EPA to Set Water Quality Criteria For Phosphorus and Nitrogen in Florida Waters, Paving the Way for Other States to Follow

EPA, in a potentially precedent setting consent decree, has agreed to set numeric water quality criteria for nitrogen and phosphorus in Florida’s waters. Nitrogen and phosphorus are “nutrients” commonly found in fertilizers. In sufficiently high quantities, discharges of these nutrients into rivers, streams, and other water bodies can cause algae blooms and excessive vegetation which, in turn, can rob oxygen from fish and other organisms. Florida already has a qualitative, narrative criterion for nutrients, but no specific numeric limits. Under the consent decree, EPA must propose nutrient criteria for Florida’s lakes and streams by January 2010, and for coastal waters and estuaries by January 2011.

While the decree only affects Florida, it has the potential to set a precedent in other states with waters heavily impacted by nutrient discharges. Water bodies that are impaired may need to be protected by removing nutrients from waste discharges and from groundwater before it enters surface waters. Such measures can be extremely costly, and their environmental benefit is sure to be hotly debated.

In January, 2009 EPA formally determined that numeric criteria are needed to effectively protect designated uses of Florida’s waters.[1] The State of Florida has spent over $20 million in the last decade collecting data and evaluating the relationship between nutrient levels and biological impacts, seeking to correlate biological data with numeric nutrient criteria. EPA’s January 2009 determination effectively forces the State to bring that process to a conclusion or accept EPA’s adoption of criteria on the State’s behalf. EPA’s determination triggered an obligation under Clean Water Act (“CWA”) Section 303(c)(4) for EPA to “promptly” propose criteria on the State’s behalf, if the State failed to do so on its own.[2] The recent consent decree is based upon that provision of the CWA. The time line in the consent decree is the same one EPA proposed to the State in EPA’s January 2009 determination. EPA said in January, and has now reiterated in connection with the consent decree, that it intends to rely on Florida’s technical work and stakeholder outreach, which has been ongoing in 2009, in developing numeric nutrient criteria for Florida’s waters.

Legal Basis For Water Quality Criteria

Under CWA Section 303, states are required to establish water quality standards, and to review and update those standards at least every three years. These standards must include water quality criteria, which define the amounts of pollutants, in either numeric or narrative form, that the waters can contain without impairment of their designated beneficial uses. They also include the actual designation of beneficial uses, such as water supply, recreation, fish propagation, or navigation, and antidegradation requirements.[3]

States must submit their water quality standards to EPA for review and approval.[4] If EPA finds that a state’s proposal for one or more criteria is inadequate, it must notify the state, which then has 90 days to revise its standards in response to EPA’s concerns.[5] If the state does not do so, then EPA is supposed to “promptly” propose a federal standard that will apply to that state. Similarly, if EPA, independent of any state proposal, determines that a state needs a new or revised standard, and the state fails to act, then the CWA directs EPA to propose the new or revised standard for that state.[6] If the state proceeds to develop its own standard while EPA is engaged in the rulemaking process, and the state standard is acceptable to EPA, then the CWA allows EPA to approve the state standard and abandon its own effort.[7]

Setting Water Quality Criteria For Nutrients

The difficulty in setting water quality criteria for nutrients is defining how much is too much of a good thing. Nitrogen and phosphorus are necessary nutrients for all properly functioning biological communities. However, excessive nitrogen and phosphorus in water bodies can cause algae blooms, encourage the growth of nuisance vegetation, and reduce dissolved oxygen concentrations, which can harm fish and wildlife and damage or reduce habitat.[8]

Most water quality criteria are based on a toxicity threshold determined using laboratory tests, which demonstrate that higher concentrations are harmful, and a level can be established below which few or no adverse responses are observed.[9] It can be much harder, however, to develop a cause/effect relationship between nutrient concentrations and ecological attributes, because of variability in ecosystem responses.

States have taken different approaches to regulating nutrients. Some have adopted simple numeric criteria for total phosphorus, total nitrogen, and chlorophyll-a. Others have differentiated their criteria by type of water body, such as lakes, rivers, and estuaries. Some states have standards expressed as effluent limits rather than ambient water quality criteria. Some states have proposed or adopted different criteria to protect different water uses such as recreation, aquatic life, or drinking water.[10]

Some states (Minnesota and North Carolina) have proposed ecoregional criteria, where different levels of phosphorus are specified for each ecoregion to prevent nuisance levels of algae. The criteria depend on several factors relating to water uses and land use and vegetation within an ecoregion.[11] Florida also has been pursuing the ecoregion approach.

