Webinar on New Federal Recreational Water Quality Criteria on September 20, 2011

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.

H.R. 2018 Passes U.S. House After EPA Issues Statement Opposing the Bill

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.

National Academy of Sciences to Review Economic Impacts of Numeric Nutrient Criteria

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:

1. EPA’s assumption that costs should only be determined for waters that will be “newly impaired” as a result of the numeric nutrient criteria.
2. EPA’s decision to estimate the costs of only those sources of pollution that would directly affect a “newly impaired” water—in particular the number of wastewater treatment plants, the acreage of agricultural land, the acreage of urban areas, and the number of septic systems included in the EPA analysis.
3. EPA’s assumptions about the levels of control that could be used by certain point and nonpoint sources, such as wastewater treatment plants, industrial point sources, agricultural activities, and septic systems.  Examples of these assumptions could include a decision to seek a regulatory exemption, whether to implement reverse osmosis technology, or to use conventional best management practices rather than more expensive water treatment options.

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 25^th through 27^th 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.

Federal Appeals Court Denies Residents’ Attempt to Block Discharges from Lake Okeechobee

On June 30, 2011, the United States Court of Appeals for the Federal Circuit upheld the decision of the lower court to dismiss a complaint seeking to prevent further releases of fresh water from Lake Okeechobee to the St. Lucie estuary.  Appellants John R. Mildenberger, et al. sued the United States in the United States Court of Federal Claims.  The basis of their claims was that these fresh water releases resulted in an alleged taking of their riparian and upland property rights.  The case is Mildenberger v. United States, 06-CV-760, No. 2010-5084 (Fed. Cir. 2003).

The Plaintiffs are twenty-two individuals who own property along the St. Lucie River and one individual who owns land abutting the St. Lucie Canal.   They contend that for many years the release of lake-regulation discharges through the St. Lucie Canal causes serious damage to fishing and boating in the St. Lucie estuary.

On November 13, 2006, the Plaintiffs filed a complaint in the U.S. Court of Federal Claims seeking compensation of approximately fifty million dollars for the Government’s “intentional and repeated discharge of pollutants” into the St. Lucie River and estuary system.  The complaint alleges that releases of water from Lake Okeechobee by the U.S. Army Corps of Engineers took Plaintiffs’ “riparian right to use and enjoy the water in the St. Lucie River free from pollution,” including their rights to swim, boat, fish, and use the water for recreation.  Additionally, the complaint alleges that the Army Corps’ releases of large volumes of fresh water into the brackish water of the estuary “operate as a pollutant” because “[f]resh water releases destroy the delicate balance between salt and fresh water so critical to a tidal estuary.”

The Court of Federal Claims granted the Government’s motion to dismiss, ruling that Plaintiffs’ suit was filed outside the six-year statute of limitations applicable to claims for compensation under the Tucker Act, 28 U.S.C. § 1491.  The Court of Federal Claims also granted summary judgment for the Government on alternative grounds. The trial court first held that Plaintiffs’ alleged riparian rights of fishing, swimming, boating, and recreation were not compensable rights because those rights are held in common with the public.  Additionally, the court rejected Plaintiffs’ asserted right to observe wildlife as unsupported by any legal authority.

The Court of Appeals affirmed the decision of the lower court.  The appellate court held that Plaintiffs’ alleged takings claims were barred by the statute of limitations in 28 U.S.C. § 2501 and Plaintiffs failed to establish that Florida law recognizes compensable property interests in the riparian rights they allege were injured by the Government.

The full opinion of the case can be found here.

EPA Seeks Input on Proposed Revisions to Lead and Copper Rule

The U.S. EPA is proposing revisions to the 20-year old Lead and Copper Rule (LCR), found at 40 CFR Part 141.  Lead and Copper primarily enter drinking water through interior plumbing and water distribution systems.

As part of the process, the EPA is creating a small business advocacy review (SBAR) panel to determine the potential impacts, if any, the rulemaking effort will have on small businesses, small governments and small non-profit organizations. The Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act requires EPA to convene a SBAR panel for a proposed rule unless the EPA certifies that the new rule will not have a significant impact on small entities.

According to the EPA, the LCR set an action level (AL) of 0.015 mg/L or 15 parts per billion (ppb) for lead and 1.3 mg/L or 1300 ppb for copper. The action level is a concentration of lead or copper in the water that determines, in some cases, whether a water system must install corrosion control treatment, monitor source water, replace lead service lines, and/or undertake a public education program. The action level is exceeded if the concentration in more than 10 percent of tap water samples collected during any monitoring period is greater than the action level (i.e., if the 90th  percentile level is greater than the action level). If the 90th percentile value for tap water samples is above the action level, it does not signal a violation, but may trigger other requirements that include water quality parameter monitoring (WQP), corrosion control treatment (CCT), source water monitoring/treatment, public education, and/or lead service line replacement.

