Tallahassee, FL—On Wednesday, February 15, 2023, a three-judge panel of the Florida 1st District Court of Appeals reversed the Florida Department of Environmental Protection (FDEP), ruling that FDEP violated Florida law by not allocating the pollutant load to categories of nonpoint sources when drafting Basin Management Action Plans (BMAPs) for 13 impaired Outstanding Florida Springs (OFS).
This victory is the result of a four-year legal battle by the Florida Springs Council, Sierra Club Florida, Save the Manatee Club, Our Santa Fe River, Ichetucknee Alliance, Silver Springs Alliance, Friends of the Wekiva River, and individual petitioners Jim Tatum, Tom Greenhalgh, and Paul Still. The ruling forces DEP to immediately draft new, effective BMAPs for the Outstanding Florida Springs of the Suwannee River, Santa Fe River, and Ichetucknee River, as well as Rainbow Springs, Silver Springs, and Volusia Springs. Additionally, FDEP will have to comply with this ruling when updating the remaining OFS BMAPs
“While we celebrate this victory, let’s not forget that it never should have been necessary to fight in the first place. We should be able to trust our state agencies to follow the law. And we should be able to trust the Florida Department of Environmental Protection to protect the environment, not polluters. DEP owes an explanation to the Legislature, the petitioners, and the people of Florida,” says Florida Springs Council Executive Director Ryan Smart.
John Thomas, lead attorney for the petitioners, says, “The issue is about accountability and transparency to the people and the Legislature. To be effective and have any teeth, BMAPs have to show who’s causing the most pollution, where polluters or the State need to do more, and how much reduction is needed. That’s what the ruling requires.”
“With this court decision, the ball is now in FDEP’s court to obey the law and promptly produce BMAPs that will actually lead to springs restoration by 2038,” says Florida Springs Council Treasurer Bob Palmer. “We will not be amused if DEP concludes that they can’t meet the intent of the legislature because they lack the will to fix our springs. The Florida Springs Council wrote a ‘Better BMAP’ last year that would clean up the Santa Fe River springs. If our little nonprofit can figure this problem out, surely an agency with a budget of over $2 billion can figure it out.”
Michael McGrath, Sierra Club Florida Lead Organizer added, "The Court’s ruling makes it crystal clear that FDEP’s current BMAP program is a failure. We can’t continue to throw taxpayer money at projects when it is stopping pollution at its source—regulation—that we desperately need. It is time for Governor DeSantis’s DEP to stop fighting this and give us BMAPs that put our springs on the fast road to recovery."
Kim Dinkins, Senior Conservation Associate for Save the Manatee Club says, "The ruling is a huge win for Florida's springs and its manatees. Unfortunately, the 4 years we have spent fighting the ineffective BMAPs has resulted in not only delaying improvements, but in some cases, worsening water quality. Healthy springs are vitally important for manatees and for the people of Florida. As we have seen along the east coast of Florida, ineffective water quality controls can result in devastating ecosystem collapse and unprecedented, yet wholly preventable manatee deaths. We're hopeful that this ruling will help turn the tide for springs before it's too late."
“It's definitely a new day with this court judgement in favor of Florida’s springs. DEP must act urgently to reduce nutrient loads in the Santa Fe by enforcing appropriate allocations for each land use,” says Our Santa Fe River Director Merrillee Malwitz-Jipson.
John Jopling, President of Ichetucknee Alliance says, “We are grateful for the critical backing of the Florida Springs Council, for the commitment of the other plaintiffs, and for the financial contributions of the many Floridians that enabled this case to go forward. This is an important win not only for the Ichetucknee but also for all of Florida’s freshwater springs.”
The Ruling:
As part of the BMAP process, FDEP is required to meet water quality goals by allocating the necessary nitrogen load reductions to categories of pollution sources like agriculture, septic tanks, and urban fertilizer. Without these allocations it is impossible to hold polluters accountable. FDEP failed to include these allocations in the BMAPs for Outstanding Florida Springs and argued that they met the requirement by including estimates of current pollution loading. This was only one of numerous legal deficiencies in the OFS BMAPs, all of which benefited polluters.
The 1st DCA sided with environmentalists challenging the BMAPs, writing, “The BMAPs for Outstanding Florida Springs must also include “[a]n estimated allocation of the pollutant load . . . for each point source or category of nonpoint sources.” § 373.807(1)(b)7., Fla. Stat. However, the pie charts included in the BMAPs only show current estimated nitrogen loading in the various springsheds by source. There is no ‘allocation of the pollutant load’ as required by section 373.807(1)(b)7., or put another way, allocation of the necessary load reductions to meet the TMDL.”
Background:
In January of 2019, seven Florida Springs Council member organizations and three individuals challenged the ineffective springs BMAPs arguing that the plans did not meet the minimum requirements under law.
For four years the Florida Department of Environmental Protection (DEP) took the side of polluters in court. DEP argued that the BMAPs did not need to actually achieve water quality goals, only have a “target” for doing so, that they did not need to assign pollution reductions to categories of non-point sources, and that they did not need to offset the inevitable increases in pollution from future growth in both population and agriculture.
After a seven-day hearing in 2019, an Administrative Law Judge ruled on behalf of DEP, upholding the flawed BMAPs. But, thanks to our members, volunteers, and legal team, the Florida Springs Council had the resources to appeal the ruling to the 1st District Court of Appeals and secure this major victory for Florida’s springs.
The petitioners were represented by attorneys John Thomas, Douglas MacLaughlin, Anne Harvey, and Terrell Arline. Expert witnesses Bob Knight, Tom Greenhalgh, Anthony Gaudio, and Allen Stewart gave important testimony during the initial Hearing. FSC Board Members, especially Bob Palmer, Mike Cliburn, and Burt Eno, contributed hundreds of hours in volunteer time working with the legal team.
Contacts:
Ryan Smart, smart@floridaspringscouncil.org, 561-358-7191
Bob Palmer, rpa711@yahoo.com, 352-371-4093
John Thomas, jrthomasesq@gmail.com, 727-692-4384