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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:

1.

Approval of the Florida DEP NNC rule, in its entirety, as final action;

2.

Proposed additional justification for the EPA stream NNC values (in light of the court order invaliding the stream standard);

3.

Proposed criteria for waters not covered by the state rule, including estuaries without an NNC, South Florida waters including ditches and canals, coastal waters outside of estuaries and tidal waters in the interface between streams and estuaries.

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:

January 17 1 p.m. – 5 p.m.
January 18 9 a.m. – 12 noon

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)

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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

Established in 1925, Gunster is one of Florida’s oldest and largest full-service law firms. The firm’s clients include international, national and local businesses, institutions, local governments and prominent individuals. Gunster maintains its presence in Florida with offices in Fort Lauderdale, Jacksonville, Miami, Palm Beach, Stuart, Tallahassee, Tampa, The Florida Keys, Vero Beach and its headquarters in West Palm Beach. Gunster is home to more than 165 attorneys and 200 committed support staff, providing counsel to clients through 18 practice groups including banking & financial services; business litigation; construction; corporate; environmental & land use; government affairs; health care; immigration; international; labor & employment; leisure & resorts; private wealth services; probate, trust & guardianship litigation; professional malpractice; real estate; securities and corporate governance; tax; and technology & entrepreneurial companies. Gunster is ranked among the National Law Journal’s list of the 250 largest law firms.

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