The federal Clean Water Act (CWA) requires all states to adopt water quality standards (WQS) for the water bodies within their states. The U.S. Environmental Protection Agency (EPA) is required to review and approve these water quality standards. Under the CWA, water quality standards consist of both designated uses (e.g., designated for drinking water, for shellfish harvesting, or to be fishable and swimmable) and the water quality criteria established to protect the designated use. If a state water quality standard is determined to be inadequate to comply with the requirements of the CWA, then EPA must disapprove the standard, and if the state fails to adopt a standard that is adequate for EPA to approve, then EPA must step in and adopt its own water quality standard for that water body in that state. Many, but not all, water quality criteria are expressed as numeric limitations on the concentration of particular pollutants that can be in a particular water body without interfering with the designated use of that water body. For many years the state of Florida has had a narrative water quality standard for nutrients in its water bodies. The narrative standard 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 flora or fauna.” However, because it is difficult to enforce such a vague standard and because Florida’s waters continue to be degraded by nutrient inputs, the Florida Department of Environmental Protection (FDEP) has been under pressure for many years to develop more specific numeric nutrient criteria.
In 2008, the Florida Wildlife Federation and four other environmental organizations filed a lawsuit against EPA, asserting that because the state of Florida had not yet adopted numeric nutrient criteria, the CWA obligated EPA to establish them. The Florida Department of Agriculture and Consumer Services, the South Florida Water Management District (SFWMD), and 11 trade associations intervened in the case. In 2009, EPA determined that because of the large numbers of water bodies in Florida that are currently impaired by nutrients and because the numbers of nutrient-impaired waters in Florida continue to grow,
Florida’s existing narrative nutrient standards were not adequate and numeric nutrient criteria for nitrogen and phosphorus were necessary. Accordingly, EPA entered into a consent decree with the Florida Wildlife Federation and in December 2010 published its rule for a numeric nutrient standard for inland freshwater bodies in the state of Florida (excluding South Florida canals). EPA’s rule established numeric criteria for chlorophyll a, total nitrogen (TN), and total phosphorus (TP) for three categories of lakes (colored lakes, clear lakes with high alkalinity, and clear lakes with low alkalinity) and TN and TP criteria for streams, depending on the watershed in which the streams are located. EPA has also indicated that it planned to propose a second rule in the future, which would establish a numeric nutrient standard for estuaries, coastal waters, and South Florida canals. Although EPA’s numeric nutrient standards will not apply directly to the Everglades Protection Area, which already is subject to the numeric criterion of 10 parts per billion (ppb) total phosphorus (TP), the estuary and coastal waters numeric nutrient criteria may have significant implications for the Everglades because run-off and discharge from both Lake Okeechobee and the Everglades ultimately reach estuaries and coastal areas.
The state of Florida, the Florida Commissioner of Agriculture, the SFWMD, and 22 other organizations brought legal challenges to EPA’s 2009 determination and numeric nutrient criteria rule. On February 18, 2012, the U.S. District Court for the Northern District of Florida issued an order on these consolidated cases, which “upholds the [EPA] Administrator’s determination that ‘numeric nutrient criteria are necessary for Florida waters to meet the Clean Water Act’s requirements,’ upholds the Administrator’s lake and spring criteria, invalidates the stream criteria, upholds the decision to adopt downstream protection criteria, upholds some but not all of the downstream protection criteria, and upholds the Administrator’s decision to allow—and the procedures for adopting— site-specific alternative criteria.”1 Pursuant to the court’s order, most of EPA’s rule has been determined to be valid and was to “take effect on March 6, 2012—or an extended date approved by the court under … the consent decree—unless by that date the provision has been superseded by a Florida rule that the [EPA] Administrator has approved.” EPA has proposed an extension of the effective date of the rule until October 6, 2012.2 With regard to the two aspects of the rule that the court found to be invalid—numeric nutrient criteria for Florida streams that are not in the South Florida Region, and downstream protection criteria for unimpaired lakes—the EPA plans to issue a revised rule by November 30, 2012.
1Florida Wildlife Federation, Inc. et al., v. Lisa P. Jackson, etc., et al., Order on the Merits (Consolidated Case No. 4:08cv324-RH/WCS, February 18, 2012.
