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EPA’S TAKEOVER OF FLORIDA’S NUTRIENT WATER 

QUALITY STANDARD SETTING: IMPACT ON 

COMMUNITIES AND JOB CREATION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT AND 

INVESTIGATIONS 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

AUGUST 9, 2011 

Serial No. 112–81 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

CLIFF STEARNS, Florida 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

Vice Chairman 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

BRIAN P. BILBRAY, California 

CHARLES F. BASS, New Hampshire 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

CLIFF STEARNS, Florida 

Chairman 

LEE TERRY, Nebraska 

SUE WILKINS MYRICK, North Carolina 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

BRIAN P. BILBRAY, California 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

CORY GARDNER, Colorado 

H. MORGAN GRIFFITH, Virginia 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

DIANA DEGETTE, Colorado 

Ranking Member 

JANICE D. SCHAKOWSKY, Illinois 

MIKE ROSS, Arkansas 

KATHY CASTOR, Florida 

EDWARD J. MARKEY, Massachusetts 

GENE GREEN, Texas 

DONNA M. CHRISTENSEN, Virgin Islands 

JOHN D. DINGELL, Michigan 

HENRY A. WAXMAN, California (ex officio) 

(II) 

(III) 

C O N T E N T S 

Page 

Hon. Cliff Stearns, a Representative in Congress from the State of Florida, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 4 

Hon. Corrine Brown, a Representative in Congress from the State of Florida, 

opening statement ................................................................................................ 7 

Hon. Joe Barton, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 8 

WITNESSES

Gwendolyn Keyes Fleming, Region 4 Administrator, Environmental Protection Agency ........................................................................................................... 10 

Prepared statement .......................................................................................... 13 

Richard J. Budell, Director, Florida Department of Agriculture and Consumer 

Services ................................................................................................................. 22 

Prepared statement .......................................................................................... 25 

Paul Steinbrecher, President, Florida Water Environment Association Utility 

Council .................................................................................................................. 53 

Prepared statement .......................................................................................... 56 

William Dever, President, Florida Gulf Coast Building and Construction 

Trades Council ...................................................................................................... 103 

Prepared statement .......................................................................................... 105 

Ron St. John, Managing Partner, Alliance Dairies .............................................. 110 

Prepared statement .......................................................................................... 112 

Kelli Hammer Levy, Watershed Management Section Manager, Pinellas 

County Department of Environment and Infrastructure ................................. 115 

Prepared statement .......................................................................................... 117 

David G. Guest, Director, Florida Regional Office, Earthjustice ......................... 125 

Prepared statement .......................................................................................... 127 

David Richardson, Assistant General Manager, Water/Wastewater Systems, 

Gainesville Regional Utilities ............................................................................. 136 

Prepared statement .......................................................................................... 138 

SUBMITTED MATERIAL

Memorandum, dated December 29, 2008, from Luis A. Luna, Assistant Administrator, Environmental Protection Agency, to Stephen L. Johnson, Administrator, Environmental Protection Agency ................................................. 165 

Memorandum, dated March 16, 2011, from Nancy K. Stoner, Acting Assistant 

Administrator, Environmental Protection Agency, to Regional Administrators, Regions 1–10, submitted by Mr. Stearns ................................................... 175 

Letter, dated April 22, 2011, from Herschel T. Vinyard, Jr., Secretary, Florida 

Department of Environmental Protection, to Lisa P. Jackson, Administrator, Environmental Protection Agency, submitted by Mr. Stearns ............. 181 

Letter, dated June 13, 2011, from Nancy K. Stoner, Acting Assistant Administrator, Environmental Protection Agency, to Herschel T. Vinyard, Jr., Secretary, Florida Department of Environmental Protection, submitted by Mr. 

Stearns .................................................................................................................. 220 

(1) 

EPA’S TAKEOVER OF FLORIDA’S NUTRIENT 

WATER QUALITY STANDARD SETTING: IMPACT ON COMMUNITIES AND JOB CREATION 

TUESDAY, AUGUST 9, 2011 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:10 a.m., at the 

Alumni Center, The University of Central Florida, 4000 Central 

Florida Boulevard, Building 126, Orlando, Florida, Hon. Cliff 

Stearns (chairman of the subcommittee) presiding. 

Members present: Representatives Stearns and Barton. 

Also present: Representatives Brown, Bilirakis, and Ross. 

Majority staff present: Katie Novaria, Legislative Clerk; Peter 

Spencer, Professional Staff Member, Oversight; and James Thomas, Policy Coordinator. 

Mr. STEARNS. Welcome, here at the Alumni Center, and we, as 

Members of Congress, appreciate that very much. 

This hearing is part of the Energy and Commerce Committee in 

Congress, and I am authorized, as the chairman, to do this. 

I am delighted to have my colleagues here. Corrine Brown, of 

course, this is part of her congressional district. Joe Barton is a 

former chairman of the Energy and Commerce Committee. He is 

from Texas. He is on vacation here with his family. Gus Bilirakis, 

I think all of you know, is over in the Tampa area. And Dennis 

Ross, of course, is contiguous here to Orlando. So I welcome my colleagues. 

I will start with an opening statement. 

OPENING STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA 

We convene this hearing of the Subcommittee on Oversight and 

Investigations to examine the impact of the Environmental Protection Agency’s, EPA, recent rulemaking setting Federal numeric nutrient water quality criteria for Florida’s lakes and flowing waters 

and overruling Florida’s own process for setting the relevant standards. 

This is the sixth hearing in the subcommittee’s regulatory reform 

series, as well as the subcommittee’s first field hearing. Regulatory 

reform has been a priority for this subcommittee in the 112th Congress, and this hearing continues its examination of potentially 

2 

burdensome and costly Federal regulation that will stifle job creation and economic growth. 

As Floridians work to get back on their feet, the Federal Government’s efforts must be focused on improving our economy and, of 

course, creating jobs. Unfortunately for the almost 1 million currently unemployed people from Florida, EPA’s unprecedented and 

potentially costly water mandates threaten to harm Florida citizens, its local governments, and vital sectors of our economy, with 

no guarantee of benefit for improved water quality overall. 

Nutrient pollution presents unique challenges that are difficult 

to remedy through the EPA’s non-site-specific approach of setting 

numerical water quality standards. In other words, one size fits all. 

This approach is not universally appropriate for substances like nutrients that are both widely variable, naturally occurring, and a 

necessary component of healthy ecosystems. 

Disturbingly, EPA’s approach may result in numerous waters 

being labeled as impaired even though they are not and direct taxpayers’ resources away from necessary environmental work while 

blocking business growth and job creation in the meantime here in 

Florida. 

For example, the Cross Bayou within the Tampa Bay estuary 

system has an extensive oyster reef that the Florida Fish and Wildlife Conservation Commission has described as pristine. This pristine wildlife conservation center is clear to us it is OK. Yet the 

water quality of this area does not come close to meeting the EPA 

standard. So this is not sensible regulation, in our opinion. 

Despite the well-known challenges with setting numeric nutrient 

standards, Florida had—for several years has been working to set 

such standards with EPA support until January 2009, when EPA 

abruptly called for Federal standards. Although Florida continues 

to collaborate with the Federal authorities for a workable solution, 

EPA instead chose in August 2009 to abandon Florida’s process 

and to impose its own broad-brush standards by certain dates. 

So, my colleagues, we will hear today how EPA’s actions take 

over Florida’s well-regarded process, places tens of millions of dollars of ongoing water quality projects into jeopardy, and threatens 

billions of dollars of economic, job-creating decision-making. 

Witnesses today will provide perspective from the State, municipalities, water utilities, the labor community, and the agricultural 

community, all of which must confront the regulatory challenges 

and uncertainties presented by EPA’s takeover of Florida’s standard setting. 

Ironically, the same EPA, bent on imposing its standards despite 

scientific and economic uncertainty about the impact, also asserts 

that according to a March 16, 2011, memorandum from Nancy 

Stoner, the Acting Assistant Administrator for Water, to EPA’s regional administrators, quote, she says, ‘‘States need room to innovate and respond to local water quality needs. So a one-size-fits-all 

solution to nitrogen and phosphorus pollution is neither desirable 

nor necessary.’’ 

So, clearly, EPA is acting against its own advice in Florida. 

There are serious questions about the necessity of EPA actions, the 

quality of the analysis supporting its decisions, and the economic 

and jobs impact for complying with its Federal numeric standards. 

3 

[The prepared statement of Mr. Stearns follows:] 

4 


81389.001

Opening Statement of the Honorable Cliff Stearns 

Chairman, Subcommittee on Oversight and Investigations 

EPA's Takeover of Florida's Nutrient Water Quality Standard Setting: 

Impact on Communities and Job Creation 

August 9, 2011 

(As Preparedfor Delivery) 

We convene this hearing of the Subcommittee on Oversight and Investigations to 

examine the impact of the Environmental Protection Agency's (EPA) recent rulemaking 

setting federal numeric nutrient watcr quality criteria for Florida's lakes and flowing 

water and overruling Florida's own process for setting the relevant standards. This is the 

sixth hearing in the Subcommittee's regulatory refonn series as well as the 

Subcommittee's first field hearing. Regulatory refonn has been a priority of this 

Subcommittee in the llih Congress and this hearing eontinues its examination of 

potentially burdensome and costly federal regulation that will stifle job creation and 

economic growth. 

As Floridians work to get back on their feet, the federal government's efforts must be 

foeused on improving our eeonomy and creating jobs. Unfortunately for the 982,000 

eurrently unemployed Floridians, EPA's unprecedented and potentially costly water 

mandates threaten to hann Florida's citizens, local governments, and vital seetors of our 

economy - with no certain benefit for improved water quality. 

Nutrient pollution presents unique challenges that are diffieult to remedy through the 

EPA's non-site speeific approach of setting numerical water quality standards. This 

approach is not universally appropriate for substanees like nutrients that are both widely 

variable, naturally oecurring, and a necessary component of healthy eeosystems. 

Disturbingly, EPA's approaeh may result in numerous waters being labeled as 

"impaired," even though they are not, and direct taxpayer resources away from necessary 

environmental work, while blocking business growth and jobs creation in the meantime. 

For example, Cross Bayou, within the Tampa Bay Estuary System, has an extensive 

oyster reef that the Florida Fish and Wildlife Conservation Commission has described as 

pristine. Yet the water quality of this area does not come close to meeting EPA's 

standard. This is not sensible regulation. 

Despite the well-known ehallenges with setting numerie nutrient standards, Florida had 

for several years been working to set such standards, with EPA's support, until January 

2009 when EPA abruptly called for federal standards. Although Florida continued to 

collaborate with the federal authorities for a workable solution, EPA chose in August 

2009 to abandon Florida's process and to impose its own broad-brush standards by 

eertain dates. 

Page 1 of3 
5 


81389.002

We will hear today how EPA's aetions to take over Florida's well-regarded proeess 

places tens of millions of dollars of ongoing water quality projeets into jeopardy and 

threatens billions of dollars of economie - job creating - decision-making. Witnesses 

today will provide perspeetive from the state, municipalities, water utilities, the labor 

community and the agriculture community, all of which must confront the regulatory 

challenges and uncertainties presented by EPA's take over of Florida's standard setting. 

Ironically, the same EPA bent on imposing its standards despite scientific and economic 

uncertainty about the impacts, also asserts that - according to a March 16, 2011 

memorandum from Nancy Stoner, the Acting Assistant Administrator for Water to EPA's 

Regional Administrators -- "states need room to innovate and respond to local water 

quality needs, so a one-size-fits-all solution to nitrogen and phosphorus pollution is 

neither desirable nor necessary." Clearly, EPA is acting against its own advice in 

Florida. 

There are serious questions about the neeessity of EPA aetions, the quality of the analysis 

supporting its decisions, and the economic and jobs impact for complying with its federal 

numeric standards. 

The State of Florida's initial $5.7 billion to $8,4 billion annual cost estimate for 

implementing EPA's standards is 20 to 40 fold higher than EPA's estimates. Another 

study by the Florida Department of Agrieulture and Consumer Services and the 

University of Florida concluded that EPA's mandated regulations could cost Florida's 

agricultural community $1.1 billion annually and eliminate 14,545 full-time and part-time 

jobs. 

My hometown of Ocala, Florida estimates their direct eosts to range from $90-$150 

million in associated upgrades and Clay County Utility Authority estimates their capital 

cost expenditures to comply with EPA's mandate to exceed $120 million, resulting in a 

35%-40% increase to their customers' utility bills. These multiple, independent estimates 

provide a much clearer picture of the actual impacts of this regulation on Florida's 

businesses and family budgets. It is simply unreasonable to place this exorbitant financial 

burden on communities already facing significant economic challenges. 

As we will hear this morning, EPA simply assumes away these unnecessary burden's and 

economie realities, and appears to ignore the good efforts by state authorities to set 

scientifieally defensible, EPA-approved, nutrient standards. 

We all support clean water but at a time when our State and its communities are suffering 

from high unemployment, budget defieits, and depressed real estate values, we must be 

cautious about forcing unaffordable and scientifically questionable federal mandates on 

our communities, hardworking families and employers. 

While I don't want to see the EPA dictate these potentially burdensome and expensive 

regulations, I do want the EPA and the State of Florida to work together in developing an 

economical solution to safeguard our water quality. Preserving our State's natural 

Page 2 of3 
6 


81389.003

resources is a sound environmental policy. If EPA will work with thc State of Florida 

and our municipalities and businesses to develop sensible regnlations, it can be 

economical as well. 

Page 3 of3 
7 

Mr. STEARNS. With that, that is my opening statement. And I 

ask unanimous consent that Members who are not a member of the 

committee may ask questions and also that my good colleague 

Corrine Brown can also have an opening statement. 

Without objection, so ordered. 

With that, I recognize Corrine Brown for her opening statement. 

OPENING STATEMENT OF HON. CORRINE BROWN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA 

Ms. BROWN. Thank you, Mr. Chairman. 

First of all, I want to acknowledge that I am happy to be here 

at the University of Central Florida with Dr. Hitt and all of the 

Central Florida family. I claim them as a part of representing them 

in the United States Congress. 

And I want to thank the committee for being fair in their also 

giving me the opportunity to have an opening statement since I am 

not on this committee. I am on the Transportation and Infrastructure Committee that have had hearings, both in full and sub on 

this issue. 

I am also supposed to say something nice about Texas, since they 

agreed for me to make the opening statement. My best friend is 

from Texas, Eddie Bernice Johnson. So thank you very much. 

[Laughter.] 

Ms. BROWN. But I did tell him who is going to beat them in football. So—— 

Mr. BARTON. There you go. We will see about that. 

Ms. BROWN. But back to the subject area. You know, I, first of 

all, have got a problem with the title of the hearing, ‘‘EPA Takeover of Florida Nutrient Water Quality Standard Setting: Impact 

on Communities and Jobs.’’ Now we do know that it is not really 

an EPA takeover, and I am a little disappointed that the State is 

not here today because the State has the leading role. 

And my friend Herschel Vinyard, since he left Jacksonville and 

in Tallahassee, is the new EPA director, and I think they should 

be here at this hearing today because I would like to know—have 

their input because the more input we have, the better we can 

make our decisions in Washington. 

As I said before, we have had two hearings, both the full and 

subcommittee, on this issue. And I really think that we need to 

work together in a balanced approach, but we also need to make 

sure that we are fair in how we handle this issue. That is why I 

supported Congressman Rooney’s amendment that would have limited funds for this new criteria of Florida. 

But I also know that water is very important, and we do not 

need to weaken the clean water standards. We need to work together to protect the people of Florida, but also how can we implement it and make sure it is safe and that Florida is not held to 

a different standard than the rest of the country as we move forward? 

We are going to have a lot of water battles. We are doing it with 

Georgia, and we are doing it with other communities. So how do 

we do this in a way that is going to be fair to the people of Florida 

and fair to the businesses as we move forward? 

8 

So I am very interested and thank the chairman for having me 

here today. And I am very interested in hearing what the panelists 

have to say and seeing how we can work together to move forward. 

So thank you very much. 

Mr. STEARNS. I thank the gentlelady. 

And with that, I recognize the gentleman from Texas, Mr. Barton. 

Mr. BARTON. Well, thank you, Chairman Stearns. 

I am a past chairman of the Oversight and Investigations Subcommittee of the Energy and Commerce Committee. So it is a delight to be here for this field hearing. 

My family is on vacation in Florida. Yesterday was the Magic 

Kingdom, and today I am missing Epcot Center. But I will be home 

in time to help pay for supper this evening. So—— 

[Laughter.] 

Mr. BARTON [continuing]. We are contributing to your Florida 

economy substantially. 

Ms. BROWN. Thank you. 

Mr. BARTON. Eddie Bernice Johnson is my good friend, and I am 

glad that Congresswoman Brown is going to be in my new congressional district I think this Friday? 

Ms. BROWN. This Friday. 

Mr. BARTON. At a transportation summit. So I, too, want to 

thank the University of Central Florida for their hospitality and 

being here. 

I do have an official opening statement. I am going to run 

through it real quickly, Mr. Chairman. 

OPENING STATEMENT OF HON. JOE BARTON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

I was very pleased when I found out that you were going to hold 

this field hearing on the EPA and Florida and its efforts with regards to water regulations. I have said this before, and I will say 

it here at this hearing, that it does appear to me that the Obama 

EPA administration is trying to reset the balance between State 

regulation and Federal regulation, with an emphasis that Washington knows best, and it is in almost every case very easy to override the State and implement their own Federal standards. 

What the EPA is attempting to do here in Florida with regards 

to water quality is very similar to what the EPA is trying to do in 

Texas with regards to air quality. In Texas, we have a flexible air 

quality permitting program that was approved back in the Clinton 

administration and has been in existence for over a decade. And 

the Region 6 administrator for the EPA and the Washington EPA 

has revoked those permits that affect over 130 facilities in Texas 

without any real justification that I can find. 

Here in Florida, back in 2007, the EPA and the Florida Environmental Protection Department agreed on a consent decree, I am 

told, with regards to nutrients and phosphorus that was in effect 

and that the Floridians were beginning to implement, setting the 

standards, compliance dates. And then, last year, the Obama EPA 

in Region 4 came in and revoked that and put in place their own 

standards with a compliance date, I believe, of early next year, 

which is probably going to be impossible to meet. 

9 

I think it is fair to say, Mr. Chairman, that regardless of whether 

you are a Federal official or a State official, we want the strongest 

air quality and water quality standards. I think it is fair to say 

also that we should recognize that those standards should be based 

on real scientific data. They should be promulgated in a cooperative 

atmosphere, if at all possible, with those that are being regulated. 

And since it is the State that has to implement in almost every 

occasion, Mr. Chairman, that you should give deference to the 

State in terms of how to implement and the timelines for implementation. You should be very pleased and happy, Mr. Chairman, 

that in Florida you have water resources to regulate. 

My son yesterday, my 5-year-old son, when it started raining 

wanted to know what that was. Yes, we haven’t had rain in 4 

months. We have had 30 days of 100 degree temperature or better, 

and we have had 7 or 8 days in a row of over 105. So having water 

resources to develop is definitely a positive. 

Let me conclude simply by saying that when I get to the question 

and answer period here today, I do plan—first of all, I want to 

thank the Region 4 administrator for being here. We haven’t been 

able to get the Region 6 administrator for Texas to come to a field 

hearing in Texas. So give her credit for showing up and being willing to answer questions. 

But I am going to ask her some questions, such as why they 

refuse to grant the flexibility needed for your State to implement 

the agreed-upon plan that you had in place before it got revoked? 

What does the EPA do to really take into account the compliance 

costs? Why does the EPA continue to ignore the concerns of your 

State officials and industry representatives regarding the data, the 

assumptions, and the models that are used? 

I want to emphasize the word ‘‘models.’’ When you have real 

data, Mr. Chairman, it would seem to me that you would take the 

real world data over an EPA-generated model, which may or may 

not reflect the real world. And again, in Texas, EPA is using modeling data that has no relationship to the real world data that is 

collected on a continuous basis with regards to air quality. 

We all want safe water. We all want clean air. It is the appropriate oversight role of this particular subcommittee to oversee the 

Environmental Protection Agency. And this field hearing in Florida 

in front of your constituents and Ms. Brown’s constituents and Mr. 

Bilirakis’s and Mr. Ross’s constituents is an open, transparent way 

to conduct that oversight, and I commend you for doing that. 

I look forward to the hearing. 

Mr. STEARNS. Thank the gentleman. 

And we will welcome our first panel. If they would please come 

forward? Gwendolyn Keyes Fleming is EPA’s regional administrator for Region 4 and was appointed by President Barack Obama 

in September 2010. Prior to her position with the EPA, Ms. Keyes 

Fleming served as a DeKalb County district attorney and prosecuted approximately 11,000 felony cases annually. 

Ms. Keyes Fleming is a New Jersey native and earned her bachelor’s degree in finance from Douglass College and her law degree 

from the Emory University School of Law. Welcome. 

Richard Budell is the director of the Office of Agricultural Water 

Policy with the Florida Department of Agriculture and Consumer 

10 

Services. He has been involved in the development and implementation of agricultural water resource protection and restoration programs in Florida for 26 years. Mr. Budell, welcome. 

Both of you are aware that the committee is holding an investigative hearing and, when doing so, has had the practice of taking 

testimony under oath. Do you have any objection to taking testimony under oath? 

Ms. KEYES FLEMING. No objection. 

Mr. BUDELL. No. 

Mr. STEARNS. The chair then advises you that under the rules of 

the House and the rules of the committee, you are entitled to be 

advised by counsel. Do you desire to be advised by counsel during 

your testimony today? 

Ms. KEYES FLEMING. No. 

Mr. BUDELL. No. 

Mr. STEARNS. In that case, if you would please rise and raise 

your right hand, I will swear you in. 

[Witnesses sworn.] 

Mr. STEARNS. You are now under oath and subject to the penalties set forth in Title 18, Section 1001 of the United States Code. 

You now may each give a 5-minute summary of your written statement, and we welcome you. 

Ms. Keyes Fleming? 

STATEMENTS OF GWENDOLYN KEYES FLEMING, REGIONAL 

ADMINISTRATOR, SOUTHEAST REGION, ENVIRONMENTAL 

PROTECTION AGENCY, AND RICHARD J. BUDELL, DIRECTOR, 

FLORIDA OFFICE OF AGRICULTURE AND CONSUMER SERVICES 

STATEMENT OF GWENDOLYN KEYES FLEMING 

Ms. KEYES FLEMING. Good morning. I’m pleased to appear before 

you today to discuss the water quality challenges here in Florida 

resulting from nutrient pollution. 

The urgent problem before us is how we can most effectively collaborate at the Federal, State, and local government levels to address the growing public health risks and adverse economic impacts of this widespread pollution on the prosperity and quality of 

life of the communities here in Florida. 

Clean water is vital to Florida’s economy. We know that 82 million tourists come to Florida for the beaches, rivers, and State park 

system that is the envy of the Nation. Tourism, the State’s number-one industry, employs about 1 million Floridians and generates 

$57 billion for the State’s economy each year. Clearly, the businesses these tourists and all of us depend on need a reliable and 

plentiful supply of clean water. 

Clean water is also essential to our public health, our drinking 

water supplies, and to the welfare of our families and communities. 

But here in Florida, over 1,900 miles of rivers and streams are currently impaired for nutrients, and the numbers are increasing, despite the best efforts of the State. 

Nutrients cause algal blooms, that thick green muck that fouls 

clear water and can produce toxins harmful to humans, animals, 

and the environment. Exposure can cause skin irritations, stomach 

11 

and intestinal problems, fever, sore throat, headache, and liver 

damage. 

In early June of this year, for example, a toxic blue-green algae 

bloom was reported on the Caloosahatchee River in Fort Myers. 

Lee County officials warned people to avoid fishing, swimming, or 

boating due to the potential health risks associated with the algae. 

The St. Johns River continues to routinely suffer from harmful 

algae blooms and fish kills that hurt local businesses and damage 

property values. If businesses that rely on clean water don’t have 

it, their bottom line suffers, and so does the economy. 

In January 2009, recognizing the State’s significant pollution— 

nutrient pollution challenges, EPA concluded that numeric criteria 

were necessary to restore and protect the State waters in a timely 

manner. In November 2010, EPA promulgated standards for the 

State’s lakes and flowing waters but delayed the effective date by 

15 months to allow stakeholders the opportunity to review the 

standards and ensure a smooth transition toward implementation 

by the State. 

In addition, EPA recognized the need for flexibility within the 

rule. So the rule allows any entity to propose site-specific alternative criteria based on local environmental factors, and EPA will 

approve such alternative criteria where it will protect water quality. 

EPA recognizes the need for a sensible approach in the implementation of this rule. Over the course of the past 8 months, EPA 

has been working with a wide range of stakeholders, communities, 

and organizations to address their concerns and issues. Throughout 

the process, EPA has also been coordinating closely with the State 

on issues related to implementation of the rule and supporting 

State efforts to develop their own rule. 

EPA clearly understands there are economic consequences associated with the implementation of the rule and that these are difficult economic times. We believe the State can implement the rule 

in an economically sensible way, using currently available technology. 

But given the concerns expressed about the economic analysis 

conducted by EPA, we’ve asked the National Research Council to 

conduct an independent review of the costs of implementing the inland rule. This process is under way, and we expect the results of 

this review will be available in February of 2012 before the rule becomes effective. 

As you know, in April of this year, Florida petitioned the EPA 

to withdraw its determination, repeal Federal rulemaking to establish criteria, and refrain from proposing or promulgating further 

numeric nutrient criteria. The petition further outlined plans in a 

rulemaking schedule by which the State would adopt its own criteria. 

EPA supports Florida’s continued focus on reducing nitrogen and 

phosphorus pollution and commends the State’s commitment to recommence its rulemaking efforts. EPA believes that the State has 

the primary role in establishing and implementing water quality 

standards. We are working with the State during this process, and 

we will continue to make available our policy and technical staff to 

provide assistance on a priority basis. 

12 

If Florida adopts an EPA-approved, legally enforceable nutrient 

criteria that are sufficient to address the concerns underlying our 

determination in the Clean Water Act, EPA will promptly initiate 

rulemaking to repeal our criteria. 

In conclusion, the threat posed by nutrients in Florida’s waters 

is perhaps the most serious water pollution problem faced by EPA, 

the State, and local communities. EPA is committed to continuing 

to work with Florida and the many stakeholders here in the State 

to implement nutrient controls in a manner that protects the 

State’s water, sustains its economy, and safeguards the well-being 

of all of its citizens who depend on clean and safe water. 

Thank you for the opportunity to testify, and I look forward to 

answering your questions. 

[The prepared statement of Ms. Keyes Fleming follows:] 

13 


81389.004

Introduction 

TESTIMONY OF 

GWENDOL YN KEYES FLEMING 

REGIONAL ADMINISTRATOR, REGION 4 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

BEFORE THE 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS 

ENERGY AND COMMERCE COMMITTEE 

UNITED STATES HOUSE OF REPRESENTATIVES 

August 9,2011 

Good morning Chairman Stearns. I am Gwen Keyes Fleming, Regional Administrator of the 

U.S. Environmental Protection Agency (EPA) Region 4 and I am pleased to appear before you 

today to discuss EPA's mission to protect public health and the environment with a particular 

emphasis on the water quality challenges here in Florida resulting from what is known as 

"nutrient pollution." The urgent problem before us is how we can most effectively collaborate at 

federal, state, and local government levels to address the growing public health risks and 

economic impacts of widespread nitrogen and phosphorus pollution on the prosperity and quality 

oflife of communities here in Florida. It is within this context that I will briefly describe the 

economic and environmental impacts of nutrient pollution in Florida, the critical factors that led 

to EPA's determination that numeric nutrient criteria are needed in the State of Florida, our 

efforts to ensure an effective transition to State implementation of those criteria in a costeffective manner, and our current efforts to support the State's promulgation of its own numeric 

nutrient water quality standards. 

Page 10f9 
14 


81389.005

Economic and Environmental Impacts of Nutrient Pollution in Florida 

We all recognize the value of clean water. Clean water is not simply a resource and asset to be 

passed on to our children, but is an essential part of life. Clean water is essential to public health, 

drinking water supplies, and to the welfare of families and communities, whether in large cities, 

small towns, or rural areas here in Florida. The health and growth of Florida's small and large 

busincsses and the jobs they create rely upon a high-quality and sustainable source of water. The 

range of businesses that depend on a reliable and plentiful supply of clean water includes 

tourism, farming, fishing, beverage production, manufacturing, transportation, and energy 

generation,just to mention a few. We know that 82 million tourists come to Florida for the 

beaches and rivers, and the state park system that is the envy of the nation. 1 Tourism-the state's 

No. I industry - employs about 900,000 Floridians and generates $57 billion for the state's 

economy each year.2 Fishing in Florida's waters attracts 2.8 million anglers each year.3 This 

includes more than 880,000 out-of-state anglers who spend over $1 billion on fishing-related 

products and services. Combined with residents, Florida's fishers spent more than any other state 

$4.3 bil1ion.4 

Nitrogen and phosphorus pollution is a major threat to Florida's economy and its ecology. This 

has been extensively documented in the scientific literature and confirmed by monitoring data 

collected by Florida agencies and institutions. According to the Florida Department of 

Environmental Protection (FDEP)'s list of impaired waters, about 1,918 miles of rivers and 

I "Deepwater Horizon FAQ's" Florida Restaurant and Lodging Association http://\.V\'\.'W.frla,org/govemment~re!ations!deepwater.hori7.0n~faqs 

1 State of Florida. "Florida Economy, State Spendmg & Taxes." StateojF"Iorida,com. N.p., 2010. Web, 28 Apr 20 II 

<http://www.stateofflonda com/PortaliDesktopDefault.aspx?tabid=95>. 

J "2006 Nationa! 

