Monday, January 30, 2012

Florida Water Issues Bubbling Up to the Surface for 2012 Session

As the 2012 legislative session approaches, it is becoming quite clear that water quality and supply issues will be the focus of much attention by the Florida Legislature.  Almost immediately after the close of the 2011 session, various interest groups began meeting to discuss  water-related issues.  A number of bills relating to water have been filed, and there has been significant activity by Agriculture Commissioner Adam Putnam, Attorney General Pam Bondi, and Gov. Rick Scott, mostly related to the federally imposed numeric nutrient criteria.

Numeric Nutrient Limit Criteria
The U.S.Environmental Protection Agency prompted a huge outcry from local governments, utilities, agriculture and  industry  in  August  2009  when it agreed to propose water-pollution limits  known  as  “numeric nutrient criteria” to  settle  a lawsuit  filed by environmental groups.  Those groups had contended that Florida’s existing rules are too vague and fail to prevent waterways from becoming polluted.

Since the EPA announced the imposition of the numeric nutrient criteria, there has been a concerted effort to get the agency to back down and let the State of Florida adopt and implement criteria that are based on sound science and Florida-specific conditions.These efforts have included lawsuits (one by the Florida League of Cities), numerous public  hearings,  and an effort during the 2011 session to enact legislation that  would bypass the EPA efforts.

On November  2, acting EPA Assistant  Administrator Nancy  Stoner  sent  a letter to Florida Department of Environmental Protection (DEP) Secretary Herschel  Vinyard  that  contained both good  news and  bad  news in the fight against  the EPA-imposed  numeric nutrient criteria.The EPA letter expresses support for the DEP’s rulemaking on numeric nutrient criteria. However, that support comes with a number of strings attached, the most troubling of which is an indication that any changes to the draft rule will likely result in the EPA withdrawing its support for the rule.

Before taking effect in Florida, there are many procedural stops for the proposed rule – including approval by the Environmental Regulatory Commission and legislative ratification. Because of these “strings,” support for the DEP rule is far from unanimous, with some members of the regulated community supportive and others strongly  opposed.  The environmental community has been largely critical of  the DEP-proposed rule, claiming it is difficult to enforce and may represent a setback for water quality protection.

On November 3, the Environmental Regulatory Commission held a public hearing on the proposed DEP rules that would replace the controversial federal rules.The proposed rules will be considered at a December  8 commission meeting for final adoption and subsequently offered to the Legislature for ratification during its 2012 session.

Some of the issues raised during the Environmental Regulatory Commission public hearing included concerns that  if the DEP rule does not change, the EPA might approve the rule.The letter from the EPA never unequivocally states that it will approve the DEP rule.  As drafted, the letter suggests that the EPA might not approve the DEP rule even if it does not change. 

Another  area  of concern  raised  by the public is that the EPA never agrees to rescind its January  2009  necessity determination that  numeric  nutrient criteria limits  are  appropriate for Florida.  Instead, the EPA will apply recently finalized federal criteria and continue to promulgate criteria to any  waters that are not covered by the DEP rule.  In other words, South Florida canals, tidal creeks, intermittent streams and estuaries not covered by the DEP rule will be subject to federal numeric criteria unless the DEP promulgates numeric criteria for those water bodies.

The EPA likewise never agrees to seek a dissolution of the 2009 consent decree with EarthJustice. (That consent decree was the genesis of the EPA action to implement numeric nutrient criteriain Florida.) To the contrary, the EPA is committed to following through with its own rulemaking, though the schedule may be contingent on the state’s actions.

Other  issues  include  concerns  by the  EPA that  the  science behind  the DEP biological confirmation approach may fall short of being adequately protective  of designated  uses, as well as questions about  how the DEP plans toapply the numeric  nutrient criteria to canals, drainage ditches and stormwater conveyances in Florida. The EPA letter declares that it will apply federal criteria to these water bodies if the state does not include them in its rule.

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