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Spring 2013
d&G Lawyer News

  • Numeric Nutrient Criteria Rule Developments
  • By: Kristin Y. Melton

    In January of 2009, EPA issued a determination under the Clean Water Act that numeric nutrient criteria are necessary in Florida, whether adopted by the state or EPA. Following its determination, EPA entered into a Consent Decree with Florida Wildlife Federation and several other groups in August 2009. Under the Consent Decree, EPA committed to a schedule to propose and finalize nutrient pollution rules covering Florida's inland and coastal waters if the state did not act first. The Consent Decree has since been revised and some deadlines have been extended. EPA finalized its inland rule in December 2010; however, the state submitted its own rule covering many of the same waters in June 2012 after clearing a state-level administrative challenge.

    On November 30, 2012, the EPA approved DEP’s Inland Water rule in its entirety, including all lakes, streams, and estuaries criteria. The EPA determined that DEP’s new method of deriving numeric limits for the amount of nutrient pollution allowed in lakes, springs, streams and estuaries is technically and scientifically sound and more effective than the previous narrative approach. The EPA did NOT individually approve site specific criteria such as second level WQBEL and TMDLs. The EPA indicated this approval will be part of a separate action sometime in the future.

    However, the DEP rule is not yet in effect because the EPA approval is contingent upon the outcome of consultation under the Endangered Species Act; DEP being able to implement their rule consistent with its Implementation Document and other supporting documents submitted to the EPA by DEP; EPA’s proposal to promulgate numeric nutrient criteria for the waters not covered by DEP’s rule; and modification of the Consent Decree to not require numeric criteria to protect downstream waters. Since the DEP rule is not effect, the EPA reserved the right to revisit its approval decision in the future and to modify or withdraw it, as appropriate. At this time, the state rule will not take effect until the aforementioned contingency issues are resolved and EPA abandons its attempt to set numeric nutrient criteria for inland flowing waters not covered by the DEP rule.

    Because of these contingencies, the EPA proposed to postpone the applicability of the Inland Water Rule for lakes and springs from January 6, 2013 until November 15, 2013, in order to allow time to gain clarity on the implementation of Florida’s rule. On January 4, 2013, the EPA filed a motion with the District Court requesting to delay the effective date of the Inland Waters Rule for lakes and springs. However, Judge Hinkle did not issue an order granting or denying the motion prior to the January 6, 2013 effective date currently in place. Therefore, the lakes and springs criteria contained in EPA’s December 6, 2010 final Inland Water Rule went into effect on January 6, 2013 and will remain in effect unless the Judge issues an order approving the EPA’s request to delay the effective date until November 15, 2013 or the state rule becomes effective. Again, the recently approved DEP state rules for springs and lake criteria is not applicable because the state rules have not become effective and are subject to the contingencies described above. If the Judge approves the EPA’s motion to delay the effective date, the narrative criteria will again apply until the new effective date of November 15, 2013.

    Furthermore, in order to comply with the existing consent decree, the EPA also proposed additional federal criteria on the basis that the state’s rules do not cover some coastal waters, many estuaries and a subset of flowing waters. On November 30, 2012, the EPA signed proposals for two new rules to address these water bodies, the Inland Remand Rule and the Coastal Waters Rule. By court order, the EPA must finalize the Inland Remand Rule by August 31, 2013 and the Coastal Waters Rule by September 30, 2013. However, the EPA is prepared to move forward to withdraw its rules for any waters covered by state law that meet the requirements of the Clean Water Act.

    de la Parte & Gilbert, P.A. has significant experience in environmental and administrative law, and can help answer and address any questions or concerns you may have concerning this new legislation or any other environmental issues you may have. Please contact Kristin Melton at (813) 229-2775 with your inquiries
    101 E. Kennedy Blvd., Suite 2000 | Tampa, FL 33602 | 813-229-2775 Fax: 813-229-2712
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