Press Release: Getting Its Feet Wet, EPA Needs to Take the Plunge and End Numeric Nutrient Nonsense
EPA’s Further Delay Announcement a Positive Step, But the Agency and the Unscientific Regulations Will Remain in Oversight Crosshairs
Jun 14, 2011 -
Washington, DC – Congressman Dennis A. Ross (R-FL), Chairman of the Federal Workforce, Postal Service & Labor Policy Oversight Subcommittee, today released the following statement on the EPA’s delay of Numeric Nutrient implementation, pending Florida Department of Environmental Protection action.
In EPA’s letter (attached) to FDEP Secretary, Herschel T. Vinyard Jr., EPA stated, “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 promulgated numeric nutrient criteria. If FDEP adopts apd [sic] 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.”
“Yesterday’s announcement by EPA is a step in the right direction. I have requested, and will continue to demand, a face to face meeting with Administrator Jackson on this issue. In addition, the Oversight Committee, of which I chair a subcommittee, will continue our investigation into the proposed rule, its economic impact and the radical groups behind it. These regulations are patently unscientific and contrary to the EPAs own Science Advisory Council findings. In addition, Florida consumers and employers cannot afford increased energy, food, and input prices. Water is Florida’s lifeblood and no one knows how to take care of that lifeblood better than Floridians. We welcome anyone from EPA to Florida – as a tourist.”
EPA Letter to Secretary Vinyard
Herschel T. Vinyard Jr.,
Secretary Florida Department of Environmental Protection
Marjory Stoneman Douglas Building
3900 Commonwealth Boulevard
Tallahassee, FL 32399-3000
Dear Secretary Vinyard:
Thank you for your letter and petition of April 22, 2011, to Administrator Jackson requesting that the U.S. Environmental Protection Agency (EPA) (1) 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 2011, a rule development and public outreach process through the summer and early fall of2011, 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 rulemaking efforts for both inland and estuarine waters. EPA agrees with FDEP that the Clean Water Act (CW A) 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 commitment 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 promulgated numeric nutrient criteria. If FDEP adopts and 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 CWA 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 CW A 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 the CWA.
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 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.
Nancy K. Stoner
Acting Assistant Administrator
cc: Gwendolyn Keyes Fleming Regional Administrator, Region 4