This is the first of several comment letters that will be submitted to the US EPA regarding Florida’s 2012 Impaired Waters list or also called the 303(d) list. This first letter is addressed to Secretary Vinyard but is primarily intended for EPA’s administrative record.
April 25, 2012
Mr. Herschel T. Vinyard, Jr., Secretary
Florida Department of Environmental Protection
3900 Commonwealth Boulevard
Tallahassee, FL 32399-3000
Dear Secretary Vinyard:
The Clean Water Network of FL is a statewide coalition of 300 organizations that work together for the Protection of Florida’s waters. We began following your Department’s work on development of a list of impaired waters in the mid-1990’s. Section 303(d) of the Clean Water Act is one of the most important tools that we have for the implementation and enforcement of all other Clean Water Act programs. Without an accurate 303(d) list, it is virtually impossible to fully implement NPDES, wetlands, or stormwater programs. Clean Water Network of Florida and its members have been actively engaged in helping the Florida DEP develop an accurate 303(d) list for the past 13 years. We have witnessed a wide spectrum of policies and strategies from FDEP, the US EPA and from the major polluting industries and business interests across the state. We have filed untold numbers of comment letters, attended dozens of public meetings, and shared hundreds of conversations with all of the above-mentioned parties, given hundreds of workshops, lectures and panel discussions on the subject of Florida’s impaired waters. As a last resort, we have filed four lawsuits in federal courts in order to ensure that Florida’s waters receive the protection that they are promised in the Clean Water Act. We won all four of those suits and yet today we find that your agency is still in lock step with the same politically powerful polluters that are largely responsible for the degradation of many of Florida’s impaired waters.
As a corporate lawyer who was formerly employed by regulated businesses, you may not fully appreciate the personal attachment that most Floridians have to healthy springs, lakes, streams, estuaries and coastal waters. While clean water or lack thereof does affect all of us economically, for most of us it is not about the money. Clean water is about our health and our quality of life. It is about a safe haven for wildlife and most importantly it is about the kind of future that we leave to our children. It is incredibly disappointing to have state leaders who seem to have no interests except for those that lead to political power and success. We are so appreciative that we live in a country where we can still take our grievances against government malfeasance to a court of law. Because there is no chance that we can receive an unbiased hearing in Florida at the Division of Administrative Hearings (DOAH), we will be forced to raise the issues outlined below in federal court again. Therefore, we will not be petitioning you to send our concerns to DOAH, but will be forwarding this letter on to EPA in hopes that they will follow the mandates of the 11th Circuit, as outlined in the Court Orders from our previous lawsuits.
The attached list of issues is not final but will provide a representative list of concerns that we find thus far with your 303(d) lists dated February 7, 2012. One of our many concerns with the delistings for Groups 2, 3, 4 and 5 as well as the impaired waters that were not listed in the first place is that it appears that you have not complied with your own Impaired Waters Rule which says that once a water is placed on the verified list, you must follow your own delisting procedures.
“(2) Water segments shall be removed from the State’s verified list only after completion of a TMDL for all pollutants causing impairment of the segment or upon demonstration that the water meets the water quality standard that was previously established as not being met.”
This does not mean that you can stop sampling or fail to gather enough samples to meet your statistical requirements and then declare the water is clean because you didn’t have enough data to prove (again) that it is impaired. Under the Clean Water Act, the federal and state governments share duties to monitor and regulate water pollution, with the states bearing primary responsibility for implementing pollution control mechanisms and the federal government overseeing the states’ actions in that regard.
It appears that FL DEP has once again created new water quality standards through unofficial changes to the IWR, which have not been approved or disapproved by the US EPA and for which no public notice has been provided. EPA must review a new or revised water quality standard to determine whether the state has adopted criteria that are consistent with the requirements of the CWA and protect the designated water uses, whether the state has followed its legal procedures for revising or adopting standards, and whether any designated uses not specified in 33 U.S.C. Section 1251(a)(2) are based on appropriate technical and scientific data and analyses. See 40 C.F.R. Section 131.5. Revisions also must comply with the state’s anti-degradation policy and must maintain the existing quality of each of the state’s waterbodies. See 33 U.S.C. Section 131(d)(4)(B); 40 C.F.R. Section 131.12.
