Beveridge & Diamond
 

EPA Proposes Freshwater Nutrient Criteria for Florida, Other States May Follow

Beveridge & Diamond, P.C., January 22, 2010

On January 15, 2010, the Environmental Protection Agency (“EPA”) released proposed freshwater nutrient water quality criteria for Florida.  A pre-publication copy is available from EPA at http://www.epa.gov/waterscience/standards/rules/florida/.  The proposal represents EPA’s first effort to establish numeric nutrient criteria for any state under Section 303 of the Clean Water Act (“CWA”).  It is not expected to be the last, however.

EPA’s proposal is designed to meet the terms of an August 2009 phased consent decree reached with the Florida Wildlife Federation, which challenged the narrative pollutant standards currently in place in Florida.  See Florida Wildlife Federation v. Johnson, No. 4:08-cv-324 (N.D. Fla. Nov. 16, 2009).  The Agency determined that those narrative standards, which articulate acceptable levels of phosphorus and nitrogen based on visible algal blooming, are inadequate for protecting water quality within the state.  As a result, EPA committed to establishing numeric nutrient criteria for Florida’s lakes and flowing waters by October 2010 and for the state’s estuarine and coastal waters by October 2011.

The proposed freshwater nutrient criteria are intended to address the first of these commitments.  The draft rule, which EPA developed in collaboration with the state of Florida, would establish a series of numeric concentrations for phosphorus and nitrogen in four freshwater body types:  lakes, rivers and streams, springs and clear streams, and canals.  Each water body type would be assigned its own water quality criterion based on EPA’s analysis of nutrient concentrations in representative waters within the state.  The proposed criteria thus represent EPA’s assessment of the ambient nitrogen and phosphorus levels that are necessary in order to achieve the water quality objectives (designated uses) in each type of fresh water system.

The draft nutrient criteria for each designated body type are complicated and highly controversial: 

  • Lakes - EPA proposes to divide Florida’s lakes into three groups – colored, clear/alkaline, and clear/acidic – and to assign total nitrogen (“TN”), total phosphorus (“TP”), and chlorophyll-a criteria to each group.  These classifications reflect the Agency’s understanding that lake color and alkalinity play a significant role in the extent to which TN and TP concentrations result in a “biological response,” such as an elevated level of chlorophyll-a, in the lake.  Thus, the criteria will account for the biological response to TN and TP levels in the state’s lakes.  If sufficient data exist for a particular lake, however, the proposal would allow that lake’s TN and TP levels to be adjusted within a designated range as long as its chlorophyll-a criteria still would be met.
  • Rivers and Streams - For Florida rivers and streams, EPA proposes to divide the state into four separate watershed-based regions, each with its own TN and TP standards.  The Agency developed numeric nutrient criteria for each of these regions by evaluating biological information and data on the distribution of nutrients in healthy streams within the respective regions.  It then created criteria that the Agency believes are capable of protecting downstream lake and estuary water quality standards.  The proposal would allow the TP criteria to be adjusted if needed to better protect downstream lakes and the TN criteria to be adjusted to maximize protection of estuaries. 
  • Springs and Clear Streams - The proposed criteria for springs and clear streams are similarly complicated.  For these waters, EPA favors a nitrate-nitrite criterion based on the Florida Department of Environmental Protection’s (“DEP”) “experimental laboratory data” and field evaluations documenting the response of species of nuisance algae to nitrate-nitrite concentrations.  In addition, EPA will apply the same TN and TP criteria to clear streams that it developed for rivers and streams in the same watershed, while foregoing setting TP criteria for springs due to the historical presence of phosphorus in those waters.  The Agency is not proposing a chlorophyll-a criterion for springs and clear streams due to the lack of available data for this response variable in spring systems.
  • Canals - EPA’s approach for Florida canals is similar to that for rivers and streams.  The Agency intends to divide the state into four regions and impose TN and TP criteria based on the concentrations of those nutrients in canals that are meeting their designated uses.  EPA also favors a chlorophyll-a criterion for canals because, unlike streams, the Agency believes that chlorophyll-a is an appropriate indicator of nutrient impairment in canals and is therefore suitable for regulation.  

In addition to proposing these specific numeric nutrient criteria, EPA is proposing new “restoration water quality standards” for impaired waters in Florida.  According to the Agency, this regulatory mechanism would allow the state to set “enforceable incremental water quality targets (designated uses and criteria)” for nutrients, while retaining existing criteria for all other parameters.  Employing such standards would permit the state to set progressively more stringent designated uses and pollutant criteria over time to help restore a water body to its full designated use.  Thus, the state could work to meet interim milestones for impaired waters that are expected to take a long time to achieve full designation, and the interim less-stringent designated uses and criteria could be used to establish enforceable requirements while they are in effect.

The Agency believes that some states would prefer to use the step-wise approach of its proposed restoration standards instead of the traditional method of adopting a stricter standard at the outset only to later allow variances upon demonstration that a water body fails to meet the established standard.  This new mechanism, EPA explains, would allow Florida to rely on a flexible combination of limits for end-of-pipe, or point source, discharges and limits for nonpoint source runoff to achieve water quality standards in the long term.

On the state level, Florida DEP recently initiated a review of designated uses and has proposed revisions to the state’s surface water classification system.  A copy of the proposed rule revisions is available at http://www.dep.state.fl.us/secretary/designateduse.htm.  The Department is accepting public comments and intends to present the proposed rule revisions to the Florida Environmental Regulation Commission in either April or May, 2010.  In addition, the Department initiated its own development of numeric nutrient criteria for estuarine waters and has recently asked members of the scientific community in Florida for assistance in gathering and synthesizing relevant data and studies.  The State intends to provide this information to EPA by July, 2010 as a means of participating in the Agency’s effort to establish criteria for estuarine and coastal waters.

The implications of EPA’s proposed numeric nutrient criteria and restoration standards for Florida are far-reaching.  Many stakeholders are following the development of the draft criteria very closely.  Industrial and agriculture groups have registered concerns, noting in particular the novel scientific methods used by EPA to derive the proposed criteria and the fact that technology to treat nutrients in accordance with the new numeric criteria does not exist for many categories of dischargers.  These groups are concerned that these factors will make EPA’s proposal tremendously expensive, raising the issue of the significant costs that will be necessary to try to achieve the new criteria, with potentially marginal water quality benefits.  In addition, the proposed restoration standards present a new set of uncertainties for potentially affected dischargers.  While the incremental approach allows the regulated community more time to attain the requirements by imposing more achievable interim standards, the gradual increase in obligations may culminate with an excessively burdensome standard, one made possible primarily by the procedural mechanism and not necessarily reflecting sound science.

It is anticipated that similar nutrient criteria and restoration standards will begin to appear in many other states, even as the Florida regulation winds a slow path through EPA’s rulemaking process and then through the litigation that is sure to follow.  Meanwhile, the Agency plans to move forward with plans to propose its nutrient criteria for Florida’s estuarine and coastal waters by January 2011 and finalize these additional standards by October 2011. 

EPA has submitted the proposed Florida freshwater nutrient criteria and restoration standards for publication in the Federal Register.  Upon publication, a 60-day public comment period on the proposal will begin. 

For more information about EPA’s new nutrient criteria initiative and its implications, please contact Karen Hansen at (202) 789-6056 (khansen@bdlaw.com) or Richard Davis at (202) 789-6025 (rdavis@bdlaw.com).  This summary was prepared with the assistance of W. Parker Moore and Geoffrey R. Goode of Beveridge & Diamond, P.C. 

Overview

News

Presentations

Media Contact





Attorney Contacts
Attorney Contacts