March 13, 2012
Regional Administrator Gwen Keyes Fleming
U.S. EPA Region 4
Sam Nunn Atlanta Federal Center
61 Forsythe Street, SW
Atlanta, GA 30303
RE: Proposed Numeric Nutrient Criteria (NNC) for the State of Florida
Dear Administrator Fleming:
We are writing to you as a very diverse group of Floridians that use the waters in our state for our personal recreational uses, for our businesses and for our health. They are important to us for many reasons and we are very concerned about the current condition of many of them and about the future viability of most of them. We are all members of the Clean Water Network of Florida, a statewide organization that is totally focused on protecting and restoring Florida’s waters. We sincerely hope that you will take our comments to heart and use what authority you have to help us protect our waters and their future health.
Attached you will find a comment letter with several attachments that was previously sent to the Florida Department of Environmental Protection. We have participated in the state rulemaking process for nutrient criteria for many years. We have submitted numerous comments to the state and to Region 4. Our commitment to Florida’s waters is unwavering and even though there have been many disappointing decisions along the way, we continue to hold hope that better decisions will be forthcoming.
First of all, we ask that you incorporate by reference the comment letter submitted by the Conservancy of Southwest Florida, dated February 23, 2012. We concur with the information provided to you in that letter and we would like to augment it with our own concerns and suggestions. We are attaching the letter for your convenience. The Conservancy went to great lengths to analyze data to help you better understand the impact of Florida’s proposed NNC on the future health of our waters. We have conducted our own analyses, taking special care to be mindful of the recent Order by Judge Hinkle in the lawsuit over the EPA’s proposed NNC. We believe that any future decisions by EPA must by law be consistent to the greatest extent possible with Judge Hinkle’s Order. As you know, the ultimate responsibility for assuring that the NNC for Florida is consistent with the Clean Water Act lies on your shoulders. We hope that our comments will be helpful to you as you carefully weigh the many aspects of this rule.
As Judge Hinkle’s Order points out, your agency must use its best judgment in balancing the substantive issues. Unfortunately, the Florida DEP has not done this. Instead the agency listens only to and collaborates with the 11 polluter-trade associations (and the political powers with which they are aligned) that are opposed to any numeric nutrient criteria that will result in a requirement that they reduce their nutrient pollution. We repeat ourselves and your agency is well aware of this fact, but most of these trade associations’ members are not even affected by the state or federal numeric nutrient criteria including the Florida Farm Bureau Federation; Southeast Milk, Inc.; Florida Citrus Mutual, Inc.; Florida Fruit and Vegetable Association; American Farm Bureau Federation; Florida Stormwater Association, Inc.; Florida Cattleman’s Association; and Florida Engineering Society. In fact, the only ones that could have been potentially affected in the near future (if the rule had been written in a manner consistent with Florida pollution laws and Chapter 62-302.500, F.A.C.) would be the Florida Pulp and Paper Association Environmental Affairs, Inc.; the Florida Water Environment Association Utility Council, Inc.; and the Florida Minerals and Chemistry Council, Inc. It is not too late for you to develop the rest of this rule in a manner that would actually require these large point-source/NPDES permitted polluters accountable for their nutrient pollution at the end of their pipes and that is largely what we will comment on in this letter.
Judge Hinkle continues to point out that the Eleventh Circuit explains your responsibility and says that you must consider the relevant factors and rely on the important factors, which Congress has intended you to consider. You must make a reasoned basis for your agency’s action. There seems to no longer be a debate about whether or not Florida’s waters (most of them) have serious nutrient problems. The question is whether or not the state and/or federal rules will have a positive effect on those problems. You are required to base your decision on science and best professional judgment and not on political pressure or electoral considerations. While scientific opinions can widely differ, many of the issues before you now are not rocket science. It requires only common sense to see that the nutrient issues that are getting so much attention here will be unimproved if you allow the state of Florida to delineate extremely large areas of water, pick and choose the least problematic sampling sites, pick and choose the most ideal times for sampling, throw out data that they don’t like or which will reveal the magnitude of the problem, save the samples up for a whole year and then calculate a geometric mean.
