EPA May Set Numeric Nutrient Standard for Florida Waterway

by Bruce Ritchie
The News Service of Florida

Florida's lakes, streams and rivers are not being adequately protected by state regulations from nitrogen and phosphorus pollution, according to the U.S. Environmental Protection Agency.

The federal agency says it will begin setting numeric nutrient standards for Florida within a year, unless the state does so first. While state and federal officials say the move will help clean up and protect Florida waters, some environmentalists say they will remain at risk because of foot-dragging by regulators and opposition from industry groups.

A Florida rule says nutrients -- mainly nitrogen and phosphorus -- entering waterways must not allow "an imbalance" of plants, fish and animals. But federal officials say having such a "narrative" standard rather than measurable nutrient limits has made protection difficult.

{sidebar id=1}State officials said they agreed with EPA's decision to set limits. The Florida Department of Environmental Protection is working on a plan to propose some measurable "numeric" criteria by the end of the year.

"The state of Florida recognizes that more needs to be done to address nutrient pollution in our rivers, streams, lakes and estuaries," DEP Secretary Mike Sole said in a statement.

Environmental groups including the Florida Wildlife Federation, the Sierra Club and the Conservancy of Southwest Florida sued EPA last year to force it to set a numeric standard.

The groups said the EPA in 1998, under President Clinton, determined that the prompt establishment of numeric standards were required nationwide. Industry groups say EPA did not make required legal determination in 1998 to set numeric standards, though that's what the federal agency did earlier this month for Florida.

The EarthJustice law firm, which represents environmental groups, said little was done at EPA under President Bush toward setting the numeric standards. The groups say between 2005 and 2007, portions of the St. Johns, Caloosahatchee, and St. Lucie rivers were covered with algae because of high nutrient levels.

In 2006, visitors to Wakulla Springs and Ichetucknee Springs broke out in rashes -- a symptom of toxic algae, EarthJustice said in a lawsuit filed last year in federal district court in Tallahassee.

The EPA expects to set measurable limits for lakes and streams within 12 months and within 24 months for estuaries -- unless the state does so first, Assistant EPA Administrator Benjamin H. Grumbles wrote in a letter to Florida.

Monica Reimer, an EarthJustice attorney in Tallahassee, said EPA still is failing to set a firm timeframe for establishing numeric standards. She said the federal agency still is leaving it up to the state, which she said has failed in the past to regulate nutrients flowing from farms, cities and other "non-point" sources.

The EPA's position "is 'we expect (to take action)', which is a continuation of the prior (Bush) administration policies (that) the states can have as long as they want," Reimer said. "EPA will not act to create measurable limits."

{sidebar id=1}But industry groups expect DEP to propose the numeric standards and are concerned about whether they'll be scientifically sound, said Winston Borkowski, an attorney whose Hopping, Green & Sams law firm in Tallahassee represents a wastewater utilities group.

"You will find most of the regulated folks don't have a problem with adhering to the law, they just want to know what the law is," Borkowski said. "What this (EPA action) does is insert a lot of uncertainly into their future and affects their investments in facilities."

The group Public Employees for Environmental Responsibility criticized the EPA action, saying it "signals a breakdown in the state's water pollution protection program so profound that federal intervention is required." The EPA determination letter was issued Jan. 14, a few days before President Bush left office.

"When the Bush EPA is forced to step in (that) is a sign that things are really bad," Jerry Phillips, a Florida representative for PEER, said in a statement.

EPA spokeswoman Enesta Jones said the agency had no comment beyond the Jan. 16 news release.

In the EPA determination letter, Grumbles said Florida has developed some of the most innovative nutrient management strategies in the nation.

Daryll Joyner, chief of DEP's Bureau of Assessment and Restoration Support, said he couldn't disagree more strongly with Phillips. Joyner said EPA is moving ahead with Florida because the state's technical understanding of nutrients and their biological responses is ahead of other states.

“We certainly agree there is a significant nutrient problem in the state of Florida," Joyner said. "But I think it is no different than anywhere else in the country. Nutrient impairment is the big issue nationwide. We are not uniquely bad."

DEP expects to propose some numeric standards to the Environmental Regulation Commission before the end of the year, Joyner said. EPA could adopt those standards if the ERC adoption takes longer.

Grumbles said in his letter that Florida, with its unique and nationally-valuable aquatic ecosystems, such as coral reefs, faces serious challenges because of population growth.

Last year, the state reported that 1,000 miles of rivers and streams, 350,000 acres of lakes and 900 square miles of estuaries were "impaired," largely because of nutrients. More waterways could become listed in the future as they are studied, the EPA said.

"The combined impacts of urban and agricultural activities along with Florida's physical features and important and unique aquatic ecosystems make it clear that the current use of the narrative nutrient criterion alone is insufficient to ensure protection ... ," Grumbles wrote.

This article originally published on February 3, 2009.

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