On August 19, 2009, the United States Environmental Protection Agency (EPA) entered into a consent decree In an effort to settle a lawsuit filed by five environmental groups (i.e. Florida Wildlife Federation, Inc., Sierra Club, Inc., Conservancy of Southwest Florida, Inc., Environmental Confederation of Southwest Florida, Inc., and St. Johns Riverkeeper, Inc.) alleging that the EPA “failed to perform a non-discretionary duty to set numeric nutrient criteria for the State of Florida as required by CWA Section 303(c)(4)(B), 33 U.S.C. § 1313(c)(4)(B).” See consent decree.
The EPA has agreed to set numeric water quality criteria for nitrogen and phosphorus in Florida’s waters. Nitrogen and phosphorus are commonly found in fertilizers. An excess in nitrogen and phosphorus levels are considered nutrient pollution in waterbodies because such levels can cause harm to aquatic ecosystems and threaten public health by causing algae blooms and excessive vegetation which, in turn, robs oxygen in the water from fish and other organisms. Under the consent decree, EPA must propose nutrient criteria for Florida’s lakes and streams by January 2010, and for coastal waters and estuaries by January 2011.
Florida already has a qualitative, narrative criterion for nutrients, but lacks specific numeric limits. The function of setting water quality criterion has traditionally (since 1998) been delegated to the states with the EPA having the final approval over the numeric limit set by the state, i.e. the EPA would either approve the criterion proposed by the state or send it back to the state for revision. Under this consent decree the EPA will set numeric water quality criteria for nitrogen and phosphorus in Florida’s waters. While the consent decree only applies to Florida, this is a potentially precedent setting and other states are on notice.
The EPA in its determination letter to Florida noted that the Florida Department of Environment Protection has spent "over $20 million in collecting and analyzing data" but has yet to develop numeric standards.
Section 303 of the Clean Water Act requires states to establish water quality standards, and to review and update those standards at least every three years. These standards must include water quality criteria, which define the amounts of pollutants, in either numeric or narrative form, that the waters can contain without impairment of their designated beneficial uses. They also include the actual designation of beneficial uses, such as water supply, recreation, fish propagation, or navigation, and antidegradation requirements. 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. §§ 131.6, 131.10-12.1.
Florida is not alone in being hesitant to assign a numeric standard to its water quality criteria, and possibly for good reason. Those states such as Hawaii that have led the way and set numeric standards for water quality criteria have found themselves in a pickle when the numeric the state set is later found to be too stringent and the antidegradation requirements of the Clean Water Act prevent the state and EPA for that matter from assigned a new numeric that is less stringent. Take the case in Hawaii where the enterococci numeric set was later to become problematic because waters in which the native Hawaiian monk seal (an endangered species) was found present consistently tested with enterorcocci counts above the standard - meaning the water was to be considered contaminated, even though there was no presence of human fecal. As a result Hawaii has to use C. perfringens as an aide along with enterococci in determining whether there is a bacterial contamination of Hawaii’s waters. See Melissa O’Connor, Water, Water Everywhere, but Not a Drop to Swim and Fish in: Clean Water Act National Standards and the Issue of Ecological Diversity, 10 U. Denv. Water L. Rev. 97 (2006).
In that article I wrote in support of state’s rights and my position that the EPA should embrace ecological diversity in its administration of national water quality pollutant criteria and standards established under the Clean Water Act in an effort to promote ecologically appropriate and scientifically supported state water quality standards.
While it is understandable the plaintiffs in the law suit resulting in this consent decree seek healthy waters for Florida and brought suit to bring the issues to the forefront and exact action from the government, it is also dangerous to set precedents of the federal government stepping in to set local water quality standards – which may or may not be ecologically appropriate, especially if these standards are nationally based.
The EPA has agreed to set numeric water quality criteria for nitrogen and phosphorus in Florida’s waters. Nitrogen and phosphorus are commonly found in fertilizers. An excess in nitrogen and phosphorus levels are considered nutrient pollution in waterbodies because such levels can cause harm to aquatic ecosystems and threaten public health by causing algae blooms and excessive vegetation which, in turn, robs oxygen in the water from fish and other organisms. Under the consent decree, EPA must propose nutrient criteria for Florida’s lakes and streams by January 2010, and for coastal waters and estuaries by January 2011.
Florida already has a qualitative, narrative criterion for nutrients, but lacks specific numeric limits. The function of setting water quality criterion has traditionally (since 1998) been delegated to the states with the EPA having the final approval over the numeric limit set by the state, i.e. the EPA would either approve the criterion proposed by the state or send it back to the state for revision. Under this consent decree the EPA will set numeric water quality criteria for nitrogen and phosphorus in Florida’s waters. While the consent decree only applies to Florida, this is a potentially precedent setting and other states are on notice.
The EPA in its determination letter to Florida noted that the Florida Department of Environment Protection has spent "over $20 million in collecting and analyzing data" but has yet to develop numeric standards.
Section 303 of the Clean Water Act requires states to establish water quality standards, and to review and update those standards at least every three years. These standards must include water quality criteria, which define the amounts of pollutants, in either numeric or narrative form, that the waters can contain without impairment of their designated beneficial uses. They also include the actual designation of beneficial uses, such as water supply, recreation, fish propagation, or navigation, and antidegradation requirements. 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. §§ 131.6, 131.10-12.1.
Florida is not alone in being hesitant to assign a numeric standard to its water quality criteria, and possibly for good reason. Those states such as Hawaii that have led the way and set numeric standards for water quality criteria have found themselves in a pickle when the numeric the state set is later found to be too stringent and the antidegradation requirements of the Clean Water Act prevent the state and EPA for that matter from assigned a new numeric that is less stringent. Take the case in Hawaii where the enterococci numeric set was later to become problematic because waters in which the native Hawaiian monk seal (an endangered species) was found present consistently tested with enterorcocci counts above the standard - meaning the water was to be considered contaminated, even though there was no presence of human fecal. As a result Hawaii has to use C. perfringens as an aide along with enterococci in determining whether there is a bacterial contamination of Hawaii’s waters. See Melissa O’Connor, Water, Water Everywhere, but Not a Drop to Swim and Fish in: Clean Water Act National Standards and the Issue of Ecological Diversity, 10 U. Denv. Water L. Rev. 97 (2006).
In that article I wrote in support of state’s rights and my position that the EPA should embrace ecological diversity in its administration of national water quality pollutant criteria and standards established under the Clean Water Act in an effort to promote ecologically appropriate and scientifically supported state water quality standards.
While it is understandable the plaintiffs in the law suit resulting in this consent decree seek healthy waters for Florida and brought suit to bring the issues to the forefront and exact action from the government, it is also dangerous to set precedents of the federal government stepping in to set local water quality standards – which may or may not be ecologically appropriate, especially if these standards are nationally based.
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