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Issue 618

12/13/2012 at 3:58pm

Estero BayEPA's Decision a Good One for Estero Bay

The federal Environmental Protection Agency recently settled a three-year lawsuit filed by Florida's environmental groups by approving rules for water pollution over the state's - thereby triggering the establishment of numeric nutrient criteria for approximately 100,000 miles of waterways and more than 4,000 miles of estuaries in Florida. The decision is not without some controversy, however, as the EPA is allowing the state's rules – supported by the agriculture industry but regarded by environmental groups as too weak to stop the nutrient pollution causing blooms of algae that choke Florida's waterways, killing fish and making humans sick – to govern some of the state's water and also leaves the possibility open to adopt more state regulations. The decision is heralded as an important one by those on both sides of the issue, however, as Florida and most other states currently have pollution standards that are very vague.

The standards are designed to curtail pollution from such sources as fertilizer, animal waste and, sewage effluent that have been blamed for causing toxic, slimy algae blooms in the state's rivers and estuaries. Standards previously had been set for lakes and springs.

"EPA’s response here will set the standard for the nation,” stated Earthjustice attorney David Guest on behalf of various environmental groups, including the Sierra Club. "What we’ve lacked is a set of quantifiable numbers that are basically a speed limit sign to make the law clear and enforceable. This is absolutely everything we hoped for.”

The state's standards are very similar to the federal ones – with one exception: the version proposed by the Florida Department of Environmental Protection (FDEP) require that certain biological and chemical indicators would have to be present before the numeric limits could be triggered. In a press release issued on November 30th of this year, EPA Administrator Gwen Keyes Fleming stated that, "Nutrient pollution threatens human health and the environment, hurts businesses, costs jobs, reduces property values and otherwise impacts the quality of life for all Floridians. Clean water is vital for Florida and EPA commends FDEP for taking this significant step towards protecting and restoring water quality across the state.”

The press release went on to say that the EPA has determined that FDEP’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 and efficient than the previous narrative approach. The numeric limits for nitrogen and phosphorus in springs, lakes and streams (outside South Florida) are virtually identical to those in the EPA’s 2010 rule.

The federal agency’s recent decision came with two additional nutrient rules for Florida — one that sets nutrient limits for estuaries and coastal waters not covered by FDEP’s standards – including streams in South Florida, and the other clarifies language on a 2010 EPA rule, setting nutrient limits for Florida’s inland waters.

The decision comes at the end of a long battle between environmental, business, and agricultural groups over proposed limits on nitrogen and phosphorus in Florida waterways. Industry groups object to the federal rules proposed in 2010 because they claim they will cost too much to implement. Environmental groups say that numeric nutrient standards are needed to curtail pollution from sources such as fertilizer, animal waste and sewage effluent.

Last February, U.S. District Judge Robert Hinkle threw out the federal rules for springs and waterways, finding them to be "arbitrary and capricious.” The judge then directed the EPA to propose new limits by the November 30th deadline. The EPA had requested an additional 120-day extension of time to continue its discussions with the State on the alternate criteria but when Judge Hinkle had not ruled on the requested extension the they were forced to file notice of the proposed adoption by the November 30th deadline.

The fight is far from over, however.

Last week, Congressman Steve Sutherland, a Republican from Panama City, called the EPA a 'bully' and says it is not sensitive the economic hardship these criteria will cause. His solution is the State Waters Partnership Act (HR 3856). If passed, it would require the EPA to consider the economic impact before setting nutrient limits. The bill says the EPA should not enforce nutrient criteria that would negatively impact an economic sector by 15 percent. Southerland has 13 cosponsors on the bill, all Florida representatives. U.S. Sen. Marco Rubio has a companion bill in the Senate - which has no cosponsors.

Southerland points to a joint study by FDEP and the University of Florida claiming that the EPA’s original 2009 plan for nitrogen and phosphorous stan­dards would have destroyed 14,500 Florida agriculture jobs and cost over $4 billion annually. However, another recent study by the independent Stockholm Environment Institute says that water pollution caused by these nutrients is costing the state more than $10 billion every year.

Whether the new criteria will help the beleaguered Caloosahatchee River remains to be seen, but Town Environmental Science Coordinator Keith Laakkonen told us that the decision means good news for Estero Bay.

"The river is a mess,” he said. "It's impaired – sometimes it functions like a canal, sometimes it functions like an ecosystem. Once the Maximum Daily Load is in place, that will be driving how it's managed, but it's just a mess – policy wise and ecosystem wise.”

Not so for Estero Bay, which Keith told us is in good shape thanks to the EPA's allowing the National Estuaries Program (NEP) to work with the Town and the FDEP to come up with their own numbers for the bay, something he believes will protect it now and into the future.

"I attended a lot of meetings with lots of discussions on this, and we came up with a 'referenced time period' approach where we looked at the state of the bay in various conditions,” he explained. "We chose a time when the bay was under normal rainfall and looked to be at it's most natural – meaning it wasn't being impacted by water releases from Lake Okeechobee – and used those numbers as the standard.”

Laakkonen said that the EPA allowed the NEP to work with local governments at many places in Florida, something he feels is fortunate because it allowed those places to set their own criteria based on local knowledge. He explained that much of the EPA's numbers are based on computer modeling rather than on-site testing, which doesn't take into account things that don't operate as a natural system – such as canals.

"That's the power of having the NEP in your area,” he said. "Charlotte Harbor, Upper Charlotte Harbor, Lemon Bay and Matlacha - all water bodies in our area. We came up with some very scientifically defensible numbers that will protect us.”

"At the end of the day, our numbers will protect the bay – and that's good news.”

Keri Hendry Weeg