Numeric Nutrient Criteria:
Florida’s Journey, the Next Steps, and the Gulf Dead Zone
By
Deborah Getzoff and Kathryn Rossmell
of
Lewis, Longman & Walker, P.A.
Abstract
In 1998, the EPA declared that numeric, rather than narrative, nutrient criteria would be
preferred to help maintain water quality under the Clean Water Act. More than fifteen years
later, Florida has become the first state to have numeric nutrient criteria for every type of water
body within its borders. Florida’s journey to this point provides a unique perspective on the
future of NNC creation in other states, particularly because the Florida geography includes an
extensive variety of water body types. This journey also illuminates some of the legal challenges
that states can face when dealing the deadlines, federal agencies, judicial and legislative
processes, and non-governmental organizations. This paper will address Florida’s legal history
with numeric nutrient criteria, discuss the state’s next steps on the NNC path, and will separately
examine the “Gulf Dead Zone” as a place of particular significance for NNC rulemaking.
Florida’s Legal History With NNC Development
The Clean Water Act requires that states adopt water quality standards for their navigable
waters. States, including Florida, generally chose to adopt a narrative, rather than numeric,
standards.2 Then in 1998, the United States Environmental Protection Agency (“EPA”) declared
that numeric nutrient criteria, or NNC, would be the preferred method of setting water quality
standards. In 2002, the Florida Department of Environmental Protection (“FDEP”) submitted a
Draft Numeric Nutrient Criteria Development Plan (the “Plan”) to the EPA, and by mid-2004,
the EPA and FDEP declared mutual agreement to the Plan. FDEP, with EPA’s concurrence,
revised the Plan in 2007, and submitted a second revised Plan in early 2009.
Based on Florida’s peninsular geography, it includes nearly all water body types subject
to nutrient criteria: lakes, rivers, streams, springs, estuaries, coastal waters, and extensive
manmade drainage and conveyance structures. While some areas and water bodies are more
susceptible to nitrogen exceedences, others are primarily affected by phosphorus. Consequently,
Florida has presented a virtual, universal “test case” for the adoption of numeric nutrient criteria.
In 2008 between the first revision and the submission of the second revision to the Plan,
several environmental groups filed a lawsuit in federal district court against EPA to enforce
1
1
Clean Water Act, § 303.
Florida’s original narrative standard stated: “In no case shall nutrient concentrations of a body of water be altered
so as to cause an imbalance in natural population of flora and fauna.”
2
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setting NNC standards.3 A number of other interested groups also intervened,4 and several
Florida water management districts filed amicus curiae briefs.5 As a result, on January 14, 2009,
EPA declared that NNC were necessary to comply with the Clean Water Act in Florida.
The lawsuit resulted in a Consent Decree between EPA and the plaintiff NGOs that
became effective on December 30, 2009.6 The Consent Decree, which did not include the state,
set a schedule for two rulemaking phases during which EPA would set NNC for Florida waters,
and provided that if FDEP submitted approved NNC before the EPA deadlines, then EPA would
not be obligated to set the NNC.
EPA gave FDEP the opportunity to set NNC for lakes and flowing waters by January 14,
2010, and to set NNC for estuarine and coastal waters by January 14, 2011. However, due to
time constraints in working with stakeholders and engaging in the state’s administrative
processes and challenge timeframes, FDEP could not meet the deadline and abandoned rule
development for lakes and flowing waters, leaving EPA to step in and propose the standards. In
August 2010, EPA filed a supplemental notice in the Federal Register of data availability and
requested public comment on certain potential changes to the January 2010 proposed rule,
including changing the number of watershed regions from four to five based on additional
information regarding the delineation of watershed boundaries and phosphorus-rich geological
formations in Florida, changes to the statistical analysis and modeling used to determine NNC,
and an alternative approach to protecting downstream lakes. The EPA received roughly 22,000
comments and conducted 13 public meetings as a result of the notice. EPA adopted the Final
Water Quality Standards for the State of Florida’s Springs, Lakes and Flowing Waters on
November 14, 2010, completing “phase one” of the consent decree requirements. This
rulemaking included EPA’s requirements for downstream protection values. However, these
standards excluded South Florida flowing waters, which are largely man-made canals.