The CWN-FL and its members have taken EPA to court several times on this issue. On December 2, 2002, we filed a citizen suit in the Northern District Federal Court against the EPA, alleging that the EPA failed to perform a nondiscretionary duty under Section 303(c) of the CWA to review Florida’s IWR as establishing new or revised water quality standards. See Fla. Pub. Interest Research Group Citizen Lobby, Inc. v. E.P.A. (“FPIRG 1”), No. 4:02cv408 (N.D. Fla. Filed Dec. 2, 2002). The EPA filed a motion for summary judgment in which it argued, among other things, that the State of Florida did not submit – and the EPA did not approve – the IWR and that IWR therefore did not constitute a change to Florida’s existing water quality standards requiring the EPA’s review and approval.
The 11th Circuit eventually reversed a lower decision and made it clear that just because the state did not characterize the IWR as new or revised water quality standards and engage in formal rulemaking proceedings did not mean that the IWR did not constitute a change to Florida’s existing water quality standards, if the standards in fact were modified. See Fla. Pub. Interest Research Group Citizen Lobby, Inc. v. E.P.A. (“FPIRG II”), 386 F.3d 1070 (11th Cir. 2004).
According to the Eleventh Circuit, in determining whether the IWR constituted new or revised water quality standards, the district court was required to conduct an independent review of the effect of the IWR on Florida’s existing water quality standards. Id at 1088-89. If “waterbodies that under pre-existing testing methodologies would have been included on the list were left off the list because of the Impaired Waters Rule, then in effect the Rule would have created new or revised water quality standards . . .” Id. At 1090. In other words the district court should have “examined whether there were waterbodies that were equally polluted both before and after the Impaired Waters Rule took effect, but that were classified differently depending on whether or not the Rule was used.” Id.
Eventually the EPA issued a determination on July 6, 2005 finding that many portions of the IWR did not constitute new or revised water quality standards but that other portions did, requiring the EPA’s review and approval. One of EPA’s many findings was that the IWR provision prohibiting the listing of any water based on less than 20 samples was not reasonable in all situations. EPA then added numerous delisted waters back onto Florida’s 303(d) list. EPA also decided that the IWR provision prohibiting the listing of any water where the pollutant causing an impairment is unknown was not reasonable. EPA disapproved the State’s failure to list certain waters based on this provision and added those waters to the State list.
Once again we believe that Florida DEP has arbitrarily changed Florida’s water quality standards through the IWR and has not received approval from EPA to do this. Florida continues to ignore the Eleventh Circuit Order as well. EPA must not approve the delistings below which we assert are contrary to Florida’s water quality standards.
In our most recent court case, we challenged EPA’s determination that certain provisions of the State’s amended IWR do not constitute new or revised water quality standards because, in so finding, the EPA failed to apply the Eleventh Circuit’s “effects test.” We assert that if EPA is to avoid arbitrary or capricious actions again, then the State’s new Impaired Waters List for Group 5 and the amended lists for Groups 2, 3 and 4 must be reviewed using the “effects test.” We assert that many of the delisted waters or unlisted impaired waters are being left off of or removed from the state’s section 303(d) list because of the Impaired Waters Rule and not because the waters are not impaired.
EPA’s own guidance prohibits many of the delistings that the State has made and requires that the waters on the 1998 303(d) list remain on the list.
Group 5 Perdido Basin Delisting Analysis 2012
The Perdido Bay and its watershed are recognized as one of the most degraded in the state. Upper Perdido Bay crashed around 1998 after 40+ years of constant abuse from the International Paper Company mill (IP) which discharges into Elevenmile Creek and then into Upper Perdido Bay. IP and the Florida DEP spent years building a hideously ridiculous case for the Bay’s woes being caused by the Perdido pass, which is miles below the heavily polluted waters of the upper bay. A narrow area that causes poor flushing in the upper portion of the bay divides the upper and lower bays.
