Water Woes

On Nov. 15, EPA announced its final rule on specific limits on the amount of nutrients in runoff from urban and agricultural sources. The action came after months of protest from ag groups, municipalities, and other interests that the standards would prove very costly and hurt the state's already suffering economy.

The November announcement is the culmination of a lawsuit settlement. The Florida Wildlife Federation filed a 2008 lawsuit against EPA under the Clean Water Act. The resulting settlement requires EPA to adopt specific or "numeric" nutrient pollution standards, which was announced in the final rule. Under the decree, EPA also is required to issue standards for Florida's coastal waters by August 2012.
With the final criteria announced, the Florida Department of Environmental Protection (DEP), along with Florida Department of Agriculture Consumer Services (FDACS), has 15 months to establish regulations to satisfy EPA's mandates. The state must write the new rules for agriculture because EPA has no authority over agriculture (except for concentrated animal feed lots) under the Clean Water Act.

Cost Overruns

While EPA estimates the costs incurred addressing waters listed as impaired under the rule at between $135 to $206 million, other groups believe the costs will be much higher. EPA says its estimate assumes some cities will have to install more advanced wastewater treatment operations and growers will have to implement state recommended BMPs.

A study conducted by Carden Entrix, on behalf of the Florida Water Quality Coalition, projects costs far exceed EPA's estimate. According to how the new rules are implemented and enforced, the study projects overall costs could range from $1 billion to $8.4 billion. A study commissioned by FDACS estimates initial costs to Florida agriculture at $855 million to $3.069 billion. The recurring (annual) costs are projected to be in the $271 million to $974 million range. "The economics of this final ruling is a big area of contention between EPA and opponents," says Kerry Kates, director of water and natural resources for the Florida Fruit & Vegetable Association. "There is a big disparity between the FDACS projections of the costs to ag and EPA's. But, EPA pretty much stood its ground and said other cost estimates are wrong."

Blanket Approach

Another area of contention is EPA's applying a blanket approach to the new rules. "Probably one of the biggest criticisms of this ruling is EPA's use of non-site-specific criteria, which ignores Florida's great diversity in its aquatic ecosystems," says Kates. "EPA says it has addressed this by establishing five nutrient watershed regions in the state, but even this employs a much too macro approach."

Some experts say by not utilizing a site-specific standard, the new nutrient criteria will likely list new waters as impaired that are functioning fine. "There was a strong push from DEP to utilize biological indicators to identify and measure nutrient induced cause and effect relationships in watersheds," Kates adds. "There are a multitude of water bodies in the state that will trip the new nutrient criteria, but from a biological state, these systems are thriving and meeting their designated uses."

What's Impaired Water And How Much Do We Have?
An impaired water body is one that is polluted to the point where it does not meet its designated use. For example, a lake designated for swimming could become "impaired" if pollution increased to such a degree that it became undesirable or unsafe for people to swim there. Or, a river designated for aquatic life could become impaired if it were polluted to the point at which certain types of fish that used to thrive there could no longer live.
According to a 2008 report from the Florida Department of Environmental Protection, there are 1,000 miles of rivers and streams, 350,000 acres of lakes, and 900 square miles of estuaries that are classified as impaired in the state.
Source: UF/IFAS

According to the Carden Entrix study, there are currently 858 water bodies impaired under existing water quality standards in Florida. An estimated 2,174 will be newly impaired under the proposed federal criteria. The new federal nutrient criteria will effectively increase five-fold the number of water bodies considered impaired in Florida, and will raise the proportion of impaired water bodies from 5% to 35%. Some experts claim many of these waters should not be listed as impaired and will not be improved by the new rules. Yet, the cost associated with addressing them will remain.

Better Get Your BMPs On

While the waiting game plays out for the implementation of regulations surrounding the nutrient criteria, what should growers do? Kates says FDACS best management practices (BMPs) are the way to go. "We are strongly encouraging growers to sign up with the BMP program to get the presumption of compliance with the new rules," he says. "It affords them a layer of protection they would otherwise not have. Most growers are already using a percentage of BMPs on their farms anyway, so we are urging people to sign the notice of intent to officially become enrolled in the FDACS program."

While EPA agrees BMPs will provide growers with an presumption of compliance, there is concern that current total maximum daily loads (TMDLs) could be re-evaluated by EPA, and in certain areas, be made even more stringent. And, the potential for Citizen Lawsuits filed under the CWA always remain a concern.

New EPA criteria could cost Florida ag billions.