The adoption of the standards triggered a new series of legal battles, 7 involving 13
different lawsuits challenging the 2009 determination that NNC were necessary to comply with
the Clean Water Act in Florida and challenging the 2010 EPA rule. Twenty five of the parties
(in a total of 11 cases), including the State of Florida, the Florida Commissioner of Agriculture,
and the South Florida Water Management District alleged that the 2009 determination was
arbitrary and capricious, and should be set aside as invalid. The parties also argued that even if
3
The plaintiffs included the Florida Wildlife Federation, Inc.; Sierra Club, Inc.; Conservancy of Southwest Florida,
Inc.; Environmental Confederation of Southwest Florida, Inc.; and St. Johns Riverkeeper, Inc.
4
The intervenors were the Florida Pulp and Paper Association Environmental Affairs, Inc.; the Florida Farm
Bureau Federation; Southeast Milk, Inc.; Florida Citrus Mutual, Inc; Florida Fruit and Vegetable Association;
American Farm Bureau Federation; Florida Stormwater Association; Florida Cattleman’s Association; Florida
Engineering Society; the South Florida Water Management District; the Florida Water Environmental Association
Utility Council, Inc.; the Florida Minerals and Chemistry Council, Inc.; and the Florida Department of Agriculture
and Consumer Services.
5
The water management districts were the Northwest Florida Water Management District; the Southwest Florida
Water Management District, and the Suwannee River Water Management District.
6
Florida Wildlife Federation, Inc. et al. v. Jackson et al., 2009 WL 5217062, No. 4:08cv324-RH/WCS (N.D. Fla.
December 30, 2009).
7
Consolidated Case 04:08-CV-324-RH-WCS
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the 2009 determination was valid, the 2010 rule went too far. Conversely, seven environmental
parties in two lawsuits asserted that the 2010 rule was valid but did not go far enough, making it
arbitrary and capricious. The 13 lawsuits were consolidated into one case and culminated in a
February 18, 2012 court order upholding EPA’s NNC for lakes and springs, but finding that that
the values for flowing waters were arbitrary and capricious. The court also upheld the idea of
downstream protection values, but found the way EPA derived the values to be arbitrary and
capricious.
Before the issuance of the 2012 court order, in April 2011, FDEP had petitioned EPA to
rescind its 2010 rule and replace it with a FDEP proposed rule. 8 The petition also included a
request to rescind the 2009 determination and to hand NNC rulemaking back to the state of
Florida. After the court order, on June 13, 2012, FDEP submitted for EPA’s review new, revised
water quality standards for all freshwater lakes, springs, some flowing inland waters, certain
estuaries, and certain coastal marine waters. The actual numbers FDEP submitted were much the
same as EPA’s numbers; however, FDEP’s rule maintained the narrative criterion but interpreted
it with numeric values.9 Additionally, FDEP’s rule relied on the Total Maximum Daily Load
process to protect downstream waters rather than establishing downstream protection values, and
included recognition of established TMDLs. FDEP’s rule also accounted for biological
conditions.10
EPA had a November 30, 2012 deadline to propose a rule for streams, downstream
protection values, unimpaired lakes, marine waters, estuarine waters, and South Florida canals.
Although EPA petitioned the court for an extension, it was denied, and EPA formally adopted
the NNC rules promulgated by FDEP in their entirety. The rules covered inland lakes, springs,
flowing waters (again excluding South Florida Canals), and certain coastal waters and estuaries.
EPA proposed rules for the waters not covered by FDEP’s rule, namely, the South Florida canals
and the remaining coastal waters and estuaries. Also, to comply with the Consent Decree, EPA
promulgated numeric downstream protection values for streams in order to protect downstream
lakes and estuaries; however, EPA requested that the Court modify the Consent Decree to allow
for other quantitative approaches that might be equally effective.11
8
As expected, the proposed rules were challenged by the environmental organizations who were party to the federal
court action, and the rule adoption went to an administrative hearing, where the rules were found valid and
reasonable by a Florida Administrative Law Judge on June 7, 2012. Florida Wildlife Federation et al. v. Department
of Environmental Protection et al., 2012 Wl 2118200, No. 12-0157RP (Fla. Div. Admin. Hrgs. June 7, 2012).