After allowing the mill to discharge into Elevenmile Creek and then Perdido Bay for decades without a valid permit, DEP finally issued a permit for the mill to discharge their 25 to 30 million gallons per day of industrial waste down a hill (which is called an experimental wetland by IP) and eventually run off into Tee and Wicker Lakes and also 30% into lower Elevenmile Creek. Tee and Wicker Lakes were somewhat protected from IP’s pollution before this change in discharge location, but now will bear the brunt of the industrial short-cut around the Clean Water Act.
There is also a sewage plant that discharges into wetlands and then Bayou Marcus Creek before entering Perdido Bay. A newly added insult to the existing injury is coming from a new ECUA sewage plant that is now discharging jointly with IP’s discharge. Other tributaries to Upper Perdido Bay include Eight-mile Creek, which is severely modified by urban development. There are numerous other tributaries in similar distress. The Perdido River carries a substantial amount of agricultural pollution to the Bay.
Perdido Bay was at one time a pristine, highly productive estuary that was lush with shrimp, crabs, clams, scallops, oysters, and a wide variety of fish, but is now essentially dead. The DEP now tries to paint a picture with its Impaired Waters list of a system that is troubled but essentially okay. Nothing could be further from the truth.
Elevenmile Creek, which is ground zero for upper Perdido Bay’s pollution problems, is portrayed as biologically bankrupt, but only due to the forces of nature and not in the least because its entire flow is essentially papermill waste. The attached lab report, provided by Friends of Perdido Bay, provides a more accurate snapshot of Eleven-mile Creek conditions. The extremely high levels of sulfate shown on the report would inhibit both algae blooms and foaming that is typically found in papermill effluent. These high levels of sulfate would definitely kill most plants. Also note the residual chlorine in the sample.
Throughout the Perdido Bay report, we see the highly skilled efforts of DEP administrators to mask the water quality problems that plague this formerly productive water body. Samples are cherry-picked to provide a rosy picture. Sampling locations and conditions are selected to avoid the worse problem areas and times. Local citizens have requested administrative hearings for DEP’s delistings of Perdido Bay for various pollutants and have been turned down. Perdido Bay has been in steady decline for decades and the attached documents provide documentation of the impairments that continue to create a dead estuary.
In reviewing DEP’s Group 5 303(d) list and the delisted waters, as well as DEP’s Group 5 Master List which is titled G5C2 (attached), you will find on line 2683 where it says, Current Assessment Status (Column P) listing “causative agent not known” instead of “impaired” for failing bio assessments in Eleven Mile Creek.
The comments do not mention that the Eleven Mile Creek receives over 20 MGD of paper mill wastewater and should not say “causative agent not known” from a mill that has been discharging to public waters since the early 1940’s. Especially since Eleven Mile Creek is listed as impaired for BOD (line 2691) and DO (line 2692) with total nitrogen and total phosphorus identified as causative pollutants. The IP permit (attached) provides a list the all the pollutant load such as sulfates (STORET 300-450mg/l) that are found in Eleven Mile Creek.
Dr. Jacqueline Lane, a marine biologist and long-time resident on Perdido Bay as well as President of Friends of Perdido Bay, reports that she has recently been conducting nutrient sampling in Bayou Marcus near the mouth to check on the new discharge from ECUA to Perdido Bay. On 7/31/11, she found a Total nitrogen of 3.0 mg/l and a Total Phosphate of 0.019. Most of the TN was in the form of organic nitrogen. On 12/5/11, the TN in the mouth of Bayou Marcus was 2.9 mg/l; again most is in the form of organic nitrogen. On 3/7/12 in the mouth of Bayou Marcus, the TN was lower, 0.52 mg/l, but the phosphate had risen quite a bit to 0.091 mg/l from the previous July. The Total nitrogen, at least in the July and Dec 2011 samples, were heavily influenced by values in 11-mile Creek about 9.5 mg/l.
On 3/7/12, she measured sulfate levels of 540 mg/l in 11-mile Creek at 297A bridge. Considering IP’s flow, this would amount to 91,000 pounds per day of sulfate. Background sulfate levels should be below 10 mg/l. STORET shows in 2010 there were many samples over 400 mg/l. Background streams in the area (Ten Mile Creek, Churchhouse Branch) had sulfate concentrations of 2 to 3 mg/l.
