Florida’s Department of Environmental Protection is considering over 40 new criteria as part of the department’s renewed rule making initiative. The effort will also make many current criteria far more stringent than they are now.

“Human-health-based water quality criteria” are based on the assessment of risks to human health (whereas most other criteria are based on protection of aquatic life). The risk assessment considers several points of exposure, including fish consumption, dermal and direct water consumption. It is based on many very conservative assumptions, thus the extremely strict draft water quality criteria.

The department’s rule making effort is on a fast track for adoption by the Environmental Regulation Commission by early December, in order to meet the Environmental Protection Agency’s commitments to environmental groups.

Who is affected?

Many of the proposed criteria are far below current detection levels. However, as sampling and analytical techniques improve, many waters may be deemed impaired, mixing zones become unavailable due to the impairment, and these very strict criteria may become an end-of-pipe effluent limitation. Large expenditures by permit applicants/holders may become necessary – if the criteria can even be met.

It is important that dischargers, permit applicants/holders, laboratories and consulting firms become familiar with and participate in the rule making and implementation. The new criteria will impact utilities, due to the presence of disinfection products. It may also affect agriculture, due to low levels of legacy pesticides or herbicides.

If you work in an industry that will be impacted by these criteria, we encourage you to contact Terry Cole, a shareholder in Gunster’s environmental and land use practice, for more information about how to best prepare for and participate in the rule making process.

Our concerns

Here are just a few of our concerns with the proposed criteria:

  • No health risk/issue in Florida waters has been identified. Thus, there are no demonstrable benefits to the state of Florida for implementing these criteria, other than complying with another deal cut between environmental groups and the EPA.
  • Cause and effect has not been demonstrated by the department. Such a demonstration has historically been a prerequisite for rule making. The lack of such a showing was the reason for the invalidation of EPA numeric nutrient criteria for streams and downstream protection values by the U.S. District Court for the Northern District of Florida.
  • The data used in developing the draft rule is faulty. The fish consumption data is almost 2 decades old. The data utilized by the department do not reflect current markets or fish consumption patterns
  • The rule would discourage the consumption of fish from Florida, impose major cost and regulatory burdens on Florida business and agriculture, and would put Florida at a competitive disadvantage as compared with neighboring states that have less-stringent rules.


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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