Unfortunately the proposed federal rule does the same thing. But, it is not too late to develop a more scientific and effective approach to setting criteria. Judge Hinkle has sent EPA back to the drawing board and based on his comments may not like the state approach either. The state rule takes this absurd, thinly-veiled attempt to protect polluters even further by creating an illusion of water protection that has no more teeth or substance than a jar of smoke. The state rule does not even require numeric criteria for all streams. Unless a SSAC has been adopted for a stream, the absence of a biological meltdown or year round algal mats are enough to keep the stream off of the state’s regulatory radar-screen. Unless the water is already impaired and on the 303(d) list, it will essentially receive no protection from excess nutrients, which is how our waters arrived in their current stressed condition. For this reason alone, we strongly urge EPA to reject the state’s scheme for managing nutrients and continue forward with an effort to conform to Judge Hinkle’s Order and strengthen your own rule as much as possible.
Here is the precise language from Florida DEP’s proposed rule:
“(c) For streams, if a site specific interpretation pursuant to paragraph 62-302.531(2)(a) or (2)(b), F.A.C., has not been established, biological information shall be used to interpret the narrative nutrient criterion in combination with Nutrient Thresholds. The narrative nutrient criterion in paragraph 62-302.530(47)(b), F.A.C., shall be interpreted as being achieved in a stream segment where information on chlorophyll a levels, algal mats or blooms, nuisance macrophyte growth, and changes in algal species composition indicates there are no imbalances in flora or fauna, and either:
1. the average score of at least two temporally independent SCIs performed at representative locations and times is 40 or higher, with neither of the two most recent SCI scores less than 35, or
2. the nutrient thresholds set forth in the table below are achieved. . . .”
1These values are annual geometric mean concentrations not to be exceeded more than once in any three calendar year period.
We would like to suggest that in order to provide the numeric guidance required by the Clean Water Act, that EPA should abandon the water body-wide, annual geometric mean, two of three years (of non-achievement), compounded with proof of biological melt-down approach and apply the criteria to the only pollution sources that could be actually regulated by numeric criteria – NPDES permitted discharges. AND it should be applied at the same place that every other pollutant is regulated in Florida which is at the end of the pipe before the pollutants enter the stream. On page 83 of the Order, Judge Hinkle reminds EPA that while this is not required, it certainly would be an option for the agency. Judge Hinkle also makes the point in the same place that the state could implement the criteria “through limits in National Pollutant Discharge Elimination System (“NPDES”) permits, and the limits may exactly match the criteria. But, sadly this rule does not and will only indirectly impact Florida’s biggest polluters in such a small or non-existent way as to not even require an initial or final regulatory-flexibility analysis. EPA told the court that the NNC will not have a significant economic impact on Florida’s polluters.
Another alternative that was suggested by Judge Hinkle on page 58 of the order is to also adopt shorter-term criteria in addition to the long-term averaging. This would be helpful in cases where there are recurring seasonal algal blooms/fish kills, but on average (annual geometric mean) the data are not reaching the long-term thresholds that would trigger a protective action. Also, since Florida’s water quality standards/criteria are applied at all times and all places for every other pollutant, this additional criteria would make the new rule more consistent. And even if the state disagrees with this approach, Judge Hinkle points out on page 66 of the Order that the EPA Administrator could construct a stream rule that would be designed to block any change in flora or fauna, and not just an “imbalance” as the state defines it. Judge Hinkle did say that EPA would need to provide an scientifically based explanation for a decision to disapprove any change in flora and fauna.
If the current state and federal implementation plans are adopted in a final rule, then an entire stream will have to become biologically impaired before the red flags can go up. DEP’s rule says that as long as the stream is not choked with algal mats or other plants, then whatever the pollutant levels in the stream may be are deemed to be acceptable. That is not numeric criteria and it is not protection.
Estuary Criteria –
We ask that Florida’s NNC for estuaries be rejected for two reasons. The first reason is similar to the problems outlined above for streams. The criteria is based on waterbody-wide, annual geometric means, etc. that will allow degradation from excess nutrients to continue. The NPDES-permitted discharges will not be regulated until the entire water body has biologically crashed. We will elaborate further in our next letter.
The second reason is that estuaries are downstream of our streams and since the stream criteria is not adopted yet, it makes no sense to set criteria for our estuaries. We urge EPA to reject Florida’s estuarine NNC and proceed with your own NNC after you have completed your work on streams. We urge you to develop DPVs for all of Florida’s estuaries since they are all impaired by nutrients when measured using a scientifically sound methodology. Please do not allow Florida to use their skewed methods to mask these problems. Florida’s vision for the non-NEP estuaries is to accept the status quo and to allow the nutrient problems to continue to escalate.
