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On Wednesday, August 3, 2011, a three-judge panel of the United States Court of Appeal for the 11th Circuit denied the appeal field by the Florida Water Environment Association Utility Council (FWEA), which includes water and sewer systems from across Florida, and the South Florida Water Management District (SFWMD). The appeal sought to reverse the consent decree entered in the case between environmental groups and the U.S. Environmental Protection Agency (EPA).
The consent decree, previously approved by a federal judge in Tallahassee, settled a suit filed by the Plaintiffs against the EPA that alleged that the agency failed to promulgate timely new water-quality standards for Florida. The FWEA and SFWMD claim that the consent decree is substantively and procedurally unreasonable and that the district court abused its discretion by approving the decree.
The appellate court dismissed the appeal, holding that it did not have jurisdiction to hear the case, because the FWEA and SFWMD had not demonstrated a live case or controversy. However, in a footnote, the court noted that had it reached the merits of the FWEA and SFWMD’s claims, their appeal would still fail. A copy of the full opinion can be found here.
While this does represent a blow to the opponents of the EPA’s numeric nutrient criteria (NNC), the federal litigation challenging the NNC rulemaking continues to progress. Further, FWEA and SFWMD representatives stated that they are weighing their options, including the possibility of requesting the full 11-member court to rehear the case.
The U.S. House of Representatives Committee on Energy and Commerce announced that its sub-committee on oversight and investigations will be holding a field hearing in Orlando, Florida. This is the sixth hearing of the sub-committee’s Regulatory Reform Series. The title of this field hearing is “EPA’s Takeover of Florida’s Nutrient Water Quality Standard Setting: Impact on Communities and Job Creation.”
The hearing will occur on August 9, 2011, at 10:00 a.m. at the Alumni Center, The University of Central Florida, 4000 Central Florida Boulevard, Building 126, Orlando, Florida 32816.
A bipartisan staff briefing for this hearing will be held on Friday, August 5, 2011, at 2:00 p.m. in 2218 Rayburn House Office Building, Washington, DC 20515-6115. The Republican staff briefing will follow immediately after the bipartisan briefing in 2218 Rayburn. The Democratic staff briefing will follow immediately after the bipartisan briefing in 2322 Rayburn.
120 MFLs established by SJRWMD
The St. Johns River Water Management District (SJRWMD) announced two sets of meetings on Minimum Flows and Levels (MFLs). MFLs are water flows and levels for surface water and groundwater designed to ensure that water withdrawals will not cause significant harm to the water resource or the ecology of the area. SJRWMD established MFLs on more than 120 water bodies throughout the SJRWMD’s 18-county area.
SJRWMD water supply planning efforts over the past few years have included further, detailed evaluation of adopted MFLs. This evaluation of established MFLs has identified more than 35 water bodies (springs and lakes) of concern through the 2030 planning horizon. To organize the process, the water bodies were grouped into six strategy development areas. If the existing flow or level of a water body is below or projected in 20 years to fall below established MFLs, then a recovery strategy must be implemented to restore the system to the established MFLs or a prevention strategy implemented to prevent the system from falling below the established MFLs.
The Clay-Putnam MFLs prevention/recovery strategy development area stakeholder group will meet on Thursday, Aug. 11, from 2–4 p.m. at the Melrose Senior Community Center, 309 Bellamy Road (State Road 26), in Melrose, Fla. A technical work group will be established to develop a list of prevention and recovery strategy options for lakes Geneva, Brooklyn, Cowpen and Grandin where MFLs are currently not being met or are projected not to be met within 20 years. The SJRWMD’s stated goal is to work collaboratively with stakeholders to develop long-term comprehensive strategies to achieve the MFLs.
The Seminole-North Orange MFLs prevention/recovery strategy development area stakeholder group will meet on Thursday, July 28, at 10 a.m., at the Sanford City Hall Commission Chambers, 300 N. Park Ave. The meeting will focus on the following lakes and springs in Seminole and north Orange counties: lakes Brantley, Mills, Prevatt and Sylvan, and Palm, Sanlando and Starbuck springs.
Cardno ENTRIX finalized its report on the economic impacts of the EPA’s numeric nutrient criteria. The report will be presented by Cardno ENTRIX to the National Academy of Sciences’ Committee on Economic Analysis of Final Water Quality Standards for Nutrients for Lakes and Flowing Waters in Florida today in Orlando at 230pm. The presentation is part of a 3-day meeting of the NAS Committee on July 25 – 27, 2011.
The revised report considers new information from FDEP and EPA and incorporates this information into a revised economic impact assessment. The ultimate conclusion of the report is as follows:
EPA is in the process of developing new recreational water quality criteria designed to protect swimmers from illnesses due to exposure to pathogens in recreational waters. The existing recreational water quality criteria are more than 20 years old. Since then, scientists have learned much about molecular biology, virology, and analytical chemistry. EPA states that this new information will help the agency build a stronger scientific foundation for up-to-date recreational water quality criteria.
On June 14-15, 2011, EPA held its 2011 Recreational Water Quality Criteria Stakeholder Meeting in New Orleans, LA (the agenda for the meeting can be found here). At this meeting, EPA received stakeholder feedback on its evaluation, synthesis, summarization and statistical analysis of the research conducted and completed in December 2010; and on the development of options for the overall structure and content of the criteria.
The EPA announced that it will conduct a webinar to provide a recap of selected presentations made at the June stakeholder meeting. Also during the webinar, EPA will provide an update on its evaluation and synthesis of the research conducted and present options for the overall structure and content of the criteria.
