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New EPA Rule Draws Protests

Panama City News Herald, September 25, 2010

PANAMA CITY — Imagine every creek, stream and river in the state flowing as free of farm runoff as if man had never existed.

Imagine extending that same pristine level to roadside drainage ditches and discharge from wastewater treatment plants.

And then imagine being the company or local government tasked with erasing man’s footprint from those waterways.

The U.S. Environmental Protection Agency (EPA) will implement its new criteria for acceptable nutrient levels in freshwater bodies, which likely will include many stormwater runoff systems, on Oct. 15. Lawmakers across the Panhandle, where standards will be most stringent, and officials from the state’s Department of Environmental Protection (DEP) are worried those rules not only will be impossible to meet, but also that they are based on flawed interpretations of data.

The DEP has been collecting information on safe levels of nutrients, such as phosphorus and nitrogen, for at least a decade, said Jerry Brooks, director of the department’s environmental assessment and restoration division.

The EPA borrowed that data to create a new rule that assigns acceptable numeric nutrient levels to waterways. Existing regulations operate with a narrative standard that simply states there cannot be an increase in nutrients that will cause an imbalance of flora and fauna within the water body, Brooks said.

The DEP has long thought there should be a numerical interpretation of that standard but couldn’t figure out a way to do it.

“It’s sort of like saying we think a cure for cancer is necessary,” Brooks said. “What makes this so challenging is that the actual biological response to nutrient enrichment is governed by a number of other environmental factors that vary from one stream to the next.”

In other words, all streams are different and will respond differently to the same amounts of phosphorus and nitrogen.

The best workaround the EPA could come up with — and Brooks concedes the DEP didn’t have a better suggestion — was to play it safe by finding as-close-to-natural-as-possible waterways and setting the bar at that level.

“There’s just no question in my mind, using this reference approach, you will be managing some waters at levels below what their capacity is, meaning you could increase nutrient levels without observing a negative response,” Brooks said. “There is a good deal of uncertainty as to whether or not the number they (EPA) are adopting is really necessary to ensure protection of that water body.”

That uncertainty, along with nightmares about the cost and feasibility of purifying wastewater and stormwater systems to the EPA’s standards, have local governments crying foul.

“It’s almost impossible to even consider doing it,” Bay County Assistant Manager Dan Shaw said. “The thought all along, given that it’s impossible, is that the rule would fall under its own weight — but it hasn’t.”

It would cost more than $60 million to upgrade just the county’s wastewater facilities, he said, which would result in more than tripling residents’ utility rates. Since the county doesn’t know how many of its stormwater systems might be subject to the new rule, Shaw couldn’t estimate how much stormwater upgrades might cost but, he said, it would be “way, way more than $60 million.”

And, because the Panhandle holds the most naturally low-nutrient waters in the state, the area will be held to the most stringent criteria, Brooks said.

Opposed

County commissioners went on record last week opposing the rule. State legislators, too, have tried to postpone a federal mandate; local senators and state representatives have said a recently signed bill that governs, among other things, septic tank inspections was designed, at least in part, to keep the EPA at bay.

“During the final week of the 2010 Legislative Session, the Florida Senate and House of Representatives passed an omnibus water resources bill, Senate Bill 550, intended to protect Florida’s vital water resources,” Sen. Durell Peaden and Rep. Greg Evers wrote in a letter to the governor. “The bill … was heralded as a way to stop the Environmental Protection Agency from imposing sweeping environmental regulations, including regulations that could prohibit future development utilizing septic systems.”

Rep. Jimmy Patronis, R-Panama City, also said he had hoped a bill he sponsored in the spring, which called for 10-year inspections of septic tanks, would demonstrate Florida’s proactive attitude about maintaining healthy waterways. Patronis pulled the proposal after it received negative feedback from his constituents.

Although municipalities will face “a very significant financial and technological investment,” the DEP director said he thinks they will have time to get their waterways up to par.

“It’s not going to be a process where, by Oct. 16, every wastewater facility in the state is going to be cited,” Brooks said. “What will happen is, all those facilities are operating under a permit, and those permits expire every five years. When they come in for permit renewal, there will now be a new standard they now have to comply with.”

Brooks expects facilities to be given five years, or the life of the permit, to come into compliance with the new regulations, but county officials are skeptical.

“There’s nothing anywhere in the world that says they’re going to wait until permit renewal times,” Shaw said. “It’s inferred, but there’s nothing in writing.”

One of the county’s wasterwater permits is up in about a year, he added, and the other is good for about four more years.

Officials with the EPA have been “unresponsive” to the county’s attempts to contact them, Shaw said. Representatives did not return numerous calls from the News Herald.