Lessons from Florida’s Experience Developing Numeric Nutrient Standards for Flowing Waters

The December 2012 report entitled Technical and Policy Considerations and Options in Assessing Nutrient Stresses on Freshwater Streams in Virginia argued that the proposed screening process by the Academic Advisory Committee (AAC) to the Virginia Department of Environmental Quality (DEQ) was analogous to the Florida process that was then awaiting approval by the U.S. Environmental Protection Agency (EPA). In turn the report argued, “If EPA accepts the new Florida rule, the Florida approach can be referenced as a justification for the Virginia-specific screening approach.” That same 2012 AAC report reviewed a March 16, 2011 memorandum from EPA headquarters (Nancy Stoner) on nutrient criteria development by the states and argued that the memorandum was further justification for proposing the screening approach to EPA. EPA has since approved the Florida rule for numeric criteria and has proposed rulemaking that follows the Stoner memorandum (see Appendix A). Both of these actions further justify Virginia moving forward with development of the AAC proposed screening approach. This paper updates the 2012 report by expanding upon the explanation of the EPA-approved Florida process. Based on this update, the AAC again makes the argument that DEQ rely on the precedent of the Florida approval, as well as the EPA proposed rulemaking, to promote a Virginia screening approach to EPA. However, because of differences in data availability and other state-specific circumstances, there must be differences in application between Florida and Virginia, and these differences may need to be acknowledged if DEQ approaches EPA for approval of a Virginia process. DEQ might consider continuing to engage the AAC during the next year to make modifications to the draft screening approach that will align it with the Florida model as much as possible given the reality of data limitations. The process of evaluating the applicability of the EPA-approved Florida process to Virginia’s screening approach involved engaging with Frank Nearhoof, a recently retired Florida Department of Environment Protection (FDEP) staff person who was directly involved in the design of the Florida rule. Nearhoof provided two background papers (see appendices A and B) and participated in three phone calls with the authors to review the materials included in this report. For that reason, the authors believe that the description of the Florida process is accurate. One particular feature of the Florida process needs to be emphasized: If the waterbody is covered by a nutrient TMDL then that TMDL (and any implied nutrient criteria) governs the listing and the load reduction strategy for that water. The Florida process described in the next section is for those places where there is no existing TMDL limit for nutrients.