December 10, 2012 –
EPA’s approval of state numeric nutrient criteria a step forward, but issues remain

The U.S. Environmental Protection Agency approved the numeric nutrient criteria (NNC) previously adopted by the Florida Department of Environmental Protection and approved by the Florida Legislature.

The EPA approval is a major step forward in the NNC controversy. Numeric nutrient criteria will not have as significant an impact on Florida business as predicted under the EPA rules if the remaining issues can be successfully navigated. Following the remaining steps and changes to the rules will be critical for Florida business.

Gunster’s Environmental & Land Use attorneys are monitoring NNC and other environmental and land use issues. Please contact Terry Cole or another practice member for more information about how approval of the state’s NNC may affect your business or how its impact may be lessened.

Latest developments on the NNC issue:

On November 30, the EPA filed a notice with the federal court in Tallahassee saying it has taken all actions required regarding Florida NNC.

The EPA’s actions included:

The EPA filed its final and proposed actions in federal court for the Northern District of Florida on December 10, 2012.

Important notes:

Canals
South Florida canals south of Lake Okeechobee have no numeric criteria other than meeting Downstream Protection Values for protection of estuaries or downstream waters.

Coastal waters
The proposed EPA rule will cover coastal waters, including areas along Florida beaches and coast, outside of estuaries. The proposed numbers may be very difficult to meet and may impact Florida resorts, beach recreation areas and areas just outside of inlets or outlets to the coast.

Ditches and intermittent streams
Urban and agricultural ditches and canals as well as intermittent streams north of Lake Okeechobee are a major remaining issue. Since the state rule has no numeric criteria for those waters, they are subject to the EPA criteria, which will be difficult to meet. There is potential for this issue to be negotiated with the EPA and the state, addressed by explanation of current state programs, including use of Total Maximum Daily Loads, Best Management Practices, Basin Management Action Plans, waste load allocations and water-quality-based effluent limitations. However, that will require further rulemaking. Anyone concerned with this critical issue should follow it closely.

Estuaries not yet covered by state NNC
Indications are that the EPA will approve the few remaining estuaries not covered by the state rule once Florida adopts the criteria. The EPA approved the methodology and criteria adopted for the estuaries to date. The Environmental Regulation Commission was scheduled to consider NNC for north Florida estuaries in January, but that may be delayed a month.

Schedule
Two “public availability” sessions will be held in January at the Hyatt Regency in Tampa. These provide the opportunity for the public to submit written comments on the EPA’s proposed rules:

Total Maximum Daily Loads
TMDLs previously adopted by the Florida DEP and approved by EPA have been submitted by the state to the EPA for approval as site-specific NNC for those water bodies. Approval of those TMDLs is also important in resolution of the NNC issue in Florida.

For more information: Development of Numeric Nutrient Criteria for Florida’s Waters (Florida Department of Environmental Protection website)

Sign up to receive email alerts from Gunster’s Environmental & Land Use practice.

Sign up to receive email alerts from all Gunster practice groups, plus general firm news.