Rogers Towers: Florida's Waters To Have Numeric Nutrient Standards In Summer 2012


[author: Ellen Avery-Smith]

An administrative law judge upheld the Florida Department of Environmental Protection (DEP) numeric nutrient water quality standards, clearing the way for those rules to be approved and implemented in the coming months.

On June 7, Administrative Law Judge Bram Canter upheld DEP’s numeric nutrient rules, apparently putting an end to four years of litigation over Florida’s water quality standards. The Florida criteria have been submitted to the U.S. Environmental Protection Agency (EPA) for final review and approval. DEP officials are hopeful that approval will come soon.

The presence of excess nutrients such as phosphorus and nitrogen in Florida’s watersheds can negatively impact the health of water bodies and interfere with various uses of waterways. Excess nutrients may lead to algal blooms (which may produce noxious tastes and odors in surface water drinking supplies and deplete oxygen needed for fish and shellfish survival), nuisance aquatic weeds (which may impact recreational activities like swimming and boating), and alteration of the natural floral and faunal communities, according to DEP’s Technical Support Document: Development of Numeric Nutrient Criteria for Florida Lakes, Spring Vents and Streams dated 2012. 

Nutrient water pollution originates from stormwater runoff, municipal wastewater treatment, fertilizers and other sources. Nitrogen is also introduced to the environment from the burning of fossil fuels and can enter water bodies through rainfall.

To limit the amount of nutrients introduced to lakes, springs, streams and estuaries, EPA required all states to develop nutrient information and adopt numeric nutrient criteria as part of each state’s water quality standards. In 2008, the Florida Wildlife Federation filed a lawsuit against EPA seeking to force EPA to set numeric nutrient standards for Florida because the state had failed to establish such criteria. Pursuant to a December 2009 consent decree in the lawsuit,[1] EPA was required to establish nutrient standards for inland water bodies outside of South Florida by November 2010. On December 6, 2010, EPA published the final inland waters rule in the Federal Register (75 FR 75762) (codified at 40 CFR 131.43).

In the intervening period, EPA has worked with DEP to develop Florida’s own numeric nutrient water quality criteria. Those Florida standards (Rules 62-302 and 62-303, Florida Administrative Code) were upheld by the administrative law judge on June 7 and have been submitted to EPA for final review and approval. According to DEP, “EPA scientists have already confirmed that DEP’s rules are accurate, correct and will continue to improve our state’s water quality.” If EPA approves the Florida standards, it will withdraw its own rules, which are scheduled to become effective on July 6, 2012 (which date may be extended until October 6, 2012).

The various nutrients and related numeric standards can be found on DEP’s website.

[1] A number of parties, including the State of Florida, intervened in this litigation. The history of and parties to the litigation are beyond the scope of this article.


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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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