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.

EPA Launches New Website Focused on State Nutrient Criteria

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.

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.