9
The court later provided a useful analogy for this approach, explaining “a state could adopt a numeric speed limit –
70 miles per hour – or a narrative standard – don’t drive too fast. Or a state could adopt a combination of both –
don’t drive over 70, and don’t drive too fast for conditions.” Florida Wildlife Federation, Inc. v. McCarthy, 2014
WL 51360, No. 4:08cv324-RH/CAS, *2 (N.D.Fla. January 7, 2014).
10
The rule incorporates the use of floral response variables (excessive algae and plant production) to identify
impaired streams. The rule also integrates the floral response variables, nutrient thresholds, and a response variable
to address faunal health and procedures to address non-stable conditions. If a stream demonstrates healthy flora and
fauna, and is in stable condition (i.e., it is not trending toward an increase in nutrient levels), it can meet the
integration criterion.
11
EPA’s November 30, 2012 Approval Letter to DEP states that other quantitative approaches to protecting
downstream waters might be just as effective as downstream protection values.
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On January 4, 2013, EPA filed a Motion for Approval to Stay Portions of EPA’s Inland
Waters Rule. EPA was concerned with the “poison pill” provision adopted as a rule by FDEP in
the Florida Administrative Code, which states that the State’s nutrient criteria rules12 “shall be
effective only if EPA approves these rules in their entirety, concludes rulemaking that removes
federal numeric nutrient criteria in response to the approval, and determines, in accordance with
33 U.S.C. § 1313(c)(3), that these rules sufficiently address EPA’s January 14, 2009
determination. If any provision of these rules is determined to be invalid by EPA or in any
administrative or judicial proceeding, then the entirety of these rules shall not be
implemented.”13 This “all or nothing” approach required approval by EPA of all Florida rules
for NNC or Florida would be out of the picture. In April 2014 the court stayed the provisions
that would not be duplicated in the prospective state rules (provisions establishing downstream
protection values for unimpaired waters), but denied the stay for provisions that were very
similar to the state prospective rule.14
The EPA and FDEP reached an Agreement in Principle on March 15, 2013, which
announced a “path forward” towards state adoption of NNC before the Consent Decree deadline
of September 30, 2013 for EPA to adopt NNC. The Agreement also announced FDEP’s
intention to adopt its implementation document into a rule clarifying which types of flowing
waters do not require NNC, and EPA correspondingly committed to amend the scope of its 2009
determination. FDEP subsequently adopted “Implementation of Florida’s Numeric Nutrient
Standards” into rule on April 23, 2013.
EPA amended its 2009 determination for the second time on June 28, 2013, declaring that
NNC are not necessary to meet the requirements of the Clean Water Act in the for certain waters
including marine lakes, flowing waters (canals) in the South Florida Region, tidally influenced
flowing waters, and “conveyances primarily used for water management purposes with marginal
or poor stream habitat components.”15
The latest chapter in this legal narrative came to a close on January 7, 2014, when Judge
Hinkle in the Northern District of Florida entered an order modifying the Consent Decree.
Although EPA had already amended its determination, this did not in and of itself modify the
Consent Decree. The January 2014 ruling modified the Consent Decree to match the June 2013
amended determination by excluding from the Consent Decree any requirement to adopt numeric
downstream protection criteria or NNC for South Florida streams or for marine lakes, tidally
influenced streams, or conveyances primarily used for water-management purposes with
marginal or poor stream habitat components. Notably, although no administrative challenges
were brought against the amended determinations, the Court declared “nothing in this record
12
Specifically, subsections 62-302.200(4), 62-302.200(16)-(17), 62-302.200(22)-(25), 62-302.200(35)-(37), 62302.200(39), Rule 62-302.531, and subsection 62-302.532(3), Fla.Admin.Code.
13
Fla. Admin. Code. R. 62-302.531(9) (2012).
14
Order Authorizing a Stay of the DPV Provisions but Denying a Stay of the Lake and Spring Provisions, Case No.
4:08-cv-324-RH-WCS., April 12, 2013, N.D.Fla.
15
EPA’s second Amended Determination Letter dated June 28, 2013.
