Tuesday, September 20, 2016

Fight over Florida water standards heads to appeals court

Posted By on Tue, Sep 20, 2016 at 7:30 AM

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Moving quickly after a judge tossed out challenges to controversial new state water-quality standards, the city of Miami has signaled it will continue battling in an appeals court.

The city has given notice that it will appeal a ruling last week by Administrative Law Judge Bram D.E. Canter, who rejected the challenges by Miami, Martin County, the Seminole Tribe of Florida and Florida Pulp and Paper Association Environmental Affairs, Inc.

Canter sided with the Florida Department of Environmental Protection, which argued that the challengers had missed a legal deadline in the cases.

Miami filed a notice of appeal Thursday in the 3rd District Court of Appeal, two days after Canter's ruling, court records show.

The water standards, which were developed by the Department of Environmental Protection and approved July 26 by the state Environmental Regulation Commission, have been highly controversial. They involve new and revised limits on chemicals in waterways, with the department saying the plan would allow it to regulate more chemicals while updating standards for others.

But opponents raised a series of objections, with Miami, for example, arguing that the plan "loosens restrictions on permissible levels of carcinogens in Florida surface waters with absolutely no justification for the need for the increased levels of the toxins nor the increased health risks to Florida citizens."

The four challenges were filed separately last month in the state Division of Administrative Hearings and then consolidated in one case. But the Department of Environmental Protection argued that the challenges should be dismissed because they were not filed by an Aug. 5 legal deadline that applies in such administrative cases.

Part of the decision focused on the Seminole Tribe, which launched the first challenge, filing its petition at 5:02 p.m. on Aug. 5. The Department of Environmental Protection contended petitions had to be filed by 5 p.m. That meant the petition wasn't technically filed until 8 a.m. Aug. 8, after a weekend, Canter wrote.

The tribe and the other challengers argued they had more time to file petitions because of a "notice of correction" filed after the July 26 approval of the standards by the Environmental Regulation Commission. But Canter's ruling said such a deadline extension could only apply if the department had published a "notice of change" to the standards, not a notice of correction.

As is common, the initial document that Miami filed Thursday in the appeals court did not include detailed arguments seeking to overturn Canter's dismissal of the case.

But in a document filed Sept. 6, the city urged Canter to reject the Department of Environmental Protection's position that the petitions should be dismissed. The city pointed to issues such as the disputed "notice of correction" linking to a revamped table of chemicals involved in the water standards. As a result, the city argued, the notice of correction "represents a substantive change" that should have led to a new timeline for filing petitions.

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