Okaloosa County BOCC — November 4, 2012 — EPA NNC TALKING POINTS 12-10-2012

US Environmental Protection Agency Numeric Nutrient Criteria TALKING POINTS – December 3, 2012 Thoughts from Richard Griswold, Director, Destin Water Users & President, NW Florida Utility Managers Council:  Attorneys from all over Florida are studying the EPA documents now.  The media seems to be reporting all this based on their individual bias so believing anything from the media at this point is difficult.  It appears that EPA has approved the water quality standards that FDEP has formulated and that have been adopted as law by our legislature.  Since standards for the panhandle estuaries have been approved but not yet adopted by our legislature, then EPA will develop those standards in their estuary rule.  At this moment, no standards for NNC are in effect for panhandle estuaries and probably will not be until summer 2013 at the earliest.  The federal judge’s ruling on the freshwater rule was appealed by the environmental activist groups and that appeal is still alive. EPA has not yet responded to the appeal and only has a few days in which to do so.  Speculation on behalf of FDEP is that EPA will eventually accept all standards proposed by them and adopted by the Florida State Legislature.  The entire issue at this time is still confusing for all. It may take some time for all to be fully understood. Summary Statement from attorney Ken Oertel, representing the panhandle utilities (December, 2012):  After business hours on Friday, November 30, 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, (2) 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 the 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 now existing narrative standard, they are far more reasonable, realistic and workable than what EPA proposed and which we successfully challenged.  These State rules are the same which we supported when challenged by the Earthjustice, which attempted to invalidate them so the EPA rules would remain on the books.  We prevailed in having the Administrative Law Judge determine the FDEP rules were valid. You should expect that EPA will, in the future, withdraw the rules it adopted for lakes, rivers and streams, etc. and will probably wait for FDEP to adopt additional standards for estuaries and South Florida’s freshwater areas. I think it is a safe bet to say that eventually the State rules will all be accepted by EPA and that it will rescind the rulemaking efforts we have objected to so vigorously.  With this action, EPA may file a notice with the Court of Appeal to have our appeal of Judge Hinkle’s decision dismissed as being moot. If EPA can persuade the Court of Appeal that the rules in question will not go into effect, the Court may be persuaded to dismiss our appeal. I would be disappointed if this occurs, as our appeal raises important legal issues regarding EPA’s powers. However, it will be unusual for the Court to entertain an appeal on rules which will not go into effect.  Last week (December 2012), EPA met with the Department of Environmental Protection officials to discuss the present status of the EPA rules. At the meeting, EPA outlined actions it took in regard to the Court imposed deadline of November 30, 2012. It specifically approved the DEP State rule; amended its necessity determination and indicated that it re-proposed the stream provisions invalidated by Judge Hinkle but indicated it may not go forward with those rules should it reach an agreement with the State. It proposed additional rulemaking for coastal and estuary waters, but indicated in recognition that DEP is on track for those rules; it may approve the State rules and not go forward with its own rules.  Additionally, the U.S. Court of Appeals for the 11th Circuit, extended the time for EPA to respond to briefs. The Court set a deadline of March 7, 2013 for EPA to respond. The way the Order is worded, it’s not clear whether EPA has until March 7 to answer all the briefs or just the Water Management District briefs; we will have to get clarification on that.