Florida Gets Another Reprieve, In Part, From Numerical Standards

I have written several posts about the EPA’s decision, in settlement of a lawsuit, to enact numerical standards for nutrient pollution in Florida. The original settlement called for the EPA to have issued such criteria by now. Two months ago the EPA extended the comment period for its proposed criteria – a step that many expected.

Yesterday the EPA issued a new letter to the Florida DEP stating its intention to delay the implementation of numerical standards for estuaries and coastal waters until 2011. In addition, the EPA will apparently seek “additional third party review,” to be announced next month, to review the scientific basis for water standards applicable to these environments.

For environmentalists this is bad news in as much as it delays the implementation of standards until next year. For those who oppose new environmental regulation, that regulation has just been put off a year for a large swathe of areas that would otherwise be affected.

I believe however that this announcement is a good thing in the end. Numerical nutrient regulations are probably necessary, but given their complexity should not be rushed into. If the regulations are going to be meaningful they need to be backed up by science addressing the particular environments to be regulated – something that is thin on the ground at the moment. Remember, unlike other contaminants, these are compounds that are both naturally occurring and necessary for normal aquatic ecosystems. Appropriate levels of these compounds can also vary from one water environment to another. As a result, generalized standards are neither appropriate nor possible.

Nutrient Standards Delayed 30 Days

Florida got a brief reprieve today from the enactment of numeric nutrient standards. The EPA announced today that it would extend the comment period for its proposed numeric nutrient standards for 30 days to "ensure that Florida residents voices are heard...."

This is an issue I have reported on before because of the likelihood that such standards will eventually be mandated nationwide. Numerical nutrient standards are controversial due to the cost associated with determining what the appropriate levels of nutrients are in various bodies of water.

Many in Florida are watching these proceedings with interest/apprehension.

Florida's New Water Standards

Well, it’s a new year, and I hope everyone had an enjoyable holiday season. And while most people are recovering from holiday excess, watching the fireworks in Washington, and the tragedy in Haiti, the EPA is continuing to tick along.

I have written twice before about litigation in Florida designed to force the EPA to enact numerical standards for nutrient pollution in Florida's waters. Those standards have now been issued. This begins a 60-day public comment period. Some estimate that the cost of complying with the proposed standards could exceed a billion dollars. A cost that will have to be borne by government and industry.

Certainly we can expect that the comment period – which may be extended – will be “vigorous.”

But the bigger question that has yet to play out is the impact of numerical standards on a national level – something for which this litigation has opened the door. And as expensive as numerical standards may be for Florida, the cost for other states could be even higher. Florida, unlike many states, already has a significant knowledge base regarding the quality of its waters - largely due to the diligence of various state and local agencies. States that have not been monitoring their water quality as diligently will have to do so if they are to have any hope of establishing scientifically valid nutrient standards. While the states should probably be doing this anyway, it isn't going to be cheap.

And in this age of economic woe, who is going to pay for it?

Most states are teetering on the edge of serious financial crisis – if they haven’t fallen over it already. The federal government is already up to its eyeballs in debt. And industry – at least the kinds of industry that will be affected by these new standards – isn’t exactly flush right now either.

Don’t get me wrong – I understand the compelling argument for the superiority of numerical standards over softer narrative standards. I think taking steps to prevent nutrient pollution is necessary. But the implementation of standards needs to be done in a balanced way, and the costs associated with the regulations need to be considered as part of the process. We should always strive to do better, but setting impossible or unrealistic goals only sets us up for failure.

Nutrient Standards A Reality

As I wrote last month, there is an interesting piece of litigation going on down in Florida over whether the EPA is mandated to issue numerical limits for naturally occuring nutrients in waters covered by the Clean Water Act. Well, the Court approved the consent decree between the EPA and the plaintiffs, and the EPA will apparently be promulgating its first set of proposed numerical standards by January 15, 2010.

I have also been informed by sources close to the issue that the copy-cat litigation I speculated about last month may now be a reality. Apparently the Sierra Club, among others, has just issued a 60 day notice of intent to sue (which you can find here) on the same issue in Wisconsin. Similar lawsuits in other states are anticipated.

