SEVERAL OF OUR MEMBERS HAVE REQUESTED HELP WITH A RESPONSE TO SEN. MARCO RUBIO’S LETTER ON THE ISSUE OF PROPOSED FEDERAL NUMERIC NUTRIENT CRITERIA.  I HAVE OFFERED THE FOLLOWING COMMENTS ON SEN. RUBIO’S LETTER.  MY COMMENTS ARE ITALICIZED AND THE REST ARE SEN. RUBIO’S FULL LETTER.  I APOLOGIZE THAT MY COMMENTS ARE NOT IN COLOR AS I DON’T SEEM TO HAVE THAT CAPACITY.  IT MAKES FOR SLOW READING.  ONLY THE POLICY WONKS WILL PROBABLY BE INTERESTED IN THIS LEVEL OF DETAIL.  LINDA YOUNG

 

LETTER FROM SENATOR RUBIO:
Thank you for contacting me regarding the Environmental Protection Agency’s (EPA) nutrient standards for Florida waters. I appreciate hearing from you and would like to take this opportunity to address your concerns.

In 2009, the EPA entered into a consent decree with environmental litigants requiring the agency to publish numeric nutrient water quality standards for Florida. The Clean Water Act (CWA) enables states to adopt their own water quality standards, but also authorizes EPA to issue new or revised standards if states fail to meet the CWA requirements as defined by the EPA. On November 30, 2012, EPA approved the Florida Department of Environmental Protection’s (FDEP) rules to protect Florida’s waterways from excess nitrogen and phosphorus, and determined they were consistent with the requirements in the CWA for the water bodies they cover.

However, the EPA has expressed concern over the Florida waters that are not covered under FDEP standards and in response is proposing two federal nutrient rules. The first rule proposes numeric limits on the nutrient pollution allowed in Florida estuaries and coastal waters, as well as streams in South Florida. The second rule aims to clarify provisions in an existing EPA rule establishing numeric limits on nutrient pollution in Florida’s inland waters.

It is important to consider the effects of environmental efforts on communities, regions, and jobs. Original estimates (those were early estimates based on a VERY different outcome in terms of the stringency of the rule.  The estimates from EPA’s most recent proposed rule for coastal waters and S. FL inland waters are detailed below. See section VI of the federal rule for a breakdown.  It includes:

VI. Economic Analysis
    A. Incrementally Impaired Waters
    B. Point Source Costs
    C. Non-Point Source Costs
    D. Governmental Costs
    E. Summary of Costs
    F. Benefits

And if you will look in Section I.A.3. you will find the following paragraph, which clearly refutes Mr Rubio’s statement about the costs:

3. Costs and Benefits
    For the reasons presented in this notice, this is not an
economically significant regulatory action under Executive Order 12866.
Under the CWA, EPA’s promulgation of WQS establishes standards that the
State of Florida implements through the National Pollutant Discharge
Elimination System (NPDES) permit process for point source dischargers
and may also result in new or revised requirements for nitrogen and
phosphorus pollution treatment controls on other sources (e.g.,
agriculture, urban runoff, and septic systems) through the development
of Total Maximum Daily Loads (TMDLs) and Basin Management Action Plans
(BMAPs). As a result of this action, the State of Florida will need to
ensure that permits it issues and Waste Load Allocations (WLAs) issued
under TMDLs and BMAPs include any limitations on discharges and other
sources necessary to comply with the standards established in the final
rule. In doing so, the State will have considerable discretion and a
number of choices associated with permit writing (e.g., relating to
compliance schedules, variances, etc.) and flexibilities built into the
TMDL and BMAP process for WLA assignment. While Florida’s
implementation of the rule may ultimately result in new or revised
permit conditions for some dischargers and WLA requirements for control
on other sources, EPA’s action, by itself, does not establish any
requirements directly applicable to regulated entities or other sources
of nitrogen and phosphorus pollution. Additionally, Florida already has
an existing narrative water quality criterion \14\ which requires that
nutrients not be present in estuaries and coastal waters in Florida or
in south Florida inland flowing waters in concentrations that cause an
imbalance in natural populations of flora and fauna. The proposed
criteria in this rule are consistent with and serve to implement the
State’s existing narrative nutrient provision.
for the implementation of EPA rules would impose statewide costs ranging from $3.1 to $8.4 billion dollars over the next thirty years and trigger the annual loss of over 14,500 Florida agricultural jobs and over $1 billion in the Florida agricultural community.

