90-CV-1331-Bowdre
(N.D. Ala.), as well as Southeastern Federal Power Customers, Inc. v. Luis
Caldera, et al., 1:00-CV-02975-Jackson (D.C. Cir.), State of Florida v. U.S.
Fish and Wildlife Service, et al., pending in the Northern District of Florida,
and State of Georgia v. U.S. Army Corps of Engineers, et. al., pending in the
Northern District of Georgia, to the Middle District of Florida. (The remainder
of State of Alabama v. U.S. Army Corps of Engineers, et al. concerning the ACT
Basin will continue in the Alabama district court without Florida’s
participation.) The Panel found that the four cases involve common questions
concerning the conduct of the Corps regarding the flow of water in the ACF
basin. The Panel recognized that the cases involve parties and interests located
in the 11th Circuit Court of Appeals and transferred the cases to the middle
district so that the 11th Circuit would retain appeal jurisdiction. The panel
selected Judge Paul Magnuson of the District of Minnesota to serve as judge for
the consolidated cases, citing his expeditious handling of the Missouri River
litigation.
S-2, 3, and 4 Litigation, Case No. 02-80309-CIV-Altonaga/Turnoff: On
March 6, the Florida Wildlife Federation filed a motion to join Secretary Sole
into the federal S-2, 3, and 4 case as an involuntary plaintiff. The Court has
previously ruled that the SFWMD was in violation of the Clean Water Act for
failing to obtain NPDES permits for the 3 pump structures that periodically back
pump into Lake Okeechobee. The case is now in the remedy phase. The Department
objected to the joinder.
In Re: Florida Power & Light Company, FPL Glades Power Park, Power Plant
Siting Application No. PA 06-49, DOAH Case No. 06-005334EPP: This is an
application for the construction and operation of a new 1,960-megawatt coal
fired power plant in Glades County pursuant to the Power Plant Siting Act. The
ALJ has scheduled a land use hearing on those petitions to be held in Glades
County on June 5.
FPL Rule Challenge (CAIR), Case No. 3D07-840, DOAH Case No. 06-2871RP: On
March 1, a DOAH final order was entered finding that the Clean Air Interstate
Rule is valid. The ALJ found that the Department did not exceed its grant of
rulemaking authority; did not enlarge, modify, or contravene the law being
implemented; was neither arbitrary nor capricious; did not impose excess
regulatory costs on a regulated person; and did not violate the requirements for
issuing a statement of estimated regulatory cost. The challenged provisions of
the Department’s CAIR were exactly the same provisions adopted by EPA in its
model CAIR rule (model rule was developed for states to use to ensure
consistency among states participating in the cap-and-trade program) and in the
EPA federal implementation plan. Subsequent to the final order, the challenged
provisions of the CAIR rule were filed with the Secretary of State and became
effective April 2. On March 30, Florida Power & Light appealed the final order
in the Third District Court of Appeals.
Rule 62-730.186: On February 22, the Environmental Regulation Commission
approved adoption of the Universal Pharmaceutical Waste Rule. This rulemaking is
the product of work by several affected constituencies including medical
facilities, federal facilities, hazardous waste transporters, reverse
distributors, and the Department of Health. Florida is the second state in the
nation to allow hazardous pharmaceutical waste to be managed using the less
stringent regulations applicable to universal waste. The rule became effective
April 22, 2007.
Renewable Energy Technologies and Energy Efficiency Rule: On February 9,
the Florida Energy Office published a notice of proposed rulemaking for a new
rule chapter, 62-16, to implement the provisions of the 2006 Florida Energy Act
(2006 Senate Bill 888). The proposed rule will provide for application
requirements, ranking of applications, and will administer the awarding of
grants under the Renewable Energy Technologies Grants Program; develop rebate
applications and administer the issuance of rebates for the Solar Energy Systems
Incentives Program; and implement corporate tax incentives provided for
renewable energy technologies. A public hearing was held on April 17 to accept
comments on the rule.
Citation Correction from April 2007 publication: St Johns Riverkeeper, et
al v. U.S. EPA was incorrectly cited to 3:04-CV-699-J-32MCR. The correct
citation for the case published in the update is 4:06-CV-00332-SPM-WCS (N.D.
Fla.).
