Last week you should have received an urgent email from me with an attached comment letter regarding DEP’s plans to create a new “Designated Use” for Florida’s water quality standards which will be called Class III – Limited. What that means in reality is that these waters will be too polluted to swim in and will be barely able to support aquatic life. Right now, under Florida law, waters that are this polluted, go on the Impaired Waters List (required by the Clean Water Act) and are prioritized for pollution reductions. With the new Designated Use, Class III – Limited, these waters would be allowed to remain impaired indefinitely, and could continue to receive new and/or expanded discharges of pollution.
As we all know, all waters flow downstream and every stream, lake and canal in Florida will eventually end up in an estuary and then into either the Gulf or the Atlantic Ocean. The idea that some of our lakes, canals and even streams and rivers are not worthy of Clean Water Act protections is hard (if not impossible to swallow) for those of us who spend most of our time trying to protect these waters for everyone’s use and enjoyment. . . especially future generations.
So far 33 groups, businesses and organizations signed onto the attached letter to FDEP Secretary Mike Sole. The comment letter that we sent in December had more than 50 signatures. I would love to put at least 100 signatures on this letter. The more groups and businesses that sign on in support of our comments, the more impact we will have. We have made great progress so far in convincing FDEP to slow down their push to weaken our water quality standards. Now we want to stop this serious policy change entirely, but Clean Water Network of FL cannot do this without your help.
If your group or business is not one of the 33 that I heard from already, would you please take a few minutes to read over the attached letter and then if you agree with it, send me a quick email to let me know that I can add your organization or business to the list of supporters? Make sure to provide a contact person for the group.
If you have already signed on, I just want to thank you for everything you do for Florida’s waters and for better policies.
Everyone can also help by sending this to all of your contacts and ask them to keep it going. We need a wide variety of organizations, businesses, civic groups, etc. to add support to our efforts to keep our waters swimmable and fishable.
Thank you in advance for any help you can offer.
For all our waters,
Linda Young
Director
Post Office Box 254, Tallahassee, Florida 32302
Phone: 850-322-7978
llyoung2@earthlink.net
www.cleanwaternetwork-fl.org
March 24, 2010
Secretary Michael Sole
Florida Department of Environmental Protection
3900 Commonwealth Blvd.
Tallahassee, FL 32399-3000
Dear Secretary Sole:
Thank you for your reply to our December 11, 2009 letter regarding proposed revisions to the surface water quality classifications rule. While we are glad to see that you decided to keep the current classification structure and not create several new classifications of waters, your current plan will still not protect Florida’s waters for their highest and best uses. You characterized the new proposal for a Class III –Limited classification as an improvement over the former proposal, and we would like to respectfully disagree. Just on the surface, it is difficult to understand how waters that are not suitable for swimming would be appealing as a place from which to consume fish. We urge you to reconsider this approach, which will result in the downgrading of numerous Florida waters.
Mr. Secretary, over the past few months you have given several presentations across the state regarding the proposed numeric nutrient criteria that will soon be promulgated by the US EPA for the State of Florida. You have repeatedly used very strong words to criticize EPA’s proposed nutrient criteria, even though they are almost identical to those proposed by your own department. It is curious to hear your vehement objections to something so close to your own proposal. Your messages add to the confusion that many taxpayers in Florida currently feel as they try to make sense of the many changes that are being proposed for Florida’s water quality standards, for example:
• Proposed federal numeric nutrient criteria
• Proposed state numeric nutrient criteria
• Proposed new classifications/uses for Florida waters by the state
• Proposed new Site Specific Alternative Criteria (SSAC) conditions by the state
• Technical Support Document, which is almost 50 pages of fine print about how Use Attainability Analyses, Use downgrades and SSACs would be applied
• Impaired water lists and TMDLs
• BMAPs
The list goes on and on and it can be broken down within each of the above items. It may not seem like water-quality-change-overload to you and your colleagues, who change water quality protections for a living, but for the hardworking taxpayers who pay your salary and try to keep up with the changes that affect the waters in their communities, it is a lot of changes in a very short time. We would like to ask you again to stop your efforts to create a new unswimmable and barely fishable use for Florida waters. Not only is it bad policy, it is not timely, as the people of this state are struggling to understand the EPA’s nutrient criteria and what it will mean for their communities and their personal use of Florida’s waters, and how it will affect our waters for future generations. In fact, without knowing exactly what the final numeric nutrient criteria will be, it seems premature to be pushing the new unswimmable/barely fishable designated use through the legal process in Florida.
