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

954.712.1478lphillips@gunster.com