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EPA Proposal for Numeric Nutrient Standards for Florida Waters has National Implications

February 3, 2010

In a rule with national implications, EPA has proposed numeric nitrogen and phosphorus standards for the state of Florida.[1] The rule could have potentially costly implications for any dischargers to Florida waters, including municipal wastewater utilities, industrial dischargers, and agriculture, among others. Nutrient discharges generally do not impact human health, but, in sufficiently high concentrations, can have ecological impacts by increasing algae blooms and robbing fish and other aquatic creatures of dissolved oxygen. Industrial and municipal dischargers dispute the level at which nutrient discharges produce adverse effects in varied water bodies, and have argued that the Florida rule fails to reflect the high variability of ecosystems, and could result in potentially huge costs to dischargers without a certain corresponding environmental benefit. Although strictly applicable to Florida only, EPA’s proposed numeric standards are widely seen as precedential for imposing similar standards nationwide. EPA has already pursued efforts to reduce nutrient loadings across the country and in concert with states under the total maximum daily load (TMDL) program.

Technical and Legal Background to Nutrient Water Quality Standards

Nutrients, such as nitrogen and phosphorus, are necessary 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. Properly regulating nutrients requires a highly technical understanding of the unique nutrient balance within highly varied ecosystems. Unlike most water quality criteria, which are based on a toxicity threshold determined using laboratory tests, the variability of ecosystem responses makes developing a cause/effect relationship between nutrient concentrations and ecological attributes much more difficult. Additionally, effective nutrient management requires methods to control discharges from a range of sources, such as those associated with urban land use and development, municipal and industrial wastewater discharge, agriculture, and atmospheric deposition that may be increased by production of nitrogen oxides in electric power generation and internal combustion engines.

Clean Water Act (CWA) Section 303(c) requires states to develop water quality standards and review and update those standards every three years.[2] Water quality standards must include designated uses of water bodies, water quality criteria that are necessary to protect those uses, expressed in either numeric or narrative form, and antidegradation components.[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, EPA is required to 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, 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.

Background to EPA’s Proposal

Florida’s growing population, flat topography, robust agricultural community, and warm, wet climate impact the effect that nutrient discharges have on Florida waters.[7] Florida currently implements a narrative nutrient criterion, which provides that “in no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna.”[8] Florida implements this criterion through site-specific detailed biological assessments together with outreach to stakeholders when deriving NPDES wastewater discharge permit limits, developing and implementing TMDLs, and assessing whether specific water bodies are “impaired” under CWA Section 303(d).

Not satisfied with these narrative standards, environmental groups sued EPA in July 2008 to force the agency to adopt numeric nutrient criteria for Florida. Initially, the environmental groups based their argument in part on a 1998 EPA document that opined that numeric nutrient criteria were necessary under the CWA, and that the agency would require states to develop numeric criteria if the states did not do so themselves by the end of 2003.[9] Plaintiffs alleged that EPA’s determination obligated the agency to propose numeric criteria for Florida under CWA Section 303(c)(4), because Florida had not done so. On January 14, 2009, EPA issued a determination under Clean Water Act Section 303(c)(4)(B) that numeric nutrient water quality standards were necessary for Florida to meet the requirements of CWA Section 303(c), because, despite Florida’s “proactive and innovative program to address nutrient pollution, the narrative criterion is insufficient to ensure protection of applicable designated uses.…”[10] The environmental groups amended their complaint to base their claim on that 2009 determination.

EPA and the environmental groups resolved their lawsuit in an August 2009 consent decree,[11] which a federal court approved in November 2009. EPA’s proposed rule fulfills the agency’s obligation under the consent decree to propose numeric nutrient criteria for lakes and flowing waters by January 14, 2010. Under the consent decree, EPA must finalize these criteria by October 15, 2010, propose criteria for estuaries and coastal water by January 14, 2011, and finalize those rules by October 15, 2011, unless Florida submits its own numeric nutrient criteria acceptable to EPA before a final EPA action.[12]