Web 28 Apr. 2011 

4 Ibid 

Wildlife-Associated Recreatlon- Florida. n u.s. Fish and WIldlife SerVice. Pg 14 January 2008 

~~~will~~~~Q> 

Page 2 of9 
15 


81389.006

streams are currently impaired for nutrients. The number of miles increased from approximately 

1000 miles in 2008 to approximately 1900 miles in 2010. Impaired acres oflakes increased from 

350,000 acres in 2008 to 378,000 in 2010. Some of this increase may be due to increased 

monitoring, but the data strongly suggest the problem is worsening. FDEP reports that nutrients 

are the fourth major source of impairment for rivers and the number one source of impairment 

for lakes in Florida. 

A particularly persistent result of excessive nutrient pollution is the proliferation of harmful algal 

blooms - a situation in which once-clear waters are choked with algae and green with slime. 

Because of the increased incidence of these and other risks, many states actively monitor their 

waters for harmful algal blooms to protect swimmers, assure safe recreational uses, and protect 

consumers of shellfish. This is certainly true here in Florida. 

In early June of this year, a toxic algae bloom was reported on the Caloosahatchee River in Fort 

Myers. Lee County Department of Health officials provided a precautionary warning, urging 

people to avoid fishing, swimming or boating on the popular waterway for at least a week. Bluegreen algae, or cyanobacteria, were detected. Exposure to blue-green algae can cause symptoms 

in humans, including skin irritation, stomach cramps, vomiting, nausea, diarrhea, fever, sore 

throat, headache, muscle and joint pain, blisters of the mouth and liver damage. The health 

department noted that swimmers in water containing cyanobacterial toxins may suffer allergic 

reactions, such as asthma, eye irritation, rashes, and blisters around the mouth and nose. 

The St. Johns River continues to routinely suffer from harmful algae blooms and fish kills that 

hurt local business from restaurants to outfitters - and damage property values. When green 

Page 3 of9 
16 


81389.007

slime covered the St. Lucie River in 2005, the drop in nearby property values was estimated to 

be up to half a billion dollars. In each of these instances, nutrient pollution was a critical element 

contributing to these environmental impacts. 

Nutrient pollution also affects the water that we drink. As noted above, increased nutrients in 

surface waters can spur harmful algal blooms that release toxins that pose a risk to drinking 

water. Detecting these toxins can be challenging and costly, and uncertainty exists about the 

effectiveness of existing treatment in removing these toxins. If not properly treated, the 

ingestion of water contaminated with toxins produced by harmful algal blooms can have health 

impacts on the liver, kidney, or nervous system. Additionally, higher levels of algae in drinking 

water sources can increase the formation of disinfection byproducts during drinking water 

treatment. This requires water utilities to take further action to prevent exposure that could 

impact the health of their customers, when the best way to address these byproducts is to prevent 

their formation in the first place. 

Excess nutrients have also migrated into ground water causing contamination of drinking water 

wells. According to data in our national public water supply database, there were 52 violations 

of the drinking water nitrate standard in Florida public water supplies from 2005 to 2010. In 

predominantly agricultural regions of Florida, 63% of the approximately 4000 private drinking 

water wells analyzed by the State contained detectable levels of nitrate, and 15% of these 

(around 584 wells) exceeded the nitrate drinking water standard. Most of these were located in 

the Central Florida citrus growing region. 

Page 4 of9 
17 


81389.008

Development of Numeric Nutrient Standards in Florida 

EPA and the State of Florida have worked together to address the significant water pollution 

problems associated with nutrient pollution in Florida waters. During 2009, the State had made 

substantial progress in its effort to develop numeric nutrient standards that would replace the 

general, and less effective, narrative criteria for nitrogen and phosphorus. These State numeric 

nutrient criteria, however, were not finally adopted. 

In January 2009, EPA concluded that the State was relying on narrative nutrient criterion, the 

application of which is resource intensive, time consuming and less than effective in 

implementing programs to protect water quality and prevent impairments of designated uses due 

to nutrient overenrichment. EPA concluded that numeric criteria for nitrogen/phosphorus 

pollution would enable the State to take necessary action to restore and protect the designated 

uses of its waters in a timely manner. 

In August 2009, EPA settled a lawsuit by agreeing in a consent decree to a schedule to adopt 

numeric nutrient pollution standards for lakes and flowing waters by November 20 I ° and for 

estuarine, coastal and South Florida waters by August of 20 12. In developing the numeric 

nutrient criteria for Florida's lakes and flowing waters, EPA used extensive data provided by the 

FDEP and utilized sound scientific approaches that were independently peer-reviewed. EPA 

conducted 13 well-attended public hearing sessions in six cities in Florida and held a 90-day 

public comment period inviting broad public participation. The Agency received over 22,000 

written public comments throughout this process. The final numeric nutrient criteria published 

by EPA in November 2010 are similar to the numeric criteria developed earlier by the FDEP. 

Page 50f9 
18 


81389.009

In addition, given the need to ensure a smooth transition to implementation of the new, numeric 

criteria by the State, EPA established the effective date for the new criteria of March 6, 2012, a 

full 15 months from the publication of the criteria, thereby allowing cities, towns, businesses and 

other stakeholders, as well as the State of Florida, a full opportunity to review the criteria and 

develop strategies for implementation. 

EPA also included with the new numeric criteria, a flexible approach that allows for case-bycase adjustments depending on local environmental factors while protecting water quality. The 

"site-specific alternative criteria" (SSAC), are based upon stakeholder submission of 

scientifically defensible recalculations of protective levels that meet the requirements of CW A 

section 303(c). For example, my office is currently considering a formal request for site-specific 

alternative criteria for the Econfina and Fenholloway Rivers submitted by the Buckeye 

Corporation. 

Over the course of the past eight months, EPA has been working with a range of communities 

and organizations to address their concerns. For example, immediately following the publication 

of the new, numeric criteria in November 20 10, I, along with other EPA representatives, met 

with a wide range of stakeholders, including state officials, environmental organizations, 

municipal organizations, and representatives from industry and agriculture. Between November 

20 I 0 and March 20 II , EPA conducted five webinars discussing various aspects of the 

promulgated rule for lakes, streams and springs and its implementation, with participation by 

over 750 people. EPA met with and/or held conference calls with local officials from Palm 

Page 6 of9 
19 


81389.010

Beach County, Jacksonville, Gainesville, Polk County and several Water Management Districts. 

EPA hosted officials from the Florida League of Cities and the Association of Counties for a 

day-long meeting. EPA also participated in conferences sponsored by organizations such as the 

Lcague of Cities, Association of Counties, Florida Stormwater Association, Air and Water 

Managers Association, and the Florida Engineering Society. Throughout this process, EPA has 

been coordinating closely with FDEP to assure a smooth transition to implementation of the new, 

numeric nutrient criteria. 

Florida's Petition 

On April 22, 2011, FDEP Secretary Herschel Vinyard petitioned Administrator Lisa P. Jackson, 

requesting that EPA: (l) withdraw its January 2009 determination that numeric nutrient criteria 

arc necessary in Florida; (2) repeal Federal rulemaking completed in November 2010 to establish 

such criteria for inland lakes and streams; and (3) refrain from proposing or promulgating any 

further numeric nutrient criteria. The petition further outlined plans and a rulemaking schedule 

by which the Florida Department of Environmental Protection would adopt nutrient criteria. The 

projected rulemaking schedule called for a rule development and public outreach process through 

the summer and early fall of 2011, and adoption of a final rule in January 2012, to be followed 

by a legislative ratification process under Florida law. 

EPA supports FDEP's continued focus on reducing nitrogen and phosphorus pollution and 

commends the State's commitment to recommence its development of nutrient criteria that are 

sufficient to address the concerns underlying the EPA determination and to protect water quality 

and prevent impairment of designated uses of Florida's inland and estuarine waters. EPA agrees 

Page 70f9 
20 


81389.011

with FOEP that the Clean Water Act (CWA) provides that states have the primary role in 

establishing and implementing water quality standards for their waters. The State was authorized 

by the CW A to adopt numeric nutrient water quality criteria before EPA's January 2009 

determination, and has remained so authorized. FOEP affirmed its support for the promulgation of 

numeric nutrient criteria for the State in its initial commitment to develop numeric nutrient criteria in 

2002, and reaffirmed this position in a subsequent commitment to develop numeric nutrient criteria 

in 2007. In the determination, EPA affirmed its preference for State-adopted numeric nutrient 

criteria. FOEP also continues to have authority to implement the range of activities and tools 

highlighted in the petition to assure more effective nutrient pollution reductions. 

In its June 13,2011 initial response to the petition, in order to support the State in development 

of nutrient criteria, EPA agreed to consider extending the March 2012 effective date for the 

EPA-established nutrient criteria for lake, streams and springs. More specifically, if the March 

effective date is approaching and Florida has adopted a protective and approvable final rule, but 

further steps are needed for the State's final rule to take effect, such as ratification by the 

Legislature, EPA will propose, through rulemaking, an additional extension of the effective date 

to enable Florida to complete such steps. 

In addition, assuming that Florida starts the rulemaking process and is moving ahead on schedule 

toward adoption of protective and approvable nutrient criteria for coastal and estuarine waters, 

EPA will ask the litigants and the Court to agree to a modification to the consent decree that 

would allow an appropriate extension of the schedule for EPA proposal of draft numeric nutrient 

criteria for coastal and estuarine waters, now scheduled for November of this year, so that 

Florida can continue to focus on completing its own process. EPA is working with FOEP during 

Page 8 of9 
21 


81389.012

this process and will continue to make available policy and technical staff to provide assistance 

on a priority basis. 

EPA clearly understands there are economic consequences associated with the restoration of 

waters polluted by nutrients and that these are difficult economic times. EPA believes there are 

reasonable ways to implement the numeric criteria rule that will protect Florida waters, and the 

many economic benefits that come from clean waters, without causing economic hardship. 

However, given the wide range of cost estimates developed by various organizations, EPA has 

requested that the National Research Council conduct an independent review of the costs of 

implementing the inland waters numeric nutrient criteria. This process is underway and the 

results of this independent review will be available by the end of February 2012. 

Conclusion 

In conclusion, the threat posed by nutrient pollution is perhaps the most serious water quality 

problem faced by EPA, the State, and local communities in Florida. EPA is committed to 

continue working with Florida and the many stakeholders here in the State to implement nutrient 

controls in a manner that protects the State's waters, sustains its economy, and safeguards the 

well-being of all its citizens who depend upon clean and safe water. 

Thank you for the opportunity to testify before the subcommittee today. I look forward to 

answering any questions you may have. 

Page 9 of9 
22 

Mr. STEARNS. Thank the gentlelady. 

Mr. Budell? 

STATEMENT OF RICHARD J. BUDELL 

Mr. BUDELL. Thank you, Chairman Stearns. 

Good morning, committee members. I’m pleased to have the opportunity to share with you my department’s perspective on key aspects of the U.S. Environmental Protection Agency’s final numeric 

nutrient criteria for Florida’s springs and inland waters that were 

adopted this past December. 

In EPA’s own words, and I quote, ‘‘Florida has developed and implemented some of the most progressive nutrient management 

strategies in the Nation,’’ end quote. 

EPA has also acknowledged that Florida has placed substantial 

emphasis on the monitoring and assessment of its waters and as 

a result of this commitment has collected significantly more water 

quality data than any other State in the Nation. More than 30 percent of all the water quality data that exists in EPA’s National 

Water Quality Database comes from Florida. 

Florida was the first State in the Nation to implement comprehensive urban stormwater management regulations. Florida’s 

treated wastewater reuse program is a model for the rest of the 

country. 

Our agricultural best management practices program is firmly 

rooted in State law and is a critical component of Florida’s overall 

water resource protection and restoration program. These practices 

have been implemented on over 8 million acres of agricultural and 

commercial forest lands here in Florida. 

By targeting its efforts and resources, Florida has made significant progress in nutrient reduction and restoration activities. Examples range from Tampa Bay, where seagrasses have returned to 

levels not seen since the 1950s and now cover over 30,000 acres, 

to Lake Apopka, where phosphorus levels have been reduced by 56 

percent and water clarity increased by 54 percent. 

Despite these glowing reviews and Florida’s demonstrated commitment to water resource protection and restoration, EPA, we believe in direct response to litigation, determined in January of 2009 

that Florida had not done enough and mandated the development 

of numeric nutrient water quality criteria within 1 year. Before 

that year was up, however, EPA entered into a settlement agreement with the plaintiffs and agreed to deadlines for Federal rule 

adoption that, for all practical purposes, usurped Florida’s ongoing 

efforts to develop its own standards. 

EPA subsequently developed and released their draft criteria for 

Florida in January of 2010 and finalized them last December. We 

believe the methods used by EPA to develop its rules are inconsistent with its own guidance documents and the advice of its 

science advisory board. 

EPA compounded the situation, we believe, again by improperly 

applying the methods it did use. As a result, in many cases, the 

rule would deem healthy waters as impaired. 

In response to these issues, our attorney general and the commissioner of agriculture filed a complaint in Federal court challenging the rule. Subsequently, over 30 additional entities, both 

23 

public and private, have filed complaints in Federal court citing the 

same shortcomings. 

Florida believes strongly that any nutrient reduction strategy 

should focus on measurable environmental and biological improvements while optimizing cost and efficiency. In the preamble to the 

rule, their rule, EPA admits that they were unable to find a causeand-effect relationship between nutrient concentration and biological response for flowing waters, like streams and rivers. 

In the absence of that cause-and-effect relationship, there can be 

no certainty that the money and human resources devoted to reduce nutrient content in a stream or river will have any measurable improvement in the biological condition of that stream or 

river. 

Florida believes as there are so many natural factors—like 

stream size, flow velocity, and light penetration—that affect how 

nutrients impact ecosystems, that nutrient standards are best determined on a site-specific basis. It is important to recognize that 

nitrogen and phosphorus are naturally occurring and necessary for 

the normal biological productivity of all waters. Determining when 

too much human-induced nitrogen or phosphorus is present is difficult. 

In other words, Florida believes it is very important to link nutrient concentration with an assessment of the biological health of a 

water body before requiring the implementation of costly nutrient 

reduction strategies. Without this linkage, implementation of the 

EPA criteria would have Florida businesses, wastewater and 

stormwater utilities, and agricultural producers spending time and 

money attempting to reduce nutrient concentrations in some cases 

to levels below natural background. 

So I’ll focus a little bit on cost. There is a lot of controversy about 

the issue of cost. Implementation costs for these numeric criteria 

vary dramatically. EPA’s are much lower than those generated by 

Florida agencies and other public and private stakeholders. 

My department, working in cooperation with the University of 

Florida, estimates the implementation costs for agriculture alone to 

be between $900 million and $1.6 billion annually and could result 

in the loss of up to 14,000 jobs. Our cost estimates are much higher 

than EPA’s because of the uncertainty, because we don’t know 

what the rules of the game are going to be for implementing these 

Federal criteria. 

EPA’s cost estimates assume future agency action and Florida 

rules that allow for the provision of variances or site-specific alternative criteria. None of these things are fleshed out in the rule as 

it is written now. So there is a lot of uncertainty about how those 

kinds of relief mechanisms will be implemented. 

In closing, Florida believes that Florida is best positioned to assess the health of its waters and establish associated water quality 

criteria for their protection and restoration. We believe that our 

track record for the implementation of progressive and successful 

water resource management programs is one of the best in the 

country. 

Florida has earned the right to exercise the authority envisioned 

by the Clean Water Act to develop its own water quality standards 

24 

and implement them through an EPA-approved and predictable 

process governed by existing State law. 

Thank you. 

[The prepared statement of Mr. Budell follows:] 

25 


81389.013

Written Testimony of 

Richard J. Budell 

Director, Office of Agricultural Water Policy 

Florida Department of Agriculture and Consumer Services 

As submitted to the 

U. S. House Committee on Energy and Commerce 

Subcommittee on Oversight and Investigations 

August 9, 2011 

Chairman Stearns, Ranking Member DeGette, and Committee members: Good morning: my 

name is Richard Budell. I am the Director of the Office of Agricultural Water Policy with the 

Florida Department of Agriculture and Consumer Services. I have been involved in the 

development and implementation of agricultural water resource protection and restoration 

programs in Florida for 26 years. I have chaired the Scientific Advisory Group for the Everglades 

and Florida's Pesticide Review Council. I have advised Florida's Governor and Department of 

Environmental Protection on issues ranging from the protection of Florida's coastal waters and 

estuaries to the designated use classification of Florida's surface waters. I recently concluded 

service on a National Research Council Committee evaluating the nutrient reduction strategies 

being employed to improve water quality in the Chesapeake Bay. I am pleased to have the 

opportunity to share with you my Department's perspective on key aspects of the U.S. 

Environmental Protection Agency's (EPA) final Numeric Nutrient Water Quality Criteria for 

Florida Springs and Inland Waters that were adopted this past December. 

In the EPA's own words, "Florida has developed and implemented some of the most 

progressive nutrient management strategies in the Nation." Florida is one of the few states 

that has implemented a comprehensive framework of accountability that applies to both pOint 

and non-point sources and provides authority to enforce nutrient reductions. The EPA has also 

acknowledged that Florida has placed substantial emphasis on the monitoring and assessment 

of its waters and, as a result of this commitment, has collected significantly more water quality 

data than any other state. Greater than 30% of all water quality data in the EPA's national 

water quality database comes from Florida. Florida was the first state in the nation to 

implement comprehensive urban storm water management regulations. Florida's treated 

waste water reuse program is a model for the rest of the country. Our agricultural Best 

Management Practices program is firmly rooted in state law, is backed by sound science and is 

a critical component of Florida's overall water resource management programs. These 

practices have been implemented on over eight million acres of agricultural and commercial 

forest lands in Florida. 

1 
26 


81389.014

By targeting its efforts and resources, Florida has made significant progress in nutrient 

reduction water resource restoration. Examples range from Tampa Bay, where sea grasses 

have returned to levels not seen since the 1950s and now cover 30,000 acres, to lake Apopka, 

where phosphorous levels have been reduced by 56% and water clarity increased by 54%. 

Despite these glowing reviews and Florida's demonstrated commitment to water resource 

protection and restoration, EPA, in response to litigation, determined in January of 2009 that 

Florida had not done enough and mandated the prompt promulgation of numeric nutrient 

water quality criteria within one year. Before that year was up, EPA entered into a settlement 

agreement with the plaintiffs and agreed to deadlines for federal rule adoption that, for all 

practical purposes, usurped Florida's ongoing efforts to develop its own standards. EPA 

subsequently developed and released their own draft numeric criteria for Florida in January of 

2010 and finalized criteria in December of 2010. 

This takeover of Florida's efforts was further aggravated by EPA's rulemaking process. Florida 

stakeholders were not accustomed to the manner in which EPA develops rules. Under State 

law, rulemaking provides much more opportunity for input, discussion and dialogue. While the 

State convenes Technical Advisory Committee meetings and pUblic workshops open to public 

dialogue and interaction, EPA holds public hearings where the public can make comments to 

silent, nodding representatives while a giant five minute timer counts down. While Florida's 

sunshine laws make all data and information available to the public throughout the rulemaking 

process, EPA restricts the amount of information available to the public and doesn't make all 

relevant analyses available for comment. Finally, many stakeholders invested significant time 

and money providing detailed comments regarding the technical basis for the EPA draft rule 

only to receive an unsatisfactory and vague response akin to, "EPA's criteria are based on sound 

science." 

Outside of the process concerns, the methods used by EPA to construct its rules are 

inconsistent with EPA's own guidance documents and the advice of EPA's Science Advisory 

Board. EPA compounded this situation by improperly applying the methods it did use. As a 

result, in many cases the rule would deem healthy waters as impaired. In response to these 

issues, Florida Attorney General Pam Bondi and Commissioner of Agriculture Adam Putnam 

filed a complaint in Federal Court challenging the rule. Over 30 other entities, both public and 

private, have subsequently filed similar Federal complaints against the EPA and their Florida 

numeric nutrient criteria, citing the same shortcomings. 

Florida believes strongly that any nutrient reduction strategy should focus on measurable 

environmental and biological improvement, while optimizing cost and efficiency. In the 

preamble to their rule, EPA admits that they were unable to find a cause-and-effect relationship 

2 
27 


81389.015

between nutrient concentration and biological response for flowing waters like streams and 

rivers. In the absence of that cause-and-effect relationship, there can be no certainty that the 

money and human resources devoted to reduce nutrient content in a stream or river will result 

in any measurable improvement in the biological condition of that stream or river. Florida 

believes that, because so many other natural factors (e.g., stream size and velocity, light 

penetration) affect how nutrients impact ecosystems, nutrient management decisions are best 

determined on a site-specific basis. It is important to recognize that nitrogen and phosphorous 

are naturally occurring and necessary for the normal biological productivity of water bodies. 

Determining when too much human-induced nitrogen or phosphorous is present is difficult. In 

other words, Florida believes that it is very important to link numeric criteria with an 

assessment of the biological health of a water body before requiring the implementation of 

costly nutrient-reduction strategies. Without this linkage, implementation of the EPA criteria 

would have Florida citizens, businesses, waste water and storm water utilities and agricultural 

producers spending time and money attempting to reduce nutrient concentrations, in some 

cases, to levels below natural background. In all estimations, implementation of numeric 

criteria is an expensive proposition; care must be taken to avoid unnecessary efforts that do not 

add measurable value to water resource protection and restoration. 

I just mentioned cost of implementation - this is an issue around which there is considerable 

debate. EPA estimated the range of total costs to implement the Florida nutrient criteria at 

between $135 million and $236 million annually. The Florida Department of Agriculture and 

Consumer Services, working in cooperation with The University of Florida Agricultural Resource 

Economics Department, estimated the implementation costs just for agricultural land uses at 

between $900 million and $1.6 billion annually and could result in the loss of over 14,000 jobs. 

Preliminary estimates from the Florida Department of Environmental Protection peg the 

implementation costs for urban storm water upgrades alone at nearly $2 billion annually. A 

study commissioned by a large coalition of Florida-based public and private entities estimated 

the total implementation costs at between $1 billion and $8.4 billion annually. The wide 

variability in this latter estimate is, in part, due to the uncertainty associated with not yet 

knowing the rule requirements. During EPA's rulemaking effort, the Agency did not address 

implementation expectations. However, in their cost estimates, they assumed future Agency 

and Florida rules would be issued that provide relief. While the final rule did not grant the 

relief itself, their reliance on future rulemaking allowed the publication of a low cost estimate. 

From an agricultural perspective, I can tell you without question that virtually no sector of 

Florida agriculture can comply with the final EPA nutrient criteria without the implementation 

of costly edge-of-farm water detention and treatment. Construction of these facilities takes 

land out of production and requires ongoing operation and maintenance. None of these costs 

3 
28 


81389.016

can be passed on by the producer. Few growers can afford to implement this kind of practice 

without the support of Farm Bill or state-derived cost-share program payments. 

Florida waste water utilities believe that expensive reverse osmosis technologies will have to be 

employed in order for them to comply with the requirements of their point-source discharge 

permits. These technologies are not only costly to implement and maintain, but they require 

an enormous amount of energy to operate. 

Florida is pleased that the EPA has agreed to request that the National Research Council 

convene a panel to review all of the economic studies and render an opinion on the likely costs 

of implementation. 

In closing, Florida believes that Florida is best positioned to assess the health of its waters and 

establish associated water quality criteria for their protection and restoration. We believe that 

our track record for the implementation of progressive and successful water resource 

management programs is one of the best in the country, and demonstrates the commitment 

and determination to further its comprehensive program through the development and 

implementation of state-derived numeric nutrient criteria. Florida has earned the right to 

exercise the authority envisioned by the Clean Water Act to develop its own water quality 

standards and implement them through an EPA approved and predictable process governed by 

existing state law. Thank you. 

4 
29 

Mr. STEARNS. I thank the gentleman. 

And I will start off with my questionings. Ms. Keyes Fleming, I 

think all of us in this room and all in the State of Florida obviously 

are very concerned about the water quality in our State. We find 

areas that are satisfactory and others that we would like to see improved, and I think the State has been active in trying to address 

these areas. 

In my opening statement, I mentioned Nancy Stoner, the Acting 

Assistant Administrator for Water, to EPA’s regional administrators. She said, ‘‘States need room to innovate, respond to local 

water quality needs. So a one-size-fits-all solution to nitrogen and 

phosphorus pollution is neither desirable nor necessary.’’ 

Do you agree with that? 

Ms. KEYES FLEMING. In terms of it making sure that it is not a 

one-size-fits-all approach, absolutely. 

Mr. STEARNS. OK. 

Ms. KEYES FLEMING. And in doing the rule, we made sure that 

we diversified based on the variable regional specifications within 

the State. We divided it into five regions. We looked at the different types of lakes, divided that into three subsections. And then, 

of course, we provided for the opportunity for even more flexibility 

in looking at places on a site-by-site specific approach. 

Mr. STEARNS. Now I gave also in my opening statement the 

Cross Bayou within the Tampa Bay, where the Florida Fish and 

Wildlife Conservation said it is pristine. Yet, at the same time, the 

EPA standard shows that they want to regulate it. 

Does that seem like a conflict to you? That perhaps the State indicated it is pristine, yet EPA wants to come down and regulate it? 

Ms. KEYES FLEMING. Well, I think that goes to the question of 

whether lakes or other water bodies that are deemed to be healthy 

are going to somehow be labeled as impaired under this rule. And 

in terms of our looking at the science, we do not believe that that 

is going to be the case. 

I’ve not looked at the Tampa Bay, Tampa situation specifically, 

but I can do so and make sure we get back to you. 

Mr. STEARNS. And I could give you some other examples just like 

that, where they are considered pristine, natural. Yet EPA’s regulations indicate that we are going to have to go in and do a lot of 

work to clean it up when there is no cleanups necessary. 

Would you agree that it is a good idea for the EPA to work with 

stakeholders in the State when its economic impact is large, or not? 

Ms. KEYES FLEMING. Well, I think it’s always best to work with 

the State. And actually, my office has been working consistently 

with the new DEP secretary and members of his staff on this particular issue and many others. 

Mr. STEARNS. Do you think economic impact should have an impact on your decision, or should it be just based upon the regulations? 

Ms. KEYES FLEMING. Well, the Clean Water Act, as it was written by Congress, does not allow EPA to take into consideration the 

economic impact when setting the standard. Those discussions 

occur when we do talk about implementation, and that’s one of the 

reasons why we’ve spent so much time looking at the cost estimates of our rule and offered to have a rule or, at the suggestion 

30 

of Senator Nelson, offered to have our rule evaluated by the National Resource Council to make sure that as we look at our cost 

estimates, the underlying assumptions of those estimates are reviewed and evaluated to see if they’re accurate. 

Mr. STEARNS. Would you agree that local and State environmental authorities are perhaps better positioned to make a decision 

than perhaps coming from Washington, based upon the Clean 

Water Act? I mean, I know you have this mandate on the Federal 

level. But obviously, the regulation was passed without perhaps insight that some of the local stakeholders or the State environmental agencies know. 

So, wouldn’t you agree that some kind of latitude and forbearance should be in place so that they could help you make your decisions? 

Ms. KEYES FLEMING. Well, again, we’ve had ongoing discussions 

with Florida, and we do—we at EPA do believe that the State is 

to be the lead in these types of things. And actually, back in 2009, 

under the Bush administration, when the determination was first 

made about the necessity for numeric nutrients, the officials, Florida officials at that point in time agreed that more needed to be 

done and actually said so in several press statements. 

They were on the track to implement their own rules and, for 

whatever reason, decided to get off of that track. Their doing so 

made it necessary for we at EPA to continue to make sure that the 

rule was put in place to be as protective as possible, as required 

under the Clean Water Act. 

Mr. STEARNS. You heard Mr. Budell indicate that it could be an 

economic impact of $1 billion to $8 billion? I think those were your 

words? Is that right? 

Mr. BUDELL. I said $900 million to $1.6 billion just for agriculture. 

Mr. STEARNS. Just for agriculture, you said. And I have seen surveys that it could impact the loss of jobs up to 15,000 in the State. 

Do any of those figures have an impact on your decision process? 

Ms. KEYES FLEMING. Well, I think we need to understand where 

the figures are coming from. The assumptions that EPA put forth, 

there are differing assumptions. 

First of all, in the types of treatment that is required, EPA has 

consistently said that we would not require reverse osmosis or 

microfiltration. Looking at the scope of facilities that would be affected by this rule, there are over 2,200, but only one-tenth of that 

actually have permits. And then a fewer percentage would actually 

be required to make any possible changes under this rule. 

So, yes, we do look at or did our due diligence to make sure we 

recognize the good work that is already going on in the State by 

a lot of folks, whether it’s at DEP or the other local governments, 

and looked at incremental cost as we went forward. 

Mr. STEARNS. Mr. Budell, I will just close with a last question. 

From your perspective, and perhaps what you have heard Ms. 

Keyes Fleming talk about, have the EPA’s actions to impose Federal standards helped or harmed the State’s effort to improve water 

quality, and have EPA’s efforts helped or harmed the State’s economic priorities? 

31 

Mr. BUDELL. I think that the efforts that EPA undertook were 

litigation driven. 

Mr. STEARNS. The consent agreement? 

Mr. BUDELL. And that—correct. 

Mr. STEARNS. Yes. 

Mr. BUDELL. And I think it was litigation that got us to the point 

where they determined that we needed to develop numeric criteria 

within a year in January of 2009. It was litigation again, the same 

litigation that drove them while we were in the process, working 

cooperatively with EPA on their time schedule to develop the criteria—Florida to take the lead to develop the criteria—they entered 

into a settlement agreement in August of 2009 without consulting 

the State, without discussing any of the elements of that settlement agreement with the State. 

They entered into that settlement agreement and in that agreement were agreeing to timelines to develop their own criteria and 

proposed them in January of 2010. That is why Florida stopped development, because of the settlement agreement where EPA said, 

‘‘We are taking over. We are going to propose criteria in January 

of 2010.’’ 

That is, I don’t think, the kind of cooperation that Florida DEP 

or other stakeholders expected. 

Mr. STEARNS. OK. My time has expired. 

And I recognize the gentlelady from Florida, Corrine Brown. 

Ms. BROWN. What about the other—— 

Mr. STEARNS. Oh, I think you are right. I go to Mr. Barton next. 

That is right. He is on the committee. So I recognize you for 5 minutes. 

Mr. BARTON. Well, thank you, Mr. Chairman. 

Let me compliment Congressman Bilirakis and Mr. Ross. I didn’t 

really say much about them in my brief opening statement. But 

Congressman Bilirakis’s father was a member of this committee, a 

member of this subcommittee, and his mother is the best cook not 

only in the Florida delegation, but as far as I know, the entire congressional delegation. 

And Mr. Ross is not only a rising star in the Congress, but he 

is my starting designated hitter on the Republican congressional 

baseball team. 

[Laughter.] 

Mr. BARTON. And we expect great things from him in the years 

ahead. 

Mr. ROSS. Yes, sir. No pressure. 

Mr. BARTON. Again, Mrs. Fleming—or Ms. Fleming, I want to 

thank you for showing up. The Region 6 administrator has not yet 

given us the courtesy of showing up at one of these hearings in 

Texas for air quality. 

And I want to apologize in advance, Mr. Chairman. What little 

expertise I have is on air issues, not so much on water issues. So 

I am going to ask some kind of basic questions that will help educate me and, hopefully, educate the committee as well. 

I know there was a lawsuit that required—that led to the reversal of the decision to accept the standards that had been agreed 

upon with the State. But what was the fact-based issue there that 

32 

caused the EPA to reverse its approval and go to disapproval and 

make the decision to set its own standards? 

Ms. KEYES FLEMING. Well, Congressman, I think, first of all, one 

of the things with respect to the lawsuit, I think we can all agree 

the great treasure that we have here in Florida with respect to 

many of the parks that you talked about your family enjoying, certainly the water that so many come to enjoy, whether it’s for fishing or boating or those types of things. EPA’s obligation is under 

the Clean Water Act to make sure that that water is healthy, safe, 

whether it’s for drinking water or to be able to enjoy it. 

And so, in looking at whether the work that had currently 

been—was going on in Florida at the time, with respect to the requirements under the Clean Water Act, were they meeting the 

needs of the act? And—— 

Mr. BARTON. Well, I only have 5 minutes. Something made EPA 

change its mind. What was that? You had approved the plan—not 

you personally, but the EPA and the State—and then it got disapproved. 

It was disapproved as a consequence of a lawsuit that was 

brought. The people that brought the lawsuit are going to be able 

to testify on it on another panel later. But what was the fact-based 

issue that moved your agency from approval to disapproval? 

Ms. KEYES FLEMING. As we looked at how far the narrative approach was getting, it was not cleaning the water fast enough. 

Mr. BARTON. Fast enough. And Mr. Budell, I know you don’t represent the entire State. You represent this Florida Department of 

Agriculture. But is what Ms. Fleming just said, is that your assessment? It was a question not necessarily of the standard, but of the 

timing, of implementation? 

Mr. BUDELL. I think we were working under the understanding 

that we were on a timeline that EPA had approved. We had committed to submit numeric criteria to them by January of 2010, and 

we were on a line to do that. We were preparing to submit criteria 

to our Environmental Regulation Commission in September of 2009 

to try to finalize those criteria so they could be submitted to EPA 

in January of 2010, when they entered the settlement agreement 

and agreed to take over the process. 

Mr. BARTON. But we can agree, for purposes of this hearing, that 

the disapproval was a result in both—not that you are on different 

sides, but representing EPA and representing the State, that it was 

a timing issue, not a need to set the standard. Is that a fair assessment? 

Ms. KEYES FLEMING. Well, I think timing was one of the main 

issues. The timing that was laid out in the consent decree mirrored 

what had been discussed between the State and the EPA previously. And it was the State that decided not to continue and 

present to their commission in accordance with that timeline. 

When the State failed to act, EPA then had to go forward and initiate its own rule. 

Mr. BARTON. Again, I am not a water expert. But we keep talking about these numeric standards. In your testimony, Mr. Budell, 

you talked about water flow and the clarity of the water and the 

temperature in the water and at least gave me the impression that 

33 

one numeric standard is not appropriate for different types of 

water. 

Has the EPA taken the position that there should be a one-sizefits-all standard, numeric standard? 

Mr. BUDELL. No. No, they have regions. As the regional administrator pointed out, they have broken the State up into regions. But 

for all flowing waters within a region, they have established one nitrogen number and one phosphorus number. 

Mr. BARTON. And you think that is inappropriate? 

Mr. BUDELL. We believe that that is even too gross of a wand to 

use. There is a lot of variability between streams, even within 

these ecoregions that they set up. 

Mr. BARTON. Do you agree with that, Ms. Fleming, what he just 

said? 

Ms. KEYES FLEMING. I think that’s one of the reasons why the 

rule also allows for the site-specific alternative criteria, where, if 

there is an environmental reason for a difference from the numbers 

that EPA has set, that particular—anybody can bring forth the scientific basis for deviating from the numbers that we set. 

Mr. BARTON. OK. My time has expired. But I want to give him 

a chance to—are we going to get a second round before we go? 

Mr. BUDELL. If I could? 

Mr. BARTON. Yes, sir. 

Mr. BUDELL. I’d just like to respond to that. The only provision 

for site-specific numeric criteria for nutrients is now in the Florida 

law, is in the rule that they promulgated for Florida. There is no 

specifics in there as to what you have to do to get it. There is no 

timeline. There is no—you have no idea how much money and how 

much data has to be collected to jump over the hurdle to get EPA 

to approve a site-specific alternative criteria. It’s not been tested 

before for nutrients ever. 

There’s a lot of uncertainty that you’d ever be successful in getting such a site-specific alternative criteria. We’ve developed dozens 

of TMDLs in Florida that have been approved by EPA. 

Mr. BARTON. What is a TMDL? 

Mr. BUDELL. Total maximum daily load. It’s another provision of 

the Clean Water Act that requires States to identify protection and 

restoration strategies for water bodies that have already reached 

impairment. 

We’ve had dozens of these TMDLs developed and approved by 

EPA. We requested or had many discussions with EPA about approving those TMDLs as site-specific alternative criteria, but there 

has not been any resolution to that yet. We’ve done the data on a 

site-specific basis to identify a water body’s specific nitrogen or 

phosphorus standard, and we’ve not yet been able to get those approved as site-specific alternative criteria. 

Mr. BARTON. I will ask my other questions second round. 

Mr. STEARNS. Sure. By unanimous consent, we are allowing people who are not on the committee to ask questions. And with that, 

I recognize the gentlelady from Florida, Ms. Brown. 

Ms. BROWN. Thank you. 

Ms. Keyes Fleming, thank you for coming. 

Let me just take a minute to frame this because I think a perfect 

example of the problem is the Florida Everglades. I mean, it is a 

34 

perfect example of what could happen when natural resources 

aren’t protected from encroachment and pollution. 

Each year, the Federal, State, and local government pays millions of dollars to restore the Everglades, money that could be used 

for dredging our ports, enhancing recreational waterways, or improving sewer and water infrastructure. So that is the problem. 

However, let me just also mention that the Riverkeeper Program 

was my bill. So I am very interested in how we can work through 

this issue. 

Would you elaborate for us what are some of the things that you 

recommend that we could do, Ms. Fleming, to move the process forward, being fair to the local communities that have spent—let’s 

say, in Duval County, I know I met with all of the stakeholders in 

all of the regions, Gainesville—and I want to know what we can 

do because they are spending millions and millions of dollars. And 

some communities have already implemented programs and have 

programs in place, but I don’t know whether it has been approved 

by EPA. 

Ms. KEYES FLEMING. Well, at EPA, we’ve been having numerous 

meetings with stakeholders. We’ve had webinars. We’ve met with 

various local city agencies, trying to understand what their concerns are and then also address them. 

And what we found is in situations where there is a TMDL, 

we’ve had discussions about whether that would apply for a SSAC. 

And one of the things that EPA has agreed to do, recognizing the 

good work and resources that have gone into creating these 

TMDLs, is say that if that TMDL is scientifically protective of the 

water body, then it can be used to set the permit limits for the 

NPDES permit. 

And so, it’s those types of things, of recognizing good work that 

has already been done and making sure that we’re not having people go back to the drawing board in every circumstance because we 

do recognize the increased cost that that could involve. We do have 

guidelines with respect to site-specific alternative criteria that has 

gone out for review and comment. 

So we are working. We want to be able to hear from folks about 

what their concerns are so we can address them. Rather than continuing to discuss this in an abstract, let’s look at the individual 

water bodies and come to some solutions. 

Ms. BROWN. What about the study that you implemented or Senator Nelson has recommended that you all implement this study? 

So it is going to be due in February. What are you looking for, and 

how can that help us as far as we implement the rule? 

Ms. KEYES FLEMING. Well, I think one of the things that the 

study will do will look at the basis upon which EPA used to set its 

numbers. Again, we talked about us not requiring reverse osmosis 

or some of the other more costly things. We talked about how we 

set aside certain waters where we did not have good information. 

And so, we narrowed the scope as much as we could in terms of 

the applicability of this rule going forward in order to have accurate cost figures going forward. 

And so, the study will look to see whether those assumptions 

were the correct ones to make. The study, however, will not change 

the fact that the determination was made that numeric standards 

35 

provide more of a target, a clear idea of where businesses and communities need to meet with respect to their water quality standards and give them that 15-month delayed effective date in order 

to plan appropriately. 

I think the other thing that’s important to point out is that even 

after the effective date, implementation will occur on the regular 

permitting schedule or TMDL review schedule. So it’s not as 

though everybody will be in violation on March 7th, let’s say. It’ll 

come up through the normal course of review by the State. 

And so, that will give us more time to talk with stakeholders and 

answer their questions as well. 

Ms. BROWN. So the actual date may not be the 15 months? 

Ms. KEYES FLEMING. Well, it depends on whatever the particular 

entity’s review cycle is. So the State will be reviewing things, pursuant to the pre-set review cycle for either that permit or that 

TMDL. 

Ms. BROWN. How long have you been in this position? I know you 

weren’t in when we made this element. 

Ms. KEYES FLEMING. Since September 3rd of 2010 at noon. 

Ms. BROWN. OK. 

[Laughter.] 

Ms. BROWN. So you were not involved in—well, it was the Bush 

administration that—— 

Ms. KEYES FLEMING. Correct. It was the Bush administration 

that made the initial determination of need for numeric criteria. 

Ms. BROWN. Do you know why or what we can do as we move 

forward, why that the talks were stopped and we entered into 

agreement and the State was not a part of it? 

Ms. KEYES FLEMING. Actually, I do not know. I know, in reviewing the documentation, that the then-DEP secretary had agreed 

that more needed to be done in Florida, even though they had been 

doing great stuff. They certainly are working as a leader. But even 

leaders, as they’re reaching a particular target, you don’t slow 

down the momentum and delay reaching the target. 

The target here is to make sure that we have clean water that 

can support the great tourism industry and other economies here 

in the State. And so, we need to keep moving forward to make sure 

we provide the greatest protections possible. 

Ms. BROWN. OK. I know my time is up. But did you want to respond in any way, sir? 

Mr. BUDELL. Well, I would only repeat myself. I believe we were 

aggressively moving forward according to an agreed schedule, that 

had been agreed to with EPA, when they made the determination 

in January of 2009. We were working on that schedule, on their 

timeline, when they entered into a settlement agreement twothirds of the way through that process. 

Ms. BROWN. OK. And the State was not involved in that? 

Mr. BUDELL. Correct. We were not party to the settlement agreement at all. 

Ms. BROWN. Thank you. Yield back. 

Mr. STEARNS. Thank the gentlelady. 

And Mr. Bilirakis is recognized for 5 minutes. 

Mr. BILIRAKIS. Thank you. Thank you very much, Mr. Chairman. 

And I appreciate the witnesses coming to testify. 

36 

It is worth repeating. I know that this statement was already— 

Mr. Budell made this statement, and also you, Mr. Chairman. 

Thanks for holding the hearing, by the way, and including me and 

Mr. Ross. 

A study by the Florida Department of Agriculture and Consumer 

Services concludes that Florida’s agriculture community alone, 

alone, will lose 14,545 full-time and part-time jobs and lose at least 

$1.1 billion annually. I want you to name specifically, if you can, 

Ms. Fleming, the stakeholders that you have met with and about 

how to keep Florida’s waters clean in a cost-effective manner, if 

you have had that input? Specifically, please name these stakeholders. 

Ms. KEYES FLEMING. Some of the stakeholders include folks from 

Palm Beach County, include folks on the Fenholloway and Econfina 

Rivers. They include folks from the City of Jacksonville, folks with 

respect to the St. Johns River. I have a list that we can actually 

provide for you, and that’s in addition to the five webinars that 

we’ve done. 

With respect to ag interests, we met with them, additionally, last 

November when we first rolled out the rule, to hear their concerns. 

I’ve had personal conversations with Ag Commissioner Putnam 

about wanting to come down and talk with him about this issue in 

more depth. 

And I think it’s important to point out, though, that although the 

numbers that you’re citing, one of the things is EPA does not regulate the ag community. That is left purely to the States, and they 

have been doing so based on a BMP schedule and things that allow 

for improvement over time. 

To the extent that EPA does regulate CAFOs and those types of 

things, it’s a very small circle of facilities that would be affected by 

this particular rule. But again, I need to stress that we are not 

looking for edge of farm changes to the ag community or ag businesses in response to this rule. That would be something that 

would be left completely up to the State because EPA does not 

have the authority to go in and regulate those entities, except for 

the CAFOs that are covered by the Clean Water Act. 

Mr. BILIRAKIS. Mr. Budell, you would like to respond? 

Mr. BUDELL. Only that I believe that the expectation will be that 

once these criteria are finalized, that there will be an expectation 

that agriculture will have to comply. I think EPA has demonstrated in the Chesapeake Bay, and even more recently with a 

memo that went out from Nancy Stoner talking about the certainty 

document, that talked about the development of programs that 

would be led by the State but would certainly be coordinated by 

EPA to develop programs to require programs to control agricultural nonpoint source stormwater. 

They’ve done it in the Chesapeake Bay already by mandating 

that the States include bona fide programs to control agricultural 

stormwater as part of their watershed improvement plans. So while 

the Clean Water Act exempts agricultural stormwater and return 

flow from permitting, it doesn’t specifically say agriculture is not 

regulated or can’t be regulated. 

And I think we’re seeing examples of how EPA is exerting influence and beginning to get its arms around how to regulate agriculVerDate Aug 31 2005 09:25 Jul 16, 2013 Jkt 037690 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 F:\112-08~1\112-81~1 WAYNE
37 

tural stormwater indirectly, if not directly, from the Clean Water 

Act. 

Mr. BILIRAKIS. Thank you very much. 

I yield back the rest of my time. I have a couple of questions in 

the second round. 

Thank you, Mr. Chairman. 

Mr. STEARNS. Sure. Mr. Ross, you are recognized for 5 minutes. 

Mr. ROSS. Thank you, Mr. Chairman. And again, Mr. Chairman, 

I wish to thank you and my colleagues for being here and allowing 

for this hearing to take place. 

As a native of Florida, a boat owner and an avid outdoorsman, 

I have a great concern about the conservation of Florida’s natural 

resources and, of course, including their water. Also representing 

a district that is predominantly agriculture, I wish to also note that 

not only is tourism important to this State, but the one area, the 

one part of our economy that has continued to remain stable 

throughout all these recessionary times is the agricultural industry. 

And the economic impact that the agricultural industry will face 

because of this proposed rule is absolutely devastating. Mr. Budell, 

you indicated in your opening statement, you have been doing this 

for 26 years on behalf of the State of Florida. 

Mr. BUDELL. That’s correct. 

Mr. ROSS. And you have seen the history in the last 26 years, 

as I have, in water quality improvement in the State of Florida by 

the State of Florida exercising their best science practices in order 

to make that happen, haven’t you? 

Mr. BUDELL. Yes, I have. 

Mr. ROSS. And interestingly, there has been, under the Clean 

Water Act, what is known as ‘‘narrative nutrient water criteria,’’ I 

guess. And that has been a standard or an accepted practice that 

has been used not only in Florida, but all other States. Is that correct? 

Mr. BUDELL. That’s correct. 

Mr. ROSS. And it is this first time that we now see this numeric 

nutrient water criteria come about? In other words, there is no 

other State that this applies to, is there? 

Mr. BUDELL. There is no other State that I’m aware of where 

EPA has come in and proposed numeric criteria for another State. 

There are States that have developed some numeric criteria on 

their own. 

Mr. ROSS. And in fact, wasn’t it the EPA that then, because of 

their involvement, require that the State of Florida develop their 

own numeric nutrient water criteria, which you all were working 

on? 

Mr. BUDELL. Correct. 

Mr. ROSS. And Ms. Keyes Fleming, as I understand it, in 2007, 

the EPA had no problem with the plan initially proposed by the 

DEP in the State of Florida. Is that correct? 

Ms. KEYES FLEMING. That’s correct. That’s why we had a similar 

timeline included into the consent decree. 

Mr. ROSS. And that consent decree was a result of litigation of 

which the State of Florida was not a party. Is that correct? 

Ms. KEYES FLEMING. That is correct. 

38 

Mr. ROSS. And in fact, the consent decree, they were not a party 

to that either, were they? 

Ms. KEYES FLEMING. Well, obviously, they were affected by it. 

It’s something—— 

Mr. ROSS. They were a victim of it, I guess, would be a better 

way to put it. 

Ms. KEYES FLEMING. Well, that’s not a term that we would use. 

But—— 

Mr. ROSS. Well, as a native of the State of Florida, I would use 

that. Now one of the things that we talk about, economic impact, 

and you mentioned the cost of the inland rule. What exactly do you 

mean by that? What is the cost of the inland rule that you talked 

about? 

Ms. KEYES FLEMING. We looked at what the incremental cost 

would be, having to add new water bodies to the impaired list as 

a result of new designations under the total phosphorus and total 

nitrogen requirements. 

Mr. ROSS. And have you come up with at least empirically what 

that cost in the aggregate it may be? 

Ms. KEYES FLEMING. Yes. We estimated anywhere around I 

think it’s $135 million to $200 million per year. 

Mr. ROSS. And that is the cost that would have to be paid by 

those that need to comply with the numeric nutrient criteria? 

Ms. KEYES FLEMING. Well, and that works out to be about 11 

cents or so per household per day for clean water. We look at this 

as an investment. It’s much cheaper to be able to invest and prevent some of the adverse health impacts that we discussed about 

in my opening statement, as opposed to having these communities 

or the stakeholders pay for costly cleanups on the back end. 

Mr. ROSS. Now your administration, of course, has made as a priority I think of every elected official in Washington right now ‘‘jobs, 

jobs, jobs.’’ And it appears as though the implementation of this numeric nutrient water criteria may cost, according to the Department of Agriculture, over 14,000 jobs. Are you all prepared to have 

that impact if this is implemented? 

Ms. KEYES FLEMING. We don’t believe that that impact will 

occur. But at the other end, you also need to think about the impact of not having the rule and the adverse impact that would have 

on the tourism jobs that are here in the State. 

Mr. ROSS. Exactly. But did not the State of Florida adopt a plan 

that was accepted by the EPA that would have prevented that because they were in the process of doing that when they were essentially stopped because of a consent decree? 

Ms. KEYES FLEMING. Florida actually made the decision not to 

present their rule to their own regulatory commission. 

Mr. ROSS. They made their decision based on the actions of the 

EPA in entering a consent decree. 

Ms. KEYES FLEMING. Whatever the reason, they did not move the 

ball forward in order to protect water quality. 

Mr. ROSS. And as you stated in your testimony, you said that if 

Florida adopts a numeric nutrient water criteria that is acceptable 

to you, then you will back off on the implementation of this rule. 

Is that correct? 

Ms. KEYES FLEMING. Yes. As long as it—— 

39 

Mr. ROSS. Then what is wrong with the one adopted in 2007? 

Ms. KEYES FLEMING. It’s not in place currently. 

Mr. ROSS. That is the only thing? That is the only thing. 

Ms. KEYES FLEMING. Well, and actually, as you look at—— 

Mr. ROSS. In other words, they have been going on for 2 1/2 

years, working on doing their science, getting ready to implement 

this. They stop because of a consent decree, and now you say, ‘‘Ah, 

you stopped. We are going to have to do our own thing.’’ Come on. 

Ms. KEYES FLEMING. No. Actually, as you look at where we are 

today, we’re glad that the State of Florida has decided to recommence its rulemaking. We have said consistently—— 

Mr. ROSS. Had they not filed a petition asking you all to hold off, 

what would have happened then? You would have implemented it? 

Ms. KEYES FLEMING. Well, I don’t know that speculating about 

what would have been is the best way to use our time. The fact 

is under the current situation Florida is working to implement a 

rule, and we are working with them diligently on a weekly basis, 

answering questions and things, as needed. 

And so, as they continue to move forward, we have agreed to rescind whatever corresponding Federal promulgation there is. And 

as they continue to move, look at adjusting the schedules within 

the consent decree. 

Mr. ROSS. I see my time is up. I yield back, Mr. Chairman. 

Mr. STEARNS. I thank the gentleman. 

We are going to do a second round. So if you would be so kind 

and be patient with us. 

Mr. BUDELL. Mr. Ross’s line of questioning, would you care to 

comment on what he was saying, and particularly on the fact that 

Florida has to make certain decisions? 

Mr. BUDELL. Well, Florida made a conscious decision to not move 

forward with the development of their criteria upon learning that 

EPA was going to be promulgating their own. That was a policy decision made from a standpoint of why would we continue to pursue 

the development of numeric criteria in Florida knowing that EPA 

was going to develop their own? 

And we would have come out potentially—in all likelihood, we 

would have come out with different numbers, and there was no 

real—we didn’t think any benefit of moving forward with our effort, 

knowing that EPA was going to develop their own and were obligated by a settlement agreement to do so. So we backed off and 

said, OK, you entered into the settlement agreement. You develop 

a criteria, and you propose them. 

So, I mean, that was the rationale for why we didn’t move the 

ball forward supposedly is because they entered a settlement agreement. We were prepared to move the ball forward and would have 

done so on the timeline agreed to in the original determination. 

Mr. STEARNS. Ms. Keyes Fleming, would you agree that perhaps 

the EPA standards are not well suited to the conditions and circumstances that are unique to Florida waterways? Do you think 

that is true? 

Ms. KEYES FLEMING. No, I would not agree with that. 

Mr. STEARNS. OK. All right. 

Ms. KEYES FLEMING. I think what we’ve done is try to—— 

40 

Mr. STEARNS. OK. Yet, at the same time, you have indicated that 

EPA would give variances, forbearance because of cost, because of 

implementation. Isn’t that true? 

Ms. KEYES FLEMING. With respect—if presented with site-specific 

reasons. 

Mr. STEARNS. Right. So these site-specific cases would allow you 

to go back and give, shall we say, flexibility or forbearance, particularly if it was dealing with cost. Is that true? 

Ms. KEYES FLEMING. The rule has always allowed for that flexibility. 

Mr. STEARNS. OK. So if the rule allows for that, wouldn’t that 

also imply that the decisions you are making perhaps are faulty? 

Ms. KEYES FLEMING. No, not at all. 

Mr. STEARNS. OK. Would the decisions that you are imposing on 

Florida be of such a stringent nature that they don’t take into account the, shall we say, peculiarities of Florida and its waterways? 

I guess I am trying to get you to admit that Florida has particular 

needs, particularly with numeric nutrient water quality that perhaps are singular to Florida. Would you say yes on that? 

Ms. KEYES FLEMING. Well, as a former prosecutor, getting me to 

admit things, Mr. Chairman, might go against—— 

[Laughter.] 

Mr. STEARNS. How about if I said you have got to answer—what 

if I said you have to answer yes or no? 

[Laughter.] 

Ms. KEYES FLEMING. I’d be looking for a judge then, Your Honor, 

to allow me to finish the question. I think we all agree that Florida 

has a unique topography, unique jewel in its water sources. And 

what we did was to help protect that so, again, we can protect the 

economies that rely on that water source, whether it’s fishing and 

boating, as Congressman Ross had mentioned, or swimming or enjoying some of the parks that rely on that water. 

Mr. STEARNS. OK. Now let’s say that Florida comes up and they 

specifically said we need a variance, we need flexibility, and you 

grant it. Don’t you think the environmental groups are going to sue 

because of that? What is going to happen there, in your opinion? 

Ms. KEYES FLEMING. Well, I don’t have a crystal ball. I think the 

bottom line is let’s make sure we look at ways to have the most 

protective water quality standards possible, given the variability 

throughout the State. 

Mr. STEARNS. Do you think there is enough guidelines that you 

can provide so that Florida feels comfortable following your guidelines? 

Ms. KEYES FLEMING. I think we’ve worked hard to institute 

guidelines and seek public opinion, including the 22,000 comments 

that we received prior to the rule, to come up with something that 

would best—try best to address a lot of the communities’ concerns. 

Mr. STEARNS. I think a real question we all have, who are these 

people that are going to give the variance? Do you know their 

names? Who is actually going to be making the decision on these 

variances? 

Ms. KEYES FLEMING. Well, I think it would go through the normal variance process, whether that is applying through the State 

41 

originally. EPA, using its authority under the Clean Water Act, to 

either approve or make suggestions. 

Mr. STEARNS. OK. So under that process, I come forward to this 

particular agency. Is there an agency that you can tell me specifically that I would go to for these variances? I mean, you sort of alluded to it. But is there a specific name? 

Ms. KEYES FLEMING. Well, the variances, it’s my understanding, 

are governed by DEP, the Department of Environmental Protection. 

Mr. STEARNS. OK. And is there appeal process on this? 

Ms. KEYES FLEMING. I believe that—— 

Mr. STEARNS. For the stakeholders? 

Ms. KEYES FLEMING. For the stakeholders? 

Mr. STEARNS. Yes, or for the State of Florida, is there appeal 

process? 

Ms. KEYES FLEMING. Well, I think—— 

Mr. STEARNS. I guess you don’t know. That is OK. 

Mr. Budell, are there any comments you would like to make off 

of my questioning? 

Mr. BUDELL. If the State were to propose a variance, EPA would 

ultimately have to approve that variance. 

Mr. STEARNS. Right. 

Mr. BUDELL. If there is an appeal process if we were to deny a 

variance. But even if we were to develop one and submit it for approval, there would also be a point of entry for any party affected 

by that variance to challenge it. 

Mr. STEARNS. And so, would that allow the environmental groups 

to come back into the fray and sue again? 

Mr. BUDELL. Absolutely. 

Mr. STEARNS. So, in your opinion, do you think that is going to 

happen? 

Mr. BUDELL. I stated it publicly at the National Academy of 

Science meeting last week. I don’t think you’ll ever get a SSAC or 

a variance in Florida. 

Mr. STEARNS. OK. 

Mr. BUDELL. I think it’s nice to say that it’s there and available, 

but there are too many points of entry. You’d never achieve getting 

a site-specific alternative criteria. 

Mr. STEARNS. And that is because of the consent decree, because 

of the Clean Air Act, because of the threat of environmental suits, 

or why is that? Because that is pretty categorical what you are saying. 

Mr. BUDELL. Well, that’s just my belief that it’s so litigious that 

I don’t think you’d ever get one approved. 

Mr. STEARNS. So the EPA would just not do it because it is litigious? 

Mr. BUDELL. They may try. But the thing is, is that if Florida— 

as soon as Florida were to propose a SSAC to EPA for approval, 

there is a point of entry. 

Mr. STEARNS. There is a point of entry? 