EPA is developing a proposal to modify the current Lead and Copper Rule.  Requirements under consideration for modification include sample site selection criteria, tap sampling procedures, water quality parameters monitoring, lead service line replacement, and consecutive water system requirements. The changes under consideration are intended to improve public health protection provided by the LCR and streamline requirements.

More information on the LCR can be found here.

U.S. House Sub-Committee Holds Hearing on EPA Nutrient Policies

On June 24, 2011, the U.S. House of Representatives Subcommittee on Water Resources and Environment held a hearing to focus on the Environmental Protection Agency’s (EPA) nutrient policies and the EPA goal for states to adopt uniform numeric nutrient water quality standards under the Clean Water Act (CWA).

The CWA directs states to establish water quality standards for nutrients (nitrogen and phosphorous).  The EPA maintains oversight and final approval authority over these state standards.  Florida, like many other states, traditionally utilized narrative standards to protect waters from excessive nutrients.  In response to a federal lawsuit, the EPA promulgated numeric nutrient criteria for Florida.  The EPA is now pressing other states to adopt numeric nutrient water quality standards for their waters.

Rep Bob. Gibbs (R-OH), Chairman of the Subcommittee said, “It is important to note that those who are tasked most directly with protecting waters in the United States are represented here today; and they are saying that in some respects, their ability to do their job is being threatened by the policies of the Federal EPA.”

At the hearing, Transportation and Infrastructure Committee Chairman John L. Mica (R-FL) said “The irrational exuberance of EPA will destroy credibility in the agency that will last far beyond this Administration and make true environmental gains much harder to accomplish.” Mica went on further, “EPA’s regulatory jihad is strangling any chance of economic recovery. Its costly, burdensome policies will double struggling families’ water bills while providing little to no benefit to water quality.”

Rep. Mica is the sponsor of H.R. 2018, a bill known as the “Clean Water for Cooperative Federalism Act of 2011”.

Additional information about the subcommittee hearing can be found here.

Florida DEP Holds Workshops to Discuss Proposed State Nutrient Standards

On June 14, 2011 and June 16, 2011, the Florida Department of Environmental Protection (FDEP)  held public meetings on potential revisions to Chapters 62-302 and 62-303, F.A.C., regarding nutrient standards (nitrogen and phosphorous) and dissolved oxygen.  This rulemaking effort is FDEP’s attempt to take back control of nutrient regulation from the U.S. EPA.  On April 22, 2011, the FDEP filed a Petition with the EPA requesting the withdrawal of EPA’s formal determination that Numeric Nutrient Criteria were required in Florida.

At the workshops, FDEP provided a conceptual framework of the proposed standards and a presentation generally describing the numeric nutrient standards concepts.

No draft rule language is available at this time. However, the next series of workshops are scheduled for July.

Surprisingly, FDEP staff made statements to the effect the agency may reconsider moving forward with its own standards after the EPA refused to withdraw its federal standards.  Little information on this positional flip-flop is available, except for one article here.

 

H.R. 2018 – the Clean Water for Cooperative Federalism Act of 2011

U.S. Rep. Jon Mica (R-Winter Park) introduced H.R. 2018, known as the “Clean Water for Cooperative Federalism Act of 2011″.  The bill aims to “amend the Federal Water Pollution Control Act to preserve the authority of each State to make determinations relating to the State’s water quality standards, and for other purposes.”

H.R. 2018 would restrict EPA from interfering with state water quality policies in a number of ways, some of which include:

• Restricts EPA from rewriting state water quality standards that have already been approved by the agency and the state.
• Prohibits EPA from overriding a state certification that its water quality standards will be met by a federally permitted or licensed activity.
• Prohibits EPA from withdrawing approval of a state water quality permitting program, or from limiting Federal financial assistance to a state water quality permitting program, on the basis that EPA disagrees with the state about the implementation of a state-issued and EPA-approved water quality standard.
• Prohibits EPA from objecting to a state’s issuance of a 402 (NPDES) permit  on the basis of EPA’ own (conflicting) interpretation of a state water quality standard.
• Restricts EPA’s ability to veto a Corps 404 (dredged or fill material) permitting decision under CWA section 404(c) if a state disagrees with EPA about the impacts of the discharge on state waters.
• Allows states to assume part of the the 404 permit program rather than the current requirement that they take all or none of the program.
• Establishes deadlines for EPA and other agencies to comment on 404 permits.

The bill’s sponsors indicate that this bill has a good chance to make it out of committee with strong bipartisan support.

David Guest, Attorney for Earth Justice, Issues Op Ed re Need for NNC

David Guest, lead counsel for Earth Justice and the plaintiff in the federal lawsuit that led to the U.S. EPA's Numeric Nutrient Criteria, wrote a "guest" essay for the Naples Daily News. The article, found here, was published on June 17, 2011.

The focus of the article is on a recent algae outbreak in the Caloosahatchee River that resulted in numerous fish deaths, and the closing of a portion of the river from public use. Guest states that the outbreak "is a grim reminder of why we need enforceable water pollution limits in Florida to protect our drinking water and our health".