Sept. 2, 2011
Regulatory update: Numeric Nutrient Criteria

Chris Hill, CSM, leader of Brown and Caldwell's Florida Water Team, wrote this for the Florida Water Environment Association's August 2011 newsletter:

As you are no doubt aware, the U.S. Environmental Protection Agency (USEPA) adopted final numeric nutrient criteria (NNC) for total nitrogen (TN) and total phosphorus (TP) for Florida waters in November 2010. These criteria include all Class I and III lakes, rivers, and streams outside of South Florida. Depending on the Nutrient Watershed Region (NWR), TN limits for streams range from 0.67 to 1.54 mg/L, and TP limits range from 0.06 to 0.12 mg/L. Limits for lakes range from 0.51 to 1.27 mg/L for TN and range from 0.01 to 0.05 mg/L for TP. In addition, nitrite-nitrate is limited to 0.35 mg/L in springs.

Much of the discussion regarding NNC has focused on the cost to Florida city and county governments, agriculture and industry, and ultimately Florida residents. Indeed, the total costs to Florida are considerable and range from hundreds of millions to several billion dollars annually depending on the estimate. The costs for the municipal wastewater industry alone range from approximately $40 million to $400 million annually.

Because of the large discrepancies in the estimated costs to implement EPA’s NNC across all affected industries, the National Academy of Sciences (NAS) has convened the Committee to Review EPA’s Economic Analysis of Final Water Quality Standards for Nutrients for Lakes and Flowing Waters in Florida. The committee is tasked with reviewing the USEPA economic analysis and weighing in on the incremental cost of the regulation to Floridians. The committee held its first public meeting in Orlando on July 25 and 26 and is expected to release its findings by February 2012.

Meanwhile, the Florida Department of Environmental Protection (FDEP) issued draft revisions to its own Surface Water Quality Standards (F.A.C. 62-302) and Impaired Waters Rule (F.A.C. 62-303) in an attempt to head off the federal rule. In short, the rule establishes numerical interpretations of the existing narrative criteria for all Class I, II, and III waters. FDEP is proposing to establish these interpretations in a hierarchical manner. Total maximum daily loads (TMDL) and site specific alternative criteria (SSAC) shall be the numeric interpretation of the criteria where they exist. If no TMDL or SSAC exists, but the water is impaired due to nutrient loading, then the USEPA NNC will be used as the numeric interpretation for lakes and spring vents. FDEP is proposing a framework for numeric interpretation applicable to streams that uses the federal criteria in combination with biological verification. FDEP has also said that if the ambient nutrient concentrations are below the USEPA thresholds, then the water body is deemed to meet the existing narrative standard.

FDEP has hosted a series of workshops around the State, most recently in Leesburg on July 27 and Tallahassee on August 2, to discuss the proposed FDEP-revised rule language. Public comments are due August 16 with a final round of workshops scheduled in September. If FDEP decides to proceed with rulemaking, the revisions will go forward for adoption by the Environmental Regulation Committee in early 2012, with subsequent ratification during the 2012 legislative session.

In other legislative news, Rep. John Mica (R-Fla.) and Rep. Nick Rahall (D-W.Va.) introduced HR 2018, the Clean Water Cooperative Federalism Act of 2011. The bill passed the House Transportation and Infrastructure Committee on June 22 and was passed by the U.S. House of Representatives by a vote of 239-184 on July 13. Among other things, the bill would restrict USEPA’s authority to promulgate state water quality standards and “supersede” state water quality certifications. Though the bill faces steep hurdles getting through the Senate, and the White House has threatened to veto the measure should it make it to the President’s desk, the very existence of the bill shows how contentious the issue has become.

HR 2018 comes on the heels of numerous other legal challenges to the rule, including those by the Florida Office of the Attorney General, the Florida League of Cities and Florida Stormwater Association, and several Florida water utilities. In addition, a group of 50 national and multi-state organizations, municipalities, corporations, and regional entities from throughout the U.S. wrote to USEPA to express their concern with rule. These organizations specifically questioned USEPA’s decision to impose numeric nutrient criteria independent of an assessment of the water body biology.

What does all this mean to us? Simply put, short of a federal injunction, it is not a matter of “if” but “when” numeric criteria will be implemented in Florida. USEPA has stated that they believe FDEP would have eventually established numeric criteria for Florida waters, and that the NNC at their core simply speed up that process. Indeed, despite significant differences in the way FDEP and USEPA are approaching nutrient criteria, the FDEP draft language is indicative of that, and if adopted would establish similar criteria to those contained in the federal rule.

In USEPA’s opinion, the costs of the NNC to the regulated community are outweighed by the environmental costs associated with delays in implementing numeric criteria. Even the NAS committee is focusing on “the incremental cost of the federal regulation” rather than the science behind the regulation. It is true that embedded in those estimates are some assumptions regarding the effectiveness and necessity of various wastewater treatment technologies. Ultimately, however, their findings will not be on the merit of the rule, but rather on the validity of the various estimates of the cost of the rule that have been prepared.

Timely, topical dispatches from BC Water News contributors.


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