EPA Approves Florida's Rules on Nutrient Pollution

The Environmental Protection Agency has approved Florida Department of Environmental Protection (FDEP) rules that are designed to protect about 15 percent of Florida’s waterways from excess nitrogen and phosphorus, but still plans to impose federal numeric nutrient limits on the amount of nutrient pollution allowed in about 85 percent of the state’s waters.

Jan 1st, 2013
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The Environmental Protection Agency has approved Florida Department of Environmental Protection (FDEP) rules that are designed to protect about 15 percent of Florida's waterways from excess nitrogen and phosphorus, but still plans to impose federal numeric nutrient limits on the amount of nutrient pollution allowed in about 85 percent of the state's waters.

"Nutrient pollution threatens human health and the environment, hurts businesses, costs jobs, reduces property values and otherwise impacts the quality of life for all Floridians," said EPA Regional Administrator Gwen Keyes Fleming.

The Sierra Club, Florida Wildlife Federation and other environmental groups sued the EPA four years ago over nutrient pollution in Florida waterways. When EPA settled the suit, it agreed to impose tough new numerical nutrient limits, which prompted a political backlash from state officials, utilities and agricultural groups.

The Clean Water Act (CWA) envisions states being primarily responsible for protecting water quality, and at the time EPA said it fully supported Florida's efforts to implement its own water quality standards.

Faced with a court-imposed deadline, on Nov. 30, EPA determined that FDEP's new method of deriving numeric limits for the amount of nutrient pollution allowed in lakes, springs, streams and some estuaries was technically and scientifically sound, and more effective and efficient than the previous narrative approach.

The numeric limits for nitrogen and phosphorus are virtually identical to those in EPA's 2010 rule. FDEP also has adopted additional biological and chemical indicators that are used to identify and prevent nutrient pollution in streams and to protect sensitive downstream waters. This combination of numeric limits with biological indicators was used in Florida's Santa Fe River. Although the river met the numeric limits, FDEP was able to use biological information to determine that it was impaired and needed restoration.

While EPA has accepted the FDEP rules, the agency felt the rules did not go far enough. In accordance with a 2009 consent decree with the Florida Wildlife Federation - and because the state's rules do not cover certain waters - EPA is also proposing two federal nutrient rules. One rule proposes numeric limits on the amount of nutrient pollution allowed in Florida's estuaries and coastal waters, as well as streams in South Florida, which were not addressed in Florida's rules. The other clarifies some provisions in the 2010 rule EPA promulgated establishing numeric limits on the amount of nutrient pollution allowed in Florida's inland waters. These provisions were remanded to EPA for further action by the District Court.

FDEP officials said they were disappointed the EPA would impose federal rules on any part of the state.

"While the EPA has approved the state's criteria, we are disappointed about EPA's decision to issue new proposed federal rules," the state agency said in a statement. "We will work with them to craft solutions that will allow the state to assume all nutrient criteria rulemaking in Florida."

Chris Hornback, Senior Director, Regulatory Affairs, at the National Association of Clean Water Agencies, said under the Clean Water Act states should be responsible for developing their own water quality standards.

"EPA wanted more time beyond the Nov. 30 deadline to help get the Florida rule up to covering more waters in the state, but they didn't get that time," Hornback said. "So, while we still have a fairly heavy federal presence in Florida, the overall message is that EPA wants to do everything they can to get the state rule to the point where they can back off and let the state standards protect state waters."

Florida recently adopted nutrient rules for Panhandle estuaries, and EPA expects FDEP will soon submit the new rules for EPA's formal review and approval under the Clean Water Act.

EPA is accepting public comment on its proposed rules and will host public information sessions in Tampa on January 17-18, 2013, along with web-based public hearings on January 22-24, 2013. While EPA must finalize the remanded portions of Florida's inland waters rule by August 31, 2013, and the coastal waters rule by September 30, 2013, the agency is prepared to withdraw, or not move forward with its federal rules for any waters that become covered by state law that meets the requirements of the Clean Water Act.

More information about EPA's approval of the FDEP rules: http://www.epa.gov/aboutepa/states/fl.html. More information about EPA's proposed rules are included in the Federal Register notice and on EPA's website: http://water.epa.gov/lawsregs/rulesregs/florida_index.cfm

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