What is the FDEP doing about the EPA’s proposal to regulate numeric nutrient criteria federally?
First of all, the DEP was working on numeric nutrient standards long before 2009, which is when the EPA decided it was necessary to promulgate federal regulations in Florida. In April, the Department petitioned the EPA to turn the rulemaking back over to the state. Their response wasn't yes or no. But we continue to work on a state-level solution. We hope to craft a set of rules that work for Florida stakeholders and will get EPA approval. Then federal regulations will no longer be necessary and EPA could rescind its January 2009 determination. We’re still in the development process and holding workshops, as well as soliciting comments from stakeholders. It is early in the process but the proposal has been positively received so far. If all goes well, we hope to have final rules ready for legislative ratification in January or February.
A major concern over EPA’s numeric nutrient criteria proposal was the cost of compliance, which some fear will deter business in Florida. Does FDEP have any position on cost and/or how will cost/benefit factor into nutrient regulation if FDEP is successful in its approach?
Cost is a very important consideration when crafting rules, so we’re doing our best to only impose regulations and controls where they are necessary. It is the FDEP’s intention to not make anyone spend money that isn’t going to provide an environmental value. We’re not only trying to avoid unnecessary regulatory costs, we’re also trying to avoid unnecessary administrative costs associated with having to rely on more cumbersome administrative processes, such as processing Site Specific Alternative Criteria (SSAC) through state and federal rules to set site specific requirements. FDEP will have to address costs as it develops its rules and we believe our more targeted approach will be more cost-effective.
How does the FDEP plan to keep costs down?
The key is a more site-specific approach to the problem without complete reliance on the SSAC process. For example, the St. Johns River is operating under a TMDL restoration program and would not benefit from applying separate numeric nutrient criteria. Our first step would be to recognize existing efforts and not complicate those with a second set of rules.
The other principle is that if the water body is healthy, or a more appropriate numeric criteria can be documented by the regulated stakeholder based on site specific evaluations, then expectations would be adjusted accordingly without having to go through the more formal and time-consuming process associated with SSAC.
A lot of those kinds of concepts and principles are embedded in our solution.
One thing we learned from the Great Recession is that uncertainty upsets markets and stalls progress, as do overly stringent and costly regulations. What light can you shed on the nutrient rulemaking situation that would help the regulated community plan and prepare?
It is the goal of the FDEP to make sure that the regulated community and the community at large understand how it is affected. That’s why we are holding public workshops and providing information on the Numeric Nutrient Criteria Development page of our website, including the most recent drafts.
The situation between the FDEP and EPA is fairly complex, and there are court cases pending. It appears FDEP and EPA are on parallel rulemaking paths, and that the two agencies don’t agree. How do you think the situation will be resolved?
We are trying to craft a solution that will gain EPA approval. We understand that EPA does have a consent decree in the lawsuit settlement that they need to account for, but there is nothing that restricts the EPA from rescinding the January 2009 letter to impose federal standards. And we are engaging the environmental groups that are party to the lawsuit, hoping that the rules are satisfactory to them. If the state-level solution is acceptable, it is our hope that the EPA will rescind their order and make a motion to close the consent decree.
A lot of leaders and organizations nationally have commented that the U.S. environmental regulatory framework may need fundamental change to deal effectively and equitably with complex issues like nutrients. What are your thoughts?
I’m not ready to concede that point. It remains to be seen how the EPA will react. I believe the EPA has the ability to be creative and reasonable. We still see the value of working within the framework that is there.
Is this the most significant project or initiative you have been involved in at the FDEP?
It is certainly the one that’s gotten the most attention. But my passion is the relatively fledgling Basin Management Action Plan (BMAP) program, which happens to depend on water quality standards, monitoring and assessment of water quality, and Total Maximum Daily Loads. This program enables us to work with communities on restoring impaired water bodies. It is one of the more significant things we do.