Setting Standards

Jan. 1, 2011

Several weeks ago, EPA signed the final rule setting numeric limits for nutrient pollution in Florida. As we covered in the magazine nearly a year ago when the draft of the limits were issued, this effort marks the first time EPA has set legal water-quality limits for a particular pollutant for just one state. And while the move should have come as no surprise in Florida-which had been under orders for years to set its own limits for nutrients but failed to do so quickly enough-everyone concerned with water-quality standards is still wondering whether this action might set a precedent for the federal agency to create standards state by state.

What prompted EPA to set numeric limits rather than waiting for the Florida Department of Environmental Protection to do so? Lawsuits, primarily: Environmental groups sued EPA in 2008 for failing to enforce the Clean Water Act in Florida. As a result, and under a consent decree with the Florida Wildlife Federation, EPA agreed to set two numeric standards for the state’s surface waters: one for lakes and rivers, which was just signed into law, and another, to be completed later this year, for estuaries and coastal waters.

Although the actual numeric standards set by EPA are supposedly not much more stringent than the ones the Florida DEP had been working on itself for several years, many groups have protested them vigorously. The main objection-the same one many groups have to EPA’s national effluent limitations for construction sites-is the cost. Just days before EPA Administrator Lisa P. Jackson signed the new standards, a group of newly elected Florida officials, including governor-elect Rick Scott, signed a letter of protest. They claimed wastewater treatment utilities and stormwater utilities would incur more than $21 billion in capital costs to comply with the nutrient limits, and they also argued that EPA’s methods in setting the limits were scientifically unsound.

There is little doubt, though, that a tremendous portion of the state’s waters do have a nutrient problem. By the Florida DEP’s own reckoning, about 16% of river miles, 36% of lake area, and 25% of estuaries are impaired by nutrients. In addition to harming aquatic life and potentially hurting tourism when recreational waters become filled with algae, EPA maintains there’s a danger to human health as well, both from the toxins produced by the algae and from the chemicals used to remove it from drinking water.

The question, then, is whether this setting of an individual standard is an anomaly or whether EPA will continue to set specific standards-for nutrients or other pollutants such as sediment-if a state doesn’t do so itself. At the least, this case might spur states to act more quickly to set their own standards for various pollutants to avoid EPA intervention.