Foundation for Numeric Criteria in EPA’s Proposal

EPA’s proposal provides a lengthy description of the technical bases for the numeric limits it is proposing for lakes, streams and rivers, springs, and canals in Florida. One aspect of the proposal that could be of particular relevance to other states is the agency’s description of its concerns with Florida’s narrative standards. In the proposal, EPA acknowledges that Florida has spent over $20 million collecting and analyzing data related to nutrients and biological health in Florida waters, and that Florida “is one of the few states that has in place a comprehensive framework of accountability that applies to both point and nonpoint sources and provides the enforceable authority to address nutrient reductions in impaired waters based upon the establishment of site-specific total maximum daily loads.”[13] Despite these efforts, according to EPA, degradation of Florida’s water quality due to nutrient over-enrichment remains widespread, and could increase because of Florida’s expanding urban communities, agriculture development, and rapidly increasing population.[14]

EPA refers to Florida’s regulatory nutrient accountability system as an “impressive synthesis of technology-based standards, point source control authority, and authority to establish enforceable controls for nonpoint source activities,” but states that it is “insufficient to ensure protection of applicable designated uses.”[15] EPA’s primary criticism of Florida’s approach mirrors EPA’s opinion of narrative criteria generally: “Reliance on a narrative criterion to derive NPDES permit limits, assess water bodies for listing purposes, and establish TMDL targets can often be a difficult, resource-intensive, and time-consuming process that entails conducting case-by-case analyses to determine the appropriate numeric target value based on a site-specific translation of the narrative criterion.”[16] EPA’s assessment of narrative criteria as generally insufficient to control nutrient pollution could have broad implications for many states that do not themselves have numeric nutrient standards.

Reactions to and Impacts of EPA’s Proposed Rule

Because water quality standards are used in determining permit limits, EPA’s proposal is of immediate concern to Florida entities that discharge nitrogen or phosphorus into regulated water bodies, including industrial dischargers, municipalities with POTWs, stormwater management districts, and, potentially, nonpoint sources. Florida municipal and industrial dischargers have generally opposed the rule. A statement issued by a coalition of businesses, citizens, and associations opposed to the numeric standards refers to the proposed rule as a “de facto water tax from Washington that will impose major economic hardship on Florida’s battered economy with questionable benefits to our environment,” and asserts that “the federal government is imposing new regulations overnight on Florida and only on Florida – with no regard for the technical feasibility, the massive costs, or the devastating effects they will create for Florida’s struggling economy.”[17]

Beyond Florida, the proposal could be a harbinger of similar federal action in states that do not have numeric nutrient limits, a prospect that has certainly caught the attention of national stakeholders. For example, the spokesperson for the National Association of Clean Water Agencies referred to the proposal as a “one-size-fits-all approach” that it is “based on a statistical analysis of what the concentration of the nutrients are in a particular water body, and then applies it to all the water bodies,” which does not link “concentrations to impacts.”[18] EPA has for some time endorsed and supported state development of numeric nutrient criteria,[19] but many states have resisted their adoption. By 2008, half the states had not adopted numeric nutrient criteria, seven states had adopted numeric nutrient standards for at least one nutrient parameter for at least one entire waterbody type, and 18 states had adopted numeric nutrient standards for one or more parameters for part of one or more waterbody types.[20] In an August 2009 report, EPA’s Office of Inspector General criticized EPA’s efforts to encourage state adoption of numeric nutrient standards, and called on EPA to set and enforce such criteria in some circumstances.[21] Most recently, in an internal memorandum, EPA Administrator Lisa Jackson identified the challenge of addressing nutrient loadings as a priority in 2010, and stated that EPA will “work with states to develop nutrient limits.”

Some have suggested that, by investing the resources to develop the Florida rule, EPA now has a template that could be tailored to other states.[22] Even if EPA elects not to impose numeric nutrient standards, the success of the environmental groups’ lawsuit in Florida could pave the way for similar suits that will compel EPA to act in other states.[23] Last November, shortly after the Florida consent decree was finalized, environmental groups issued a notice of intent to sue EPA based on its failure to require numeric standards in Wisconsin, relying in part on the same 1998 document as the original Florida complaint.