Florida & Nutrient Criteria

Florida currently implements a narrative nutrient criterion that states, “[i]n no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural population of flora or fauna.”[12] Florida’s goal is to strike a balance between providing adequate nutrients to sustain aquatic life while not providing excessive nutrients which alter the aquatic ecosystem. Currently, Florida implements this criterion through site-specific detailed biological assessment together with site-specific outreach to stakeholders.[13] It does this when deriving NPDES wastewater discharge permit limits, developing total maximum daily loads (“TMDLs”) for watersheds, and assessing whether specific water bodies are “impaired” under CWA §303(d).

EPA noted that this is a difficult, lengthy, and data-intensive undertaking,[14] and ultimately concluded that the existing process was too time consuming, given the widespread degradation of Florida’s water quality due to nutrient over-enrichment.[15] This appears to have been the main justification supporting EPA’s January, 2009 determination that numeric nutrient criteria are needed for Florida’s waters.[16]

Florida recognized the same problem, and for many years has worked on developing specific numeric nutrient criteria to complement its narrative criterion. However, this has proved difficult.

Florida’s approach to developing nutrient criteria recognizes that each water body can have very different and unique nutrient requirements, with variation occurring across regions of the State as well as across types of water bodies.[17] To respond to that variability, the State set out to develop a reliable measure of each water body’s biological condition, allowing it to then develop thresholds at which a healthy aquatic environment can be sustained. The State has recently developed measure to assess the biological condition of lakes – the Lake Condition Index (measuring plants) – and for streams – the Stream Condition Index (measuring insects) – and is currently working on an additional stream biology measurement (measuring plants). Florida then launched an effort – still ongoing – to evaluate the effects of varying nutrient conditions on these biological measurements.

Florida also recently revised its Impaired Waters Rule to include numeric nutrient impairment thresholds. These thresholds helped the State expedite water assessments, but were set for variables that measure the response to nutrient over-enrichment (like levels of algae in the water), rather than the numeric concentration of nutrients. Also, Florida still must perform site-specific assessments of water bodies that are below the “impairment” thresholds. Development of numeric nutrient criteria is expected to help expedite both developing permit limits and identifying waters impaired by nutrients.

EPA’s January, 2009 declaration that numeric nutrient criteria are needed for Florida’s waters recognized the State’s ongoing efforts. EPA issued a press release along with its declaration making the same point, and suggesting that EPA’s determination was “intended to build upon the substantial investments that Florida had made to date in nutrient data collection, analysis, and stakeholder involvement.”[18] EPA also said it intended to continue working closely with the State on developing these criteria.

Litigation Over Florida’s Nutrient Criteria

In July, 2008 Florida Wildlife Federation and other environmental groups sued EPA in an attempt to compel the adoption of numeric nutrient criteria. Specifically, the lawsuit claims that under a 1998 “Clean Water Action Plan”, EPA had previously determined that numeric nutrient criteria are necessary under the CWA. The lawsuit further alleged that, given this determination, EPA was obligated by CWA Section 303(c)(4) to promptly propose such criteria for any state, such as Florida, that did not itself adopt numeric criteria.

EPA never agreed that the 1998 Action Plan constituted a formal determination that numeric nutrient criteria are necessary. But after EPA issued its determination in January, 2009 that numeric criteria are needed in Florida, the environmental groups amended their complaint to base their claim on that new determination. The consent decree between EPA and the environmental groups resolves these claims. It requires EPA to propose numeric nutrient criteria for Florida on the schedule the agency itself had proposed in its January 2009 determination, and to finalize those criteria by October, 2010 for lakes and streams, and by October, 2011 for estuaries and coastal waters.

When EPA issued its January 2009 determination, it appeared that Florida still intended to develop its own numeric criteria for nutrients. The State issued a notice of rule development for the adoption of numeric nutrient criteria on January 30, 2009. In March, 2009 the State released a detailed Numeric Nutrient Criteria Development Plan. If the State were to act before the deadlines set out in the consent decree, then EPA would no longer be obligated to adopt its own criteria.

But the State’s public comments after the EPA consent decree was announced suggest it is now prepared to defer to EPA. The Secretary of Florida’s Department of Environmental Protection (“DEP”) said; “[t]o ensure that there is no duplication of work, we will continue to work with EPA in the same manner they have worked with us as they develop the criteria.”[19] He also said that his agency looks forward to EPA presenting its criteria to DEP and Florida stakeholders.

Regardless of whether it is the State or EPA that now takes the lead, the recent consent decree assures (absent new developments) that numeric nutrient criteria for Florida’s lakes and streams will be proposed next January, with proposed criteria for estuaries and coastal waters to follow a year later. The State of Florida apparently will continue advocating for standards tailored to the State’s varied ecoregions, although it is not clear that the State will be prepared to propose specific numeric standards. It remains to be seen whether EPA will agree.

For more information on nutrient issues and Marten Law Group’s water quality practice please contact Svend Brandt-Erichsen or Jeff Kray.