On November 30, 2012, EPA notified the federal court that it had met its deadlines consistent with the requirements of the Court Order and Consent Decree. EPA’s actions have been called by some a “split decision.” On one hand, EPA approved Florida’s nutrient criteria rule in its entirety and without any conditions. The Florida rule covers all of Florida’s lakes, springs, a number of estuaries (including Tampa Bay, Sarasota Bay and Biscayne Bay), and all natural flowing waters (excluding storm water ditches and canals). On the other hand, EPA proposed new federal criteria for estuaries and flowing waters not covered by the state rule (including South Florida). Newspaper reports published since have contained a number of misrepresentations, which have undoubtedly led to confusion.
FAC Environmental Advocate Stephen James met this week with DEP Secretary Hershel Vinyard and EPA’s Region IV Administrator, Gwendolyn Keyes Fleming. Ms. Keyes Fleming summarized the five (5) separate actions of the federal agency thusly:
- Approved the State (DEP) Numeric Nutrient Rule in its entirety, and also approved the State’s approach to Downstream Protection Values (DPV).
- Amended the 2009 Determination of Necessity to create the opportunity to adopt the State’s DPV approach
- Addressed the Court’s remand by re-proposing rules for Florida streams. The Court invalidated the stream criteria noting that it identified an increase in nutrient levels as causing a change in flora and fauna, but that not every increase in nutrients causes a “harmful” change. After working further with the State DEP, the EPA would be prepared to withdraw this rule.
- Proposed rules to “fill in the gaps” between the State and Federal rules regarding South Florida flowing waters, coastal waters and estuaries. This was done to ensure that all Florida waterbodies are protected. The proposed rule specifically excludes Class IV waters in the Everglades Agricultural Area and Everglades Protection Area. Again, after working further with the State DEP, the EPA would be prepared to withdraw this rule.
- Proposed a Stay of the effective date of the Phase I Federal rules. This motion will enable the EPA to continue to work with DEP to craft solutions to some of the remaining issues.
Ms. Keyes Fleming made it clear that she would like the State to take control of the protection of its water bodies. This week, Ms. Keyes Fleming submitted the following opinion piece.
For more information or questions, please contact FAC Environmental Advocate Stephen James.