Through an agreement in principle with the U.S. EPA, Florida’s Department of Environmental Protections (DEP) has regained control of the regulation of nitrogen and phosphorous (nutrient) pollution of state waters.  The agreement builds off EPA’s approval on November 30, 2012, of the state’s numeric nutrient criteria for all lakes, rivers, streams, springs, and estuaries in the southern half of the state (Clearwater Harbor to Biscayne Bay).  On the same day, the EPA proposed numeric criteria for most of Florida’s remaining waters.  Under the agreement, once the DEP puts in place numeric criteria specified in the agreement, the EPA will withdraw its rulemaking.  DEP’s proposed criteria must be approved by the Florida Legislature. 

Currently, regulation of Florida’s waters is shared by the EPA and the DEP. 

Rule and legislation

The EPA-DEP agreement includes the following provisions:

• Marine Waters. The DEP will by rule establish numeric nutrient criteria for 22 estuary and coastal segments by July 1, 2013, or as soon thereafter as possible.  Also, draft legislation directs the DEP to complete its rulemaking to establish numeric nutrient criteria for the remaining estuary and coastal segments by December 1, 2014.
• Fresh Waters. Once adopted in rule, the DEP will submit its March 11, 2013, implementation plan to the EPA for review under Section 303(c) of the Clean Water Act (CWA). The plan clarifies how the numeric nutrient criteria for fresh water bodies will be applied and implemented, including a new chapter related to implementation of the definition of a stream. The definition excludes conveyances that are man-made or physically altered streams primarily used for water management and that have marginal or poor habitat components.
• The DEP will also codify, through the legislation, requirements for DEP to ensure that nutrient loads from all managed conveyances and canals, as well as other waters, are controlled so that downstream water bodies are protected. These actions, once implemented and completed, coupled with EPA’s November 2012 approval of DEP’s newly adopted water quality standards for lakes and flowing waters, will result in Florida having numeric nutrient standards for all fresh water lakes, springs, estuaries, and coastal waters, and the majority of fresh-flowing waters in the state.

Rubio and Earthjustice

The agreement prompted a cascade of positive responses from leaders who have argued that the state alone should be in charge of its waters. 

“Keeping the EPA out of Florida is a significant win for job creators across the state,” said U.S. Senator Marco Rubio (R-FL).  “It will better ensure that the proper balance can be struck between protecting our water and making sure over-regulation doesn’t drive businesses and jobs out of Florida.”

But the agreement was condemned by environmental groups that sued the EPA in 2008 to force the Agency to set numeric water quality criteria to replace the state’s narrative criteria.  The litigants reached a settlement in which the EPA agreed to establish numeric standards unless the state did so itself.

“The DEP and EPA’s faulty plan fails to set enforceable limits on the amount of sewage, manure, and fertilizer allowed in Florida waters—especially in South Florida and the ailing Everglades,” said Earthjustice in response to the agreement. 

“This is an absolute sell out,” added Earthjustice attorney David Guest. “This bogus plan gives deep-pocketed polluters even more loopholes.”

Earthjustice points out that the agreement must be reviewed in federal court to ensure that it complies with the CWA.

Click here for more information on the agreement, including the state’s implementation plan and proposed legislation.