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Tuesday, Sep 25, 2018
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Lawsuit would force the EPA to better monitor Florida waterways

GULFPORT — Clam Bayou has long had a reputation as a dumping ground. Debris and fertilizer runoff from nearby homes, businesses and industrial sites wash into it from canals and sewers to the north.
It hasn't always been that way, said Al Davis, who, along with his wife,† Cindy, owns a home on the marshy estuary that straddles the waterfront along southwest St. Petersburg and eastern Gulfport.
“When Cindy and I moved here 10 years ago, we had dolphins and manatees in our backyard,” he said. “That's what attracted us to live here.”
Now, despite several cleanup projects, the couple says the water is shallow and choked with sand and silt that's coated with a nasty ooze.
“It's like a toilet that needs to be flushed,” he said.
The couple has been fighting to see Clam Bayou restored to its natural state for years. Their latest effort is a lawsuit against the U.S. Environmental Protection Agency — their second. They say the agency isn't enforcing its own rules when it comes to water quality, even after a federal judge told it to. Tallahassee-based environmental nonprofit Florida Wildlife Federation has joined them this time, and the litigation's outcome could impact waterways — and those responsible for keeping them clean — across the state.
If the Davises win, the EPA would have to more strictly monitor pollution in vulnerable waters statewide, or force the Florida Department of Environmental Protection to do so — though many business leaders say tougher regulations aren't needed. More than 300 bodies of water in Florida would be affected, including Caladesi and Honeymoon islands, Weedon Island Preserve and the Hillsborough River in the Tampa Bay area.
The Davises' lawsuit, filed this month, seeks to force the EPA to collect more detailed data about water quality degradation, including fish-tissue sampling and sediment testing. Right now, the agency's only standard for water degradation is the level of phosphorous and nitrogen in the water, according to the lawsuit.
This isn't the first time someone has sued the EPA seeking tougher enforcement of the Clean Water Act. Private citizens, groups and governments have sued the federal agency in numerous attempts to either force more stringent pollution rules or to loosen the agency's restrictions.
The Davises first sued in 2009, accusing the EPA of not enforcing Clean Water Act assessment standards for Clam Bayou, which opens into Boca Ciega Bay, a spot deemed worthy of special attention because of its recreational and economic value. The couple prevailed but say the agency hasn't carried out a court-ordered mandate to overhaul the way it assesses water-quality degradation.
“Every two years, you're supposed to look and see if your system's working,” said Tom Reese, the lawyer representing the Davises and the Florida Wildlife Federation. “And if it's not working, you're going to have to figure out how to get it working again. What they've done so far doesn't even come remotely close.”
The EPA has not filed a response to the lawsuit yet, and a spokeswoman for the agency declined to talk about the issue.
Working with a statewide environmental nonprofit group may prove a helpful strategy.
“They're trying to raise the ante, obviously,” said Tampa-based environmental lawyer Ron Weaver. “It creates three or more kinds of additional leverage.”
The wildlife federation can raise money to cover legal fees, bring in the state's best experts and use the reputations of some of its members to elevate the case's credibility before a judge.
Because the Davises' lawsuit includes 309 Florida waterways, a win against the EPA could give environmentalists a legal advantage in future lawsuits over water degradation, Weaver said.
The Florida Wildlife Federation took an interest in the case out of concern that poor water quality and a threatened water supply negatively impacts wildlife populations statewide.
“The overarching question in this whole state is water quality and quantity,” said Preston Robertson, the group's vice president and chief counsel. “We've got too much nutrients flowing into the waters. We just think that the rules are not strict enough.”
State industrial leaders oppose stricter regulations, worried about the impact of costly pollution prevention and cleanup practices on businesses.
“Florida's got the best water quality program in the country,” said Doug Mann, who works for Tallahassee-based lobbying firm Associated Industries of Florida. “Two-thirds of the water quality data that EPA has is Florida-based. This [program] has been very comprehensive.”
Water quality, as a whole, likely has improved since 1972, when the Clean Water Act became law, officials with the lobbying group argue.
“[The EPA] has probably gone well beyond what [this lawsuit is] asking them to do anyway,” said Terry Cole, a lawyer for Associated Industries.
Gulfport Mayor Sam Henderson said he's concerned the Davises' lawsuit will interfere with the city's efforts to secure a BP cleanup grant to help restore Clam Bayou.
“This has been a very contentious issue in Gulfport for a long time,” he said. “While I respect the tenacity of what they're doing, I do not appreciate their tactic.”
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