The following article appeared in the Tallahassee Democrat:
Seminole Tribe seeks halt to water standards amid appeal
Jim Saunders, The News Service of Florida 2:33 p.m. EDT October 4, 2016
After losing an initial legal round, the Seminole Tribe of Florida is asking a judge to block the state Department of Environmental Protection from moving forward with controversial new water-quality standards while an appeal plays out.
The tribe, in a document filed in the state Division of Administrative Hearings, requested a stay and pointed, in part, to concerns that the new standards would allow higher levels of some chemicals that could affect fish and other wildlife eaten by tribal members.
“For certain pollutants, the Seminole Tribe’s own analysis is already finding levels of the chemicals in the tissue of species that the Seminole Tribe eats as part of its cultural practices above the screening levels identified as levels of concern in DEP’s (the Department of Environmental Protection’s) own technical documents,” the tribe filing said. “Relaxation of the standards for those chemical constituents is likely to lead to an increase in the levels of these chemicals in the fish and aquatic animals that the Seminole Tribe consumes as part of its cultural practices, thereby depriving the Seminole Tribe of consumption rights that are secured both by federal law and by settlement agreements to which both the Seminole Tribe and the state are a party. The exacerbation of environmental contamination of a food source that is an important part of tribal culture and that is expressly recognized as a secured right of the Seminole Tribe constitutes a significant, concrete harm that is irreparable; once the traditional food sources are contaminated, there is no easy way to alleviate the contamination and restore the Seminole Tribe’s cultural rights.”
The request for a stay came Friday as the tribe filed a notice that it was appealing a decision last month by Administrative Law Judge Bram D.E. Canter, who rejected a series of challenges to the water-quality standards. The tribe filed the notice in the 2nd District Court of Appeal. The city of Miami, which also challenged the standards before Canter, has appealed in the 3rd District Court of Appeal.
The standards, which were developed by the Department of Environmental Protection and approved July 26 by the state Environmental Regulation Commission, have been controversial for months. 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.
Canter tossed out challenges filed by the Seminole Tribe, the city of Miami, Martin County and Florida Pulp and Paper Association Environmental Affairs, Inc. Canter sided with the Department of Environmental Protection in ruling that the challengers did not meet a legal deadline for filing the cases in the Division of Administrative Hearings — a position disputed by the tribe and the city of Miami.
The standards are technically known as a rule, which has to go through an adoption process. In the request for a stay, the Seminole Tribe said the Department of Environmental is expected Monday to formally file the rule for adoption.
The department then will be required to file the rule with the U.S. Environmental Protection Agency for review under the federal Clean Water Act. The EPA can approve or reject the rule.
The tribe is seeking the stay to at least temporarily halt state adoption of the rule amid the appeal. In the document filed Friday, the tribe said that “if the EPA review process is completed before the appeal, the proposed rule will authorize higher levels of certain chemical constituents to enter waters in which the Seminole Tribe has a right to frog, hunt, and fish.”
As of Tuesday morning, the state Division of Administrative Hearings website did not include any filings in response to the request for a stay.