SSAC provisions –
Judge Hinkle states on page 73 of the Order that SSACs are not a one-way tool. He purports that they may be used to lower the criteria for a specific site, which would be even more protective of the water. While he is correct, in theory, EPA has explained on the NNC webinars and in the Technical Support Document for the proposed NNC that any entity that would petition for a SSAC that is more protective than the adopted criteria, would be required to first prove that the existing criteria are not protecting the designated uses of the waterbody. This may work just fine if for instance you are trying to get Class III waters upgraded to Class II because they are being used for shellfish harvesting. However, it will be virtually impossible to get a more protective SSAC for a Class III water that is very high quality and needs greater protection. The Conservancy has made the point in their comment letter that 34% of the OFW in Florida already show lower nutrient levels than allowed by the proposed NNC. According to 62-302.700 F.A.C. no degradation of water quality is to be permitted in Outstanding Florida Waters.
We would ask that you require in the rule that all OFWs in Florida be assigned SSACs that are consistent with the nutrient levels that were documented at the time that the OFW designation was assigned to each water or the current levels, which ever is more protective. This will help to assure that these waters will not be allowed to degrade to the level of nutrients that the NNC ultimately allows. Florida should not be allowed to treat OFWs as if they have no special designation or protection.
As for SSACs that could get adopted which are overly broad geographically, Judge Hinkle said on page 74 that these will have to be addressed as they are granted. We agree with him and Clean Water Network of FL and its members will be watching to see how this provision of Florida law is used for setting NNC and will react when necessary. As we have commented in previous letters, we would prefer that EPA use the federal SSAC requirements instead of Florida’s 62-302.800 F.A.C. requirements, which essentially allow almost any criteria to be adopted as a SSAC, regardless of the harm that will result.
On page 69 of Judge Hinkle’s Order, he points out that regarding DPVs, any contribution, no matter how small, to an impaired water body is still a contribution. It is very important that EPA scrutinize DEP’s proposed rule in this regard. In public workshops DEP has stated several times that downgrades to designated uses and SSACs will be allowed for streams that flow into impaired waters (streams or lakes). DEP’s rationale for this is that there will likely be other streams and other factors that also impact the downstream impaired water and that holding one stream to the criteria will not make a difference anyway. Judge Hinkle uses the analogy of people digging themselves deeper and deeper into a hole and agrees that the best solution to that is to stop digging. We hope that EPA will take note of this point made by Judge Hinkle. This is another reason why we urge EPA to reject Florida’s proposed NNC and take responsibility for completing the work you have begun in a manner that is consistent with the Clean Water Act and Judge Hinkle’s Order.
In conclusion, there are many more problems with the Florida NNC that need to be delineated and discussed. It appears that you have time to scrutinize Florida’s rule and fully absorb the implications that it holds for Florida’s waters. Your representatives have attended the public workshops for Florida’s NNC and are fully aware of the many problems inherent in it. EPA has made some progress toward developing a NNC that will hold up in court and that can provide a basis for future protection. Judge Hinkle has offered guidance and flexibility for EPA to do an even better job of protecting Florida’s waters. We urge you to accept his guidance and insight to create the best and most protective rule possible. Even though Florida’s biggest polluting industries have done a masterful job, with great assistance from our state government (and our tax dollars) of distorting this issue and the impact the NNC will have on Florida’s economy, it is critical that your agency stay focused on the task before us which is to provide the protection for our waters that is promised in the Clean Water Act.
You know that Florida’s agricultural industry will not be affected by the NNC. You also know that polluted run-off from urban areas will not be held to numeric standards. What pollution sources does that leave for the NNC to control or even reduce by regulation? Nothing but the point sources, NPDES permit holders!! Why would EPA want to allow these pollution sources to enjoy the same exemptions as the non-point source polluters? That is essentially throwing the Clean Water Act to the dogs. What other pollutants are going to get averaged out across entire streams and estuaries on an annual basis? Where will this trend stop?
We will follow up with more specific flaws in the Florida NNC over the coming weeks in hopes that you will keep an open mind about rejecting outright Florida’s approach to NNC. The EPA’s spring criteria that was approved by Judge Hinkle was taken directly from Florida’s proposed rule, so you can both agree on that. Unfortunately, there is absolutely nothing that will change as a result of that criteria since none of the pollution that is affecting our springs will be regulated by the NNC.
Thank you in advance for any consideration that you can give to these concerns and suggestions.
For all of Florida’s waters,
Linda L. Young