Panhandle water companies pile onto EPA lawsuit

Panhandle water companies pile onto EPA lawsuit

By Deborah Nelson
December 20, 2010

In the wake of a State lawsuit against new Clean Water Act standards, Panhandle water purveyors have filed their own action against the U.S. Environmental Protection Agency (EPA).

Enacted in 1972, the Federal Clean Water Act requires states to set water quality standards, which EPA may revise as it deems necessary.

On December 16, Destin Water Users, Inc,; South Walton Utility Company, Inc.; Emerald Coast Utilities Authority; Okaloosa County Board of County Commissioners and the City of Panama City filed suit against EPA, seeking injunctive relief for what they allege is an improper imposition of new water quality standards.

The complaint centers around the EPA’s directive that Florida establish numerically based limits for nutrient substances like nitrogen and phosphorous, commonly found in fertilizer and organic wastes.

Florida currently uses a non-numeric “narrative” standard to describe water purity levels, instead of specific numeric values.

An example of Florida’s “narrative” nutrient standards reads: “In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna.”

In contrast, a numeric standard would limit nutrients to a specific measurement per liter in a given body of water.

The nutrient substances in question increase the growth of algae in surface waters. As algae die, that in turn reduces oxygen levels, which harms fish and other aquatic life. Some algae or phytoplankton organisms also release toxic substances into the water.

“Blue-green algae (also known as cyanobacteria) produce “dermatoxins” that can
create severe dermatitis and are known tumor promoters; “neurotoxins” which interfere with nerve cell function; and “hepatotoxins” which attack the liver,” a 2008 Florida Wildlife Federation lawsuit against EPA notes.

“Exposure to blue-green algae toxins through ingestion, dermal contact or inhalation can cause rashes, skin and eye irritation, allergic reactions, gastrointestinal upset, serious illness, and even death.”

“Blue-green algae toxins can contaminate drinking water supplies, endanger public
health, and result in the shut down of drinking plants that rely on surface waterbodies as their drinking water source. The frequency of toxic blue-green algae blooms is increasing in lakes, rivers, streams, reservoirs, and estuaries throughout Florida.”

In 1998, EPA determined that state water nutrient standards should be described in specific numeric terms, rather than the nonspecific “narrative” style.

The new, numerical standards were scheduled to be implemented by 2003, or EPA was authorized to enact them for states. Neither happened in Florida.

In July 2008, Florida Wildlife Federation, Sierra Club, Inc.; Conservancy of Southwest Florida, Inc.; Environmental Confederation of Southwest Florida, Inc.; and St. Johns Riverkeeper, Inc., sued EPA for failing to enforce nutrient-related water standards in Florida.

“The result of having a narrative rather than a numeric standard is that there is no
measurable, objective, water quality baseline against which to measure progress in decreasing nutrient pollution, nor is there any measurable, objective means of determining whether a water quality violation has occurred,” the 2008 Florida Wildlife Foundation lawsuit avers.

The 2008 suit alleged Florida had failed to establish adequate standards; and sought to impel EPA to step in and set their own.

EPA settled the suit with a consent decree stating the agency would establish nutrient criteria for lakes and flowing waters in 2010; and coastal and esturine areas in 2011.

In November 2010, EPA announced their first numeric nutrient standards for Florida surface waters.

Florida has been using narrative criteria for nutrient limits because those substances are present in natural quantities in all water, making it difficult to establish cause and effect links to environmental problems, according to Florida’s Department of Environmental Protection.

This most recent lawsuit by water companies mirrors similar action recently filed by State of Florida officials against the new standards.

Florida Attorney General Bill McCollum, Agriculture Commissioner Charles Bronson, Attorney General-elect Pam Bondi and Agriculture Commissioner-elect Adam Putnam, December 7, announced the lawsuit.

That lawsuit argues EPA exceeded its Federal Clean Water Act purview to oversee water quality standards in Florida.

McCollum’s lawsuit alleges EPA imposed the standards to halt the 2008 Wildlife Foundation lawsuit against the agency, rather than on science-based research. It further alleges EPA’s new standards disregard a numeric-based plan Florida had received preliminary EPA approval on; and that the new EPA version lacks adequate research on the measurable impact of nutrient substances on water quality problems.

The State lawsuit seeks to have the EPA standards declared invalid.