Mr. BUDELL. Under our Administrative Procedures Act, there is 

a point of entry for affected parties to challenge that decision. 

Mr. STEARNS. Uh-huh. OK. Do you agree with that, Ms. Keyes 

Fleming? 

42 

Ms. KEYES FLEMING. Well, I don’t know that challenging something is necessarily a bad thing. I think what we’re trying to do is 

make sure we arrive at the best protective result possible. 

Mr. STEARNS. But he is saying basically there is going to be no 

variances because of it. 

Ms. KEYES FLEMING. Well, certainly variances exist today, and 

all of the procedures that you just talked about have been in existence prior to this. So the fact that current variances exist for different things suggest—— 

Mr. STEARNS. You are saying variances already exist. So how can 

you say that categorically? 

Ms. KEYES FLEMING. In different arenas, not just in numeric nutrients. 

Mr. BUDELL. Not for nutrients. 

Mr. STEARNS. Not for phosphorus and nitrogen. OK. 

Mr. BUDELL. I’m not aware of any variances or SSACs for nutrients. 

Mr. STEARNS. OK. My time is up. 

Ms. Brown? 

Ms. BROWN. Thank you. 

Sir, let me ask you a question. I understand this process started 

in 2002, but it was 6 years or 2009, and the State had not done 

anything as far as the rule process is concerned. Why did it take 

6 years? 

Mr. BUDELL. The State had worked, we had a technical advisory 

committee that had been convened early in the 2000s, that had met 

multiple times, trying to develop the necessary science methodology 

and proposals to deal with these notoriously difficult issues to deal 

with. 

As we mentioned, nitrogen and phosphorus are naturally occurring in the environment. Trying to determine when too much 

human-induced nitrogen is present is hard. And there are no easy 

answers. 

Florida, I believe, was working as aggressively as any other State 

in the country has ever worked, putting more time and effort into 

trying to deal with the issue of nutrient management than probably any other State. We have a lot of variety of water bodies, more 

varied perhaps than any other State. Our climate is different than 

most other States. 

Our coastal resources are so varied and multiple that trying to 

arrive at a conclusion to deal with—to more effectively deal with 

nitrogen is very, very difficult. And as I said, it took 7 or 8 years 

of that technical advisory committee to meet to get us to the point 

where we were. You know, not—— 

Ms. BROWN. You do understand that that is a problem? I mean, 

that is why we are here. 

Mr. BUDELL. I completely agree that nitrogen management and 

phosphorus management is a problem. Yes, there’s no question 

about that. 

Ms. BROWN. Well, the other part of it is that the State hadn’t 

acted. And so, therefore—— 

Mr. BUDELL. But the State was constantly working under agreements that had been negotiated with EPA. We had had plans and 

43 

strategies that we had submitted, development plans, timelines for 

the development of these plans that had all been approved by EPA. 

Ms. BROWN. You mentioned in your comments about the Apopka 

River that at one time it was dead, and it is coming back because 

of the work that has been done. 

Mr. BUDELL. Correct. Lake Apopka. 

Ms. BROWN. So you do acknowledge that it is a problem in Florida? 

Mr. BUDELL. Absolutely. I acknowledge that nitrogen and phosphorus management nationwide, worldwide is a problem and that 

we’re past arguing about whether or not it’s a problem. 

Ms. BROWN. But the answer, I guess, is what are we going to do 

about it? 

Mr. BUDELL. That’s correct. 

Ms. BROWN. And how we can do it in such a manner that the 

science there. 

Mr. BUDELL. That’s correct. 

Ms. BROWN. And that we take in jobs and how we move forward. 

Do we all agree with that? 

Mr. BUDELL. Yes. 

Ms. BROWN. Ms. Fleming, I understand that you all have gotten 

over 22,000 comments. Can you give us an update on the nature 

of it and whether it is supportive as to what EPA is trying to do? 

Ms. KEYES FLEMING. Absolutely. Overwhelmingly the comments 

supported what we were trying to do. And as Mr. Budell had just 

indicated, we all recognize that there is a problem and something 

needs to be done to fix it. 

I think the other thing that is—we’re very close on is, in fact, the 

numbers. This is not a situation in which EPA’s science is so drastically different from the State’s. We may be slightly off, but we use 

the State’s database in arriving at our scientific numbers. 

And so, the question does become how do we move things forward? And we at EPA looked at the most cost-effective way to do 

that. We’ve built in flexibility. This is not a one-size-fits-all rule. 

We’ve narrowed the scope as best we can in terms of who the 

rule applies to. And so, we believe, again, that the study will show 

that our assumptions are correct ones in going forward. 

Ms. BROWN. Well, I mean, the question, the discussion was how 

can we move forward, indicating that we talked about suits, that 

the environmental groups may sue. Well, the community or I guess 

the business community or certain stakeholders are suing. 

So we are suing. I mean, that is just a part of what we do every 

day. The question is how we move forward. 

Ms. KEYES FLEMING. What it’s going to take is all of us getting 

in a room and talking about it, and that’s what we’ve—— 

Ms. BROWN. I love that approach. 

Ms. KEYES FLEMING [continuing]. What we’ve been doing with 

DEP. The secretary and I speak regularly on these issues. 

Ms. BROWN. He is a good fellow, too. I know him. He is from 

Jacksonville. 

[Laughter.] 

Ms. KEYES FLEMING. Trying to get—and I don’t disagree at all. 

Trying to get a good understanding of what the real issues are on 

the ground, speaking with folks from the League of Cities, speaking 

44 

with folks from the agricultural community. All sectors need to be 

able to come together to really address this. 

Because this is an opportunity not only to address and solve the 

challenges here in Florida, but the issue of nutrients is something 

that’s affected all over the world. And so, if we can solve it here, 

then perhaps it could create the opportunity where we could export 

that expertise to other places as well. 

Ms. BROWN. You know, I guess you are saying Florida is kind of 

the guinea pig, and we don’t like that. But we have the best resources. I mean, we have the beautiful beaches, and we are the 

tourist destination in the world. I mean, right here we sit, numberone destination of the world for people to come. 

And so, we want to make sure we have clean water and do what 

we need to do. But it has still got to be that balanced approach so 

that we can afford to move forward. As I mentioned before, the 

community that went out of business, declared bankruptcy, was 

based on they couldn’t—you know, they had to implement certain 

things, and they couldn’t afford it. So it has to be balanced, working with all of the stakeholders. 

Ms. KEYES FLEMING. That is correct. It’s about making a cost-effective investment today to avoid having to pay higher costs for 

cleanup years from now. 

Ms. BROWN. But do you agree that the science—well, I guess I 

just want to address if it is not a procedure in place, then maybe 

this is something that we can take back to Washington so that the 

communities can have a way to ensure that their input is taken 

into consideration? 

Ms. KEYES FLEMING. Well, I would respectfully—— 

Ms. BROWN. He asked whether or not it was appeal process, and 

I don’t know that you were clear. And as an attorney and as a prosecutor, it has got to always be an appeals process. 

Ms. KEYES FLEMING. Well, and obviously, the way the process is 

set up—and perhaps I wasn’t clear, Mr. Chairman, earlier— 

variances may not exist with respect to nitrogen and phosphorus. 

But obviously, as we look at other chemical factors and things 

within our waters, there have been variances set in other areas 

here in Florida. 

And whatever process was set to get those variances put through 

still exist. And so, to simply say that no variance would come out 

of a nitrogen or phosphorus analysis I think doesn’t do service to 

the fact that the process has worked previously. 

Ms. BROWN. I thank you, Mr. Chairman. I yield back my time. 

Mr. STEARNS. I thank the gentlelady. 

Mr. Bilirakis is recognized for 5 minutes. Oh, excuse me. Mr. 

Barton, excuse me. Mr. Barton? I am sorry, Mr. Barton. 

Mr. BARTON. I am a member of the committee, Mr. Chairman. 

[Laughter.] 

Mr. BARTON. And the past chairman. I appointed you subcommittee chairman. 

[Laughter.] 

Mr. STEARNS. Deference, deference, deference. 

Mr. BARTON. But I am not from Florida. So that downgrades me, 

obviously. 

45 

In my first round of questions, I asked just some basic information that was specific to this issue locally. This round, I want to 

ask some more generic questions. 

We have air quality and water quality laws because the last 100 

years, the people and their representatives to Congress have decided that the market wasn’t working, that the market function in 

terms of air quality and water quality was dysfunctional. So we 

had to have Federal and State regulation to be sure that the public 

health was protected. 

We created the Food and Drug Administration. We created the 

Environmental Protection Agency, the Safe Drinking Water Act, 

the Clean Air Act, any number of acts. But in every case, we have 

made the Federal Government preeminent because of interstate 

commerce. And obviously, air is transportable across State lines, 

and in many cases, water is also, but not in every case. 

These laws were created before the litigious society has been developed. So when we created the Safe Drinking Water Act and the 

Clean Water Act and those, I think there was an understanding 

that various stakeholders would work cooperatively, which is not 

always the case. 

So we are now in a situation where the EPA in Florida, in all— 

in fact, has preempted the State, for whatever reason. I am not 

sure the EPA is in a better position to protect the water quality 

of Florida than the State is, but the current law gives the Federal 

Government preemptive ability. 

So my first question to each of you would be might it be time to 

review the relationship between State and Federal and perhaps use 

the 10th Amendment to give preference to States, unless there is 

a finding that the States are failing? And I will let our Region 4 

administrator answer first. 

Ms. KEYES FLEMING. Congressman Barton, I think one of the 

reasons why, you had said earlier, that we have these Federal laws 

is because of that interconnectivity. And so, whether you look at 

the water wars that are existing between Georgia, Alabama, and 

Florida or other things, regulations that occur in Georgia and Alabama do affect what happens in Florida. And I think for that reason, we need to be able to step back and have that bigger picture 

view about how to make sure that comprehensively the laws are 

still protective of the water that knows no State boundaries. 

Mr. BARTON. Mr. Budell? 

Mr. BUDELL. Well, I don’t think clarification of the issue of cooperative federalism is inappropriate. I think in this situation there 

could be clarity added to the Clean Water Act that clearly states 

that States are responsible for developing standards, and EPA has 

oversight. And it would take tremendous inaction by a State to justify EPA stepping in. 

Mr. BARTON. Well, if there is clearly an interstate issue, the Federal Government has to mitigate or mediate between Alabama and 

Florida. You can’t just say go at it, boys, and whoever has got the 

biggest State army or whatever is going to win. If we did that, 

Texas would rule the country. 

[Laughter.] 

Mr. STEARNS. California? 

46 

Mr. BARTON. But that wouldn’t—ah, we can handle California 

with one hand tied behind our back. That is not a problem. 

[Laughter.] 

Mr. BARTON. But if it is clearly within the boundary of Florida, 

you know, water issues, in many cases, it would be. Not in every 

case. I don’t see why you couldn’t reopen the Clean Water Act and 

the Safe Drinking Water Act and say unless the Federal Government can show failure, then the State should be preeminent. 

My assumption is the State cares just as much about water quality as the Federal Government, if not more so, because the State 

actually is impacted by it. 

Second question would be we have talked about these lawsuits, 

and Congresswoman Brown said that is just what we do. We sue. 

Now she didn’t mean herself. She just meant society. 

Ms. BROWN. She sues, too. 

[Laughter.] 

Mr. BARTON. She sues, too? Why could we not modify standing 

to bring these lawsuits that there is a higher level of proof required 

to sue. It is my understanding right now there is no skin in the 

game. If an environmental group or anybody, for that matter, 

brings a lawsuit, it is allowed. And it is almost, in many cases, encouraged. The EPA will go out and solicit, if not officially, at least 

unofficially, a friendly lawsuit. ‘‘Oh, well, we have to settle because 

of this lawsuit.’’ 

Is that something that we might want to look at is standing to 

bring a lawsuit? 

Mr. BUDELL. I think it would be a great idea. I think that the 

environmental community—and there may be others, but certainly 

in the Clean Water Act, I think that there the history shows that 

lawsuits are successful, and that if you sue the EPA, they’re very 

likely to settle. 

Mr. BARTON. Would you like to comment on that? 

Ms. KEYES FLEMING. Yes. Respectfully, Congressman, I think we 

would disagree with the analysis that we don’t have skin in the 

game. I think all of us have skin in the game with respect to having clean water, clean air. And whether we come to this State as 

a tourist or whether we live here, we’re all committed to making 

sure that we have a quality of life that is enjoyable without harm 

of illnesses or diarrhea or things that some of your congressional 

folks have unfortunately had to experience as a result of algae 

blooms. 

And so, we all have this collective responsibility to make sure 

that we protect—— 

Mr. BARTON. But under current Federal law, to have standing in 

court—and correct me if I am wrong—but the only thing you have 

to prove is that you are a citizen of the United States and maybe, 

in some cases, a citizen of the State. That is it. There is no burden 

of proof on the allegation. 

There is no—there is just you can bring a lawsuit. And if you 

have an environmental group, they are going to pick up the expenses. And there is no downside to bringing the lawsuit. Wouldn’t 

you agree with that? 

Ms. KEYES FLEMING. No, actually. I think—and obviously, it’s 

Congress that wrote this law some 40-plus or 40 or so years ago. 

47 

I think that it’s beneficial to write it in that way because having 

these things—clean air, clean water is an inherent right of everybody in this country. 

Mr. BARTON. I understand that. But the compliance cost of some 

of these regulations are in the billions of dollars annually, and the 

job losses in the tens of thousands on a one-time basis and perhaps 

several thousand on an annual basis. And again, when these laws 

were put on the books, society was different. There was an understanding, at least implicitly, if not explicitly, that some of these 

costs would be considered. It is different today. 

I mean, it is a different issue. But on ozone, the EPA is about 

to put out an ozone standard that may be 6 parts per billion. God 

can’t meet that standard in about 70 percent of the country. There 

is no demonstrable health benefit to it. It is just a lower standard. 

You know, in my time in Congress, we have seen—and again, it 

is an air issue, Mr. Chairman. Have gone from 12.5 parts per billion on an 1-hour spike standard. I think the current standard is 

8 parts per billion on an 8-hour average standard, and now it is 

going to go down to 7 or 6 or 5. 

We have taken the lead standard down to almost zero, and I 

mean, it is just this ‘‘if one standard is good, a tighter standard is 

better’’ mentality, with no cost-benefit requirement, with no real 

justification except that the Federal laws written, as she pointed 

out, 40 or 50 years allow it. 

And it is something I think that we, hopefully, on a bipartisan 

basis need to revisit and see if it might not be a time to revisit the 

10th Amendment of the Constitution, to take cognizance of the fact 

that the congressional approval rating is at an all-time low, that 

President Obama’s approval rating is less than his disapproval rating. I mean, there is a reason for it, Mr. Chairman. 

Many people look at what we are doing or not doing in Washington and say, those guys don’t get it. You know, Federal Government especially is out of control. 

And with that, Mr. Chairman, I yield back. 

Mr. STEARNS. Thank the gentleman. And I thank and apologize 

for not getting right to him and his very good comments. 

Mr. Bilirakis? 

Mr. BILIRAKIS. To follow up—thank you, Mr. Chairman—on what 

Chairman Barton said, I haven’t had—I represent the coastal areas 

of Florida. And during the oil spill, we have had commercial fishermen, recreational fishermen, shrimpers, people that are in the 

tourist industry. I haven’t had one single person come to my office 

and complain about the pollution, the nutrient pollution. 

And we have had several people, both Democrats and Republicans, this is a bipartisan issue against this rule. If you could comment on that? And then I have another question maybe both of you 

can comment on. 

Ms. KEYES FLEMING. Well, I would agree in that clean water is 

not a partisan issue. We all want it. We all recognize the need for 

it. I think where we approach things differently is how best to 

achieve it. 

And with respect to the coastal part of the rule, we are currently 

in the process of working that segment, that schedule. 

Mr. BILIRAKIS. I understand. I understand that. 

48 

Ms. KEYES FLEMING. But again, if you’re looking for the breakdown of the 22,000 comments, we can certainly provide that for 

you. But those are voices that I don’t think we can deny. That this 

is a problem—Mr. Budell has said it. Several other witnesses have 

said. We agree that there is a problem. 

And it’s our view that if we do not address and prevent this problem now, it will get much worse and cost more later. And might 

even cost more jobs later, as folks choose not to come to Florida because they no longer see it as a rich treasure. 

Mr. BILIRAKIS. Thank you. 

Mr. Budell, do you agree or disagree with this statement? Florida 

has done more to promote clean water than, obviously, the EPA 

suggests. 

Mr. BUDELL. I agree with that statement. 

Mr. BILIRAKIS. You agree with that. Would you like to elaborate? 

Mr. BUDELL. Well, I think our record stands on its own. I think 

that there are more aggressive and protective programs in Florida 

than almost any other State. Our 1999 Watershed Restoration Act 

was really kind of a model legislation. It was enacted far before 

any other State in the Nation had a comprehensive bill in place 

that was the blueprint for how Florida would implement total maximum daily load provisions of the Clean Water Act. 

It was really ground-breaking legislation. We’ve had tremendous 

success. We’ve developed hundreds of TMDLs. We’ve got basin 

management action plans underway. There are glowing examples— 

Sarasota Bay, Tampa Bay, Lake Apopka—that are wonderful examples of the restoration activity that we’ve taken over time, the 

protection activity that we’ve taken over time. 

I don’t—I don’t take a backseat to any other State in the Nation 

on our water restoration and protection program. 

Mr. BILIRAKIS. Thank you. 

Next question for Ms. Fleming. It appears some of the discrepancy in cost estimates, back to the cost, is based on an expectation 

for relief or waivers. Does EPA have an estimate of the time required to obtain regulatory relief? And then I would like to have 

Mr. Budell comment on that as well. 

Ms. KEYES FLEMING. I don’t know that we’d have a set estimate. 

I think that’s one of the reasons why the rule allowed for the SSAC 

process to start earlier this year, as opposed to waiting for the completion of the 15-month cycle. We wanted to be able to have productive discussions, and I do have the list. It includes, as I said, Palm 

Beach, Jacksonville, Gainesville, Pope County, various water management districts, and others that we have already spoken with 

and will continue to speak with to figure out how best to continue 

to protect and improve water quality. 

I think we do want to make sure our decisions are scientifically 

sound, and sometimes that takes time. But it does result in coming 

or reaching the end game of making sure we have something that 

is protective. 

Mr. BILIRAKIS. Mr. Budell, again? 

Mr. BUDELL. I believe that the site-specific alternative criteria 

process would require an entity, whether that’s a regulated permanent entity or a county or a city, to collect at least 3 years’ worth 

of data, water quality data that would be seasonally variable across 

49 

and have to be collected throughout the calendar year for a 3-year 

period, submit those data to EPA justifying that a site-specific 

number is more appropriate. 

We believe the costs to do that certainly enter into the millions 

of dollars with no guarantee of actually achieving the SSAC at the 

end of the process. So it’s a tremendous gamble, a monetary risk 

for any entity, whether that’s Orange County or the City of Orlando or the City of Punta Gorda. To come forward with a site-specific alternative criteria, you’re talking about outlaying millions of 

dollars, time and effort and money to develop a dataset, but there’s 

no guarantee it would be approved once it’s submitted. 

Mr. BILIRAKIS. I would like to suggest that maybe that timeframe 

to be part of the rule so that there would be some certainty there. 

Would you like to comment on that? 

Ms. KEYES FLEMING. Well, I think what I would like to be able 

to do is go back and look at the SSAC guidelines that we have put 

out for public comment. I know in some instances with—in our conversations with the department with respect to the St. Johns River, 

for example, we had indicated that we thought we could come to 

a conclusion in a relatively short timeframe, largely because the 

science that Mr. Budell had talked about has already been collected. And I think that’s an important thing to remember. 

That Florida has a unique database of information already, and 

we are building upon that database when we instituted the rule, 

and we’d be considering that database, whether it’s the State or us, 

as we come to conclusions about SSACs in the future. 

Mr. BILIRAKIS. Any comment from you? 

Mr. BUDELL. No. It would just be duplicative. Thank you. 

Mr. BILIRAKIS. Well, thank you very much. I yield back, Mr. 

Chairman. 

Thank you. Appreciate it. 

Mr. STEARNS. Mr. Ross is recognized for 5 minutes. 

Mr. ROSS. Thank you, Mr. Chairman. 

Ms. Fleming, I want to make sure I understand this because Mr. 

Budell brought it up in his opening that the EPA acknowledges 

that its nutrient standards were established without demonstrating 

a strong cause-and-effect relationship to impaired water quality. Is 

that correct? 

Ms. KEYES FLEMING. No. I don’t think that’s correct. I think it 

does go to the challenge of looking at those factors that vary. But 

that’s one of the reasons why the rule is a rolling 3-year average. 

Mr. ROSS. So you would say there is a strong relationship, causeand-effect relationship between the standards and water quality? 

Ms. KEYES FLEMING. I think there is a strong cause-and-effect relationship between excess nutrients and the algae blooms and other 

things that are adversely affecting public health. 

Mr. ROSS. Mr. Budell, do you want to comment on that? 

Mr. BUDELL. There is no demonstrated cause-and-effect relationship between nutrient concentration and biological response in 

flowing water. In any kind of flowing water. 

Mr. ROSS. OK. 

Mr. BUDELL. There is stronger data for lakes and springs. 

50 

Mr. ROSS. Ms. Keyes Fleming, I believe the EPA has indicated 

that water utilities will not have to use reverse osmosis in order 

to comply. Is that your understanding? 

Ms. KEYES FLEMING. That was stated in the preamble of our 

rule, yes. 

Mr. ROSS. And you would be willing to stand by that? So that 

will not be a cost that would have to be considered in order to comply with any numeric nutrient water criteria? 

Ms. KEYES FLEMING. That is something we would stand by. 

Mr. ROSS. In regard to what utility companies have indicated that it may be as much as $750 a household for—an increase in 

your utility bills, to those in my district that are senior citizens, 

unemployed, and on fixed incomes, could you help me craft a message to them as to why we are now having that, require that they 

pay that? 

Ms. KEYES FLEMING. The message would start with we believe 

that those figures inaccurately look at the current landscape, that 

they overreach, that they do not narrowly look at those entities 

that would really truly have to make the change. And if you looked 

at those entities, then the costs would be more like 11 cents per 

day per household. 

Mr. ROSS. Which would translate to how much per year? 

Ms. KEYES FLEMING. Anywhere from, I believe, $135 million to maybe $206 million. 

Mr. ROSS. And that is a justifiable cost-effective increase for my 

constituents? 

Ms. KEYES FLEMING. Compared to the cost of having to clean this 

up later, we believe that it would be a worthwhile investment to 

prevent these things from happening to avoid the increased cost 

later. 

Mr. ROSS. Let’s talk about the site-specific alternative criteria, 

the SSACs that you speak of. Have there ever been any issued in 

the State of Florida? 

Ms. KEYES FLEMING. The rule was just implemented last November, and so we are currently talking with numerous entities about 

SSACs. Again, the rule does not take effect until March. That 

schedule may change, depending on what the State of Florida does 

with respect to implementing its own rule. 

Mr. ROSS. Mr. Budell, are you aware of any SSACs that have 

been approved? 

Mr. BUDELL. None for nutrients. 

Mr. ROSS. OK. And would you disagree that there are over 

30,000 bodies of water in the State of Florida? 

Ms. KEYES FLEMING. I wouldn’t disagree with that number. The 

question becomes how many of them would be subject to this rule? 

It’s a much smaller universe. 

Mr. ROSS. Well, I think if you are going to have a rule, anything 

would be subject to that rule. So all 30,000 would be subject to that 

rule. 

Ms. KEYES FLEMING. Only if they’re inland waters or are encompassed in the definition. 

Mr. ROSS. All right. Mr. Budell indicates that it is nearly $1 million in order to go through the process. Are we not doing anything 

but furthering litigation and putting a greater burden on our econVerDate Aug 31 2005 09:25 Jul 16, 2013 Jkt 037690 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 F:\112-08~1\112-81~1 WAYNE
51 

omy and our State in order to have to apply for these to seek some 

type of variance? 

Ms. KEYES FLEMING. I think one of the things that perhaps 

hasn’t been taken into account is that when you talk about the cost 

or millions, what you’re looking at is about $4,000 to $5,000 cost 

per acre to be able to fix one of these challenges if we do nothing. 

Mr. ROSS. But you, yourself, said that really standing doesn’t 

matter. Anybody has standing. And so, all they have to do is file 

a petition objecting to any SSACs being issued, and therein lies the 

problem and the constant litigation that is going to follow. 

Ms. KEYES FLEMING. Well, I think let’s step back—— 

Mr. ROSS. I guess what I am saying is the unintended consequences of this rule does nothing to ultimately affect the water 

quality in the State of Florida. What it does is to further the administrative burden on businesses and residences in the State of 

Florida and to further create greater tax burden for the State of 

Florida to even try to defend this. 

Ms. KEYES FLEMING. I think what this rule does is allow families 

to be able to enjoy water without having to worry about suffering 

from diarrhea, from sore throats, from any of the other adverse impacts. And when you talk about litigation, there have been plenty 

of times that EPA has been sued and not done whatever it is the 

petitioners want, including the Mississippi River basin, which we 

just denied. 

Mr. ROSS. Now you talk about a 15-month compliance. Is that 

correct? I mean, once—— 

Ms. KEYES FLEMING. Delayed effective of 15 months. 

Mr. ROSS. Delayed effective. And in that 15 months, a business 

would have to do what? Whatever is necessary to comply. Correct? 

Ms. KEYES FLEMING. I think it gives them the opportunity to 

come in, talk with us, ask us questions. Our best to be able to answer their questions, to look at the schedule because, obviously, 

that business might not have a TMDL or permit that is expired in 

March. 

Mr. ROSS. And do whatever is necessary to comply means either 

complying with the regulation, laying off people, or going out of 

business? 

Ms. KEYES FLEMING. No. I think what it means is making sure 

that we protect the water that is so vital to Florida’s economy and 

the well-being of its citizens. 

Mr. ROSS. Mr. Chairman, if I could just have 30 seconds to ask 

one follow-up to Mr. Budell? 

Mr. STEARNS. Sure. 

Mr. ROSS. Mr. Budell, what did Florida do wrong? Why are we 

where we are today? We have got probably the most clean water 

of any State out there, the most aggressive water control program 

out there. What have we done wrong to receive the wrath of the 

EPA? 

Mr. BUDELL. I don’t believe we’ve done anything wrong. I believe 

we were the unfortunate victims of litigation and the settlement 

agreement. 

Mr. ROSS. Thank you. I yield back. 

Mr. STEARNS. I thank the gentleman, and I thank the first panel 

for your patience. 

52 

Ms. BROWN. I have one—— 

Mr. STEARNS. Do you want a third round? 

Ms. BROWN. Well, we can have a third round, but I need a third 

question. 

Mr. STEARNS. I think we have got a second panel who has been 

waiting patiently, and there are six of them. So I would like to get 

them up. Do you have something in 30 seconds? 

Ms. BROWN. One minute? 

Mr. STEARNS. How about 45? 

[Laughter.] 

Ms. BROWN. OK. Let me just say that for the Texas, you need 

to know that the Democrats won, what was it, 8 to 2 on the baseball game. But let’s go on. 

Mr. BARTON. That is a fact. 

Ms. BROWN. That is a fact. 

[Laughter.] 

Mr. BARTON. I will stipulate that you all lucked out this year. 

Ms. BROWN. Lucked out, 8–2. 

Ms. Fleming, thank you very much. Let me just be clear, I would 

not be in favor of doing away with the clean water. Now I do think 

it should be balanced, that we need opportunities. I mean, Florida, 

6 years we didn’t weigh in. We didn’t come up with our rules, and 

so, basically, now we are trying to work through it. 

But my understanding what Florida had implemented or proposed is pretty much the same as what EPA has done. So can 

you—just in closing, I want to give you the 45 seconds to close. 

Ms. KEYES FLEMING. Hopefully, it won’t take that long. Yes, the 

science is very similar between the State and what EPA is proposing. 

Mr. STEARNS. Thank you. 

Ms. BROWN. Thank you very much. 

Mr. STEARNS. And now we will ask the second panel to come forward. Paul Steinbrecher is president of the Florida Water Environmental Association Utility Council and Director, Environmental 

Services for JEA, Jacksonville. 

Mr. Steinbrecher has been with the JEA since 2001. Prior to 

that, he was a process engineer and a project manager for CH2M 

HILL. He has a bachelor’s degree in science and civil engineering 

and earned his master’s in civil engineering at the University of 

Arkansas in Fayetteville. 

William Dever is president of the Florida Gulf Coast Building 

and Construction Trades Council, whose affiliated unions represent 

thousands of working men and women in Florida’s Gulf Coast region. 

Ron St. John is a dairyman and the managing partner of Alliance Dairy in Trenton, Florida. He is testifying on behalf of the 

dairy industry of North Central Florida, Suwannee basin, and the 

Florida Farm Bureau Federation. 

Kelli Hammer Levy is the watershed management section manager for the Department of Environment and Infrastructure for 

Pinellas County in Florida. The county’s watershed management 

protection improves the environmental aesthetics, quality of county 

surface water, such as creeks, streams, lakes, bays, and coastal waters. 

53 

David Guest is a managing attorney and director of the Florida 

regional office of Earthjustice. Mr. Guest has tried environmental 

cases in Florida for the past 20 years. He had the least notification. 

So I thank him for his patience in coming to testify this morning. 

And David Richardson, lastly, is the assistant general manager 

for water and wastewater systems. He administers all aspects of 

the water and wastewater utilities for Gainesville Regional Utilities, including water and wastewater planning and engineering, 

water treatment, water distribution, wastewater treatment, wastewater collection, operation of lift stations, distribution of reclaimed 

water, and administration of the environmental laboratory industrial pretreatment and cross-connection program. 

Welcome, all of you, this morning. 

You are aware that the committee is holding an investigative 

hearing and, when doing so, has had the practice of taking testimony under oath. Do any of you object to testifying under oath? 

[All witnesses answered in the negative.] 

Mr. STEARNS. The chair then advises you that under the rules of 

the House and the rules of the committee, you are entitled to be 

advised by counsel. Do you desire to be advised by counsel during 

your testimony today? 

[All witnesses answered in the negative.] 

Mr. STEARNS. In that case, if you would please rise and raise 

your right hand, I will swear you in. 

[Witnesses sworn.] 

Mr. STEARNS. You are now under oath and subject to the penalties set forth in Title 18, Section 1001 of the United States Code. 

I now welcome you and ask you each to give a 5-minute summary of your written statement. And Mr. Steinbrecher, we will 

start with you. 

STATEMENTS OF PAUL STEINBRECHER, PRESIDENT, FLORIDA 

WATER ENVIRONMENT ASSOCIATION UTILITY COUNCIL; 

WILLIAM DEVER, PRESIDENT, FLORIDA GULF COAST BUILDING AND CONSTRUCTION TRADES COUNCIL; RON ST. JOHN, 

MANAGING PARTNER, ALLIANCE DAIRIES; KELLI HAMMER 

LEVY, WATERSHED MANAGEMENT SECTION MANAGER, 

PINELLAS COUNTY DEPARTMENT OF ENVIRONMENT AND 

INFRASTRUCTURE; DAVID G. GUEST, DIRECTOR, FLORIDA 

REGIONAL OFFICE, EARTHJUSTICE; AND DAVID RICHARDSON, ASSISTANT GENERAL MANAGER, WATER/WASTEWATER 

SYSTEMS, GAINESVILLE REGIONAL UTILITIES 

STATEMENT OF PAUL STEINBRECHER 

Mr. STEINBRECHER. Thank you, Mr. Chairman and committee. 

I’m pleased to be here this morning still. My name is Paul 

Steinbrecher. I’m the director of environmental permitting for JEA, 

the second-largest utility in Florida, water, wastewater utility, one 

of the largest in the Nation. We serve the Jacksonville area. 

I am speaking to you today, however, in my capacity as the president of the Florida Water Environment Association Utility Council. 

The utility council is a State-wide organization of your community 

wastewater treatment utilities. 

54 

Our members collect and treat the wastewater produced by Floridians, and then we safely return that treated reclaimed water to 

the environment or we provide it to our citizens to beneficially 

reuse for irrigation or other purposes. Because the raw wastewater 

that comes to us and that we treat is rich in nutrients, we have 

extensive experience with implementing nutrient control programs. 

Everyone, of course, wants clean water. As an environmental 

services director for a regional wastewater utility and a former consulting engineer, I have dedicated my own career to cleaning water. 

When utilities undertake a new project, the decisions have to be 

based on sound science. EPA should be held to the same standard. 

Unfortunately, EPA’s nutrient rule is rooted in poor science and 

in litigation. In order to settle a lawsuit, EPA committed to developing numeric nutrient standards for Florida’s diverse rivers, 

lakes, and springs on a wholly unrealistic timeframe. To then try 

to meet their self-imposed deadline, EPA had to resort to taking 

shortcuts in their science, ultimately using crude averaging techniques, rather than the dose-response techniques you’ve heard people speak of. 

As a result, their standards absolutely fail to acknowledge that 

the level of nutrients that water bodies need for biological health, 

as well as the level of nutrient loads that create problems, vary 

quite significantly from one water body to another water body. 

The utility council provided extensive and detailed technical commentary questioning the scientific basis of EPA’s draft rules. Unfortunately, EPA ignored our input in their draft—in their rule. 

The utility council also urged EPA not to supersede existing 

EPA-approved, site-specific nutrient standards. We have those in 

Florida already with this rule. They’re called nutrient total maximum daily loads, nutrient TMDLs. We wanted to ensure that the 

existing public projects that were designed to achieve scientifically 

vetted and already federally approved nutrient goals in Florida 

were not rendered obsolete by the new litigation-driven rulemaking. 

Again, however, EPA declined. Instead, EPA is now requiring 

Floridians to resubmit these already EPA-approved TMDLs for reevaluation and potential re-adoption. Especially in these economic 

times, we need more surety in the investments we make with the 

public’s dollars. It absolutely makes no sense for EPA to discard or 

ignore existing EPA-approved, site-specific standards and the millions of dollars of associated public investments in favor of generalized and poorly derived criteria. 

Lastly, the costs of EPA’s rule have been grotesquely understated 

by them. The utility council commissioned a reputable environmental consulting firm, Carollo Engineers, to perform a cost analysis of just EPA’s freshwater rule. There’s a marine rule coming as 

well. 

That professional analysis estimated that the effect on customers 

whose utility is impacted by this rule—we hope everybody gets exemptions, too, but we doubt it—will be an average utility bill for 

those that are affected of over $700 per household per year. EPA’s 

cost estimate, in stark contrast, assumes ridiculously that nearly 

all utilities will get variances or exemption from their rule. 

55 

If all these exemptions were even possible, at a minimum, it 

would call into question the underlying need for the rule in the 

first place. How can EPA possibly assert that these standards are 

necessary for Florida, yet then claim that virtually no one is going 

to actually have to meet those numeric criteria? 

In closing, EPA’s intrusion into the State’s water quality program sets unscientific standards, derails many existing effective 

programs, and absolutely has tremendous cost implications that 

will needlessly burden our already economically stressed communities. Rather than discount these concerns, we would urge EPA to 

rethink its intervention into Florida’s water policy. 

Protecting the water environment is absolutely our core business. 

We are your community utilities. Florida deserves a nutrient water 

quality program that is focused on cost-effective, measurable environmental programs that will continue to protect our pristine waterways that so many people come here and enjoy every year, as 

well as our residents, and improve our impaired waters as we 

grow. 

Thank you. 

[The prepared statement of Mr. Steinbrecher follows:] 

56 


81389.017

FWEA Utility Council 

Protecting Florida's Clean Water Environment 

P.O. Box 10755 .. Tallahassee, Florida 32302 .. (850) 425-3428 

wwwjweauc.org 

Subcommittee on Oversight and Investigations 

Field Hearing: "EPA's Takeover of Florida's Nutrient Water Quality Standard Setting: 

Impact on Communities and Job Creation." 

Summarized Testimony of Paul Steinbrecher 

President, FWEA Utility Council 

My namc is Paul Steinbrecher. I am the Director of Environmental Permitting for .lEA. 

the second largest municipal water and wastewater utility in Florida and one of the largest in the 

nation . .lEA serves the .Iacksonville metropolitan and surrounding areas. I am speaking to you 

today in my capacity as the President of the Florida Water Environment Association Utility 

Council. 

The Utility Council is the statewide umbrella organization for community wastewater 

treatment utilities in Florida. Our utility members collect and treat the sewage waste produced 

by millions of Floridians and then safely return the treated reclaimed water to the environment or 

provide it to our citizcns to beneficially reuse for irrigation or other purposes. Because the raw 

sewage we intake to our treatment systems is rich in nutrients. we have significant experience 

implementing nutrient water quality control programs. 

Everyone wants clean water. As an Environmental Services Department Director for a 

large regional wastewater utility and a former consulting engineer. I have dedicated my career to 
57 


81389.018

cleaning water. When utilities undertake a new project, our decisions have to be based on sound 

science. EPA should be held to the same standard. 

Unfortunately, EPA's nutrient rule is rooted in poor science -- and litigation. In order to 

settle a lawsuit, EPA committed to developing numeric nutrient standards for Florida's 

thousands of miles of diverse rivers, streams, lakes, and springs on an unreasonably rapid 

timeframe. To meet their self imposed settlement agreement timeframes, EPA took shortcuts in 

their science, and set stringent standards based on crude statistical assumptions that disregard the 

diversity of Florida's flowing waters and fail to acknowledge that the level of nutrients that water 

bodies need for biological health -- as well as the level of nutrient loads that create problems --

varies from water body to water body. The Utility Council, like many other Florida 

stakeholders, invested significant resources developing extensive and detailed technical 

comments questioning the scientific basis of EPA's draft rules. EPA ignored our input. 

The Utility Council also urged EPA to not overlay its generalized nutrient criteria on 

waters that already have site-specific EPA-approved numeric nutrient rules, called Nutrient Total 

Maximum Daily Loads (Nutrient TMDLs). We wanted to ensure that ongoing public projects 

designed to achieve scientifically vetted and federally approved nutrient targets are not rendered 

obsolete by this new litigation-driven rulemaking. Again, EPA declined. Instead, EPA is 

requiring Floridians to resubmit these already EPA-approved TMDLs for reevaluation and 

potential re-adoption by them as site specific alternative criteria. It makes no sense for EPA to 

put regulated interests in a position where an EPA approved site specific standard and associated 

investments are displaced in favor of a generalized, poorly derived criteria. We must have more 

surety in the investments we make on the publics' behalf. 

2 
58 


81389.019

Lastly, the costs of EPA's rule have been grotesquely understated by them. The Utility 

Council commissioned a reputable environmental consulting finn, Carollo Engineers, to perform 

an analysis of the costs to achieve EPA's freshwater rule. Carollo's analysis estimates that 

domestic wastewater treatment utilities will spend $4.2 to $6.7 billion to achieve the freshwater 

criteria alone, causing affected utilities to increase their annual sewer bills by over $700 per year 

(note, the majority of Floridians live near the coast, hence the total costs to Florida is expected to 

be many times this amount when the pending marine portion of the rule is promulgated by EPA 

in 2012). Our analysis assumes that EPA's promulgated criteria will be implemented and will 

have to be achieved, just as the law requires. EPA's cost estimate assumed nearly all utilities 

would get variances or exemptions from the rule. If this were even possible, at a minimum it 

would call into question the underlying need for the rule in the first place. How can EPA assert 

that these standards are necessary yet also claim that no one is going to have to achieve them? 

Closing 

EPA's intrusion into the States's water quality program sets unscientific standards, derails 

existing effective programs, and has tremendous cost implications that will needlessly impact our 

ratepayers and burden our already stressed economies. Rather than discount these concerns, 

EPA should rethink its intervention into Florida water policy. Protecting the environment is the 

core business of our community domestic wastewater treatment utilities. Florida deserves a 

nutrient water quality program focused on cost-effective, measurable environmental programs 

that will continue to protect our pristine waters and improve our impaired waters as we grow. 

3 
59 


81389.020

Cleall Water Environment 

P.O. Box 10755 .. Tallahassee, Florida 32302 ~ (850) 425·3428 

www.fweauc.org 

Subcommittee on Oversight and Investigations 

Field Hearing: "EPA's Takeover of Florida's Nutrient Water Quality Standard Setting: 

Impact on Communities and Job Creation." 

Testimony of Paul Steinbrecher 

President, FWEA Utility Council 

Thank you Chairman Stearns and members of the Subcommittee on Oversight and 

Investigations for holding this field hearing. My ilame is Paul Steinbrecher. In my day job. I am 

the Director of Environmental Permitting for .lEA. the second largest municipal water and 

wastewater utility in Florida and one of the largest in the nation . .lEA serves the Jacksonville 

metropolitan and surrounding areas. Today. however. I am speaking to YOll in my capacity as 

the President of the Florida Water Environment Association Utility Council. 

The Utility Council is the statewide umbrella organization for community wastewater 

treatment utilities in Florida. Our utility members collect and treat the sewage waste produced 

by millions of Floridians and then safely return the treated reclaimed water to the environment or 

provide it to our citizens to beneficially reuse for irrigation or other purposes. 

Because the raw sewage we intake to our treatment systems is rich in nutrients. we have 

significant experience implementing nutrient water quality control programs. It is with that 

experience that I offer this testimony regarding EPA's nutrient criteria rulemaking in Florida. 
60 


81389.021

Everyone wants clean water. As an Environmental Services Department Director for a 

large regional wastewater utility and a former consulting engineer, I have dedicated my career to 

cleaning water. When my utility and other utilities across the state consider undertaking a new 

environmental project, we evaluate the degree to which the project will improve the 

environment. Our decisions have to be based on sound science. 

I am providing testimony on three areas of concern to the Utility Council: the lack of a 

sound scientific basis; the rule's displacement of existing, approved nutrient control programs; 

and the lack of an adequate cost estimate by EPA for this rule. 

1 - EPA's Rivers and Streams Criteria Lack a Sound Scientific Basis 

EPA should only derive nutrient criteria rules based on sound science. Unfortunately, 

EPA's nutrient rulc is rooted in poor science -- and litigation. In order to prompt settlement of a 

lawsuit, EPA committed to developing and finalizing numeric nutrient standards for Florida's 

thousands of miles of diverse rivers, streams, lakes, and springs on an unreasonably rapid 

timeframe. In so doing, EPA made promises they couldn't keep. 

To meet the settlement agreement timeframes, EPA took shortcuts in their science. Their 

methods do not ensure a cause and effect relationship between their criteria and an 

environmental outcome, particularly for Florida's rivers and streams. Instead, EPA set stringent 

and generalized standards based on crude statistical assumptions that disregard the diversity of 

Florida's flowing waters. 

A simple review of EPA's public representations from the time of the January 2009 

determination through the finalization of the rule in November 2010 demonstrates the agency's 

steady retreat from sound science and a move to reliance on statistical assumptions. 

2 
61 


81389.022

In January 2009, Assistant Administrator Benjamin Grumbles anticipated that it would 

only take six months to set scientifically valid nutrient criteria at the levels at which Florida's 

flowing waters exhibit signs of nutrient impairment: 

EPA anticipates that six months will then be required to complete detailed 

analyses of the data to identify the relationships between nutrient causal 

variables, e.g. nitrogen and phosphorus, and key response variables. e.g., 

chlorophyll a, Secchi depth, periphyton, and dissolved oxygen (DO). 1 

EPA thus initially represented that within half a year, by July 2009, it could use a cause and 

effect analysis to establish true numerical interpretations of Florida's existing narrative nutrient 

standard (i.e. affix numeric nutrient standards at the nutrient levels at which Florida water bodies 

will exhibit imbalances of naturally occurring populations of flora and fauna). 

Ten months later, however, EPA used less definitive terms when assuring Northern 

District Court of Florida Judge Hinkle that the agency could propose "protective criteria" within 

the strict timeframes of the Consent Decree. A sworn declaration of Denise Keehner of EPA's 

Office of Science and Technology stated: 

EPA is able and capable of proposing protective criteria for lakes, rivers, streams, 

and estuaries/coastal waters based on scientifically defensible methodologies, and 

appropriately taking into account current data and other information, as well as 

the state of the science.2 

By the time EPA issued its proposed rule in January 2010. the agency signaled a full 

retreat with respect to stream standards from Mr. Grumbles' prognostication a year earlier: 

... EPA analyzed stressor-response relationships in Florida streams based on 

available data, but...did not find sufficient scientifie support for their use in the 

derivation of numeric nutrient criteria for Florida streams. More specifically, 

I EPA, Letter from EPA Assistant Administrator Benjamin Grumbles to FDEP Secretary Michael Sole, 9 (Jan. 14, 

2009) (emphasis added), hereinajler, Necessity Determination. 

2 Florida Wildlife Federation v. EPA, Case No: 08-00324, Declaration of Denise Keehner, 115 (November 3, 2009). 

3 
62 


81389.023

EPA was not able to demonstrate a sufficiently strong correlation between the 

biological response indicators ... and TN or TP concentrations .... 3 

In other words, EPA could not demonstrate what levels of nitrogen and phosphorus 

caused algal blooms in different types of flowing waters: the information needed to set a 

numeric criteria. Thus, due to the self-imposed timeframes of the Consent Decree, EPA 

abandoned its attempts to derive cause and effect relationships for Florida's rivers and streams, 

and instead EPA moved to a crude averaging methodology that by its very nature will deem 

some healthy waters as impaired and create an obligation on the part of public agencies to "clean 

up" these water bodies. This error was carried through to EPA's tinal numeric nutrient criteria 

rules for Florida's rivers and streams.4 

The obvious flaw in EPA's approach is that it fails to recognize that: 

[n]utrients are unlike any other "pollutant" regulated by the federal Clean Water 

Act (CW A). Most water quality criteria are based on a toxicity threshold, 

evidenced by a dose-response relationship, where higher concentrations can be 

demonstrated to be harmful, and acceptable concentrations can be established at a 

level below which adverse responses are elicited (usually in laboratory toxicity 

tests). In contrast, nutrients are not only present naturally in aquatic systems, they 

are absolutely necessary for the proper functioning of biological communities, 

and are sometimes moderated in their expression by many natural factors. 

Therefore, the development of protective nutrient criteria is immensely more 

complicated than that for toxic substances.s 

EPA's broad-brushed regional criteria fail to acknowledge that the level of nutrients that 

water bodies need for biological health -- as well as the level of nutrient loads that create 

problems -- varies from water body to water body. The proposed rule confirms what the 

scientific community has known and reminded EPA for quite sometime: the relationship 

between nutrients and natural factors such as stream biology, color, shading, flow rate, pH, etc. 

375 Fed. Reg. 4174, 4194 

475 Fed. Reg. 75762, at 75763 (stating that "EPA concluded that reliance on a reference-based methodology was a 

strong and scientifically sound approach for deriving numeric criteria, in the form of total nitrogen (TN) and 

total phosphorus (TP) concentration values for flowing waters including streams and rivers.") 

5 FDEP, State of Florida Numeric Nutrient Criteria Development Plan, I (March 2009) (emphasis added). 

4 
63 


81389.024

requires site specific nutrient criteria.6 In the words of EPA's Science Advisory Board. 

"statistical associations may not be biologically relevant and do not prove cause and effect," 

and "in order to be scientifically defensible, empirical methods must take into consideration 

the influence of other variables.,,7 As the Florida Department of Environmental Protection 

(FDEP) noted, EPA's rule fails to "fully acknowledge the basic limitation of the 'reference 

approach', that there is no link between criteria and impairment (no 'dose-response' 

relationship ).,,8 

Crudely derived, generally applicable nutrient standards, such as those imposed by EPA, 

will cause numerous unintended consequences, including the designation of healthy water bodies 

as impaired and overly stringent standards for certain impaired water bodies. 

The Utility Council, like many other Florida stakeholders, invested significant resources 

developing extensive and detailed technical comments questioning the scientific basis of EPA's 

draft rules. EPA ignored our input and has simply asserted that its rules are based on sound 

science. 

2 - EPA's NNC Rule Needlessly Interferes with Existing Nutrient 

Control Programs 

The Utility Council also urged EPA to not overlay its generalized nutrient criteria on 

waters that already have site-specific EPA-approved numeric nutrient rules, called Nutrient Total 

Maximum Daily Loads (Nutrient TMDLs). This action would have been a simple way to ensure 

6 EPA, Science Advisory Board, Processes and Effects Committee Advisory Report, Draft, I (Jan. S, 2010) ("The 

empirical stressor-response framework described in the Guidance [developed by EPA for promulgating nutrient 

standards] is one possible approach for deriving numeric nutrient criteria, but the uncertainty associated with 

estimated stressor-response relationships would be problematic if this approach were used as a 'stand alone' 

method because statistical associations do not prove cause and effect.") (emphasis added); FDEP, Main Concerns 

with the Environmental Protection Agency's Proposed Numeric Nutrient Criteriafor Florida's Lakes and Flowing 

Waters published January 26,2010 (Feb. 17,2010), available at 

http://www.dep.state.fl.us/water/wqssp/nutrients/docs/federalldep _ concems_ epa_nutrients _021 O.pdf. 

7 EPA, Science Advisory Board, Processes and Effects Committee Advisory Report, Draft, at 22 (emphasis added). 

8 FDEP, Main Concerns wilh the Environmental Protection Agency's Proposed Numeric Nutrient Criteria for 

Florida's Lakes and Flowing Waters published January 26, 2010 (Feb. 17,2010). 

5 
64 


81389.025

that ongoing public projects designed to achieve scientifically vetted and federally approved 

nutrient targets are not rendered obsolete by this new litigation-driven rulemaking. Again, EPA 

declined. Instead, EPA is requiring Floridians to resubmit these already EPA-approved TMDLs, 

to EPA, for reevaluation and potential re-adoption by them as site specific alternative criteria. 

This resubmittal and reevaluation requirement is nonsensical, potentially rendering millions of 

dollars of existing investments either obsolete or insufficient, and making it difficult to plan 

utility expansions and upgrades. 

Depending on the community size, a member utility's investments may be measured in 

the tens to hundreds of millions of dollars for existing comprehensive nutrient management 

programs. My own utility, JEA for example, has invested $185 million over the past decade on 

technologies designed to meet the specific numeric nutrient endpoints contained in the Lower St. 

Johns River Nutrient TMDL and on building and expanding a reclaimed water system to 

encourage the use of reclaimed water in place of potable water for uses such as irrigation. The 

Lower St. Johns River TMDL has both a freshwater and a marine component, and was approved 

by EPA. Now EPA asserts in their freshwater rule that this body of science needs to be resubmitted for re-evaluation and approval, and utilities such as mine are left in a position of 

uncertainty regarding the regulatory efficacy of their investments. It makes no sense for EPA to 

put regulated interests in a position where an EPA approved site specific standard is displaced in 

favor of a generalized, poorly derived criteria. We must have more surety in the investments we 

make on the public's behalf. 

Several of our members recently wrote about the difficulty they are having planning as a 

result of EPA's shifting standards in the June issue of the Florida Water Resources Journal. A 

copy of that article is attached. These vignettes provide examples of environmental projects at 

6 
65 


81389.026

risk of being derailed due to EPA's actions. One of our members, David Richardson of 

Gainesville Regional Utilities, is providing separate testimony to the committee on his individual 

utility's planning dilemma, and the potential derailment of an outstanding environmental 

restoration project, as a result of EPA's NNC rule. 

3 - EPA Grossly Understates the Costs of its Nutrient Criteria Rules 

As shown in the following chart, EPA estimates an annual compliance cost for domestic 

wastewater treatment utilities that is an order of magnitude lower than that projected by the 

FWEA Utility Council and FDEP;9 

9 EPA, Economic Analysis o/Final Water Quality:Standard,/or Nutrients/or Lakes and Flowing Waters in Florida 

(November 20 I O); FWEA Utility Council, Costsftr Utilities and their Ratepayers to Comply with EPA Numeric 

Nutrient Criteria {or Freshwater Discharges (November 1, 20lO); Florida Department of Environmental Protection, 

FDEP Review ojEPA 's "Preliminary Estimate a/Potential Compliance Costs and Benefits Associated with EPA's 

Proposed Numeric Nutrient Criteria/or Florida" (April 201 O) (FDEP cost projections included South Florida 

canals, which were delayed for promulgation). 

7 
66 


81389.027

r.: 

~ 

'E 

g 

~ 

0 

u 

;; 

::> 

r.: 

r.: 

<t 

500 

450 

400 

350 

300 

250 

200 

150 

100 

50 

a 

Numeric Nutrient Criteria 

Domestic Waste Water Treatment Facility 

Annual Compliance Cost Projections 

$430 Million $456 Million 

$22.3-$38.1 Million 

EPA FDEP 

The reason for EPA's extremely low compliance cost estimate is due to an extraordinary 

assumption by EPA: EPA assumes that nearly all utilities will not have to achieve the EPA's 

final nutrient standards; instead, EPA assumes the utilities will successfully apply for and receive 

variances, site specific alternative criteri~: designated use modifications, or some other form of 

relief from compliance with the rule. 1O lfthis were even possible, at a minimum it would caii 

into question the underlying need for the rule in the first place. How can EPA base its entire 

rulemaking on a determination that these standards are necessary for Florida to comply with the 

Clean Water Act, yet for the purposes of calculating the economic impact of its final rule, 

assume that virtually no permitted utility is actually going to have to achieve the standards? 

This economic analysis by EPA is in stark contrast to one commissioned by the Utility 

Council. The Utility Council commissioned an economic analysis based on the simple 

10 75 Fed. Reg. at 75794 (explaining EPA's assumptions in its cost estimate). 
67 


81389.028

assumptions that EPA's promulgated criteria will be implemented and will have to be achieved, 

as required by the law. 

Thc law is clear. Congress enacted the Clean Water Act "to restore and maintain the 

chemical, physical, and biological integrity of the Nation's waters."ll The Clean Water Act 

requires each state to adopt water quality criteria and, where necessary, Total Maximum Daily 

Loads (TMDLs) to ensure that surface waters achieve and maintain their designated uses. l2 

Under limited circumstances, EPA can step in and promulgate water quality criteria for state 

surface waters when determined necessary for the waters to achieve their designated uses. 13 

Water quality criteria are primarily implemented through two Clean Water Act programs: the 

National Pollutant Discharge Elimination System (NPDES) and the TMDL program. In both of 

these programs, water quality criteria arc the operative water quality goals for surface waters. l4 

Under the NPDES permitting program, surface water discharges must obtain NPDES 

permits. IS NPDES permits contain technology-based effluent limitations that reflect the pollution 

reduction achievable based on particular equipment or process changes. l6 NPDES permits may 

also include water quality based effluent limitations when for compliance with water quality 

criteria. 17 

EPA's rule promulgates new specific water quality criterion for nitrogen and phosphorus 

that must now be written into NPDES permits for affected utilities. Under Federal Law, a water 

body that fails to achieve that applicable water quality criterion is considered "impaired;" will 

" 33 U.S.C. § 1251(a). 

12 33 U.S.C. §§ 1313(c)-(d). 

Il 33 U.S.C. § 1313(c)(4)(B). 

14 40 C.F.R. §§ 130.3, 130.7. 

15 33 U.s.C. § 1342. 

16 See 33 U.S.C. §§1314(b), (m), 1316. 

17 33 U.S.c. § 1311(b)(1 )(C); 40 C.F.R. §§ 122.44(d), I 22.45(d); Fla. Admin. Code R. 62-650.200(14), 650.400, 

650.500. The water body's designated use and water quality criteria serve as "the regulatory basis for establishment 

of water-quality based treatment controls and strategies beyond the technology-based level of treatment required by 

(the Clean Water Act]." 40 C.F.R. § 130.3. 

9 
68 


81389.029

receive a TMDL (i.e. a nutricnt load reduction target); and be subject to pollutant load reductions 

to restore the water body so that it is no longer considered impaired for that pollutant 

parameter. I 8 EPA notes that Florida is "one of the few states that has in place a comprehensive 

framework of accountability that applies to both point and nonpoint sources and provides the 

enforceable authority to address nutrient reductions in impaired waters based upon the 

establishment of site-specific total maximum daily loads.,,19 In Florida, entities that indirectly 

influence surface water quality are subject to potential load reduction requirements through the 

TMDL program, so dischargers to ground water (e.g. via land application systems or rapid 

infiltration basins) may also be subject to treatment requirements based on the discharge's 

impacts to surface water quality.2o 

It is unreasonable for EPA to assert that their promulgated criteria will somehow not 

apply to NPDES permittees such as domestic wastewater utilities. EPA set these nutrient 

criteria, because they expressly determined that the water quality criteria are necessary to protect 

the environment (specifically, the designated uses of water bodies). While the Utility Council 

may disagree with thcir determination in Florida, the law now requires that water quality based 

effluent limits be set at levels to ensure discharges do not cause or contribute to violations of 

these newly promulgated water quality criteria. 

The plain language of the rule sets ambient water quality criteria with no qualifications. 

Many entities asked EPA to make various qualifications in the rule (e.g. the addition ofa 

biological verification requirement; exclusion of waters with EPA-approved nutrient TMDLs; 

etc.), but EPA declined to do so. As a result, discharges of nutrients must be limited to meet 

these ambient criteria. The Utility Council believes it is speculative and unreasonable to base a 

18 33 U.s.c. §303(d); Fla. Stat. § 403.067. 

19 75 Fed. Reg. 4174, 4175 (Jan. 26, 2010). 

20 Fla. Admin. Code r. 62-610.850(1)(a); 610.800(1). 

10 
69 


81389.030

cost analysis on assumptions that community wastewater treatment utilities will be able to 

successfully prepare, apply for, receive, and survive any third party legal challenges to some 

form of exemption from EPA's nutrient criteria rule. 

The resulting costs of just these freshwater criteria that have been promulgated are 

extraordinary. Carollo Engineers, a reputable environmental consulting firm commissioned by 

the Utility Council to perform a cost analysis, estimates that domestic wastewater treatment 

utilities will spend $4.2 to $6.7 billion in capital upgrades to achieve the freshwater criteria 

alone, causing affected utilities to increase their annual sewer bills by an average of greater than 

$700 per year. 21 A copy of that cost estimate and a recent addendum is attached. 

The majority of Florida's population (and hence permitted utilities) are in coastal regions, 

and will be affected by the upcoming marine or estuarine portion of the rule. We expect the 

costs to be substantially higher when that portion of the rule goes into effect. 

Closing 

EPA's intrusion into the State's water quality program sets unreasonable standards, derails 

existing effective programs, and has tremendous cost implications that will needlessly impact our 

ratepayers and burden our already stressed economies. Rather than discount these concerns, 

EPA should rethink its intervention into Florida water policy. Protecting the environment is the 

core business of our community domestic wastewater treatment utilities. Florida deserves a 

nutrient water quality program focused on cost-effective, measurable environmental programs 

that will continue to protect our pristine waters and improve our impaired waters as we grow. 

21 See "Carollo Freshwater Cost Estimate," available at http://www.fweauc.org/Positions.asp. 

II 
70 


81389.031

On behalf of Utility Council members across the state, thank you for your time and 

efforts on this important issue. 

12 
71 


81389.032

For further information contact: 

Paul Steinbrecher, President, 

Florida Water Environment 

Association Utility Council, 

904-536-8885 

Rod Reardon, Carollo 

Engineers 

407-478-4642, 

rreardon@carollo.com 

Roderick D. Reardon 

P.E. No. 26858 

FLORIDA WATER ENVIRONMENT ASSOCIATION 

UTILITY COUNCIL 

COSTS FOR UTILITIES AND THEIR 

RATEPAYERS 

TO COMPLY WITH EPA NUMERIC NUTRIENT 

CRITERIA FOR FRESHWATER DISCHARGERS 

November 1, 2010 

Engineers .. , vVo!king 

'78·'6'2 ' FAX 1'07) '78·'643 
72 


81389.033

FLORIDA WATER ENVIRONMENT ASSOCIATION UTILITY COUNCIL 

COSTS FOR UTILITIES AND THEIR RATE PAYERS TO COMPLY WITH EPA NUMERIC 

NUTRIENT CRITERIA FOR FRESHWATER DISCHARGERS 

TABLE OF CONTENTS 

1.0 ASSUMPTIONS / BASIS OF ESTIMATES ....... . ... 2 

2.0 DISCUSSION .............................................................. . . ............... ..4 

APPENDIX A - FDEP INDEPENDENT COST ESTIMATE ................... . 

Table 1 

LIST OF TABLES 

Summary of Estimated Project Costs and the Estimated Average Increase in 

Annual Sewer Rates for Affected Utilities and their Ratepayers to Implement 

. ... 9 

Numeric Nutrient Criteria.. . ....................................... . ...... 6 

Table 2 Summary of Estimated Project Costs and the Estimated Average Increase in 

Annual Sewer Rates Per the Extent of Upgrades Required.... ......... ..... . .. 7 

LIST OF FIGURES 

Figure 1: Estimated Project Costs and Annual Sewer Rate Increases by Upgrade Type ............ 2 

