Florida's farmers have a major new EPA challenge. EPA's pollution diet rule has been upheld in part by a U.S. District Court judge. The decision adopts, in part, EPA's regulation to control excess nitrogen and phosphorus or nutrient pollution from Florida's farms and ranches and other sources.
I wrote about EPA's pollution diet proposed rule on December 27, 2010 (farmfutures.com/blogs.aspx/inside-epas-pollution-diet-1918). The new court decision issued February 18, Florida Wildlife Federation, Inc. v Lisa P. Jackson, is likely to stir up more trouble for farmers and ranchers. EPA's Florida rule is effective March 6, 2012!
This new rule continues EPA's effort to develop, control and set a numeric number for the amount of nutrients flowing into Florida's waters. The same efforts have begun in the Chesapeake Bay area and will soon be coming to the Midwest.
The Clean Water Act requires a state to adopt water quality criteria or standards to protect a state's designated uses of its waters. If a state fails to act, as in Florida's case, EPA will step in and do the job for the state. Florida designates all of its waters under 5 classes – class 1 to class 5. The classes cover fish consumption, recreation, agricultural water supplies, navigation, utility and industrial use, and class 1 is potable water supplies.
CWA requires every state to assess the condition of its waters every 3 years. Nutrient pollution in water has been a continuing problem for Florida's waters which include nutrient impairment of 1,049 miles of rivers and streams, 349,248 acres of lakes, and 902 sq. miles of estuaries. Because Florida did not act, EPA did!
EPA has set numeric nutrient limits for specific water bodies in Florida!
The judge declared that 2 of EPA's determinations were not arbitrary and capricious but found one standard for nutrient levels to be arbitrary and capricious. EPA adopted lake and spring criteria based on modeling and field studies and determined a level at which an increase in nutrients would cause harmful effects. The court agreed with this EPA decision.
EPA developed a downstream-protection criterion. Its goal is to protect lakes from nutrient pollution coming from upstream waters. EPA used modeling which the judge found to be acceptable and also found an EPA procedure for adopting site-specific alternative criteria to be acceptable if the criteria are based on sound science in terms of protecting against nutrient increases in lakes.
The one EPA standard the judge rejected was to control nutrients in streams. EPA was unable to develop a nutrient level based on modeling and field studies. EPA took a different route. EPA identified a representative sample "…of minimally-disturbed streams for which nutrient data were available, calculated annual geometric means for each stream and in turn for the sample set of streams, and set the criteria at the ninetieth percentile." EPA concluded that any change above this level would cause a change in flora and fauna but not necessarily a harmful change. The judge found EPA's conclusion to be arbitrary and capricious and sent the agency back to the drawing board.
There is no mention in the entire opinion about the CWA's exemption for agriculture stormwater runoff. Nutrients are carried into Florida's and the nation's waterways by rain water. The decision does not address what actions will need to be taken by farmers but the court does say "…nutrient levels often increase, sometimes dramatically, as a result of human activity." The court identifies water treatment, power generation and cattle ranching among the industries which contribute to increases in nutrient levels in Florida's waters.
The Florida rule sets numeric criteria for chlorophyll-a, total nitrogen, and total phosphorus. Agricultural and ranching representatives plus the state of Florida allege that EPA has "…botched the science, adopting criteria that are too exacting." The environmental groups, of course, asserted EPA's standards are not exacting enough to protect recreational and drinking-water uses.
EPA will be classifying Florida lakes according to their color and alkalinity. EPA claims it "…found strong associations of TN, TP, and chl-a with color and alkalinity." EPA will be testing Florida lakes using a color standard known as Platinum Cobalt Scale(color scale to evaluate pollution levels in water and wastewater). EPA will look at lakes with alkalinity and one of the classes will be lakes with alkalinity "…of less than or equal to 20mg/L CaCO3."
The reason for setting forth the specifics in the rule is to demonstrate how complicated the issue of setting numeric limits on the phosphorus and nitrogen in water will become for each state. Time will tell if the Administrator "botched the science" but Florida does provide a view as to the future for what is going to happen to agricultural runoff into water.
Nutrient runoff of farms and ranches is a huge issue for American agriculture. This issue caused 5 environmental groups to sue EPA, plus 11 trade associations including the Florida Farm Bureau, Florida Citrus Mutual, and Florida's Cattlemen's Association plus 13 Florida entities including the Florida Department of Agriculture, the South Florida Water Management District and even the Florida Attorney General to file a separate claim.
This legal dispute will not end with this court decision, and agriculture faces troubled waters ahead!