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In An Action With National Implications, U.S. EPA Establishes Numeric Nutrient Criteria For Florida‘s Waterways And Estuaries On Friday After A Protracted Court Battle

On Friday, November 30, 2012, EPA Administrator Lisa Jackson filed notice in federal court that the agency had complied with a 3-year old consent decree requiring adoption of new water quality rules for Florida, thereby triggering the establishment of numeric nutrient criteria for approximately 100 000 miles of waterways and more than 4,000 miles of estuaries in Florida.  A copy of the EPA’s press release regarding the compliance is available Here.  

The EPA’s action has national implications because most states have descriptive or narrative standards.  Environmental advocates applauded the EPA’s new rules.  “EPA’s response here will set the standard for the nation,” stated Earthjustice attorney David Guest on behalf of various environmental groups, including the Sierra Club. “What we’ve lacked is a set of quantifiable numbers that are basically a speed limit sign to make the law clear and enforceable. This is absolutely everything we hoped for. …”

The State of Florida Department of Environmental Protection (Florida DEP) had adopted its own rules, which were widely supported by agriculture, utilities, and other business interests and opposed by various environmental groups as too weak.  EPA had sought a 120-day extension of time to continue its discussions with the State on the alternate criteria but, when U.S. District Judge Hinkle had not ruled on the requested extension, EPA filed its notice of the proposed adoption by Friday’s court-imposed deadline.   In its press release issued on Friday (link immediately below), EPA compliments the Florida DEP for its efforts to protect the state’s waterways from nutrient pollution and adopts the State DEP’s numeric water quality standards as consistent with the requirements of the Clean Water Act.   The EPA press release continues on to note that,  “in accordance with a 2009 consent decree with the Florida Wildlife Federation—and because the state’s rules do not cover certain waters—EPA is also proposing two federal nutrient rules. One rule proposes numeric limits on the amount of nutrient pollution allowed in Florida’s estuaries and coastal waters, as well as streams in South Florida, which were not addressed in Florida’s rules. The other clarifies some provisions in the 2010 rule EPA promulgated establishing numeric limits on the amount of nutrient pollution allowed in Florida’s inland waters.” (emphases added). EPA will host public information sessions on the proposed rules in Tampa on January 17-18, 2013, along with web-based public hearings on January 22-24, 2013.

 As a matter of background, environmental, business, and agricultural groups have been embroiled in a protracted battle over proposed limits on nitrogen and phosphorus in Florida waterways. Industry groups object to the federal rules proposed in 2010, on the grounds that compliance would be too costly and difficult. Environmental groups assert that numeric nutrient standards are needed to curtail pollution from sources such as fertilizer, animal waste and sewage effluent.  Last February, Judge Hinkle threw out the federal rules for springs and waterways, finding them to be “arbitrary and capricious.”  The judge directed EPA to propose new limits by the November 30th deadline after earlier extensions.

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About this Author

Kerri L. Barsh, Environmental Compliance Attorney, Greenberg Traurig, Law firm
Co-Chair, National Environmental and Land Development Practice

Kerri L. Barsh practices environmental compliance including permitting, enforcement and litigation, and land use law.  Kerri has represented public and private clients on environmental issues including mold, hazardous waste regulatory and liability matters; wetlands and coastal permitting; air quality permitting; petroleum product contamination; and other compliance and enforcement matters.

305-579-0772