From The Editor | August 17, 2016

Fighting For Florida's Surface-Water Standards

Peter Chawaga - editor

By Peter Chawaga

Late last month, a panel of regulators appointed by Governor Rick Scott narrowly approved the first changes to Florida’s surface-water quality standards since 1992. Marked with adamant support on one side and passionate protest on the other, the sweeping amendment has left questions about how clean Florida’s water will be.

According to The Florida Times-Union, the changes — approved by the Environmental Regulation Commission (ERC) in a three to two vote — will increase the total number of regulated chemicals allowed in the state’s surface waters while also setting stricter limits on select chemicals like cyanide, beryllium, and benzene.

“The standards set stringent and protective criteria for 39 chemicals that currently have no limits,” Tom Frick, the director of the state Department of Environmental Protection’s (DEP) Division of Developmental Assessments, told Water Online. “In addition, this rule updates 43 chemicals whose standards are more than 20 years old.”

Frick said that the update has been years in the making, per the U.S. EPA Clean Water Act requirement for periodical review of quality standards. A team of DEP and EPA scientists have been working during that time to develop state-specific criteria that take into account the unique water habits of Floridians.

“Both the new and updated criteria have been calculated using the most advanced science, including recently issued guidance from the EPA,” Frick said. “Each and every criterion protects Floridians, according to both the EPA and the World Health Organization.”

According to Frick, the criteria were “thoroughly vetted” by a public and peer review panel. He said that since 2012, DEP has held 11 public workshops from West Palm Beach to Tallahassee to finalize the rulemaking. A panel including representatives from the EPA, Florida’s Department of Health, the California Environmental Protection Agency, and four universities, approved DEP’s probabilistic approach to calculating the criteria, he said.

And yet environmental groups, not to mention the two dissenting members of the ERC, have taken umbrage at the approval.

Save the Manatee Club (SMC) and other environmental groups agree that this rulemaking has been long overdue, but contend that this rule is scientifically flawed and is not adequately protective of human health or the environmental,” said Ann Harvey Holbrook, staff attorney for SMC, a non-profit conservation group based in Maitland, FL.

SMC’s concerns stem from the increases to allowable limits for pollutants. Holbrook contended that the proposed limits for newly-regulated contaminants and the revisions to existing limits are “in most cases higher” than those recommended by the EPA (while Frick said, “The vast majority of DEP’s criteria fall safely within EPA’s recommended range to protect human health.”).

According to Holbrook, SMC would like to see DEP required to develop limits for toxic contaminants that are at least as protective as recommended EPA values, apply the precautionary principle1 in determining acceptable risk for Floridians who regularly consume local seafood, and ensure that state standards are sufficiently protective of surface waters as a wildlife habitat.

“Procedurally, SMC and other advocacy groups see this rulemaking as part of a larger trend within the current state administration to institutionalize weak pollution controls and to subsidize environmental contamination at the expense of public health,” said Holbrook.

To support that claim, she pointed out that DEP held only one public hearing before issuing its revised rule and that the ERC held its meeting on the same day as a meeting to discuss discharges from South Florida’s Lake Okeechobee, forcing environmental groups to choose between the two. Furthermore, while the commission is supposed to have seven members, the seat for an environmental representative has gone unfilled for over a year, she said.

“Based on the chemicals for which standards are being relaxed, SMC and others are concerned that the rule is intended to facilitate permitting for hydraulic fracturing operations that have been the recent focus of heated controversy in Florida,” Holbrook said.

For his part, Frick claimed that the revised rules will give the DEP new authority to regulate industrial facilities and limit chemical discharge.

“There are currently no standards in place to allow DEP to directly regulate 39 of the chemicals for which we are proposing standards,” he said. “This is exactly why it is so important for these standards to be adopted. The new standards will provide the basis for permit limits for these chemicals in surface water discharges from permitted facilities.”

It’s difficult to know if the proposed changes would lead to cleaner waters or if they would accommodate dangerous industrial discharge. The answer won’t become entirely clear until the rules are finalized and implemented. After receiving approval from the ERC, the criteria went to the EPA for final review and approval, which is likely, considering how closely DEP worked with the federal agency to create them.

At this point, the waters surrounding Florida’s surface-water rules remain murky.

1 The precautionary principle puts the burden of proof that an action or policy will not be harmful to the environment on those taking the action, in lieu of scientific consensus that it will not be harmful.