In honor of our 10th anniversary, we are throwing it back in a #TBT series! Take a walk down memory lane with us. In this post, we are featuring an article written for CEJ's December 2012 Groundswell. Unfortunately, the need for greater environmental protections for Florida Springs is just as dire today as it was when this was written- if not more so. With the water problems Florida is experiencing statewide, this article is as relevant today as it was in 2012.* As you can see, CEJ has remained an outspoken advocate for Florida Springs for many years. We intend to continue fighting for greater legal consideration of Florida's natural systems in the years to come.
*Please keep in mind that some of the citations and data may be outdated. However, the point remains that a new legal approach is needed to truly protect Florida Springs. Enjoy this #TBT article!
Right to Farm or Right to Pollute?
By Robert A. Williams, Staff Attorney | Center for Earth Jurisprudence
Originally published in the December 2012 Groundswell
Part of Earth Jurisprudence’s critique of existing environmental regulation is that all too often, what starts as an attempt to regulate polluters ends up being a license to pollute. This classic “licensing a wrong” effect demonstrates the inadequacy of a regulatory approach that focuses solely on human needs and wants: it legally protects acts of pollution, while disregarding any right of nature–in this case, Florida’s springs ecosystems—to be healthy in its own regard. Florida’s regulation of agricultural nitrate pollution provides a textbook example of this pattern.
One of the biggest threats facing Florida’s springs is the growing concentration of nitrate in groundwater, which feeds the growth of filamentous algae species such as Lyngbya. There is plenty of blame to go around—lawn fertilizer, septic tanks, and inadequate treatment of waste water all contribute to the nitrate problem. However, in many of the major springsheds, agriculture is the primary source of the nitrate that is killing the springs.
The Santa Fe River Basin, which contains the beautiful Ichetucknee Springs, is a case in point. Nearly 80% of the total nitrogen load to the Santa Fe from nonpoint sources comes from agricultural activities. There is no way that we can solve the problem of nitrate pollution in the Santa Fe River basin without effective regulation of agriculture requiring significant reductions in the amount of nitrate that agricultural operations put into the aquifer.
However, effective regulation is frustrated at every turn. When the Department of Environmental Protection attempted in 2008 to set the level of allowable nitrate at 0.286 mg/L, agricultural interests represented by the Suwannee River Partnership vociferously objected and were successful in having the level of allowable nitrate pollution increased to 0.35 mg/L.
Setting the target level of nitrate is only the first step in the regulatory process. The standard known as the Total Maximum Daily Load (TMDL) is implemented through the creation of a Basin Management Action Plan (BMAP). The BMAP is developed with the “stakeholders,” which usually consist of the major polluters. In this case the “stakeholders” were the same special interests who objected to the proposed TMDL.
In fact, four years later most of the area covered by the 2008 TMDL—including two of Florida’s largest springs, Fanning Springs and Manatee Springs—still [did] not even have an approved implementation plan. [In 2012], with great fanfare, Secretary Vinyard, flanked by various agribusiness interests, announced that a BMAP had been finalized for the Santa Fe River Basin portion of the area covered by the 2008 TMDL. But don’t expect to see any improvement any time soon: the plan specifically states that the TMDL “will not be achieved for several decades.”[i] In the meantime, the priceless springs of the Suwannee River and its tributaries will continue to deteriorate.
The major reason that progress is so slow is the failure to effectively regulate agricultural polluters. In order to meet the 0.35 mg/L target, the agricultural sector would have to reduce nitrate pollution by 35%. However, the manner in which this is to be achieved is through the voluntary adoption of what are known as Best Management Practices (BMPs) established by the Florida Department of Agriculture and Consumer Services (DACS). Farmers have a choice: they can either agree to adopt the BMPs or they can demonstrate that they are in compliance with the standard.
Farmers, however, have a powerful incentive to opt for the BMPs: adoption of the BMPs provides a presumption of compliance with state water quality standards and release from the provisions of Section 376.307(5), Florida Statutes, for those pollutants addressed by the practice. Furthermore, the Department of Environmental Protection is not authorized to institute proceedings against the owner or source of the pollution to recover costs or damages associated with the contamination of surface or groundwater caused by those pollutants.
There is another benefit for farmers who adopt the BMPs. Under Florida’s Right to Farm Act, Section 823.14, Florida Statutes, farming operations which have been in operation for year or more and which were not nuisances when they were established are immune from suit for either public or private nuisance, as long as the operation conforms to generally accepted agricultural and management practices. Moreover, the Right to Farm Act prohibits local governments from adopting any rules or ordinances which regulate farming activities conducted in accordance with the BMPs.