Mr Rubio is mistaken again as the rules, state and federal, do not apply to agriculture at all.  The Clean Water Act does not regulate agricultural/non-point source pollution at all and Florida law Chapter 403.067 prohibits any development or implementation of numeric limits on agricultural run-off pollution.  Here’s what EPA’s proposed rule says:

2. Agricultural Costs
    EPA’s GIS analysis of land use indicates that agriculture accounts
for about 15,312 to 38,140 acres of land near incrementally impaired
waters. This differs substantially from the Inland Rule where over
800,000 acres of agricultural land use were identified in watersheds
draining to potentially incrementally impaired WBIDs, because
agriculture is a much more prevalent land use inland than near the
coast. Agricultural runoff can be a source of nitrogen and phosphorus
to estuaries, coastal waters and south Florida inland flowing waters
through the application of fertilizer to crops and pastures and from
animal wastes. For waters impaired by nitrogen and phosphorus
pollution, the 1999 Florida Watershed Restoration Act established that
agricultural BMPs should be the primary instrument to implement TMDLs.
Thus, additional waters identified by the State as impaired under the
proposed rule may result in State requirements or provisions to reduce
the discharge of nitrogen and/or phosphorus to incrementally impaired
waters through the implementation of BMPs. The NRC suggested that for
Phase I, the incremental agricultural land area identified was likely
underestimated. EPA addressed this finding by including land area
associated with potentially impaired unassessed waters in this
analysis.
    EPA estimated the potential costs of additional agricultural BMPs
by evaluating land use data. BMP programs designed for each type of
agricultural operation and their costs were taken from a study of
agricultural BMPs to help meet TMDL targets in the Caloosahatchee
River, St. Lucie River, and Lake Okeechobee watersheds. Three types of
BMP programs were identified in this study. The first program, called
the “Owner Implemented BMP program,” consists of a set of BMPs that
land owners might implement without additional incentives. The second
program, called the “Typical BMP program,” is the set of BMPs that
land owners might implement under a reasonably funded cost share
program or a modest BMP strategy approach. The third program, called
the “Alternative BMP program,” is a more expensive program designed
to supplement the “Owner Implemented BMP program” and “Typical BMP
program” if additional reductions are necessary.
    The BMPs in the “Owner Implemented BMP Program” and “Typical BMP
Program” are similar to the BMPs verified as effective by FDEP and
adopted by FDACS. EPA did not find BMPs in the “Alternative BMP
Program” similar to the BMPs in the FDACS BMP manual, despite the NRC
suggestion that the “Alternative BMP Program” would be needed to meet
NNC. EPA has also found no indication that the “Alternative BMP
Program,” which includes edge-of-farm stormwater chemical treatment,
has been implemented through TMDLs to meet water quality standards for
nutrients in watersheds with significant contributions from agriculture
(e.g., Lake Okeechobee). EPA also found that TMDLs cite the Florida
Department of Agriculture and Consumer Services’ (FDACS) BMP manual as
a source of approved BMPs. Therefore, for purposes of this analysis,
EPA believes it is reasonable to assume that nutrient controls for
agricultural sources are best represented by the combination of the
“Owner Implemented BMP Program” and “Typical BMP Program” and not
the more stringent “Alternative BMP Program” controls. This
assumption corroborates EPA’s intent for the nutrient criteria to
provide the same level of protection as Florida’s narrative criteria.
    Table VI(C)(2) summarizes the potential incremental costs of BMPs
on agricultural lands in the watersheds of incrementally impaired
estuaries, coastal waters and south Florida inland flowing waters for
each agricultural category. This analysis indicates that incremental
agricultural costs resulting from the proposed numeric nutrient
criteria may be estimated at $0.3–$0.7 million per year.

[[Page 74974]]