~~~.~~------------------------------------------------- November 2010 
73 


81389.034

FLORIDA WATER ENVIRONMENT ASSOCIATION UTILITY COUNCIL 

COSTS FOR UTILITIES AND THEIR RATE PAYERS TO COMPLY WITH EPA NUMERIC 

NUTRIENT CRITERIA FOR FRESHWATER DISCHARGERS 

AVVT 

AWVVTP 

gpcd 

CUP 

DIW 

EPA 

FDEP 

FWEAUC 

HLD 

MF 

NNC 

O&M 

RO 

WRF 

Acronym List 

advanced wastewater treatment 

advanced wastewater treatment plant 

gallons per capita per day 

consumptive use permit 

deep injection wells 

Environmental Protection Agency 

Florida Department of Environmental Protection 

Florida Water Environment Association Utility Council 

high level disinfection 

microfiltration 

numeric nutrient criteria 

operation and maintenance 

reverse osmosis 

water reclamation facility 

E· CJIII~~ --------------------- November 1, 2010 

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81389.035

Florida Water Environment Association Utility Council 

COSTS FOR UTILITIES AND THEIR RATE PAYERS TO COMPLY 

WITH EPA NUMERIC NUTRIENT CRITERIA FOR FRESHWATER 

DISCHARGERS 

In response to the Draft Water Quality Standards for the State of Florida's Lakes and Flowing 

Waters proposed by EPA, a cost estimate for compliance with this rule that is specific to utilities 

with freshwater discharges has been prepared. A previous cost estimate was prepared to 

estimate increases in annual user fees that typical utility customers could experience from 

implementation of EPA's proposed numeric nutrient criteria approach for both fresh and 

marine/estuarine discharges. The updated cost estimate for freshwater dischargers only is 

summarized herein. Section 1 lists the assumptions used in preparing the cost estimates. The 

assumptions are also listed in the Excel file (Carollo_Freshwater_NNC_Costs.xls). The Florida 

Department of Environmental Protection (FDEP) prepared an independent cost analysis, which 

is also referred to in this report and attached as Appendix A. The original and updated Florida 

Water Environment Association Utility Council (FWEAUC) cost estimates as well as the FDEP 

cost estimate are provided. 

Capital and operating cost increases, and the resulting increases in customer charges, are 

expected to vary greatly depending upon the physical location of each utility, its current 

treatment system, the suitability of local geologic formations for deep well disposal, and other 

factors. The range of estimated total project costs is between $4.2 and $6.7 billion, and the 

annual debt service, including incremental operating and maintenance costs, is expected to 

range from $430 million to $620 million per year. These costs are translated into estimated 

increases in annual customer charges for typical utilities to comply with the rule. Typical 

increases in customer charges are expected to range from $570 to $990 per year. The 

estimated rate increases to customers varies by category of solution, such as by use of deep 

well injection or by installation of extensive, tertiary treatment infrastructure. The typical 

increases in customer charges are summarized in Figure 1, which highlights the variability of 

costs that each utility could face. 

~ ~~~1 ________________________________________________ _ 

November 1, 2010 

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81389.036

$250 

$200 

'2 

~ $150 ~ 

~ 

1;1 

8 

1:) $100 .. "e 

Q. 

$50 

$0 

_ Project Cost 

(11) No. Facilities in Category 

"'Yearly Sewer Rate Increase/Customer 

DIWOnly HLD+ DIW MF/RO + Brine AWT + MF/RO + 

Concentrate 

Disposal 

Type of Upgrade 

Brine Concentrate 

Disposal 

$1,200 

~ $1,000 ~ 

.. 

E 

0 

1;1 

:::l 

$800 u 

~ 

.. 

Q. 

.. 

.. '" $600 ~ u 

-= 

~ $400 0:: 

~ 

.. 

:: 

.. 

'" 

$200 ~ .. 

~ 

$0 

Figure 1: estimated Project Costs and Annual Sewer Rate Increases by Upgrade Type 

1.0 ASSUMPTIONS I BASIS OF ESTIMATES 

The assumptions used to determine the updated costs are as follows: 

All water reclamation facilities listed in the current FDEP inventory of wastewater 

treatment facilities available on the FDEP website are assumed to be active facilities 

unless noted. Inactive facilities and septage/residuals disposal facilities were not 

included in the analysis. (http://www.dep.state.f1.usfwaterfwastewaterffacinfo.htm). 

No industrial facilities are included. 

The FDEP list of Class I municipal injection wells is assumed current. 

(http://www.dep.state.fl.usfWater/uic/index.htm). 

Project costs include estimated construction costs plus 30% of the estimated 

construction costs for contingencies and another 20% of the construction costs for 

administrative, legal, engineering, and financing costs. 

The costs to upgrade privately owned domestic treatment facilities are included in this 

estimate. 

All plants that currently discharge to freshwater, that are located in Counties that 

already have deep injection wells (DIW) of any kind (industrial wastewater, RQ 

concentrate, etc.), will be allowed to construct a DIW as their method of disposal with 

E.C#/I~~---------------------

November 2010 2 
76 


81389.037

the exception of Polk County. Polk County's one industrial well is so deep that 

municipal wells of that nature are assumed to be unlikely. 

Annual debt service is based on 30-year amortization schedule and 5% interest. 

Capital upgrades are assumed to be required for the existing design flow of each 

facility, while operating costs are based on an estimate of actual usage. Incremental 

O&M costs assume that all facilities are operating at 50% of design flow. 

The average customer size assumes 2.1 persons per household based on US 

Census information. 

A per capita flow of 100 gallons per day flow is assumed to estimate the population 

served by the listed water reclamation facilities. 

The range of project costs is based on two scenarios. In the base scenariO, the cost 

estimate was prepared assuming that only existing facilities that are direct 

dischargers to freshwater as listed in the FDEP estimate of the cost to comply with 

the EPA freshwater numeric nutrient rule would be required to comply with the 

proposed nutrient criteria by either DIW effluent disposal or by upgrading to 

microfiltration MF/RO. The second, higher estimate of project costs, assumes that all 

the plants listed in the FDEP cost estimate and facilities listed by FDEP as wet 

weather and wetlands dischargers would be required to comply with the proposed 

nutrient rule by upgrading to MF/RO. 

Capital costs to upgrade existing facilities to meet Florida advanced wastewater 

treatment (AWT) limits are assumed to be $8.20/gallon per day of permitted treatment 

capacity. 

A capital cost of $5.00/gallon per day of permitted treatment capacity (feed water 

flow) is assumed to add tertiary microfiltration (MF) and reverse osmosis (RO) to 

existing facilities. 

A capital cost of $3.1 O/gallon per day of treatment capacity (feed water flow) is 

assumed to construct brine concentrators and crystallizers for concentrate treatment. 

A capital cost of $1.00/gallon per day of treatment capacity is assumed to construct 

necessary upgrades for tertiary filtration and high-level disinfection prior to deep well 

injection. 

Dried RO residuals were assumed to be acceptable for landfill disposal in sanitary 

landfills (i.e. the residuals are not hazardous materials) 

A water recovery of 80% is assumed for MF/RO treatment. 

A capital cost of $1.1 Olga lion per day of treatment capacity is assumed to add a new 

deep well to a facility for effluent disposal. 

An incremental cost of $1.00/1 000 gallons treated is assumed for the annual 

operation and maintenance (O&M) costs associated with running AWT and MF/RO. 

An incremental cost of $0.50/1000 gallons treated is assumed for the annual O&M 

costs associated with running equipment associated with tertiary filters and high-level 

disinfection (HLD). 

