9/9 FRI 11:00 EPA's Numeric Nutrient Criteria 4
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Transcript of 9/9 FRI 11:00 EPA's Numeric Nutrient Criteria 4
Luna Phillips, Esq.
BackgroundExcessive nutrients are alleged to cause
algae blooms, encourage growth of nuisance vegetation and reduce dissolved oxygen
Harmful to fish and wildlife and reduce available habitat;
Phosphorus and nitrogen
Water Quality StandardNutrients are regulated under current WQSClean Water Act (CWA) Section 303(c)
requires states to develop water quality standards;
Water Quality Standards must include:Designated uses of a water body;Water quality criteria that are necessary to
protect the designated use;Anti-degradation components;
Water Quality Standards TodayWater Quality Criteria may be expressed in:
Numeric form;Narrative form (e.g. no imbalance in natural
populations of flora or fauna);Florida Currently has narrative nutrient criterionNumeric Criterion in the Everglades of 10 ppb for
P“In no case shall nutrient concentrations of a body
of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna.”
Rule 62-302.530, F.A.C., Table (47)(b);
When Standards are not reachedWater body is considered impairedMust adopt a TMDLs for that water bodyTMDL – Total Maximum Daily Load that a
water body can tolerate of a nutrient NPDES permits holders - utilities,
municipalities, the STAs - incorporate the TMDLs into discharges
Discharges into impaired water bodies must demonstrate that it will not cause or contribute to the impairment.
EPA’s Numeric Nutrient Criteria Florida’s Narrative criteria challenged
Lawsuit in July 2008 claimed that EPA had previously stated, in guidance, that numeric criteria was needed
Mandate EPA to adopt numeric criteria for Florida
January 14, 2009 – EPA issued a determination that numeric nutrient criteria were necessary for Florida to meet CWA requirements
What is in the Numeric Nutrient Criteria
Lawsuit settled in August 2009 with Consent Decree
On January 26, 2010 the EPA proposed Numeric Nutrient Criteria (NNC) for Florida
The NNC covers the entire state with eco-regions
Rivers, Streams, Lakes and South Florida Canals
Phosphorus, Nitrogen, Chlorophyll A
NNCNNC
NNC for Florida’s StreamsNNC for Florida’s StreamsRegion Total Nitrogen
(mg/L)Total Phosphorus (mg/L)
Panhandle West 0.67 0.06
Panhandle East 1.03 0.18
North Central 1.87 0.30
West Central 1.65 0.49
Peninsula 1.54 0.12
NNCNNC
NNC for Florida’s LakesNNC for Florida’s LakesLake Color/Alkalinity
Chl-a (mg/L)
Total Nitrogen (mg/L)
Total Phosphorus (mg/L)
Colored Lakes 0.020 1.27 0.05
Clear Lakes,High Alkalinity
0.020 1.05 0.03
Clear Lakes,Low Alkalinity
0.006 0.51 0.01
Numeric Nutrient Criteria for South Florida Canals
Total Phosphorus = 42 parts per billion
Total Nitrogen = 1.6 parts per million
Chlorophyll a= 4 ppb
NNC Provides for SSAC’sSSAC – Site Specific Alternative Criteria Request an alternative criteria to the NNC Difficult process to prove, EPA has admitted it has never approved let
alone processed a SSAC;
Technical Public Comments on the NNC
Whether levels are protective Methodology of Reference site approach Data set used Failure to Comply with EPA’s own Guidance
documentsFailure to consider the variability in water bodies Lack of analysis on supported habitat in a water bodyCanals – no accounting for flood control or water
supply functions DPV – Difficult to implement / Sparrow ModelPristine water bodies cannot meet the criteriaAllow TMDLs process to continue
Infrastructure ImpactWaste Water Treatment Plants - new
treatment technologies , none tested to these levels
Stormwater Dischargers - do not have same treatment requirements
More BMPs for storm water discharges – residential, agricultural or municipal
Increased treatment and infrastructure investments for utilities and governments
Impede Reclaim / Reuse of Water
Economic Impact of the NNCEPA’s estimates for compliance $4.7 and $10.1
million;The State of Florida and industry has estimated the
compliance costs in the billions;Agricultural industry estimates 855 million an d 3
billionPhosphate mining estimates at $1.6 billion in
capital expenses and $59 million in annual operating expenses
Utilities expect costs in the billions and as much as $600 annual in water utility bills
EPA’s Response to the Public Comments
December 6, 2010 – EPA published the Final NNC
Water Quality Standards for the State of Florida’s Lakes and Flowing Waters (40 C.F.R. Part 131);Most of NNC becomes effective March 6, 2012;Site Specific Alternative Criteria (SSAC) became
effective February 4, 2011
Applies to lakes and springs, rivers
Removed Estuarine and South Florida Canals - November 2011 / Final rule August 2012
NNC Litigation9 lawsuits have been filled challenging
the NNCThe State of FloridaThe SFWMDUtilitiesFlorida Cattlemen Association
FDEP filed Petition asking EPA to withdraw its 2009 Determination – April 22, 2011
Latest on NNCCongressional Leaders have issued letters –
Senator Rubio legislation to defund NNC Senator Nelson’s Letter to Lisa Jackson to suspend NNC Congressman Stearns ‘ Hearings 57 Organizations have written to the Congress re NNC
HB 239 on NNC – New Version In January? New Reclassification of water bodies in Florida EPA Letter to DEP September 6, 2011 Addresses the State’s authority regarding the NNC
Science Advisory Board – July 2011 on the SF Canal Portion
More is needed on Estuarine health, lack of causal link , questioned whether the criteria was meaningful to protect managed or man made canals.
What’s Next ?NNC Rule Develops in the CourtroomNational and Congressional AttentionThe DEP is developing its own NNC RuleDEP and EPA continue negotiations over ruleReclassification of Florida’s water bodiesSouth Florida Canal Portion - November
2011
Luna Phillips, Esq.Board Certified in State and Federal
Administrative and State Practice LEED AP