Who Will Set Nutrient Criteria?
Apart from the federal government’s involvement in mountaintop coal mining and valley filling in Appalachia, the state water quality issue currently grabbing the most national headlines involves EPA’s development of nutrient criteria for Florida’s lakes and flowing and coastal waters. As with Appalachian coal mining, the federal responsibility under the Clean Water Act to ensure that the quality of water bodies is sufficient to meet their designated purposes and to protect public health and the environment is clashing with business interests as well as with county and local governments that argue that meeting EPA’s water quality will force water treatment plants to acquire new treatment equipment costing billions of dollars.
The CWA is constructed to afford individual states the right to develop programs and regulations to protect water quality within their borders. But the statute gives also EPA the authority to step in if the Agency believes any state is falling short of its obligation to protect regulated waters. The interest in the Florida case is high because it is the first time EPA has taken over a water quality standards-setting process from a state. Stakeholders are wondering if this precedent will be repeated in other regions of the country.
Specifically, in November 2010, EPA issued new numeric water quality criteria for phosphorus and nitrogen concentrations in Florida’s lakes and flowing waters. The action followed a suit filed against EPA in 2008 by environmental groups. As a result of that case, EPA agreed to develop numeric nutrient criteria for Florida’s inland waters. The Agency’s action effectively usurped ongoing efforts by Florida to develop its own numeric nutrient levels to replace narrative water quality standards that had been in effect. That effort had been proceeding slowly, and, according to environmentalists, had been knocked off track by opposition from the sewage industry. As part of the judicial agreement, EPA also committed to issuing numeric nutrient criteria for Florida’s coastal and estuarine waters by August 2012.
Topping the many twists and turns of this complex controversy are strong disagreements about the condition of Florida waters. Phosphorus and nitrogen enter waters primarily through discharges from sewage treatment plants and agricultural runoff containing manure and other fertilizers. Excessive nutrient loads result in algal blooms, which deplete oxygen and imperil aquatic life. Blue-green algae (cyanobacteria), which has bloomed in some waters, has been found to be toxic to people, resulting in skin irritation, stomach cramps, vomiting, nausea, diarrhea, fever, blisters in the mouth, and liver damage, among other symptoms.
EPA points out that 1,918 miles of Florida rivers and streams are currently impaired for nutrients, an increase of 1,000 miles since 2008. (EPA concedes that this dramatic increase may result in part from improved and increased monitoring.) The Agency adds that these high levels of nutrients have also migrated to underground sources of drinking water. EPA referenced data developed by the state for 2005 to 2010, indicating that 63 percent of the approximately 4,000 private drinking water wells contained detectable levels of nitrate, and 15 percent of these wells exceeded the nitrate drinking water standard. Most of these wells are located in the Central Florida citrus growing region.
One Size Fits All
Florida governments, business interests, and lawmakers contend that EPA has issued sweeping, one-size-fits-all criteria that fail to consider site specific issues. Some assert that nutrient levels in water are dependent on multiple factors, including water chemistry, sunlight, flow, and temperature, and are not strictly the result of sewage discharges or agricultural runoff. The argument continues that nutrient levels that cause a negative effect in one water body may not cause the same effect in another. For example, Florida’s U.S. Representative Cliff Stearns notes that an oyster reef in the Tampa Bay estuary system has been described by the Florida Fish and Wildlife Conservation Commission as “pristine.” Yet the water quality of this area does not come close to meeting EPA’s standard, says Stearns.
The reasoning here continues that establishing a cause and effect relationship between nutrient levels and negative effects on water quality to establish appropriate nutrient numerical levels should be a site-specific exercise. But this is also an exercise that is time-consuming and costly. Florida has cited cost and technical difficulty as a reason for preferring narrative nutrient water quality standards over numeric standards. Narrative standards provide regulatory agencies the flexibility to deal with a variety of nutrient-related water quality issues as they arise.
Environmentalists protest that narrative standards, which simply state that nutrients may not cause a biological imbalance, are unenforceable and too loose and vague to be effective. “This is like posting a speed limit sign on I-75 that reads ‘Drive at a Reasonable Speed Considering Weather, Traffic, and Lighting Conditions as Well as Other Relevant Factors,’” stated David Guest, an Earthjustice attorney in testimony before the U.S. House Subcommittee on Oversight and Investigations. “Numeric standards, on the other hand, are precise and enforceable — like speed limit signs that clearly say ‘SPEED LIMIT 55 MPH.’”