A cost of $3.00/1000 gallons treated is assumed for the O&M cost associated with 

running a brine concentrator/crystallizer. This is based on the facility flow and is in 

addition to the costs for operating the AWT and MF/RO facilities. 

~~~!~~--------------------------------------------------­ November 1, 2010 3 

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All water reclamation facilities are assumed to incur similar construction and operating 

costs (i.e. the differences that are expected from plant to plant in actuality are 

averaged out in this analysis). 

No costs were included for plants with existing DIWs. 

Where any flow discrepancies existed between the FDEP and the FWEAUC cost 

estimate, the flow listed in the EPA PCS database was used. 

No plants discharging to marine waters or South Florida canals are included in this 

cost estimate. 

2.0 DISCUSSION 

The minimum costs to the utility sector from EPA's proposed rule on numeric nutrient criteria 

for freshwaters were prepared using a base list of existing treatment facilities that currently 

discharge reclaimed water to freshwater lakes, rivers, and streams. This base list for this 

updated cost estimate includes the facilities used in the FDEP cost estimate with the 

exception of the Pinellas County's South Cross Bayou Water Reclamation Facility (WRF), 

the City of Clearwater's Northeast Advanced Wastewater Treatment Plant (AWWTP), and 

the Seacoast Utilities PGA WWTP. The South Cross Bayou WRF and Northeast AWWTP 

both discharge to marine waters. The PGA WWTP discharges to a South Florida canal. The 

upper end of the cost range was developed by adding to the base list those facilities that 

discharge to wetlands and intermittently to freshwaters during wet weather. The estimate for 

the base list plus wetland and wet weather dischargers includes those facilities listed as such 

by FDEP. 

The following example is provided to illustrate how the unit cost assumptions were used to 

estimate the costs to upgrade facilities to meet the EPA rule. A 10 mgd facility supplying 

reclaimed water for reuse needs to upgrade their treatment process to provide AWT and 

MF/RO to meet the proposed numeric nutrient criteria. Upgrading to AWT costs $8.20 per 

gallon of treatment capacity, or $82 million for this example. The addition of MF/RO costs 

$5.00 per gallon of treatment capacity, costing this plant an additional $50 million. 

Concentrate disposal will be accomplished with a brine concentrator and crystallizer because 

DIWs are not possible in this area. At $3.10 per gallon of treatment capacity, this is an 

additional $31 million for the concentrators and crystaliizers. The total capital cost for this 

project would be $163 million, plus 30% of the construction cost for contingencies and 

another 20% for project costs for a total of $254 million. Incremental O&M costs for the 

upgraded plant were estimated by assuming that the facility is operating at 50% of the total 

plant design capacity, or 5 mgd for this example. The additional O&M for AWT and MF/RO is 

$1.00 per 1000 gallons treated, which equates to an additional $5,000 per day or $150,000 

per month. The brine disposal O&M is an additional $3.00 per 1000 gallons treated, which 

equates to another $15,000 per day or $450,000 per month. This is a total of $600,000 per 

month in additional O&M costs for this facility. 

The debt service at 5% interest over 30 years for the capital cost of the upgrades will be 

$16.5 million per year. This equates to a debt service per 1000 gallons treated of $4.53. To 

estimate the population for the service area of the 10 mgd facility at 50 percent capacity, a 

unit flow rate of 100 gallons of wastewater per capita per day (gpcd) is assumed. The 

C~~~--------------------------------------------

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81389.039

estimated population of this area is 50,000 people. Therefore, the capital cost per household 

per month, assuming an average household of 2.1 people, is $57. Similarly, the O&M cost 

per household per month is $25. This is a total additional cost of $82 per month, or $988 per 

year, for each household. A similar calculation was done for each freshwater discharger. 

The updated FWEAUC cost estimates for facilities discharging to freshwaters is provided in 

Table 1. The original FWEAUC and FDEP cost estimates are also provided in Table 1 for 

comparison. The estimated total project costs for utilities in the State to comply with the 

Proposed Final Rule for Freshwaters is between $4.2 and $6.7 billion, depending on how 

wetland, wet weather and reuse systems are regulated. This agrees very well with the FDEP 

estimate of $4.2 billion, which was based only on direct dischargers. Actual costs to the utility 

sector will be higher than this minimum base cost and are dependent upon how many 

predominately reuse and wet weather or wetland discharge facilities also are required to 

meet the more stringent discharge standards. At this time, the language in the rule is unclear 

as to how wetland, wet weather, and reuse systems will be regulated. 

The annual debt service, including incremental operating and maintenance costs, is 

expected to range from a low of $430 million up to $620 million. Converting this debt service 

to average residential wastewater rates results in estimated increases in annual customer 

sewer rates needed to fund compliance with the rule that range from $578 to $696 per 

customer per year. These are the average values for all users in the entire state that now 

discharge to freshwaters. 

The actual sewer rate increase by utility will be highly variable, depending upon the proximity 

of a utility to a geological area where deep well disposal is allowed, the extent of the utility's 

existing reuse system, the utility's desire to supplement existing groundwater supplies with 

the reclaimed water from MF/RO treatment to augment potable supplies indirectly, and other 

factors. 

E' .",,,...~,.. ------------------------- November 2010 5 

81389.040

Table 1 Summary of Estimated Project Costs and the Estimated Average Increase in Annual Sewer Rates for Aff

Utilities and their Ratepayers to Implement Numeric Nutrient Criteria. 

Source of Annual Debt Annual Debt Service Increase in 

Estimate Plants Included Project Cost Service (Including O&M) 

Base List of Florida , 

Updated Freshwater Dischargers $4,200,000,000 $276,000,000 $430,000,000 $155,000

FWEAUC (Direct Discharges Only) 

Base List + All Other $6,700,000,000 $438,000,000 $619,000,000 $181,000

Freshwater Dischargers 

Original Florida Facilities with NPDES $24,400,000,000 $1,600,000,000 $2,000,000,000 $433,000

FWEAUC Permits 

. 

-"-

All Florida Facilities $50,700,000,000 $3,300,000,000 $4,600,000,000 $1,300,00

Base List of Florida 

FDEP Freshwater Dischargers $4,200,000,000 $271,000,000 $456,000,000 $185,000

(Direct Dischargers Onlyl') 

Notes: 

1. The FDEP Base List includes South Cross Bayou WRF, Clearwater Northeast AWWTP, and Seacoast Utilities PGA WWTP, which ar

included in the updated base list. These were excluded from the updated base list because they discharge to marine waters or South 

Canals. 

---------------------------------------------------------------------

November 1, 2010 6 

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81389.041

-------------------.. ------.-----------------~ 

Table 2 Summary of Estimated Project Costs and the Estimated Average 

Increase in Annual Sewer Rates Per the Extent of Upgrades Required 

Type of Upgrade 

(Number of Facilities in this 

Estimate) 

AWT + MF/RO + Brine Concentrate 

Disposal (68) 

MF/RO + Brine Concentrate 

Disposal (14) 

HLD + DIW (17) 

Project Cost 

$191,000,000 

$76,000,000 

$26,000,000 

$9,000,000 

Estimated Yearly Sewer 

Rate Increase per 

Customer 

$990 

$570 

$200 

$120 

The corresponding estimated increases in annual costs by the type of treatment plant 

upgrades assumed to be required are provided in Table 2. The types of upgrades listed in 

Table 2 are representative of those that would be required for plants to comply with the 

proposed numeric nutrient criteria for Florida's lakes and flowing waters. The type of 

upgrades required for a freshwater discharger to comply with the proposed rule will depend 

on the existing level of treatment at the plant and the proximity of the plant to a DIW. As a 

result of this variability, the required increases in sewer rates might be as low as $120 per 

year for those areas able to use deep well injection, to nearly $990 per year for those utilities 

relying on extensive MF/RO treatment. Only facilities in the same county as an existing DIW 

are assumed to have the option to discharge to a DIW, all others must use MF/RO. Facilities 

that are not meeting AWT limits must also upgrade their plants to AWT if using MF/RO, or 

upgrade to HLD if using DIW. Also shown in Table 2, is the number of facilities used in this 

cost estimate that were estimated to fall into each of these categories. As shown here, most 

of the facilities will require the more costly upgrades. 

The availability of DIWs for effluent disposal will be a lower cost alternative for a utility when 

compared to construction of a new or expanded reuse system or upgraded treatment 

facilities. This could unfortunately reduce the amount of reclaimed water that is reused, and 

is contrary to the State's desire to promote the use of reclaimed water as an alternative water 

supply. Utilities that do not have the option of a DIW, must find another method to meet the 

numeric nutrient criteria such as extensive reuse or implementing a high performance 

treatment technology like MF IRO. The feasibility and cost competitiveness of reuse as a 

disposal alternative will depend on how reuse facilities can treat and discharge or store 

excess flows generated during wet weather. Currently the Apricot Rule encourages reuse by 

allowing reuse systems to discharge excess water during wet weather if the reclaimed water 

meets Florida AWT standards. If wet weather discharges must meet the numeric water 

quality criteria as currently proposed, there would be a strong disincentive for communities to 

implement, continue, or expand reuse systems. Other utilities faced with consumptive use 

permit (CUP) conditions for reuse and the need to meet the NNC rule, and unable to use a 

~ ~;ar--•• __ ---------------------------------------------------- November 2010 7 
81 


81389.042

DIW, may find it more economical to implement MF/RO to meet drinking water standards and 

directly inject the water into a potable aquifer. Ultimately, a currently unknown number of 

communities will be forced to implement MF/RO with brine concentrate disposal. These 

customers are expected to experience an increase in user chargers of $570 to $990 per year 

per household, 

This updated estimate includes costs for 110 facilities that will likely be affected by EPA's 

Water Quality Standards for the State of Florida's Lakes and Flowing Waters, These plants 

have a total capacity to discharge to freshwater of about 370 mgd, The majority of surface 

water dischargers in the State of Florida discharge to marine waters, An additional 81 

facilities in Florida, with a total capacity of nearly 900 mgd, have NPDES permits, These 

facilities could be regulated under the second phase of EPA's proposed NNe rules, 

Therefore, these estimated costs to freshwater dischargers represent a fraction of the total 

cost that may be ultimately incurred for meeting the proposed numeric nutrient criteria, 

E,~~~------------------------------------------- November 1, 2010 8 
82 


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APPENDIX A - FDEP INDEPENDENT COST ESTIMATE 

9 
83 


81389.044

FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION 

FDEP Review of EPA's 

"Preliminary Estimate of 

Potential Compliance Costs 

and Benefits Associated with 

EPA's Proposed Numeric 

Nutrient Criteria for Florida" 

Prepared January 2010 by the Environmental Protection 

Agency 

Division of Environmental Assessment and Restoration 

4/28/2010 
84 


81389.045

EPA-HQ-OW-2009-0596 Florida Department of Environmental Protection Comments 4/28/201C 

Contents 

Preliminary Estimate of Potential Compliance Costs and Benefits Associated with EPA's Proposed Numeric 

Nutrient Criteria for Florida ."." . . ......... 1 

Overall Comment: The above cost estimates significantly underestimate those that would be incurred for 

compliance with EPA's proposed criteria ........................... "." ."".".,,""""""""""" "." ......... " .. " ... "." 2 

Background on Preliminary Cost Estimates """ """" ................. " "."""" .... " ...... ,, .... .. . ..... "" ......... "." .. ,," " ... 3 

Municipal WWTPs. 

Assessment Procedure .. 

Industrial Dischargers "" .. ". 

Assessment Procedure .. ".""."." .. " .. 

Urban Storm Water " .. "". 

Assessment Procedure 

Agriculture ..... 

Assessment Procedure 

Septic Systems ............... . 

Assessment Procedure .. 

Benefits Analysis 

Conclusions ... " ........ 

"" ........ " .... " " 4 

. ..................... " ......... " ... " ..... "." ........... " .......... "." ............ " .. " ........... 5 

"" ... "."" .. "" .... " .. " ... 6 

,,9 

"" .. """""" ..... ,, .......... " .. " 9 

" ... 10 

" ... " ....... " .. " .. " ........... " 11 

. ........ " ... " .. " .. " ... 12 

" .. " ....... "" ... ". 12 

" .. " .. " .. " ..... 13 

" .. " .... ".14 
85 


81389.046

EPA-HQ-OW-2009-0596 Florida Department of Environmental Protection Comments 4/28/2010 

V,'nn,,,,,,,,' Numeric 

EPA's Economic Analysis stated 

EPA conducted a preliminary estimate of the potential incremental compliance and state resource 

costs associated with EPA's proposed nutrient criteria for lakes and streams in Florida, Incremental 

costs associated with the proposed rule represent the costs above and beyond the costs that would 

be incurred for compliance with the baseline criteria, For this analysis, baseline costs represent the 

costs necessary for compliance with FDEP's draft water quality standard (WQS) changes (Chapter 

62-302 and 62-303; July 2009), and any costs incurred to reduce nutrient loads to waters on the 

existing state Clean Water Act (CWA) Section 303(d) list or with an existing total maximum daily 

load (TMDL). The preliminary cost estimates described in Attachment #1 to this Report are based 

on criteria representative of these draft changes 1 , and thus, represent potential baseline 

expenditures, 

The incremental costs (cost savings) associated with implementation of the proposed numeric 

nutrient criteria include incremental compliance and government resource costs, Exhibit E5-1 

summarizes the preliminary estimates of compliance costs; actual costs will depend on the 

procedures for assessing waters for compliance and the site-specific source reductions needed to 

attain the criteria, 

Exhibit E5-1, Preliminary Estimates of Potential Annual Control Costs Under the Proposed 

Rule (2009 dollars) [DEP note - the costs listed in Exhibit ES-1 of the EPA document did not 

match the summary costs in the summary table (Exhibit 8-1) in Chapter 8 - it is assumed that the 

Chapter 8 costs, which are consistent with those set forth in the individual chapters, are correct 

Therefore, the corrected costs are shown in the revised table below] 

Souree $!1ctl>r .... P~tei'\'tia!Ciin~rolS , 

Major Municipal WWTPs BNR to reduce TN and/or TP 

Minor Municipal WWTPs BNR to reduce TN and/or TP 

Industrial Dischargers Process optimization/source control 

General Dischargers Process optimization/source control 

Urban Storm Water Uncertain 

Agriculture n forest buffers 

tock fencing 

Septic Systems 

Em.","m~. 

Upgrade to advanced nutrient treatment 

Tnt'll .. I ' ' 

BNR- Biological Nutnent Removal 

TN = total nitrogen 

TP = total phosphorus 

WWTP = wastewater treatment plant 

: ;- .. \ 

Ai\n~~I-Costs (~lIIi"nsl 

$42,7 

$9.3 

$2.3 

$0,6 

Not estimatedl 

$27.9 

$5.1 

$1.9 

$12,4 - $40,2 

.... $102,l-.$E\Q.O 

'Costs are not estimated because the need for incremental controls is uncertain, 

, 

.' . 
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The EPA report also notes that "In addition, state resource costs to complete TMDLs for the 973 potential 

incrementally impaired waters could be approximately $2.5 million per year, based on national overage costs, 

assuming a 9-year implementation schedule. This estimate does not include the potential cost saving that could 

be associated with the 39 waters currently listed as impaired for nutrients that may nat exceed the numeric 

criteria, or incremental casts and cost savings associated with completed TMDLs for which the current TN and TP 

targets are higher or lower than FDEP's draft criteria." 

, Note that FDEP's draft numeric nutrient criteria differ slightly from those used to estimate preliminary baseline 

compliance costs. 

The Department performed a cost estimate that indicates that the EPA significantly underestimated the costs to 

achieve the proposed EPA criteria. One of the primary reasons is that EPA assumed for all the estimates that 

certain costs would have already been incurred in order to meet the Department's proposed numeric nutrient 

criteria (NNC). This assumption is invalid because the Department's proposed NNC have not yet been adopted. 

Therefore, all of the Department's estimates are based on additional costs that would be incurred above the 

currently implemented controls in order to achieve EPA's proposed criteria. In addition, the Department has 

used the best available technical information to perform a more comprehensive analysis, which has also 

resulted in increases in the cost estimates. The specific reasons for the increases are as follows and are 

described in more detail in the discussion regarding each of the assessed source sectors: 

For domestic wastewaterfacilities, the level of technology used by EPA to estimate costs was not 

sufficient to achieve the proposed criteria. Additional technologies, such as reverse osmosis, will likely 

be required to meet the proposed criteria. 

For industrial wastewater facilities, EPA used an assumption that process controls on the order of 

$25,000 per year would be sufficient for industrial wastewater facilities to meet the proposed criteria. 

However, sou~ce controls alone will not be sufficient to meet the proposed criteria. Some industrial 

facilities, such as pulp mills, have organic wastewaters similar to domestic wastewater in nature, and will 

require tertiary treatment similar to domestic wastewater treatment systems to meet the proposed 

criteria, Other industrial facilities, such as fertilizer manufacturing facilities, have inorganic wastewater 

streams high in nitrogen and phosphorus that are not amenable to biological treatment and will require 

the use of chemical and physical treatment systems, such as reverse osmosis, to meet the proposed 

criteria, 

EPA failed to estimate any costs for the treatment of urban stormwater needed to meet the proposed 

criteria, Even though Florida has had stormwater treatment requirements for new development since 

the early 1980s, it is highly likely that "older" urban areas will need to construct stormwater system 

retrofits to meet the proposed EPA criteria. 

For agriculture, EPA significantly underestimated the affected acreage of agriculture (6.13 million acres 

versus 13.6 million acres for the FDACS estimate). In addition, the EPA cost estimate assumed that only 

a subset of typical BMPs (nutrient retention, forested buffers and livestock fencing) would be needed to 

achieve the criterion. In contrast, the FDACS estimate assumed that All typical BMPs would be 

necessary (FDACs has developed BMP manuals for a variety of agricultural operations, and the BMP 

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manuals developed to date and a map showing the locations of BMPs implemented are provided as 

supplemental information to DEP's comments). In fact, based on modeled reduction estimates for 

typical BMPs, the FDACs estimate concluded that additional on-farm water treatment/retention 

facilities would be necessary to achieve the EPA's proposed criteria. 

A comparison of the Department's estimated annual costs for each source sector with the EPA estimated 

cost for that source sector is shown in Table 1, below, 

Table 1-A Comparison of FDEP estimated annual costs with EPA estimated annual costs (M$) 

An!lu~1 Costs {in Millions}' 

fDEP.Estimate " ' "EPA,Estimate 

Source SectQr Low ! High loW ! High 

Municipal WWTPs $456 $52 

Industrial & General Dischargers $2,113 $3 

Urban Storm Water $1,967 

Agriculture2 $271 $974 $35 

Septic Systems $937 $2,888 $12 ! $40 

Total $5,744 $!l;398 $i02 ! .... $130 

lAssumptlons for annual cost estimates are set forth In mdlvldual source sector methodology descriptions, 

'FDEP estimate for agricultural source sector prepared by Florida Department of Agriculture and Consumer 

Services, in cooperation with the University of Florida Institute for Food and Agricultural Sciences and Soil and 

Water Engineering Technology, Inc. 

'FDACS estimates cover annual capital costs + O&M. Additional lost revenues would also be incurred and are 

described in more detail in the agricultural section. 

The Department performed a cost estimate for each source sector identified in the EPA cost estimates. The 

methodology and assumptions used in deriving these estimates are described in detail in the section covering 

each source sector. Table 2 shows the potential source controls employed in the Department's estimate for 

each source sector and the resultant annual costs associated with those controls. 

Table 2 - FDEP potential controls and associated annual costs for source sectors 

Source Sect<1r Potential Contro)s Animal Costs (Millions) 

Municipal WWTPs Advanced Waste Treatment +Reverse Osmosis and $456 

brine disposal or Injection weill 

Industrial Dischargers Reverse Osmosis and brine disposal $2,113 

Urban Storm Water Retrofit to current storm water treatment standards $1,967 

(retention & detention + chemical treatment) 

Agriculture All typical owner-implemented BMPs + on-farm water $271- $974 

treatment/retention facilities 

Septic Systems Upgrade to high nutrient removal SeptiC Systems $937 - $2888 

iota! .. ,. "., $5,744 • $8,398 1 In countIes With eXlstmg mJectlOn wells 
88 


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EPA estimated 47 major and 53 minor municipal discharges to lakes and freshwater streams that would be 

affected by the proposed rule. EPA considered the limit of technology (LOT) for biological nutrient removal to 

be 3 mg/L forTN and 0.1 mg/L for TP. EPA's cost estimate acknowledged that "All of the proposed TN criteria 

are below the LOT" and "Proposed TP criteria forflowing waters are at or below the LOT in three of the five 

regions" and "proposed TP criteria for lakes are below the LOT". The EPA cost estimates were based on 

retrofitting existing biological treatment trains to achieve the LOT for TN and TP. The estimates noted that 

"where it may be technologically infeasible to attain the standards, a use attainability analysis may be needed". 

The Department performed a cost estimate, which assumed technologies such as reverse osmosis could be used 

to meet the proposed criteria, or that facilities may elect to cease their surface water discharges through the use 

of less costly deep well injection. The Department's analysis indicates that the EPA estimates Significantly 

underestimate the costs to achieve the proposed criteria for the following reasons: 

The EPA cost estimate assumed that only a few facilities would be required to upgrade to meet the EPA 

WQC because most facilities would already be upgraded to meet the proposed DEP numeric nutrient 

criteria (NNC). This assumption is invalid, since the proposed DEP NNC have not yet been adopted. This 

estimate includes costs associated with meeting the proposed EPA NNC over and above the cost of 

meeting current discharge limitations. 

The EPA cost estimate was based on a level of treatment (LOT) for biological nutrient removal that 

would not meet the EPA WQe. For example, in the panhandle region the EPA cost estimate was based 

on a LOT otTN < 3 mg/L and TP < 0.1 mg/L. However, EPA's WQe forthe region was TN < 0.824 mg!L 

and TP < 0.043 mg!L. 

For the most part, the EPA Report used capital and Operational and Maintenance (0 & M) unit costs 

derived from CAPDETWorks for various treatment schemes. Unit costs that were used in the EPA Report 

appeared to be low when compared to comparable facilities constructed in Florida. 

Costs for two facilities on EPA's list were not included since one was inactivated and the other no longer 

discharges to surface water. 

To highlight EPA's significant under~estimation of costs, the city of Cross City (0.4 million gallons/day permitted 

capacity) estimated its capital costs to comply with the proposed nutrient criteria to be $5,800,000. The EPA 

Report estimated Cross City's capital costs at $422,799 (see AppendiX A of EPA Report). 

Table 3 below summarizes the Department's estimates for total capital costs, 0 & M costs, and annual costs for 

domestic wastewater treatment facilities in the State that currently discharge to freshwater streams and lakes: 

Table 3 - Cost Estimates for Domestic Wastewater Facilities 

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1. Only domestic wastewater facilities discharging to fresh waters (streams and lakes) with NPDES permits 

were included in the estimate. The lists of domestic wastewater facilities contained in both Exhibit 8 (page 

7) and Appendix A of the EPA's Preliminary Estimate of Potential Compliance Costs and Benefits Associated 

with EPA's Proposed Numeric Nutrient Criteria for Florida, January 2010, ("EPA Report") were used. 

2. Advanced biological treatment and reverse osmosis were assumed to be needed to meet the proposed EPA 

water quality criteria (WQC) for both nitrogen and phosphorus prior to discharge to surface waters. 

Disposal by injection wells after filtration/high level disinfection instead of surface water discharge were 

assumed feasible in lieu of advanced biological treatment and reverse osmosis in Florida counties with 

existing domestic injection well disposal systems. 

3. Permitted flow capacity was used to calculate capital costs. 

4. Unit capital costs to upgrade were based on: 

For facilities that do not currently provide advanced biological wastewater treatment-

$16.30/gallon (advanced treatment ($8.20/ gallon)+ reverse osmosis ($5.00/ gallon)+ brine disposal 

($3.10/ gallon)); 

For facilities that currently provide advanced biological wastewater treatment - $8.1O/gallon 

(reverse osmosis ($5.00/ gallon)+ brine disposal ($3.10/ gallon)); and 

For facilities that are located in counties with existing domestic injection wells that are assumed to 

cease their current surface water discharges - $2.10/gallon (filtration/high level disinfection 

(Sl.OO/gallon) + and injection well disposal ($l.lO/gallon)). 

5. Twenty five percent was added to unit capital costs for planning, engineering and construction 

contingencies. 

6. Fifty percent of the permitted flow capacity was used to calculate O&M costs as facilities typically operate 

at less than their permitted capacities. 

7. Unit operation and maintenance costs were based on: 

For facilities that do not currently provide advanced waste treatment - $4.00/1000 gallons 

(advanced treatment/membrane filter/reverse osmosis ($1.00/1000 gallons) + brine disposal 

($3.00/1000 gallons)); 

For facilities that currently provide advanced biological wastewater treatment - $3.00/1000 gallons 

(brine disposal ($3.00/1000 gallons)); and 

For facilities that are located in counties with existing domestic injection wells that are assumed to 

cease their current surface water discharges - $1.60/1000 gallons (filtration/high level disinfection 

($0.50/1000 gallons) + injection well disposal ($1.10/1000 gallons)). 

8. The 3D-year annualized cost assumed a 5% interest rate. 

9. The following unit costs were obtained from the report prepared for the Florida Water Environment 

Association Utilities Council, Technologies to Meet Numeric Nutrient Criteria at Florida's Domestic 

Wastewater Reclamation Facilities, March 2, 2010, by Carollo Engineers ("FWEA Report"). The unit costs 
90 


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EPA-HQ-OW-2009-0596 Florida Department of Environmental Protection Comments 4/28/2010 

contained in the FWEA Report were extensively documented and determined by the Department to be 

reasonable, 

Unit capital costs - advanced treatment ($8.20/ gallon), reverse osmosis ($5.00/ gallon), brine 

disposal ($3.10/ gallon), and injection well disposal ($1.10/gallon); and 

Unit operation and maintenance costs - advanced treatment/membrane filter/reverse osmosis 

($1.00/1000 gallons), brine disposal ($3.00/1000 gallons), and injection well disposal ($1.10/1000 

gallons). 

10. The following unit costs were obtained from cost curves contained in EPA's Innovative and Alternative 

Technology Assessment Manual (EPA-430/9-78-009) updated for 2010 costs: 

Unit capital costs filtration/high level disinfection ($1.00/gallon); and 

Unit operation and maintenance costs - filtration/high level disinfection ($0.50/1000 gallons). 

Detailed costs for each NPDES domestic wastewater facility are set forth in Appendix 1. 

The EPA estimate noted that "In most cases, it is more cost effective for industrial dischargers to control the 

source of nutrients in the effluent through BMPs, product substitution, process modifications, or process 

optimization than to treat the entire effluent prior to discharge." Their estimate also noted that such costs 

would be highly site specific. To illustrate the potential magnitude of costs, EPA estimated that, if dischargers 

spend an average of $25,000 per year on source control and process optimization to reduce nutrient loads, total 

annual costs to the industrial and general-permitted dischargers (Exhibit 2-2) would be $2.9 million. 

The Department performed a cost estimate, which assumes that source controls alone would be insufficient to 

meet the proposed criteria, and that reverse osmosis would be required to meet the proposed criteria. The 

Department's analysis indicates that the EPA estimates significantly underestimate the costs to achieve the 

proposed criteria for the following reasons: 

For industrial wastewater facilities EPA used an assumption that process controls in the order of $25,000 

per year would be sufficient for industrial wastewater facilities to meet the proposed criteria. However, 

source controls alone will not be sufficient to meet the proposed criteria. Some industrial facilities, such 

as pulp mills, have organic wastewaters similar to domestic wastewater in nature, and therefore will 

require tertiary treatment similar to domestic wastewater treatment systems to meet the proposed 

criteria. Other industrial facilities, such as fertilizer manufacturing facilities have inorganic wastewater 

streams high in nitrogen and phosphorus that are not amenable to biological treatment, and will require 

the use of chemical and physical treatment systems, such as reverse osmosis to meet the proposed 

criteria. 

EPA assumed 94 Industrial Wastewater (IW) facilities would be affected by numeric criteria. The 

Department excluded certain Standard Industrial Code (SIC) categories unlikely to discharge nutrients 

and added other SIC categories, resulting in a net total of 78 facilities. 

6 
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EPA-HQ-OW-2009-0596 Florida Department of Environmental Protection Comments 4/28/2010 

EPA assumed a 20 year payment period with a fixed interest rate of 7%. The Department used the 

values of 30 years and 5% to be consistent with the estimates for domestic wastewater and urban 

runoff. 

Table 4 below summarizes the Department's estimates for total capital costs, operational and maintenance 

costs, and annual costs for industrial wastewater facilities discharging to fresh water streams or lakes: 

Table 4 - Cost Estimates for Retrofit of Industrial and General Dischargers 

Tot'll Capital (;05t 

for Retrofit (M$) 

$23,792 

1. This estimate is restricted to IW facilities that discharge to freshwater flowing streams and lakes 

under individual NPDES permits. 

2. The list of facilities is further restricted to: 

a. facilities that have numeric discharge limitations for any form of nitrogen and/or phosphorus in 

their NPDES IW permits, 

b. facilities that are required to report the concentration of any form of nitrogen and/or 

phosphorus in their NPDES IW permits, and 

c. other NPDES permitted IW facilities that are not currently required to monitor nutrients, but 

are in the SIC categories for a and b, above. 

3. The following facilities are not included: 

a. Potable water facilities (SIC 4941) that use membrane processes, primarily Reverse osmosis 

(RO), for demineralization are not included in this exercise. This exercise assumes that the 

reject wastewater stream from membrane separation processes will be disposed by other 

means than surface water discharge; 

b. Stormwater Treatment Areas (STAs) (SIC 3822) developed for Everglades restoration efforts 

within the Everglades Protection Area have separate criteria and are not included. 

c. NPDES permitted facilities in various SIC categories that meet the criteria in items 1 and 2, 

above, but which have not discharged to surface water within the past five years, based on U.S. 

Environmental Protection Agency's (EPA) Permit Compliance System (PCS) database. 

4. RO is likely needed for treating IW effluent to meet numeric nutrient criteria. RO produces a 

concentrated wastewater stream that will need to be disposed by other means than surface water 

discharge. 

5. Discharge estimation assumptions are as follows: 

7 
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EPA-HQ-OW-2009-0596 Florida Department of Environmental Protection Comments 4/28/2010 

a. The discharge flows used are based on data obtained from WAFR/PCS, as reported on 

Discharge Monitoring Reports (DMRs) from permitted facilities for the five year period from 

January 1, 2005 through December 31, 2009. Only data for outfalis with nutrient limits are 

used in the analysis. 

b. Estimated annual discharges were assumed for 340 days/year of discharge, except for facilities 

that are known to have intermittent discharges, in which case actual or estimated days/year for 

discharge were used. 

c. Monthly average flows were used as the flow basis in estimating annual O&M costs. 

d. Daily maximum flow data were used as a rough equivalent of maximum design capacity for 

estimating capital costs. 

6. Cost estimation assumptions are as follows: 

a. Costs assume that reverse osmosis (RO) wili be used to provide tertiary treatment to meet the 

proposed numeric nutrient criteria. 

b. Unit costs for reverse osmosis from the FWEA Report were used, under the assumption the unit 

costs were applicable to both domestic and industrial wastewater. However, costs for reverse 

osmosis for industrial wastewaters are likely to be significantly higher than those for domestic 

wastewater. Industrial wastewaters may be concentrated, higher strength wastewaters with 

more variation in their characteristics that may result in low RO membrane recoveries and 

require additional pre and post RO treatment. 

c. A unit cost of $3.00/1,000 galions RO treatment with brine concentrator, cited in the FWEA Report, 

was used to estimate annual O&M costs. 

d. Capital cost estimates assumed a rate of $8.10/galion of maximum design capacity per facility 

for construction ($5.00/gal for RO system construction + $3.1O/gal for brine disposal system 

construction). An additional 25% was added to the construction cost for engineering and 

contingency. 

e. The thirty year annualized cost assumed a 5% interest rate. 

7. There is some limited experience and cost data available in the use of RO to treat process waters 

from gypsum stack systems associated with fertilizer manufacturing facilities (SIC 2874). These 

costs have been in the range of $15-$25 per thousand galions of water treated using RO and are 

indicative of the high strength nature of process wastewater. These costs included both capital and 

O&M costs. During operation a fertilizer manufacturing plant does not discharge, except during 

unusual rain events. However, when a plant ceases operation, process water contained in the 

Gypsum stacks and cooling ponds must be treated and discharged over a five year closure period, 

foliowed by post-closure treatment and discharge of water draining from the gypsum stack systems 

over periods of up to SO years. An average unit cost of $20/1000 galions was multiplied by the 

estimated process water volumes over the closure and post closure periods obtained from closure 

cost estimates developed by the owners of the gypsum stacks and maintained by the Department's 

8 
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EPA-HQ-OW-2009-0596 Florida Department of Environmental Protection Comments 4/28/2010 

Bureau of Mining and Minerals Regulation. The total additional costs for treating 55.54 billion 

gallons of process water from gypsum stacks by RO to meet the proposed EPA criteria are 

estimated at $1,110,800,000. A 30-year annualized cost was calculated using a 5% interest rate. 

The resultant annual costs were $72 million. 

Detailed costs for NPDES Industrial wastewater facilities in affected SIC categories are provided in Appendix 2. 

The EPA did not estimate costs for implementation of additional non point source controls because "the need for 

incremental controls is uncertain", although the EPA document did note that "Numeric nutrient criteria may 

affect urban storm water dischargers through changes to permit requirements or the TMDL and BMAP process." 

In order to provide an estimate for such potential costs, the Department performed analyses as set forth in the 

following procedure. The estimate is restricted to NPDES municipal separate storm sewer systems (MS4) that 

are covered under either a Phase I individual pe~mit or the Phase II Generic Permit and only those permitted 

MS4s that either have 100% of the stormwater discharge to freshwater bodies, or the relative portion of the 

MS4 that has a discharge to freshwater bodies. Total costs, O&M costs, annual costs and annual costs per 

household are in Table 5 below: 

<:~p:ital C"stior .Retfq:fit 

(M$) 

$17,101 

Table 5 - Cost Estimates for Retrofit of MS4 Projects! 

30·y~ar Annu;d ~ost 

p~rHolJseljo)il($J 

$359 

!The above costs do not account for urban nonpoint source runoff coming from lands within local government 

jurisdictions, especially for counties, that are not part of the permitted MS4 system. This urban nonpoint 

stormwater is covered by a Load Allocation within an adopted TMDL and local governments are responsible for 

meeting these load reductions. This, this estimation of urban stormwater costs underestimates the total costs 

likely to be incurred to reduce urban stormwater loadings as needed to meet the proposed EPA criteria. 

1. The estimated total urban land area forthe MS4s in Florida was determined from the 2000 U.s. Census'. 

2. The subtotal of the pre-1982 urban area that discharged to freshwater was estimated from a GIS 

analysis, The analysis involved creating overlaying GIS layers of the urban areas and the freshwater 

WBIDs that overlapped the pre-1982 urban areas and then determining the freshwater subtotal from 

the resultant overlapping layers. The total urban area discharging to freshwater was determined to be 

3,009,297 acres. 

3. The subtotal of the area determined in step 2 that was developed prior to 1982 was then determined. 

For the purposes of this estimate, it was assumed that implementation of urban stormwater measures 

subsequent to the 1982 stormwater rules would achieve the proposed EPA criteria, but that urban areas 

1 The Florida Statutes that regulate the MS4 program reference the urbanized areas of the most recent decennial U.S 

Census as the method for determining the regulated MS4 community. In addition, the urban boundaries were readily 

available as a GIS layer that could be used to estimate their area. 

9 
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EPA-HQ-OW-2009-0596 Florida Department of Environmental Protection Comments 4/28/2010 

without such measures would not. The urban land use data from 1982' indicated that there were 

3,141,631 urban land use acres at that time. That area increased to 4,032,659 acres based on the 2000 

U.S. Census urban area information, for a percent change of approximately 22%. Therefore, for the 

purpose of this estimate it was assumed that this relative percentage would apply uniformly to all urban 

areas assessed. Therefore the urban area requiring treatment was determined by multiplying the urban 

areas discharging to freshwaters by 78% (3,009,297 x -78% = 2,344,242 acres). 

4. Florida has undertaken numerous retrofit projects to address pollutant loading from municipal 

stormwater runoff, many of which required monitoring in order to show the effectiveness of the 

retrofit. The data from these projects have been compiled into a database by the Department, which 

include information on the acreage of the area that was retrofitted. This information was used to derive 

a cost per unit acre to retrofit urban areas for nutrient removal. The median cost per acre for such 

retrofit projects was $7,295 per acre, with a range of $863 per acre to $37,002 per acre from the 10th to 

the 90'" percentile. For the purposes of this estimate, the median value was used. 

5. Using the acreage derived in step 3 and the unit area retrofit costs in step 4, the total capital cost to 

implement such retrofit projects was estimated as $17,100,683,851. 

6. The O&M costs were estimated based on literature available'. Although actual costs can often exceed 

this rate, a conservative estimate of 5% of the capital outlay was chosen for this estimate. The 0 & M 

costs were not escalated for inflation. The resultant estimated annual 0 & M costs were $855,034,192. 

7. A 30-year annualized cost was calculated using a 5% interest. The resultant annual costs were 

$1,967,458,217.92 

8. USing the 2000 Census data, the number of households in the State of Florida within the freshwater 

portion of the urban area was calculated at 5,475,652. This value was determined by dividing the urban 

area population (13,470,104) by the average number of persons per household (2.46) in 2000. The 30 

year annualized cost per household was then calculated by dividing the 30 year annualized costs by the 

number of households. The resultant annual cost per household was approximately $359. 

Detailed costs for each MS4 are set forth in Appendix 3. 

EPA estimated that annual costs for implementation of agricultural Best Management Practices (BMPs) would 

be $27.8 million for nutrient management, $5.0 million for forest buffers, and $1.9 million for livestock fencing. 

Nutrient management costs were based on a useful lite of 3 years and a discount rate of 7%, the forest buffer 

costs were based on a useful life of 30 years and a discount rate of 7%, and the livestock fencing costs were 

based on a lO-year usefullile and a rate of 7%. These estimates assume that there are no 0 & M costs and that 

the Department's proposed numeric nutrient criteria are already in place. 

2. The 78 percent value is a statewide percentage taken from the document entitled Land Use Changes;n Florida's Urbanized 

Areas (UF, 1991). 

3 The Use af Best Management Practices (BMPs) in Urban Watersheds - u.s. EPA, 2004; Stormwater: The Journal for Surface 

Water Quality Professionals, Nov.-Dec., 2008. 

10 
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EPA-HQ-OW-2009-0596 Florida Department of Environmental Protection Comments 4/28/2010 

The Florida Department of Agriculture and Consumer Services (FDACS), in coordination with the University of 

Florida Institute for Food and Agricultural Science and Soil and Water Engineering Technology, Inc., performed 

an independent cost estimate' (Appendix 4) that indicates that the EPA estimates significantly underestimate 

the costs to achieve the proposed criteria for the following primary reasons: 

The EPA cost estimate assumed that only 6.13 million acres of agricultural land would be required to 

implement BMPs to meet the EPA WQC because most agriculture in the state would already have BMPs 

implemented to meet the proposed DEP numeric nutrient criteria (NNC) and that the proposed EPA 

criteria would have only an "incremental" impact. This assumption is invalid, since the proposed DEP 

NNC have not yet been adopted. The full estimate resulted in a gross area of affected agricultural land 

of 13.60 million acres. 

The EPA cost estimate assumed that only a subset of typical BMPs (nutrient retention, forested buffers 

and livestock fencing) would achieve the criterion. The FDACS estimate assumed that ALL typical BMPs 

would be necessary. In addition, based on modeled reduction estimates for typical BMPs, the FDACs 

estimate concluded that additional on-farm water treatment/retention facilities would be necessary to 

achieve the EPA's proposed criteria. Thus, additional costs for the on-farm water treatment/retention 

facilities would be incurred. These additional costs account are reflected in the upper end of the range 

shown. 

Total capital costs, annual operational and maintenance costs, and 20-year annual costs are in Table 6 below: 

Table 6 - Cost Estimates for Agriculture 

In addition to the additional capital and 0 & M costs estimated to be incurred by the agricultural industry, the 

FDACS estimate also estimated regional economic impacts of production land displacement, since approximately 

10 percent of agricultural land was estimated to be taken out of production due to implementation of on-farm 

water treatment/retention systems. Those economic impacts were estimated to be a $631 million direct loss of 

annual agricultural industry output and a total direct loss (includes other affected sectors) of $1.148 billion. The 

loss of employment was estimated to be 7,780 agricultural jobs and 14,545 total jobs. 

1. The net and gross area (acres) of land used in Florida for each agricultural industry or commodity subject 

to the proposed EPA standards was taken from the 2007 Census of AgricultureS and the Forest Inventory 

and Analysis' (USDA-Forest Service). Agricultural sectors were classified according the North American 

Industry Classification System (NAICS). 

4 Economic Impacts and compliance Costs of Proposed EPA Numeric Nutrient Criteria for Florida Agriculture. FOACS, U of 

FjIFAS, SWET, Inc. April 22, 2010. 

S USDA-NASS, 2007 Census of Agriculture, Florida, Vall, Geographic Area Series, Part 9, State and County Data 

6 USDA-Forest Service, Forest Inventory and Analysis. Data for Florida, 2007 

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EPA-HQ-OW-2009-0596 Florida Department of Environmental Protection Comments 4/28/2010 

2. The estimated per-acre costs for agricultural producers to implement BMPs were taken from a report 

prepared for the South Florida Water Management District'. BMPs included the full range of typical 

owner-implemented practices, such as fertilizer management, grazing management, and livestock 

exclusion from waterways. Additional on-farm water treatment/retention practices include wetland 

restoration, water recoverY/fe-use systems, and on-site water treatment/retention systems. 

3. Initial capital cost estimates include materials, labor and engineering. 

4. Total annual costs include 0 & M (estimated at 20 percent of the capital costs) and amortization of the 

capital investment at 10 percent interest over 20 years. 

Systems 

The EPA cost estimate assumed that only a limited number of septic system upgrades would be necessary to 

meet the EPA proposed numeric nutrient criteria because many septic systems in the state would already have 

septic system upgrades necessary to meet the proposed DEP numeric nutrient criteria (NNe) and that the 

proposed EPA criteria would have only an "incremental" impact. As we have noted previously, this assumption 

is invalid, since the proposed DEP NNC have not yet been adopted. The EPA analysis estimated the number of 

septic systems in incrementally impaired waters at approximately 177,200. The EPA noted that the septic 

systems could be required to upgrade when they failed and based their annual costs on an average failure rate 

of 3.49%8. Their estimated costs to upgrade the failed systems to achieve nutrient removal were in the range of 

$2000 to $6500 per system. The annualized costs were estimated to range from $12.4 million to $40.2 million. 

The Department performed a cost estimate for septiC system upgrades necessary to achieve the proposed EPA 

criteria. The Department's analysis assumed that conventional septiC systems on lots larger than three acres 

would be able to achieve the proposed EPA criteria', thus no additional costs were assumed 

1. Florida Department of Health reviewed permit records to determine how many of Florida's 2.6 million 

septiC systems are on lots less than 3 acres in Size. The review indicated that approximately 83% of new 

septiC systems were on lots less than 3 acres and approximately 90 % of old systems were on lots less 

than 3 acres'. Forthe purpose of this estimate a value of 85% was chosen. 

2, The Department's estimate for urban stormwater indicated that approximately 75% of Florida's urban 

areas discharge to fresh waters. It was assumed that proportion would be a reasonable assumption to 

make in order to calculate septic system costs. 

7 Soil & Water Engineering Technologies, Inc. (SWET), 2008. Nutrient Loading Rates, Reduction Factors and Implementation 

Costs Associated with aMPs and Technologies, Appendix A 

8 Florida Department of ttealth (DOH). 2009. Onsite Sewage Treatment and Disposal Systems Installed in florida. 

, FDEP /fDOH developed a draft spreadsheet calculation tool that can be used to estimate appropriate type of septiC system 

to achieve certain levels of treatment for various lot sizes, The 3 acre lot size is based on a standard 3 bedroom house with 

an estimated sewage flow of 300 gpd (Shanin Speas Frost, FDEP, Personal Communication). 

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3. Construction costs for estimate were taken from an Interim Report prepared for the Department 

entitled Onsite Sewage Treatment and Disposal Systems Evaluation for Nutrient Removal January 7, 

2010, Stormwater Management Academy, University of Central Florida. Costs for septic systems with 

high levels of nutrient removal ranged from $9,320 to $18,200 per unit Operation and maintenance 

costs were also estimated from this report, which indicated values ranging from $200 - $1,800 per year. 

4. 20-year annualized costs were calculated using an assumed interest rate of 5%. The 0 & M costs were 

not escalated for inflation. 

5. The above method is a worst case scenario based on a complete replacement in the first year of all 

systems on smaller lots than 3 acres and discharging to groundwater that eventually becomes 

freshwater. The method produces annual cost estimates ranging from approximately $1.6 - $5.5 billion. 

Since immediate replacement of septic systems may not be justifiable or feasible, a more reasonable 

estimate and one more consistent with the EPA estimate would be a replacement rate of 5% a year, 

which is still higher than the repair rates of 05 -1 % per yearlO 

The resultant total capital costs, annual operational and maintenance costs, and 20-year annual costs are in 

Table 7 below: 

Table 7 - Cost Estimates for Septic Systems 

... '. SEPTIC SYSTEM COST ESTIMli."tE CALCUI,ATIONS " ... 

Number of Septic Systems in Florida= 2,500,000 

Proportion of Septic Systems on Lots < 3 acres= 90% 

Proportion of Septic Systems discharging to fresh waters= 75% 

Total Number of Septic Systems to be Upgraded 1,687,SOO 

low ". High 

Costs for High Nutrient Removal Septic Systems= $9,320 $18,200 

o & M per Septic System= $200 $1,800 

Instant Replacement Total Cost= $15,727,500,000 $30,712,SOO,000 

Instant Replacement Total 0 & Mover 20 years $337,500,000 $3,037,500,000 

Instant Replacem!"nt AnnualCosts= $1,599,515,290 $5,501,950,459 

5% per year replacement annual costs 936,612,536 2,887,762,828 

The Department did not undertake a separate benefit analysis to compare with the EPA estimate. However, we 

would note that the Department's cost estimates lead to an annual cost of approximately $313 - $458 per 

person' \ compared to the Willingness to Pay values in EPAs estimate of $0.34 - $0.37 per person. 

10 Eberhard Roeder, FDOH, Personal Communication. 

11 Based on the FDEP costs in Table 1 and an assumed Florida population of 18,328,340 people, 

13 
98 


81389.059

EPA-HQ-OW-2009-0596 Florida Department of Environmental Protection Comments 4/28/2010 

In summary, the cost estimates to comply with EPA's proposed numeric nutrient criteria compiled by the 

Department indicate that EPA underestimated the costs. The Department's estimates indicate annual costs 

ranging from $6 - $12+ billion a year. While the State of Florida is very interested in ensuring our waters are 

restored and protected, the magnitude of these costs underscore the need to develop correct and accurate 

criteria using the best science available. In addition, the costs also underscore the need to ensure that the 

implementation of numeric nutrient criteria is done in a manner that makes efficient and effective use of 

Florida's resources. 

14 
99 


81389.060

The EPA's NNC Approach for Florida: 

Some Case Studies of Effects on Florida Utilities 

SECOND IN A SERIES 

From the FWEA Utility Council 

This is the second in a three-part ,\crics that the FWEA Utility 

Council (\nd the Fh)rida Wt1tl;'l- l\eS()w'u' Jounwl are fc.lturing on the 

Environmental Protection (EPA's) controvcrsi,d numeric 

nllfrit.'!lt (ntnia (~NCl 

Paynes Prairie Sheetflow Restoration Project - Gainesville, Florida 

Figure 1 Paynes Prairie Sheetflow Restoration Proied 

. FLORIDA WATER RESOURCES JOURNAL· ,JUNE 2011 • 39 
100 


81389.061

Clay Counry Utiliry Authoriry - Apricot Act/Dissolved Oxygen SSAC Considerations 

40 . ,JUNE 2011 • FLORIDA WATER RESOURCES JOURNAL 

meric nntrient criteria for freshwater streams, 

Continued 011 pi1gc 42 
101 


81389.062

of Ocala - Land Application/Reuse Implications 

leff Halcomb 

Ci~y of Tampa - Potential Displacement of a Successful TMDL Program Investment 

42 . JUNE 2011 • FLORIDA WATER RESOURCES ,JOURNAL 
102 


81389.063

The EPA's ;,;'NC rule, as currently promulgated, uncons(ionahly does not recognize 

these types of existing programs ,md :.uccessnutriFLORIDA WATER RESOURCES JOURNAL • .JUNE 2011 • 43 
103 

Mr. STEARNS. Thank you. 

Mr. Dever? 

STATEMENT OF WILLIAM DEVER 

Mr. DEVER. Thank you, Chairman Stearns. 

My name is Bill Dever, and I’m the president of the Florida Gulf 

Coast Building and Construction Trades Council. Our affiliated 

unions represent thousands of working men and women whose jobs 

often depend on investment in construction and maintenance in 

Florida’s Gulf Coast region. 

Thank you for the opportunity to speak about this issue that is 

so important to so many Floridians. Water is perhaps Florida’s 

most precious and abundant resource, and we all agree that promoting clean and responsible water usage is important. But it’s 

just as important to promote balanced approach to water policy, 

one that also recognizes our need for good-paying jobs, a healthy 

economy, and a lower economic burden, especially during this difficult economy. 

Recent decisions by the EPA threaten to increase the burden on 

hard-working Floridians by unfairly singling Floridians out as the 

only Americans subject to new erroneous numeric nutrient criteria 

that will have an unwanted impact on many in Florida’s building 

and construction trades community. In other words, Mr. Chairman, 

the people of Florida need both clean water and good jobs, and this 

should not be an either/or proposition. 

But that is what the EPA’s proposal is—water quality standards 

so expensive to achieve that any new job growth and even existing 

jobs would be lost. This is not the time, and Florida is not the 

place. 

Based on projections made by Florida agencies and private sector 

industries, we are extremely concerned that the high cost of implementing these new regulations will lead directly to a reduction in 

new investment and construction jobs in our State. In my capacity 

as president of the Florida Gulf Coast Building and Construction 

Trades Council, I submitted a letter in June to President Obama 

that was signed by 14 leaders of our affiliated trade organizations. 

In the letter, we warned the President about the negative economic impact these new mandates would have on our jobs and our 

way of life, and we urged the EPA to work in cooperation with the 

State of Florida to find an achievable solution that would not harm 

jobs and investments, which the people of Florida need. 

I think the President would agree that this isn’t a Republican or 

Democratic issue. Florida congressional delegation Members on 

both sides of the aisle are united against the imposition of these 

new EPA regulations. I thank Chairman Stearns and other Members of the Florida delegation for finding common ground and 

reaching consensus on this issue. We are proud to have the support 

of both Senators Bill Nelson and Marco Rubio, as well as support 

from nearly the entire Florida congressional delegation. 

With about 1 in every 10 Floridians out of work, now is not the 

time for the EPA to impose costly new water mandates for Florida 

that will increase the cost of living and doing business in Florida. 

These mandates will impede our State’s economic recovery, force 

Florida businesses to cut jobs, and increase the price of utilities, 

104 

food, and other necessities for Florida businesses, families, and consumers. 

I urge all Members of Congress to join us in our opposition to 

these new mandates. The future of Florida’s economic recovery depends on it. 

Once again, thank you, Chairman Stearns, for your leadership on 

this issue. I look forward to working with you, as we continue to 

urge the EPA to stand down on the implementation of these mandates and allow Florida to manage its own waters. I would be 

happy to answer any questions you may have. 

Thank you, sir. 

[The prepared statement of Mr. Dever follows:] 

105 


81389.064

FLORIDA GULF COAST BUILDING AND CONSTRUCTION 

TRADES COUNCIL 

IN AFFILlA TION WITH 

BUILDING TRADES DEPARTMENT-AFL-CIO 

5621 Harney Road, Tampa, FL 33610 

Phone: (813) 621-6451· Fax: (813) 623-1623 

One Page Summery ofBiII Dever Testimony 

President of the Florida Gulf Coast Building & Construction Trades Council 

U.S. House of Representatives Committee on Energy and CommerceSubcommittee on Oversight and Investigations 

"EPA's Takeover of Florida's Nutrient Water Quality Standard Setting: Impact on 

Communities and Job Creation" 

Tuesday, August 9, 2011 

Orlando, Florida 

• We are extremely concerned that the high cost of implementing these new regulations 

will lead directly to a reduction in new investment and construction jobs in our state. 

• Recent decisions by the Environmental Protection Agency threaten to increase the 

burden on hardworking Floridians. 

• The water quality standards are so expensive to achieve that any new job growth and 

even existing jobs would be lost. 
106 


81389.065

FLORIDA GULF COAST BUILDING AND CONSTRUCTION 

TRADES COUNCIL 

TN AFFILIA nON WITH 

BUILDING TRADES DEPARTMENT-AFL-CIO 

5621 Harney Road, Tampa, FL 33610 

Phone: (813) 621-6451· Fax: (813) 623-1623 

Testimony of Bill Dever 

President of the Florida Gulf Coast Building & Construction Trades Council 

U.S. House of Representatives Committee on Energy and CommerceSubcommittee on Oversight and Investigations 

"EPA's Takeover of Florida's Nutrient Water Quality Standard Setting: Impact on 

Communities and Job Creation" 

Tuesday, August 9, 2011 

Orlando, Florida 

Thank you Chairman Stearns. My name is Bill Dever and r am President of the Florida 

Gulf Coast Building & Construction Trades Council. Our affiliated unions represent 

thousands of working men and women whose jobs often depend on investment in 

construction and maintenance in Florida's Gulf Coast region. 

Thank you for the opportunity to speak about an issue that is important to so many 

Floridians. 

Water is perhaps Florida's most precious and abundant resource, and we all agree that 

promoting clean and responsible water usage is important. 

But it is just as important to promote a balanced approach to water policy - one that also 

recognizes our need for good-paying jobs, a healthy economy and a lower economic 

burden, especially during this difficult economy. 
107 


81389.066

Recent decisions by the Environmental Protection Agency threaten to increase the burden 

on hardworking Floridians, by unfairly singling Floridians out as the only Americans 

subject to new, onerous numeric nutrient criteria that will have an unwanted impact on 

many in Florida's building and construction trade community. 

In other words, Mr. Chairman, the people of Florida need both clean water and good jobs, 

and this should not be an "either/or" proposition. But that is what EPA's proposal iswater quality standards so expensive to achieve that any new job growth and even 

existing jobs would be lost. This is not the time, and Florida is not the place. 

Based on projections made by Florida agencies and private sector industries, we are 

extremely concerned that the high cost of implementing these new regulations will lead 

directly to a reduction in new investment and construction jobs in our state. 

In my capacity as President of the Florida Gulf Coast Building & Construction Trades 

Council, I submitted a letter in June to President Obama that was signed by 14 leaders of 

our affi liated trade organ izations. 

In the letter, we warned the President about the negative economic impact these new 

mandates would have on our jobs and our way of life, and we urged the EPA to work in 

cooperation with the State of Florida to find an achievable solution that will not harm 

jobs and investments, which the people of Florida need. 
108 


81389.067

I think the President would agree that this isn't a Republican or Democratic issue. 

Florida Congressional Delegation members on both sides of the aisle are united against 

the imposition of these new Environmental Protection Agency regulations. 

I thank Chairman Steams and other members of the Florida Delegation for finding 

common ground and reaching consensus on this issue. 

We are proud to have the support of both Senators Bill Nelson and Marco Rubio, as well 

as support from nearly the entire Florida Congressional Delegation. 

With about lout of every lO Floridians out of work, now is not the time for the EPA to 

impose costly new water mandates for Florida that will increase the cost of living and 

doing business in Florida. 

These mandates will impede our state's economic recovery, force Florida businesses to 

cut jobs, and increase the price of utilities, food and other necessities for Florida 

businesses, families and consumers. 

I urge all members of Congress to join us in our opposition to these new mandates. The 

future of Florida's economic recovery depends on it. 

Once again, thank you Chairman Steams for your leadership on this issue. 
109 


81389.068

I look forward to working with you as we continue to urge the EPA to stand down on the 

implementation of these mandates and allow Florida to manage its own waters. I would 

be happy to answer any questions you may have. 
110 

Mr. STEARNS. Thank you, Mr. Dever. 

Mr. St. John? 

STATEMENT OF RON ST. JOHN 

Mr. ST. JOHN. Thank you, Chairman Stearns, for inviting me 

today. 

Mr. Barton, my mother was from Texas. So there’s at least two 

people in this room that have a soft spot in their heart for Texas. 

Mr. BARTON. Good. 

Mr. ST. JOHN. Depending on which year you want to pick, agriculture is Florida’s number-one industry. I think it’s gone unrecognized as we move forward and the population of the globe continues to expand, I believe agriculture is going to be more important than Wall Street. 

The comments that I make today are germane to north Florida, 

specifically the Suwannee River basin. I do represent the dairy industry. Today, we are regulated by the DEP of Florida. The regulations are in place to protect the surface and groundwater. But in 

our area, groundwater is the main issue. 

These regulations are science based and require the dairies, 

through a nutrient management plan, to either recycle the effluent 

nutrients through plant uptake and feed those plants back to the 

cows or remove the nutrients offsite to replace commercial fertilizer, i.e., organic fertilizer replacing commercial fertilizer, for 

crops grown by others. We report quarterly, and our report card is 

the readings from monitor wells located down gradient from areas 

where the effluent is applied. 

Today, the EPA of the U.S. is attempting to force through the 

DEP of Florida a much more stringent nutrient standard on surface waters, which in our area could mean new groundwater standards. The intent is to protect our rivers and springs from further 

degradation of water quality. 

The Suwannee River starts in the Okefenokee Swamp in Georgia 

but is mostly spring fed from where it originates to the Gulf of 

Mexico. As part of their nutrient program, the EPA has already set 

TMDLs, total maximum daily loads, for several springs that contribute much of the Suwannee River’s water. 

These springs are from groundwater, not surface water. So the 

next logical move—not that logic has anything to do with this 

topic—is to change the groundwater standards from 10 parts per 

million, which is the national standard, to 0.35 parts per million, 

which is the proposed springs total maximum daily load standard. 

The 10 parts per million standard today with good management 

is a realistic level for industry to comply with. A rule change from 

10 parts to 0.35 is not attainable under any science-based model 

for any industry—power plants, agriculture, or even the thousands 

of septic systems in north Florida. Short of turning the Suwannee 

basin into a national park devoid of people, this is a completely unrealistic standard with no economic or science-based modeling in 

these decisions. 

If the EPA should prevail, then our businesses will be put out 

of business. Even though we are protected by our existing National 

Pollution Discharge Elimination System permit we have with the 

DEP, these permits are renewable every 5 years and, therefore, do 

111 

not provide long-term protection because at the end of each permit 

cycle, the DEP can change the rules. 

Please note that the current attempt by EPA to force such low 

nutrient standards across the entire State will cause similar impacts to other dairies and businesses like we are experiencing in 

the Suwannee water basin. 

Thank you. 

[The prepared statement of Mr. St. John follows:] 

112 


81389.069

FLOHIDA Ii'AHM BliHEAlJ FEDEHATION 

The Voice of Agriculture in Florida 

Testimony of 

Ron St. John 

Managing Partner of Alliance Diaries 

to the 

u.s. House of Representatives Committee on Energy and Commerce 

Subcommittee on Oversight .and Investigations 

Regarding 

"EPA's Takeover of Florida's Nutrient Water Quality Standard 

Setting: Impact on Communitiesl;}nd Job Creation" 

Tuesday, August 9, 2011 

Orlando, Florida 

Summary of Testimony 

• Current regulations through the Florida Department are sufficient to effectively protect surface and ground 

water 

• Proposed rule changes are not attainable under any science based model. 

• These changes will put a significant strain on agriculture, possibly causing fal1l1s to go out of business. 

PO Box 147030· (;aincsvillc, FL Y2614-703()· Phone: 352-37R-1321 • \.\'\Vw.FloridaFannBurcau.org 
113 


81389.070

Thank you Chainnan Stearns and other members of the subcommittee for your willingness to accept 

testimony on this very important issue. 

These comments are gennane to north central Florida, specifically the Suwannee River Basin. I represent 

the dairy industry. Today we are regulated by the DEP of Florida. The regulations are in place to protect 

the surface and ground waters, but in our area groundwater is the main issue. These regulations are 

science based and require the dairies, through a nutrient management plan to either recycle the effluent 

nutrients through plant uptake and recycling the plants through the animals or remove nutrients off site to 

replace commercial fertilizer for crops grown by others. We report quarterly and our report card is the 

readings from monitor wells located down gradient from areas where the effluent is applied. 

Today the EPA of the U.S. is atte1l1pting to force through the DEP of Florida, a much more stringent 

nutrient standard on surface waters, which in our area could mean new groundwater standards. The intent 

is to protect our rivers and springs from further degradation of water quality. The Suwannee River starts 

in the Okeefenokee swamp in Georgia, but is mostly spring fed from there .to the Gulf of Mexico. As part 

of their nutrient program, the EPA has already set TMDL' s (Total MaxiDl.~ Daily Load) for several 

springs that contribute much ofthe Suwannee Rivers water. These springs ate" from ground water, not 

surface water. So the next logical move (not that logic has anything todowiththis topic) is to change the 

ground water standard from IOppm to .35ppm, which is the proposed springs TMDL standard. The 

IOppm standard today, with good management, is a realistic level for industry to comply with. A rule 

change from IOppm to .35ppm is not attainable under any science based model for any industry, power 

plants, agriculture or even the thousands of septic tanks in the basin. Short of turning the Suwannee Basin 

into a National Park, devoid of people, this is a completely unreasonable standard, with no economic or 

science based modeling in these decisions. 

PO Box 147030· (;aincsyille, FL 32614-7030· Phone: 352-378-1321· v,:\vw,FloridaFannBurcau.org 
114 


81389.071

If the EPA should prevail, then our businesses will be put out of business, even though we are protected 

by our existing N,P'o,E.S. (National Pollution Discharge Elimination System) permit we have with the 

DEP. These permits are renewed every 5 years, and therefore do not provide long term protection 

because at the end of each permit the EPA and DEP can change the rules. 

Please note that the current attempt by EPA to force such low nutrient standards across the entire state 

will cause similar impacts to other dairies and businesses like we are experiencing for the Suwannee River 

Basin. 

Thank you again for allowing me to testify today on the impact of EPA's Numeric Nutrient Criteria on 

my industry. I will be happy to answer anyquestions that you may have. 

PO Box 1471)30' Gainesville, FL 32614-7030' 
115 

Mr. STEARNS. Thank you. 

Ms. Hammer Levy, welcome. 

STATEMENT OF KELLI HAMMER LEVY 

Ms. HAMMER LEVY. Chairman Stearns—can you hear me? I am 

sorry. Is it on? 

Mr. STEARNS. I don’t know. Just put it a little closer maybe? 

Ms. HAMMER LEVY. Is it on? 

Mr. STEARNS. There you go. 

Ms. HAMMER LEVY. OK. Chairman Stearns and distinguished 

members of the committee, thank you for this opportunity to testify 

before you today on the impact of EPA’s numeric nutrient criteria 

in Florida. 

Florida is a national leader in water resources management, and 

a few key points to consider are that 34 percent of the water quality data in EPA’s STORET database comes from the State of Florida. There are more stormwater utilities provided dedicated funding for water quality improvements in Florida than in any other 

State. 

Florida has had State-wide policies on stormwater runoff for over 

25 years, and each year, local governments spend around $1 billion 

on water quality and flood control measures. Pinellas County has 

been active in protecting our aquatic resources since the 1970s, 

when we began our stormwater master planning process. And from 

2000 through to 2014, we have spent or encumbered $40 million for 

water quality improvement projects and programs, and these funds 

do not include the millions of dollars that we spend annually to implement the conditions of our stormwater NPDES permit. 

Local governments, private business, and citizens around the 

State understand the importance of a healthy water environment 

to Florida’s economy and our quality of life. However, it is critically 

important that water quality criteria are correct to avoid wasting 

public resources towards the development of site-specific alternative criteria, or SSACs, to correct deficiencies in the rule or towards meeting a numeric goal that results in no meaningful improvement. 

So I want to talk a little bit about unresolved problems with 

EPA’s criteria, building on what is right in Florida and suggestions 

for a path forward. EPA used two approaches to develop criteria in 

Florida’s streams and lakes—the reference-based approach and the 

stressor response approach. Unfortunately, neither of these approaches alone can identify cause and effect. 

The State of Florida advised for allowing for biological monitoring, and the advantage of this recommendation is that you can 

determine a clear link to actual impairment of use. EPA’s own 

guidance states that a primary strength of biological criteria is the 

detection of water quality problems that other methods may miss 

or underestimate. 

And further, the EPA’s science advisory board cautioned that 

without a clear, positive link between nutrient levels and impairment, there is no assurance that managing to a number will lead 

to water quality improvement and that if the numeric criteria were 

not based on well-established causative relationships, the scientific 

116 

basis for the water quality standards would seriously be undermined. 

And just as an example, in considering all the best bass fishing 

spots in the State, as determined by the Florida Fish and Wildlife 

Conservation Commission, excluding lakes not affected by the rule, 

those without data, and rivers that were on the list, we have 10 

lakes remaining on that list. And of those 10 lakes, 6 would be impaired under this rule. 

The EPA has advised communities with naturally high phosphorus in their soils to apply for a SSAC. But based on local SSAC 

development costs, this effort could cost Pinellas County over $20 

million without accomplishing any benefit to the environment. 

If we build on what is right in Florida, we need to look at our 

successes, and Tampa Bay is a great example of that. To meet the 

requirements of an EPA-established TMDL, the Tampa Bay Nitrogen Management Consortium, comprised of more than 45 local governments, business, and agencies, developed voluntary nitrogen 

limits for 189 sources within the watershed and provided those limits as recommendations. 

EPA and the State participated in this effort, but they did not 

lead it. The State and EPA have accepted those recommended nitrogen limits as meeting water quality requirements for Tampa 

Bay. 

Key benefits identified by the consortium members included that 

the nitrogen allocations were equitable and based on sound science 

and that the collective process was cost effective for all the participants. And the result has been dramatic. Water quality is meeting 

