May 2, 2013 –
Florida water-quality standards update: Good news for business interests

The following is an update on recent action on adoption of water-quality standards in Florida. Please contact Terry Cole or another member of Gunster’s environmental and land use law practice for more information.

1. Revised Dissolved Oxygen criteria adopted

Revisions to the Florida Dissolved Oxygen (DO) criteria were adopted by the Environmental Regulation Commission (ERC) at its April 23 meeting. This is a very favorable development for business interests such as permittees and dischargers since it reflects natural Florida conditions where DO lower than the previous criteria are common, even in pristine water bodies. There will be less need to apply for Site-Specific Alternative Criteria, which will save time and money for permittees. Water bodies currently listed as impaired may be removed from the list of impaired waters. The revised DO criteria must be submitted by the Department of Environmental Protection (DEP) to the U.S. Environmental Protection Agency (EPA) for approval prior to becoming effective. These revised criteria are expected to be approved.

2. Numeric nutrient criteria manual adopted

The ERC also adopted a manual for implementation of numeric nutrient criteria (NNC) as a rule. The manual was previously submitted to the EPA to address a number of questions about Florida’s NNC rule. Environmental groups challenged the manual as an unadopted rule. It has been adopted as a rule to resolve the challenge and will be submitted to the EPA as part of the state’s NNC rule package.

Landowners with canals or ditches on their property need to be aware that the NNC applies to these water bodies (most of which cannot meet the criteria). The manual establishes a process to exempt canals and ditches from the rule if notice and required information is submitted to the DEP demonstrating that the water bodies were artificially created and are not used for navigation.

3. Human-health-based criteria not adopted

The ERC voted not to adopt stringent proposed revisions to the human-health-based water quality criteria, which the DEP had based, in part, on new EPA guidance that had previously been applied to no other state.

Instead, the ERC voted to continue the hearing until August or September. The ERC asked Florida’s DEP to review data and information raised at that hearing by business and environmental groups.

Issues raised by business interests included:

• Fish consumption data used in calculating the numerous new criteria were short-term data, although the rule was based on a lifetime of exposure from fish consumption. Testimony pointed out long-term exposure data was available and thus assumptions for exposure due to fish consumption should have been adjusted to reflect long-term exposure, making the criteria much less stringent.
• New EPA “guidance” required the DEP to use a new policy known as relative source contribution (RSC). The new policy has not been required of any other state and did not provide a basis for the criteria to be revised to appropriately set the criteria consistent with Florida’s risk target levels. The risk level can be determined by using a chemical specific analysis, which the ERC asked Florida’s DEP to explore after several chemical-specific examples of such a calculation were provided.
• In addition, the proposed criteria inappropriately utilized monthly averages for non-carcinogenic criteria although a chronic or long-term toxicity basis was available and should have been used.

The ERC and its chair did an excellent job in sorting through these very complex issues and data.