In view of the chemical pollutant load discharged, low DO, and high BOD, the author of the comments must not have visited Eleven Mile Creek CR297 in order to say “According to habitat assessments, it is failing at least in part due to poor habitat smothering, substrate availability, substrate diversity, riparian zone vegetation, riparian buffer zone width, and bank stability; not due to a pollutant.”
Eleven Mile Creek is affected by the highest concentration of chemical pollution load in Florida. In addition many of the poor habitat conditions are related to mill discharge i.e. organic loading caused smothering, lack of substrate, and diversity. Alteration of flow i.e. treatment pond dam failures caused erosional flooding that affected bank stability, riparian vegetation and buffer zone. Industrial chemicals disrupted the native plant communities that were replaced by tolerant invasive exotic plants.
The table below provides some examples of various strategies used by DEP to not list impaired waters or to delist waters that have previously been listed as impaired. It is impossible to list every case where this is done, simply because DEP’s duplicitous behavior is so extensive. We will continue to document impaired waters that are being presented as healthy by DEP.
For all of Florida’s waters,
Linda L. Young Dr. Jacqueline Lane, President
Director James Lane
Friends of Perdido Bay
|Delisting or not listing in the first place rationale||WBIDs (with parameter) Affected||DEP Remarks||Our comments or further Info Required?||Recommendation for Correction|
|1998 303(d) WBIDs delisted not meeting delisting requirements pursuant to the IWR and EPA guidance – generally based on the number of exceedances for the sample size.||WBID 935Dissolved Oxygen||Delisted with only 22 samples.||62-303.720(2)(3)(b) requires a minimum of 30 samples to delist.||Weekly Bayou should remain on 303(d) list.|
|WBID 987Dissolved Oxygen||Delisted with only 25 samples.||62-303.720(2)(3)(b) requires a minimum of 30 samples to delist.||Bayou Garcon should remain on the 303(d) list.|
|WBID 291 Fecal Coliform||Delisted with 28 samples.||62-303.720(2)(3)(b) requires a minimum of 30 samples to delist.||Jack’s Branch|
|DEP claims there is Reasonable Assurance that the waters will get cleaned up through another effort:||WBID 489Un-ionized Ammonia||Claims that IP will move their discharge from the water.||11-Mile Creek should remain on the list since IP is only removing part of their discharge from the waterbody and the violations of WQS will continue indefinitely.|
|WBID 489 Chlorine||Claims that IP will move their discharge from the water.||11-Mile Creek should remain on the list since IP is only removing part of their discharge from the waterbody and the violations of WQS will continue indefinitely.|
|Impaired but may be a Natural Condition||WBID 489 Specific Conductance||Admits impairment but claims that it could be natural.||There is no scientific basis to think that this creek would naturally have such high levels of Specific Conductance. The IP discharge is very high in specific conductance.||This WBID should remain on the 303(d) list and get a TMDL. The mill is obviously the source of impaired conditions.|
|WBID 624 Alkalinity||Admits impairment but claims it could be natural.||Look up USGS water quality data for natural streams and you will see that in this part of the state they are all low in Alkalinity.||This should remain on the 303(d) list and get a TMDL.|
|WBID 725Alkalinity||Admits impairment but claims it could be natural.||Look up USGS water quality data for natural streams and you will see that in this part of the state they are all low in Alkalinity.||This should remain on the 303(d) list and get a TMDL.|
|Nutrient Delistings when DO is impaired with TN or TP as causative pollutant||WBID 489 Nutrients||Moved to the planning list for further investigation even though the impairment is documented||This WBID should remain on the 303(d) list and get a TMDL.|
|Flaw in Original Analysis||WBID 784 Nutrients||Claims high nutrient levels were caused by an accidental discharge from IP. However, now IP is discharging high nutrients into these lakes on a daily basis and the impairment will continue.||New data is available and it shows nutrient levels on the rise.||This WBID should remain on the 303(d) list and get a TMDL.|
|Binomial distribution is illegally applied||WBID 797 Nutrients||Claim is that recent data doesn’t meet the threshold for nutrient impairment||DEP data needs to be carefully scrutinized for accuracy.||Upper Perdido Bay is documented as one of the most eutrophic estuaries in the state. This delisting is faulty and unbiased data will show that it should remain on the list.|