the regulatory targets, and our seagrasses have expanded by more 

than 8,000 acres since 1999. 

So, suggestions for a path forward. With this type of controversy 

brings courageous conversations. And while we may not hold the 

same opinions on EPA’s rule, this controversy has brought us together. We have a responsibility to be good stewards of Florida’s 

environment. There is a path forward if we can continue to work 

together. 

The State has restarted their rule development process and is 

addressing many of the concerns with EPA’s criteria echoed State 

wide and here today. 

The State is actively soliciting feedback on the draft rule and will 

hold more public workshops in September. As a community, we can 

support our State environmental agency during this rule development process, be part of the conversation, and ask our legislators 

to help bring this effort to a successful conclusion that protects our 

natural resources, our quality of life, and our economy. 

Thank you. 

[The prepared statement of Ms. Hammer Levy follows:] 

117 


81389.072

STATEMENT OF 

KELLI HAMMER LEVY 

WATERSHED MANAGEMENT SECTION MANAGER 

PINELLAS COUNTY DEPARTMENT OF ENVIRONMENT AND INFRASTRUCTURE 

before the 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS 

COMMITTEE ON ENERGY AND COMMERCE 

U.S. HOUSE OF REPRESENTATIVES 

"EPA's Takeover of Florida's Nutrient Water Quality Standard Setting: Impacts on 

Communities and Job Creation" 

August 9,2011 

Chairman Stems, Ranking Member DeGette, and distinguished members of the Committee, 

thank you for this opportunity to testify before you today on the impact of EPA's Numeric 

Nutrient Criteria in Florida. 

Florida is a leader in water resources management: 

• 34% of the water quality data in the EPA STORET database comes from Florida. 

• In Florida there arc more stormwater utilities providing dedicated funding for water 

quality improvements than in any other state. 

• The first MS4 permittee in the Southeastern United States was Sarasota County. 

• Florida has had statewide policies on storm water runoff for 25+ years. 

• Local governments spend around $IB per year on water quality and flood control 

measures. 
118 


81389.073

Pinellas County has been active in protecting our aquatic resources since the 1970s, when we 

began our storm water master planning process. From 2000 to 2014 we have spent and/or 

encumbered forty million dollars for water quality improvement projects, pollutant source 

tracking studies, and comprehensive watershed planning efforts. These funds do not include the 

millions of dollars that we expend annually to implement the conditions of our National Pollutant 

Discharge Elimination System permit regulating our stormwater discharges, which include an 

extensive water quality monitoring program. In continuing with Pinellas County's commitment 

to watershed protection efforts, the Board of County Commissioners approved a stringent urban 

fertilizer use ordinance in 2010 to reduce nitrogen and phosphorous pollution to our local 

waterways. Lastly, in partnership with the Tampa Bay Estuary Program and other regional 

stakeholders, Pinellas County signed an interlocal agreement in 1998 to implement the 

Comprehensive Conservation and Management Plan for Tampa Bay. This partnership has 

resulted in dramatic increases in seagrass coverage, which now approaches 33,000 acres. This is 

the highest recorded seagrass acreage since the 1950s and is a result of improved water quality 

from projects implemented throughout the watershed by program partners. 

Restoration and protection for Florida's water resources is a goal we all share. Local 

governments, private businesses, and citizens around the state realize the importance of a healthy 

water environment to Florida's economy and our quality of life. But we are very concerned with 

the technical deficiencies in EPA's rule for numeric nutrient criteria for Florida's lakes and 

flowing waters. It is critically important that water quality criteria are correct to avoid wasting 

precious public resources towards thc development of site specific alternative criteria (SSAC) to 

correct deficiencies in the rule or towards meeting a numeric goal that results in no meaningful 

improvement. 
119 


81389.074

I will discuss today unresolved problems with EPA's criteria, building on what is right in 

Florida, and suggestions for a path forward. 

Unresolved Problems with EPA's Criteria 

1. Streams: EPA's approach to setting stream criteria uses a reference-based approach. A 

general problem with using a reference-based approach is that it does not directly 

establish a quantitative target. Rather, it provides information on the levels of nutrients 

that may be consistent with full support of uses, but is does not identify causal 

relationships between nutrients and ecological conditions. I

,2 In FDEP's comments to 

EPA concerning the limitations of this approach, as a stand-alone assessment, FDEP 

advised allowing for consideration of response variables like chlorophyll a and 

biological monitoring.3 For example, nutrient concentrations result from many possible 

rates of physical (e.g. stream reach and residence time). chemical (e.g. 

nitrification/denitrification), biological (e.g. algal primary production), and ecological 

(e.g. herbivore predation) processes. Such rates are often site specific, can vary over 

various time scales (e.g. minutes, days, years and decades), or result from episodic events 

including natural or anthropogenic perturbations. Despite the additional data 

requirement, the advantage of FDEP's recommendation is the establishment of a clearer 

link to actual impairment of use, rather than an approach lacking causative information 

that relies on concentration data alone.! EPA's guidance supports such a methodology 

stating "resident biota function as continual monitors of environmental quality, increasing 

the likelihood of detecting the effects of episodic evcnts ... that periodic chemical 

sampling is unlikely to detect." Furthermore, "a primary strength of biological criteria is 
120 


81389.075

the detection of water quality problems that other methods may miss or underestimate. 

Biological criteria can be used to determine to what extent current regulations are 

protecting designated and/or existing aquatic life uses.,,4 

2. Lakes: While the EPA's Science Advisory Board (SAB) acknowledged that the stressorresponse based analysis (method utilized for setting nutrient criteria in Florida lakes) is a 

"legitimate, scientifically based method for developing nutrient criteria;' the SAB 

advised that the approach should not be used in isolation, but instead be incorporated 

with other available methodologies in a weight-of evidence approach. The SAB stated 

that "without a mechanistic understanding and a clear causative link between nutrient 

levels and impairment, there is no assurance that managing for particular nutrient levels 

will lead to the desired outcome. If the numeric criteria are not based upon wellestablished causative relationships, the scientific basis of the water quality standards will 

be seriously undermined.',5 

Example: The Florida Fish and Wildlife Conservation Commission evaluated the best 

bass fishing spots in the State. In considering all the best spots, after exeluding lakes not 

affected by the rule, those without data, and rivers, 10 lakes remained. Of those 10 lakes, 

6 would be impaired under EPA's rule. 

3. EPA kept areas with significant naturally occurring phosphorous in the peninsular region, 

which is characterized by low phosphorous. 

Example: Pinellas County has a phosphorous rich Hawthorn layer throughout the county. 

While the layer is not contiguous, streams run through these enriched arcas and pick up 

phosphorous, transporting the n~trients to downstream areas of the stream and to 

receiving waters. Furthermore, the County's two largest lakes sit on top of this layer. By 
121 


81389.076

not employing a more rigorous process to delineate regional variability, the only solution 

to this problem is the development of costly SSAC. Based on FOEP's database, 65% of 

the streams in Pinellas County do not meet EPA's phosphorous criteria and 88% of the 

potentially impaired streams run through areas where the Hawthorn layer influences soil 

phosphorous concentrations. EPA's response to Pinellas County's comments concerning 

this issue was to apply for SSAC. Using estimates for SSAC development in the slate of 

Florida, this effort may cost Pinellas County over $20,000,000 without accomplishing 

any benefit to the environment. 

4. Lastly, EPA's cost estimates are subject to a lot of uncertainty. EPA's reports states that 

to identify potential costs "EPA removed from the resulting list of waters those that are 

currently listed as impaired on Florida's 303(d) list of impaired waters, resulting in those 

waters that may be identified as impaired under EPA's rule that are not already classified 

as impaired."'; The assumption that waters currently on the impaired waters list would not 

require additional reductions as a result of EPA's rules was not validated and could 

account for millions of dollars in load reductions not recognized in EPA's analysis. 

With these and other concerns raised by Florida stakeholders as well as FOEP, and EPA's SAB, 

it is clear that getting this wrong will lead to a shift in financial resources towards meeting 

criteria that may not be related to a problem or in developing SSACs to correct flaws in the rule. 

The collective goal should be to work towards state criteria that reflect the best available science 

and result in effective protective measures and restoration targets for our state's water resources. 
122 


81389.077

Building on what is right in Florida - Learning from our Successes: 

In Tampa Bay, local communities working with the Tampa Bay Nitrogen Management 

Consortium developed voluntary water quality goals and nutrient loading targets to support 

recovery of clear water and underwater seagrasses in the mid-1990s, and have collectively 

implemented more than 250 projects (resulting in 400 tons of nitrogen reduced) since 1996 to 

help meet the nutrient loading targets. 

In 1998, the USEPA approved a regulatory Total Maximum Daily Load for Tampa Bay, and in 

2007 stated that all permitted nutrient sources within the Tampa Bay watershed would be 

required to have an annual numeric limit, or allocation, for their nitrogen discharge to Tampa 

Bay. The Consortium (more than 45 local governments, business and agencies) decided to 

develop voluntary nitrogen limits for themselves and provide those limits as recommendations, 

rather than relying on the regulatory agencies to develop allocated numeric limits. EPA and the 

state FDEP participated in this effort, but did not lead it. Over a two-year period, Consortium 

members developed fair and equitable allocations for all 189 sources within the watershed. The 

FDEP and EPA accepted those recommended allocations as meeting water quality requirements 

for Tampa Bay. 

Consortium members contributed funds to support a technical contractor to develop 

scientifically-sound options for allocations. Consortium members realized that, by combining 

their funds, the cost to each member is much reduced over what would be required for technical 

support individually. The Tampa Bay Estuary Program facilitates the Consortium, manages the 

technical support contractor, and collects the funds from Consortium members to provide this 

support. 
123 


81389.078

Key benefits identified by the Consortium members included: allocations are equitable and based 

on sound science, the process and allocations were developed by Consortium participants (not 

regulatory agencies alone), and the collective process was cost-effective for all participants. The 

result? Water is now meeting clarity goals and regulatory requirements, and seagrass has 

expanded by more than 8,000 acres since 1999.7 

Tampa Bay is just one example of how Floridians can come together to restore our environment. 

The water quality targets set for Tampa Bay did not come from a regulatory agency or a court 

mandate; the criteria were developed based on data collected by watershed stakeholders from a 

variety of agencies working towards a common goal. The result has been a success story for the 

continued recovery of Tampa Bay. Lastly, through this collaborative effort a cost effective 

means of continuing the restoration efforts has been developed and approved by all stakeholders. 

Suggestions for a path forward 

With controversy brings courageous conversations. We may not hold the same opinions on 

EPA's rule, but the controversy surrounding the issue has brought us together. We have a lot of 

work to do in protecting our aquatic resources and restoring waters that do not meet their 

designated uses. There is a path forward if we can continue to work together. FDEP has restarted 

their rulc development process and is addressing many of the concerns with the EPA criteria 

echoed state-wide. FDEP is actively soliciting feedback on the draft rule and will hold more 

public workshops in September. What can we do? We can continue to support our state 

environmental agency during this rule making process, be active in reviewing the proposal, be 

part of the conversation, and ask our legislators to help bring this effort to a successful 

conclusion that protects our natural resources, our quality of lite, and our economy. 
124 


81389.079

Thank you, Mr. Chainnan and Members of the Committee 

References: 

I. J.B. Butcher. 2004. White Paper (a): A Risk-based Approach to Development of Nutrient 

Criteria and TMDLs. 

2. Jennifer Abdella. Science Advisory Board Recommends Overhaul of EPA Nutrient 

Criteria Guidance. Eastern Water Law. July 2010. 

3. Letter from Jerry Brooks to EPA. Docket ID No. EPA-HQ-OW-2009-0596. April 28, 

2010. 

4. Biological Assessments and Criteria: Crucial Components of Water Quality Programs. 

United States Environmental Protection Agency. Office of Water. EPA 822-F-02-006. 

2002. 

http://water.epa.gov/scitech/swguidance/standards/criteriaiaqlife/biocriteria/whyuse.cfm 

5. SAB Review of Empirical Approa.ches for Nutrient Criteria Derivation. EPA -SAB-J 0-

006. April 27, 2010. 

6. U.S. Environmental Protection Agency. Economic Analysis of Final Water Quality 

Standards for Nutrients for Lakes and Flowing Waters in Florida. November 20 I O. 

7. Greening, H.S. et al. A Multiscalc Approach to Seagrass Recovery in Tampa Bay, 

Florida. Ecological Restoration 29:1-2. March/June 2011. 
125 

Mr. STEARNS. Mr. Guest? 

STATEMENT OF DAVID G. GUEST 

Mr. GUEST. Thank you. Thank you, Chairman Stearns. 

I want to make it clear for the record here that I was invited to 

appear here yesterday about 10:30. I dropped my litigation practice. We put together our comments, filed by 4:00, and got in the 

car and drove here. 

Mr. STEARNS. No, I recognize you are here, and I thank you for 

your patience because we wanted to get your testimony. So I am 

glad you took the time to come. 

Mr. GUEST. And I want to emphasize to this committee that you 

guys can’t really get the whole picture by listening only to the polluting industries and to the folks that are opposed to this rule. I 

think it’s a good thing that you’re bringing one person that believes 

that this is a good idea and can give you some background that is 

a really different story. 

I think it would be highly advisable for this committee to listen 

to the members of the public that have appeared here so you can 

hear their stories about how they have been victimized by this pollution. 

Now let me start out by saying toxic algae is a major problem 

in this State, and it’s getting much worse as time passes. It is a 

threat to our families. It’s a threat to our children. It’s a public 

health threat. It’s a threat to the safety of our drinking water. 

There was a drinking water plant that was shut down because 

the water was poisonous in the last 4 months. There was a toxic 

algae outbreak on the Caloosahatchee River that was so severe 

that there were signs all over the river that said it was dangerous 

for people to get in the water. This is the United States, and it’s 

dangerous to get in the water. 

People’s property values are being destroyed by this. We got a 

call 2 weeks ago from a lady on the Caloosahatchee River during 

that outbreak. She is broke. She’s in financial trouble. She is selling her house because she can’t pay for it anymore. 

She got right up to the closing, and what happened? The buyer 

came up. They looked at the slime in the water, and they said, 

‘‘Whoa. I’m not buying that house.’’ That’s what’s happening from 

the slime here. It has a real economic consequence. 

And you think about the tourists that come to Florida. They 

come here from all over the country. They come over from all over 

the world. They come out there, and they see a lake or a river 

that’s covered with stinking green slime with a sign that says it’s 

dangerous to get in it. Do you think they are going to come back? 

They’re not even going to leave, they’re going to go back and tell 

everybody around them that Florida is not a safe and clean place 

to go. 

This is having a catastrophic effect on our economy, and it’s killing employment. And you really can’t just say let’s let it go for a 

while. 

My office manager went out to the Suwannee River 3 weeks ago, 

and she said that they went out to Fanning Springs, the springs 

that we’ve heard about. There is a sign at the spring that says if 

you get in the water, there is a risk you would get a rash. They 

126 

didn’t pay much attention to it. And the kids went in, and one of 

them got this terrible rash all over them. 

This is the United States. That shouldn’t be happening here. 

Now let me clarify one big point here: This is not a Federal takeover of any sort. What happened actually was the Bush administration made the decision that these were needed for Florida. It was 

made by Ben Grumbles from the Bush administration. He made a 

finding that what Florida was doing was inadequate and that numeric standards were needed. 

The State didn’t think it was a takeover because what happened 

was immediately following that, the State itself, the State Department of Environmental Protection, enthusiastically endorsed this 

determination. And they worked cooperatively. 

What they ended up doing was they ended up with their own 

standards and their own process. It was ready to be adopted in August of 2009, and I was at the hearing. And what happened is our 

settlement agreement came out, and it said unless the State adopts 

within 15 months, the Federal Government will have to step in. 

And what happened was instead of just approving it that day— 

it was on the agenda to be approved that day—they decided to 

throw the hot potato to the Federal Government. And what the 

Government did was they looked at the same data the DEP looked 

at. They used the same science because the DEP has great scientists, and they came up with almost exactly the same rule that 

the State did. 

In fact, we heard the story about the springs; they’re identical. 

In fact, the DEP, the Florida rule, is a little more stringent in its 

enforcement. That’s really what happened here. 

This isn’t a Federal takeover of any kind. What happened was 

they got good science. They got good numbers. They got almost exactly the same rule as the EPA did, but they ran into a buzz saw 

of political opposition from polluters within the State, and they 

threw the hot potato to EPA so that they would take the heat and 

they wouldn’t have to get sued by the polluters. 

I’m in the litigation with the polluters. There are over 25 lawyers 

on every conference call representing the polluter under the sun. 

That’s where the litigation is coming is from them. That’s what’s 

going on here. 

And that’s why I think you folks should look harder at this and 

give us a chance to let the public explain what’s happening to them 

in this problem. 

[The prepared statement of Mr. Guest follows:] 

127 


81389.080

House Of Representatives Committee on Energy and Commerce 

Before the Subcommittee on Oversight and Investigations 

Hearing Entitled: EPA's Takeover of Florida's Nutrient Water Quality 

August 9, 2011 

Testimony Submitted by Earthjustice 

David G. Guest, Attorney 

Earthjustice, Florida Office 

On Behalf Of 

Sierra Club, Florida Wildlife Federation, St. Johns Riverkeeper, Environmental 

Confederation of Southwest.'Florida, and Conservancy of Sonthwest Florida 
128 


81389.081

SUMMARY OF TESTIMONY BY DAVID G. GUEST 

This summer, as in many past years, Florida has been plagued by toxic algae outbreaks. 

Health officials have posted signs, warning residents and tourists to stay out of the water (and keep 

pets and children away) to avoid contact with potent liver and nerve toxins in algae. These toxic 

algae outbreaks are caused by sewage, fertilizer, and manure runoff. which bring excess 

phosphorus and nitrogen into the public's waters. These outbreaks clearly jeopardize the touristdependent economy of America's fourth-largest state - a place that draws visitors from around the 

globe. 

This public health crisis is preventable. New limits for pollution from sewage, manure and 

fertilizer developed by the U.S. Environmental Protection Agency and the Florida Department of 

Environmental Protection will go a long way toward preventing these harmful algae outbreaks by 

controlling pollution at its source. No private party has the right to contaminate the public's 

water, and this is why standards must be set to protect health and safety. 

As it stands now, Florida has an unenforceable "narrative" nutrient standard that merely 

says that nutrients can't cause a biological "imbalance." This is like posting a speed limit sign on 

1-75 that reads "Drive At A Reasonable Speed Considering Weather, Traffic and Lighting 

Conditions As Well As Other Relevant Factors." Numeric standards. on the other hand, are 

precise and enforceable -- like speed limit signs that clearly say "SPEED LIMIT 55 MPH." . States are generally responsible for setting pollution limits and Florida proposed numeric 

limits on phosphorus and nitrogen in August 2009 that are virtually the same as EPA's limits. 

However, sewage industry opposition used its political muscle to stop Florida from adopting them. 

The Florida DEP then threw the hot potato to EPA and have them adopt the limits. EPA's limits 

use the same science and same data that Florida used. That's why the limits are almost the same. 

2 
129 


81389.082

TESTIMONY BY DAVID G. GUEST 

This summer, as in many past years, Florida is facing a serious public health and 

economic crisis. All over the state, nasty toxic algae will break out on lakes, rivers, springs, and 

beaches, as it has in past summers. Health officials are posting signs, warning residents and 

tourists to stay out of the water (and keep pets and children away) to avoid contact with potent 

liver and nerve toxins in algae. 

These toxic algae outbreaks are caused by sewage, fertilizer, and manure runoff, which 

bring excess phosphorus and nitrogen into the public's waters. 

The toxic algae pollution has become so serious that The Florida Department of Health 

now hands out educational materials that ask people: "Have You been SlimedT Callers to the 

state's Aquatic Toxins Hotline hear a recording which warns: "It is very important that pets, 

livestock and small children arc kept out of water suspected of having a blue green algae bloom 

since there have been many reported animals dying after drinking highly contaminated water." 

This clearly jeopardizes thc tourist-dependent economy of America's fourth-largest state a 

place that draws visitors from around the globe. 

This serious pollution is poisoning the rivers, lakes and streams that supply drinking 

water for Floridians' taps. A toxic algae outbreak shut down a drinking water plant that served 

30,000 people on the Caloosahatchee River in 2008 and again this year. 

Clearly, the Clean Water Act intends for tourists and residents to enjoy clean drinking 

water and waters safe for recreation, not water polluted with sewage, fertilizer and manure 

runoff. It is disturbing that people all over Florida have ended up at emergency rooms with 

breathing problems, rashes and sores just because they went to the beach, rode in a boat, jumped 

into a cool river, or allowed their toddler to splash in a sandy lake. 

3 
130 


81389.083

As Congress hears testimony about toxic algae outbreaks in Florida waters, it is important 

to realize that this public health crisis is preventable. The new limits for pollution from sewage, 

manure and fertilizer developed by the U.S. Environmental Protection Agency and the Florida 

Department of Environmental Protection will go a long way toward preventing these harmful 

algae outbreaks by controlling pollution at its source. 

No private party has the right to contaminate the public's water, and this is why standards 

must be set to protect everyone's health and safety. 

Areas in Southwest Florida, including Sanibel Island tourist beaches, have suffered 

repeated noxious outbreaks of toxic green algae and red tide in recent years. The dirty outbreaks 

fouled drinking water supplies, killed fish, closed popular tourist beaches, and devastated the 

local economy. Visitors to Daytona Beach in 2007 saw lifeguards wearing face masks because 

algae toxins in the air made them cough and cause respiratory problems. Other popular beach 

areas will sutTer the same fate if the EPA does not set these limits to stop water pollution. 

During a red tide outbreak in Jacksonville in 2007, the local health department received 15 to 20 

reports every day of respiratory illness from beachgoers. 

The famous St. Johns River outside Jacksonville was closed to fishermen last summer 

because a 100-mile long, disgusting toxic green slime outbreak poisoned fish, making them 

unsafe to catch or eat. The chief investigating scientist told the Florida Times-Union that in some 

fish, "Their eyes are bloody, their livers are bloody, their internal tissues are bloody." Toxin 

levels were recorded at 50 - 140 times higher than the World Health Organization's 

recommended limits and many people reported respiratory problems, raw throats, and irritated 

eyes. 

4 
131 


81389.084

This runoff will continue to poison Florida's waters and ruin the state's economy unless 

we establish firm standards for the public good. 

It is past time to take action on behalf of the public's health. Florida's Department of 

Environmental Protection first issued a major report documenting the dangers of toxic algae 

blooms eleven years ago -- in 2000. 

In 2001, The Orlando Sentinel reported on the health threat: 

"Dangerous amounts of toxic algae -- one sample showed 354 times the level considered 

safe -- infest popular Central Florida lakes where people spend weekends swimming, 

fishing and skiing. 

Twenty of the 23 lakes tested in a joint investigation by the Orlando Sentinel and Central 

Florida News 13 turned up enough of the toxic algae to cause vomiting, bloody diarrhea, 

trouble breathing, skin rashes, mouth ulcers, blisters and eye irritations in people who 

play in the water. 

Accidentally swallow some of it -- and swimmers do ingest several mouthfuls on average 

-- and the risk widens to include damage to the liver or nervous system, and cancer." 

In 2005, the St. Lucie River and estuary in Southeast Florida was covered with bright 

green slime and it wasn't safc to even touch the water. Waterfront property values in the area 

suffered a permanent decline of a whopping $500 million after the outbreak. 

In 2006, testing by DEP scientists revealed that half of Florida's rivers and more than half 

of the state's lakes had poor water quality and sewage, fertilizer and manure pollution was the 

major concern. "The actual number of miles and acres of waters impaired [by these pollutants 1 

is likely higher," the DEP noted, "as many waters that have yet to be assessed may also be 

impaired." 

The recent toxic algae crisis on the Caloosahatchee River is a grim reminder of why we 

need enforceable water pollution limits. Five million people visited Lee County, where the 

Caloosahatchee is located, in 20 I 0, and tourism employs at least 50,000 people in the area. 

5 
132 


81389.085

The situation is dire: Lee County Commission Chairman Frank Mann told local television 

news reporters the Caloosahatchee "is as foul as I've ever seen it with pollution. In front of my 

own house there's an algae scum nearly an inch thick. It smells as though you were standing by a 

septic tank with the lid taken off.'" 

One of your colleagues, U.S. Sen. Jim Inhofe, swam in the same type oftoxic algae 

outbreak in Grand Lake, Oklahoma, the last week of June and said he became "deathly sick" that 

night with an upper respiratory illness. "There is no question," Inhofe told a reporter from the 

Tulsa World, that his illness came from the toxic algae in the lake. 

As it stands now, Florida has an unenforceable "narrative" nutrient standard that merely 

says that nutrients can't cause a biological "imbalance." This is like posting a speed limit sign 

on 1-75 that reads "Drive At A Reasonable Speed Considering Weather, Traffic and Lighting 

Conditions As Well As Other Relevant Factors." Numeric standards, on the other hand, are 

precise and enforceable -- like speed limit signs that clearly say "SPEED LIMIT 55 MPH." 

In 2008, after watching algae outbreaks threaten water bodies across Florida and uncovering 

EPA documents which stated explicitly that numeric nutrient standards for phosphorus and 

nitrogen pollution were necessary under the Clean Water Act, Earthjustice filed suit against the 

EPA on behalf of Florida Wildlife Federation, Sierra Club, Conservancy of Southwest Florida, 

Environmental Confederation of Southwest Florida, and St. Johns Riverkeeper. The suit sought 

to require the EPA to promptly set numeric standards. 

The litigation concluded in a Consent Decree in which the federal court found that 

sewage, fertilizer, and animal waste pollution have worsened or not been reduced from 

unacceptably high levels, and that Florida's "narrative" standards had not solved the problem. 

The federal court's conclusion that the settlement was fair, reasonable and in the public interest 

6 
133 


81389.086

was challenged by the polluting industries. The Eleventh Circuit Court of Appeals just rejected 

that challenge. EPA's final numeric standards for inland lakes and streams will take effect in 

March 2012. Standards for Florida's estuaries and for South Florida canals and streams will be 

finalized by August 2012. 

Opposition from Florida's leaders to the EPA's numeric standards is a new political 

phenomenon. 

Just two years ago, then-Florida DEP Secretary Michael W. Sole acknowledged the 

state's serious problem with the so-called "nutrients" phosphorus and nitrogen in this press 

release: 

"Numeric nutrient criteria will significantly improve Florida's ability to address nutrient 

pollution in a timely and effective manner. The State of Florida recognizes that more 

needs to be done to address nutrient pollution in our rivers, streams, lakes and estuari~s 

... Excess nitrogen and phosphorus levels (nutrient pollution) in water bodies can cause 

harm to aquatic ecosystems and threaten public health. 

Nutrient pollution can lead to water quality problems such as harmful algal blooms, lowoxygen "dead zones" in water bodies and declines in wildlife habitat. These effects also 

disrupt recreational activities and pose threats to public health." 

States are generally responsible for setting pollution limits and Florida proposed numeric 

limits on phosphorus and nitrogen in August 2009 that are virtually the same as EPA's limits. 

However, sewage industry opposition used its political muscle to stop Florida from adopting 

them. The Florida DEP then threw the hot potato to EPA and have them adopt the limits. EPA's 

limits use the same science and same data the Florida used. That's why the limits are almost the 

same. 

The new standards have been carefully developed. EPA and DEP scientists jointly 

reviewed 13,000 water samples at 2,200 sites around the state. This is not a "one size fits all 

7 
134 


81389.087

approach" as has been claimed by some the limits are specifically crafted to consider the needs 

of different types of waterways in the state. 

Unfortunately, much misinformation is being circulated about the cost of complying with 

the new standards. The opponents of the pollution limits have inflated their cost estimates by 

falsely claiming that all Florida sewer plants would have to treat water by reverse osmosis - the 

pricey method Saudi Arabia uses to convert seawater to fresh water. It's not true: No plants in 

Florida would be required to use reverse osmosis to meet the new pollution limits. The EPA 

explicitly says that on the Frequently A~ked Questions section of its website. 

(http://water.epa.gov !Iawsregs/rulesregs/uploadlfloridafaq.pdf, page 2) 

Most sewage plants will need add-ons that use chemical treatment or biological uptake 

systems. The EPA's fiscal impact review concluded that pollution prevention measures will cost 

each Florida household II to 20 cents per day. 

(hltp:l!water.epa.gov/lawsregslrulesregs/uploadlt1orida econ.pdj) At the request of Florida Sen. 

Bill Nelson, the National Academy of Sciences is now reviewing those economic calculations as 

well. 

The public is firmly in support of the new standards. When the EPA asked the public to 

comment on the new water pollution limits, the agency received 22,000 comments, with 20,000 

in support of the new standards. 

The bottom line is that we know much more than we used to about the damage that this 

pollution causes to Floridians and the water they drink and use for recreation. Now that we know 

more, it is time to implement the pollution limits and prevent this public health threat from 

continuing. 

8 
135 


81389.088

Photos of algae outbreaks are available at: 

http:// www . earth i usti ce .org/l i brarv Ibac kgrou nd/photos-fl ori da-nutrient-po II ut ion -and-a I gaeblooms.html 

We appreciate the opportunity to submit this testimony to the subcommittee. We 

respectfully request that this statement, along with the attachments including photographs that 

document this problem, be included in the hearing record. 

Thank you. 

9 
136 

Mr. STEARNS. Thank you. 

Mr. Richardson? 

STATEMENT OF DAVID RICHARDSON 

Mr. RICHARDSON. Good afternoon. I’m David Richardson. I’m the 

assistant general manager for water and wastewater systems at 

Gainesville Regional Utilities. I’m responsible for all aspects of the 

water and wastewater system serving Gainesville and the surrounding area. 

Thank you, Congressman Stearns and members of the Subcommittee on Oversight and Investigations, for holding this field 

hearing. 

The recently adopted numeric nutrient criteria rule is undermining our widely supported environmental restoration project by 

introducing unnecessary regulatory burden, risk, and uncertainty. 

The new regulatory requirements will cost our customers up to 

$120 million in compliance costs or, if we are lucky, a minimum of 

1 million customer dollars to pursue highly uncertain regulatory relief. 

Unfortunately, EPA’s nutrient criteria rule will provide no additional environmental benefit for this project. I’m sure you must be 

wondering if this rule results in customer expenditures with no environmental benefit, why have we not worked with EPA during 

rule development to prevent this from happening? 

We have. We’ve provided lengthy written comments and met personally with representatives from EPA’s Office of Science and Technology during rule development. The essence of our comments to 

EPA was this. Our community already has an EPA-approved, sitespecific numeric nutrient rule, known as the Alachua Sink nutrient 

total maximum daily load. And Gainesville Regional Utilities is 

participating in a $26 million project, called the Paynes Prairie 

Sheetflow Restoration Project, to comply with that EPA-approved 

rule. 

No environmental benefit will result from overlaying new generalized nutrient criteria rules on waters already subject to the 

science-based, site-specific nutrient rule. Only needless economic 

expenditures will result. 

In spite of our extensive comments and requests, the numeric nutrient criteria rule adopted on November 14, 2010, provides no 

meaningful solution. At a minimum, the rule requires that we 

spend $1 million demonstrating once more that our sophisticated 

wetland restoration project comports with EPA’s new generalized 

mandates. 

We feel whipsawed. Gainesville Regional Utilities has already 

demonstrated the appropriateness of this project to DEP and EPA 

through the total maximum daily load process and the National 

Pollutant Discharge Elimination System permitting process. The 

Paynes Prairie Sheetflow Restoration Project is a major environmental restoration project, which will improve water quality, protect drinking water, and restore 1,300 acres of natural wetlands 

within Paynes Prairie Preserve State Park. 

The $26 million project is a partnership among Gainesville Regional Utilities, City of Gainesville Public Works, DEP, the St. 

Johns River Water Management District, and the Florida DepartVerDate Aug 31 2005 09:25 Jul 16, 2013 Jkt 037690 PO 00000 Frm 00140 Fmt 6633 Sfmt 6633 F:\112-08~1\112-81~1 WAYNE
137 

ment of Transportation and is broadly supported in our community. 

The project reflects thousands of hours of effort by local stakeholders. 

To date, $3.8 million has been spent on this project. Design is 

continuing, and construction is scheduled to start in 2012. When 

completed, the project will cost $26 million. We must proceed with 

this project to comply with DEP and EPA permit conditions. 

This project is incorporated in a National Pollutant Discharge 

Elimination System permit that EPA approved and DEP issued in 

2010. Now, barely a year later, new regulations have been adopted 

that put this project in jeopardy. No site conditions have changed. 

No additional data suggests a different approach is needed. None 

of the underlying science that led to the development of this project 

has changed. 

The only change is that EPA has adopted a new set of generalized nutrient rules that don’t acknowledge or allow for the wide 

range of naturally occurring nutrient levels or allow solutions that 

are tailored to site-specific conditions. DEP and EPA still support 

this project, but demonstrating that this project meets the newly 

adopted numeric nutrient criteria regulation is costly and uncertain. 

Gainesville Regional Utilities greatly appreciates the opportunity 

to provide these comments. We ask that this subcommittee please 

help us avoid spending customer money on activities that will not 

result in an environmental benefit. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Richardson follows:] 

138 


81389.089

One Page Summary - Testimony from David Richardson, GRU August 9,2011 

Impact of EPA's Numeric Nutrient Criteria on the Paynes Prairie Sheetflow Restoration Project 

- More RegulationfMore CostfNo Benefit 

Thank you Congressman Stearns and Members of the Subcommittee on Oversight and 

Investigations for holding this field hearing, The recently adopted numeric nutrient criteria rule (NNC) 

is undermining our widely supported environmental restoration project by introducing unnecessary 

regulatory burden, risk and uncertainty, The new regulatory requirements will cost our customers up 

to $120 million in compliance costs or, if we are lucky, a minimum of 1 million customer dollars to 

pursue highly uncertain regulatory relief. Unfortunately EPA's nutrient criteria rule will provide no 

additional environmental benefit 

I'm sure you must be wondering, if this rule results in customer expenditures with no 

environmental benefit, why have we not worked with EPA during rule development to prevent this 

from happening, We have, We provided lengthy written comments and met personally with 

representatives from EPA's Office of Science and Technology during rule development 

The essence of our comments to EPA was this: our community already has an EPA-approved 

site-specific, numeric nutrient rule -- known as the Alachua Sink Nutrient TMDL -- and GRU is 

participating in a $26 million dollar project - called the Paynes Prairie Sheetflow Restoration Project --

to comply with that EPA-approved rule, No environmental benefit will result from overlaying new 

generalized nutrient criteria rules on waters already subject to this science-based, site specific 

nutrient rule; only needless economic expenditures will result 

In spite of our extensive comments and requests, the NNC rule adopted on November 14, 

2010 provides no meaningful solution, At a minimum, the rule requires that we spend $1 million 

demonstrating once more that our sophisticated wetlands restoration project comports with EPA's 

new generalized mandates, We feel whipsawed, GRU has already demonstrated the 

appropriateness of this project to FDEP and EPA through the TMDL process and the NPDES 

permitting process, 

The Paynes Prairie Sheetflow Restoration Project is a major environmental restoration project 

which will improve water quality, protect drinking water and restore 1,300 acres of natural wetlands 

within Paynes Prairie Preserve State Park, The $26M project is a partnership among Gainesville 

Regional Utilities, City of Gainesville Public Works, FDEP, the St Johns River Water Management 

District, and the Florida Department of Transportation, and is broadly supported in the community, 

The project reflects thousands of hours of effort by local stakeholders, To date, $3,8M has 

been spent on this project Design is continuing, and construction is scheduled to start in 2012, 

When completed, the project will cost approximately $26M, We must proceed with this project to 

comply with FDEP and EPA permit conditions, 

This project is incorporated in an NPDES permit that EPA approved and FDEP issued in 2010, 

Now, barely a year later, new regulations have been adopted that put this project in jeopardy, No site 

conditions have changed, no additional data suggests a different approach is needed, none of the 

underlying science that led to the development of this project has changed, The only change is that 

EPA has adopted a new set of generalized nutrient rules that do not acknowledge or allow for the 

wide range of naturally occurring nutrient levels, or allow solutions that are tailored to site specific 

conditions, FDEP and EPA still support this project, but demonstrating that this project meets the 

newly adopted NNC regulation is costly and uncertain, 

GRU greatly appreciates the opportunity to provide these comments, We ask that this 

Subcommittee please help us avoid spending customer money on activities that will not result in an 

environmental benefit 
139 


81389.090

Testimony of David Richardson, Gainesville Regional Utilities, August 9, 2011 

Impact of EPA's Numeric Nutrient Criteria on the Paynes Prairie Sheetflow 

Restoration Project - More Regulation/More Cost/No Benefit 

Executive Summary 

Thank you Congressman Stearns and Members of the Subcommittee on 

Oversight and Investigations for holding this field hearing. The recently adopted 

numeric nutrient criteria rule (NNC) is undermining our widely supported environmental 

restoration project by introducing unnecessary regulatory burden, risk and uncertainty. 

The new regulatory requirements will cost our customers up to $120 million in 

compliance costs or, if we are lucky, a minimum of 1 million customer dollars to pursue 

highly uncertain regulatory relief. Unfortunately EPA's nutrient criteria rule will provide 

no additional environmental benefit for this project. 

I'm sure you must be wondering, if this rule results in customer expenditures with 

no environmental benefit, why have we not worked with EPA during rule development to 

prevent this from happening. We have. We provided lengthy written comments and 

met personally with representatives from EPA's Office of Science and Technology 

during rule development. 

The essence of our comments to EPA was this: our community already has an 

EPA-approved site-specific, numeric nutrient rule -- known as the Alachua Sink Nutrient 

Total Maximum Daily Load -- and Gainesville Regional Utilities is participating in a $26 

million dollar project - called the Paynes Prairie Sheetflow Restoration Project -- to 

comply with that EPA-approved rule. No environmental benefit will result from 

overlaying new generalized nutrient criteria rules on waters already subject to this 
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science-based, site specific nutrient rule; only needless economic expenditures will 

result. 

In spite of our extensive comments and requests, the NNC rule adopted on 

November 14,2010 provides no meaningful solution. At a minimum, the rule requires 

that we spend $1 million demonstrating once more that our sophisticated wetlands 

restoration project comports with EPA's new generalized mandates. We feel 

whipsawed. Gainesville Regional Utilities has already demonstrated the 

appropriateness of this project to FDEP and EPA through the Total Maximum Daily 

Load (TMDL) process and the National Pollutant Discharge Elimination System 

permitting process. 

The Paynes Prairie Sheetflow Restoration Project is a major environmental 

restoration project which will improve water quality, protect drinking water and restore 

1,300 acres of natural wetlands within Paynes Prairie Preserve State Park. The $26M 

project is a partnership among Gainesville Regional Utilities, City of Gainesville Public 

Works, FDEP, the St. Johns River Water Management District, and the Florida 

Department of Transportation, and is broadly supported in the community. 

The project reflects thousands of hours of effort by local stakeholders. To date, 

$3.8M has been spent on this project. Design is continuing, and construction is 

scheduled to start in 2012. When completed, the project will cost approximately $26M. 

We must proceed with this project to comply with FDEP and EPA permit conditions. 

This project is incorporated in an National Pollutant Discharge Elimination 

System permit that EPA approved and FDEP issued in 2010. Now, barely a year later, 

new regulations have been adopted that put this project in jeopardy. No site conditions 
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have changed, no additional data suggests a different approach is needed, none of the 

underlying science that led to the development of this project has changed. The only 

change is that EPA has adopted a new set of generalized nutrient rules that do not 

acknowledge or allow for the wide range of naturally occurring nutrient levels, or allow 

solutions that are tailored to site specific conditions. FDEP and EPA still support this 

project, but demonstrating that this project meets the newly adopted NNe regulation is 

costly and uncertain. 

Gainesville Regional Utilities greatly appreciates the opportunity to provide these 

comments. We ask that this Subcommittee please help us avoid spending customer 

money on activities that will not result in an environmental benefit. 
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Full Written Testimony 

Gainesville Regional Utilities (GRU) is a multi-service utility owned and operated 

by the City of Gainesville. GRU serves the greater Gainesville area and provides one or 

more services to a population of approximately 190,000. My current position with GRU 

is Assistant General Manager, WaterlWastewater Systems. GRU is a member of the 

Florida Water Environment Association (FWEA) Utility Council. I serve as Vice 

President of the Florida Water Environment Association (FWEA) Utility Council. 

Today, I'm representing Gainesville Regional Utilities. 

In accordance with my oversight and direction, GRU submitted detailed 

comments to EPA on April 28, 2010 regarding EPA's initially proposed "Water Quality 

Standards for the State of Florida's Lakes and Flowing Waters" and again on 

September 1, 2010 regarding EPA's supplemental notice of data availability. These 

comments outlined GRU's various nutrient reduction programs; detailed concerns 

regarding the scientific validity of EPA's proposed numeric nutrient criteria rules; and 

explained the rules' negative impact on GRU's operations, including an environmental 

restoration project being implemented to achieve an EPA-approved nutrient Total 

Maximum Daily Load (TMDL) for Alachua Sink. 

GRU provides domestic wastewater collection, treatment, disposal, and reuse 

services for approximately 62,000 connections and a population of 164,000. GRU 

operates two water reclamation facilities: the Main Street Water Reclamation Facility 

and the Kanapaha Water Reclamation Facility. In accordance with a National Pollutant 

Discharge Elimination System (NPDES) permit issued by the State of Florida, GRU's 

Main Street Water Reclamation Facility discharges to a stream known as Sweetwater 
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Branch. Today's comments will focus on the Main Street Water Reclamation Facility 

discharge and downstream waterbodies. 

Sweetwater Branch is an urban creek that flows through the City of Gainesville 

and then flows via a manmade canal into Alachua Sink and recharges the Floridan 

aquifer. (The Floridan aquifer is a 100,000 square mile underground freshwater system 

that underlies parts of five states in the Southeast and provides water to a number of 

Florida cities.) Sweetwater Branch is a rapidly moving stream that conveys a significant 

amount of stormwater. trash debris and sediment from urban areas in Gainesville during 

and after storm events. The majority of Sweetwater Branch headwaters have been 

piped and covered or concrete lined, and the remaining upper stream sections have 

been channelized and straightened. The Sweetwater Branch stream sections at the 

Main Street Water Reclamation Facility's point of discharge and downstream have been 

channelized, and there are spoil piles on both sides of the channel. The stream is highly 

incised due to scouring from storm events. Aquatic vegetation is uncommon in 

Sweetwater Branch due primarily to erosion and sedimentation; these processes alter 

the natural streambed, resulting in unfavorable conditions for plant growth and for 

growth of healthy populations of benthic organisms. The flow from Sweetwater Branch 

has been diverted directly to Alachua Sink via a man-made canal constructed in the 

1930s. This results in deposition of trash and sediment on the prairie and into Alachua 

Sink, along with exacerbating nutrient loads to Alachua Sink. The Main Street Water 

Reclamation Facility contributes 70% of the Sweetwater Branch's mean daily flow (i.e. 

flow that is not influenced by significant rainfall) downstream of the point of discharge. 
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81389.095

Sweetwater Branch was assessed by State of Florida Department of 

Environmental Protection (FDEP) and determined as not impaired for nutrients under 

Florida's TMDL program. However, its downstream water, Alachua Sink, was identified 

as nutrient-impaired, due to elevated levels of chlorophyll-a. Based on a three-year data 

collection effort for Alachua Sink from 2000-2002, it was determined that Alachua Sink's 

average annual total nitrogen (TN) concentration was 4.33 milligrams per liter (mg/L), 

and the average annual total phosphorus (TP) concentration was 1.279mg/L. Analysis 

of the water quality of Alachua Sink demonstrated that the long-term annual average 

TNITP ratio is less than 10, indicating that the phytoplankton community of Alachua 

Sink is nitrogen limited (Le. the growth rate of the phytoplankton is controlled by the 

availability of nitrogen). So, FDEP developed a numeric nitrogen TMDL that is based on 

the nitrogen loadings to Alachua Sink that will be protective of its designated uses, and 

the FDEP derived corresponding nitrogen allocations to entities that influence the 

nitrogen water quality of Alachua Sink. The nitrogen TMDL for Alachua Sink was 

approved by FDEP and EPA in 2006. 

The nitrogen load reduction requirements of the Alachua Sink TMDL are detailed 

in FDEP's Orange Creek Basin Management Action Plan (BMAP), which was adopted 

by the FDEP on May 15, 2008. GRU is a stakeholder and member of the Orange Creek 

Basin Working Group (BWG) which developed the Orange Creek Basin Basin 

Management Action Plan through an open, collaborative process involving multiple 

stakeholders representing various agencies, environmental groups and the public. The 

Basin Working Group has been active since 2005, and has devoted an extensive 

amount of effort to identify appropriate TMDL pollutant load reductions and develop 
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81389.096

solutions to address and meet the TMDLs. The effort has included extensive public 

outreach including many public meetings. GRU and City staff have devoted over 1,300 

hours to the Basin Working Group meetings and outreach efforts. Thousands of hours 

have also been devoted by other agencies, public representatives, etc. The Basin 

Working Group includes members representing a number of public agencies as well as 

citizen and environmental interests including: 

• Alachua County (Public Works and Environmental 

Protection Departments); 

City of Gainesville (Public Works); 

• Fish and Wildlife Conservation Commission; 

• Florida Department of Transportation; 

• Florida Department of Environmental Protection Northeast 

District Office; 

• Florida Department Environmental Protection Bureau of Invasive Plant 

Management; 

• Paynes Prairie Preserve State Park; 

• Alachua County Health Department; 

Gainesville Regional Utilities (GRU); 

University of Florida; 

• St Johns River Water Management District; 

• Department of Agriculture and Consumer Services (Office of Agricultural 

Water Policy and Division of Forestry); 
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81389.097

• Florida Forestry Association; 

Private timber interests; 

Marion County Clean Water Program; 

• Alachua County and Gainesville citizen environmental 

advisory committees; and 

Community groups, including Sustainable Alachua County, Suwannee St. 

Johns Sierra Club, and Women for Wise Growth. 

The Paynes Prairie Sheetflow Restoration Project was developed by the Basin 

Working Group through the Basin Management Action Plan process to meet the 

Alachua Sink TMDL allocations (See Figure A). This project is estimated to cost $26 

million and is a cooperative effort between GRU, the City of Gainesville, the St. Johns 

River Water Management District, FDEP, Florida Department of Transportation, and 

Alachua County. The Gainesville community and the State of Florida have invested six 

years and $3.8 million in the Paynes Prairie Sheetflow Restoration Project to date. The 

Paynes Prairie Sheetflow Restoration Project provides a comprehensive basin-wide 

solution for meeting the TMDL nutrient reduction requirements for multiple sources. The 

project includes improvements to the GRU Main Street Water Reclamation Facility to 

remove phosphorus. It also includes the construction of trash and sediment removal 

facilities and an enhancement wetland which will receive the flow from Sweetwater 

Branch and remove nutrients from all sources entering Sweetwater Branch, including 

the GRU Main Street Water Reclamation Facility, stormwater runoff, and contamination 

entering the creek from septic tanks, fertilizers and other sources. The artificial canal 
147 


81389.098

connecting Sweetwater Branch to Alachua Sink will be removed, and the flow from the 

enhancement wetland will be discharged to natural wetlands on Paynes Prairie, 

restoring the natural flow pattern onto the prairie. The existing, natural wetlands will 

further remove nitrogen to meet background nitrogen concentration levels before 

discharging to Alachua Sink. This project will improve water quality in Alachua Sink, 

restore and rehydrate approximately 1,300 acres of natural wetlands within Paynes 

Prairie Preserve State Park, provide much needed water to the prairie, remove trash, 

debris and sediment, provide protection to the Floridan Aquifer, and provide recreation I 

wildlife viewing. The project is broadly supported by the community. A video has been 

produced that describes this project which can be viewed by visiting the City of 

Gainesville website at: 

http://gainesville.granicus.com!ASX.php?view id=6&c1ip id=760&F20dOae70d8cbf48650e34605eb9dfd09&xp=n 

& inlro= 1 &sn=gainesville.granicus.com&bitrale=&S ES S j··8930d58bdddd07 6e 1 c6edfSbdbbaaab j &sn~gainesville.g 

ranicus.com 
148 


81389.099

FIGURE A: Paynes Prairie Sheetflow Restoration Project 
149 


81389.100

EPA's final numeric nutrient criteria rule is creating a serious risk of undermining 

the Paynes Prairie Sheetflow Restoration Project without providing any environmental 

benefits. EPA has finalized numeric nutrient criteria of 1.54 mg/L-TN and 0.12 mg/L-TP 

for streams in the peninsular eco-region, which apply Sweetwater Branch. GRU's 

effluent discharge into Sweetwater Branch has average nutrient concentrations of 

approximately 5 to 8 mg/L-TN and 1 mg/L-TP. Reducing nutrient levels in GRU's 

discharge to achieve EPA's numeric nutrient water quality criteria for streams will not 

improve the health of the biological community in Sweetwater Branch. As previously 

noted, Sweetwater Branch was not listed as impaired for nutrients and exhibits no signs 

of nutrient impairment (e.g. no algal booms or imbalances of flora or fauna related to 

nutrients) while being influenced by GRU's current discharges. Reducing nutrient levels 

in GRU's discharge will not benefit Alachua Sink, because the Paynes Prairie 

Sheetflow Restoration Project is being implemented to achieve nutrient loads to 

Alachua Sink that protect its designated use. 

In order for GRU to meet the numeric nutrient criteria in Sweetwater Branch, 

GRU would either have to install non-conventional technologies to meet Numeric 

Nutrient Criteria at the Main Street Water Reclamation Facility discharge instead of or in 

addition to the Paynes Prairie Sheetflow Restoration Project. or install a pipeline to 

route the flow from Main Street Water Reclamation Facility directly to the enhancement 

wetland, thus by-passing the stretch of Sweetwater Branch downstream of the Main 

Street Water Reclamation Facility. This pipeline would have a capital cost of 

approximately $8 million and annual operating cost of approximately $175,000/yr. This 

pipeline would provide no ecological benefit to Sweetwater Branch or Alachua Sink, but 
150 


81389.101

would significantly increase the project cost which the community must bear. GRU's 

other option is to pursue uncertain regulatory relief in the EPA rule - apply for a Site 

Specific Alternative Critieria. 

The EPA Numeric Nutrient Criteria lake criteria for nitrogen and phosphorus, 

which may apply to Alachua Sink, also create significant risk for the project. EPA's 

nutrient criteria rules do not clearly distinguish among lakes, wetlands, and sinks. GRU 

does not believe that Alachua Sink should be lumped in with EPA's definition of lakes; 

however, if EPA treats Alachua Sink as a lake, the EPA Numeric Nutrient Criteria for 

lakes are below natural background levels for Alachua Sink and below the TMDL criteria 

which FDEP established based on scientific evaluation of Alachua Sink. If GRU is 

unable to obtain Site Specific Alternative Criteria (SSAC) for Alachua Sink, GRU will 

have to install non-conventional treatment at Main Street Water Reclamation Facility at 

a capital cost of $120 million and operating cost of roughly $11 million/year resulting in a 

66% rate increase. 

GRU is seeking site specific alternative criteria for Sweetwater Branch and 

attempting to discern whether site specific alternative criteria are necessary for Alachua 

Sink. GRU will spend approximately $1 million for consulting and legal services on 

these efforts. From the perspective of protecting the environment this additional analysis 

is unnecessary and provides no benefit, since there has already been an extensive 

amount of analysis of this basin through the TMDL and Basin Management Action Plan 

processes. If GRU is unable to obtain a site specific alternative criteria for Sweetwater 

Branch, it will cost an additional $8 million to construct a pipeline (as described above) 

to by-pass Sweetwater Branch, with no environmental benefit. If a site specific 
151 


81389.102

alternative criteria are indeed necessary for Alachua Sink and GRU is unable to obtain 

them, GRU may have to spend $120 million in capital cost (as described above) to 

construct non-conventional treatment modifications (such as reverse osmosis) to meet 

numeric nutrient criteria, with no environmental benefit. Due to budget constraints, these 

expenditures could eliminate GRU's ability to participate in the Paynes Prairie Sheetflow 

Restoration Project and its ability to comply with NPDES permit requirements tailored to 

implement the Paynes Prairie Sheetflow Restoration Project. GRU now faces a dilemma 

due to the regulatory uncertainty created by EPA's nutrient criteria rules, which do not 

take into account programs being implemented to achieve EPA-approved nutrient 

TMDLs. Because EPA's numeric nutrient criteria rules apply to waters that are already 

subject to EPA-approved, basin-wide nutrient TMDL solutions, such as Sweetwater 

Branch and Alachua Sink, the rules impede the ability of GRU and other stakeholders to 

implement projects that will reduce nutrient loads to Florida waters and meet the goals 

of the Clean Water Act. 

GRU appreciates the efforts of this Subcommittee to investigate the policy and 

economic consequences of EPA's nutrient rules. Please help us avoid spending 

customer money on activities that will not result in an environmental benefit. Please 

help us save the Paynes Prairie Sheetflow Restoration Project. 
152 

Mr. STEARNS. Thank you. 

I will start with my questions. It is nice to have two constituents 

really from Trenton, Gilchrist and from Gainesville. So I am also— 

very rare do I have two constituents on a panel. 

Mr. St. John, you made the pretty dramatic statement that your 

industry could be out of business I think you said in perhaps 5 

years if these were implemented. And that is a pretty strong statement. Because the EPA and their nutrient standards for phosphorus and nitrogen would make it more difficult for the farms and 

for the people milking cows and things like that because how would 

this—because their runoff would be so regulated that they couldn’t 

implement? 

Is that—— 

Mr. ST. JOHN. It was mentioned that the EPA does not control 

agriculture. But inadvertently, they do. If they were to change—— 

Mr. STEARNS. That is what I want to get at. How does it inadvertently—— 

Mr. ST. JOHN. Well, if they were to change the 10 parts per million to 0.35—— 

Mr. STEARNS. OK. 

Mr. ST. JOHN [continuing]. We would then, through a change of 

permit, be asked to comply with the 0.35. 

Mr. STEARNS. And a typical farm, Gilchrist County, that has 

cows, how would this specifically impact it? 

Mr. ST. JOHN. Bottom line, if that’s moved to 0.35, we cannot 

comply because we recycle our nutrients through plants. I like to 

think we are the ultimate recyclers. 

Mr. STEARNS. You recycle your nutrients through the plants? 

Mr. ST. JOHN. That’s right, feed the plants—— 

Mr. STEARNS. And you couldn’t comply? 

Mr. ST. JOHN. No. No, sir. It’s such a small limit of nitrogen that 

would escape, and it does, with these 3-inch rains. You know, that’s 

why it’s 10 parts per million and not less. Our alternative would 

be haul all our effluent to a landfill or move it out of State. 

Those are cost prohibitive, and we would not be able to—— 

Mr. STEARNS. So you would go to another State that doesn’t have 

that high requirement? 

Mr. ST. JOHN. I would hope the Federal Government would buy 

us out for a large sum of money, and I would retire and live happily ever after. 

[Laughter.] 

Mr. STEARNS. You wouldn’t have to deal with it. 

Now you say, you know, I agree with agriculture is extremely important to the State of Florida, and people think of tourism as the 

number-one industry. But agriculture oftentimes is considered the 

number one in Florida. 

But you have heard Mr. Guest talked about the Suwannee River, 

and he has talked about other things where this pollution is in 

such a dire strait that people don’t feel comfortable they can go 

swimming. Or if they do, they get a rash. So, in your mind’s eye, 

is there a way to compromise on this, either through technological 

advancement, or you just think the standard is too strict and it 

should be less? That would be your opinion? 

153 

Mr. ST. JOHN. Well, first, let me comment on the Suwannee 

River. We have a place on the Suwannee River. And of course, in 

our litigious society, the State put posts up at every major spring 

to avoid some litigation if someone gets hurt jumping into the 

spring. My family, everyone that comes to visit us, swims in the 

Suwannee. 

Mr. STEARNS. You have no trouble? 

Mr. ST. JOHN. We don’t get a rash. But anyway, I’m not—I’m not 

here to—I just—when someone talks about the Suwannee, I get a 

little defensive. 

Mr. STEARNS. Yes, I understand. 

Mr. ST. JOHN. I think the 0.35 is no place in this country can 

that comply, even septic systems. 

Mr. STEARNS. It is not even—it is not the State of Florida. It is 

just, it is an unreasonable statute? 

Mr. ST. JOHN. Yes, I believe that. 

Mr. STEARNS. OK. Mr. Steinbrecher, you heard the first panel. Is 

there anything that you heard in the first panel, either from Keyes 

Fleming or from Mr. Budell that you would like to comment on? 

Mr. STEINBRECHER. Thank you, Chairman, I would. 

Mr. STEARNS. You know, one of the things I got concerned about 

is this litigation in which Mr. Budell said that no variances will 

ever be provided because there will be suits. And for all intents and 

purposes, either for nitrogen or for phosphorus, there will be no 

settlements. And so, I mean, you might—— 

Mr. STEINBRECHER. I would exactly like to hone in on that. EPA’s 

assurances to us this morning, unfortunately, are not in the rule. 

None of those things related to you are in the rule. What’s in the 

rule is certain numbers. 

And so, Ms. Keyes Fleming says but they’ll—utilities and others 

will be allowed to meet some other number. But some other number, using some other technology, isn’t in the rule. They’re just not 

there. 

So we’re supposed to believe that these new rules that displace 

existing EPA-approved rules are desperately needed on one hand, 

and then, on the other hand, we’re supposed to believe that almost 

everybody is going to get an exemption from them somehow. That’s 

what their cost estimate is based upon. It doesn’t make sense. 

Mr. STEARNS. Mr. Dever, you had indicated you represent the 

Florida Gulf Coast Building and Construction Trade Council, and 

that represents a lot of the affiliated unions, right? 

Mr. DEVER. Yes, sir. 

Mr. STEARNS. How many unions does that represent? 

Mr. DEVER. We’ve got 14 that signed on right now. 

Mr. STEARNS. OK. 

Mr. DEVER. Carpenters, laborers, et cetera. 

Mr. STEARNS. Right. And in your experience then, you don’t 

think this is a partisan matter in any way, do you? Or—— 

Mr. DEVER. No, sir. I don’t. 

Mr. STEARNS. And I think as Mr. Guest pointed out, some of this 

got started under the Bush administration. But what you are saying is that the impact of this on the regional construction will be 

pretty dramatic? 

154 

Mr. DEVER. It certainly can be. Yes, sir. This is a fragile industry. We are already at 10 percent unemployment, just slightly higher than that. We need to create ways to create more jobs, not create the fear of losing them. I think—— 

Mr. STEARNS. But tell me specifically how the EPA would affect 

these construction workers? Can you make it more personal? 

Mr. DEVER. Yes, sir. 

Mr. STEARNS. Take some of your unions and—— 

Mr. DEVER. Based on what I’ve read—— 

Mr. STEARNS. Yes. 

Mr. DEVER [continuing]. The EPA is showing a total cost right 

now between $135 million and $206 million, and—— 

Mr. STEARNS. OK. We hear figures like that, but tell me specifically what would happen. Would it be the cost for the building materials, or would it be the cost for complying with the regulation 

for the home or environmental standards—— 

Mr. DEVER. Just the creation of—— 

Mr. STEARNS [continuing]. Dealing with nitrogen and phosphorus? How would—— 

Mr. DEVER. Yes, sir. Creation and investment of new jobs in the 

State could be diminished. For example, in the industrial sector, we 

do a lot of work in the phosphate industry. The phosphate covers 

central Florida, where we’re at. We have a lot of competition right 

now from other geographical parts of the world, down in South 

America—— 

Mr. STEARNS. Where there are not these—— 

Mr. DEVER. They have no criteria of this nature. 

Mr. STEARNS. OK. 

Mr. DEVER. So this will have an impact. 

Mr. STEARNS. All right. My time has expired. 

Mr. Barton is recognized. He is on the committee. 

Mr. BARTON. I don’t mind letting Ms. Brown go first, if she would 

rather? 

Ms. BROWN. OK. 

Mr. STEARNS. It is your call, Mr. Barton, because you are on the 

committee, and you certainly have the choice to decide. 

Mr. BARTON. Well, I think to be balanced, we ought to let—— 

Mr. STEARNS. OK. Ms. Brown is recognized for 5 minutes. 

Ms. BROWN. I am glad you mentioned the word ‘‘balance.’’ Because in looking at the committee, I want to say that may be what 

Mr. Guest thinks, it is not balanced. It is like 5-to-1. But I think 

it is about equal, Mr. Guest, with your testimony. So we are doing 

good. 

But no one wants to be called a polluter, and calling names is 

not going to help us get where we need to go. And so, I would— 

I mean, I am not—I am saying what it is that we need to do to 

move forward. Basically, the State of Florida had 6 years, did nothing. 

So, in some cases, you are saying it doesn’t make any sense in 

agriculture. What can we do as we move forward to work out this 

situation, or if it is no reason, I am not going to sit here and tell 

you that I am going to support doing away with clean water. I am 

not. What I am going to tell you is I will work with you and work 

155 

with the communities, and I am very grateful that the chairman 

has called this meeting together. 

What can we do to move our State forward? The reason why we 

don’t have construction in many different areas is a variety of reasons. If you think about high-speed rail, we sent back $3 billion, 

which is 60,000 jobs. So don’t get my blood pressure up for no reason. 

So let’s talk about what we can do together as one team, moving 

the State of Florida forward, and I want to start with you, Mr. 

Guest, because you think you are outnumbered. Not true. 

Mr. GUEST. Well, thank you, Congresswoman Brown. 

I think that the short answer to that is that we need to get away 

from the hysteria about this and start working together as a team. 

We need to acknowledge the truth that there is this nightmarish 

problem that’s growing. We also need to acknowledge that you can’t 

have a compliance cost that’s going to break the bank. 

We need to be truthful about the law. This is a State responsibility. The State produced a rule, and it’s essentially identical to 

what the State—to what EPA came up with. 

The springs rule—actually, the springs rule is the State rule. The 

State rule is actually more stringent than the EPA rule, and for 

good reason. Because the kids that go in those springs do get rashes, and if you let them testify, they’d be telling you that today. 

So we need to get people together to talk about how we can implement this in a practical, reasonable, timely way that doesn’t 

break the bank. And that will protect our economy, that will increase jobs, that will protect property values. It will protect the 

public. That’s how to do it. 

Ms. BROWN. Mr. Guest, let me ask you a quick question before 

we go on. Have you been involved in any of the discussions with 

the State? Because EPA said they have been talking to the State. 

Have the State been—since they are not here, I have to ask you. 

Mr. GUEST. Yes. Oh, absolutely. We are in constant communication with the State. And we have reached out to the industry, to 

the sewage folks, to the farming people. We’ve reached out and said 

how can we work together to make this system work and end this 

problem? 

And we just haven’t gotten enough traction to get those folks to 

say, yes, let’s sit down and work this out. And that’s what we really need to do. 

Ms. BROWN. So probably what you think needs to happen is we 

need to have another meeting that is more of not a hearing, but 

maybe a roundtable discussion, get everybody in the room, lock the 

door, and say you can’t leave until we solve it? 

Mr. GUEST. I think it would be better to do it industry by industry. But, yes, absolutely. This problem is solvable. You know, agriculture, to be—people need to be totally honest about this. The 

Clean Water Act doesn’t regulate agriculture. The State does that, 

other than the exotic factory farm things, which there are very few 

of those. 

The Clean Water Act doesn’t do that; the State does that. And 

so, when the State says, well, the price tag is this much, it can’t 

possibly be true because it’s the State that implements the regulaVerDate Aug 31 2005 09:25 Jul 16, 2013 Jkt 037690 PO 00000 Frm 00159 Fmt 6633 Sfmt 6633 F:\112-08~1\112-81~1 WAYNE
156 

tions. The State sets the regulations. This act and this rule doesn’t 

actually affect agriculture at all. 

Ms. BROWN. Right. But I understand what they were saying. 

They were saying if the State adopts certain standards, it is going 

to affect agriculture eventually? 

Mr. GUEST. Well, hope so. But it’s going to take a change of law 

to get there. It’s going to take a new statute, and I think it’d be 

a great idea for you all to think about amending the Clean Water 

Act so it applied to agriculture. That’s something you should consider because of the gravity of this problem. But it doesn’t do it 

now. 

And I hope the State legislature does it sometime, too. But unless they do, it won’t. 

Ms. BROWN. My understanding is hearing from certain Members, 

they want to do away with the Clean Water Act completely, which 

is ludicrous. We got here because the States weren’t doing what 

they were supposed to do. 

Now we need to have a procedure that we could work together 

to move it forward. My time is out, but I need a response from one 

of the other participants. 

Yes, sir? 

Mr. STEINBRECHER. Ms. Brown, thank you. 

I appreciate everything you said. My opinion is that it wasn’t because the State wasn’t doing it. I think Florida—I’ve spent my career in this field, and I think the State of Florida has one of the 

most outstanding water quality control programs in the entire Nation. This was about settling a lawsuit, and it was done badly. I 

really appreciate your question about how do we get beyond this 

because we got a mess now. 

I would suggest, as actionable items, that EPA adopt all existing 

formerly EPA-approved nutrient TMDLs for the State of Florida, 

unless there is some overriding reason that maybe the science on 

a couple of them wasn’t up to snuff for some reason. But if they’ve 

