May 11, 2012

2012 Florida Legislation – Environmental and Water Bills

This year’s legislative session proved to be as busy as expected.  The regular session started early this year, and ended on March 9, 2012.  With the legislators focused on reapportionment and redistricting, fewer bills passed in 2012.  A total of 2052 bills were filed in both chambers, with 240 House bills and 52 Senate bills passing both chambers.  Hot topics in Tallahassee included redistricting, resort casinos, prison privatization, and a new state university.  Also, the numeric nutrient criteria bill (HB 7051) passed and was signed by the governor and sent to the U.S. EPA.

As to redistricting, on April 27, 2012, the Florida Supreme Court approved the Senate redistricting map, and the House maps were approved on March 9, 2012.  The new district lines drew many sitting House members out of districts, or put them in competition with fellow party members.  As a result, and along with term limits, there will be 12 of 40 Senate seats open and 20-25 of 120 House seats vacated.

The General Appropriations Act for Fiscal Year 2012-2013 provides for a total budget of $70.04 billion, including $24.77 billion in general revenue and $45.27 billion in trust funds.  On the issue of natural resources, House and Senate budget negotiators on Wednesday agreed on a $30 million appropriation for Everglades restoration and $23.5 million for invasive plant control in fiscal year 2012-13.

Recently, I made a presentation to the Lower West Coast Utility Council discussing the 2012 Legislative session in Florida.  The focus of the presentation was on water, environmental, and utility bills.  For the meeting, I prepared  the attached 2012 Florida Legislative Update Powerpoint presentation.   Just click the link to download a copy.

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April 30, 2012

Federal Bill Aims to Restrict Clean Water Act Jurisdiction

On Friday, April 27, 2012, leaders from the House Transportation and Infrastructure Committee and Agriculture Committee introduced H.R. 4965, a bill aimed at countering a February 2012 Guidance Memorandum concerning Clean Water Act jurisdiction written by the U.S. Environmental Protection Agency (EPA).  The guidance memo was sent for review to the Office of Management and Budget and is an update to the May 2011 EPA Draft Guidance on Identifying Waters Protected by Clean Water Act.

The sponsor of H.R. 4965, Transportation and Infrastructure Chair John Mica (R-FL), stated that the bill aims to prohibit finalization or implementation of the EPA and U.S. Army Corps of Engineers guidance, believing that the guidance would significantly broaden the scope of federal jurisdiction under the federal Clean Water Act.

“The new authorities granted in this guidance would allow the EPA and the Corps of Engineers the authority to regulate almost any body of water in the U.S.,” said Agriculture Committee Chairman Frank Lucas (R-OK).  “That means farm ponds, stock tanks, and seasonal runoff ditches could conceivably be included under new regulations.  The economic impact on farmers, ranchers, and rural communities would be devastating.  This legislation allows us to restore and protect our natural resources by working together and balancing state and federal authority.”

In fact, the bill is already seeing bipartisan support.  “I believe in protecting our waterways, and that the Clean Water Act is the law of the land,” said Agriculture Committee Ranking Member Collin Peterson (D-MN).  “This policy is too important to be done administratively and should go through a formal process, that’s why I am joining my colleagues on both sides of the aisle and supporting this bill.  I was opposed to this Clean Water Act expansion when the Bush Administration tried it and now when the current Administration is trying it.  We should not be regulating every puddle, pond and ditch.  We need to provide certainty in our permitting process so agriculture and businesses can predict and plan for the future.”

Since the U.S. Supreme Court decision in Sackett v EPA, the jurisdiction of the federal agencies under the Clean Water Act has come under renewed fire.  The holding in that case was that the property owners could bring a civil action under the federal Administrative Procedure Act to challenge the issuance of the EPA’s administrative compliance order.  The property owners bought a vacant parcel in Idaho with the plan to build a single-family home.  Their lot was less than a single acre (.63), bordered by other residential properties, and 500 feet from the water. As they were laying gravel and grading the property, EPA officials declared the location a “wetland without a federal permit.” Essentially, EPA issued a compliance order directing the property owners to restore the site to its previous condition.  Prior to the decision by the Supreme Court, the property owners were told they could not challenge the wetland determination by the EPA.

A similar bill was filed with the U.S. Senate just days after the Sackett opinion was issued.  S.R. 2245 similarly seeks to prevent the EPA and the Army Corps from issuing their “Final Guidance on Identifying Waters Protected by the Clean Water Act”.

No timeline for review of the guidance memo by the Office of Management and Budget has been provided.

