Agri Leader

State wins nutrient ruling

JOHN BUCHANAN
Published: June 20, 2012

Four years after an alliance of environmental groups sued the U.S. Environmental Protection Agency in an attempt to impose stricter nutrient standards for Florida's waterways, the state's Department of Environmental Protection has won a major victory.

On June 7, administrative law Judge Bram D. E. Canter of the Division of Administrative Hearings issued a long-awaited decision in Tallahassee that upheld DEP-developed standards for nitrogen and phosphorus in lakes and streams that had been approved last year by the Florida Environmental Regulation Commission and the Legislature.

The DEP and Florida Department of Agriculture and Consumer Services now hope that the state's self-imposed regulations, instituted under the banner of its nationally respected best management practices for farmers and ranchers, will supersede stricter standards announced by the EPA in a 2009 consent decree settlement with the five organizations that had brought the original legal action.

Those are the Florida Wildlife Federation, Sierra Club, Conservancy of Southwest Florida, Environmental Confederation of Southwest Florida and St. Johns Riverkeeper.

Under the Clean Water Act, the EPA now has 60 days to render a final decision to accept the DEP's standards. Such action effectively would halt its previous efforts to set a federal standard for the state.

"The take-home message is that by embracing, by endorsing the DEP approach, agricultural producers, utilities, homeowners associations, stormwater associations and wastewater treatment plants will not be required to unnecessarily reduce nitrogen or phosphorus in Florida's waterways," said Rich Budell, director of the Office of Agricultural Water Policy at the state Agriculture Department.

"The only time anybody will have to change what they're doing to reduce them, in terms of the landscape, is when the science tells us that reduction is actually going to result in an environmental benefit."

The DEP initially challenged the EPA initiative in March of last year.

"We asked that they not set new standards for Florida, but instead hand the baton back to the state and let DEP take care of it," said Drew Bartlett, director of the DEP's Division of Environmental Assessment and Restoration. "Our point was that we have all the scientists and all the data required to do it."

The DEP's petition established a formal schedule for setting nutrient standards for lakes and streams and, in the future, for estuaries. After the Legislature approved it, the environmental groups challenged it in court.

If the judge had ruled against the state, the stricter EPA nutrient standards for lakes, streams, estuaries and springs would have taken effect later this year.

"And that would have meant that all the waterways in a particular region would have had to meet fixed numbers for nitrogen and phosphorus, even if the biology is healthy," Budell said.

In turn, that would have imposed significant additional costs on various entities, including farmers and growers, according to research from the National Academy of Sciences.

"It could have cost a city tens of millions of dollars to upgrade their wastewater treatment plant, just to meet a number, when there's no guarantee that meeting that number will improve the biology of the waterway," Budell said. "And the potential costs to agribusinesses could have been extensive."

Of broader importance, Bartlett said, is that Florida is the only state that has undergone such nutrient-based litigation. However, the EPA has long held a desire to impose uniform standards on all 50 states.

As a result, Bartlett said, one aspect of the DEP's recent court victory has national implications if accepted by the EPA.

"The key part of our standard that is different from EPA's is that not only does it include standards for nitrogen and phosphorus, but also for the evaluation of biology," Bartlett said. "The important point there is that in circumstances where the nitrogen and phosphorus numbers (are exceeded) for a given water body, you can also evaluate biology to make an informed decision.

"For example, if a river that runs through farm land is biologically healthy, you can conclude that current nutrient levels are not a problem, even if they technically exceed the standard.

The economic importance of that is the ability to avoid the imposition of unnecessary costs of compliance that is not environmentally warranted."

The opposite is also true, he said.

"If nutrient levels are met, but the biology is unhealthy, which is currently the case in the Santa Fe River, for example, then nutrient reduction can be enforced."

Thanks to the DEP's success in state court, other states may now also adopt such a common-sense approach, Bartlett said.

"You can never be 100 percent sure of what EPA will do. But we're hopeful they will accept our standard and that will be the end of this. And if that's the case, it will then be easier for other states to more easily adopt standards that address nutrients."