On April 22, 2011, FDEP petitioned EPA to withdraw its January 2009 determination that numeric nutrient criteria are necessary in Florida and to repeal its November 2010 numeric nutrient criteria for lakes and streams. The FDEP asserted that because it is committed to developing its own numeric criteria for waters in Florida, the EPA criteria are not necessary. The petition stated that FDEP was committed to develop and formally adopt its rule by January 2012, followed by legislative ratification under Florida law. On June 13, 2011, EPA sent an “Initial Response” to FDEP’s petition stating that “EPA is prepared to withdraw the federal inland standards if FDEP adopts, and EPA approves, their own protective and scientifically sound numeric standards.” On October 24, 2011, FDEP submitted its draft numeric nutrient criteria rule to EPA, and EPA responded with support for FDEP’s efforts, stating its preliminary conclusion that EPA would approve the October 2011 draft rule. EPA stated its belief “that the proposed regulatory numeric criteria developed by FDEP represent very significant progress in protecting the State’s unique aquatic resources.” EPA noted, however, that final approval or disapproval of FDEP’s numeric nutrient criteria rule would follow normal review of the rule and record.
On December 8, 2011, the Florida Environmental Regulation Commission (ERC) modified and approved FDEP’s final rule for adoption (Chapters 62-302 and 62-303, F.A.C.; see Box E-1). The final rule approved by ERC incorporated two rule provisions that were not included in the initial proposed rule submitted to EPA on October 24, 2011: one exempting certain types of water bodies and conveyances from the definition of “stream,” and another affirming that the “rules shall be effective only if EPA approves these rules in their entirety, concludes rulemaking that removes federal numeric nutrient criteria in response to the approval, and determines, in accordance with 33 U.S.C. § 1313(c)(3), that these rules sufficiently address EPA’s January 14, 2009 determination.” Additional details on the amended rule are provided in Box E-1. Governor Scott signed the bills into law in February 2012, and the Florida numeric nutrient criteria were subsequently submitted to EPA for approval.
On December 1, 2012, the Florida Wildlife Federation and other environmental groups filed an administrative rule challenge seeking to invalidate FDEP’s proposed numeric nutrient rules, asserting that certain provisions of the rules are invalid exercises of delegated legislative authority. The challenge asserted that, “contrary to FDEP’s claims, the rules are not designed to protect state waters from the adverse impacts of nutrient overenrichment. Instead, these rules go so far as to prevent a finding of impairment due to nutrients until the waterbody is covered with nutrient-fueled toxic blue-green algae (cyanobacteria).” In June 2012, the administrative law judge hearing the rule challenge upheld FDEP’s numeric nutrient criteria rule. On June 13, 2012, FDEP submitted a letter to EPA enclosing the administrative order upholding FDEP’s rule, stating that FDEP intends to
FDEP’s Proposed Numeric Nutrient Criteria
The FDEP numeric nutrient criteria final rule (F.A.C. 62-302.531) sets forth a complex scheme of “numeric interpretations” of the existing narrative nutrient standard, which will continue to apply to all water bodies in the state. A numeric interpretation of the narrative standard and biological measurements are added for each water body using a hierarchical approach, depending on whether and what type of site-specific numeric thresholds have already been established for that water body. There are three main standards under this hierarchy. Under the first standard, “where a site specific numeric interpretation of the [narrative] criterion [… ] has already been established by the Department, this numeric interpretation shall be the primary interpretation.” Where there are multiple such interpretations for a water body, the rule dictates that FDEP’s most recent interpretation shall apply. The rule identifies the following as the primary site-specific interpretations: total maximum daily loads (TMDLs) “that interpret the narrative water quality criterion for [… ] one or more nutrients or nutrient response variables” listed in the rules; “site specific alternative criteria (SSAC) for one or more nutrients or nutrient response variables” established in the rules; “estuary-specific numeric interpretations of the narrative nutrient criterion established” in the rules; or “other site-specific interpretations for one or more nutrients or nutrient response variables that are formally established by rule or final order” by FDEP. If the first standard is not applicable for a specific water body, under the second standard the numeric interpretation of the narrative criteria would be based on “an established, quantifiable cause-and-effect relationship” between nutrient concentrations and impacts to the aquatic biology. The rule establishes no numeric nutrient threshold for streams in the South Florida region; the narrative criterion continues to apply to streams in this area. The FDEP rule excludes certain man-made ditches, canals, and other conveyances, as well as wetlands, certain non-perennial water segments, portions of streams that exhibit lake characteristics, and tidally influenced stream segments from the definition of “stream” within the rule; as such, the narrative standard continues to apply to these bodies until numeric interpretations can be scientifically established.
move forward to adopt numeric nutrient criteria for coastal and estuarine waters and urging EPA to favorably consider FDEP’s petition requesting that EPA repeal its federally promulgated rule. As of May 2012, EPA had not yet responded to FDEP’s request. If EPA finds FDEP’s rule to be adequate and thus repeals the federal rule, the FDEP rules will be the governing numeric nutrient criteria rule. If EPA finds FDEP’s Rule to be inadequate and declines to repeal the federal rule, the portions of the EPA Rule upheld by the court will go into effect. EPA has proposed an extension of the effective date of that rule until October 2012.