The story of the EPA’s involvement in cleaning up and maintaining Florida’s waters is a tangled mess. And that mess may be coming to your state next.

Early in 2009, the EPA informed the state of Florida that it had failed to provide adequate protection of its water quality and must adopt “numeric nutrient criteria (http://water.epa.gov/scitech/swguidance/standards/criteria/nutrients/strategy/status.cfm).”

With that announcement, the EPA put the state — which had actually been developing such criteria for years — on notice that, under the federal Clean Water Act (CWA http://en.wikipedia.org/wiki/Clean_Water_Act), it was prepared to institute its own regulations intended to reduce pollution in Florida’s flowing waters.

Late in 2010, the EPA did adopt stringent nutrient criteria for Florida’s inland waters (now set to be implemented in early 2012). However, months before that, the agency entered into a consent agreement with environmentalists who had sued it in 2008.

If, as many charge, the environmentalist suit was brought with the aim of goosing the EPA into CWA-related action in Florida, mission accomplished.

However, with the consent agreement acting as a thumb in their collective eye, opponents of the EPA’s move said the agency’s chief purpose for the new regulations may not have been to clean up Florida’s waters so much as to settle the suit. This charge — that the EPA is willing to set policy and regulations in order to more easily dispense with lawsuits brought against it — has been repeated in recent congressional hearings.

An example is a March 10 exchange between Minnesota Rep. Collin Peterson and EPA Administrator Lisa Jackson during a House Agriculture Committee hearing.

Peterson: “I’m interested in how the EPA handles legal action brought against it. What factors do you use to determine whether, or not, to settle with a litigant or petitioner?”

Jackson: “EPA makes a case-by-case judgment and we must look at several factors — the requirements of the law, most importantly. Legal risk is always a big factor in determining whether to continue litigation or to settle a case.”

Jackson went on to testify that the EPA is “frequently sued by environmental and other organizations under statutes claiming that EPA has failed to take action in a timely manner, or that we’ve been unreasonably delayed. In many cases, the remedy demanded under that lawsuit is to undertake rule-making…”

An irritated Peterson interrupted, “What about if it isn’t litigated and you just settle? Then, all of the sudden, you’re doing settlement that requires you to do rule-making? And (Congress) didn’t authorize it or probably agree with it.”

Jackson: “We look at what the law requires us to do. One of the questions is whether (the EPA) would lose if we went to court and whether we’d be best served by settling early and agree on a schedule for rule-making. Oftentimes, that rule-making is overdue but (is something) we can live with rather than have the courts impose one on us. And we’d still have to pay court fees that would be much higher (if EPA) is on the losing end of a lawsuit.”

(For more, see http://deltafarmpress.com/government/epa-slammed-house-hearing)

Regardless, aggrieved Floridians, who have mounted their own legal challenge against the EPA, have been warning other states of the EPA’s overreach. And considering the potential financial consequences of implementing the EPA plan, the warning is justified.

During an August 12 hearing of the U. S. House Committee on Energy and Commerce Subcommittee on Oversight and Investigations, Richard Budell testified that the EPA plan would far exceed the agency’s projected implementation costs.

Budell, Director of the Office of Agricultural Water Policy with the Florida Department of Agriculture and Consumer Services (FDACS), said the “EPA estimated the range of total costs to implement the Florida nutrient criteria at between $135 million and $236 million annually. The (FDACS), working in cooperation with The University of Florida Agricultural Resource Economics Department, estimated the implementation costs just for agricultural land uses at between $900 million and $1.6 billion annually and could result in the loss of over 14,000 jobs.”

Further, said Budell, “from an agricultural perspective, I can tell you without question that virtually no sector of Florida agriculture can comply with the final EPA nutrient criteria without the implementation of costly edge-of-farm water detention and treatment.

Construction of these facilities takes land out of production and requires ongoing operation and maintenance. None of these costs can be passed on by the producer. Few growers can afford to implement this kind of practice without the support of farm bill or state-derived cost-share program payments.”

