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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Filed under Litigation Update, Numeric Nutrient Criteria, Rulemaking, U.S. EPA, Water Quality

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