already looked at the issue, we’ve spent millions and millions of 

dollars on many of these and they exist, and we’ve got hundreds 

of millions of dollars of public infrastructure in our own area based 

on those scientific endpoints. 

So, one, adopt those. Two, agree to do exactly what you’re talking 

about, which is put the flowing waters portion of the rule in abeyance. They talk about lakes and springs as well. But the flowing 

water portion of the rule is the most objectionable scientific part, 

and agree to spend the appropriate time to go and set more scientifically based standards. 

Those would be my suggestions. 

Ms. BROWN. Thank you. 

Mr. Chairman, I yield back. 

Mr. STEARNS. Yes. Mr. Barton is recognized for 5 minutes. 

Mr. BARTON. Thank you. Thank you, Mr. Chairman. 

Mr. St. John, my uncle owned a dairy. He is retired now. And 

my other uncle was an inspector of dairies, and he is retired now. 

So I have some family history in the dairy industry. And of course, 

I like dairy products quite a bit. 

Mr. Guest, we do appreciate you being here. I think it is—although you are outnumbered, it certainly doesn’t mean you are 

157 

outmanned, so to speak, because of the issue. I would like to ask 

you a few questions. 

Are you one of the plaintiffs in the lawsuit, or are you an attorney that represents the plaintiffs? 

Mr. GUEST. I apologize for not clarifying that, Representative 

Barton. I’m counsel for the conservation organizations that brought 

this matter to the court back in 2008, I guess it was. 

Mr. BARTON. OK. So you are a professional representative, although it is clear by your testimony that you share the views of the 

plaintiffs that you represent, that you think that they are carrying 

the gospel in terms of their message. 

Mr. GUEST. The short answer to that is yes. We’ve been counseled, our firm has served as legal counsel, protecting clean water 

for communities for over 20 years. And yes, we concur with our clients that public health should come first. 

Mr. BARTON. Now you heard my questions in the second round 

about requiring some standing to sue. I am not for revocation of 

the citizen lawsuit. I do think all of our environmental laws could 

stand a review, given when they were passed and what the society 

was then and what they are now. But I am not for revocation or 

repeal of Safe Drinking Water Act or the Clean Water Act or the 

Clean Air Act. 

In fact, I am, along with Mr. Stearns, a co-sponsor of the Clean 

Air Act amendments of the mid 1990s. But I do think it is a fair 

question whether it is time to put some cost-benefit analysis into 

these laws, to set some requirements for standing to sue, to consider putting in some loser pay requirements, things of this sort. 

In your case in this lawsuit, the plaintiffs that brought the suit, 

my guess is, aren’t sharing in the cost of the litigation, that that 

is being borne by some national or State group. Am I right about 

that? 

They have to give their names, and they have to live in the 

State. I mean, they are obviously involved, and they are named in 

the suit. But in terms of defraying the cost of it, I would think they 

probably don’t have to do that. 

Mr. GUEST. Well, no, actually, they do. How it works is that the 

Sierra Club is a national organization, I believe the biggest one by 

far. And of course, they share in the cost because it’s national, and 

this is their local chapter. The Florida Wildlife Federation is a 

State-wide group with, I think, 13,000, 14,000 members, and they 

share in the cost. 

And so, there is the Conservancy of Southwest Florida. That, 

quite frankly, doesn’t pay very much. They don’t have very much 

money. But the cost is shared that way. So people have major contributions, to make it clear. But the litigation itself isn’t terribly expensive, although it costs us a lot. It costs a lot in time. 

Mr. BARTON. And I would assume that you don’t do it pro bono, 

although it is possible that you do. 

Mr. GUEST. No. We don’t charge our clients. We’re nonprofit. We 

are a nonprofit organization. And we would be prohibited—— 

Mr. BARTON. But somebody pays you some money? 

Mr. GUEST. People that care about the cleanliness and the safety 

of our environment make donations so that we can protect the community and protect the public health. 

158 

Mr. BARTON. And all these people that have testified, they are 

just wrong? The young lady next to you is just a gross polluter, and 

the gentleman next to you, and these people don’t care about Florida water quality. And they just, they want to dump every bit of 

phosphorus they can into the lakes and rivers of Florida and all 

that? 

It is just the only people between them and absolute disaster is 

your law firm and the people that back you up? 

Mr. GUEST. No. No, these are good people. They are honest corporate citizens, and we hold them in high respect. But we believe 

that they are misinformed. They’ve gotten whipped up by the 

hysteria, and a perfect example of that is the stuff that you folks 

are talking about today, that this is a Federal takeover. 

If you actually read the settlement agreement that brought us 

here this day, if you look at paragraph 7 of that agreement, what 

it says is that the EPA does not have to even propose, propose any 

standards if the State has acted in several months—— 

Mr. BARTON. Now, the EPA regional administrator and the gentleman from the Florida Department of Agriculture both agreed 

that the lawsuit that your group brought was based on timing. Do 

you disagree with that? 

That the State wasn’t acting quickly enough? That was my understanding. 

Mr. GUEST. That’s not quite exactly right. Without giving you a 

complex answer, the answer is, yes, there was a timing component 

to it certainly. In short, the State was—had a set of standards, but 

they were basically the same as the EPA standards. 

In August of 2009, they were agenda’d for approval. They ran 

into a buzz saw about this issue from industries that were adversely affected by the rules. The State then declined to go through 

with the agenda item and approve it and threw the hot potato to 

EPA for them to get stuck with it—— 

Mr. BARTON. OK. 

Mr. GUEST [continuing]. With the State data, the State time—— 

Mr. BARTON. My time has expired. But I want to go to Mr. 

Steinbrecher and give him—the Region 4 EPA said, the administrator, that the cost of compliance to utilities would be 11 cents a 

day, which would add, that is about 30 bucks a month. I mean, 

about 3 bucks a month, which would be around $36, $40 a year. 

Your number is $750 a year, which is basically 60–70 bucks a 

month. What is the big difference there? Why is your number so 

much higher than the EPA’s number? 

Mr. STEINBRECHER. EPA didn’t cost out the cost of compliance 

with their rule. They actually assumed—they passed rules that 

say, I’ll give you just the nitrogen standard. 

The nitrogen standard varies throughout Florida in those five regions from something like 0.6 or 0.7 milligrams per liter to 1.7. 

That’s what’s in their rule. 

But what they costed out was advanced wastewater treatment at 

existing wastewater treatment plants, which is what most of us do 

now. That gets you to 3 milligrams per liter. So they did not, in 

fact, calculate the cost of compliance. You have to add other technologies to meet their numbers. 

159 

Mr. BARTON. Do you think your group would support a modification of the Clean Water Act to require or at least allow for a true 

cost-benefit analysis? 

Mr. STEINBRECHER. I think we’ve absolutely got to start doing 

that, and I’ve been ashamed by what I’ve seen here. I’m a professional engineer. This isn’t rocket science. 

In my field, we know how to cost out the technologies to get you 

virtually any number you want between where you are at and zero. 

We have been doing that for a long time now. So this is established 

professional practice, and it simply was not done in this case and 

recorded properly. 

Mr. BARTON. I am no longer a professional engineer, but I was 

licensed in Texas until I got elected to Congress. So I still am an 

engineer, but I am not registered at this point in time. 

I yield back, Mr. Chairman. 

Mr. STEARNS. Thank you. 

The gentleman, Mr. Bilirakis, is recognized for 5 minutes. 

Mr. BILIRAKIS. Thank you, Mr. Chairman. I appreciate it. 

Mr. Richardson, I know you mentioned this in your testimony. 

You indicated that the Paynes Prairie Sheetflow Restoration 

Project is a major environmental restoration project that is $26 

million—it is a $26 million endeavor with partners, of course, the 

utilities, certain entities like Gainesville Regional—go Gators, by 

the way—and the FDEP and, of course, the Florida Department of 

Transportation. 

You said that you have already spent—the project has already spent $3.8 million. Again, you may have mentioned this, but pardon me. I want to get this clear. It is worth repeating. 

Did you think you would be able to complete the project if these 

rules went into effect? 

Mr. RICHARDSON. Well, what we know is that the project as designed will not strictly meet the numeric nutrient criteria. So our 

two choices are to pursue this uncertain variance process, and we 

are estimating that that will cost us at least $1 million. 

We heard from Mr. Budell earlier that it’s unlikely that SSACs— 

that any of these variance processes will be granted. So that’s extremely discouraging. If we have to strictly meet the numeric nutrient criteria on Paynes Prairie, we would do something very different than this restoration project. We would build facilities at a 

cost of about $120 million instead of $26 million. 

And unfortunately, the Paynes Prairie Restoration Project is not 

in increment. Like I say, we would go a different direction from the 

beginning. We received a permit in 2010 that requires us to do this 

project. Unfortunately, the project does not meet the newly established generalized nutrient criteria. 

Mr. BILIRAKIS. Thank you very much. 

And I want to welcome my fellow Pinellas County resident, Ms. 

Hammer Levy. And I also want to commend and thankful—I am 

very thankful to Pinellas County and the Department of Environment and Infrastructure for their prudence, their stewardship of 

taxpayers’ dollars. 

My guess is Pinellas County would be hard pressed to come up with the extra $20 million to develop specific alternative criteria 

that will not result in meaningful improvement. Is that correct? 

160 

Ms. HAMMER LEVY. Yes. When we submitted comments back to 

EPA and actually had the opportunity to speak with staff on why 

certain areas of the State where there is phosphorus-rich soil that 

impacts our streams and our lakes, why those areas outside the 

Bone Valley were not considered, and unfortunately did not get 

much of an answer back, but that we should apply for a site-specific alternative criteria in order to address that deficiency. 

When we looked at the cost of doing a site-specific alternative criteria in the State of Florida, they have been done for developed oxygen, we utilized the cost for that process, and it ranged between, 

I believe, around $80 to $400 per acre, dependent on how urban 

you were. And obviously, we are very urban, but we still chose the 

middle number, which is about $200 per acre, which is where the 

$20 million comes from. 

So, you know, when you look at a Pinellas County, you know, we 

have $20 million to spend, I would rather do projects to restore 

Lake Tarpon, many of our streams, work on the Anclote River, 

work on Lake Seminole, which we have over $20 million invested 

in Lake Seminole, than to go and try to apply for a criteria, a sitespecific alternative criteria, which these gentlemen and others have 

said that it’s not a guarantee. It’s a very laborious process. It takes 

a lot of data. 

I’m a scientist, mind you. This is my bread and butter. This is 

what I do for a living. This is my passion. So I want to do the right 

thing. And I want to use the public’s money in a wise manner. And 

I don’t want to waste it—— 

Mr. BILIRAKIS. And we are grateful for that. 

Ms. HAMMER LEVY. I don’t want to waste it on trying to go 

through a process that doesn’t need to happen. 

Mr. BILIRAKIS. Thank you very much. 

I yield back, Mr. Chairman. 

Mr. STEARNS. All right. Mr. Ross is recognized for 5 minutes. 

Mr. ROSS. Thank you, Mr. Chairman. 

Mr. Steinbrecher, you raised an interesting point in your opening 

statement when you said that the numeric nutrient criteria is rooted in poor science and litigation. And I think it is important that 

litigation has as some unintended consequences that for the sake 

of settlement certain policies are made, not for the sake of the 

good, but rather for the sake of the settlement. 

And as Ms. Keyes Fleming testified to here today about reverse 

osmosis, that it is not going to be required. In fact, it is the preamble. But would it not be just as likely that litigation, yes, ensued 

by any group, anybody with standing, could result in the imposition 

of having reverse osmosis being made a part of the compliance? 

Mr. STEINBRECHER. Every—I’m the director of environmental 

permitting for the second-largest utility in the State. Every Clean 

Water Act legal opinion I’ve gotten on this effort says you absolutely have to meet the standards, not some other number. 

Mr. ROSS. In other words, if you were told by the EPA because 

we put in our preamble that you don’t have to use reverse osmosis, 

but their standards require it to meet that, the only way you could 

meet that standard is reverse osmosis, do you think that would be 

a solid defense to say, hey, we don’t need to do reverse osmosis? 

161 

Mr. STEINBRECHER. No. The fact that that’s in the preamble or 

that the Region 4 administrator says we are not going to—— 

Mr. ROSS. Is suggestive? 

Mr. STEINBRECHER. Is suggestive. It is not the law. We asked— 

Mr. Ross, I’m glad you asked this. The utilities asked them to put 

that in the rule. We asked them to also adopt existing formerly 

EPA-approved, site-specific nutrient standards that have millions 

of dollars of science behind them, adopt that in the rule. They did 

not do that. They chose not to. 

Mr. ROSS. Why is that? Do you have any idea? 

Mr. STEINBRECHER. I would only be speculating on it, Mr. Ross. 

Mr. ROSS. Would it be your opinion also that of the estimated 

amount of $750 per household may be a correct or accurate amount 

that may be borne by each household for the implementation? 

Mr. STEINBRECHER. It is absolutely the proper order of magnitude. If you said—and it’s an order of magnitude estimate. If you 

said to me, well, maybe it’s $400. I would say that’s right. Maybe 

it’s $1,000. But it’s not $10 or $20 or $50. No, it’s hundreds of dollars per year per resident if your utility is affected by this rule. 

Mr. ROSS. Mr. Richardson, would you agree? 

Mr. RICHARDSON. Yes, I would. And as a matter of fact, in our 

case, we are—currently, our customers are paying about $32 a 

month. We would project to strictly comply with the numeric nutrient criteria, it would increase that to about $55 a month, a $22 per 

month increase. 

We need to point out about 23 percent of our county is below the 

poverty level. We’re always very, very concerned about any rate increases. Rate increases to meet standards that don’t improve the 

environment are particularly troublesome to us. 

Mr. ROSS. Thank you. 

Ms. Levy, any comment? I worked with your agency back when 

I was in the legislature, served part of the Tampa Bay area. I remember going through the reverse osmosis project that they had 

there with Tampa Bay water. Rather exciting, but fortunately, everything worked out for the best. 

Any cost estimates that you think compliance might have in your 

constituency? 

Ms. HAMMER LEVY. Well, I think one of the problems that I saw 

with EPA’s analysis is that they only looked at those waters that 

would be newly impaired under this rule. OK? So they assumed 

that those waters that the State had already deemed impaired 

would not need additional reductions, and that’s a leap. That is— 

that was not validated. 

So that could account for millions of dollars in load reductions 

that were not considered in EPA’s evaluation. 

Mr. BARTON. Could you allow Mr. Guest to answer the question 

to Mr. Steinbrecher about why they didn’t put the specific standard 

in—— 

Mr. ROSS. Yes, please, Mr. Guest, you may answer. 

Mr. GUEST. Yes. I would. I’m delighted that you asked me that 

question because it’s a great question. 

I have gone to the utility people more than once and said let us 

get together and go to DEP and EPA just to get a rule change so 

that you can’t possibly imagine a lawsuit anymore. So we’ll just put 

162 

it right down in black and white that there will be no reverse osmosis anytime, anywhere, ever, period. 

I want those folks to join us and get that in writing in a rule, 

and I can’t get ‘‘yes’’ out of them. Now let’s try it here. Can I get 

‘‘yes’’ today? 

Mr. STEINBRECHER. I would like that in the rule. 

[Laughter.] 

Mr. ROSS. But Mr. Guest, let me make sure I understand. In 

your opening testimony, you talked about the DEP’s numeric nutrient quality criteria standards, and you were OK with those? 

Mr. GUEST. Yes. 

Mr. ROSS. In fact, like you said, that they were pretty much the 

same as EPA’s, but for biological verification, I think some of the 

TMDLs that were taken into consideration. But they were pretty 

much identical? 

Mr. GUEST. More or less. 

Mr. ROSS. And today, they would have been implemented, but for 

one thing—a lawsuit that was filed by you? 

Mr. GUEST. Nope, that’s not right. They weren’t implemented because of a lawsuit that was going to be filed by them. That’s why 

the DEP didn’t adopt it. 

Mr. ROSS. It was going to be—— 

Mr. GUEST. They were issuing lawsuits going right down their 

throat with every lawyer in Tallahassee, ripping them to shreds. 

And that’s what they—— 

Mr. ROSS. But they didn’t file a lawsuit, did they? 

Mr. GUEST. They didn’t file it because they didn’t get a chance 

to because DEP saw that wave attacking them, and they threw 

that hot potato to DEP. And those same lawyers that were going 

to shred those good guys at DEP are now on EPA. And I see 25 

of them at a time. If you want to slow down litigation—— 

Mr. ROSS. But you would have been OK with the Florida’s—— 

Mr. GUEST [continuing]. That’s the where—that’s where to do it. 

Mr. ROSS. You would have been OK with Florida’s NNC standards? 

Mr. GUEST. They are the same as EPA’s. Absolutely. 

Mr. ROSS. Exactly. I see my time is up. 

Mr. BARTON. Let him answer. What he just said, that it was the 

threat of your lawsuit that caused the Florida EPA—the Florida 

Department of Environmental Protection to back away. Do you 

agree with that? 

Mr. STEINBRECHER. These are matters of fact. In January of 

2009, then-EPA Administrator Grumbles made a need determination to settle a lawsuit. That’s what started all this. It’s not based 

on science. 

Mr. BARTON. So his group’s lawsuit? 

Mr. STEINBRECHER. Correct. To settle his group’s lawsuit. That 

is a matter of fact. 

We do need the right standards, and we agree on that. Well, I 

don’t know if we agree on that part. We need the right standards. 

Mr. BARTON. You all agree you need a standard. 

Mr. STEINBRECHER. We are not—the utilities are not opposed to 

standards. We want the right standards, not litigious. 

Mr. STEARNS. All right. The gentleman’s time is expired. 

163 

I think we will go a second round here. So—— 

[Disruption in room.] 

[Laughter.] 

Mr. STEARNS. Mr. Barton, you participated so well, I hope you 

will make it quick here. 

Mr. BARTON. You all don’t have lunch in Florida? 

Ms. BROWN. No, no lunch. 

[Laughter.] 

Mr. STEARNS. We are going to go through here. Ms. Levy, Mr. 

Ross asked you a question where you talked about the diverse ecosystem in Pinellas County. The criteria that was used by EPA to 

show a cause-and-effect relationship between the pollutant and biological response, you gave one example. Do you have any more examples that you can think of here? 

Ms. HAMMER LEVY. I can go back to the example, actually, the 

one that you used, the Cross Bayou system. 

Mr. STEARNS. OK. 

Ms. HAMMER LEVY. Where the State’s—the Florida Fish and 

Wildlife Conservation Commission’s Florida Wildlife Research Institute down in St. Petersburg has ranked the oyster bed system 

at the south end there as nearly pristine, but the water quality 

does not meet—— 

Mr. STEARNS. EPA standards? 

Ms. HAMMER LEVY [continuing]. EPA’s stream criteria. 

Mr. STEARNS. Right. 

Ms. HAMMER LEVY. Now if we look ahead to the draft rules that 

DEP are working on right now, they would allow for the inclusion 

of such biological criteria, which could affect a determination 

whether it be impaired or not. So if the nutrient levels were a little 

higher, but the biology was healthy, then it would not be deemed 

impaired. 

And so, that’s something that I think everyone needs to understand and start to be involved in, in reviewing the rule that DEP 

is working on right now. Because they are starting to allow for 

those types of considerations that would affect how this rule is implemented at the State level. 

Mr. STEARNS. Mr. Steinbrecher, you have mentioned four things 

that you would like done, and you said adopt rules that are more 

appropriate. You said something about the flow of water put in 

abeyance, specify the time set, and then talked about more science. 

Do you want to just reiterate those? Because I think those are 

four of a breakthrough, which at least your side would think would 

solve this problem, going to Ms. Brown indicated how do we solve 

this problem? And Mr. Guest is saying he is trying to solve the 

problem, too. 

Mr. STEINBRECHER. Thank you, Chairman Stearns. 

I would say, I guess, three things. Take the time to get the right 

standards. If we’re going to have numeric standards to augment 

what the State’s narrative program already does, let’s take the 

time and get it right. 

One of those things is adopt existing TMDLs that are EPA-approved TMDLs. They’ve already vetted many water bodies. The 

three Ms. Keyes Fleming mentioned at the beginning—the St. 

Johns, the Caloosahatchee, and the St. Lucie—have existing EPAVerDate Aug 31 2005 09:25 Jul 16, 2013 Jkt 037690 PO 00000 Frm 00167 Fmt 6633 Sfmt 6633 F:\112-08~1\112-81~1 WAYNE
164 

approved nutrient standards. They should adopt those rather than 

have this generalized rule supersede them. 

So that’s a simple thing that could be done quickly and commit 

to continuing to work on the flowing waters portion of the rule. 

That is the portion that most parties agree they have not been able 

to bring cause-and-effect science to at all. So those standards are 

particularly arbitrary. 

Could I follow up with something for Mr. Barton? 

Mr. STEARNS. Sure. Sure. 

Mr. STEINBRECHER. He asked a minute ago, and I wish I had 

read, I have a law memorandum going back to 2009, and this is 

from an EPA administrator. And it makes much clearer my answer 

to your question is the administrator writing, when they are contemplating settling this lawsuit, they say in the beginning of the 

memo, ‘‘We are being sued.’’ 

Then they go on and say, and this is the quote, ‘‘EPA does not 

agree with the plaintiffs’ allegation that we made a Clean Water 

Act determination in our 1998 strategy that numeric nutrient criteria are necessary for Florida to meet the requirements of the’’ 

Clean Water Act. 

Boom. To me, this is the smoking gun memo. They go on and say 

there is—— 

Mr. STEARNS. Mr. Steinbrecher, can you provide that for the 

record? 

Mr. STEINBRECHER. I will. 

Mr. STEARNS. Yes. By unanimous consent. 

[The information follows:] 

165 


81389.103

.s~~\~f.O S,. ... /~&' 

ft' A" UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

~ ~ ~ WASHINGTON, D.C 20460 

'\~i ((''"'''''-t{~~t.c. 

DEC 2 2 

MEMORANDUM 

OFFICE Of 

ACNlMsmAfiON 

AND RESOURCES 

MANAGEMENT 

SUBJECT: One-time De!~gali()n of Authority tor the Purpose of Determining 

Pursuant to Section 303(c){4)(B) of the Clean Water A.ct Whether 

the State of Florida Needs l'\ew or fttvised Water Quality Standards 

for Nutrients ..' - " 

" . / "'.;./v~ FROM: Luis A. Luna. __ vvY>cf 

Assistant Administrator / 

TO: Stephen L Johnson 

Administrator 

The purpose of thiS memonmdum is to request a one-time Ddegation of Authorit), to the 

Assistant Administrator tor lh~ Oflicc of Water to determine pursuan! to Section J03(e)( 4 J(B) of 

the Clean Wah:r Act (CWA) whether the State of Florida needs new or revised water quality 

standards for nutrients. This authont) may not he redclcgated. 

BACKGROUND 

On July 17. Z008. plaintitlS Florida Wildlife F~deration. 1m:. and other environmental 

groups filed a lawsuit alleging that EPA failed to perform a nondiscf<!lionary duty to promptl} 

propose numeric nutrient criteria ftJr Florida. Florida Wiltlli/I! Fl!denllitlll. ('{ <II t'. EPA. 1\;0. 

4:08cvOO324 (N.D. Fla.) The plaintitTs alleg.: that EPA made a CWA section 303(<.:)(4)( Ii) 

determination in 19<)8 that numt'ric criteria for nitrogen and phosphorus "·ere necessary in 

Florida in order to IJlC'ct tilt' r.:quirem<:nts of the CWi\. Th<: plaintiffs maintain that EPA made 

this detennination in its 1'198 "?\.ationul Strategy for the Ot:\dopm<.:nt of Regional Nutrient 

Criteria." Th<:'plaimitls allege that this determination triggered EPA's nondiscretillllary duty to 

promptly propose federal criteria tilr Florida. lkcause Florida has not adopt<:d numeric nutrient 

criteria. the plaintiff; s~ck a declaration t'rom tile l'lHlrt that FPA has failed to p<:rt(lrm it, 

interMt Address (URt! • htlpJlwww.epap 

Racy~ • Pnot9d'M1h VP.gftlab.a 0tI Basad Inks Of'! 100""- POstconsutnel, Process Ch!OI1N' Froe F\a(.-yOed Paper 

Exhibit 3 
166 


81389.104

.) 

nondiscretionary duty under Section 303(c)(4) to promptly propose numeri~ nutrient standards 

for Florida, and they ask the court to require EPA to take this action. 

EPA does not agree with the plaintiffs' allegation that we made a CWA determination 

in our 1998 Strategy that numeric nutrient criteria are necessary for Florida to meet the 

requirements of the CW A. There is. however, some risk that the court could agree with the 

plaintiffs that the 1998 Strategy constitutes a CW A determination that nutrient criteria are 

necessary in Florida. Such a ruling could spur similar litigation in other states. Presently, 49 

states have one or more 303(d) listings for waters impaired by nutrients. 

The litigants have highlighted that water quality in Florida is declining. due to nutrient 

pollution and that numeric nutrient criteria are needed to address the environmental degradation. 

In response to this lawsuit. we believe that we !hould collect and analyze nutrients-related 

information pertaining to Florida and decide whether to make a Section 303(c)(4)(B) 

determination that revised nutrient standards are necessary for the State of Florida to meet the 

requirements of the CW A. Making such a determination could give EPA a basis to propose a 

settlement to the plaintiffs or to request that the court dismiss the case. While miling a 

determination may not resolve the litigation, we believe it is an option we shQuld seriously 

consider and therefore are reque~'ting delegation of authorilY. A CW A Section 303(e)(4)(B) 

determination can only be made by the Administrator or the Administrator's duly authorized 

delegate. 

REVIEW AN!) ANAL YSl$ 

The Office of Human Resources determined that the proposed Delegation is a one-time 

Temporary Delegation, and thus is not subject to an Agency-wide review via the Directives 

Clearance process, Per OHR Directive rules, proposed Temporary Delegations of Authority do 

not require Agency-wide review since these delegations are in effect for limited duration ranging 

from one day not to exceed one year, and do not automatically renew without being submitted 

for a new approval. The Office of General Counsel concurs with this request. and this authority 

may not be redelegated. 

RECOMMENDATION 

end that the Administrator delegate the authority to the Assistant 

fice ate 0 mea CWA Section 303(c)(4)(B) determination. 

Approved:b""-_-<--I-_..,-·.,.-::..--jL. 

Date: DEC 2 ~ :. ------_. __ ._-----

Attachment 
167 


81389.105

MEMORANDUM 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C 20460 

OE~ 

THE AOMINISTRATOR 

St;BJECT: One-time Delegation of Authority for the Purpose of DctenniOing Pursuant to 

Section 303(c)(4 )(B) of the Clean Water Act Whether the State of Florida Needs 

New or Revised Nutrient Standards 

TO: Benjamin H. Grumbles 

Assistant Administrator. omc<~ of Water 

1 hereby delegate to the Assisl;lnt AdmInistrator for the Office of Water the authority to 

dctenl1lne, pursuant to SectIon 303(c)(4)(B) orthe Clean Water Act. whether the State of Florida 

needs new or revised water quality standards lor Ilutrients. 

This delegation is limited to the purposes stated ano\'e and may be exercised only within 

the limitations of the Clean Water Act This authority may not be fe-delegated. 

!ntt.:.f'ldt AddHHi" \l!hll. Iltll.t >'www B~X~ go', 

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168 

Mr. STEINBRECHER. ‘‘There is, however, some risk that the court 

could agree with the plaintiffs that the 1998 strategy constitutes a 

[Clean Water Act] determination that nutrient criteria are necessary in Florida. Such a ruling could spur similar litigation in 

other States.’’ 

And then they go on to discuss why don’t we just settle this. A 

colloquialism some have used would be ‘‘Throw Florida under the 

bus. That will settle the issue so we can do other things elsewhere.’’ 

VOICE. Sounds good to me. 

[Laughter.] 

Mr. STEARNS. Mr. Dever and Mr. St. John, you have heard Mr. 

Steinbrecher this morning propose what he is saying would be a solution to this problem. Do you have any suggestions or anything 

else that you might suggest that—he outlined three or four things 

that he felt should be done. Do you want to add to that? 

Mr. DEVER. No, sir. Just a balance, just a good balance. 

Mr. STEARNS. OK. 

Mr. DEVER. I’m sure he is—I’m sitting between some intelligent 

folks here. Again, just a good balance. This thing is not balanced. 

Mr. STEARNS. Mr. St. John? 

Mr. ST. JOHN. I don’t like the word ‘‘balance.’’ But I think there 

is a lot of common ground that from where the both sides seem to 

be. 

One thing that I would point out, Mr. Barton, you mentioned 

food. I think in our society there is a complete disconnect between 

water and food. Here we are talking about recreation. We are talking about people swimming. We are doing all this. 

I’ll tell you what. Everything you eat has water in it. If it doesn’t, 

it did, and there is a complete disconnect in Washington. And these 

scientific parts and research, they are disconnecting water and 

food, and just think about—— 

Mr. BARTON. Well, my stomach is not getting any food because 

of this hearing so I am just—— 

[Laughter.] 

Mr. ST. JOHN. When you mentioned food, that rang the bell 

about water and food. 

Mr. STEARNS. All right. I will keep under my time. My time is 

expired. 

Ms. Brown, you are recognized for 5 minutes. You are up. 

Ms. BROWN. Yes, let me be quick. Mr. Richardson, Mr. Stearns 

and I both represent Alachua County, and they are the most environmental conscious areas, period, and you know it and I know it. 

So the point of the matter is we need to make sure, as we move 

forward, that we take that into consideration because the council 

or the city commission, they are going to be harder than probably 

any other area that we represent. 

So, I mean, you know that as you come and talk with us about 

what we can do as we move forward. I would like to know your recommendations, and I would like all of the recommendations in 

writing as to what we could do. I personally would like to know 

those recommendations. 

Mr. Guest, we have seen that we have found some areas that we 

could agree on. I would like that—you talked about the utilities. I 

169 

met with all of them, well, a lot of them all over Florida, as to what 

we could do. 

But keeping in mind facts are facts, the committee punted. The 

committee could not pass the recommendation so they kicked it. 

And that is when the court came about. I would like to know and 

basically what I am hearing is the State is stronger than the EPA. 

Now are there vows, a way that we could deal with the State? 

Because if I am hearing what the EPA administrator said to us 

earlier—and I am not an attorney, and I am not a scientist. But 

I was a counselor in my previous life. What I would like to know 

what it is that we could do? 

I think the EPA said if the State came up with the rules and regulations, then they would back out. But we need to make sure that 

the State have this vow that we are talking about also. Because in 

certain areas, maybe they want to be stronger in Alachua County, 

but you may need special provisions. We all understand food and 

water, but also the fertilizer, and I mentioned what happened with 

the Everglades. 

So there are certain areas like the Tampa Bay area that is a 

major problem because of some of the phosphate and other stuff 

that we do in that area. So the question is how do we come up with 

the solution that we can all agree on and move forward and make 

those recommendations to EPA and the State of Florida? 

We have a problem. The State of Florida is not in the room. So 

we don’t know where they are. We don’t know what they are negotiating. So, with that, any response from Mr. Guest, since you are 

outnumbered, and anybody else? 

Mr. GUEST. Well, yes, absolutely. I think that—— 

Mr. STEARNS. Can you put the mic closer to you? That would be 

helpful. 

Mr. GUEST. Yes, I think there is three or four really big, important things that we could do. One is, as I said, let’s get the parties 

together. 

Ms. BROWN. I agree with that. 

Mr. GUEST. Let’s get it in black and white that we are not using 

reverse osmosis. Let’s get it in the rule in whatever form we need 

to do to satisfy those folks. Let’s just do that. 

And I urge you folks to try to get them to get that on the table 

and write it down so that this doesn’t come up again. That is where 

the $700 a month comes from, and that goes away when you fix 

that problem. 

Two is, I think, that a point is well, well taken. A huge amount 

of work has been done already. There are about 250 TMDLs for nutrients around the State, and all but a handful of those are really 

good science. And we need to just get those done and move past 

that quickly and easily. 

There is a handful of those that are not faithful to science and 

need to get fixed. Let’s just get it down to those and not worry 

about the rest. 

And the big thing that I would like you all to consider is that 

agriculture really just isn’t regulated, other than the CAFOs, the 

factory farms. And it’s a problem. They’re a major source of this. 

So I would like you all to try to think of something creative, work 

with the agricultural industry, work with the States, work with the 

170 

people that live on rivers, work with the health people, and come 

up with some practical way to get agriculture into the Clean Water 

Act. That’s really what we need. 

Ms. BROWN. No, I want a response from others. Yes, Mr. Richardson, I pointed him out. I know you might want to say something. 

Mr. RICHARDSON. Absolutely agree that Alachua County is environmentally very conservative. We worked through the TMDL 

process, total maximum daily load, involved stakeholders. We had 

wide involvement, and this project that we are trying to construct 

is widely supported by the community. 

So a key to solving this is recognizing the TMDLs that have been 

appropriately established. And I’ve heard that theme many times 

on this panel. It’s fair to say that we originally requested that of 

EPA during the rulemaking. 

So while I’m extremely optimistic and hopeful that they would be 

recognized, we’ve made that comment before, and they have not 

been recognized. 

Ms. BROWN. Mr. Richardson, where is the State of Florida on this 

issue? 

Mr. RICHARDSON. The State of Florida, their original regulation 

did recognize TMDLs. 

Ms. BROWN. OK. So what we are seeing is maybe this is an area 

that we could work to get this particular issue addressed? 

Mr. RICHARDSON. I think recognizing the TMDLs and TMDL 

process would be very helpful to where we are right now. As I indicated, however, GRU and many other agencies have already made 

that request of DEP—I’m sorry, EPA during the rulemaking, and 

they were not adopted. 

Ms. BROWN. OK. But what I am also saying is what is the State 

of Florida saying? Have you talked with them? You see, they are 

the ones to implement it. And as what was told to us this morning, 

and we all heard it, that if the State comes up with their own adoption, then the EPA won’t take over. 

Mr. RICHARDSON. Well, it is my understanding that the original 

DEP rule did acknowledge the TMDL process and recognize 

TMDLs. 

Ms. BROWN. Do you have that in writing? 

Mr. RICHARDSON. I don’t have it in writing. I do not have it in 

writing. 

Ms. BROWN. We are dealing with people that you have got to 

have it in writing and approved by the courts and reviewed by the 

attorneys, and then the judges and everything else. 

Ms. HAMMER LEVY. There was a discussion about adopting existing TMDLs as SSACs. But there were some, including Pinellas 

County, that were concerned because we actually have well over a 

dozen TMDLs in abeyance because we are very concerned about 

the science that was used to adopt them. 

But if a process could be used where, as Mr. Guest said, we have 

stakeholder buy-in to move forward with those TMDLs that have 

been scientifically vetted and are accepted by the community, the 

Tampa Bay TMDL is one of those, the 1998 EPA-promulgated 

TMDL is one of those that we have moved forward as a community 

to adopt and to implement. 

171 

Ms. BROWN. Thank you. 

Thank you, Mr. Chairman. 

Mr. STEARNS. Mr. Barton is recognized for 5 minutes. 

Mr. BARTON. I don’t think I will take 5 minutes, Mr. Chairman. 

I do want to compliment you on holding this hearing. It is obviously of great importance to not only Florida, but to the country. 

Unless all these folks in the audience are paid staffers of the congressmen and women up here, they are very interested in it, and 

they are voluntarily here. Unlike myself who can’t leave until the 

hearing is over because your staffer is taking me back. 

Mr. STEARNS. I have got you captured here. 

Mr. BARTON. Which means you are going to get to buy me lunch, 

Mr. Chairman. 

Mr. STEARNS. I have got to buy you lunch. 

Mr. BARTON. Yes, and it is not going to be at McDonald’s. 

Mr. STEARNS. Right here on the campus. 

Mr. BARTON. All right. But I am not an expert on this, but just 

listening, it appears to me that, one, and I was being facetious 

about throwing Florida under the bus. We don’t want any State 

thrown under any bus. 

We have an issue where these nutrients and phosphorus, the primary emitters or generators apparently are the utilities, agriculture, and municipalities. And the State of Florida has over time 

developed site-specific, but non-numeric criteria for addressing the 

problem. And the environmental groups feel like the timing has not 

been as quick as it should be, and perhaps the standards are not 

as tight as they should be. 

And so, they have brought this lawsuit, and it has national consequences because apparently Florida is a prototype or a leading 

indicator for the rest of the country. So we are where we are. But 

this proposed numeric standard that the Federal EPA has put out 

has got huge economic consequences, and I don’t think that is 

being made up. 

I don’t think you could have this many groups saying what they 

are saying unless they believe that there are real world consequences. But the regional administrator who was here and the 

groups, the stakeholders, that have testified appear to believe that 

there still can be, if I understand Mr. Guest, who represents most 

of the plaintiffs, an agreement, and I think that is a good thing. 

So what we need to do is continue your oversight. Bringing the 

publicity and transparency of the oversight role puts if not pressure, it puts the spotlight on both the Federal, State, and stakeholders, and that is a good thing. 

So this has been a worthwhile field hearing, and it has kept me 

out of the heat of Epcot Center for about 6 hours. So that is a good 

thing on my part. 

[Laughter.] 

Mr. BARTON. It just means when I get back, I will have to buy 

my son some great trinket. For those of you that don’t know my 

son, he is 5 years old. He will 6 in September. He comes to Washington a couple of times a year. 

He loves going to the floor of the House. He loves going to the 

receptions, but he hates going to the committee because he says it 

172 

is boring. And I will say had he come to this hearing, he would 

have said it is not boring because it has been informative. 

So I am going to yield back, and thank you again. And I want 

to compliment the non-committee congressmen and women that are 

here. They don’t have to be here. And to have Congresswoman 

Brown here and both Congressman Bilirakis and Congressman 

Ross shows how serious they take the issue, too, that they will 

spend their time at a hearing that they don’t have to come to. 

And all three would be good committee members. So if you and 

I don’t do a good job, we are probably going to get booted, and they 

are going to be put on in the next Congress. 

But thank you for holding the hearing, Mr. Chairman. 

Mr. STEARNS. All right. Thank you for your participation. 

Mr. Bilirakis, for 5 minutes. 

Mr. BILIRAKIS. Thank you. Thank you, Mr. Chairman. 

Briefly, I want to thank you for inviting us and allowing us to 

sit on the committee. I really appreciate it very much. This is a 

very important issue to us, obviously, our constituents and the 

stakeholders, and I think we have accomplished a heck of a lot 

today. It has been very productive. 

So I really appreciate you holding this hearing, and I would like 

to sit on other hearings in Washington, D.C., with regard to Energy 

and Commerce, but particularly on this issue. So maybe we can address that a little later. 

But this is very—the unintended consequences could be drastic 

for our constituents, and we have to stay on this issue. So thanks 

for inviting me here today. 

I want to thank all who testified as well, and it was very productive. Appreciate it very much, and I yield back. 

Mr. STEARNS. Thank the gentleman. 

Mr. Ross is recognized for 5 minutes. 

Mr. ROSS. Thank you. 

And in light of everyone in this room, including my colleague Mr. 

Barton’s nutritional content criteria, I will be brief. 

One of the things that you spoke of, Mr. Steinbrecher, that I 

have to address and it has to do with we take our water as we find 

it in the State of Florida. And we are very much interconnected 

with Alabama and Georgia when it comes to our waterways. And 

yet we can’t control what they send downstream, and we are responsible for that. Would you agree? 

Mr. STEINBRECHER. Many of our utility members that are in 

those regions where waters are flowing from those States believe 

that, yes, that the rule would have to back up into those States as 

well and that somehow we would also, at the same time, be responsible for cleaning the waters in Florida that flow from those States. 

Mr. ROSS. Correct. Because as you talked about, one of the hardest things to identify is the flow criteria. And if all of a sudden, we 

have to look at the source of the flow and the source of the flow 

is somewhere in Tennessee for the Chattahoochee River or wherever, we are responsible for that as a State, and that is an illogical 

application of this NNC, is it not? 

Mr. STEINBRECHER. It is an actual legal end result of this rule, 

that entities in Florida will be held responsible for waters flowing 

into the State. 

173 

Mr. ROSS. And Mr. Dever, as a man who represents businesses 

and trades, would it not be then an unfair competitive advantage 

for those in the northern States, which are still southern, of course, 

but such as Alabama and Georgia, to consider relocating there instead of Florida because of such a water criteria? 

Mr. DEVER. Absolutely. The cost, that’s a major issue. Job creation, all of that is tied to it. There is a lot of unknowns in this. 

That’s got our interest up. 

Fixed-income folks, you know, this cost, these numbers that 

we’re tossing around here today, it’s going to land somewhere. A 

lot of those folks can’t afford that, and that’s what’s resonating 

through our halls. 

Mr. ROSS. And finally, Mr. Guest, as I understand it, your main 

objection to the rule is the SSAC, the proposed rule? 

Mr. GUEST. Well, no. The issue is a very narrow one, which is 

having certain regions—let me clarify—— 

Mr. STEARNS. Let me just put the mic up to you so we can get 

you recorded. 

Mr. GUEST. Sorry. I apologize. No, it was the region wide. It was 

like a quarter of the State becomes one SSAC. We are fully endorsing the SSAC process. 

Let me, if I may, just—— 

Mr. ROSS. It is a regional SSAC is what you are saying, not site 

specific. 

Mr. GUEST. Yes, exactly. That’s the issue. 

Mr. ROSS. That is what you are objecting to? 

Mr. GUEST. Exactly. 

Mr. ROSS. And so, as long as that stays in the rule, you will continue to object? 

Mr. GUEST. As long as, yes, regional SSACs only. But let me, if 

I may answer a legal question—— 

Mr. ROSS. Yes, sir. 

Mr. GUEST [continuing]. Because I think I can help you out. As 

far as the streams, the rivers that come from Alabama and Georgia, the Clean Water Act does allow the Governor of Florida to 

make the point sources subject to clean water permitting in those 

upstream States to comply with Florida standards. So they are not 

responsible. 

Mr. ROSS. But they have enforcement powers to do so? 

Mr. GUEST. Yes. Yes, yes. You go to Federal court. The statute 

says that, Section 42. The other piece of it is that there are a few. 

There are a handful of those. And that’s something you might want 

to look at, for the Governor to look at. 

The other piece is that most of that, most of the damaging pollution is actually coming from agriculture upstream, and that’s not 

regulated by the Clean Water Act. And that’s a reason for you to 

think about how you can bring agriculture into the act and make 

them a full participant. 

Mr. ROSS. Thank you. 

Mr. Chairman, I thank you for the opportunity and thank you for 

holding the hearing. I yield back. 

Mr. STEARNS. Mr. Ross, thank you very much for being here. 

And I would like to thank all of the witnesses for participating 

in our hearing today, and I remind Members that they have 10 

174 

business days to submit questions for the record, and I ask the witnesses to all agree to respond promptly if any of the Members have 

further questions. 

Mr. STEARNS. And I ask unanimous consent that the contents of 

the document binder that we have provided here be introduced into 

the record and to authorize staff to make any appropriate 

redactions. 

Without objection, so ordered. The document binder will be entered into the record with any redactions that staff determines are 

appropriate. 

[The information appears at the conclusion of the hearing.] 

Mr. STEARNS. And with that, the Oversight Subcommittee is adjourned. 

[Whereupon, at 1:15 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

175 


81389.106

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

MAR 1 6 2011 OFFICE OF 

WATER 

MEMORANDUM 

SUBJECT: Working in Partnership with States to Address Phosphorus and Nitrogen 

Pollution through Use of a Framework for State Nutrient Reductions 

Nancy 

Acting 

K. 

Assistant 

Stoner 

Administrator ~ 1/ <-.. (' "6 ~ ~ 

Regional Administrators, Regions 1-10 

FROM: 

TO: 

This memorandum reaffirms EPA's commitment to partnering with states and 

collaborating with stakeholders to make greater progress in accelerating the reduction of nitrogen 

and phosphorus loadings to our nation's waters. The memorandum synthesizes key principles 

that are guiding and that have guided Agency technical assistance and collaboration with states 

and urges the Regions to place new emphasis on working with states to achieve near-term 

reductions in nutrient loadings. 

Over the last 50 years, as you know, the amount of nitrogen and phosphorus pollution 

entering our waters has escalated dramatically. The degradation of drinking and environmental 

water quality associated with excess levels of nitrogen and phosphorus in our nation's water has 

been studied and documented extensively, including in a recent joint report by a Task Group of 

senior state and EPA water quality and drinking water officials and managers.! As the Task 

Group report outlines, with U.S. population growth, nitrogen and phosphorus pollution from 

urban stormwater runoff, municipal wastewater discharges, air deposition, and agricultural 

livestock activities and row crop runoff is expected to grow as well. Nitrogen and phosphorus 

pollution has the potential to become one of the costliest and the most challenging environmental 

problems we face. A few examples of this trend include the following: 

I) 50 percent of U.S. streams have medium to high levels of nitrogen and phosphorus. 

2) 78 percent of assessed coastal waters exhibit eutrophication. 

3) Nitrate drinking water violations have doubled in eight years. 

J An Urgent Call to Action: Report of the State-EPA Nutrients Innovations Task Group, August 2009. 

Internet Address (uhL) • httpJ/www.epa.gov 

Recycled/Recyclable _ Printed with Vegetable 011 Based Inks on 100% Postconsumer, Process ChlOrine Free Recycled Paper 
176 


81389.107

4) A 20 I 0 USGS report on nutrients in ground and surface water reported that nitrates 

exceeded background concentrations in 64% of shallow monitoring wells in agriculture 

and urban areas, and exceeded EPA's Maximum Contaminant Levels for nitrates in 7% or 

2,388 of sampled domestic wells.2 

5) Algal blooms are steadily on the rise; related toxins have potentially serious health and 

ecological effects. 

States, EPA and stakeholders, working in partnership, must make greater progress in 

accelerating the reduction of nitrogen and phosphorus loadings to our nation's waters. While 

EPA has a number of regulatory tools at its disposal, our resources can best be employed by 

catalyzing and supporting action by states that want to protect their waters from nitrogen and 

phosphorus pollution. Where states are willing to step forward, we can most effectively 

encourage progress through on-the-ground technical assistance and dialogue with state officials 

and stakeholders, coupled with cooperative efforts with agencies like USDA with expertise and 

financial resources to spur improvement in best practices by agriculture and other important 

sectors. 

States need room to innovate and respond to local water quality needs, so a one-size-fitsall solution to nitrogen and phosphorus pollution is neither desirable nor necessary. Nonetheless, 

our prior work with states points toward a framework of key elements that state programs should 

incorporate to maximize progress. Thus, the Office of Water is providing the attached 

"Recommended Elements of a State Nutrients Framework" as a tool to guide ongoing 

collaboration between EPA Regions and states in their joint effort to make progress on reducing 

nitrogen and phosphorus pollution. I am asking that each Region use this framework as the 

basis for discussions with interested and willing states. The goal of these discussions should be 

to tailor the framework to particular state circumstances, taking into account existing tools and 

innovative approaches, available resources, and the need to engage all sectors and parties in 

order to achieve effective and sustained progress. 

While the Framework recognizes the need to provide flexibility in key areas, EPA 

believes that certain minimum building blocks are necessary for effective programs to manage 

nitrogen and phosphorus pollution. Of most importance is prioritizing watersheds on a state-wide 

basis, setting load-reduction goals for these watersheds based on available water quality 

information, and then reducing loadings through a combination of strengthened permits for 

point-sources and reduction measures for nonpoint sources and other point sources of stormwater 

not designated for regulation. Our experience in almost 40 years of Clean Water Act 

implementation demonstrates that motivated states, using tools available under federal and state 

law and relying on good science and local expertise, can mobilize local governments and 

stakeholders to achieve significant results. 

It has long been EPA's position that numeric nutrient criteria targeted at different 

categories of water bodies and informed by scientific understanding of the relationship between 

nutrient loadings and water quality impairment are ultimately necessary for effective state 

2 Nutrients in the Nation's Streams and Groundwater: National Findings and Implications, US Geological Survey, 

2010. 

2 
177 


81389.108

programs. Our support for numeric standards has been expressed on several occasions, including 

a June 1998 National Strategy for Development of Regional Nutrient Criteria, a November 2001 

national action plan for the development and establishment of numeric nutrient criteria, and a 

May 2007 memo from the Assistant Administrator for Water calling for accelerated progress 

towards the development of numeric nutrient water quality standards. As explained in that 

memo, numeric standards will facilitate more effective program implementation and are more 

efficient than site-specific application of narrative water quality standards. We believe that a 

substantial body of scientific data, augmented by state-specific water quality information, can be 

brought to bear to develop such criteria in a technically sound and cost-effective manner. 

EPA's focus for nonpoint runoff of nitrogen and phosphorus pollution is on promoting 

proven land stewardship practices that improve water quality. EPA recognizes that the best 

approaches will entail States, federal agencies, conservation districts, private landowners and 

other stakeholders working collaboratively to develop watershed-scale plans that target the most 

effective practices to the acres that need it most. In addition, our efforts promote innovative 

approaches to accelerate implementation of agricultural practices, including through targeted 

stewardship incentives, certainty agreements for producers that adopt a suite of practices, and 

nutrient credit trading markets. We encourage federal and state agencies to work with NGOs and 

private sector partners to leverage resources and target those resources where they will yield the 

greatest outcomes. We should actively apply approaches that are succeeding in watersheds 

across the country. 

USDA and State Departments of Agriculture are vital partners in this effort. If we are to 

make real progress, it is imperative that EPA and USDA continue to work together but also 

strengthen and broaden partnerships at both the national and state level. The key elements to 

success in BMP implementation continue to be sound watershed and on-farm conservation 

plarming, sound technical assistance, appropriate and targeted financial assistance and effective 

monitoring. Important opportunities for collaboration include EPA monitoring support for 

USDA's Mississippi River Basin Initiative as well as broader efforts to use EPA section 319 

funds (and other funds, as available) in coordination with USDA programs to engage creatively 

in work with communities and watersheds to achieve improvements in water quality. 

Accordingly the attached framework envisions that as states develop numeric nutrient 

criteria and related schedules, they will also develop watershed scale plans for targeting adoption 

of the most effective agricultural practices and other appropriate loading reduction measures in 

areas where they are most needed. The timetable reflected in a State's criteria development 

schedule can be a flexible one provided the state is making meaningful near-term reductions in 

nutrient loadings to state waters while numeric criteria are being developed. 

The attached framework is offered as a plarming tool, intended to initiate conversation 

with states, tribes, other partners and stakeholders on how best to proceed to achieve near- and 

long-term reductions in nitrogen and phosphorus pollution in our nation's waters. We hope that 

the framework will encourage development and implementation of effective state strategies for 

managing nitrogen and phosphorus pollution. EPA will support states that follow the framework 

but, at the same time, will retain all its authorities under the Clean Water Act. 

3 
178 


81389.109

With your hard work, in partnership with the states, USDA and other partners and 

stakeholders, I am confident we can make meaningful and measurable near-term reductions in 

nitrogen and phosphorus pollution. As part of an ongoing collaborative process, I look forward 

to receiving feedback from each Region, interested states and tribes, and stakeholders. 

Attachment 

Cc: Directors, State Water Programs 

Directors, Great Water Body Programs 

Directors, Authorized Tribal Water Quality Standards Programs 

Interstate Water Pollution Control Administrators 

4 
179 


81389.110

Recommended Elements of a State Framework for Managing Nitrogen and Phosphorus Pollution 

1. Prioritize watersheds on a statewide basis for nitrogen and phosphorus loading reductions 

A. Use best available information to estimate Nitrogen (N) & Phosphorus (P) loadings delivered to 

rivers, streams, lakes, reservoirs, etc. in all major watersheds across the state on a Hydrologic 

Unit Code (HUC) 8 watershed scale or smaller watershed (or a comparable basis.) 

B. Identify major watersheds that individually or collectively account for a substantial portion of 

loads (e.g. 80 percent) delivered from urban and/or agriculture sources to waters in a state or 

directly delivered to multi-jurisdictional waters. 

C. Within each major watershed that has been identified as accounting for the substantial portion of 

the load, identify targeted/priority sub-watersheds on a HUC 12 or similar scale to implement 

targeted N & P load reduction activities. Prioritization of sub-watersheds should reflect an 

evaluation of receiving water problems, public and private drinking water supply impacts, N & P 

loadings, opportunity to address high-risk N & P problems, or other related factors. 

2. Set watershed load reduction goals based upon best available information 

Establish numeric goals for loading reductions for each targeted/priority sub-watershed (HUC 12 or 

similar scale) that will collectively reduce the majority ofN & P loads from the HUC 8 major 

watersheds. Goals should be based upon best available physical, chemical, biological, and 

treatment/control information from local, state, and federal monitoring, guidance, and assistance 

activities including implementation of agriculture conservation practices, source water assessment 

evaluations, watershed planning activities, water quality assessment activities, Total Maximum 

Daily Loads (TMDL) implementation, and National Pollutant Discharge Elimination System 

(NPDES) permitting reviews. 

3. Ensure effectiveness of point source permits in targeted/priority sub-watersheds for: 

A. Municipal and Industrial Wastewater Treatment Facilities that contribute to significant 

measurable N & P loadings; 

B. All Concentrated Animal Feeding Operations (CAFOs) that discharge or propose to discharge; 

and/or 

C. Urban Stormwater sources that discharge into N & P- impaired waters or are otherwise identified 

as a significant source. 

4. Agricultural Areas 

In partnership with Federal and State Agricultural partners, NGOs, private sector partners, 

landowners, and other stakeholders, develop watershed-scale plans that target the most effective 

practices where they are needed most. Look for opportunities to include innovative approaches, 

such as targeted stewardship incentives, certainty agreements, and N & P markets, to accelerate 

adoption of agricultural conservation practices. Also, incorporate lessons learned from other 

successful agricultural initiatives in other parts of the country. 
180 


81389.111

5. Storm water and Septic systems 

Identify how the State will use state, county and local government tools to assure N and P reductions 

from developed communities not covered by the Municipal Separate Storm Sewer Systems (MS4) 

program, including an evaluation of minimum criteria for septic systems, use of low impact 

development! green infrastructure approaches, and/or limits on phosphorus in detergents and lawn 

fertilizers. 

6. Accountability and verification measures 

A. Identify where and how each of the tools identified in sections 3, 4 and 5will be used within 

targeted/priority sub-watersheds to assure reductions will occur. 

S. Verify that load reduction practices are in place. 

C. To assess/demonstrate progress in implementing and maintaining management activities and 

achieving load reductions goals: establish a baseline of existing N & P loads and current Best 

Management Practices (BMP) implementation in each targeted/priority sub-watershed, conduct 

ongoing sampling and analysis to provide regular seasonal measurements ofN & P loads leaving 

the watershed, and provide a description and confirmation of the degree of additional BMP 

implementation and maintenance activities. 

7. Annual public reporting of implementation activities and biannual reporting of load 

reductions and environmental impacts associated with each management activity in targeted 

watersheds 

A. Establish a process to annually report for each targeted/priority sub-watershed: status, 

challenges, and progress toward meeting N & P loading reduction goals, as well as specific 

activities the state has implemented to reduce N & P loads such as: reducing identified practices 

that result in excess N & P runoff and documenting and verifying implementation and 

maintenance of source-specific best management practices. 

B. Share annual report publically on the state's website with request for comments and feedback for 

an adaptive management approach to improve implementation, strengthen collaborative local, 

county, state, and federal partnerships, and identify additional opportunities for accelerating costeffective N & P load reductions. 

8. Develop work plan and schedule for numeric criteria development 

Establish a work plan and phased schedule for N and P criteria development for classes of waters 

(e.g., lakes and reservoirs, or rivers and streams). The work plan and schedule should contain 

interim milestones including but not limited to data collection, data analysis, criteria proposal, and 

criteria adoption consistent with the Clean Water Act. A reasonable timetable would include 

developing numeric N and P criteria for at least one class of waters within the state (e.g., lakes and 

reservoirs, or rivers and streams) within 3-5 years (reflecting water quality and permit review 

cycles), and completion of criteria development in accordance with a robust, state-specific workplan 

and phased schedule. 

2 
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--~~~--- ---.. ~-~ 

April 22, 2011 

Ms, Lisa P. Jackson 

Administrator 

Florida Department of 

Environmental Protection 

Marjory Stoneman Douglas Building 

3900 Commonwealth Boulevard 

Tallahassee, Florida 323993000 

US. Environmental Protection Agency 

1200 Pennsylvania Avenue, Northwest 

Washington, DC 24060 

Dear Ms. Jackson: 

Rick Scott 

Governor 

Jennifer Carroll 

Lt. Governor 

Herschel T. Vinyard J" 

Secretary 

Please find enclosed a Petition from the Florida Department of Environmental 

Protection requesting that the US, Environmental Protection Agency (EPA) withdraw 

its January 2009, determination that numeric nutrient criteria are necessary in Florida, 

It also requests that EPA restore to the state its responsibility for the control of excess 

nutrients, including the pursuit of nutrient crIteria, We are confident that EPA will find 

the information in the petition compelling and grant the petition after review. 

As clearly demonstrated by the petition, the State of Florida, including its citizenry, 

local governments and businesses, is very committed to addressing excess nutrients 

pollution. We look forward to your timely response, 

s;n"'~ . 

1100 T vrny,ro7 V 

Secretary 

c: Gwendolyn Keyes Fleming 

www.dcp.slalc.ll. !IS 
182 


81389.113

UNITED STATES 

ENVIRONMENTAL PROTECTION AGENCY 

In re: Florida Department of Environmental 

Protection's Petition for Withdrawal of EPA's 

303(c)(4)(B) Determination for Florida, 

Repcal of 40 C.F.R. § 131.43, and 

Related Actions. 

PETITION 

The Florida Department of Environmental Protection ("FDEP") hereby petitions the 

United States Environmental Protection Agency ("EPA") to take the following actions; 1) 

withdraw its January 2009, determination that numeric nutrient criteria are necessary in Florida; 

2) initiate repeal of 40 C.F.R. § 131.43; and 3) discontinue proposing or promulgating further 

numeric nutrient eriteria in Florida. 

On March 16,2011, EPA issued a memo to all EPA's Regional Administrators, entitled 

"Working in Partnership with States to Address Phosphorus and },jitrogen Pollution through Use 

of a Framework for State Nutrient Reductions" (the "EPA memo" or "March 16, 2011, memo") 

that details the elements "necessary for effective programs to manage nitrogen and phosphorus 

pollution," which is attached hereto as Attachment 1. The EPA memo provides a useful 

benchmark for evaluating the strength of a State's nutrient reduction program. 

As demonstrated herein, Florida's program is one of the ~1rongest in the country when 

measured against the elements set forth in the EPA memo, or by other objective standards. 

Based on the strength of Florida's nutrient pollution control program, which includes a 

commitment to nutrient standards, FDEP submits EPA should rescind its January 2009, 

determination. This action will reestablish the proper regulatory framework in Florida, whereby 
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States designate the uses of their waters and set criteria that are protective of those uses, and EPA 

should simply review the changes to water quality standards proposed by the States. 33 U.S.C. § 

13 13 (a)(3)(A) and (c)(2)(A); see also Natural Resources Defense Council v. Us. E.P.A., 16 F.3d 

1395,1399 (4th eir. 1993)("While the states and E.P.A. share duties in achieving this goal [of 

protecting water resources], primary responsibility for establishing appropriate water quality 

standards is left to the states. EPA sits in a reviewing capacity of the state-implcmented 

standards, with approval and rejection powers only."). 

FDEP requests that EPA respond to this Petition within 30 days of filing. Failure of EPA 

to timely act can interfere with the Florida's ability to implement the activities described by this 

petition. Additionally, granting this petition will confirm to the States that EPA is committed to 

a reasoned approach to evaluating the success of state programs and will stand behind the EPA 

Memo. 

Background 

According to EPA, Florida has one of the preeminent programs in the nation to address 

excess phosphorus and nitrogen pollution in its waters. "Florida is one of the few states that 

have in place a comprchensive framework of accountability that applies to both point and 

nonpoint sources and provides the enforceable authority to address nutrient reductions in 

impaired waters based upon the establishment of site specific total maximum daily loads." 75 

Fed. Reg. 4174, 4175 (Jan. 26, 2010). As outlined below, in measuring Florida's program 

against the eight elements in the EPA memo, the State of Florida, in partnership with its regional 

water management districts and local govermnents, is a national leader in developing innovative 

and comprehensive tools and programs to detect, assess, prevent andlor remedy nutrient 

problems in the State's waters. 

2 
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81389.115

For instance, Florida has placed substantial emphasis on the monitoring and assessment 

of its waters as a cornerstone of its water quality program, and, as a result of this valuable 

objective, has collected significantly more water quality data than any other State. See EPA's 

January 14,2009, Necessity Determination for Florida, p. 6. Greater than 30% of all water 

quality data in EPA's national water quality database, STORET, comes from Florida.! 

STORET, http://www.epa.gov/storet. Florida has used this extensive data to, among other 

things, accurately and scientifically assess whether individual waterbodies are impaired for 

nutrients; promulgate nutrient restoration goals first through Pollutant Load Reduction Goals 

("PLRGs") and then through Total Maximum Daily Loads ("TMDLs"); .calculate protective 

nutrient water quality-based effluent limits ("WQBELs") for NPDES dischargers; and adopt 

restoration plans setting forth restoration requirements on both point and nonpoint sources on a 

watershed-wide basis (i.e., Basin Management Action Plans ("BMAPs"), Surface Water 

Improvement and Management ("SWIM") plans, and legislatively-mandated plans for targeted 

waters)? 

Overall, Florida's efforts have resulted in significant reductions in ambient phosphorus 

concentrations since the early 1980s despite the explosive growth of Florida's population during 

this same period. 2008 Integrated Water Quality Assessment for Florida: 305(b) Report and 

303(d) List Update, p. 34, available at 

http://www.dep.state.fl.uslwater/docsI2008 Tntegrated Report.pdf. However, Florida continues 

to further refine and enhance its programs and implement specific restoration plans high priority 

! FDEP doesn't substitute quantity of sampling for the quality of those samples. Rather than 

accepting any collected sample, FDEP requires stringent quality assurance for water quality 

samples to be used for regulatory purposes. See Fla. Admin. Code Ch. 62-160. 

2 Florida has also utilized this extensive data in adopting a protective numeric phosphorus 

criterion for the Everglades Protection Area that has been upheld in both state and federal courts. 

See Fla. Admin. Code R. 62-302.540(4)(a). 

3 
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81389.116

watersheds to both protect its many healthy waters from nutrient impainnent and achieve 

nutrient reductions in those that are impaired by nutrients so that water quality improvements are 

fully realized. 

FDEP has also used the vast water quality data, collected at substantial cost to Florida 

taxpayers, to study the subtle relationships between nutrient concentrations and healthy aquatic 

ecosystems with the intention of deriving appropriate numeric nutrient criteria for it.~ waters. As 

part of this process, FDEP has created a number of biological assessment tools, including the 

Stream Condition Index and the Lake Vegetation Index. FDEP has submitted to EPA statewide 

numeric nutrient criteria development plans to document its ongoing efforts, with the last 

deveiopment plan being submitted in March 2009. 

Despite Florida's status as a national leader in nutrient reduction efforts and FDEP's 

great progress on the complex science needed to support defensible numeric nutrient criteria, on 

January 14,2009, EPA, under the previous administration, issued a § 303(c)(4)(B) determination 

that numeric nutrient criteria were necessary in the State of Florida, but in no other State.3 The 

2009 "necessity" determination led to EPA settling a frivolous lawsuit alleging that EPA had 

already made such a necessity determination in its 1998 Clean Water Action Plan. The 

settlement agreement was subsequently memorialized as a Consent Decree in Florida Wildlife 

3 While the necessity determination implies that Florida's situation is unique, excess nutrients are 

a problem in every State. See, e.g., USGS Circular 1350: Nutrients in the Nation's Streams and 

Groundwater, 1992 2004 (20 I 0), available at http://pubs.usgs.gov!circ/1350/pdflcirc1350.pdf. 

EPA has not utilized its 303( c)( 4)(B) authority to promulgate numeric nutrient criteria elsewhere 

and has declined to set numeric nutrient standards in the Mississippi River basin even though 

EPA has been petitioned twice (in 2003 and 2008) to do so. See EPA's Response to Sierra Club 

Petition Regarding Defined Portions of the Mississippi and Missouri Rivers, available at 

http://water.epa.gov/scitech/swguidance/standards/SierraClub.cfm; and Petition to Establish 

Numeric Nutrient Standards for the Mississippi River, available at 

http://www.cleanwatemetwork.org!resources!petition-estabIish-numeric-standards-3nd-tmdlsnitrogen-and-phosphorous. 

4 
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81389.117

Federation v. Jackson, Case No. 08-00324, Consent Decree, DE 153 (N.D. Fla. December 30, 

2009), and is currently on appeal.FDEP was not a party to that litigation and did not participate 

in the negotiations resulting in the settlement and consent decree. 

Pursuant (0 the settlement agreement, on December 6, 2010, EPA promulgated numeric 

nutrient criteria for Florida's lakes and flowing waters. 75 Fed. Reg. 75762 (Dec. 6, 2010) 

(codified at 40 C.F.R. § 131.43). EPA remains obligated to propose numeric nutrient criteria for 

the remainder of Florida's waters (except for wetlands) by November 14, 2011, and finalize 

those numbers in rule by August 15, 2012. See Florida Wildlife Federation, Joint Notice to the 

Court of Extension of Consent Decree Deadlines, DE 184 (N.D. Fla. June 7, 2010). 

FDEP urges EPA to withdraw its determination. This action will allow Florida to address 

nitrogen and phosphorus pollution through State and local programs, including the FDEP's 

pursuit of nutrient water quality standards. 

Overview of Florida's Nutrient Reduction Program 

The State of Florida has a comprehensive set oflegislatively mandated programs, 

implemented at the State, regional and local levels, which work in unison to protect waters from 

nutrient pollution and reduce nutrient loading from all sources of pollution, not just federallyregulated point sources. The core of Florida's program focuses on NPDES permitting with 

appropriate effluent limits,4 extensive monitoring ofit~ waters, identification of those waters that 

are impaired, setting load reduction targets for those waters identified as impaired, and 

implementing watershed restoration plans covering both point and nonpoint sources. Over the 

4 For wastewater sources that discharge nutrients, WQBELs are specifically derived to protect 

State waters from nutrient impairment under "worst case" conditions. See Fla. Admin. Code R. 

62-650.300(3)(h). Before FDEP is able to issue a wastewater permit, the permit applicant must 

provide upfront "reasonable assurance" that the permittee can meet all conditions in their permit, 

including the permit effluent limit a more rigorous permitting standard than contained within 

the Clean Water Act. Compare Fla. Admin. Code R. 62-620.320(1) with 40 C.P.R. § 122.44(d). 

5 
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years, Florida has expended great time and resources in undertaking these activities. While 

many of these efforts emanate from the typical Clean Water Act NPDES and TMDL programs, 

