State judge sides with DEP in water quality rules challenge

An administrative law judge on Thursday upheld the state’s proposed new water quality rules that are intended to replace federal rules that agriculture and industry groups oppose.

Environmental groups had challenged the rules, called numeric nutrient criteria, saying they are weak and unenforceable and would lead to continued toxic algae blooms in Florida waters. However, Administrative Law Judge Bram D. E. Canter said in his 58-page order the groups failed to make their case with the evidence presented.

Scientists say increasing nitrogen from a variety of sources including fertilizer, wastewater and industrial plants is causing waterways to become choked with algae. The rules would set limits for nitrogen and phosphorus or require studies to show that waterways are not impaired.

The Florida Department of Environmental Protection has forwarded its rules the U.S. Environmental Protection Agency for review and approval. EPA’s rules were thrown out by a federal judge earlier this year.

The rules were approved in December by the state Environmental Regulation Commission. In February, Gov. Rick Scott signed HB 7051 waiving legislative ratification of the proposed rules.

In a written statement Thursday, DEP Secretary Herschel T. Vinyard Jr. said the department looks forward to getting the rules on the books as soon as possible.

“It’s time to turn our focus on improving water quality, put our plan into action and end needless litigation that delays Florida’s rules,” Vinyard said.

David Guest, an attorney for the nonprofit Earthjustice law firm representing environmental groups, said his clients could challenge federal approval of the state rules, but he said that federal approval may not happen.

“With evidence around the state this is a grave and growing problem there is a reason to think (the federal) EPA would consider public health as a reason to look at this pretty carefully,” he told The Florida Current. Earthjustice represents the Florida Wildlife Federation, St. Johns River Keeper, the Conservancy of Southwest Florida, the Sierra Club and the Environmental Confederation of Southwest Florida.

During a two-week hearing in late February and early March, Earthjustice presented testimony from aquatic scientists who said the rules would not protect waterways from algae blooms caused by excessive nitrogen and phosphorous.

Canter said deference must be given to an agency when it makes a scientific determination on proposed rules. He said it was regrettable that the experts on both sides were so far apart.

But he also said the environmental groups failed to show that DEP lacked authority to propose the rules or that they met the “arbitrary and capricious” standard.

The department’s experts “were supported by expert testimony, reports, graphs and data summaries generated by investigations that involved many scientists focused on the specific objective of developing nutrient criteria,” Canter wrote.

“In contrast, petitioners’ position was usually supported only by expert opinions that were based on data collected for different purposes and not presented or made a part of the record,” he wrote.

DEP officials hope this week to notify the federal EPA of the judge’s decision, said Drew Bartlett, director of DEP’s Division of Environmental Assessment and Restoration. Then the federal agency will have 60 days to approve the state rules and then would have to withdraw the federal rule for the state rules to take effect.

Related Research: Read statements regarding the outcome of the administrative hearing for numeric nutrient standards from DEP Secretary Herschel T. Vinyard Jr., AIF President Tom Feeney, the Don’t Tax Florida coalition, and Earthjutice law firm.

Reporter Bruce Ritchie can be reached at britchie@thefloridacurrent.com.

Florida State Water Quality / Numeric Nutrient Standards

The following is courtesy of DEP News: to learn more

DEP is moving forward with proposed rules for numeric nutrient standards for Florida’s waterways. These rules set limits on the amount of phosphorus and nitrogen, also known as nutrients, allowed in Florida’s waters. DEP based these rules on more than a decade of research and data collection, and designed them to improve water quality, protect public health and preserve aquatic life in Florida’s waters. View a Numeric Nutrient Standards Overview. View a video of Drew Bartlett, DEP’s Division of Environmental Assessment and Restoration director, presenting numeric nutrient standards to the Senate Committee on Environmental Preservation and Conservation.

June 7, 2012 Statement: read history

Feb. 16, 2012 Statement: read history

Myth vs. Reality – a helpful guide to Florida’s Numeric Nutrient Standards

Nutrients are natural substances that our ecosystems need in order to be healthy. They are very different from toxic pollutants, but can become a problem when they occur in excess of what naturally occurs in an aquatic system. Nutrients have a very complex relationship with the natural environment, which is based in large part on the type of aquatic system in which they are found. What may be healthy or unhealthy for one waterbody may not be for another.

See more Myth Versus Reality …

DEP Secretary Joins Stakeholders to Celebrate Santa Fe River Basin Management Action Plan

“One of DEP’s top priorities is getting Florida’s water right, which entails both ensuring an adequate supply and improving the quality of our water,” said DEP Secretary Vinyard. “I am proud to join the local governments, members of the agricultural community and our other partners who worked with us to create this plan today to celebrate this achievement, and I look forward to continuing this partnership as we take action to improve the water quality of this important watershed.”

Numeric Nutrient Standards

Drew Bartlett, DEP’s Division of Environmental Assessment and Restoration director, presents Numeric Nutrient Standards – proposed rules that set limits on the amount of phosphorus and nitrogen, also known as nutrients, allowed in Florida’s waterways – to the Senate Committee on Environmental Preservation and Conservation.

Federal Water Quality Standards for the State of Florida

• Federal Rulemakings
• FDEP Petition

Clean water is vital to Florida’s economy. Jobs depend on it. Algae blooms—the thick, green muck that fouls clear water––can produce toxins harmful to humans, animals and ecosystems across the state of Florida.

According to the Florida Department of Environmental Protection’s list of impaired waters, about 1,918 miles of rivers and streams are currently impaired for nutrients. The number of miles grew from approximately 1000 miles in 2008 to approximately 1900 miles in 2010. Impaired acres of lakes increased from 350,000 acres in 2008 to 378,000 in 2010.

Although Florida has made intensive efforts to diagnose and control nutrients in the state, significant nitrogen and phosphorus pollution persists. Hydrological modifications, intensive agricultural production, population growth and associated urban and suburban development, all increase runoff and result in nutrient impacts. read more

More information from DEP News

• DEP’s Numeric Nutrient Standards Information Page
• DEP’s Numeric Nurtient Standards Development Page
• U.S. Environmental Protection Agency’s Response Letter – Nov. 2, 2011
• Numeric Nutrient Standards Cost Analysis Report
• Numeric Nutrient Standards Cost Calculations Spreadsheet

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