EPA Proposes Numeric Nutrient Standards for Florida Waters: Is a National Approach to Regulating Impaired Waterbodies Next?

January 8, 2010
by KATE CAMPBELL
Client Alert Newsletter Forecast 2010

On January 15, 2010, the U.S. Environmental Protection Agency ("EPA") proposed numeric nutrient water quality standards for surface waters in the State of Florida. It is the first time EPA is acting to establish federal numeric water quality standards to control nutrient discharges on a statewide basis.

The driving force behind EPA's action was a federal lawsuit filed by several environmental organizations in 2008, seeking to require EPA to promulgate numeric nutrient standards for Florida waters. After evaluating the environmental groups' claims, EPA essentially agreed, issuing a determination in January 2009 that Florida’s existing narrative criteria for nutrients are insufficient to ensure protection of state waterbodies, and that numeric criteria are necessary to meet the requirements of the Clean Water Act.

In addition to the new nutrient standards, which EPA acknowledges will not be immediately attainable for most Florida surface waters, the proposed rules also include a new implementation mechanism for affected point and nonpoint source discharges. Termed a "restoration water quality standard," the proposed regulatory mechanism is premised upon the State's adoption of interim numeric water quality standards that are intended to reflect achievement of "maximum feasible progress." Under the current proposal, these interim standards would be the basis for calculating enforceable numeric effluent limits in National Pollutant Discharge Elimination System ("NPDES") permits and for other control strategies for nonpoint sources and would be replaced with more stringent numeric effluent standards over time until the numeric standards are achieved.

Although the proposed rules address only Florida waters, EPA's action is expected to set a national precedent, paving the way for EPA or individual states to impose numeric water quality standards and effluent limits for nutrients. The rulemaking may also signal a new point source control strategy that EPA may apply to other pollutants, both conventional and toxic, where numeric water quality standards and the numeric effluent limits derived therefrom are not immediately attainable. This effort would likely cause permit issuing authorities to move away from relying on non-numeric, best management practices that are more readily achieved and typically favored by dischargers. MGKF is presently litigating these same issues in connection with the regulation of PCBs in the Delaware Estuary, advocating for alternative point source implementation mechanisms based upon the use of non-numeric effluent limitations for PCBs.

EPA is currently accepting public comments on the proposed nutrient rules for Florida, final adoption of which is set for October 2010.