there are a number of programs unique to Florida that complement the standard Clean Water Act 

tools and in many instances go far beyond the mandates of the Clean Water Act. 

For instance, under the Clean Water Act, once a TMDL is set and incorporated into 

NPDES permits, mandated federal actions are at an end. No comprehensive implementation 

plan is required. See EPA's TMDL website, available at 

http://water.epa.gov/lawsregs/lawsguidance/cwaltmdllglossary.cfm ("Current 303(d) regulations 

do not require implementation plans, though some state regulations do require an implementation 

plan for a TMDL."); see also Sierra Club v. Meiburg, 296 F.3d 1021 (11th Cir. 2002). Florida, 

on the other hand, has a number of watershed-based approaches that result in restoration plans 

covering both point and nonpoillt sources. These watershed plans include BMAPs, SWIM plans, 

and legislatively-mandated restoration efforts directed at a number of specific watersheds like the 

Everglades and Lake Okeechobee. See, e.g., §§ 373.451 - .4595 and 403.067(7), Fla. Stat. 

Florida has already adopted aggressive nutrient load reduction limits for major 

waterbodies across the State through its TMDL and SWIM programs. Currently, there are 135 

adopted nutrient TMDLs and 47 SWIM plans (many with PLRGs) for major waterbodies 

including: Lalce Okeechobee, the Caloosahatchee Estuary, the 81. Lucie Estuary, the Indian River 

Lagoon, Tampa Bay, the Lower St. Johns River, the Suwannee River, the Santa Fe River, the 

Ocklawaha Chain of Lakes, the Winter Haven Chain of Lakes, Lake Jesup, and many first 

magnitude springs across the State including Manatee, Fanning, and Wekiva Springs. Florida 

has also established comprehensive restoration andlor protection plans for most of our high 

priority waters including the Everglades, Lake Okeechobee, the S1. Johns River and Estuary, the 

6 
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81389.119

Ocklawaha Chain of Lakes, Tampa Bay, Sarasota Bay, and the Florida Keys coastal waters, 

among others. 

These efforts, combined with the point and nonpoint source strategies discussed below, 

alrcady have shown significant, positive results in many of Florida's watersheds. EPA itself has 

documented a number of Florida's nutrient reduction successes including Lake Apopka, Tampa 

Bay, Sarasota Bay and Indian River Lagoon. See EPA Region 4's Watershed Improvement 

Summaries, http://www.epa.gov/region4!water/watersheds/watershed summaries.html#fl. 

In Sarasota Bay, EPA acclaims thc successes of the nutrient reduction efforts in that 

watershed: 

"The broadest measure of Sarasota Bay water quality and eeosystem health is the 

presenee of seagrass in the estuary, so eritical for the proper funetion of an estuary. 

Seagrass coverage in Sarasota Bay ha~ significantly increased, approaching the 1950 

extent of eoverage .... The Sarasota Bay Estuary Partners instrunlental in this 

outstanding Seagrass restoration and recovery effort include Florida Department of 

Environmental Protection, Southwest Florida Water Management District, Manatee and 

Sarasota County, city of Sarasota, city of Bradenton, town of Longboat Key, eity of 

Bradenton Beaeh, city of Holmes Beach and Auna Maria Island." 

Reducing Excessive Nutrient Enriehment in Sarasota Bay, available at 

http://www.epa.gov!region4/water/watersheds/documents!sarasora bay. pdf. 

Moreover, Florida has a number of nationally preeminent programs including its longstanding post-construction stormwater program for all new or modified development (since 

1981), its land purchasing program (protecting over 5.3 million acres of land to date representing 

15% of the State Florida spent more than any other State in the nation to acquire conservation 

lands from 1998-2005), and its reuse of reclaimed water. Florida also has a broad agrieultural 

nonpoint source program setting forth best management practices ("BMPs") for most of the 

primary agrieultural eommodities in the State as well as BMPs specifie to targeted areas of the 

State. All of these programs, as well as others, complement one another and result in Florida's 

7 
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81389.120

nutrient program being, unquestionably, a national leader. 

These various programs are further discussed below in the context of evaluating Florida's 

water quality program pursuant to the EPA memo. 

Florida Has as a Strong Nutrient Reduction Program as Measured Against 

EPA's March 16,2011 Memo or Any Other Objective Standard 

EPA's March 16, 2011, memo outlines eight minimum elements needed in a 

comprehensive State nutrient reduction program. Florida undoubtedly exceeds all eight of these 

requirements, and is a national leader in most of these categories. 

FDEP meets or exceeds all eight of the memo elements as follows: 

1. Prioritize Watersheds on a Statewide Basis for Nitrogen and Phosphorus Loading 

Reductions 

Florida has long utilized a watershed-based approach to address nutrient pollution in 

Florida. The 1987 SWIM Act directed the regional water management districts to develop 

management and restoration plans for preserving or restoring priority waterbodies. §§ 373.451 -

373.4595, Fla. Stat. One of the key goals established in a SWIM Plan is the development ofa 

PLRG, which are a precursor and are similar in nature to the more recent TMDLs, designed to 

preserve or restore designated uses and attain water qnality standards in SWIM waterbodies. 

The legislation initially designated six SWIM waterbodies: Lake Apopka, Tampa Bay, Indian 

River Lagoon, Biscayne Bay, the Lower St. Johns River, and Lake Okeechobee. Currently, 47 

watcrbodies are on the priority list. See SWIM Website, 

http://V>!ww.dcp.state.fl.us/water/watersheds/swim.htm. 

The 1999 Florida Watershed Restoration Act, Section 403.067, Florida Statutes, provides 

for the systematic assessment of impaired waters and development and implementation of 

scientifically-sound TMDLs for those Florida waters verified as impaired. FDEP's "Impaired 

8 
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81389.121

Waters Rule" provides the scientific methodology for assessing waterbody impairment and 

ineludes numeric thresholds for assessing nutrient impairment. Fla. Admin. Code Ch. 62-303. 

Prioritizing the development ofindividual TMDLs has largely been dictated by EPA in the 1999 

TMDL consent decree in Florida Wildlife Federation, Inc. v, Browner, Case No. 98-00356 (N.D. 

Fla. 1999). However, as limited resources allow, FDEP also prioritizes TMDL development 

based on factors primarily related to public health (including potential impacts to drinking water 

supplies and exposure through recreational activities), environmental siguificance, and its 

rotating basin schedule. See Fla. Admin. Code R, 62-303.500 and .700. 

Betwecn the various SWIM Plans, BMAPs, and restoration programs for legislatively 

targeted watersheds, Florida has already identified its high priority waters and, for most of these 

waters, established nutrient load reduction targets.s Some examples of high priority watcrbodies 

that the State has made a significant investment in actions to reduce nitrogen and phosphorus 

pollution are: 

Lake Apopka: Since the 1980s, Florida has invested millions of dollars in efforts to 

reduce phosphorus inputs to Lake Apopka and remove phosphorus from the lalce, resulting so far 

in a 41 % decrease in lake phosphorus and a 34% increase in water clarity since 1992. See SL 

Johns River Water Management District Lal<e Apopka Restoration website, 

http://www.floridaswater.com/lakeapopkal. 

Tampa Bay: Nutrient pollution problems documented in Tampa Bay in the 1960s and 

1970s have been successfully addressed through the implementation of advanced wastewater 

treatment of domestic wastewater, increasing reuse, reduced NOx emissions, and siguificant 

investments in stormwater treatment. As a result of the reductions in nutrient loading, seagrass 

5 FDEP's monitoring efforts, including both targeted watershed monitoring and statewide basin 

trend monitoring, are discussed in element seven below. 

9 
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81389.122

coverage has increased to the highest levels since the 1950s in spite of a 500% increase in 

population in the area during this same period. See Tampa Bay Estuary Program website, 

http://www.tbep.org!. 

Indian River Lagoon ("IRL"): Through the combined efforts of State and Federal 

Agencies, five Counties and other partners, nutrient loadings goals to the IRL have been 

achieved by reducing and eliminating point source discharges, and implementing measures to 

reduce nutrient loads from septic systems, stormwater discharges, marinas and boating. The 

monitoring data indicate decreasing levels of nitrogen, phosphorus and chlorophyll a, and 

improving dissolved oxygen and seagrass coverage throughout the IRL. See St. Johns River 

Water Management District's Its Your Lagoon website, http://www.sjrwmd.orglitsyourlagoonl. 

Everglades: Nutrient loadings to the Everglades have been greatly reduced through a 

combination of almost 60,000 acres of constructed treatruent wetlands and mandatory 

agricultural BMPs. The State is close to completing $1.1 billion in water quality restoration 

projects which ref1ect~ an unprecedented State commitruent to nutrient pollution reduction for a 

watcrbody in the United States. Over the past 15 years, the State's efforts have prevented more 

than 3,500 metric tons of phosphorus from reaching the Everglades. 2011 South Florida 

Envirormlental Report, Volume I, available at 

http://my.sfwmd.gov/portalipage/portallpg grp sfwmd sfer/portlet prevreportl2011 sfer/vl/vol 

table of contents.htrul. 

Lake Okeechobee Watershed: The State is in the process of implementing the first phase 

of a Lake Okeechobee Watershed Restoration Plan, the cost of which is estimated to be between 

10 
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81389.123

~$1.3 - $1.7 billion. Lake Okeechobee Protection Plan Update, March 2011, available at 

http://www.sfwmd.gov/portaJLpage/portal/xrepositorv/sfwmd repository pdf/lopp update 2011. 

oM· 

St. Lucie and Caloosahatchee River Watersheds: Under legislation passed in 2007, 

multi-billion dollar restoration plans for the St. Lucie and Caloosahatchee River Watersheds 

have been developed and subsequently ratified in 2009 by the Florida legislature. st. Lucie 

River Watershed Protection Plan, available at 

http://www.sfwmd.gov/portal/page/portal/xrepository/sfwmd repository pdf/ne slrwpp main 

23108.pdf; and Caloosahatchee River Watershed Protection Plan, available at 

http://www.sfwmd.gov/portallpage/portal!xrepositorylsfwmd repository pdf/ne crwpp main 

23108.pdf. 

Lower St. Johns River: FDEP cooperatively worked with multiple interests and 

stakeholders to adopt a billion dollar BMAP in 2008 to address nitrogen and phosphorus 

pollution in the Lower S1. Johns River. Loading reductions from implemcntation of the BMAP 

are already being realized. See 2010 Progress Report, Lower S1. Johns River Basin Management 

Action Plan. Available at 

http://www.dep.state.fl.lL~/wat~Lwatersheds/does/bmap/lsir prog rpt201 O.pdf. 

2. Set Watershed Load Reduction Goals Based Upon Best Available Information 

As previously noted, Florida has already established restoration goals for most high 

priority waters in the State, including all the high priority waters specifically discussed under 

element one. For a complete list of 406 FDEP and EPA established nutrient TMDLs for the 

State of Florida, please refer to EPA's website at 

http://iaspub.epa.gov/tmdl waterslO/attains impaired waterS,trndls?p pollutant group id=792. 

11 
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81389.124

FDEP has one of the most comprehensive and technically-sophisticated TMDL process 

in the nation. FDEP's nutrient TMDLs are only possible as a result of the extensive investments 

in both water quality monitoring data and modeling efforts, including actively funding cutting 

edge modifications to various modeling tools being used to assess impacts to Florida's surface 

and ground waters. For instance, in the case of the Lower St. Johns River, more than one million 

dollars was expended to enhance the Chesapeake Bay model. Significant site-specific 

improvements were based on extensive additional water quality monitoring, which was used to 

develop, calibrate, and validate a three dimensional model to assess complex tidal 

hydrodynamics and water quality changes, with the intent of being able to more accurately 

determine the critical conditions and the areas where impacts were the greatest. 

In addition, Florida has funded the development of the Watershed Assessment Model 

("WAM"), a very powerful tool for watershed-scale modeling. W Ai'v1 can model nutrient 

loading and transport from small, individual watersheds or large complex basins, including 

agricultural, urban and native land uses, and natural and channelized streams, springshed 

groundwater systems, and tidal areas. W AM has been used by FDEP for development of 

TMDLs and/or restoration plans in numerous areas of the state (e.g., the Suwannee River, Peace 

River, and the Caloosahatchee Basin) and Florida's regional Water Management Districts also 

utilize WAM for assessing watershed water and nutrient budgets. Moreover, W AM and other 

modeling tools are used in the development of BMAPs, which can rely heavily on the usc ofland 

use loading models and associated Geographic Infonnation System tools to properly represent 

and assess local attributes in creating a suite of cost-effective management practices needed to 

reduce point and non-point sources. 

12 
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81389.125

3. Ensure Effictiveness of Point Source Permits in Targeted/Priority Sub-Watersheds 

FDEP has a multi-pronged approach for controlling nutrient loading from NPDES point 

sourcc dischargers.6 These efforts include: eliminating significantly reducing the volume of 

wastewater discharges to surface waters, encouraging reuse of domestic wastewater, aggressively 

identifying nutrient impaired waters and setting TMDLs for those waters, incorporating 

protective water quality based effluent limits into permits, and adopting comprehensive 

watershed-wide restoration programs to address both point and nonpoint sources with the 

assistance of govermnent-funded regional restoration projects. And as noted above, Florida 

conducts more watcr quality sampling than any other State to cnsure the effectiveness of these 

programs.' 

Currently, less than 10 percent of all domestic wastewater treatment facilities in the State 

even discharge to surface waters (197 out of2,118 facilities), and over 25% (51 facilities) of the 

surface water discharges provide full advanced wastewater treatment ("A WT"). Few, if any, 

States can meet that record of success. Section 403.086(1) of the Florida Statutes was passed in 

the 19808 to specifically require A WT for domestie wastewater facilities discharging to Old 

Tampa Bay, Tampa Bay, Hillsborough Bay, Boca Ciega Bay, St. Joseph Sound, Clearwater Bay, 

Sarasota Bay, Little Sarasota Bay, Roberts Bay, Lemon Bay, or Charlotte Harbor Bay, or any 

water or tributary flowing into any of these waters. Additionally, in 1990, Chapter 90-262, Laws 

6 In 1995 Florida received l\i'PDES program approval from EPA. 60 Fed. Reg. 25,718 (May 1, 

1995); 33 U.S.C. § 1342(e). Prior to receiving program approval, Florida had in place a 

comprehensive program regulating wastewater diseharges into both surface and groundwater and 

merged that pre-existing permitting program into its NPDES approved program. See § 403 .088, 

Fla. Stat. 

7 FDEP also has a robust eompliance and enforeement program, averaging over 3,680 

inspections of wastewater facilities each year for the past 10 years and assessing over $2.6 

million in enforcement penalties in 2010. 
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81389.126

of Florida, was passed to protect the Indian River Lagoon ("IRL") system8 by prohibiting new 

discharges or increased loadings from domestic wastewater treatment facilities, and reducing or 

eliminating nutrient loadings to surface water from existing domestic wastewater treatment 

facilities that discharge to the IRL system. The result has been an annual 90% reduction in 

nutrients and suspended solids to IRL. Indian River Lagoon (20 I 0 EPA Fact Sheet), available at 

http://wvllw.epa.gov/region4/water/watersheds/documents/indian river lagoon.pdf. Similar 

legislation for the protection of the Florida Keys and the Wekiva Study Area was passed in 1999 

and 2005, respectively. See Chapter 99-395, section 6, Laws of Florida; and § 369.318, Fla. Stat. 

In the early 1980's, Florida recognized the importance of reusing wastewater for both 

wastewater management and water resource management. Reuse offers an environmentally 

sound means for managing wastewater that dramatically reduces environmental impacts 

associated with discharge of wastewater effluent to surface waters. In addition, use of reclaim cd 

water provides an alternative water supply for many activities that do not require potable quality 

water, which serves to conserve available supplies of potable quality water. These facts 

prompted Florida to actively encourage and promote reuse as a formal state objective. 

Two decades later, Florida leads the country in the reuse of domestic wastewater, and in 

2006, Florida's Water Reuse Program was the first recipient of the EPA Water Efficiency I,cader 

Award. The total reuse capacity of Florida's domestic wastewater treatment facilities has 

increased from 362 million gallons per day ("MGD") in 1986 to 1,559 MGD in 2009. Florida 

Reuse Activities Website, http://www.dep.state.tl.us/waterlreuse/activity.htm. The current reuse 

capacity represents approximately 62 percent of the total permitted domestic wastewater 

treatment capacity in Florida. In 2006, Florida averaged nearly 37 gallons/day/person of reuse, 

8 The IRL system extends from Jupiter inlet, north to Ponce de Leon Inlet, including I-lobe 

Sound, Indian River Lagoon, Banana River, and Mosquito Lagoon and their tributaries. 

14 
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81389.127

compared to the next two best states -- California, which reuses approximately 16 

gallons/day/person, and Virginia, which reuses approximately 1.5 gallons/day/person. See Reuse 

Inventory Database and Annual Report Website, 

http://www.dep.state.fl.us!water/reuse/inventory.htm. Additionally, legislation was passed in 

2008 that will result in the elimination of300 MOD of domestic wastewater discharges into the 

Atlantic Ocean in Southeast Florida (i.e., Palm Beach, Broward and Miami-Dade Counties) 

through a gradual transition to water reuse. Chapter 2008-232, Laws of Florida. 

Since its inception, Florida's State Revolving Fund Clean Water program has committed 

more than $3 billion to plan, design, and build wastewater facilities across the state. Over forty 

percent of that amount has been directed towards advanced wastewater treatment and reuse 

facilities. 

In permitting domestic and industrial wastewater discharges, the State of Florida has had 

a program designed to assess the impacts of permitted point source discharges on surface waters 

and include appropriate WQBELs since the late 19708, long before it received NPDES program 

approval.9 In the case ofthc Little Wekiva River system, WQBELs have been included in 

permits as early as 1975. Since receiving program approval, over 140 nutrient WQBELs have 

been included as specific conditions in FDEP-issued NPDES permitq. 

More recently, effluent limitations for most traditional point source dischargers of 

nutrients are derived based upon waste load allocations from TMDLs set for the receiving 

waterbody. However, for NPDES facilities discharging into waters without a TMDL, FDEP 

continues to independently derive WQBELs, as appropriate. See Fla. Admin. Code Ch. 62-650. 

9 Regulation of concentrated animal feeding operations is discussed below under element 4. 

15 
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81389.128

4. Agricultural Areas 

FDEP works closely with Federal and State agricultural partners and the agricultural 

community to address nutrient loading from agricultural operations. In fact, according to the 

American Farm Bureau Federation ("AFBF"), Florida has the most aggressive and 

comprehensive program implementing agricultural source controls (i.e., BMPs) in the nation. 

Personal Communications - Don Parrish, Senior Director of Regulatory Relations, AFBF. The 

State of Florida adopts agriculture BMPs by rule in the Florida Administrative Code and State 

law requires these BMPs to be implemented as part of State-adopted watershed restoration plans, 

known as basin management action plans ("BMAPs"). § 403.067(7), Fla. Stat. Agricultural 

nonpoint sources covered in a BMAP are subject to enforcement by FDEP or the applicable 

regional Water Management District, for failure to implement BMPs or conduct monitoring. ld. 

To date BMPs have been adopted in rule covering citrus (Rules 5M-2, SM-S, SM-7, and 

SE-l.023), container nurseries (Rule 5M-6), beef cattle operations (Rule SM-Il), sod farms 

(Rule 5M-9), vegetable and row crops (Rule 5M-8), and forestry operations (Rule 5I-6), with 

other agricultural BMPs currently under development. Agricultural BMPs have also been 

adopted for the Everglades Agricultural Area (Rule 40E-63), the C-139 Basin (Rule 40E-63), 

and the Lake Okeechobee watershed (Rules 5M-!! and 40E-61) and are key components of 

Everglades and Lake Okeechobee restoration. Over the past 15 years, mandatory agricultural 

BMPs in the Everglades Agricultural Area have consistently reduced phosphorus loadings by 

greater than the 25 percent regulatory minimum. 2011 South Florida Environmental Report, 

Chapter 4, available at 

http://mY.sfwmd.gov/portal!page/portal/pg grp sfwmd sfer/portlet prevreport/2011 sfer/vllcha 

pters/v 1 ch4. pdf. 

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Besides promulgating numerous agricultural BMP rules, the Florida Department of 

Agriculture and Consumer Services ("FDACS") provides assistance to agriculture operations in 

reducing their pollutant loads to the State's waters. With FDACS' efforts over the last decade, 

more than 8 million acres of agriCUlture are now implementing approved agricultural BMPs. 

FDACS' BMP rules require growers to maintain records demonstrating compliance with the 

BMPs (including amount of fertilizer applied, etc.) and allow FDACS staff to conduct 

inspections. 

For concentrated animal feeding operations ("CAFOs"), Florida was among the first 

states in the nation to implement rules regulating CAPO wastes through the Lake Okeechobee 

Dairy Rule adopted in the 1980s. Fla. Admin. Code R. 62-670.500. Furthermore, alllmoWll 

CAPOs in Florida that require NPDES permits are either permitted or pending permits, with all 

CAFO dairies already permitted. In addition, Florida requires individual permits for CAFOs, 

rather than general permits. 

All permitted CAFOs in Florida, a hurricane state, have production areas designed to 

contain the 25-year, 24-hour rainfall event for a site-specific design storage period. Since 1998, 

based on data from PCSIICIS, only four permitted CAFOs have discharged to surface water, 

with the last discharge occurring in 2007. Additionally, Nutrient Management Plans ("NMPs") 

were implemented by CAFOs even before they were required by the 2008 EPA rules. In Florida 

NMPs are prepared by either a licensed Professional Engineer or a provider certified by NRCS. 

Upon permit issuance, components ofNMPs are included as permit conditions. 

Beyond BMP implementation, the State has undertaken comprehensive watershed 

restoration efforts to capture and treat nutrient levels not fully addressed by BMP 

implementation, including construction and operation of off-line treatment facilities ill 

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watersheds including the Everglades, Lake Okeechobee, and the St. Lucie River. In the 

Everglades alone, more than 45,000 acres of treatment wetlands are currently operational, with 

another 13,000 acres of treatment wetlands scheduled to be completed in the near future. 2011 

South Florida Environmental Report, Chapter 5, available at 

http://my.sfwmd.gov!portaIlpage/portal/pg grp sfwmd sfer/portlet prevreportl2011 sfer/vl/eha 

pters/vi eh5.pdf. These are the largest complex of treatment wetlands in the world, costing in 

excess of $1 billion dollars to construct and operate. 

Other innovative agricultural initiatives include the first in the nation program to engage 

the agricultural community in a payment for environmental services framework where land 

owners enter into a contract for nutrient reduction services for payment. See Lake Okeechobee 

Protection Plan Update, March 2011, Section 6.3.1.1, available at 

http://www.smmd.gov/portaj/page/portaIlxrepositorylsfwmd repository pdf/lopp update 2011. 

llilf. In 2010, FDEP developed a pilot Water Quality Credit Trading Program in the Lower St. 

Johns River Basin that allows agricultural operations to partner with point sources to more 

economically meet nutrient reductions required under the BMAP for the river. Fla. Admin. Code 

eh.62-306. 

5. Stormwater and Septic Systems 

A. Stormwater 

Florida was the first State in the Nation to implement comprehensive storm water 

treatment regulations in 1981 for all new urban development and redevelopment and is still only 

one of eleven States with a fully State-financed post-construction permitting program for new 

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development and redevelopment. lO See FDEP Urban Stormwater Program website, 

http://www.dep.state.fl.us/water/nonpoint/urban1.htm. For new stormwater diseharges to 

impaired waters, Florida law requires that no inerease in pollutant loading will occur for the 

pollutants causing or contributing to the impairment. § 373.414(1)(b)(3), Fla. Stat. Despite 

rapid population growth over the last 30 years, Florida's post-construction stormwater program 

ha~ been a significant contributor to controlling and redueing nutrient loads during this period. 

For the past decade, FDEP has been conducting research on innovative BMPs such as 

storm water harvesting and low impact design to obtain data on the effectiveness of BMPs in 

reducing nutrients. See websites at: http://www.del1.state.fl.us/water/nonpointipubs.htm 

#Urban Stormwater BMP Research Reports and http://stormwater.ucf.edui. Currently, 

additional studies and monitoring are being undertaken to enhanee the nutrient removal 

effectiveness of existing stormwater BMPs. FDEP is also developing a rule to establish 

minimum levels of stormwater treatment for nitrogen and phosphorus that FDEP envisions will 

result in the most comprehensive urban stormwater treatment program in the country.ll 

In addition to its state stom1water permitting program for new stonnwater discharges, 

Florida has provided state cost share funding to local governments to retrofit existing drainage 

systems with BMPs to reduce the stormwater pollutant loads discharged from areas built before 

Florida's stonnwater treatment regulations existed. In support of this retrofit effort, for over 20 

years Florida has been using a majority of its Section 319 fnnds for urban stormwater retrofitting 

projects. For example, Table 1 summarizes stormwater retrofitting in two significant 

watersheds, the Indian River Lagoon and Tampa Bay. Since 1999, the State has provided over 

10 Florida was also one of the first States to limit the use of phosphates in detergents. See § 

403.061(23), Fla. Stat.; Chapter 72-53, Laws of Florida. 

11 FDEP's activities to date in support of this rulemaking effort are docUll1ented at 

http://wVvw.dep.state.f1.uslwater/wetlands!erp!rules/stormwater/index.htm. 

19 
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$50 million in grant money to provide funding for local projects that reduce pollutant loading 

from urban stormwater discharges. 

WATERSHED PROJECTS ACRES TOTAL TN LOAD TPLOAD 

RETROFITTED COST REDUCTION REDUC~I~ 

Indian River >40 47,144 $51,870,829 37,9217 68,691 

Lagoon 

~yaBay >20 24,930 I $26,209,779 67,230 43,866 

A source oflocal matching funds is key to stormwater retrofitting and to tapping into 

state and regional Water Management District ftmding. The State of Florida currently has more 

stormwater utilities (154) with a dedicated local revenue stream specifically targeted for 

stormwater treatruent and management than any other State. 

In 2003, FDEP and the Florida Department of Transportation, partnered with the 

University of Central Florida to establish the Stormwater Management Academy as a center of 

excellence on urban stormwater treatment and management. See http;llwww.stormwater.ucf.edu. 

The academy has completed or is conducting research on a variety of urban stormwater BMP 

issues, including the health and water quality risks associated with stormwater rcuse. Moreover, 

FDEP is funding research to determine fertilization and irrigation needs to establish and maintaln 

turf grasses, the impact of wet detention pond depth on the effectiveness of stormwater 

treatment, and the development ofBMPs to increase nitrogen removal in stormwater. 

FDEP and FDACS have been working with the fertilizer industry to develop Floridaspecific formulations of slow-release and low-phosphorus fertilizers. FDACS adopted its Urban 

TurfRnle (Rule 5E-I.003), which specifies which types of fertilizers can be used on urban turf in 

Florida and the amount of nutrients in the various types of urban turf fertilizers. Additionally, 

the 2007 Florida Legislature established the Consumer Fertilizer Task Force to develop statewide 

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81389.133

recommendations on the use of fertilizer on urban turf and on training and certification 

requirements for people engaged in the commercial application of fertilizer. The outcome of that 

task force was a model ordinance for the use offertilizer. Local government adoption of the 

model ordinance is statutorily mandated within impaired watersheds, as well as the 

implementation of a mandatory commercial applicators training and program. See § 403.9337, 

Fla. Stat. 

After January 1,2014, to be licensed to commercially apply fertilizer to urban 

landscapes, this same Act also requires a certificate from FDEP demonstrating satisfactory 

training in urban landscapc BMPs. § 403.9338, Fla. Stat. An estimated 100,000 people will 

receive this training by the statutory deadline. As ofSeptembcr 20,2010, 11,013 people already 

have received the certification. See FDEP's 2010 Annual Report: Nonpoint Source Management 

Program, pp. 12 - 14, available at 

http://www.dep.state.f1.us/water/nonpointldocs/319hI201 OAnnuaIReport319h.pdt~ 

Finally, Florida has the largest public land acquisition program of its kind in the United 

States. This program, combined with Florida's comprehensive wetland protection program, 

ensures that environmentally sensitive areas are not only protected, but that they perform their 

natural function as nutrient sinks. The state's first environmental land acquisition program goes 

back as far as 1972 (the Environmentally Endangered Lands Act) and was expanded in 19B 1 

with the Save Our Coasts and Save Our Rivers Programs. In 1989, recognizing the importance 

of accelerating land acquisition, given the state's rapid population growth, the Preservation 2000 

program was enacted. This decade-long program provided $300 million, annually, for land 

acquisition. In 1999, Preservation 2000 was extended for another decade by the enactment of the 

Florida Forever Program, which continued the $300 million annual commitment. See generally 

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Florida's Landmark Programs for Conservation and Recreation Land Acquisition, available at 

http://www.dep.state.fl.usllands/files/Florida LandAcguisition.pdf. In combination with other 

State programs, over 5.3 million acres of sensitive lands have been acquired for protection. 

Florida Natural Areas Inventory Summary of Florida Conservation Lands, available at 

http://www.fuai.orgIPDF/Maacres 201102 FCL plus LTF.pdf. 

B. Septic Systems 

Florida has established standards for septic systems and as part of adopted restoration 

plans (Le., BMAPs), septic tanks are routinely removed and residents are hooked up to 

centralized sewer. Throughout Florida, a number of successful programs have been 

implemented to ensure that septic systems are well-maintained and, when necessary, taken 

offline. As part of adopted BMAPs for thc Lower St Johns Rivers, Lake Jesup, and Bayou 

Chico, septic tanks are routinely removed and residents are hooked up to centralized sewer. 

More than 230,000 lblyr TN has been reduced in the St. Johns River alone. 

EPA has assisted Florida in its septic tank efforts, including an award of $3.6 million 

grant to the Florida Keys Aqueduct Authority for the Florida Keys Decentralized Wastewater 

Demonstration Project. This project, which addresses the upgrade of approximately 400 onsite 

sewage treatment and disposal systems in the lower Keys, will allow owners the option of giving 

ownership of their system to the Florida Keys Aqueduct Authority, who will then provide 

upgrade, maintenance, and repair services. Undcr State law, these septic systems must be 

upgraded to nutrient reduction systems by July 2016. § 381.0065(4)(1), Fla. Stat. 

Florida's State Revolving Fund has provided over $3 billion in funding to projects 

designed to improve Florida's waters and make drinking water safe. Of this amount, almost $1 

billion has been spent on sewer projects, which includes taking septic tanks offline in sensitive 

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areas throughout Florida such as Key Largo, Marathon Key, Monroe County, Sopchoppy, Grand 

Ridge, Clewiston, Panama City Beach, Lee, Key Biscayne, and Marco Island. 

In 2008, EPA and the National Oceanic fL'1d Atmospheric Administration ("NOAA") 

jointly determined that the State of Florida had satisfied all conditions for approval of the Florida 

coastal non-point pollution control program. Florida Coastal Non-point Program, NOAA/EPA 

Decisions on Conditions of Approval, available at: http://coastalmanagement.noaa.gov/nonpointldocs/6217f1 fnl.pdf. Within its approval, with regard to new and operating onsite 

disposals systems, EPA and NOAA stated that Florida "has satisfied" the requirements of 

Coastal Zone Act Reauthorization Amendments ("CZARA") by "incorporating a well funded 

and targeted approach statewide." Id. The approval notes the use of the Carmody Data Systems 

program, the state's "robust" Onsite Sewage Treatment and Disposal System ("OSTDS") 

licensing, certification, and standards of inspection program, point-of-sale outreach, and a "very 

professional" public outreach campaign. Id. EPA and NOAA further commented that Florida is 

"providing guidance and technical assistance to the local health department offices to help them 

systematically implement broad [OSTDS] inspection programs on a county-to-county basis and 

to educate the public about inspections and maintenance." ld. To maintain its CZARA approval, 

Florida has committed to continue to work with county health departments to increase 

inspections through 2018 and to devote approximately $1 million a ycar from the Florida 

Department of Health ("FDOH") and $200,000 a year from section 319 funds administered by 

FDEP. 

6. Accountability and Verification Measures; and 

7. Annual Public Reporting ojImplementationActivities and Biannual Reporting of 

Load Reductions and Environmentallmpacts Associated with Each Management Activity in 

Targeted Watershed~ 

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81389.136

'The description of how the State of Florida achieves these two elements is articulated 

below and described in unison due to the significant overlap of information. Monitoring of 

environmental response and verification that management activities are carried out are important 

components of restoration efforts implemented in the State of Florida, generally in annual 

reports, 

A Public Reporting 

The annual South Florida Environmental Report details the progress of restoring the 

Everglades, Lake Okeechobee, and the Southern Coastal Waters including the Caloosahatchee 

and St Lucie estuaries. See 2011 South Florida Environmental Report, Volnme r, available at 

http://my.sTIvmd.gov/portal/page/portal/pg grp sfwmd sfer/portlet prevreportl2011 sfer/vllvol 

1 table of contents.html. All five of the regional water management diSllicts report on their 

various activities on their individual websites. See generally 

http://www.dep.stateJ1.us/secretarv!watmanJ. In addition, for watersheds with adopted BMAPs, 

annual progress reports are prepared that detail the speeific activities implemented and loads 

reduced, The National Estuary Programs also issue routine reports describing the measures 

implemented to protect and restore those high priority waterbodies, FDEP produces a variety of 

reports on wastewater and wastewater-related issues, See 

http://www.dep.state.fl.us/water/wastewater/pubs.htm. FDACS issues annually a Report on the 

Implementation of Agricultural Best Management Practices. See 

http://f1oridaagwaterpo!i_~y.comlImplementatiollAssurance,htmL Finally, FDOH produces a 

variety of reports on installation and repair of septic systems and research to enhance the State's 

septic systems. See http://www.myfloridaeh.com/ostdslresearchllndex.htrnl. 

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81389.137

B. Water Quality Monitoring and Assessment 

Florida has an extensive water quality monitoring and assessment program, particularly 

with respect to nutrients. Currently, over 30 percent of all the nutrient water quality data and 

over 55 percent of the chlorophyll a data in EPA's national water quality database, STORET, 

came from Florida -- more than double from the next highest State, Oklahoma. STORET water 

quality database, http://www.epa.gov/storet. In fact, 25 percent of the nation's ambient water 

quality monitoring stations (more than 41,000 stations) are located within Florida. The next 

highest state is Alaska with 15,187 stations. 

FDEP's voluminous water quality data are used for the assessment of water bodies for 

nutrient impacts annually under a comprehensive and sophisticated rotating basin approach. 

FDEP conducts hundreds of assessments of water body health for nutrients per year pursuant to 

the Impaired Waters Rule. See FDEP's Adopted Verified Lists ofImpaired Waters, available at 

http://www.dep.state.fl.us/water/watersheds/assessmentl303drule.htm. As part ofFDEP's 

rotating basin approach for assessing waters and setting TMDLs, FDEP updates its 303(d) list 

aunually. Additionally, every 2 years, as part of its "Integrated Report" (combining the reporting 

elements of tile 305(b) Report and the 303(d) assessment), the State assesses and reports on 

statewide nutrient conditions based on data from the status monitoring network and reports on 

nutrient trends at 77 trend monitoring stations. FDEP's status monitoring network uses a 

probabilistic design to allow for the unbiased assessment of the status of Florida's waters. 

Florida's vast water quality data are readily accessible to the public through FDEP's 

website at http://ca.dep.state.fl.us/mapdireetl?focus=waterdatacentral. FDEP updates this 

database quarterly. 

Since 1996, FDEP has eonducted an Integrated Water Resource Monitoring Network 

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("IWRM") Program. See http://www.dep.state.fl.us/water/morutoringiindex.htm.This program 

is a multi-level or "tiered" monitoring program designed to answer questions about Florida's 

water quality at differing scales. Tier I monitoring is comprised of two monitoring efforts, status 

morutoring and trend monitoring, which are both designed to answer regional to statewide 

questions. 

The purpose of the Status Monitoring Network is to characterize environmental 

conditions of Florida's frcsh water resources and to determine how these conditions change over 

time. The Status Monitoring Network, which randomly selects stations via a probabilistic design 

recommended by EPA, is designed to address questions at three different scales: 1) the state as a 

whole; 2) specific geopolitical regions ofthe state; and 3) watersheds associated with Florida's 

major rivers and lakes. Status Network data are used to statistically describe statewide, regional, 

and basin-specific water quality conditions present during the period of sampling. 

The basic design units of the trend monitoring network are the state of Florida's 52 

United States Geologic Survey ("USGS") eight-digit surface water drainage basins. The 

purposes of the Trend Network are to correlate Tier I, II, and III IWRM results ,vith seasonal 

climatic change, to make best estimates of temporal variance of sampled analytes within the 

USGS drainage basins, and to determine how these analytes are changing over time. The Trend 

Network consists of 77 fixed location sites in streams and rivers that are sampled on a monthly 

basis. The sites are generally located at the lower end of a USGS drainage basin and arc placed 

at or close to a flow gauging station. These sites enable FDEP to obtain chemistry, discharge, 

and loading data at the point that integrates the land use activities of the watershed. 

Tier II monitoring includes strategic monitoring for basin assessments and monitoring 

required for TMDL development. This monitoring is more localized in nature than that 

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81389.139

occurring under Tier I monitoring, yet may encompass a broader area than that employed in Tier 

III. Tier II monitoring is primarily conducted as part ofFDEP watershed management approach. 

In 2000, FDEP adopted a five-year watershed management cycle that divides Florida into five 

groups of surface water basins in which different activities take place each year; the cycle is 

repeated continuously to prioritize watersheds for implementation of restoration efforts, to 

evaluate the success of clean-up efforts, to refine water quality protection strategies, and to 

account for the changes brought about by Florida's rapid growth and development. Activities 

associated with FDEP's assessment process include preliminary basin assessments; identification 

of nutrient or other pollutant-impaired waters; targeted water quality monitoring and data 

analysis; TMDL development and adoption; basin planning with local stakeholders to establish 

the actions necessary to reduce pollution; and implementation through regulatory actions, 

funding, pollution prevention strategies, and other measures. Over the past tln'ee years, FDEP 

has conducted more than 26,000 assessments of water body health through this process, more 

than any other agency in the country. 

Tier III includes all monitoring tied to regulatory permits issued by FDEP and is 

associated with evaluating the effectiveness of point source discharge reductions, best 

management practices or TMDLs. The program addresses both surface and ground waters of the 

state. 

8. Develop Work Plan and Schedule for Numeric Criteria Development 

Florida has a long-standing, EPA-approved, narrative nutrient criterion found at Florida 

Administrative Code Rule 62-302.530(47)(b) that has been the guidepost for Florida's nutrient 

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81389.140

reduction efforts. 12 In the Everglades, FDEP has translated the narrative criteria into a numeric 

phosphorus criterion, which has been approved by EPA and upheld in state and federal courts. 

Fla. Admin. Code R. 62-302.540(4)(a). FDEP also has statewidc, EPA-approved turbidity, 

transparency and biological integrity criterial3 in Rules 62-302.530(69), (67) and (10) that work 

in unison with the existing narrative nutrient standard. 

Moreover, FDEP has adopted numeric nutrient response thresholds (chlorophyll-a and 

Trophic State Index) for determining whether individual waters are impaired for nutrients. Fla. 

Admin. Code R. 62-304.351, .352, .353, and .450. EPA has approved these nutrient response 

values as changes to Florida's nutrient water quality standards that are consistent with the Clean 

Water Act. See EPA's July 6, 2005, 303(c) Determination on Florida's Chapter 62-303; see 

also, EPA's February 19, 2008, 303(c) Determination on Florida's Amendments to Chapter 62-

303. EPA's approval of these changes to state water quality standards have been upheld in 

federal court. F10rida Public Interest Research Group v. EPA, Case No. 4:02cv408-WCS, Order 

Granting Summary Judgment, DE 185 (N.D. Fla. Feb. 15,2007) (unpublished opinion). As 

such, Florida is one of three states in the nation with EPA-approvcd nutrient response criteria for 

all of its waters (with the exception of wetlands). 

FDEP recognizes the benefits of promulgating scientifically sound nutrient criteria and 

12 First adopted in 1974, Florida's narrative nutrient criterion provides, "In no case shallnu1Tient 

concentrations of a body of water be altered so as 10 cause an imbalance in natural populations of 

aquatic flora and fauna." Fla. Admin. Code Rule 62-302.530(47)(b). 

13 Turbidity and transparency are surrogates for water clarity and are an indicator (along with 

other parameters, such as chlorophyll-a) for measuring biological response, i.e., algal mass, in 

surface water. EPA has encouraged States to adopt turbidity, transparency and other water 

clarity criteria as part of the suite of criteria for addressing nutrient pollution. See, e.g., EPA 

Memorandwn: Development and Adoption of Nutrient Criteria into Water Quality Standards, p. 

8, [ounda! 

http://water.epa.gov/scitech/swguidance/standards/uploadl2009 01 21 criteria nutrient nutrient 

swqsmemo.pdf. 

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81389.141

has expended great resources to this end. FDEP had been following a mutually agreed upon 

(EPA and FDEP) criteria development plan until EPA's 2009 settlement with the various 

organizations represented by EarthJustice. On numerous occasions, EPA has acknowledged 

FDEP's extraordinary efforts in this rcgard and has publically stated that EPA's rulemaking 

cfforts would have been impossible without Florida's extensive water quality data. See 75 Fed. 

Reg. at 75771, 75773; 75 Fed. Reg. 4174, 4183 (January 26, 2010); see also EPA's September 

28,2007 Letter Approving FDEP's 2007 Nutrient Criteria Developmcnt Plan, available at 

http://WW\v.dep.state.fl.us/water/wgssp/nutrient~/docs/epa-092807.pdf. 

As the understanding of nutrients in aquatic ecosystems continues to evolve, FDEP 

desires to continue our commitment to developing defensible nutrient criteria. As such, FDEP 

plans to recommence its rulemaking efforts and will target the waterbodies covered by EPA's 

December 6, 2010 rule in addition to a number of estuaries which will represent a very broad 

coverage of State waterbodies. FDEP has projected the following timetable for completing the 

rulemaking, but this timeframe is contingent on EPA's response to this Petition: 

Notice of Rule Development: 

l't Public Workshop on Rule Concepts: 

2nd Public Workshop on Draft Rules: 

3,d Public Workshop on Final Draft Rules: 

1 st ERe Meeting (briefing): 

2nd ERe Meeting (adoption): 

May, 2011 

June, 2011 

July, 2011 

September, 2011 

November, 2011 

January, 2012 

Legislative Ratification: 2012 Legislative Session 

FDEP expects that legal challenges from interested parties could be filed which would 

delay the effective date of the rule. In the near future, FDEP will update its Mareh 2009 

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81389.142

development plan and submit the updated plan to EPA. 

Once FDEP completes its rulemaking, EPA obviously maintains its authority to review 

any proposed criteria resulting from the State process. 33 U.S.C. § 1313(c). Consequently, if 

EPA were to withdraw its necessity determination, it would not relinquish total authority to 

Florida. This significant step would once again allow Florida to regain its primary responsibility 

for standard setting, as Congress unambiguously envisioned within the Clean Water Act. 

EPA Should Withdraw Its Necessity Determination and. Consequently, Repeal 40 C.F.R. 

§131.43 and Refrain from Proposing Other Numeric Criteria in Florida 

EPA's purported willingness to give flexibility to States, like Florida, that have in place 

the framework for achieving nutrient reductions, is not consistent with EPA's 2009 necessity 

determination for Florida. Measured against EPA's March 16, 2011 memo, the State of Florida 

has in place a framework for achieving nitrogen and phosphorus reductions and control that is 

among the best in the nation. It is therefore reasonable to conclude that EPA's 2009 necessity 

determination should not have singled out Florida. To rectify this discrepancy, EPA must 

withdraw its necessity determination and has good reason to do so. 

Because the necessity determination is essential for EPA's promulgation of numeric 

nutrient criteria in Florida's lakes and flowing waters, withdrawal of the determination will 

require EPA to repeal 40 C .. F.R. § 131.43."Withdrawal will also relieve EPA from proposing and 

promulgating numeric nutrient criteria for Florida's estuaries, coastal waters and south Florida 

canals. 

It is well-recognized that federal agencies may change their mind and alter their previous 

agency actions. Mactal v. Chao, 286 F.3d 822, 825-26 (5th Cir. 2002). As explained by the 

United States Supreme Court, an agency "faced with new developments or infight of 

reconsideration of the relevant facts and its mandate, may alter its past interpretation and 

30 
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81389.143

overturn past administrative rulings and practice." American Trucking Ass 'ns v, Atchison, 

Topeka, and Santa Fe Railway Co., 387 U.S. 397,416 (1967); see also Motor Vehicle Mfrs. 

Ass'n a/United States, Inc. v, State Farm Mut. Automobile Ins. Co" 463 U.S. 29, 41-42 (1983); 

Dun & Bradstreet Corp. Found. v. United States Postal Service, 946 F.2d 189, 193 (2d Cir. 

1991) ("It is widely accepted that an agency may, on its own initiative, reconsider its interim or 

even its fmal decisions, regardless of whether the applicable statute and agency regulations 

expressly provide for such review."). EPA has asserted that § 303(c)(4)(B) necessity 

determinations are discretionary action not subject to judicial review. See EPA's Motion to 

Dismiss Cross-Claim and EPA's Motion for Judgment on the Pleadings on Counts I, III and IV 

ofFCG's and FWEAUC's First Amended Complaint, Case No. 08-00324, DE 151 and 214 

(N.D, Fla.); and EPA's Motion to Dismiss, Case No. 09-00428, DE 13 (N.D. Fla. Dec, 22,2009). 

Accepting EPA's assertion, the Agency has broad discretion to withdraw that same action. Even 

if EPA's withdrawal action is reviewable, the reasons for the change in agency action need be no 

better or worse than the justifications for the original agency course. F C. C. v. Fox Television 

Station, Inc, 129 S. Ct. 1800, 1810-11 (2009). 

EPA is not irrevocably bound by the previous administration's January 2009 necessity 

determination. See National Cable & Telecommunications Ass'n v. Brand X Internet Services, 

545 U.S, 967, 981 (2005) (Reflecting that a change in administration can prompt revaluation of 

the previous administration's actions). To the contrary, withdrawal of the necessity 

determination is warranted based solely on the dcmonstrated strength of Florida's nutrient 

reduction program, However, the change in EPA's administration, the recent issuance of the 

EPA memo, and FDEP's commitment to expeditiously promulgate nutrient criteria are additional 

changed circumstances that warrant rescinding of EPA's necessity determination. Withdrawal 

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81389.144

will also enable FDEP to proceed with its proposed rule adoption schedule without the added 

complication of overlapping federal rulemaking authority. 

Conclusion 

Florida's comprehensive nutrient reduction program is among the upper echelon of 

programs in the nation. FDEP is also committed to further its comprehensive program by 

pursuing nutrient criteria under state law. For these reasons and the other grounds articulated in 

this Petition, FDEP requests that EPA withdraw its January 2009 necessity determination and 

take the steps necessary to relieve the Agency from the obligation to propose, promulgate, or 

implement numeric nutrient criteria in Florida. Granting this request will serve as a clear, 

positive affirmation of EPA's expectation of States consistent with the March 16, 2011, 

memorandum. In order to implement the nutrient criteria schedule contained in this petition, 

FDEP requires a response from EPA on this petition within 30 days of filing. 

RESPECTFULLY SUBMITTED this~ day of April, 2011. 

STATE OF FLORIDA DEPARTMENT 

OF E'l\."VIRONMENTAL PROTECTION 

IktMAtM1tA~ General Counsel 

KEt-INETH B. HAYMAN 

Senior Assistant General Counsel 

3900 Commonwealth Blvd., MS# 35 

Tallahassee, FL 32399-3000 

Telephone: (850) 245-2242 

Facsimile: (850) 245-2297 

Tom.Beason@dcp.state.fl.us 

Kenneth.Hayman@dep.state.fl.us 

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81389.145

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

MAR 1 6 2011 OFFICE OF 

WATER 

MEMORANDUM 

SUBJECT: Working in Partnership with States to Address Phosphorus and Nitrogen 

Pollution through Use of a Framework for State Nutrient Reductions 

FROM: NancyKStoner ~'/ r ~ . TO: 

Acting Assistant Administrator ~ "6 ~ 

Regional Administrators, Regions 1-10 

This memorandum reaffirms EPA's commitment to partnering with states and 

collaborating with stakehulders to make greater progress in accelerating the reduction of nitrogen 

and phosphorus loadings to our nation's waters. The memorandum synthesizes key principles 

that are guiding and that have guided Agency tcchnical assistance and collaboration with states 

and urges the Regions to place new emphasis on working with states to achieve near-term 

reductions in nutrient loadings. 

Over the last SO years, as you know, the amount of nitrogen and phosphorus pollution 

entering our waters has escalated dramatically. The degradation of drinking and enviroumental 

water quality associated with excess levels of nitrogen and phosphorus in our nation's water has 

been studied and documented extensively, including in a recent joint report by a Task Group of 

senior state and EPA water quality and drinking water officials and managers.l As the Task 

Group report outlines, with U.S. population growth, nitrogen and phosphorus pollution from 

urban stormwater runoff, municipal wastewater discharges, air deposition, and agricultural 

livestock activities and row crop runoff is expected to grow as well. Nitrogen and phosphorus 

pollution has the potential to become one bfthe costliest and the most challenging environmental 

problems we face. A few examples of this trend include the following: 

1) SO percent of U.S. streams have medium to high levels of nitrogen and phosphorus. 

2) 78 percent of assessed coastal waters exhibit eutrophication. 

3) Nitrate drinking water violations have doubled in eight years. 

JAn Urgenl Call to Aclion: Report a/the State-EPA Nutriellls innovalions Task Group, August 2009. 

Internet Address (J-tL) • http://www,epa.gov 

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4) A 20 10 USGS report on nutrients in ground and surface water reported that nitrates 

exceeded background concentrations in 64% of shallow monitoring wells in agriculture 

and urban areas, and exceeded EPA's Maximum Contaminant Levels for nitrates in 7% or 

2,388 of sampled domestic wells.2 . 

5) Algal blooms are steadily on the rise; related toxins have potentially serious health and 

ecological effects. 

States, EPA and stakeholders, working in partnership, must make greater progress in 

accelerating the reduction of nitrogen and phosphorus loadings to our nation's waters. While 

EPA has a number of regulatory tools at its disposal. our resources can best be employed by 

catalyzing and supporting action by states that want to protect their waters from nitrogen and 

phosphorus pollution. Where states are willing to step forward, we can most effectively 

encourage progress through on-the-ground technical assistance and dialogue with state officials 

and stakeholders. coupled with cooperative efforts with agencies like USDA with expertise and 

financial resources to spur improvement in best practices by agriculture and other important 

sectors. 

States need room to innovate and respond to local water quality needs, so a one-size-fitsall solution to nitrogen and phosphorus pollution is neither desirable nor necessary. Nonetheless, 

our prior work with states points toward a framework of key elements that state programs should 

incorporate to maximize progress. Thus, the Office of Water is providing the attached 

"Recommended Elements of a State Nutrients Framework" as a tool to guide ongoing 

collaboration between EPA Regions and states in their joint effort to make progress on reducing 

nitrogen and phosphorus pollution. I am asking that each Region use this framework as the 

basis for discussions with interested and willing states. The goal of these discussions should be 

to tailor the framework to particular state circumstances, taking into account existing tools and 

innovative approaches, available resources, and the need to engage all sectors and parties in 

order to achieve effective and sustained progress. 

While the Framework recognizes the need to provide flexibility in key areas, EPA 

believes that certain minimum building blocks are necessary for effective programs to manage 

nitrogen and phosphorus pollution. Of most importance is prioritizing watersheds on a state-wide 

basis, setting load-reduction goals for these watersheds based on available water quality 

information, and then reducing loadings through a combination of strengthened permits for 

point-sources and reduction measures for nonpoint sources and other point sources of stormwater 

not designated for regulation. Our experience in almost 40 years of Clean Water Act 

implementation demonstrates that motivated states, using tools available under federal and state 

law and relying on good science and local expertise, can mobilize local governments and 

stakeholders to achieve significant results. 

It has long been EPA's position that numeric nutrient criteria targeted at different 

categories of water bodies and informed by scientific understanding of the relationship between 

nutrient loadings and water quality impairment are ultimately necessary for effective state 

2 Nutrients in the Nation's Streams and Groundwater: National Findings and Implications, US Geological Survey. 

2010. 

2 
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programs. Our support for numeric standards has been expressed on several occasions, including 

a June 1998 National Strategy for Development of Regional Nutrient Criteria, a November 2001 

national action plan for the development and establishment of numeric nutrient criteria, and a 

May 2007 memo from the Assistant Administrator for Water calling for accelerated progress 

towards the development of numeric nutrient water quality standards. As 'explained in that 

memo, numeric standards will facilitate more effective program implementation and are more 

efficient than site-specific application of narrative water quality standards. We believe that a 

substantial body of scientific data, augmented by state-specific water quality information, can be 

brought to bear to develop such criteria in a technically sound and cost-effective manner. 

EPA's focus for nonpoint runoff of nitrogen and phosphorus pollution is on promoting 

proven land stewardship practices that improve water quality. EPA recognizes that the best 

approaches will entail States, federal agencies, conservation districts, private landowners and 

other stakeholders working collaboratively to develop watershed-scale plans that target the most 

effective practices to the acres that need it most. In addition, our efforts promote innovative 

approaches to accelerate implementation of agricultural practices, including through targeted 

stewardship incentives, certainty agreements for producers that adopt a suite of practices, and 

nutrient credit trading markets. We encourage federal and state agencies to work with NGOs and 

private sector partners to leverage resources and target those resources where they will yield the 

greatest outcomes. We should actively apply approaches that are succeeding in watersheds 

across the country. 

'USDA and State Departments of Agriculture are vital partners in this effort. Ifwe are to 

make real progress, it is imperative that EPA and USDA continue to work together but also 

strengthen and broaden partnerships at both the national and state level. The key elements to 

success in BMP implementation continue to be sound watershed and on-farm conservation 

planning, sound technical assistance, appropriate and targeted financial assistance and effective 

monitoring. Important opportunities for collaboration include EPA monitoring support for 

USDA's Mississippi River Basin Initiative as well as broader efforts to use EPA section 319 

funds (and other funds, as available) in coordination with USDA programs to engage creatively 

in work with communities and watersheds to achieve improvements in water quality. 

Accordingly the attached framework envisions that as states develop numeric nutrient 

criteria and related schedules, they will also develop watershed scale plans for targeting adoption 

of the most effective agricultural practices and other appropriate loading reduction measures in 

areas where they are most needed. The timetable reflected in a State's criteria development 

schedule can be a flexible one provided the state is making meaningful near-term reductions in 

nutrient loadings to state waters while numeric criteria are being developed. 

The attached framework is offered as a planning tool, intended to initiate conversation 

with states, tribes, other partners and stakeholders on how best to proceed to achieve near- and 

long-term reductions in nitrogen and phosphorus pollution in our nation's waters. We hope that 

the framework will encourage development and implementation of effective state strategies for 

managing nitrogen and phosphorus pollution. EPA will support states that follow the framework 

but, at the same time, will retain all its authorities under the Clean Water Act. 

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With your hard work, in partnership with the states, USDA and other partners and 

stakeholders, I am confident we can make meaningful and measurable near-term reductions in 

nitrogen and phosphorus pollution. As part of an ongoing collaborative process, I look forward 

to receiving feedback from each Region, interested states and tribes, and stakeholders. 

Attachinent 

Cc: Directors, State Water Programs 

Directors, Great Water Body Programs 

Directors, Authorized Tribal Water Quality Standards Programs 

Interstate Water Pollution Control Administrators 

4 
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Recommended Elements of a State Framework for Managing Nitrogen and Phosphorus Pollution 

1. Prioritize watersheds on a statewide basis for nitrogen and phosphorus loading reductions 

A. Use best available information to estimate Nitrogen (N) & Phosphorus (P) loadings delivered to 

rivers, streams, lakes, reservoirs, etc. in all major watersheds across the state on a Hydrologic 

Unit Code (HUC) 8 watershed scale or smaller watershed (or a comparable basis.) 

B. Identify major watersheds that individually or collectively account for a substantial portion of 

loads (e.g. 80 percent) delivered from urban andlor agriculture sources to waters in Ii state or 

directly delivered to multi-jurisdictional waters. 

C. Within each major watershed that has been identified as accounting for the substantial portion of 

the load, identify targeted/priority sub-watersheds on a HUC 12 or similar scale to implement 

targeted N & P load reduction activities. Prioritization of sub-watersheds should reflect an 

evaluation of receiving water problems, public and private drinking water supply impacts. N & P 

loadings, opportunity to address high-risk N & P problems, or other related factors. 

2. Set watershed load reduction goals based upon best available information 

Establish numeric goals for loading reductions for each targeted/priority sub-watershed (HUC 12 or 

similar scale) that win collectively reduce the majority ofN & P loads from the Hue 8 major 

watersheds. Goals should be based upon best available physical, chemical, biological, and 

treatment/control infonnation from local, state, and federal monitoring, guidance, and assistance 

activities including implementation of agriculture conservation practices, source water assessment 

evaluations, watershed planning activities, water quality assessment activities, Total Maximum 

Daily Loads (fMDL) implementation, and National Pollutant Discharge Elimination System 

(NPDES) pennitting reviews. 

3. Ensure effectiveness of point source permits in targeted/priority sub-watersheds for: 

A. Municipal and Industrial Wastewater Treatment Facilities that contribute to significant 

measurable N & P loadings; 

B. All Concentrated Animal Feeding Operations (CAFOs) that discharge or propose to discharge; 

andlor 

C. Urban Stonnwater sources that discharge into N & P- impaired waters or are otherwise identified 

as a significant source. 

4. Agricultural Areas 

lu partnership with Federal and State Agricultural partners, NGOs, private sector partners. 

landowners, and other stakeholders, develop watershed-scale plans that target the most effective 

practices where they are needed most. Look for opportunities to include innovative approaches, 

such as targeted stewardship incentives, certainty agreements, and N & P markets, to accelerate 

adoption of agricultural conservation practices. Also, incorporate lessons learned from other 

successful agricnltural initiatives in other parts of the country. 
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5. Storm water and Septic systems 

Identify how the State will use state, county and local government tools to assure N and P reductions 

from developed communities not covered by tbe Municipal Separate Storm Sewer Systems (MS4) 

program, including an evaluation of minimum criteria for septic systems, use oflow impact 

development! green infrastructure approaches, andlor limits on phosphorus in detergents and lawn 

fertilizers. 

6. Accountability and verification measures 

A. Identify where and how each of the tools identified in sections 3, 4 and Swill be used within 

targeted/priority sub-watersheds to assure reductions will occur. 

B. Verify that load reduction practices are in place. 

C. To assess/demonstrate progress in implementing and maintaining management activities and 

achieving load reductions goals: establish a baseline of existing N & P loads and current Best 

Management Practices (BMP) implementation in each targeted/priority sub-watershed, conduct 

ongoing sampling and analysis to provide regular seasonal measurements ofN & P loads leaving 

the watershed, and provide a description and confirmation of the degree of additional BMP 

implementation and maintenance activities. 

7. Annual public reporting of Implementation activities and biannual reporting of load 

reductions and environmental impacts associated with each management activity in targeted 

watersheds 

A. Establish a process to annually report for each targeted/priority sub-watershed: status, 

challenges, and progress toward meeting N 8c P loading reduction goals, as well as specific 

activities the state has implemented to reduce N & P loads such as: reducing identified practices 

that result in excess N & P runoff and documenting and verifYing implementation and 

maintenance of source-specific best management practices. 

B. Share annual report pubJically on the state's website with request for comments and feedback for 

an adaptive management approach to improve implementation, strengthen collaborative local, 

county, state, and federal partnerships, and identifY additional opportunities for accelerating costeffective N & P load reductions. 

8. Develop work plan and schedule for numeric criteria development 

Establish a work plan and phased schedule for N and P criteria development for classes of waters 

(e.g., lakes and reservoirs. or rivers and streams). The work plan and schedule should contain 

interim milestones including but not limited to data collection, data analysis, criteria proposal, and 

criteria adoption consistent with the Clean Water Act. A reasonable timetable would include 

developing numeric Nand P criteria for at least one class of waters within the state (e.g., lakes and 

reservoirs, or rivers and streams) within 3-5 years (reflecting water quality and permit review 

cycles), and completion of criteria development in accordance with a robust, state-specific workpJan 

and phased schedule. 

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON. D.C. 20460 

UUN.132011 

Herschel T. Vinyard Jr., Secretary 

Florida Department of Environmental Protection 

Marjory Stoneman Douglas Building 

3900 Commonwealth Boulevard 

Tallahassee, FL 32399-3000 

Dear Secretary Vinyard: 

OFFICE OF 

WATER 

Thank you for your letter and petition of April 22, 2011, to Administrator Jackson requesting 

that the U.S. Environmental Protection Agency (EPA) (I) withdraw its January 2009 

determination that numeric nutrient criteria are necessary in Florida, (2) repeal Federal 

rulemaking completed in November 2010 to establish such criteria for inland lakes and streams, 

and (3) refrain from proposing or promUlgating any further numeric nutrient criteria. This letter 

constitutes EPA's initial response to FDEP's petition; we are not issuing a final response to the 

petition at this time. 

Your petition outlines plans and a rulemaking schedule by which the Florida Department of 

Environmental Protection (FDEP) will adopt nutrient criteria. The projected rulemaking schedule 

calls for a Notice of Rule Development in May 20 II, a rule development and public outreach 

process through the summer and early fall of20ll, and adoption ofa final rule in January 2012, 

to be followed by a legislative ratification process under Florida law. 

EPA supports FDEP's continued focus on-reducing nitrogen and phosphorus pollution and 

commends the State's commitment to recommence its rulemaking efforts for both inland and 

estuarine waters. EPA agrees with FDEP that the Clean Water Act (CWA) envisions that states 

have the primary role in establishing and implementing water quality standards for their waters. 

The State was authorized by the CW A to adopt numeric nutrient water quality criteria before 

EPA's January 2009 determination, and has remained so authorized. FDEP affirmed its support 

for the promulgation of numeric nutrient criteria for the State in its initial commitment to 

develop numeric nutrient criteria in 2002, and reaffirmed this position in a subsequent 

cpmmitment to develop numeric nutrient criteria in 2007. In the determination, EPA affirmed its 

preference for State-adopted numeric nutrient criteria over EPA promulgation. FDEP also 

continues to have authority for the implementation of the range of activities and tools highlighted 

in the petition to assure more effective nutrient loadings reductions. 

EPA looks forward to working with FDEP as it proceeds with its rulemaking effort. If FDEP 

adopts and EPA approves protective nutrient criteria that are sufficient to address the concerns 

underlying our determination and rule, and if such criteria enter into legal force and effect in 

Florida, EPA will promptly initiate rulemaking to repeal the corresponding federally 

IntemelAddress (URL). hup:llwww.epa.gov 

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promulgated numeric nutrient criteria. If FDEP adopts il!1d EPA approves criteria for any waters 

for which EPA has not yet proposed or promulgated federal criteria, and if these criteria are 

legally effective under Florida law, EPA will not propose or promulgate (as appropriate) 

corresponding federal criteria. 

As you know, we included a 15-month extension of the effective date for the criteria in our 

November 2010 rule to provide time for Florida to prepare for implementation and to allow State 

officials to consider further actions that would achieve the purposes of the rule. If the March 

2012 effective date is approaching and Florida has adopted a protective and approvable final rule 

but further steps are needed for that rule to take effect, such as ratification by the Legislature, we 

will propose, through rulemaking, an additional extension of the effective date to enable Florida 

to complete such steps. In addition, if Florida continues to move ahead on schedule toward 

adoption of approvable standards for coastal and estuarine waters, EPA will seek an extension to 

the deadlines in the consent decree for EPA's proposed rule for coastal and estuarine waters, now 

scheduled for November of this year, so that Florida can continue to focus on completing its own 

rulemaking. Again, EPA looks forward to working with FDEP during the State's rulemaking 

process, and will make available our policy and technical staff to provide assistance on a priority 

basis. 

Although we are not taking action on your petition at this time and will continue to consider it as 

we move forward, we continue to believe that numeric nutrient criteria are necessary to meet the 

requirements of the CW A in the State of Florida, whether those criteria are promulgated by 

FDEP or by EPA. The extensive data and technical analysis supporting the need for numeric 

nutrient criteria are included in the January 2009 determination, the preambles to our proposed 

and final rules, and the administrative record for the final rule. As a basis for reconsidering our 

January 2009 determination, your petition referenced EPA's March 16,2011, memorandum 

entitled "Working in Partnership with States to Address Phosphorus and Nitrogen Pollution 

through Use of a Framework for State Nutrient Reductions" (Framework Memo). While an 

important statement of Agency policy, the Framework Memo does not constitute a set of 

decision-making criteria to be applied by the Agency when evaluating whether to determine, 

pursuant to CWA section 303(c) (4) (B), that new or revised water quality standards, such as 

numeric nutrient criteria, are necessary in a particular state in order to meet the requirements of 

theCWA. 

Thank you again for your letter and petition. For the reasons discussed above, EPA is not 

granting or denying your petition at this time. Rather, EPA is providing its initial response and 

will hold your petition in abeyance pending the results of FDEP's intended rulemaking at which 
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time EPA will provide a final response to your petition. If you would like to discuss your 

concerns further, please feel free to contact me at (202) 564-5700 or Bob Sussman, the 

Administrator's Senior Policy Counsel, at (202) 564-7397. 

cc: Gwendolyn Keyes Fleming 

Regional Administrator, Region 4 

Nancy K. Stoner 

Acting Assistant Administrator