                          Table VI(C)(2)–Potential Incremental Agricultural BMP Costs
—————————————————————————————————————-
                                                                “Owner implemented BMP       Total “Owner
                                           Area potentially          Program” plus          Implemented BMP
        Agricultural category              needing controls     ”Typical BMP Program”  Program” and ”Typical
                                                      (acres) \a\         Unit Costs  (2010$/ac/    BMP  Program” costs
                                                          yr) \b\                 (2010$/yr)
—————————————————————————————————————-
Animal Feeding…………………..                    20-39                   $18.56                $400-$700
Citrus………………………….                        0                   156.80                       $0
Fruit Orchards \c\……………….                      0-7                   156.80                $0-$1,100
Cow Calf Production, Improved       1,115-4,568                    15.84          $17,700-$72,400
 Pastures……………………….
Cow Calf Production, Rangeland and         1,145-1,995                     4.22            $4,800-$8,400
 Wooded Pasture………………….
Cow Calf Production, Unimproved             299-1,346                     4.22            $1,300-$5,700
 Pastures……………………….
Cropland and Pasture Land (general)  10,195-18,467                    27.26        $277,900-$503,300
 \d\……………………………
Dairies…………………………                        0                   334.40                       $0
Field Crop (Hayland) Production……            479-1,397                    18.56           $8,900-$25,900
Horse Farms……………………..                   34-123                    15.84              $500-$1,900
Ornamental Nursery……………….                      4-8                    70.00                $300-$600
Floriculture \e\…………………                        0                    70.00                       $0
Row Crop………………………..                  228-246                    70.40          $16,100-$17,300
Sod/Turf Grass…………………..                        0                    35.20                       $0
Other Areas \f\………………….                565-1,069                    18.56          $10,500-$19,800
                                      ————————————————————————–
    Total \g\……………………            14,085-29,265  …………………..        $338,300-$657,200
—————————————————————————————————————-
Note: Detail may not add to total due to independent rounding.
\a.\ Low end of range represents acres associated with impaired assessed waters assuming none of the unassessed
  waters would be impaired under the proposed rule; high end of range represent low end plus controls on the
  watersheds associated with impaired unassessed waters (estimated based on proportional impairment to assessed
  waters) for which EPA has not already identified a need for controls for baseline or impaired assessed waters.
  Based on GIS analysis of land use data from five water management districts (for entire State)
\b.\ Cost estimates from SWET (2008); representative of 2010 prices (personal communication with D. Bottcher,
  2010).
\c.\ Owner/typical BMP unit costs based on costs for citrus crops.
\d.\ Owner/typical BMP unit costs based on average costs for improved pastures, unimproved/wooded pasture, row
  crops, and field crops.
\e.\ Owner/typical BMP unit costs based on costs for ornamental nurseries.
\f.\ Includes FLUCCS Level 3 codes 2230, 2400, 2410, and 2540.
\g.\ Excludes land not in production.

Please read it carefully as it reiterates that farmers are allowed to choose their own BMPs and can choose the ones that are the most beneficial to them economically. Yes, if more protective standards existed in Florida, then there would be greater costs, but this is not the case.
Since 1998, the EPA encouraged state adoption of numeric nutrient criteria for water bodies in the United States, yet due to third-party litigation, the EPA ultimately took over this state process and continues to impose reckless (When EPA was forced to adopt numeric nutrient criteria after being sued by some environmental groups – NOT Clean Water Network of FL by the way – they adopted Florida DEP’s draft criteria almost verbatim.  After that Florida polluters were so overjoyed by their victory, that they demanded even more loopholes in the proposed criteria, so Florida rewrote the state rule and gave polluters what they demanded.  EPA has approved all of that.  Now EPA is proposing Florida’s rules almost verbatim again for the waters that Florida has not had time to develop criteria for.  EPA’s rule are essentially identical to Florida’s and are not going to protect our waters either.  This is why Clean Water Network of FL has never supported the federal rule and we still do not.  Mr Rubio is mistaken when he calls the federal rules reckless unless he means that they are polluter driven and will not improve water quality in Florida, in which case I would agree with him).   regulations that kill jobs there is no basis for this statement and inhibit economic growth or for this one. I agree that Florida needs strong regulatory protection for its waters but regulations should be in conjunction with, not against, the needs of the consumer and our industries. I support Florida’s right under the CWA to develop its own rules ensuring sound science and locally fitted regulations are implemented. Please know, I will continue to follow negotiations between the EPA and FDEP as they reach an agreement for Florida’s numeric nutrient standards. (If he wants to effectively negotiate, then he should read the proposed rules and be familiar with what they actually say.  Few people have done this, including most environmental groups).

Thank you again for contacting me regarding this important issue. It is an honor and a privilege to serve the people of Florida in the United State Senate. If I can be of further assistance please do not hesitate to contact my office.

Sincerely,

Marco Rubio
United States Senator


About the Author

Linda Young has been the executive director of the Clean Water Network of Florida since 1994. From 1989 to 1997, she founded and published a monthly statewide environmental newspaper. Over the past twenty three years, she has co-founded some of the most long-lasting and effective environmental organizations in the Southeast, including the Gulf Restoration Network, Gulf Coast Environmental Defense and C.A.T.E. She holds a B.A. in Communications from Southern Oregon University and a M.A. in Political Science/Campaign Management from the University of West Florida.



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