Both Guest and Gwendolyn Keyes Fleming, EPA’s regional administration for the Agency’s Atlanta office, told the subcommittee that any argument against the adverse business effect of numeric nutrient criteria is missing the impact of green slime on Florida’s massive tourism trade and the value of waterfront properties. An often cited figure from 2005 is the $500 million decline in values of waterfront properties when bright green slime covered the St. Lucie River and estuary in Southeast Florida. Florida’s $4.3 billion a year fishing industry, the largest of any state, is also threatened by nitrogen and phosphorus pollution, said Fleming.
Cost of Compliance
But representatives of other Florida industries do not see a benefit to the federal criteria. In the House hearing, a spokesperson for the Florida Gulf Coast Building and Construction Trades Council said the state was being unfairly single out by onerous criteria that would be too expensive to achieve, reduce investment, and cause job loss. Ron St. John, a representative of the Florida Farm Bureau Federation, said the EPA nitrogen criterion of 0.35 parts per million (down from the previous limit of 10 ppm) for springs that contribute to the Suwannee River is not attainable under any science based model for any industry, power plant, agricultural facility, or even the thousands of septic tanks in the basin. “Short of turning the Suwannee Basin into a national park, devoid of people, this is a completely unreasonable standard, with no economic or science based modeling in these decisions,” said St. John.
EPA’s criteria may have its most profound economic impact on domestic wastewater treatment utilities. Utilities contend that meeting the Agency’s limits will almost certainly necessitate installation of advanced water treatment (AWT) technologies such as microfiltration and reverse osmosis. Based on a survey of 50 biological nutrient removal (BNR) upgrade projects, the Florida Water Environment Association (FWEA) reports that the expected cost to upgrade a 10 million gallon per day plant from secondary to AWT standards would average $82 million., and costs could be as high as $140 to $160 million at facilities with site constraints, says FWEA. Moreover, operating costs would increase by at least $1.00 per thousand gallons treated (about $3.6 million per year), not including concentrate disposal costs that can range from an additional $1.10 per thousand gallons for a deep well up to $3.00 per thousand gallons for a brine concentrator system. These operating costs are in addition to the estimated $1.00 to $1.50 per thousand gallons treated now being spent by typical Florida facilities producing water for reuse.
Florida and other critics of EPA’s criteria estimate that the overall cost of complying with EPA’s criteria can be as high as $8.4 billion annually. This contrasts with EPA’s compliance cost estimate of about $200 million annually. According to FWEA, the wide chasm between the cost estimates results from an “extraordinary assumption” made by EPA. Paul Steinbrecher, President of FWEA’s Utility Council, told that House subcommittee that EPA assumes that nearly all utilities will not have to achieve the Agency’s final nutrient standards. Instead, says Steinbrecher, EPA’s cost estimate is based on the expectation that utilities will apply for and receive variances, site specific alternative criteria (SSAC), designated use modifications, or some other form of relief from compliance with the rule.
“If this were even possible, at a minimum, it would call into question the underlying need for the rule in the first place,” stated Steinbrecher. “How can EPA base its entire rulemaking on a determination that these standards are necessary for Florida to comply with the Clean Water Act, yet for the purposes of calculating the economic impact of its final rule, assume that virtually no permitted utility is actually going to have to achieve the standards.”
EPA has stated that provision of SSAC would be based on stakeholder submission of scientifically defensible recalculations of protective levels that meet the requirements of CWA section 303(c) [state review of water quality standards]. The Agency has also acknowledged that the wide range of cost estimates warrants a third-party review. Accordingly, EPA has requested that the National Research Council conduct an independent review of the costs of implementing the inland waters numeric nutrient criteria. This review is underway and should be available by the end of February 2012, said Fleming.
One of the ironic aspects of the story is that EPA claims it would prefer that any nutrient criteria in force in Florida be developed by the state itself. In an April 2011 petition to EPA, Florida initiated an effort to reassert its authority to develop the criteria. Specifically, the state asked EPA to withdraw the Agency’s January 2009 determination that numeric nutrient criteria are necessary in Florida, repeal federal rulemaking completed in November 2010 to establish such criteria for inland lakes and streams, and refrain from proposing or promulgating any further numeric nutrient.
In an initial response to the petition, sent by EPA on June 13, 2011, the Agency said it recognized Florida’s primary role in establishing and implementing standards for its waters. The Agency indicated that if the state adopts a protective and approvable final nutrient criteria before the March 2012 effective date of EPA’s standards for inland waters, EPA will initiate rulemaking to repeal the federal standards. EPA has expressed a similar intention to allow Florida to adopt its own nutrient standards for coastal and estuarine waters. In its letter, EPA continued to emphasize its preference for state-adopted numeric nutrient criteria over narrative standards.
Information on Florida’s water quality standards is at http://water.epa.gov/lawsregs/rulesregs/florida_index.cfm.