|Minimum sample size requirement is illegally applied||WBID 797 Dissolved Oxygen||Claims that it doesn’t meet the minimum number of exceedances.||There is an abundance of data showing that Upper Perdido Bay is low in dissolved oxygen. It should remain on the list and get a TMDL.|
|WBID 697ADissolved oxygen||Claims there is not enough samples even though 4/8 samples showed impairment.||This WBID should remain on the 303(d) list and get a TMDL.|
|Fecal coliform requirement is illegally applied||WBID 624 – Fecal coliform||Claims that there is inadequate data. Ignores previous data that shows high coliform levels in this highly urbanized stream.||Data should be collected from the upper reaches of the creek all the way down. This would show that the creek remains impaired for coliforms.||Eight-mile creek should remain on the 303(d) list for Fecal Coliforms or Coliforms.|
|WBID 72 Fecal Coliform||Claims it doesn’t meet the threshold||Should remain on the 303(d) list.|
|Age of data requirement is illegally applied||WBID 624 – Dissolved Oxygen||Claims that the water quality problems magically disappeared. Ignores previous data and only uses data collected from the mouth of the creek where extensive mixing occurs.||Eight-mile Creek is a highly impacted water with urban run-off and hydrologically modified conditions that make all but the mouth highly impaired. The creek should remain on the 303(d) list.|
|Causative pollutant is unknown||WBID 489Elevenmile Creek – Biology||Placed on 4b list with claim that the causative pollutant is unknown. Tries to blame on physical issues||This is the receiving water for IP’s 25 mgd of industrial waste. This should not be placed on the 4b list. There are numerous pollutants working in concert to impair this water.|
|WBID 697 Alkalinity||Even though DEP admits the stream is impaired, they claim it could be natural so therefore it is not on the Verified list.||Bayou Marcus is the receiving water for a sewage plant, which are known to have high alkalinity in their discharges. This creek is largely fed by groundwater, which is known to be low in alkalinity in this part of the state.||Bayou Marcus is clearly impaired with 25/29 samples exceeding the criteria. It should be on the 303(d) list.|
|No Data||WBID 797Biology||Claims there is no data regarding the biological condition.||There is an enormous amount of data regarding the degraded biology of upper Perdido Bay. DEP chooses to ignore it.||Dr. Skip Livingston has written volumes regarding the biological condition of upper Perdido Bay. Also, there are volumes of data and information from numerous lawsuits and hearings about the biological condition of this water body. It is one of the most impaired estuaries in the state and must remain on the 303(d) list for biological integrity.|
|WBID 489 Oil and Grease||Claim that there is no new data.||Oil and grease continue to be discharged by IP and therefore the data is available.||This WBID should remain on the 303(d) list based on readily available data, regardless of age.|
|Other reasons||WBID 489Dioxin||DEP says it is a banned substance, which is not true. Then they claim it’s in the solids on the bottom of Elevenmile Creek, so it’s not a water quality problem.||Dioxin is persistent and bioaccumulative and has continued to be discharged in IP’s wastewater. If DEP believes it has magically disappeared, then they should have the solids sampled for Dioxin.||There is no reason to think that the dioxin is not still present. The solids that have settled on the bottom of Elevenmile Creek are easily resuspended and are absolutely part of the water column and are contaminating the fish and other aquatic life, which means that the designated use is adversely affected. Since the fish are unsafe to eat, the designated use is compromised. This WBID should remain on the 303(d) list for Dioxin.|
|WBID 489Turbidity||Claims it is no longer a problem.||IP discharges up to 16,000 lbs. of pounds of solids into the Creek daily, so the problem could clearly not be gone. They also have a 4 ft. diameter stormwater pipe discharging permanently into Elevenmile Creek, which is a constant source of turbidity.||The WBID should be included on the 303(d) list and get a TMDL.|
|WBID 624 Biology||Claims that it passed the assessments.||Eightmile Creek is an urban stream, highly impacted by runoff and habitat destruction. The bioassessments that passed were done at the extreme end of the creek near the mouth and they barely passed. Assessments done anywhere above would readily fail.||Eightmile Creek should remain on the 303(d) list and get a TMDL.|
 Here is language from a 2002 guidance document:
“This guidance does not, and cannot, change existing rules for listing and delisting. The existing regulations require states, territories, and authorized tribes, at the request of the Regional Administrator, to demonstrate good cause for not including waterbodies on the 303(d) list that were included on previous 303(d) lists (pursuant to 40 C.F.R. 130.7(b)(6)(iv)). Good cause includes, but is not limited to, more recent and accurate data, more sophisticated water quality modeling, flaws in the original analysis that led to the waterbody being listed, or changes in conditions, e.g. new control equipment, or elimination of discharges. Where a waterbody was previously listed based on certain data or information, and the state or territory removes the waterbody without developing or obtaining any new information, EPA will carefully evaluate the state’s or territory’s re-evaluation of the available information, and will not approve such removals unless the state’s or territory’s submission describes why it is appropriate under the current regulations to remove each affected waterbody. EPA has the authority to disapprove the list if EPA identifies existing and readily available information, available at the time the state or territory submitted the list, that shows a waterbody does not attain water quality standards.” See 40 C.F.R. 130.7(b)(6)(iv).
Here is additional language from a 2003 guidance document:
“2. What do States need to consider regarding “Good Cause” delisting?
a. What may constitute good cause for not including waters that were previously included in the current Category 5 (the Section 303(d) List)? If EPA requests “good cause” for not including on the 2004 submission waters that had previously been identified as impaired, the State must provide the reasons why the water has not been placed in Category 5. Consistent with 40 CFR 130.7(b) “good cause” for not including waters in Category 5 may be based on:
* The assessment and interpretation of more recent or more accurate data demonstrate that the applicable WQS(s) is being met.
* The results of more sophisticated water quality modeling demonstrate that the applicable WQS(s) is being met.
* Demonstration that flaws in the original analysis of data and information led to the water being incorrectly listed.
* The development of a new listing methodology, consistent with State WQSs and federal listing requirements, and a reassessment of the data that led to the prior listing, concluding that WQSs are now attained.
* A demonstration pursuant to 40 CFR 130.7(b)(1)(ii) that there are effluent limitations required by State or local authorities that are more stringent than technology-based effluent limitations, required by the CWA, and that these more stringent effluent limitations will result in the attainment of WQSs for the pollutant causing the impairment.
* A demonstration pursuant to 40 CFR 130.7(b)(1)(iii) that there are other pollution control requirements required by State, local, or federal authority that will result in attainment of WQSs for a specific pollutant(s) within a reasonable time (see Section II E of this document).
* Documentation that the State included on a previous Section 303(d) list an impaired water that was not required to be listed by EPA regulations, e.g., waters where there is no pollutant associated with the impairment.
* Approval or establishment by EPA of, a TMDL since the last Section 303(d) list.
* A State inappropriately listed a segment that is within Indian country, as defined in 18 U.S.C. Section 1151.
EPA has the authority to disapprove a submission if EPA identifies existing and readily available information, available at the time the State submitted the list that shows a segment should be included in Category 5 or the Section 303(d) list. In that situation, EPA will partially disapprove the State’s list and identify additional waters that should be included in Category 5.
The States must apply the same methodology (including weight of evidence and minimum sample and data quality requirements) to delist waters as they apply to list waters.
2. Section 303(d) Delistings (40 CFR 130.7(b)(6)(iv)
FDEP has not included certain water quality limited segments on the Group One Update, which had been included on the previously approved 1998 section 303(d). As provided in 40 CFR 130.7(b)(6)(iv), EPA requested that the State demonstrate good cause for not including these waters.
Waterbody specific information on the remainder of the waterbodies that had been included on the 1998 section 303(d) list but were not included on the Group One Update, the good cause justification submitted by FDEP, and EPA’s conclusions are included in Appendix J. For those waterbodies where EPA determined FDEP has not demonstrated good cause, EPA is adding the identified waterbodies to the State’s section 303(d) list.