EPA’s proposed nutrient criteria describes the process of Use Designation and Use Attainability Analyses (UAA) in EPA’s existing regulations, but is far from explicit in its recommendations and possible rule language in three areas related to the use of UAAs to downgrade current use designations. In our comments on EPA’s proposed criteria, we will be asking EPA to place greater emphasis on the existing requirement to re-evaluate downgraded uses every three years. Is Florida ready to commit in writing to doing that for any and all waters that would potentially get downgraded to Class III-Limited? FDEP removed Section 3.6 from the prior draft entitled, Future Re-evaluation of Use Assignments, which emphasized that DEP is required to re-evaluate waterbody use designations resulting from UAAs during each future triennial review of its WQS if those revised uses do not meet the Section 101(a)(2) goals of the CWA (waterbodies with a use below the default uses of Class III). This section should be reincluded because of its importance in reminding applicants (and FDEP) that downgrades are not permanent and must be re-evaluated. In fact, this is required for any water body segment with water quality standards that do not include the uses specified in section 101(a)(2) of the Clean Water Act to determine if new information has become available making those uses attainable [40 C.F.R. Section 131.20(a)]. We will be urging EPA to bring attention to this requirement and to explain in detail how it should be carried out. It would make sense for Florida to wait until EPA does this before a state change to water classifications is finalized. Once the new Class III-Limited designated use is available to the hoards of big polluters who are supporting your plans to weaken our water quality standards, we can assume with confidence that your agency will be begin to receive high volumes of applications for SSACs, UAAs and reclassifications. That does not even account for the reclassifications and SSACs that DEP is likely to initiate. The work-load will be daunting, even for your dedicated staff who are always eager to find new ways to “manage” water quality challenges. For your taxpayers, who may want to have a voice in proposed downgrades to the waters they use, it will make effective participation even more arduous.
In addition, where removing or downgrading a use would have negative impacts on overall water quality goals, we will urge EPA to require Florida to gather the information needed to assess future attainability in order to trigger a thoughtful analysis under Section 131.20(a). Is this anticipated in your Technical Support Document? We urge the state to assure the citizens of Florida that this would be done for any water that is proposed for a downgrade. We also need to know in advance what the process to upgrade our waters will be. Does your department have this information for us yet?
Another concern we have with your proposed change to Florida’s water quality standards and the Technical Support Document is that there is nothing in either that would provide assurance to Floridians that existing uses will be protected. In fact, during a public hearing regarding the proposed revisions we asked Jerry Brooks, Director of DEP’s Division of Environmental Assessment and Restoration, whether a downgraded water body would remain on the Impaired Waters List and be ineligible for new and expanded discharges after the downgrade, and he said absolutely not. He told us the water body would come off of the 303(d) list and new and expanded discharges would be allowed a long as they did not cause or contribute to violations of the new SSAC. We strongly object to this policy. It will guarantee that the downgraded water will never regain its previous use (before being downgraded) and that it will continue to deteriorate.
You state in your letter to us that your amended proposed rule will protect existing water quality conditions. You assert that it prohibits the lowering of existing water quality within a Class III-Limited waterbody, through the limitations associated with Site Specific Alternative Criteria. It is not clear how an existing use would be protected when a water body is downgraded and the criteria are made less protective.
Not only does your proposal lack minimum criteria for Class III-Limited waters until a SSAC is approved for each individual waterbody, which violates the Clean Water Act at 33 U.S.C., Section 1313(c)(2)(A) , but nowhere in your proposal (rule or TSD) do you require detailed identifications of the uses that will be protected in downgraded waters. You are in essence asking the taxpayers to “trust” you or your successors to make good decisions about our waters as you downgrade their uses. You will essentially be allowed to set criteria at levels that will keep the waters off of the 303(d) list and which will allow discharges to continue unabated and new and expanded discharges to be permitted. That is too much to ask from us and we must insist that you abandon this plan. We believe that Florida DEP would be tempted to ignore the requirements in the Clean Water Act to protect existing uses in both the UAA and the antidegradation Tier I protections, thereby undermining the law and resulting in the continued decline of water quality in Florida.
