By Lee A. DeHihns, III, Partner, Alston & Bird LLP
On November 15, 2010, EPA announced that it had issued final numeric nutrient water quality criteria (NNC) for lakes, rivers, streams and springs in Florida, marking the first time that EPA has set numerical nutrient standards for a state. EPA’s rationale for these standards is that excess loads of nitrogen and phosphorus, the most common nutrients found in water bodies, are one of the most prevalent causes of water quality impairment in the United States and that it is a “widespread, persistent, and growing problem.” The nutrient standards establish nutrient criteria for lakes and streams by requiring that total nitrogen (TN) and total phosphorus (TP) be no higher than set levels for five different watershed regions and three different classes of lakes. For lakes, EPA also set criteria for chlorophyll a.
EPA identified 193 point municipal and industrial dischargers that are potentially affected by the rule. For municipal entities, current annual average permit limits are 3.0 mg/l for TN and .1 mg/l for TP. EPA expects that municipalities will need to employ advanced biological nutrient removal (BNR) to meet the lower levels in the rule. EPA’s annual cost estimates to implement the rule are between $135 and 206 million. EPA states that the average homeowner will pay an estimated $40 to 71 annually in increased utility bills.
Two main concerns emerged in the commentary on the proposal. First, critics asserted that the science behind the proposal is not sound. For example, The Florida Department of Environmental Protection (FDEP), in its comments on EPA’s proposal, noted that “EPA stream criteria for protection of downstream estuaries were not scientifically valid, that EPA’s approach to the stream criteria is not appropriate, that some aspects of what EPA has done are not adequately protective of the environment, are not linked to biological response, and, (in particular for lakes) the EPA’s approach was too simplistic.”
Second, they assert that the costs are both too high and not proportionate to the environmental benefits that EPA is hoping to achieve. The Florida Water Environment Association Utility Counsel (FWEA) released a report which said that treatment costs to meet the new standards are estimated to be “between $4.2 and $6.7 billion, and the annual debt service, including incremental operating and maintenance costs, is expected to range from $430 million to $620 million per year. Typical increases in customer charges are expected to range from $570 to $990 per year.” Similarly, the Florida Water Quality Coalition stated that the “costs of the proposed federal NNC regulations far exceed the EPA estimates. If EPA enforces ‘end-of-pipe’ criteria (requiring all discharger effluent levels to be at or below the NNC), the total annual costs could range from $3.1 to $8.4 billion.”
This is, no doubt, one of the most significant acts that EPA has taken in the water quality standards field for quite some time, and even though the standards are being set for just one state, EPA has taken a giant step down the path to imposing numeric criteria in nationwide. There will be a lot of litigation (six law suits have already been filed challenging the regulations), political push-back and a lot of discussion about how these standards are going to be implemented, delaying the actual implementation for a period of time. While EPA has pushed the effective date of the rule to 15 months following promulgation in order to allow time to comply, even this delay will likely prove to be insufficient to resolve the many contested issues.
For those readers seeking more detail on these EPA’s regulations and their consequences, please see the Alston & Bird Environmental and Land Development Advisory titled "EPA Issues First Ever Numeric Nutrient Water Quality Criteria and Standards for Florida Lakes and Rivers".
This article was first published at ACEOL.org, the American College of Environmental Lawyers.