Florida's Disputed New Water Quality Standards

On July 26, 2017, the Environmental Regulation Commission approved new water quality standards. The regulations revise the standards for 43 currently regulated toxins and add new standards for 39 chemicals. The revised regulations were not well-received by communities, environmental groups or industries.

The Seminole Tribe, filed a suit on August 8, 2016, arguing that the calculations used to decide the proposed standards did not take into account “potential health effects for people who eat fish on a ‘subsistence basis’”. The industry group called Florida Pulp and Paper Association Environmental Affairs Inc., which includes Georgia-Pacific, International Paper Co., WestRock and Packaging Corporation of America, also challenged the calculations used to develop the regulations. They argue that the new regulations will impact the "nature and amount" of wastewater mills can discharge. These potential limitations could have negative consequences on their business operations, including requiring existing mills to reduce operations or forego expansions.

The Pulp and Paper Association's challenge to the new water quality regulations was denied by an administrative law judge in 2016. The administrative law judge agreed with Florida's Department of Environmental Protection that the lawsuit had not been filed by the requisite deadlines. On Tuesday, July 11, 2017, the 1st District Court of Appeals overturned the administrative law judge's decision blocking the challenge. The Pulp and Paper Association's case has been sent back to the Division of Administrative Hearings for a determination on the merits. South Florida's 3rd District Court of Appeal will hear the City of Miami's and the Seminole Tribe of Florida's appeals on September 11, 2017.

Challengers have expressed concerns about the scientific method used by the DEP for determining the new regulations. The method used is the Monte Carlo method, which the DEP argues gives them sufficient flexibility to consider different factors in defining the regulations. Others are concerned that the permits will allow for discharges of toxins and standards to be measured after the mixing of the discharge and receiving waters (also known as dilution) rather than at the point of discharge.

Opponents are also concerned that the new regulations are less stringent than existing standards. For example, the DEP increased the allowable amount of benzene found in Florida drinking water source waters from 1.18 parts per billion (ppb) to 2 ppb. Benzene is a carcinogen and is found in fracking related discharges.

As the cases move forward it will be interesting to see whether the standards are approved. The standards are being challenged for different reasons. The Pulp and Paper Association is challenging the new regulations as too restrictive while the Seminole Tribe is arguing that the regulations are not protective enough. The challenges raise important concerns about human health, making the ultimate determination that much more important.