(See Budell’s full statement at http://www.freshfromflorida.com/press/pdf/USHOUSE_Oversight_and_Investigations_Subcommittee_Budell_August_9_2011_WRITTEN_%20FINAL.PDF)

In mid-August, Farm Press spoke with Mary Hartney, president of the Florida Fertilizer and Agrichemical Association, about the EPA’s regulatory approach, how Florida agriculture has responded and why the fight-back against the EPA has been so strong. Among her comments:

On where things currently stand…

“First of all, we all support the need for clean water. But we need to prioritize and do things in the most cost-effective, scientifically-valid, technologically-feasible and economically-doable way we can.

“The Florida state scientists at the Department of Environmental Protection had been working on this for a decade (prior to the EPA coming in.) The FDEP put their rule on hold because of what EPA did – they were in the midst of completing the rule-making process.

“Essentially, the FDEP was going to do the same thing the EPA hopes to achieve with its actions. But Florida would be able to finesse the approach as opposed to EPA’s approach. Because of the criteria they established, EPA’s rules would result in the clean-up of waters that don’t need cleaning.

“In other words, because the EPA doesn’t link their numbers to an assessment of the biological health of a water body, in some cases Florida would have to clean up waters to a degree that are below natural background levels — make it cleaner than it would be naturally.

“The missing piece of the EPA approach is tying (rules) back to a biological health assessment. Where’s the tipping point? When is the NMP (Nutrient Management Plan  http://en.wikipedia.org/wiki/Nutrient_management_plan) too much versus creating an arbitrary NMP number that it needs to meet?

What this would mean for Florida farmers…

“There’s no way they could comply without having to put in place expensive, edge-of-farm water detention and treatment.

“To meet the proposed EPA standards, the Florida Farm Bureau estimates that 10 percent of the productive cropland would have to be taken out of production to create these on-site treatment areas for water. There may be a handful of growers in the state that are large enough to be able to afford that. It would devastate our agriculture.”

Has the environmental group that sued EPA been joined by others since?

“I call them ‘activist’ groups, not ‘environmentalist.’ They have compadres in the regulation-by-litigation approach. Yes, they’ve been joined by other activist groups.

“Their point of contention was that Florida had taken too long to get (clean water rules) right. My contention is: it’s better to take the time to get it right than to rush and do it wrong.”

On the legal challenge against the EPA plan...

“It’s moved forward with the compilation of additional support documentation. The judge has been looking at all of it. I believe close to a dozen lawsuits have been filed over this, maybe more. We expect any resolution to come long-term, in years.”

Any indication the EPA will back down on this?

“The fertilizer industry continues to pursue federal legislative direction for the EPA to reevaluate and reassess their position on this. Absent congressional direction, the EPA appears to be moving forward.”

On the response by the Florida agriculture community…

“The EPA’s direction on this has been repudiated by the business and agricultural communities as well as local and state government (see a partial list here http://www.donttaxflorida.com/docs/congressletter.pdf). The Florida Department of Agriculture and Consumer Services has intervened and asked the EPA to reconsider.

The counties and cities, storm-water utility wastewater treatment facilities, and a long list of affiliated businesses, entities and associations have, across the board, opposed the implementation of EPA’s numeric nutrient criteria in the state.

“The wastewater treatment facilities and storm-water association ran numbers that show (EPA’s regulations) would add $700 annually to the average homeowner’s utility bill. That’s extraordinary.”

On how the EPA’s actions could impact the rest of the country…

“It sets a precedent. Imagine if the EPA had decided to tackle this through the Mississippi River Basin and all the states that would have been affected.

“Activist groups have already indicated they’re seeking to pursue similar lawsuits in Kansas and other parts of the nation. Across the United States, there are hotbeds of activists suing to achieve regulations when they’ve been unsuccessful legislatively.”

Anything else?

“The Florida Department of Agriculture and the University of Florida did an economic analysis of the EPA plan. The implementation costs to agriculture are estimated at between $900 million and $1.6 billion per year.

“The EPA’s numbers were nowhere close to those estimates. Because of those discrepancies, Congress directed EPA to have a National Academy of Sciences review (see overview here http://www8.nationalacademies.org/cp/projectview.aspx?key=49374) of the economic impact. That’s currently underway and should be complete (early in 2012).”