Water Quality Standards - EPA vs Florida

A contentious battle has been ongoing between the State of Florida and the US Environmental Protection Agency (EPA) over water quality standards (WQS) that the EPA and some environmental groups are attempting to impose on the state. In November 2010 the EPA finalized standards to regulate nutrient content in Florida’s surface water bodies, including its lakes, rivers, streams, and springs. Since then every legislative body, the Attorney General, and the Governor have weighed in on the matter.

Historical Overview

The 1972 Clean Water Act (CWA) governs Water Quality Standards (WQS) for navigable waters in the United States. It establishes the basic structure for regulating discharges of pollutants into US waterways. But, the CWA places primary responsibility for meeting WQS on the states, while requiring review and update to the standards at least every three years. It also requires that states submit WQS to the EPA for review and approval. The CWA also requires that states identify waters not meeting established WQS and in such instances establishes a Total Maximum Daily Load (TMDL) for those waters. (A TDML is a value of the maximum amount of a nutrient that a body of water can receive and still meet its WQS.)

Florida has in the past used a 'narrative' standard to regulate nutrients, such as phosphorus and nitrogen, in water bodies because nutrients are unlike any other pollutant regulated by the CWA and it takes into account variability, whether it is naturally occurring or man-made. (A narrative standard is one that prohibits unacceptable conditions in or upon the water, such as floating solids, visible oil film, or nuisance algae blooms.) Florida's implementation is based upon the fact that nutrients are essential to life and a balance must be understood to sustain aquatic life, while not providing excessive amounts to alter the aquatic ecosystem. Each water body can have very different and unique nutrient requirements.

In 1998 the EPA ordered all states to set 'numeric' standards on nutrient content. (A numeric standard is one that defines allowable concentrations of specific nutrients in water.) In 2002 the Florida Department of Environmental Protection (FDEP) submitted to the EPA an initial draft and they reached mutual agreement in 2004. In 2007 the FDEP revised its plan due to an 'evolved strategy and technical approach' to which they also reached mutual agreement with the EPA. To support the strategy, the FDEP conducted 22 meetings from 2002 to 2009 with experts that formed the Nutrient Technical Advisory Council (TAC), spending $20 million developing its nutrient criteria.

In 2008 several environmental groups, including Earth Justice, Friends of the Everglades, and the Sierra Club amongst others, sued the EPA in an attempt to force the state into using the numeric standard to regulate its water bodies, claiming that the narrative standard was not allowable under the CWA and that the EPA had failed to enforce its prior 1998 ruling. Many of these organizations cited recommended limits set by the World Health Organization as their targets for nutrients in Florida's water bodies. As a result of this lawsuit the EPA found that Florida was in violation of the CWA.  In January 2009 the EPA placed FDEP on formal notice that numeric criteria were necessary for compliance with the CWA. In August 2009 the EPA entered into a 'consent decree' with the plaintiffs (environmental groups) to promulgate (put into effect and impose) numeric standards on the state without agreement from the Florida legislature or governor.

On behalf of the state former Attorney General Bill McCollum challenged the consent decree in the US District Court in North Florida, which as expected was upheld by the federal court in December 2009. As a result in January 2010 Lisa Jackson, Administrator of the US EPA, signed a rule proposing numeric criteria for Florida and the EPA promulgated its new numeric nutrient criteria ruling for lakes, rivers, streams, and springs in November 2010. A portion of the rule was to became effective in February 2011 with the remainder of the rule to be effective in March 2012, but in December 2010 the EPA decided to delay implementation of the requirements for 15 months to give state and local governments time to review the standards and draw up plans to implement them. Additionally, the EPA plans to propose further numeric nutrient WQS for Florida's southern inland flowing and estuarine coastal waters by November 2011 to be effective by August 2012.

Though the standards are currently imposed only on Florida, this ruling is widely viewed as precedent setting, since this will likely be cited as a model for increased EPA authority and environmentalists will be seeking to implement similar measures in other states. According to EPA Administrator Jackson, testifying before a House Agriculture Committee, "EPA is not working on any federal numeric nutrient limits. We will soon be releasing a framework memo to our regional offices that makes it clear that addressing nitrogen and phosphorus pollution – which is a major problem – is best addressed by the states, through numerous tools, including proven conservation practices." While Administrator Jackson claims that the EPA is not working to force any federal numeric nutrient limits, this is exactly what they are doing in attempting to set standards for Florida. It is likely that the 'framework' will include specific numeric WQS forcing disparate states into a ‘one-size fits all’ requirement.