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April 3, 2012

Study Shows Possible Negative Health Effects on Dolphins from Deepwater Horizon Oil Spill

Dolphin Swimming in Oil

 

As part of the Natural Resource Damage Assessment (NRDA) study on effects of the Deepwater Horizon oil spill, the National Oceanic and Atmospheric Administration (NOAA) performed a study of Bottlenose dolphins in Barataria Bay, Louisiana.  The study performed a comprehensive physical of 32 live dolphins in the Bay during the summer of 2011.  Batararia Bay, located in the northern Gulf of Mexico, received heavy and prolonged exposure to oil during the Deepwater Horizon oil spill.

The results of the NRDA study are rather upsetting – many of the dolphin exhibited significant adverse health conditions that the researchers attribute to the oil spill.  The dolphins were found to be underweight, anemic, have low blood sugar, and exhibit symptoms of liver and lung disease.  More than half also showed low levels of hormones that deal with stress response, metabolism and immune functions.

The researchers, including NOAA marine mammal biologists, and local, state, federal and other research partners, fear that some of the study dolphins are in such poor health that they will not survive much longer.  Tragically, one of the studied dolphins was found dead in January 2012.

The NRDA study follows a finding of an Unusual Mortality Event (UME) by NOAA.  Since February 2010, 714 dolphins have stranded themselves on the shores of the northern Gulf of Mexico – the area from Franklin County, Florida, to the Louisiana/Texas border.  These strandings represent a much higher rate than the typical 75 strandings that occur yearly.  More information on the UME can be found here.

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March 20, 2012

History of the Federal and State Numeric Nutrient Criteria in Florida

By now, most environmental professionals and concerned residents may be familiar with the U.S. Environmental Protection Agency’s (“EPA”) and Florida Department of Environmental Protection’s (“FDEP”) numeric nutrient criteria (“NNC”) rulemaking initiatives in Florida.  However, unless you have followed the NNC process almost daily, you may be confused as to where we are and how we got here.  The NNC landscape is changing almost daily.

I am attaching an article that details the history of the NNC and updates the reader on recent events.  The article discusses the history of the federal and state NNC, including the federal lawsuit that led up to the EPA promulgating the NNC, the FDEP state-level NNC rulemaking, and Florida’s legislative actions taking control of the NNC back from the EPA.

A copy of the article is available here - NNC in Florida – An Overview.

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March 8, 2012

Updates to EPA’s Numeric Nutrient Criteria for Florida

Lots of new updates on the federal Numeric Nutrient Criteria for the State of Florida…

Judicial Ruling on Federal NNC

First, on February 20, 2012, the Judge Hinkle, the judge in the federal rule challenge to the U.S. Environmental Protection Agency’s (EPA) numeric nutrient criteria, issued an Order on the Merits.  In his Order, the Judge upholds the EPA’s determination that numeric nutrient criteria are necessary for Florida waters to meet the requirements of the Clean Water Act.  However, it but upholds the lake and spring criteria.  In addition, the Order upholds the EPA decision to adopt downstream protection values, but overturns the downstream values from non-impaired waterbodies.  Finally, the Order upholds the Administrator’s decision, and procedures, to allow for adopting – site-specific alternative criteria.  A copy of the Order is available here.

National Academy of Sciences Publishes Report Finding that EPA Underestimated Cost of NNC

In a report released by the National Academy of Sciences (NAS) on March 6th, the NAS committee questioned the validity of several assumptions in the EPA cost analysis and found that the EPA did not adequately report on the uncertainties that could affect the cost of the rule change.  The committee concluded that the costs to switch to numeric criteria for limiting nutrient pollutants in Florida waters are expected to exceed the EPA estimates.  The committee concluded that the EPA was correct in its approach to calculating the cost of the rule change.  However, the agency underestimated both the number of newly impaired waters and the mitigation costs for the stormwater, agricultural, septic system, and government sectors.  Further, the committee concluded there was significant uncertainty in the estimates for the municipal and industrial wastewater sectors, making it difficult to know whether the EPA underestimated or overestimated those costs.

A summary of the Report can be found here.  And a copy of the full Report can be found here.

Effective Dates for EPA’s NNC Extended

First, EPA filed an unopposed motion to extend the consent decree deadline to propose marine, estuary, and South Florida canal criteria from March 15 to May 21, 2012.  On March 2, 2012, Judge Hinkle entered an Order granting the Motion.  The deadline for EPA to sign for publication a notice of final rulemaking for these waters was extended to January 7, 2013.

Also, EPA published notice of the extension of implementation for the lakes and flowing waters NNC.  A four-month delay of the implementation was approved from March 6, 2012 to June 6, 2012.  As rationale for the extension, EPA stated that the extension would avoid the confusion and inefficiency that may occur should the federal criteria become effective while State criteria are being finalized by the State, submitted to EPA, and reviewed by EPA.  A copy of the notice in the Federal Register can be found here.

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