EPA is accepting comments on the proposal until March 29, 2010, and is holding a series of public hearings on the rule in Florida.[24] Public comments on the proposal will likely come from stakeholders within and outside Florida, as stakeholders grapple with the potential impacts of EPA’s action, and will be reflected in EPA’s final rule later this year.

For more information on nutrient issues or Marten Law’s water quality practice, please contact Meline MacCurdy.

[1] 75 Fed. Reg. 4173 (Jan. 26, 2010).

[2] See 40 C.F.R. § 131.20.

[3] Id. §§ 131.6, 131.10-12; 33 U.S.C. § 1313(c)(2)(A).

[4] 33 U.S.C. §1313(c)(2)(A).

[5] Id. §1313(c)(3).

[6] Id. §1313(c)(4).

[7] See 75 Fed. Reg. at 4180.

[8] Id. at 4181 (quoting Florida Administrative Code (F.A.C.) 62-302-530(47)(b)).

[9] See EPA, National Strategy for the Development of Regional Nutrient Criteria, 63 Fed. Reg. 34648 (June 25, 1998); see also EPA, Clean Water Action Plan, 63 Fed. Reg. 14,109 (Mar. 24, 1998).

[10] 75 Fed. Reg. at 4181.

[11] For additional information regarding the August 2009 consent decree and related issues, see S. Brandt-Erichsen & J. Kray, EPA to Set Water Quality Criteria For Phosphorus and Nitrogen in Florida Waters, Paving the Way for Other States to Follow, Marten Law Group Environmental News (Sept. 15, 2009).

[12] See 75 Fed. Reg. at 4182.

[13] Id. at 4175.

[14] See id.

[15] Id.; see also id. at 4181-82.

[16] Id. at 4181; see id. at 4175 (identifying the same concerns with respect to Florida’s approach).

[17] Don’t Tax Florida.Com, Press release, U.S. EPA announces new water regulations Don't Tax Florida coalition releases joint statement (Jan. 15, 2010); see also Florida First State for EPA Nutrient Limits in Surface Waters, Environmental News Service (Jan. 18, 2010).

[18] T. Luntz, EPA Proposes Freshwater Nutrient Limits for Fla., a National First, N.Y. Times (Jan. 15, 2010).

[19] See EPA, Water Quality Criteria for Nitrogen and Phosphorus Pollution (stating that EPA’s “goal is to assist in the adoption of numeric nitrogen and phosphorus criteria, which will help states, territories, and tribes move toward establishing water quality standards for nitrogen and phosphorus”); EPA, State Adoption of Numeric Nutrient Standards 1998-2008, 3 (Dec. 2008) (stating that “EPA has made protecting and restoring the nation’s waters from nitrogen and phosphorus pollution a top priority,” describing EPA’s efforts to assist states in developing numeric nutrient standards, and stating that “EPA believes that numeric nutrient water quality standards provide an important foundation to accelerate, guide, calibrate, and evaluate the implementation of” other tools to address nutrient pollution, such as TMDLs, BMPs, trading, economic incentives, and technology-based controls).

[20] EPA, State Adoption of Numeric Nutrient Standards 1998-2008, 6 (Dec. 2008).

[21] EPA, Office of Inspector General, EPA Needs to Accelerate Adoption of Numeric Nutrient Water Quality Standards (Aug. 26, 2009).

[22] T. Luntz, EPA Proposes Freshwater Nutrient Limits for Fla., a National First, N.Y. Times (Jan. 15, 2010) (quoting David Guest, the attorney who brought the plaintiffs’ case, as saying that the Florida rule “is a prototype that will be followed by other states,” and that, if states do not follow, “EPA will be able to do this rather quickly, because they’ve done the hard work now”); Earthjustice, Judge Approves Historic EPA Settlement: EPA and Florida Must Set Limits on Fertilizer and Animal Waste Pollution in State Waters (Nov. 16, 2009).

[23] D. Guest, Earthjustice, Historic Decision to Limit Poisoning of Waterway (Nov. 18, 2009).

[24] EPA, Proposed Water Quality Standards for the State of Florida’s Lakes and Flowing Waters.

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