News Section: Environment
Both EPA and DEP are Bidding for Florida Water
BRADENTON -- Judge Hinkle's ruling on Friday, Feb. 17, in Tallahassee is said to be a victory for environmentalists. His decision: Uphold the limits set by the EPA in 2009, and meet the requirements of the Clean Water Act; His position: The Clean Water Act requires a state to set their limits, and if they fail to act, the EPA adopts the water-quality “criteria” to protect a state’s designated “uses” of its waters. The criteria must be based on sound science, and this is where the state and the EPA disagree. The Florida Department of Environmental Protection (FDEP) adopted long ago a narrative criterion for nutrients: “nutrient concentrations of a body of water must not be altered so as to cause an imbalance in natural populations of aquatic flora or fauna.”
The FDEP has always objected to the 2009 limits, claiming they were not based on sound science. Last November, the FDEP prepared a draft setting their own acceptable numeric limits and many environmentalists worried the EPA would accept what the FDEP proposed.
Earthjustice filed a lawsuit in 2008 on behalf of the Conservancy of Southwest Florida, Florida Wildlife Federation, the Environmental Confederation of Southwest Florida, the Sierra Club and St. Johns Riverkeepers, claiming the Clean Water Act was not being enforced in Florida.
Judge Hinkle's decision in favor of Earthjustice clients, have rules that must take effect by March 6, and it came in on the heels of Florida Governor Rick Scott's signing into law, Senate Bill 2060 / House Bill 7051. Both bills allow the FDEP to propose limits on the amount of phosphate and nitrogen that run into the state's rivers and lakes, but 2060/7051 would still have to be approved by the EPA.
But the state isn't stoping there. U.S. Representative, Steve Southerland, R-Florida, sponsored House Resolution 3856, the State Water Partnership Act of 2012, guaranteeing an end to EPA's efforts to control water nutrients in Florida. The Clean Water Act already gives a state the primary role in setting its water-quality standards. But the law gives the EPA Administrator a role as well. The state must submit its standards to the EPA Administrator for approval and that final approval is what HR 3856 attempts to eliminate. It currently has 11 sponsors and has made it through committee.
Two years ago, the Florida environmental groups represented by Earthjustice claimed Florida lakes and rivers suffered from some of the poorest conditions in the country. The EPA came forward and set numeric standards to control what nutrients go into the states waters, known as the Florida-specific rules.
The EPA adopted lake and spring criteria based on modeling and field studies designed to determine the level at which an increase in nutrients ordinarily causes harmful effects. The FDEP sees this as acceptable, but it's the rules governing streams that opponents claim are based on faulty science.
The EPA rules include provisions for downstream-protection criteria that are referred to as DPVs (Downstream-Protection Values). DPVs are limits on nutrients—total phosphorus and total nitrogen—at a stream’s point of entry into a lake, dubbed the “pour point.” If a nutrient level exceeds the criterion at the pour point, the entire upstream watershed is deemed impaired.
Opposition to this Florida-specific rule stems from fears that the cost to implement resolve would be detrimental, having a negative economical impact that could be a job killer. Opponents believe the FDEP would do a better job. Farmers, miners and utility companies say there needs to be exceptions in cases where it becomes a game changer economically. The EPA Administrator recognized that specific conditions may make it appropriate to raise or lower the nutrient criteria for a specific water body or set of water bodies. The rule thus authorizes and establishes a specific procedure for adopting, site-specific alternative criteria (SSAC).
Any person, including the state, may submit an SSAC application to the EPA’s Regional Administrator. The applicant bears the burden of demonstrating, with appropriate supporting documentation, that the proposed SSAC is based on sound science and meets the requirements of the Clean Water Act and its implementing regulations.
This is the major "technical detail" that have both sides claiming victory. Florida Attorney General Pam Bondi has challenged the nutrient criteria established by EPA, but embraces the SSAC, or more commonly known as a "variance." It is a process that exempts applying the rules under certain conditions and leaving it up to circumstantial interpretation.
These decade-long disputes, jockeying over principals, never seem to escape business as usual. Governor Scott says the FDEP rule change will be heard by Administrative Law Judge Bram D. E. Canter at the Department of Administrative Hearings Feb. 27, 2012 in Tallahassee.
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