In July 2008 a coalition of environmental groups sued US EPA alleging that the agency had failed to perform a nondiscretionary duty to set numeric nutrient criteria for Florida as required by the Clean Water Act.1 In August 2009 the US EPA entered into a consent decree with the environmental groups in which it agreed to an expedited timetable for promulgating numeric nutrient criteria for Florida. In accordance with that consent decree, US EPA proposed numeric nutrient criteria for lakes and streams in January 2010.2 US EPA’s rules are required to be adopted by October 2010. With respect to estuaries and coastal waters, US EPA must propose criteria by November 2011 and adopt them by early 2012. The rule, in its current form, has the potential to impede economic growth and curtail recovery for certain industries during one of the worst economic downturns since the Great Depression. Industries that may be particularly affected include municipal wastewater utilities, industrial wastewater dischargers and agricultural interests. Florida currently has narrative nutrient criteria with regulations providing, “[i]n no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna.” 3 The nutrients at issue include nitrogen and phosphorus produced from stormwater runoff, municipal wastewater treatment, fertilization of crops and livestock manure, the burning of fossil fuels and vehicular emissions. High nitrogen and phosphorus loadings cause harmful algal blooms that can lead to reduced spawning grounds and nursery habitats for fish. US EPA’s proposed numeric nutrient criteria and the methodology used to create them are widely seen as a precursor of what is to come in other states. Currently, only seven states have numeric nutrient criteria covering one or more nutrients for an entire waterbody category. 1 In addition, 25 states have not adopted any criteria for even a single waterbody, much less an entire category.2 The figure below shows each state’s status as of 2008.
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Even if US EPA decides not to force other states to adopt numeric nutrient criteria or adopt criteria for them, the environmental groups’ successful litigation in Florida is likely to embolden these groups to force US EPA’s hand in other states.3 In fact, environmental groups have filed notices of intent to sue US EPA based on its failure to require numeric nutrient standards in Wisconsin and Kansas.4 Additionally, environmental groups have been pressuring a number of other states to adopt numeric nutrient criteria including Illinois, Iowa, Michigan, Minnesota, Mississippi and Ohio.5
The impact to affected sources6 may be staggering, with US EPA estimating that annual costs to affected sources in Florida would be between US$100 million and US$300 million.7 However, the Florida Department of Environmental Protection has estimated annual costs to affected sources as a result of US EPA’s current proposal to be significantly higher, between US$5.7 billion and US$8.4 billion.8 While Florida is now in US EPA’s crosshairs, it appears that this is only a harbinger of things to come. While US EPA has an October deadline to adopt numeric nutrient criteria, it is anticipated that this rule will be challenged by a number of affected parties. If you happen to be one of the affected sources listed above, you will want to pay special attention to the rule US EPA adopts and the litigation that follows. Numeric nutrient criteria and the costs associated with complying with them may be coming to a neighborhood near you.