Okaloosa County BOCC — November 4, 2012 — Action Item Printout

BOARD OF COUNTY COMMISSIONERS AGENDA REQUEST DATE: December 18, 2012 TO: Honorable Chairman and Members of the Board FROM: Jeff Littrell SUBJECT: EPA Numeric Nutrient Criteria (NNC) Status Update DEPARTMENT: Water and Sewer BCC DISTRICT: All STATEMENT OF ISSUE: OCWS staff would like to give an update on the status of the EPA's Numeric Nutrient Criteria (NNC). BACKGROUND: The United States Environment Protection Agency (EPA) was the defendant in a lawsuit from environmental advocacy groups, including Earth Justice. The legal action alleged that the EPA had failed to enforce the Clean Water Act in Florida and that new, more strict limits on nutrients should be created and enforced in order to protect the surface waters of the state. The judge in Federal court ruled in favor of the plaintiffs in the lawsuit and directed EPA to promulgate new limits on nutrients in surface waters in the State of Florida. The nutrients in question are Nitrogen and Phosphorous. The proposed NNC limits only applied to the State of Florida and were not mandatory in any other states. The NNC limits in the proposed EPA rules were not based on sound scientific principles and were so strict that it would have been nearly impossible for any existing treatment facilities in the State of Florida to comply without extremely expensive upgrading of treatment processes. If the proposed rules had been adopted, the financial consequences for wastewater utilities and their customers would have been catastrophic. The EPA proposed a set of draft NNC rules for Florida in 2009. The proposed rules raised a storm of opposition among public and private entities which may be subject to them. The EPA conducted a series of public meetings in Florida in 2010 and solicited written comments from affected parties. OCWS staff, along with consultants and Commissioner John Jannazo attended one of the public meetings in Tallahassee. OCWS staff and consultants have submitted written comments to EPA on three different occasions. Members of the NW Florida Utility Managers Council, as well as the Florida Section of the American Waterworks Association (FSAWWA) and Florida Water Environment Association (FWEA) initiated legal action against the EPA. The Florida Attorney General and the Florida Secretary of Agriculture also initiated legal action against the EPA. On December 14, 2010, the Board of County Commissioners approved the Joint Agreement for Legal Representation with the law firm of Oertel, Fernandez, Cole & Bryant, P.A. The panhandle utilities involved in the Joint Agreement were Destin Water Users, South Walton Utility, Okaloosa County Water & Sewer System, Emerald Coast Utility Authority and the City of Panama City. The purpose of the agreement was to initiate legal action to challenge the validity of the proposed EPA NNC rules regarding Water Quality Standards for the State of Florida's lakes and flowing waters as they affected wastewater utilities. While the matter was being litigated, FDEP proposed their own set of NNC rules and those rules were adopted by the Florida legislature. On November 30, 2012, EPA issued a statement that it had determined to accept the FDEP Numeric Nutrient rules. EPA's statement also indicated it was, "...prepared to withdraw or not move forward with its Federal Rules for any waters that become covered by State law ..." Because the FDEP rules do not yet cover all waters, EPA proposed two new Federal nutrient rules; one for numeric limits allowed in Florida's estuaries and coastal waters and one for streams in South Florida, which have not been covered by the FDEP rules as of this time. The net result of the above is that EPA rules for the vast majority of Florida's inland waters (except for South Florida) will not be regulated by the EPA rules, but will be covered by the State rules. While these State rules will be more rigorous than the new existing narrative standard, they are far more reasonable, realistic and workable than what EPA proposed and which we successfully challenged. OVERVIEW: It appears that EPA has approved the water quality standards that FDEP has formulated and that have been adopted as law by our legislature. At this moment, no standards for NNC are in effect for panhandle estuaries and probably will not be until summer 2013 at the earliest. There is speculation that EPA will eventually accept all standards proposed by FDEP and adopted by the Florida State Legislature. We must remain vigilant, as we expect the environmental advocacy groups to continue to litigate these issues and force the EPA's hand to stop cooperating with FDEP and go back closer to the original, unscientific NNC rules that were proposed in 2009. There is a document attached with talking points from Richard Griswold, who is the Director of Destin Water Users and also serves as the President of the NW Florida Utility Managers Council. The document also presents comments from Ken Oertel, the lead attorney hired by the panhandle utilities to challenge the EPA rules in federal court. RECOMMENDED BY: APPROVED BY: James D. Curry, County Administrator