Transcript PowerPoint - Presentation Guidelines

Numeric Nutrient Criteria in
Region 4: Current Progress
and Remaining Challenges
Presented by
Robert P. Diffenderfer
Lewis, Longman & Walker, P.A.
Clean Water Act § 303
1. Designate the
Uses of Water
Bodies
2. Establish Criteria
to Protect Those
Uses
Photo Credit: Northwest Florida Water
Management District
Narrative vs. Numeric
Nutrient Criteria
Narrative Criteria:
Numeric Criteria:
Back Bay Estuary, Florida:
“In no case shall nutrient
concentrations of a body of
water be altered so as to
cause an imbalance in natural
population of flora or fauna.”

.009 mg/L Total Phosphorus

.25 mg/L Total Nitrogen

.3µg/L Chlorophyll a
Annual geometric means that shall
not be exceeded more than once in a
three year period.
Rule 62-302.530(47)(b), F.A.C.
Rule 62-302.532(1)(g)1
History of NNC in Florida
• 1998: EPA declared NNC are
preferred
• 2002: Florida DEP Submitted
Draft Numeric Nutrient
Criteria Plan
• 2004: Mutual Agreement was
Declared
• 2007: Plan was Amended,
with EPA’s Consent
• 2008: Environmental Groups
Filed Lawsuit
Photo Credit: John Moran: Close Up of Algae on the Santa Fe
River, 2012
Participants in the 2008 Lawsuit
Plaintiffs:
• Florida Wildlife Federation, Inc.;
• Sierra Club, Inc.;
• Conservancy of Southwest
Florida, Inc.;
• Environmental Confederation of
Southwest Florida, Inc.;
• St. Johns Riverkeeper, Inc.
Amicus Curiae:
• Northwest Florida Water
Management District;
• Southwest Florida Water
Management District,
• Suwannee River Water
Management District
Intervenors:
• Florida Pulp and Paper Association
Environmental Affairs, Inc.;
• the Florida Farm Bureau Federation;
Southeast Milk, Inc.;
• Florida Citrus Mutual, Inc;
• Florida Fruit and Vegetable
Association;
• American Farm Bureau Federation;
• Florida Stormwater Association;
• Florida Cattleman’s Association;
• Florida Engineering Society;
• South Florida Water Management
District;
• the Florida Water Environmental
Association Utility Council, Inc.;
• the Florida Minerals and Chemistry
Council, Inc.; and
• Florida Department of Agriculture
and Consumer Services
History of NNC in Florida,
Continued
• Then in 2009:
– January: EPA declared NNC are necessary to comply with CWA
in Florida
– March: FDEP submitted a Second Revised NNC Plan
– December 2009: Consent Decree between EPA and the
environmental groups went into effect
– Florida abandoned rulemaking for lakes and flowing waters, so
EPA proposed rules
• 2010: EPA supplemented rules for lakes and flowing waters
• November 2010: EPA adopted Final Water Quality Standards for
Florida’s Springs, Lakes, and Flowing Waters (excluding South Florida
canals)
– 13 Lawsuits Followed
Summary of the 2010
Lawsuits
• 25 Parties (in a total of 11 cases) asserted
that the 2009 determination that NNC were
necessary was arbitrary and capricious, and
that even if it was valid, the 2010 standards
went too far.
• 7 Parties (in two lawsuits) said the new
rules did not go far enough and should be
set aside as arbitrary and capricious.
History of NNC in Florida, Continued
• 2011: FDEP petitioned EPA to rescind its rule and replace
it with FDEP’s proposed rule
• February 2012: Court upheld NNC for lakes and springs,
rejected NNC for flowing waters, and upheld the idea of
downstream protection values but rejected the means of
determining those values as arbitrary and capricious
• June 2012: FDEP revised and submitted its new and
revised Water Quality Standards for many of Florida’s
waters
• July 2012: Environmental Regulation Commission adopts
“poison pill” provision into Rule. 62-302.531(9), F.A.C.
The “Poison Pill”
Rule 62-302.531(9), F.A.C.
The Commission adopts subsections 62-302.200(4), 62-302.200(16)-(17), 62302.200(22)-(25), 62-302.200(35)-(37), 62-302.200(39), Rule 62-302.531, and
subsection 62-302.532(3), F.A.C., to ensure, as a matter of policy, that nutrient
pollution is addressed in Florida in an integrated, comprehensive and
consistent manner. Accordingly, these 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. If any provision of these rules is
determined to be invalid by EPA or in any administrative or judicial proceeding,
then the entirety of these rules shall not be implemented.
History of NNC in Florida,
Continued
• November 2012: EPA’s deadline to propose rules for the
remaining waters and downstream protection values
• November 30, 2012:
– EPA formally adopted FDEP’s rules in their entirety.
– EPA promulgated rules for waters not covered by
FDEP’s rules
– EPA stated it will continue working with FDEP
– EPA promulgated downstream protection values.
• January 4, 2013: EPA filed a Motion for Approval to Stay
Portions of EPA’s Inland water rules to resolve concerns
regarding the “poison pill.”
History of NNC in Florida,
Continued
• April 2013:
– Court issues stay to prevent “poison pill” from
activating
– EPA and FDEP agree on Path Forward
– FDEP adopts “Implementation of Florida Numeric
Nutrient Criteria Standards.”
• June 2013: EPA amends determination and declares that
NNC not necessary in Florida for certain waters
• January 2014: Court enters order modifying Consent
Decree to Match amended EPA determination
• September 2014: EPA’s rule withdrawal is finalized, and
FDEP’s NNC are the only effective rules.
Florida’s Rule Today
• NNC set for Nitrogen, Phosphorus, and
Chlorophyll a for ALL: Lakes and Reservoirs
and Estuaries.
• NNC partially set for Nitrogen, Phosphorus,
and Chlorophyll a for Rivers and Streams,
and EPA has determined that NNC is not
required in remaining Rivers and Streams
and certain other waters due to alternative
protective measures implemented by FDEP.
http://cfpub.epa.gov/wqsits/nnc-development/
NNC Development in Other
States In EPA Region 4
State
Nitrogen
Phosphorus
Chlorophyll a
Alabama
None
None
Some
Georgia
Some
Some
Some
Kentucky
None
None
None
Mississippi
None
None
None
North Carolina
None
None
Statewide
South Carolina
Some
Some
Some
Tennessee
None
None
Some
Downstream Waters
• EPA Regulations require states to:
“take into consideration the water quality
standards of downstream waters and shall
ensure that its water quality standards
provide for the attainment and maintenance
of the water quality standards of
downstream waters.”
40 C.F.R. 131.10(b)
Northern Gulf Of Mexico
Hypoxic Zone
Excess nutrients  algae  algae dies  sinks to bottom  decomposes  hypoxia
2012 Hypoxic Zone: 2,889
square miles (approximately
the size of Delaware)
2013 Hypoxic Zone: 5,840
square miles (approximately
the size of Connecticut)
2014 Hypoxic Zone: 5,052
square miles (approximately
the size of Connecticut)
2013 Hypoxic Zone Measurements
Source:
http://water.epa.gov/type/watersheds/named/msbasin/zone.cfm;
Questions?
Robert P. Diffenderfer
[email protected]
(561)640-0820