Numeric Nutrient Criteria in Region 4: Current Progress and Remaining Challenges Presented by Robert P. Diffenderfer Lewis, Longman & Walker, P.A.

Clean Water Act § Designate the Uses of Water Bodies 2.Establish Criteria to Protect Those Uses Photo Credit: Northwest Florida Water Management District

Narrative vs. Numeric Nutrient Criteria Narrative Criteria : “In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural population of flora or fauna.” Numeric Criteria : Back Bay Estuary, Florida: .009 mg/L Total Phosphorus .25 mg/L Total Nitrogen .3µg/L Chlorophyll a Annual geometric means that shall not be exceeded more than once in a three year period. Rule (47)(b), F.A.C.Rule (1)(g)1

History of NNC in Florida 1998: EPA declared NNC are preferred 2002: Florida DEP Submitted Draft Numeric Nutrient Criteria Plan 2004: Mutual Agreement was Declared 2007: Plan was Amended, with EPA’s Consent 2008: Environmental Groups Filed Lawsuit Photo Credit: John Moran: Close Up of Algae on the Santa Fe River, 2012

Participants in the 2008 Lawsuit Plaintiffs: Florida Wildlife Federation, Inc.; Sierra Club, Inc.; Conservancy of Southwest Florida, Inc.; Environmental Confederation of Southwest Florida, Inc.; St. Johns Riverkeeper, Inc. Intervenors: Florida Pulp and Paper Association Environmental Affairs, Inc.; the Florida Farm Bureau Federation; Southeast Milk, Inc.; Florida Citrus Mutual, Inc; Florida Fruit and Vegetable Association; American Farm Bureau Federation; Florida Stormwater Association; Florida Cattleman’s Association; Florida Engineering Society; South Florida Water Management District; the Florida Water Environmental Association Utility Council, Inc.; the Florida Minerals and Chemistry Council, Inc.; and Florida Department of Agriculture and Consumer Services Amicus Curiae: Northwest Florida Water Management District; Southwest Florida Water Management District, Suwannee River Water Management District

History of NNC in Florida, Continued Then in 2009: –January: EPA declared NNC are necessary to comply with CWA in Florida –March: FDEP submitted a Second Revised NNC Plan –December 2009: Consent Decree between EPA and the environmental groups went into effect –Florida abandoned rulemaking for lakes and flowing waters, so EPA proposed rules 2010: EPA supplemented rules for lakes and flowing waters November 2010: EPA adopted Final Water Quality Standards for Florida’s Springs, Lakes, and Flowing Waters (excluding South Florida canals) –13 Lawsuits Followed

Summary of the 2010 Lawsuits 25 Parties (in a total of 11 cases) asserted that the 2009 determination that NNC were necessary was arbitrary and capricious, and that even if it was valid, the 2010 standards went too far. 7 Parties (in two lawsuits) said the new rules did not go far enough and should be set aside as arbitrary and capricious.

History of NNC in Florida, Continued 2011: FDEP petitioned EPA to rescind its rule and replace it with FDEP’s proposed rule February 2012: Court upheld NNC for lakes and springs, rejected NNC for flowing waters, and upheld the idea of downstream protection values but rejected the means of determining those values as arbitrary and capricious June 2012: FDEP revised and submitted its new and revised Water Quality Standards for many of Florida’s waters July 2012: Environmental Regulation Commission adopts “poison pill” provision into Rule (9), F.A.C.

The “Poison Pill” Rule (9), F.A.C. The Commission adopts subsections (4), (16)-(17), (22)-(25), (35)-(37), (39), Rule , and subsection (3), F.A.C., to ensure, as a matter of policy, that nutrient pollution is addressed in Florida in an integrated, comprehensive and consistent manner. Accordingly, these rules shall be effective only if EPA approves these rules in their entirety, concludes rulemaking that removes federal numeric nutrient criteria in response to the approval, and determines, in accordance with 33 U.S.C. § 1313(c)(3), that these rules sufficiently address EPA’s January 14, 2009 determination. If any provision of these rules is determined to be invalid by EPA or in any administrative or judicial proceeding, then the entirety of these rules shall not be implemented.

History of NNC in Florida, Continued November 2012: EPA’s deadline to propose rules for the remaining waters and downstream protection values November 30, 2012: –EPA formally adopted FDEP’s rules in their entirety. –EPA promulgated rules for waters not covered by FDEP’s rules –EPA stated it will continue working with FDEP –EPA promulgated downstream protection values. January 4, 2013: EPA filed a Motion for Approval to Stay Portions of EPA’s Inland water rules to resolve concerns regarding the “poison pill.”

History of NNC in Florida, Continued April 2013: –Court issues stay to prevent “poison pill” from activating –EPA and FDEP agree on Path Forward –FDEP adopts “Implementation of Florida Numeric Nutrient Criteria Standards.” June 2013: EPA amends determination and declares that NNC not necessary in Florida for certain waters January 2014: Court enters order modifying Consent Decree to Match amended EPA determination September 2014: EPA’s rule withdrawal is finalized, and FDEP’s NNC are the only effective rules.

Florida’s Rule Today NNC set for Nitrogen, Phosphorus, and Chlorophyll a for ALL: Lakes and Reservoirs and Estuaries. NNC partially set for Nitrogen, Phosphorus, and Chlorophyll a for Rivers and Streams, and EPA has determined that NNC is not required in remaining Rivers and Streams and certain other waters due to alternative protective measures implemented by FDEP.

NNC Development in Other States In EPA Region 4 StateNitrogenPhosphorusChlorophyll a AlabamaNone Some GeorgiaSome KentuckyNone MississippiNone North CarolinaNone Statewide South CarolinaSome TennesseeNone Some

Downstream Waters EPA Regulations require states to: “take into consideration the water quality standards of downstream waters and shall ensure that its water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters.” 40 C.F.R (b)

Northern Gulf Of Mexico Hypoxic Zone 2013 Hypoxic Zone Measurements Source: Excess nutrients  algae  algae dies  sinks to bottom  decomposes  hypoxia 2012 Hypoxic Zone: 2,889 square miles (approximately the size of Delaware) 2013 Hypoxic Zone: 5,840 square miles (approximately the size of Connecticut) 2014 Hypoxic Zone: 5,052 square miles (approximately the size of Connecticut)

Questions?

Robert P. Diffenderfer (561)