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March 12, 2010

On January 26, 2010, EPA released proposed numeric nutrient criteria for Florida marking the first time the federal government has acted to impose nutrient water quality criteria for a state. This Advocacy Alert outlines the key elements of EPA’s proposal and seeks input from the membership as NACWA develops its comments.

The criteria and implementation approach outlined in the proposal will have direct impacts on Florida’s clean water agencies and will likely serve as a model for federal promulgation of nutrient criteria in other states. Accordingly, NACWA is working to prepare comments that will highlight where EPA’s methodology for deriving the numeric criteria and its implementation approach are problematic, as well as elements of the proposal that could be beneficial or helpful on a national scale. NACWA will also describe how these elements can be further improved.

The comment period for the proposal ends March 29 and NACWA is asking its members to submit any comments or concerns on the proposal to Chris Hornback at This e-mail address is being protected from spambots. You need JavaScript enabled to view it by March 12.

Background and Implications for the Nation

On August 19, 2009, EPA entered into a phased consent decree with the Florida Wildlife Federation, Sierra Club, Conservancy of Southwest Florida, Environmental Confederation of Southwest Florida, and St. Johns Riverkeeper, committing to propose numeric nutrient standards for lakes and flowing waters in Florida by January 2010, and for Florida's estuarine and coastal waters by January 2011. Citing the Clean Water Act that mandates EPA action if it is determined that a state’s water quality standards will not be able to meet the goals of the Act, the groups alleged in a 2008 lawsuit that EPA had made such a determination for Florida and other states in 1998 and that EPA was therefore required to step in. EPA has worked to limit the impact of the case to Florida and issued a formal determination that Florida’s criteria implementation approach would not meet the goals of the Clean Water Act in January 2009, which ultimately led to the agreement with the environmental activist groups. Environmental groups in Wisconsin have already expressed their intent to follow the same path to force federal promulgation of nutrient standards in that state, and NACWA believes that the success of the Florida legal challenge will likely lead other environmental groups around the country to follow suit.

The Key Elements of EPA’s Proposal for Florida

According to the consent decree, EPA proposed numeric nutrient criteria for Florida’s lakes and flowing waters, including rivers, streams, springs, clear streams, and canals. EPA’s proposal also included a new analysis designed to protect downstream uses and a new concept called a restoration standard. NACWA will be focusing its comments on the criteria for streams due to the methodology EPA has used.
 

EPA Regional Criteria for Streams
EPA proposed total nitrogen and total phosphorus criteria for all of Florida’s streams using a regional approach that relies on the nutrient levels in reference streams. Florida’s streams were divided into four regions (see Table 1 below) and the criteria were derived using the 75th percentile of nutrient concentrations in selected healthy streams within the four regions. NACWA has been highly critical of EPA’s reference condition approach to criteria derivation and provided significant comments to the Agency when it proposed its national ecoregional criteria using the methodology in 2000-2001. EPA acknowledges in the Florida proposal that it “did not find sufficient scientific support for…[the use of stressor-response relationships] in the derivation of numeric nutrient criteria for Florida.” Instead, EPA sees the “value of regional numeric nutrient criteria” as eliminating the need for a “substantial expenditure of time and scarce public resources to document and interpret inevitable and expected stream variability.” NACWA’s top criticism with the regional approach is that it is not based on the biological response of the waterbodies that are being protected, but makes an assumption – which has serious implications for clean water agencies – that lower nutrient concentrations are always better.

TABLE 1

 
EPA’s Overlay Criteria to Protect Downstream Uses
For the first time, EPA also outlined in the proposal an approach for ensuring that the in-stream water quality criteria values were also protective of downstream waters. As proposed, many of the regional numbers above will be reduced further due to this protection of downstream uses overlay. EPA is still determining the best way to establish downstream protective values (DPVs) for phosphorus, but does describe its approach for adjusting the nitrogen criteria for streams to protect downstream estuaries.

The first step is determining the average annual nutrient load that can be delivered to, for example, an estuary (one of the major types of downstream waters in Florida) without impairing designated uses. This becomes the protective load. The second step is to determine the nutrient concentrations throughout the network of streams and rivers that discharge into the estuary that, if achieved, would result in a loading that doesn’t exceed the protective load for the downstream water. The protective load is allocated among the rivers and streams flowing into the estuary based on average stream flow. EPA’s modeling approach called SPAtially Referenced Regressions on Watershed attributes (or SPARROW) is used to determine how much of the nitrogen that is discharged in streams and rivers actually makes it to the estuary. Knowing how much is reaching the estuary from each river or stream and how much load the estuary can handle from each river or stream allows EPA to adjust the criteria for the upstream waters to ensure the load is not exceeded.

 
EPA’s Restoration Water Quality Standard
Recognizing that meeting these water quality standards state-wide in Florida will take time, EPA also introduced for the first time the concept of a restoration water quality standard. At its core, the restoration standard seeks to provide the time necessary to meet the goals for the waterbody, rather than downgrade a use via a use attainability analysis (UAA). EPA proposes a maximum 20-year time horizon and envisions the establishment of interim criteria and designated uses to be achieved in a step-wise fashion throughout the restoration period that would be used as the basis for enforceable permit requirements and other control strategies. As currently proposed, the state would propose the restoration standard for EPA approval. The details of what would need to be provided to EPA for approval are still unclear, but the proposal suggests that the state would have to provide information similar to what is required for a UAA for each of the interim sets of criteria and uses. This type of information collection could make the restoration standard an infeasible option and will be one of the focuses for NACWA’s comments.

NACWA Preparing Comments

NACWA’s comments will highlight where EPA’s proposal is problematic. The top issue is the scientific validity of EPA’s regional criteria approach. Though EPA believes the regional percentile approach based on reference waters provides a ‘best guess’ approach to making progress on nutrient pollution problems, the one-size-fits-all nature of the methodology ignores the unique characteristics of nutrients and the impacts they can have. NACWA will also raise concerns with the calculation of DPVs and how EPA’s current approach appears to over simplify the complex dynamics of nutrient fate and transport. Of significant concern to utilities in Florida is the impact this proposal would have on the existing total maximum daily load (TMDL) program, which many have been investing hundreds of millions of dollars in order to meet their TMDL load requirements. Recognizing that this could serve as a model elsewhere in the country, NACWA will also highlight some of the positive elements of the rule including the use of annual loads for nutrients and the promise of the restoration standard concept.
Again, the current deadline for comments on the proposal is March 29 and NACWA is asking its members to submit any comments or concerns on the proposal to Chris Hornback at This e-mail address is being protected from spambots. You need JavaScript enabled to view it by March 12.