Legal Challenges by the Attorney General

In December 2010 former Attorney General Bill McCollum and Agriculture Commissioner Charles Bronson with the support of the incoming AG Pam Bondi and incoming AC Adam Putnam filed a lawsuit in federal court in Tallahassee on behalf of the state against the federal EPA regarding their interference with the state’s clean-water program, challenging their numeric criteria for phosphorus and nitrogen in lakes, streams and rivers. Preliminary motions are set for May 2011 and the plaintiff's (Florida) summary judgment motions are to be filed by June 15 with cross motions filed by September 15.

Florida's lawsuit alleges that the proposed EPA action is inconsistent with the intent of Congress when it based the Clean Water Act (CWA) on the idea of cooperative federalism, whereby the states are responsible for the control of water quality with oversight by the EPA. The lawsuit also argues that control of nutrient loading from predominately non-point sources involves traditional states' rights and responsibilities for water and land resource management, which Congress expressly intended to preserve in the CWA. Additionally, it argued that the EPA’s nutrient criteria was in excess of statutory authority, arbitrary, capricious, an abuse of discretion, and not in accordance with law.

At the time the lawsuit was filed Bronson noted "I have been concerned from the beginning that EPA's actions related to numeric nutrient criteria in Florida waters were not based on factual, verifiable science. Florida has always been a leader in taking steps necessary to improve water quality and I was disappointed that EPA did not incorporate many of the state's suggestions on the proposed rule."

Bondi, who pledged to continue the lawsuit as Florida's AG, noted "These new rules will have a drastic financial impact on local governments and communities who are already working to comply with Florida's existing standards under the CWA. Our communities cannot afford these new regulations which may not, in the long run, result in any meaningful improvements to our water quality beyond what our state has already implemented."

In addition to the state the regulations have many opponents including local governments, farming and agricultural companies, fertilizer companies, municipal waste water utilities, and any industrial companies that discharge waste water. The list is diverse and includes the Florida Association of Counties, Florida Cattlemen's Association, Florida Home Builders Association, Florida League of Cities, and Florida Water Quality Coalition amongst many others. Compliance with the regulations may cost into the billions of dollars and non-compliance will likely lead to lengthy and costly litigation for these businesses from environmental groups.

Actions by the Florida Legislature

House Speaker Dean Cannon (R-Winter Park) has established the Select Committee on Water Policy and has named Rep. Trudi Williams (R-Fort Meyers) as chairman. Cannon has also established the Federal Affairs Subcommittee, which is chartered to consider matters related to state/federal relations, including federal policy that encroaches on issues traditionally reserved to the states or those that infringes on the personal freedoms of Floridians. These committees are currently examining the state's conflict with the EPA over WQS adopted by the federal agency.

Representative Williams has sponsored HB239, which would prohibit the state from implementing the new federal WQS that were adopted in December. HB239 would prevent the Florida Department of Environmental Protection (FDEP) from "implementing or giving any effect to" the federal standards outlined in the EPA ruling where the standards are more stringent than necessary. It also directs the FDEP to implement its own numeric standards, which was already in progress prior to the EPA agreeing to impose federal standards as part of a settlement to the lawsuit filed by the environmental groups. HB239 declares that the numeric nutrient TMDL developed by FDEP and approved by the EPA shall constitute the site specific values of Florida's narrative standard.

According to Representative Williams in a commentary published in papers around the state in February 2011, "Our current state programs are working. HB239, entitled Numeric Nutrient Water Quality Criteria, will make sure that EPA's flawed nutrient standards do not derail the state's successful water quality programs. This legislation directs the state to stay on track with sound science and only promulgate standards tailored to the needs of Florida water bodies, not rubber stamp EPA's scientifically invalid nutrient rules." Williams continues, "…if the EPA and environmental groups that forced this policy through a lawsuit get their way, much higher utility bills are coming for all Floridians." Williams, who is an Environmental Engineer concluded, "Water quality in our state is a Florida issue. EPA's mandates are unprecedented, unworkable and unscientific, and we must work together to ensure Florida's destiny stays in our hands and will not be subject to a takeover by the federal government."

Florida's US Delegation Gets Involved

Senator Marco Rubio (R-Florida) is trying to add amendments to budget resolutions that would bar the EPA from implementing their WQS in Florida. "At a time when our state is facing double-digit unemployment and our families are struggling with the effects of a prolonged recession, the last thing we need is another Washington mandate that will cost billions, destroy jobs and increase daily costs," said Rubio, who wants the Florida Department of Environmental Protection to take the lead on implementing the standards. Additionally, Rubio sent a letter in March to the US Senate Appropriations Committee Chairman requesting that the Senate include in any 2011 continuing appropriation legislation an amendment de-funding the EPA’s enforcement of their December 2010 ruling. This letter cited the prohibitive costs to the state and the merits of the EPA's methodology and scientific basis in developing their standards.

