EPA approves Florida’s Nutrient Criteria Implementation Plan; Seeks Relief from Consent Decree Rulemaking Obligations

Posted Wednesday, July 3rd, 2013

EPA has taken another major step towards handing the regulatory reins back to the Florida Department of Environmental Protection (FDEP) on the numeric nutrient criteria issue.

On June 27, 2013, EPA amended its January 2009 “Necessity Determination” to find that it is not necessary for the federal agency to promulgate numeric nutrient criteria for certain managed water conveyances, tidally influenced stream segments, South Florida flowing waters, or marine lakes.  EPA agreed that the new FDEP nutrient criteria rule and detailed implementation plan adequately protect the waters.  EPA’s decision builds upon its prior approval of FDEP’s nutrient criteria rules for freshwater rivers and streams, as well as its finding that FDEP’s new nutrient regulatory system obviates the need for numeric “downstream protection values.”

In accordance with EPA’s decision, the U.S. Department of Justice filed a motion a day later asking the federal district court in Tallahassee to relieve EPA of its consent decree obligations to promulgate nutrient criteria for the subset of state waters.  EPA stated in its motion that because of its modifications to the January 2009 Necessity Determination, “EPA lacks the legal authorization to promulgate numeric nutrient criteria” for the water bodies.  Consequently, EPA requests a ruling confirming that it is no longer under any obligation to finalize its proposed rules for the waters.  The environmental advocates that co-signed the consent decree are expected to file a response in opposition to motion.

Notably, the EPA decision and court filings do not affect EPA’s estuary and coastal water criteria rulemakings.  While EPA has approved state nutrient criteria for a number of Florida’s estuaries, FDEP is still in the process of promulgating and finalizing coastal and some estuary criteria.  FDEP should complete its rulemakings for coastal waters and the overwhelming majority of Florida’s estuaries in the coming weeks.  The federal consent decree currently requires EPA to finalize its estuary and coastal water criteria by September 30, 2013.  EPA may satisfy these obligations by approving state criteria for the waters.

For more information, please contact David Childs, Winston Borkowski, Jim Alves, Mohammad Jazil, or Frank Matthews.

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