New water/nutrient regs: an added challenge for growers

• Florida is recognized as a national leader in implementing a sophisticated suite of water quality and technology-based nutrient management programs to protect its water bodies. • We think agriculture is typically one contributor of nutrients to any water body. And agriculture should be involved in these discussions and, depending on how large the source is, probably should be a significant part of the discussions.

Since late 2010, desiring to monitor nutrient levels in Florida waters, the EPA has sought to implement its proposed “Water Quality Standards for the State of Florida’s Lakes and Flowing Waters.”

Held up by court challenges, in February the EPA was instructed by the court to implement numeric standards for lakes and springs in the state.

This was followed by a coalition of 48 groups writing a letter to the EPA, urging the agency to adopt the Florida Department of Environmental Protection’s (FDEP) “Numeric Nutrient Criteria” rule.

“Florida is recognized as a national leader in implementing a sophisticated suite of water quality and technology-based nutrient management programs to protect its water bodies,” the letter said.

“In fact, FDEP has spent more than $20 million during the last decade to collect and analyze data related to the concentrations and impacts of nutrients in Florida’s water bodies. By utilizing this data and analysis, FDEP has worked tirelessly over the past year to develop scientifically defensible water quality standards.

“While there will be significant costs associated with these standards, we believe they are technically achievable standards that our members and other stakeholders will be able to meet while working in partnership with the state.”

Bill Herz of The Fertilizer Institute (TFI spoke with Farm Press about the proposed rules, the science behind the issue, and why the Florida case is important to agricultural interests across the nation. Among his comments:

On the Florida case…

“I’m not an expert on the local litigation in Florida. I know there are multiple parties challenging the viability of the state rule. We aren’t involved in that like we were in the federal litigation.

“TFI got involved because we were very concerned about the interests of our members, as well as the agricultural constituents who buy our products. We worried about what the long-term cost impacts would be for setting ultra-low and rigid, numeric nutrient criteria.”

On what could have happened if the new rules had been adopted…

The consequences “could have been anything from driving down production to increased set-backs to potentially limiting nutrient applications. It could have gone as far as budgeting (nutrient applications).

“It fundamentally, basically disagrees with the science we advance for agronomic stewardship. You have to look at all factors involving nutrients. (Doing so) with single nutrients, we don’t think, is a positive way to go.

“On the production side, when you’re going from mining to manufacture of a product, obviously you’ll have outfalls where there is discharge of nutrients at some level. Significant increases in the cost of abatement or otherwise will increase the cost of the products. That, in turn, is pushed on down the line, presumably.

“So, there are multiple ways this could impact farmers either directly or indirectly.”

On the science…

“We’re not saying there aren’t too many nutrients in some watersheds.

“We think agriculture is typically one contributor of nutrients to any water body. And agriculture should be involved in these discussions and, depending on how large the source is, probably should be a significant part of the discussions.

“However, setting very rigid criteria for something that’s supposed to be in the ecosystem to begin with — and naturally varies depending on season, spring flock, natural decomposition from cropping and things like tree leaves — makes this a very, very difficult situation to put a single number on. And then to say, ‘That number is always right and if (nutrient levels above that aren’t healthy) it causes an imbalance in flora and fauna.’

“In fact, the judge in the federal litigation agreed with us. He vacated the stream standard. He said, ‘You can’t take six or seven unimpaired streams and get a number that’s representative. You can’t say because those streams are healthy, any stream with a higher number is therefore unhealthy.’

“What the EPA didn’t do, in fact, was confirm that number (from the few streams) had anything to do, really, with the biological health of those particular water bodies. They didn’t confirm it by going to the indicators in the ecosystem, which is what you must do. You have to count chlorophyll and also micro- and macro-organisms to understand if you’re causing an imbalance that’s harming it in some way.”

On the need for flexibility…

“We think there needs to be more inherent flexibility in nutrient regulation. We’re certainly not denying the need for regulation. We want to work cooperatively for our stewardship and otherwise to bring out techniques, products and timing that will help to improve uptake of nutrients.

Win, win situation

“It’s really a win/win in my opinion because people buy the products and benefit due to using them more efficiently. They’re getting more for their buck, so to speak. And the environment wins because less is lost from the edge of the field.”

Why Florida’s situation is important…

“There are a couple of reasons Florida may be precedent-setting. There are several aspects of the federal law that are precedents. First is the use of this particular approach in regard to streams.

“Another piece of it was partially vacated (by the court) — the concept known as ‘downstream protective value (DPV).’

“DPV allows the EPA to set a number — what they call a ‘pour point’ — which is where a stream enters a lake. Then, they back that regulatory DPV regardless of what the watershed’s contribution is to the non-attainment of the lake.

“To be clear, the judge said it isn’t valid to subject DPV for a lake already in attainment. But if a lake is in non-attainment, the judge allowed it to proceed.

“In regard to the DPV allowed to stand, you could have many factors. Imagine a lake with a bunch of vacation homes around it, all on septic. So, a major source of nutrients in the lake happens to be leaking septic from those homes.

“Streams flowing into the lake could actually be improving the lake’s water quality. Yet, EPA has this regulatory overreach straight up the watershed. That’s a concern on the federal precedent level and someone might go after that on appeal.”

Florida’s new rules on nutrients…

“What’s interesting is that the regulatory standards look very similar between the Florida rule and federal rule.

“I think the primary difference — and this was looked at in a report by the National Academies of Science — is the Florida rule is preferable because it has a biological confirmation step. It doesn’t just assume a water body is impaired because its numbers exceed the numeric criteria.

“It requires confirmation and TFI thinks that’s appropriate. Nutrients are naturally occurring and they vary naturally. There can be situations where you’re above thresholds and yet not putting a water body at risk of a critical imbalance.

“You don’t want a system that will, statistically, put multiple water bodies out of compliance simply by chance when, in fact, many of them are actually healthy.”

Where does this go from here?

“It’s our sincere hope that the EPA takes up the Florida state rule and accepts it in its entirety. The subsequent rule-making that the Florida DEP is working on would complete the picture. We think that’s a critical next step.

“The EPA will always have back-stopping authority. But the right next step is for Administrator (Lisa) Jackson to give this back to Florida. They’ve worked very hard for it and deserve that.”

What are chances of that happening?

“I think they’re good. It’s an election year and the (Obama) administration understands there’s a perception out there, whether they agree or not, that their environmental agenda is impending the economic recovery.

“A lot of people want to put good, solid jobs back in the United States because of where we are with the energy situation. But they’re afraid because of the regulatory agenda and what that might mean from a cost perspective. It’s so uncertain, right now, between air and water regulations.”

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