February 5, 2014 –
Florida water standards, not EPA’s, move closer to implementation

A recent federal court ruling will allow Florida’s numeric nutrient criteria rules to inch closer to implementation – instead of the U.S. Environmental Protection Agency’s effective and proposed federal criteria.

This decision allows the EPA to move forward, repealing its rules and allowing implementation of the state’s water quality rules, rather than the EPA’s.

If you have any questions about how this ruling may affect you or your business, please contact Gunster attorney Terry Cole, a member of the firm’s environmental and land use law practice.

The court’s order:

The January 7 ruling by the U.S. District Court for the Northern District of Florida grants the EPA’s request to modify the consent decree to exclude the adoption of numeric downstream-protection criteria or NNC for Florida streams or marine lakes, tidally influenced streams, or conveyances primarily used for water-management purposes with marginal or poor stream habitat components. The court also denied the environmental parties’ motion to enforce the original consent decree.

Key points of the court’s order are excerpted here:

• [T]he Florida Wildlife parties mistakenly assert that a stream’s failure to meet the [Department of Environmental Protection]’s numeric thresholds will not render the stream impaired unless a site-specific study shows that the stream is in fact im-paired. Not so. The FDEP’s approach allows site-specific studies, but a stream that fails to meet the numeric thresholds must be treated as impaired until a site-specific study shows otherwise. See Fla. Admin. Code r. 62-303.390(2)(e) (requiring the placement of such a stream on the impaired-waters study list).

• Allowing site-specific studies is not inconsistent with the consent decree. The point of the endeavor is to protect against adverse effects on flora or fauna. Under the EPA’s original approach, a water body that exceeds the prescribed nitrogen or phosphorous levels is deemed impaired, while a water body that complies with the prescribed levels is deemed unimpaired. But when judged by the effects on flora and fauna, sometimes a water body that exceeds the prescribed levels is in fact unimpaired. Sometimes a water body that complies with the prescribed levels is in fact impaired. The FDEP rule uses as its starting point nitrogen and phosphorous levels like those the EPA incorporated into its own proposed rule. But the FDEP rule allows a site-specific analysis to properly classify a water body based on the actual effects on flora and fauna. If properly and honestly implemented, this is an improvement. (emphasis added)

• The prior rulings of this court and the Eleventh Circuit were correct because the consent decree required administrative action that the EPA was free to take if it chose, with or without the consent decree. And if circumstances changed, as they have, the consent decree could be modified, as Rule 60(b) provides. Now, as then, the primary responsibility for adopting standards meeting the Clean Water Act’s requirements rests with the State of Florida, subject to the EPA’s approval. Now, as then, the Clean Water Act depends in part on honest administrative enforcement of duly adopted standards. At least as shown by this record, the FDEP’s new standards have been duly adopted. (emphasis added)

• Neither the 2009 determination nor the consent decree was intended to change the Clean Water Act’s allocation to the state of primary responsibility for setting water-quality criteria. Nor were they intended to foreclose an approach based on further study and analysis, so long as the approach was consistent with sound science.

• The studies and analysis that led to the FDEP’s adoption of its approach are a significant change in the factual conditions. Indeed, appropriate numeric nutrient criteria for streams had proven elusive, as shown by the invalidation of the EPA’s initial rule adopting such criteria. Both the FDEP and EPA now agree that Florida’s approach meets the requirements of the Clean Water Act.

• The amendments to the 2009 determination are administrative actions that are subject to challenge under the APA. But the Florida Wildlife parties have not filed an APA challenge. The record in this litigation does not include the entire administrative record that led to the amendments. But nothing in this record suggests that the EPA’s actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” (emphasis added)

Important aspects of the NNC:

The study list, like the planning list before it, was a compromise to address issues raised by the EPA that waters with insufficient data or which were marginal for nutrients should not be overlooked. The EPA was satisfied by the idea of the study list, allowing the waters to be on the 303(d) list, which would provide a priority in further data collection and analysis. Waters must be listed as impaired (with the pollutant causing the impairment identified) for the listing to have specific regulatory consequences.

Undoubtedly, having the water included on the study list, and thus the 303(d) list, will require permitting authorities to give more attention to permit applications for modification or renewal. However, there is a prohibition in the rules on requiring additional regulatory actions such as reductions in discharge limits or additional pollution control measures solely because a water is on the study list. Inclusion on the study list could lead to the necessity of additional water quality monitoring or modeling as part of a permit application; however, for a marginal water, that would probably be required anyway.

The court’s opinion in this case will be helpful in other states. The opinion notes the desirability of using biological metrics in conjunction with the NNC and that this is a superior approach to the EPA approach based only on NNC, broadly applied (which was invalidated by the court). The court order was likely influenced by the detailed and well-thought-out opinion provided by the administrative law judge, who found the Florida NNC rules scientifically valid. The order also noted that the Florida approach, approved by the EPA, was not arbitrary and capricious – as opposed to the court’s previous finding that the EPA NNC rule for flowing waters was arbitrary and capricious. The court noted that the FDEP rule allows a site-specific analysis to properly classify a water body based on the actual effects on flora and fauna. “If properly and honestly implemented, this is an improvement.”

The Florida rule approved by the EPA also does not require independent applicability of the NNC. Instead, a battery of tests may be used for a determination of compliance with water quality standards, reducing variability in application of the rule.

Next steps:

The EPA informed the court in a recent filing it has now approved criteria for most of the waters covered by the EPA determination. It will now approve Florida’s pending criteria not yet approved (all site-specific) and withdraw its criteria.

There are a number of pending submittals from the state of Florida for approval of moderating provisions that the EPA is also expected to approve. The moderating provisions for coastal waters will likely receive a higher priority than for fresh waters.

The EPA is expected to provide notice in the Federal Register prior to taking final action to rescind its rules. It is currently in the process of Office of Management and Budget clearance, prior to issuing the notice.

Once the federal rules are rescinded, Florida statutes provide for automatic repeal of the “poison pill” section of the Florida NNC rules that require approval of the full Florida program before any part of the program is implemented. The state Department of Environmental Protection would provide notice of such repeal in the Florida Administrative Record. Upon those actions taking place, the Florida NNC will be in effect and the federal rules repealed.

The court’s order and the record to date provide a substantial basis for affirming the order and EPA action approving Florida’s standards, withdrawing its rules and modifying its determination should any appeal be attempted.

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