On November 30, 2012, EPA approved the State’s numeric nutrient standards rule as to the waters covered by the rule. The next morning, EPA published its Phase I Remand rule (addressing streams and downstream protection values (DPVs) for unimpaired lakes), its Phase II rule (addressing estuaries, coastal waters, and South Florida flowing waters), and an amended version of its January 2009 necessity determination (withdrawing the need for numeric DPVs).
Unfortunately, EPA did not act on Florida’s numerous EPA-approved nutrient total maximum daily loads (TMDLs), which Florida communities and businesses are implementing to clean-up nutrient impaired waters. The State of Florida and others have argued that an overlay of new generalized nutrient standards is not needed or appropriate for waters that are already being restored pursuant to EPA-approved, site-specific plans.
In sum, EPA’s actions essentially amount to a split decision. On the one hand, EPA approved Florida’s nutrient criteria rule in its entirety and without any conditions. This Florida rule covers all of Florida’s lakes, springs, a number of estuaries (including Tampa 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 Florida estuaries, South Florida flowing waters, coastal waters, and EPA separately re-proposed their invalidated federal streams criteria. In its new rule proposals, EPA acknowledged the overlap between its proposed rule and the Florida rule. EPA will not finalize its proposed federal criteria, if it can reconcile its few remaining points of disagreement with the State of Florida.
Please contact David Childs for additional information.