Court Rules State Cannot Rely On Voluntary Programs Instead of Requiring Clean Water Act Permits
TALLAHASSEE (March 8, 2004) - A Florida court ruling issued today will force the state of Florida to regulate pollution from large dairies, protecting the health of Floridians across the state. Leon County Circuit Judge L. Ralph Smith, Jr. found that Florida's Department of Environmental Protection (DEP) failed to implement and enforce a permitting program for large-scale dairies as required by Florida law and the federal Clean Water Act.
Judge Smith also ruled that DEP could not rely on voluntary programs in lieu of Clean Water Act permits for dairies or any other industry in the state. Voluntary programs, he said, "are clearly an insufficient substitute for mandatory governmental regulation through a proper permitting procedure as required by law."
The ruling is the result of a May 2001 lawsuit filed by Linda Young of the Clean Water Network and three Florida conservation groups that charged the state environmental agency failed to require federal Clean Water Act permits for dairies with more than 700 mature cattle. Ms. Young and the three groups, Save Our Suwannee, ManaSota-88, and the Conservation Alliance of St. Lucie County, were represented by NRDC (Natural Resources Defense Council) and the Legal Environmental Assistance Foundation (LEAF). (For a pdf file of the ruling, contact Elizabeth Heyd at NRDC, 202-289-2424 or [email protected]).
"Judge Smith had to remind the Florida Department of Environmental Protection what its name stands for," said Melanie Shepherdson, the NRDC attorney representing the conservation groups. "The agency was protecting the dairy industry, not the environment, allowing it to contaminate Florida waterways with animal waste. This court order will force DEP to protect state waters."
In his opinion, Judge Smith said DEP shirked its responsibility to safeguard the state's water supplies from dairy pollution. In fact, the judge pointed out, the state agency never required dairies to apply for Clean Water Act permits. "The DEP's implementation of constitutional and statutory duties to abate pollution and protect natural resources from pollution from [concentrated animal feeding operations] is so inadequate as to closely resemble a delegation of its duties to the industry it is required to regulate," he wrote. "Such agency action can not continue."
Judge Smith ordered the state environmental agency to:
- immediately require the 55 large dairies in the state to apply for Clean Water Act permits;
- enforce state law requiring all dairies to file pollution reports; and
- develop an enforcement program to control water pollution from the 55 dairies in Florida operating without Clean Water Act permits.
Judge Smith ruled that the agency could not rely on voluntary programs in place of Clean Water Act permits for dairies or any other industry. "Judge Smith was loud and clear: Industry can't police itself," said Linda Young. "Our state government has a duty to protect our waterways and our health, and it's a sad day when you have to go to court to force it to do its job."
The judge also prohibited the agency from relying on a voluntary program in the Suwanee River basin instead of permits to control groundwater pollution. "The majority of state residents rely on groundwater as a source for their drinking water," said Scott Randolph, a LEAF attorney. "DEP has to protect not only surface water, which is covered by the federal Clean Water Act, but also groundwater, which is protected by state law. Voluntary programs are not going protect our drinking water supplies."