The Santa Fe River Basin Management Action Plan makes it clear that this grant of immunity to agriculture is one of the key assumptions underlying the plan:
By law, agricultural producers who implement FDACS-adopted BMPs applicable to their operations (identified through the submittal of a NOI [Notice of Intent]) have a presumption of compliance with state water quality standards.[ii]
But this isn’t quite true: according to the applicable statute, only “[i]mplementation . . . of practices that have been initially verified to be effective, or verified to be effective by monitoring at representative sites, by the department”[iii] provides the presumption of compliance. Effectiveness refers not merely to whether the practices reduce the pollution, but to whether they are likely to achieve the targets set forth in the BMAP:
Where interim measures, best management practices, or other measures are adopted by rule, the effectiveness of such practices in achieving the levels of pollution reduction established in allocations developed by the department . . . must be verified at representative sites by the department. The department shall use best professional judgment in making the initial verification that the best management practices are reasonably expected to be effective.[iv]
That is not is what [was] happening. The Department of Environmental Protection did not make an initial verification that following the BMPs [could] be reasonably expected to result in a 35% reduction in nitrates coming from agriculture in the Santa Fe River Basin. Apparently, the Department’s view is that DACS may set the BMPs based on the particular crop activity on a state-wide basis, without regard to a specific TMDL. Again, that is not what the statute appears to say:
[DACS] may develop and adopt by rule . . . suitable interim measures, best management practices, or other measures necessary to achieve the level of pollution reduction established by the department for agricultural pollutant sources.[v]
One recently adopted BMP rule is typical. The Best Management Practices for Florida Equine Operations says that its purpose “is to effect pollutant reduction through the implementation of agricultural Best Management Practices (BMPs) that may be determined to have minimal individual or cumulative adverse impacts to the water resources of the state.”[vi] However, just because the harmful effects have been minimized does not mean that they are minimal. There certainly is no connection between following the practices and meeting the targeted reduction.
For example, the manual says that is a best practice to follow the Institute of Food and Agricultural Sciences (IFAS) guidelines for pasture fertilization.[vii] The IFAS guidelines recommend that not more than 50 to 160 pounds of nitrogen be applied per acre, depending on grazing use, whether the pasture is being cut for hay, and other factors.[viii] Because data suggests that farmers use about 69 pounds of nitrogen per acre on improved pasture, following the recommendations is not likely to have a big impact on the nitrate load coming from improved pasture, which is one of the biggest single sources of nitrate load in the Santa Fe River basin.
The DACS rule also provides for the Presumption of Compliance:
[A]gricultural operations that implement BMPs, in accordance with FDACS rules, that have been verified by the Florida Department of Environmental Protection as effective in reducing pollutants addressed by the practices are presumed to comply with state water quality standards, and are released from the provisions of the Section 376.307(5), F.S., for those pollutants.[ix]
In other words, the farmers are off the hook for polluting the aquifer as long as they make some effort to reduce nitrate, even if those efforts are insufficient to meet the target.
The failure to link the BMPs to the required reductions makes it almost certain that the target level will not be reached. This is even more true in the areas where the approved TMDLs require even greater reductions in the amount of nitrate to reach the 0.35 mg/L target. The proposed TMDLs for Silver and Rainbow Springs require 79% and 82% reductions, respectively. These levels of reduction cannot be obtained by compliance with the published BMPs. Thus the BMAPs essentially become licenses to continue to dump nitrates into the aquifer at levels known to cause ecological harm.
The obvious failure of our current environmental regulations to protect some of the most important and unique ecosystems argues for a new approach. New models for environmental protection based on the rights of nature are emerging around the world. Most recently, New Zealand has recognized the Whanganui River and its tributaries as a legal entity with rights as an “integrated, living whole.”[x] Two guardians will be appointed to oversee the health and well-being of the river pursuant to this new legal recognition. A case in Ecuador has similarly protected the rights of waterways to flow in a case on the Vilcabamba River that implemented the country’s landmark 2008 constitutional provisions recognizing the rights of nature.[xi]
In the past, Florida has often been a pioneer in environmental regulation. Isn’t it about time that we reclaimed that role by taking action to protect Florida’s precious springs? Licensing the wrongs being visited upon the springs ecosystems can never make them right. But an Earth jurisprudence approach could change that destructive pattern, by recognizing in law the inherent rights of springs and spring-dependent species to exist and flourish.
[i] Bureau of Watershed Restoration, Fla. Dep’t of Envtl. Prot., Basin Management Action Plan for the Implementation of Total Daily Maximum Loads for Nutrients Adopted by the Florida Department of Environmental Protection in the Santa Fe River Basin 10 (2012), available at http://www.dep.state.fl.us/water/watersheds/docs/bmap/sfr-nutrient-bmap-final.pdf.
[iii] Fla. Stat. § 403.067(7)(c) 3 (2012) (emphasis added).
[v] Fla. Stat § 403.067(7)(c) 2 (2012).
[vi] Fla. Admin. Code Ann. 5M-14.001 (2012).
[vii] Dep’t of Agric. and Consumer Servs., Water Quality/Quantity Best Management Practices for Florida Equine Operations 11 (2011), available at https://www.flrules.org/Gateway/reference.asp?No=Ref-00772.
[viii] R. Mylavarapu, et al., UF/IFAS Standardized Fertilization Recommendations for Agronomic Crops, SL-129 (2009), available at http://edis.ifas.ufl.edu/SS163.
[ix] Fla. Admin. Code Ann. 5M-14.003 (2012).
[x] Kate Shuttleworth, Agreement Entitles Whanganui River to Legal Identity, New Zealand Herald, Aug. 30, 2012, available at http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10830586 (quoting Christopher Finlayson).
[xi] Natalia Greene, The First Successful Case of the Rights of Nature Implementation in Ecuador, http://therightsofnature.org/first-ron-case-ecuador/ (last visited Nov. 16, 2012); Constitution of the Republic of Ecuador Oct. 20, 2008, art. 71, available at http://pdba.georgetown.edu/Constitutions/Ecuador/english08.html.