ATM VP Dr. Steven Peene Weighs in on Controversial New EPA Numeric Nutrient Criteria

 

The NNC saga has thus far been played out primarily in the news media but is likely to shift into the courts soon since litigation starting flying less than a month after the rule was issued.  One of the first lawsuits was filed by the Office of the Attorney General of Florida on behalf of the state and Charles H. Bronson, Florida's commissioner of agriculture. The litigation was announced and supported by both the outgoing and incoming attorney generals and agricultural commissioners. Their lawsuit alleges that by creating the NNC, the U.S. Environmental Protection Agency is violating the intent of the Clean Water Act that allows individual states to be responsible for the control of water quality with federal oversight. More specifically, it states that the control of nutrient loading from predominately non-point sources is traditionally part of the states' domain. As with most criticism of the NNC, the state litigation also questions the science behind the numbers. "The EPA has continued to rely on methodology that is not scientifically sound and not site-specific for Florida's waters," said a statement provided by an information specialist from the Office of the Attorney General. 

 

One of the main issues with EPA's science is the methodology for flowing waters. Using a reference stream approach makes it extremely difficult to find a relationship between nutrient concentration and biological health due to the amount of variables.  As a result, DEP came up with a range of numbers for nitrogen and phosphorus and combined that with a biological assessment.  This leads some experts to decry the approach as one-size-fits-all, with no real expectation of environmental benefit if it is met.In its defense, the EPA says the numbers were based on five different eco-regions in terms of factors such as hydrologic conditions and geology. They contend that this regional approach and the flexibility aspects means the NNC is not a one-size-fits-all approach and that their science is sound.

 

Although there are regional differences, the rule does not reflect individual diversity. "Each waterbody tends to respond to nutrient loading differently based on different factors," said Steven Peene, vice president of Applied Technology and Management Inc. Peene said the state's narrative criteria better accommodated these differences, but that EPA felt the effort wasn't moving fast enough. 

 

Peene's client base consists largely of municipalities and counties, which have a vested interest in maintaining the water quality in their areas. The fiscal impact on already stressed budgets is a huge concern for them, especially if they don't feel they will get maximum return on their investments, Peene said. "Part of their nervousness stems from the uncertainty of how the standards will be implemented, which could have a huge impact on the range of costs. EPA is not necessarily answering all these questions saying that will be for DEP to decide," he said. Another uncertainty involves what happens 15 months from the NNC rule finalization, when it is supposed to be put into effect. In order to be implemented, it has to be passed by the state Legislature. Peene said he doesn't envision that happening. "And what are we going to do in this limbo period," he asked. "Whose criteria are we using?" Regardless of all the lawsuits, Peene said that he feels that EPA has set itself on a course of developing NNC for the entire nation eventually. "There are ways to make it better, if we can come up with standards to reflect the uncertainties." Peene attended a conference last month in Washington on the next set of NNC that targets coastal waters or estuaries. Those standards are due out in August, 2012. The meeting revolved around a set of experts from universities providing feedback to the agency on a document detailing how the next set of NNC would be established. Some of the recommendations that will be put into a report were encouraging such as those related to downstream protective values, he said.

 

Whatever the end result, the opposition has been vocal and quick to respond to the first set of criteria. Peene believes that this NNC has become such a major issue because of its financial ramifications combined with the fear of fixing a waterbody that doesn't need fixing and the potential of losing  authority (local or state) when dealing with water quality issues. The galvanization of the disparate groups may also be partly a result of the way EPA handled this sensitive issue.  Previously, the agency held Florida up as a poster child on how to do things right, he said. "Then they said our water was so foul that they would have to come in and save the day after they had approved the state plan and participated all the way.”

 

Excerpt from:

EPA NNC Standards spark lawsuits, harsh words from many quarters, by Melora Grattan, Florida Specifier, January 2011