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EPA & Florida Reach Agreement on Disputed Nutrient Standards for Florida’s Waterways

On Friday, March 15, 2013, the Florida Department of Environmental Protection (DEP) announced an Agreement in Principle with the U.S.  Environmental Protection Agency on the new criteria for Florida’s waters that would limit nitrogen and phosphorus, two nutrients commonly blamed for algae blooms and other water quality problems.  The EPA Agreement in Principle is intended to resolve a lengthyand contentious dispute between EPA and environmental advocacy groups who called for more rigorous regulations and State regulators, utilities, and agricultural interests  who opposed the federal standards as overlybroad and too costly to implement.  

As noted in an earlier E2 blog post, EPA approved the state ’s new rules for streams, lakes and springs and South Florida estuaries and coastal waters in November 2012, but proposed federal criteria for  the remaining estuaries, coastal waters and South Florida streams and canals. Florida  DEP responded by maintaining that implementation of the state rules was prohibited under an “all-or-nothing” provision in  2012 state legislation because  EPA wascontinuing topropose federal pollution limits.

The announcement of the Agreement by the Secretary of Florida DEP was applauded by the representatives of the State and U.S. Legislatures. The EPA Region IV Administrator similarly congratulated “the state of Florida for their hard work on this very complicated effort.”   EPA’s regulation of Florida’s waterways has been the subject of protracted state opposition, as well as intense bipartisan criticism from Florida’s congressional delegation.  The U.S. House of Representatives reportedly voted in 2011 to terminate funding for EPA’s numeric nutrient criteria program if the federal rules were implemented.  U.S. Senator Rubio issued a statement on Friday, calling the agreement “a significant win for job creators across the state” and “important for the economy that state agencies, not Washington ‘bureaucrats,’ controlled pollution rules.”     

Whether the Agreement by Florida and federal regulators will mark the end of what has been described by the Secretary of Florida DEP as “the endless litgation” remains unclear.  An attorney for EarthJustice, the firm who had sued the EPA over the delay in the establishment of the numeric limits, condemned the new standards as “bogus” and “flawed” and noted that federal district Judge Robert Hinkle must still approve the Agreement before the dispute is settled.  In addition, the Agreement itself requires the Florida Legislature to adopt the document setting forth the path for implementation of Florida’s numeric nutrient standards  and withdraw the “all-or-nothing” provision in the 2012 state legislation, once EPA approves the state rules.  

If everything proceeds as outlined in the Agreement,  the dual federal and state nutrient criteria rulemaking will be eliminated upon adoption of the state legislation and completion of the DEP rulemaking to encompass all coastal and inland waterways, a process that is required to be concluded by December 2014.    

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About this Author

Kerri Barsh, Environmental Compliance Attorney, Greenberg Traurig, transactional counsel, due diligence lawyer, hazardous materials law
Shareholder; Co-Chair, National Environmental Practice

Kerri L. Barsh represents public and private clients on an array of environmental regulatory, permitting and litigation matters, including transactional support and due diligence, environmental assessment and liability matters, energy and infrastructure projects, wetlands and coastal permitting, complex land use projects, air quality matters, hazardous materials contamination, and other compliance and enforcement cases.

Areas of Concentration:

  • Environmental compliance, permitting, enforcement, including...