In December 2009 Representative Bill Posey (R-Melbourne) and 22 other representatives from Florida sent a letter to the US EPA Administrator Lisa Jackson expressing concerns about the EPA's ruling and its adverse impact on the state. Posey noted, "Concerns over the regulations have been expressed to me by small business owners, agricultural producers and elected officials." Posey also pointed out, "The state of Florida has been a national leader in making our waters cleaner. Florida has in place today some of the most robust standards to support water quality improvement. Unfortunately, the proposed regulations fail to recognize this and instead impose a blanket approach to water quality that fails to recognize the variability of Florida's water resources and the positive steps Florida has already taken." Posey has also endorsed legislation by Representative Tom Rooney (R-Punta Gorda) that would prevent the federal government from implementing the EPA's WQS rulings in Florida.

Governor's Position

In November 2010 then Governor-elect Rick Scott sent a letter to US EPA Administrator Lisa Jackson protesting the tougher water quality standards that they say will be overly costly to implement. The letter was also signed by AG Pam Bondi and AC Adam Putman. The letter states in part, "We are concerned that the EPA's unprecedented nutrient criteria rulemaking will impose substantial regulatory and economic consequences on Floridians" and "The Florida Department of Environmental Protection (FDEP) has expressed significant concerns regarding the scientific validity of the numeric nutrient criteria the EPA is set to impose on Florida, even questioning whether the standards are attainable or will achieve environmental benefits." The letter concluded, "we strongly urge you to delay implementation of the final rule for lakes and flowing waters. Florida is the first state to be subjected to such federal rules, and we must ensure that the science is sound and the benefits are worthy of the costs."

Analysis

Though the quantitative values put into effect by the EPA are similar to the FDEP plan, the implementation is significantly different between the two approaches. In the FDEP plan there would need to be 'biological confirmation' that nutrient concentrations above the numeric standard actually resulted in biological impairment. This is so because as the department has demonstrated some bodies of water that exceed the values have healthy biota and do not need any restoration. The EPA ruling would require that all levels be at or below the federally promulgated standard.

An independent report in April 2010 concluded that compliance with the EPA's numeric standard would directly cost Florida businesses billions of dollars to implement and approximately $1 billion annually, followed by more than $1 billion per year in additional indirect economic costs. Additionally, FDEP and the Florida Department of Agriculture and Consumer Services (FDACS) have projected that the cost to Florida's economy will run into billions of dollars ($5.7-8.4 billion annually). The US EPA projects a compliance cost to about $150 million annually. According to the previously noted studies, the EPA cost estimates inadequately account for existing baseline conditions, failed to address all the direct costs, and did not consider all indirect costs to businesses and the public.

The EPA also did not accept Florida's existing Total Maximum Daily Loads (TMDL) for nutrients under the new ruling, even though the same TMDL had previously been approved by the agency. As a result, the FDEP must attempt to reestablish TMDL for nutrients to re-comply with the CWA.

One has to wonder what the end game is with regard to all this. Is the federal government in conjunction with environmental groups only interested in setting Water Quality Standards, which is still regarded by the state as overreaching federal authority? Or, does it desire to control all aspects of water policy in Florida and in states all around the country? When one considers the EPA dictating policy through these water quality rulings, and such items as the implementation of the findings of the Ocean Policy Task Force via Executive Order 13547 ( http://edocket.access.gpo.gov/2010/pdf/2010-18169.pdf), it is not hard to come to the conclusion it's the latter. Two of the recommendations of this task force are: controlling activities on land that affects the ocean and ratification of the Convention on the Law of the Sea Treaty. This treaty was rejected as far back as 1982 by then President Ronald Reagan and in 2000 the US Senate also rejected it as President Bill Clinton endorsed it. It would give the United Nations the power to regulate activity within our territorial waters (Article 2, (3)) and it would give them the power to levy taxes in the form of application fees and royalties.

This executive order also creates a new bureaucracy called the National Ocean Council to implement the recommendations of the task force. Just look at some of the names on the council for an indication of where its loyalty would be: science czar John Holdren, climate-change czar Carol Browner, former Environmental Defense Fund official Jane Lubchenco, Attorney General Eric Holder, and Interior Secretary Ken Salazar. Environmental groups like the Sierra Club and the World Wildlife Fund have been trying to regulate and control marine areas for many years and they will use this new policy to further their goals. Ultimately, one has to conclude that the primary interest of this is in advancing federal control of our waterways.

This confrontation between the state of Florida and the EPA is not simply about whether or not a numeric measuring system for water quality is imposed upon the state. Nor is it simply about how much it will cost Florida's economy. This is about whether or not the state of Florida cedes control of its waterways and water supplies to the federal government. At that point what will prevent the federal government from dictating usage to force compliance? Think about that…what will prevent the federal government from dictating usage? The state of Florida needs to take a stand on issues of great importance. If control of our water supplies and waterways is not an issue of great importance, what is?