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suggests that EPA’s actions were ‘arbitrary, capricious, an abuse of discretion, or otherwise no in
accordance with law.’”16
To summarize, the EPA declared that numeric nutrient criteria were the preferred method
by which to comply with the Clean Water Act water quality standards requirements, then
environmental groups and others sued to enforce that decision in Florida, which led to a Consent
Decree between EPA and the groups (but not the State of Florida), and eventually led to EPA
approving NNC developed by FDEP with the court’s approval. This process spanned six years
with state and federal litigation which included participation by the state Attorney General’s
Office and the Department of Agriculture, bill adoption by the Florida Legislature, and numerous
rulemaking and decision points by EPA and the state.
Florida’s Next Steps
Although EPA has officially amended its determination and has approved FDEP’s rules,
EPA’s rules are technically still in place. EPA must go through the formal process of
withdrawing its rules in order for Florida’s rules to take effect. EPA expects to complete this
process sometime before the end of spring in 2014.
The Gulf Dead Zone and EPA Action
Every summer, the northern Gulf of Mexico suffers from hypoxia, a condition caused by
excess nitrogen and phosphorus. The overload of these nutrients results in seasonal growth of
large amounts of algae, which then die, sink, and decompose. The decomposition process
diminishes the oxygen in the bottom waters, creating a “dead zone” in the Gulf that cannot
support plant and animal life on the Gulf bottom. This condition has been created by the influx
of nutrients from the Mississippi River, which historically has dumped nutrients from 31 states
into the northern part of the Gulf. Much of the nutrient pollution comes from agricultural runoff,
but a portion does come from other human activities in the watershed. The amount of nutrients
flowing into the Gulf each year, particularly during April and May, determines the size of the
dead zone, which varies year to year. Last year, 2013, the dead zone was 5,840 square miles,
which is roughly the size of Connecticut. The previous year, 2012, had the fourth smallest dead
zone on record - the dead zone was only the size of Delaware, or roughly 2,889 square miles.17
Besides the outflow from the Mississippi River, other natural phenomena, such as rainfall and
wind patterns, also help determine the size, shape, and geographic distribution of each year’s
dead zone. Generally speaking, it is located off the Louisiana and Texas coasts.
Similar to the Florida lawsuit, in 2008, multiple environmental groups filed a petition
with EPA requesting that EPA find that NNC were necessary for this area as well. If EPA had
granted the petition, it would have lead to the initiation of rulemaking to set federal criteria for
16
Florida Wildlife Federation, Inc. v. McCarthy, 2014 WL 51360 at *5.
National Oceanic and Atmospheric Administration, NOAA-supported scientists find large Gulf dead zone, but
smaller than predicted, July 29, 2013. http://www.noaanews.noaa.gov/stories2013/2013029_deadzone.html
17
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the waters anywhere in the country where NNC were deemed necessary to address the effects in
the Gulf. EPA instead denied the petition, stating that while the Mississippi River Basin water
quality was being harmed by excessive nutrients, state rather than federal efforts should be used
to address the problem. Then in March 2013, the groups filed a lawsuit in the Eastern District of
Louisiana federal court.18 The main issues centered on when EPA must find that NNC are
necessary, and what factors it may consider in that determination. The court determined in
September 2013 that EPA can determine whether NNC are necessary but that decision is subject
to judicial review. The court also determined that EPA is required to clearly articulate whether
or not water quality criteria are necessary, but that it could rely on a wide variety of nonscientific factors including cost, administrative burdens, policy, etc. EPA filed a notice of appeal
on November 18, 2013. Most recently, on January 9, 2014, the Fifth Circuit granted EPA’s and
Administrator Gina McCarthy’s motion to extend the time for filing Appellant’s Brief. At this
time, EPA is offering coordination with individual states, which EPA hopes will move forward
with state-based NNC processes and adoptions. This leaves ultimate responsibility for
regulations addressing the far-downstream dead zone to many states in the middle of the county,
which include major cities, livestock production, and the country’s “breadbasket” agricultural
area throughout the Midwest.
Deborah Getzoff works in the Lewis, Longman & Walker, P.A. Tampa Bay office and can be
reached at dgetzoff@llw-law.com.
Kathryn Rossmell works in the Lewis, Longman & Walker, P.A. West Palm Beach office, and
can be reached at krossmell@llw-law.com.
18
Gulf Restoration Network v. Jackson, 12-677 (E.D. La. Sept. 20, 2013).
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