A battle royal is brewing over the U.S. Environmental Protection Agency’s agreement to set numeric limits on nutrient concentrations in Florida waters. In a consent decree signed by lawyers for EPA and environmental groups, the agency agreed to propose “numeric water quality criteria for lakes and flowing waters” in the state by Jan. 14, 2010, with final regulations to follow Oct. 15. The deadlines for coastal and estuarine waters in 2011 would be the same. The Florida Wildlife Federation, the Conservancy of Southwest Florida, the Environmental Confederation of Southwest Florida, St. John’s Riverkeeper, and the Sierra Club sued EPA in July 2008.
“The suit challenged an unacceptable decade-long delay by the state and federal governments in setting limits for nutrient pollution,” environmental law firm Earthjustice said. “EPA’s agreement to set enforceable nutrient limits settles that lawsuit.”
The filing of the consent decree “has nationwide implications,” Earthjustice said. “Currently, Florida and most other states have only vague limits regulating nutrient pollution. EPA will now begin the process of imposing quantifiable – and enforceable – water quality standards to tackle nutrient pollution.”< An EPA Inspector General report released shortly after the filing of the agreement criticizes the agency for failing to address "widespread" nutrient pollution. "EPA's 1998 National Strategy and Plan to promote state adoption of nutrient water quality standards (which better protect aquatic life and human health) has been ineffective," the report said. "In the 11 years since EPA issued its strategy, half the states still had no numeric nutrient standards," the IG said. "States have not been motivated to create these standards because implementing them is costly and often unpopular with various constituencies." States have failed to meet promised deadlines, the report noted, and "the current approach does not assure that states will develop standards that provide adequate protection for downstream waters. Until recently, EPA has not used its Clean Water Act authority to promulgate water quality standards for states. EPA cannot rely on the states alone to ensure that numeric nutrient standards are established." "States continue to report over 14,000 impairments for nutrient and nutrient-related pollution on their impaired waters lists," the IG said. Though lauded by environmentalists and ballyhooed by EPA, the agreement angered the state of Florida, which said it had been researching the issue for years. Mike Sole, secretary of the state Department of Environmental Protection, told the St. Petersburg Times that he was “frustrated” by EPA’s action and predicted that it would cost the state’s taxpayers dearly. “It is going to affect you and I as Floridians,” he told the newspaper.
And a host of Florida business and utility interests – including fertilizer companies – are determined to kill the deal.
The Florida Water Environment Association Utility Council asked U.S. District Judge Robert Hinkle to stay the case until it can file a lawsuit. The association, which also has asked to intervene, sent EPA a 60-day Notice of Intent to Sue (NOITS) on Aug. 14, meaning that the soonest it could sue would be mid-October. The Florida Minerals and Chemistry Council also filed an NOITS, which said EPA had already approved a 2007 state plan to develop numeric criteria. Under that plan, the department “would have until 2011 before EPA would consider the state to be untimely in its pursuit of state numeric nutrient criteria,” the council said in its Aug. 24 letter.
A number of groups that have already intervened, including the state and national farm bureaus, fruit and vegetable growers, and cattlemen, said the decree “will dramatically and adversely affect” their interests. Noting that they were not involved in the settlement negotiations, they asked Hinkle to schedule a “fairness hearing” on the proposal. They said they would argue that “the evidence and record will show that the proposed consent decree is not substantively fair….In addition, it is not a product of careful scientific study and deliberation on the part of EPA, [and] the timelines . . . are far too short to allow for the establishment of scientifically defensible criteria.”
They also said that the agency’s decision was driven more by litigation than science, citing an EPA memorandum that discussed settling the case to prevent the judge from ruling against the agency. Specifically, EPA was worried that Hinkle might agree with the plaintiffs’ argument that with the release of its strategy in 1998, EPA had already made the requisite “necessity determination” that nutrient limits should be adopted promptly for nitrogen and phosphorus. With that legal precedent, environmental groups could sue in a number of other states, the agency speculated. To limit the repercussions from Florida, the consent decree does not conclude that the 1998 strategy amounted to a necessity determination.
The IG report quoted EPA’s Ecological and Health Protection Branch Chief as saying the Florida determination was state-specific and that no other determinations were planned for the near future.
Shortly before leaving the agency, Assistant Administrator for Water Ben Grumbles made the necessity determination, concluding that nutrient criteria had to be developed for Florida. But the utility association said he had only two weeks to make the decision, foreclosing the possibility of careful study.
The industry parties asserted that “EPA’s determination was undertaken as an exercise in litigation risk management, rather than an effort to implement the goals of the Clean Water Act or to establish appropriate standards for water quality criteria in the State of Florida.” The judge has not decided whether to schedule a hearing. He likely will begin focusing on the case in September.