Florida Numeric Nutrient Criteria


Overview of Florida Numeric Nutrient Criteria Rule

Background

Each state, under the Clean Water Act (CWA), must develop water quality standards (WQS) which relate to the designated uses of the states’ waters.

Florida currently uses a narrative nutrient standard to guide the management and protection of its waters. These standards state that “in no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of flora or fauna.” The narrative criteria also states that (for all waters of the state) "the discharge of nutrients shall continue to be limited as needed to prevent violations of other standards contained in this chapter,” [Chapter 62-302, FAC].

Also under the CWA, if the Administrator of the EPA determines that a revised or new standard is necessary to meet the requirement of the CWA, the Administrator must then promulgate revised or new standards (unless the state first adopts a revised or new standard that the Administrator approves). This requirement is referred to below as the “necessity determination.”

In a review of its own WQS, Florida determined that it needed numeric criteria. The EPA approved Florida’s revised Numeric Nutrient Criteria Development Plan in a letter dated September 28, 2007. The plan included having the criteria set by 2011.

However, environmentalists sued the EPA and its Administrator Stephen Johnson on January 17, 2008 for failing to exercise the nondiscretionary duty of developing new or revised water quality standards for the state of Florida.  The basis for their suit was a 1998 EPA document called the Clean Water Action Plan, which environmentalists believed to be the “necessity determination” described above. Florida Wildlife Federation, Inc. v. Johnson, Case NO.: 4:08-cv-00324-RH-WCS. The plaintiffs claimed that the Clean Water Action Plan was a formal determination by the Administrator that numeric nutrient criteria were necessary for Florida surface waters for the state to remain in compliance with the CWA.

The EPA initially contested the argument that the Action Plan was a formal “necessity determination,” and defended itself against the lawsuit.  However, in a memo in December 2008, EPA Assistant Administrator Luis Luna recommended to the Administrator (Steve Johnson) that he should grant a one-time delegation to Assistant Administrator Benjamin Grumbles to sign a “necessity determination” for the State of Florida. The memo indicated that the EPA did not agree at the time with the plaintiffs’ allegation that there was a determination made, but was concerned there was a chance that a court would agree with the environmentalists, which could spur litigation in other states.

In light of the litigation threat, the memo suggested that the EPA should gather nutrient data for the state of Florida on which to base a determination and gain a settlement agreement with the plaintiffs.  The delegation was made on December 29, 2008, and the “necessity determination” was made on January 14, 2009.  A consent decree was subsequently signed in the Florida Wildlife Federation case that committed EPA to propose numeric nutrient criteria for Florida fresh waters by January 14, 2010 and finalize the freshwater criteria no later than October 15, 2010. 

Administrator Jackson signed EPA’s proposed rule for numeric nutrient criteria for Florida’s fresh waters on January 14, 2010. NCBA and other agriculture groups sent a letter to EPA Administrator Jackson outlining concerns about the proposed rule and urged her to consider the impact on Florida’s economy and environment. The groups also submitted comments which questioned the scientific and legal foundation of EPA’s authority to set numeric criteria. On November 24, 2010, the EPA published the final rule, entitled “Water Quality Standards for the State of Florida’s Lakes and Flowing Waters.”

Litigation

On April 28, 2011, the Florida Cattlemen’s Association and the National Cattlemen’s Beef Association filed a petition in the US District Court for the Northern District of Florida, Tallahassee Division, challenging EPA’s final rule establishing numeric nutrient criteria for the State of Florida’s lakes, rivers, streams and springs.

The petition is an action for declaratory and injunctive relief due to the fact that the rule is arbitrary, capricious, an abuse of discretion

Litigation Points

EPA’s usurpation of Florida’s state rights to set nutrient criteria violates the premise of cooperative federalism which Congress intended to be the underpinning of the CWA.

The “necessity determination” is arbitrary, capricious and an abuse of discretion under the Administrative Procedure Act because it was created as a tool to avoid future litigation by inducing a settlement agreement with environmentalists, and did not make a determination based on the scientific evidence. 

The Instream Criteria is also arbitrary and capricious because EPA cannot establish a cause-and-effect relationship between the instream concentrations of nutrients and an observable negative biological response.

The numeric criteria are beyond the scope of EPA’s rulemaking authority under the CWA because the criteria are not protective of the designated uses (a requirement of the CWA).  The basis for this argument lies in fact that the EPA has yet to establish a cause-and-effect or dose-response relationship between nutrient concentrations and biological response in streams. Therefore, some streams could be designated as impaired when, in fact, they are not.

EPA’s numeric criteria ignored recent relevant recommendations from the Agency’s Science Advisory Board (SAB), most notably, the necessity to understand the causative link between nutrient levels and impairment; otherwise, it is not scientifically defensible.

EPA’s numeric criteria violate the APA because proper procedures were not followed when making the “necessity determination.”  There was no opportunity for public notice and comment.

Impacts on Cattle Producers

The impacts of this rule on the cattle industry are far reaching and costly.  First, to reach these numeric criteria, the Florida Department of Agriculture and Consumer Services has a statutory duty to adopt by rule Best Management Practices that ensure that agricultural impacts on impaired waters meet the requirements of the TMDLs that are adopted by the state and approved by EPA. The TMDLs must allow the impaired water to meet these new numeric nutrient criteria. The new mandatory BMPs’ implementation costs to Florida cattle producers will be substantial. Producers will be required to implement on-farm storm water treatment and retention practices, along with other BMPs.

The Florida Department of Agriculture and Consumer Services and the University of Florida (FDACS/UF) estimated a cost of between $855 million and $3 billion initially for Florida agriculture to implement the best management practices needed to meet EPA’s criteria.  Annually, FDACS/UF estimated costs to agriculture will be between $271 million and $974 million. Additionally, it is estimated that over 7,000 agriculture related jobs will be lost. The EPA estimated the cost to agriculture to be less than FDACS/UF’s estimate, between $19.9-23.0 million per year.

Second, this rule is considered to be a blueprint for similar efforts across the US, including in the Mississippi River Basin.  The process used to develop the Florida NNC sets bad precedent for the rest of the country where environmentalists’ lawsuits and petitions are currently pending in many states. It is evident that EPA intends to move quickly to the Gulf of Mexico/Mississippi River watershed. EPA has awarded a $7.1 million contract to Tetra Tech, an environmental engineering firm, from October 2010 to November 2012 to, among other tasks, develop nutrient criteria for states, develop a model of the Mississippi River by November 2011, and develop a Gulf of Mexico model by December 2012. It is important that the EPA be held accountable in Florida to prevent them from using the same rushed and flawed process in other parts of the country.

Third, rulemaking through consent decrees and with litigation strategy in mind as opposed to science is bad precedent and goes against NCBA policy that environmental regulations should be based on sound science.  It is also bad precedent to allow EPA to preempt states that are in the process of revising their own WQS.

Fourth, without a scientific basis linking the nutrient levels to water impairment, water quality in the state of Florida could actually be diminished. Without the scientific connection between nutrient concentration and a biological impact, the criteria could be set too low. A certain level of nutrients is required for maintaining natural ecosystems.

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...because I think they're the greatest national association
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assistance and services to cattlemen across this country.  
-Bob McCan, Texas