ELR Citation: 42 ELR 20048
No(s). 4:08cv324 et al (N.D. Fla. Feb 18, 2012) (Hinkle, J.)

A district court upheld EPA's rule setting numeric nutrient criteria for Florida except in two respects: the stream criteria and the default downstream-protection criteria for unimpaired lakes. In 2009, recognizing that the state's narrative criterion was insufficient to control Florida's widespread nutrient pollution, EPA made an explicit determination under the CWA that numeric criteria would be necessary to meet the Act's requirements. The determination imposed on the Administrator an explicit statutory duty to promptly propose and adopt new criteria unless Florida did so first. Because the state failed to do so, the Agency's decision to issue the rule was valid. As for the criteria themselves, the court upheld but all two aspects of the rule. The stream criteria and the default downstream-protection criteria identify any increases in nutrients as opposed to harmful increases in nutrients. There is a substantial difference between a criterion designed to identify a harmful increase in a nutrient level, on the one hand, and a criterion designed to identify any increase in a nutrient level, on the other. Because EPA cited no basis in sound science for its rationale, further explanation is required.