This webinar will begin at 1:00 pm and will conclude at 4:30 pm (EDT). A link to the webinar page can be found here.
EPA announced that the agency created a new website (found here) focused on nitrogen and phosphorous pollution. The EPA announcement states that the goal of the website is to “provide the public with information about this type of pollution– where it comes from, its impacts on human health and aquatic ecosystems, and actions that people can take to help reduce it.”
The new site also provides a significant amount of information directed at states seeking to develop their own state-level numeric nutrient criteria. EPA refers states to the March 16, 2011, guidance memo (PDF) that provides the framework to “encourage development and implementation of effective state strategies for managing nitrogen and phosphorus pollution.” In addition to the State Framework for Managing Nitrogen and Phosphorus Pollution, the state section of the new site includes technical references for states to consider when developing their own numeric nutrient standards. These technical documents include technical criteria development guidance documents for various water body types and ecoregional criteria documents. EPA also released a new Nitrogen and Phosphorus Pollution Data Access Tool. The goal of the tool is to support states in their nitrogen and phosphorus analyses by providing the most current data available on: the extent and magnitude of nitrogen and phosphorus pollution; water quality problems related to this pollution; and potential pollution sources in a format that is readily-accessible and easy-to-use. With this comprehensive data, EPA, the states, and other stakeholders will be able to more quickly gather additional, less-accessible data and develop effective source reduction strategies for nitrogen and phosphorus.
The final section of the new EPA website includes information on the status of state numeric nutrient criteria development. A map titled “Progress Toward Clean Water Act Adopted Numeric Nutrient Criteria” provides, in graphic format, a summary of the status of numeric nutrient criteria for all 50 states and U.S. territories. Links with more specific information on each state or territory program is also provided.
Yesterday, July 13, 2011, the United States House of Representatives passed H.R. 2018, titled the Clean Water for Cooperative Federalism Act of 2011 on a vote of 239-184. While the vote was mostly along party lines, 16 Democrats voted to support the Bill and 13 Republicans voted against it.
During the debate on the Hill, Representative John Mica, a sponsor of the Bill and chairman of the House Transportation and Infrastructure Committee stated that the EPA is engaged in an “unprecedented regulatory grab” during a “difficult time in our economy”.
However, environmentalists countered, saying that the bill is the “single-worst assault on clean-water protections in a generation,” this from a statement by Steve Fleischli, of the Natural Resources Defense Council.
The passage comes after the EPA’s Office of Management and Budget issued a statement that HR 2018 could undermine the Clean Water Act. Specifically, EPA’s statement provided:
H.R. 2018 could limit efforts to safeguard communities by removing the Federal Government’s authority to take action when State water quality standards are not protective of public health. In addition, it would restrict EPA’s authority to take action when it finds that a State’s CWA permit or permit program is inadequate and would shorten EPA’s review and collaboration with the Army Corps of Engineers on permits for dredged or fill material. All of these changes could result in adverse impacts to human health, the economy, and the environment through increased pollution and degradation of water bodies that serve as venues for recreation and tourism, and that provide drinking water sources and habitat for fish and wildlife.
The Florida Department of Environmental Protection (FDEP) has announced another round of workshops to discuss state level numeric nutrient standards.
DATE AND TIME: Wednesday, July 27, 2011, 9:00 a.m.
PLACE: City of Leesburg Community Center, 109 E. Dixie Avenue, Leesburg, Florida
DATE AND TIME: Wednesday, August 3, 2011, 9:00 a.m.
PLACE: Florida Department of Environmental Protection, Bob Martinez Center, 2600 Blair Stone Road, Room 609, Tallahassee, Florida
Previous workshops were held on June 14, 2011 and June 16, 2011.
Seeking to propose standards for nutrients (nitrogen and phosphorous), FDEP is holding these workshops to discuss potential revisions to Chapters 62-302 and 62-303, F.A.C. Interestingly, the notice states that FDEP has not made a final decision on whether to proceed to rulemaking at this time. Further, dissolved oxygen standards will not be discussed at the workshops.
One of the primary criticisms of the EPA’s numeric nutrient criteria for Florida’s lakes and inland flowing waters is the economic impacts that would result from compliance with the new standards. There is a substantial discrepancy between the estimates of the EPA, Florida Department of Environmental Protection, and industry groups concerning the cost of compliance. As a sign that the agency is listening to the stakeholders, EPA agreed to send the issue to the National Academy of Sciences (NAS) for review of the economic impacts.
The evaluation will give special attention to those assumptions that may account for discrepancies between EPA’s analysis and those of several stakeholder groups. Specifically, the committee will review and comment on the implications of:
The NAS organized a Committee on Economic Analysis of Final Water Quality Standards for Nutrients for Lakes and Flowing Waters in Florida. The Committee is scheduled to meet three times over a 13 month period. The Committee’s first meeting will occur on July 25th through 27th in Orlando, Florida. Sessions open to the public are Monday, July 25 (10:30 am to 5:00 pm) and Tuesday, July 26 (10: 45 am to 2:00 pm). The Stakeholder’s Open Mic Session starts at 3:45 pm to 5:00 pm on Monday, July 25. The meeting location is the Embassy Suites Orlando by the airport. The address is 5835 T. G. Lee Boulevard, Orlando, FL 32822. An agenda for the meeting can be found here.
Updates from these meetings will be provided as I receive them, so make sure to check back on this important issue.
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