One issue that is most troubling to us is an apparent contradiction in your responses regarding downstream waters protection. In a reply letter dated January 22, 2010 you state:
“Your letter was also insistent on downstream water protection, which we agree is critical. I want to emphasize that we have consistently maintained that downstream waters must be protected as part of any proposed reclassification. Both the previous rule draft and the proposed rule revisions reflect this downstream waters protection concern. The rules and draft support document, which will be incorporated into the rule by reference, clearly indicate that a waterbody cannot be reclassified to a lower use if this would lead to any loss of a downstream use.”
This morning, I received a copy of an email you sent to Dr. Ray McAllister in response to his concerns over the proposed unswimmable/barely fishable designated use. You wrote (in part):
“Our disagreement with EPA has been primarily associated with the “downstream protective values” proposed in their rule. While I support the intent of trying to establish numeric equivalents to protect downstream estuaries, the modeled approach that EPA has used is truly fundamentally flawed and inaccurate. Fortunately, EPA has agreed to not pursue this approach right now and work on this aspect of the Rule in future efforts.”
If the Department is committed to protecting downstream uses, why are you so opposed to EPA’s effort to do just that? You say that you don’t like their modeling approach, which is always an easy way to discredit someone else’s efforts. We would appreciate a more detailed explanation of exactly how you plan to protect downstream waters after upstream waters are allowed to become downgraded and more polluted. Jerry Brooks has stated in public workshops that you would be using mixing zones and other relief mechanisms in the downstream waters in order to comply with water quality standards. While these “tricks” may meet the letter of the law, they do not fulfill the spirit of the Clean Water Act and will not result in waters your taxpayers will feel safe swimming and fishing in.
Most important to our organization and our members is that all taxpayers have access to the process that could be used to adversely affect waters that all Floridians have a right to use and enjoy. You say in your January 22 letter that any applicant who petitions for a lower use classification will bear the burden of proof that the existing uses will not be removed and that the proposed use is the highest attainable use. We wish that we could rely on that and have assurance that this will be the case. Unfortunately, your Department has a long history of catering to polluters (i.e. Impaired Waters Rule, SSAC rule - type 2, and a long list of NPDES permits that are lax, don’t meet CWA requirements such as dioxin limits and are rarely if ever enforced) and it would be fool-hardy for anyone seeking greater protection for the health of the water and ordinary citizens to expect assistance from DEP. You offer comfort through the fact that a citizen can have input to the Florida Environmental Regulation Commission (ERC) and the US EPA. As for the ERC members, they are all representatives of big polluters and special interests in Florida and not one of them provides a voice for the ordinary taxpayer in the state. The US EPA has shown no interest in protecting Florida’s waters or standing up to you and your Department in at least 10 years. We do have the option of filing suit in federal court when and if EPA approves the downgrading of Florida waters, however, few citizens have the money to take their grievances into federal court. Some environmental groups such as ours may be able to file suit over some downgrades, but the sheer volume of we can expect will make it impossible to effectively prevent wide-spread abuses.
It is easy to understand why the special interests represented on the Technical Advisory Committee that you appointed for this issue are so eager to have new avenues for avoiding the Clean Water Act. However, I am not aware of anyone or any organization in support of this proposal that does not have something to gain financially by its passing.
Finally, we incorporate by reference the comment letter submitted by the Conservancy of SW Florida, except where there may be inconsistencies. There are many issues that we have not delved into here, but which we have raised previously in writing and at your public workshops.
As stated previously, we are not only opposed to the creation of a Class III-Limited designated use, but are greatly concerned that this issue is not receiving the public attention that it deserves. If you insist on moving forward with this effort, we urge you to hold as many more public workshops as would be needed for everyone in the state to attend one without having to drive more than 50 miles to get to it. You are embarking on a major policy change that will affect people’s property values, health, businesses, communities, culture and most importantly, the future of Florida’s waters. You must not do this at a time when there is so much turmoil and confusion over state and federal proposals and before you even know what EPA’s final numeric nutrient criteria will include as it relates to your designated uses rule change.
We appreciate that you have moved your final rulemaking before the ERC from earlier this year to a few months from now, but that short delay is still woefully inadequate.
We will be sending a subsequent copy of this letter shortly, with other organizations signed on in support of these comments.
For all of Florida’s waters,
Linda L. Young
Director
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