Nutrient Standards Under The Clean Water Act

There is an interesting lawsuit wending its way through the Federal District Court for the Northern District of Florida. The case is Florida Wildlife Federation v. EPA, Case No. 08-00324. It involves an attempt by the Florida Wildlife Federation (along with a variety of other environmental groups) to mandate the EPA to issue numerical limits on nutrient levels in Florida’s navigable waterways under the Clean Water Act.

Nutrients, like nitrates and phosphates, are distinct from other pollutants in that they are not only naturally present in bodies of water, they are necessary to maintain healthy aquatic ecosystems. But run-off from agriculture, and discharges from certain industries, can cause imbalances in nutrient levels that disrupt local ecosystems. Most people who live in coastal areas are familiar with the phenomenon known as red-tide, a sometimes harmful type of algal bloom that some have linked to nitrate and phosphate run-off from agricultural activity. Similar problems can crop up in lakes and rivers.

While Florida currently has a water quality standard for nutrients, the standard is “narrative.” It simply states, “Nutrients: In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna.” Rule 62-302.530(47)(b), Fla. Admin. Code. While this sort of regulation certainly serves as a nice mission statement, the devil – as always – is in the detail. The plaintiffs in Florida Wildlife argue that while this standard sounds nice, it is entirely subjective, and has resulted in ineffective efforts to regulate nutrient levels in Florida’s waters.

The plaintiffs’ initial legal hook was a 1998 EPA document called the Clean Water Action Plan, 63 Fed. Reg. 14,109, and a 1998 EPA report entitled National Strategy for the Development of Regional Nutrient Criteria, 63 Fed. Reg. 34,648, which argue that nutrient pollution is a significant problem, and that the lack of numerical nutrient criteria makes it difficult to effectively regulate nutrient contamination. The Clean Water Action Plan actually commits the EPA to the development of numerical nutrient criteria by 2003. Needless to say, this didn't happen.

The plaintiffs in Florida Wildlife allege that the Action Plan and National Strategy constitute “determinations” under 33 USC §1313(c)(4)(B) of the Clean Water Act which would require the EPA to “promptly prepare and publish regulations setting forth a revised or new water quality standard for the navigable waters involved….” In other words, the plaintiffs argue that because the EPA issued the documents, the Clean Water Act requires the EPA to issue numerical nutrient regulations.

So why do we care?

We care because the Action Plan and National Strategy are not limited to Florida. If the report constitutes a “determination” within the meaning of the Clean Water Act, it would require numerical nutrient standards nationwide, and currently only a handful of states have them.

Unsurprisingly, the EPA initially resisted the lawsuit on the basis that the Action Plan and National Strategy were not formal determinations. But on January 14, 2009, some six months after the lawsuit was filed, the EPA did a complete about-face and issued a formal determination that numerical nutrient criteria are necessary for Florida (and only Florida). And now the plaintiffs and EPA have agreed upon a Consent Decree (in essence an agreed upon judgment that would be issued by the Court), that will require the creation and implementation of numerical nutrient standards for Florida by October 15, 2011. In essence, the Consent Decree amounts to the EPA consenting to a judgment against it.

The EPA, however, is not the only defendant in the suit. A number of Florida state agencies have intervened and are now crying foul at the consent decree. They have objected on the bases that (1) the 2009 determination appears to have been created solely to settle the lawsuit without any scientific support; and (2) the timeline set by the decree is entirely unrealistic and will lead to the adoption of scientifically indefensible standards.

Though I have to admit to being skeptical that valid standards can be arrived at within the time period allotted, that is actually not what interests me here. The EPA’s rather fishy 2009 determination, and the Consent Decree, will be like blood in the water for environmental organizations across the country.

This case has all the hallmarks of an environmental “test case,” prior to a larger national effort. It is remarkable therefore that the EPA has essentially rolled over and conceded the case. If the Consent Decree is approved, I would not be surprised to see copy-cat litigation nationwide. And because the legal issues would be identical, the Consent Decree could be used to force the EPA to mandate numerical standards in every state. That would be a massive undertaking given the technical complexities involved.

This begs the question - what is going on at the EPA? Is this an indication of changing priorities regarding regulation and enforcement? If so, it wouldn't be the first indication.

There will be a fairness hearing on the Consent Decree on November 16th. It will be interesting to see whether the Court approves it.