On February 18, 2012, the U.S. District Court for the Northern District of Florida struck down as arbitrary and capricious portions of a numeric nutrient standard that EPA developed for Florida to ensure compliance with the CWA. The case is Fla. Wildlife Fed’n v. Jackson, No. 4:08-cv-324 (N.D. Fla. Feb. 18, 2012).
Florida has long had a narrative water quality standard for nutrients that reads “nutrient concentrations of a body of water [must not] be altered so as to cause an imbalance in natural populations of aquatic flora or fauna.” Fla. Admin. Code R. 62-302.530(47)(b)(emphasis added). Due to widespread pollution normally in the form of algal blooms caused by excessive nutrient loads, EPA pressured Florida to replace its narrative nutrient standard with a numeric standard. After many years of delays and setbacks by Florida, EPA made a formal determination that Florida’s narrative nutrient standard was not protecting Florida’s waters and took it upon itself to develop numeric nutrient standards. As soon as EPA’s standards were finalized they were challenged by both environmental and industry groups.
The district court upheld EPA’s determination that Florida’s narrative standard was insufficient to protect water quality. It also upheld several of EPA’s nutrient standards based on evidence, including computer models, laboratory studies, and field studies, demonstrating that nutrient concentrations beyond a threshold point cause a harmful imbalance in a waterbody’s flora or fauna. It also rejected some of EPA’s standards, however, that had prohibited nutrient levels that caused any change to the flora or fauna, and not changes shown to be harmful.
EPA’s Rejected Stream Standard
After failing to develop a nutrient standard for Florida’s streams based on computer modeling and field studies, EPA next identified minimally-disturbed reference streams on a regional basis for which nutrient data was available. EPA then calculated the amount of nutrients in these reference streams and set the numeric nutrient standard at the 90th percentile for four of the geographic regions and the 75th percentile for a fifth region. EPA considered a stream with nutrient levels above these percentiles for more than one year out of every three years in violation of the nutrient standard.
The court rejected EPA’s stream standard, claiming the 90th percentile standard was set without any accompanying evidence that this concentration of nutrients actually results in harmful imbalances of flora or fauna in Florida’s streams. The court noted at least 10 percent of the pristine reference streams used to establish the standard receive higher levels of nutrients but “are apparently unimpaired”. Pg. 65. While all parties agreed that any nutrient increase leads to some change in the flora and fauna, not every increase causes harmful imbalances. Since any legal discharge of pollution arguably changes the receiving water in some way, the court concluded that “[t]he relevant permitting question, therefore, is not whether the receiving waters are changed, but whether the changes are permissible under the law.” Pg. 46 (quoting Lane v. Int’l Paper Co. No. 2010 WL 333011 at *14 (Mar. 10, 2010)). The court observed that “Florida’s narrative nutrient criterion addresses harmful effects, not all effects.” Pg. 46.
While the court rejected EPA’s stream nutrient standard because EPA did not document how nutrient levels beyond the 90th percentile correlate with a harmful imbalance, the court stopped short of requiring EPA to conclusively show nutrients above the standard will in all cases cause harm. “It may well be that there is a sufficient correlation. An experienced environmental scientist might be able to conclude, as a matter of sound scientific judgment, that above the 90th percentile, harmful change is likely. But a reviewing court cannot properly make its own analysis of an issue that the agency did not address.” Pg. 66.
EPA’s Rejected Downstream Protection Criteria
The court also rejected EPA’s “downstream-protection criteria” designed to protect lakes meeting the nutrient standard from adverse impacts from incoming streams in violation of the nutrient standard. The court upheld EPA’s determination that such downstream criteria are needed, but ruled that EPA’s default downstream protection values (DPVs) were arbitrary and capricious because they forbid streams flowing into lakes to have nutrient levels above ambient conditions. Again, the court found that the EPA’s standard was incorrectly based on the theory that any increase from ambient conditions ordinarily causes a change in flora and fauna – not that it causes a harmful change. “[T]he rule in effect disapproves any change in nutrients, even a change that will have no harmful effect.”Pg. 70. The court found EPA provided no evidence that a stream with nutrient levels marginally above ambient concentrations would have harmful imbalances of flora or fauna.
Implications for Replacing Narrative with Numeric Water Quality Standards
The district court’s decision has some positive implications regarding any effort to translate West Virginia’s narrative water quality standards into numeric standards for conductivity, TDS, and sulfate. An important take-away from this case is that any numeric water quality standards developed by EPA must demonstrate that a given concentration of pollution causes not just changes to a waterbody, but harmful changes.
Thus far, the evidence provided in support of limits on conductivity, TDS, and sulfate has been almost exclusively field data allegedly showing a not particularly robust correlation between increased levels of conductivity, TDS, and sulfate and a decrease in the diversity of sensitive aquatic macroinvertebrates species, most notably mayflies. Little laboratory evidence exists to establish a dose-response relationship between concentrations of conductivity, TDS, or sulfate and diminished macroinvertebrate diversity. Also, little tangible evidence has been produced to show that a diminished diversity of select sensitive aquatic macroinvertebrates actually causes harm to the overall health or productivity of West Virginia streams. The logic in the district court’s decision, therefore, suggests that there is still a lot of science to be done before EPA can create numeric water quality standards for conductivity, TDS, and sulfates that can withstand judicial review.
This article was authored by Blair M. Gardner, Jackson Kelly PLLC. Blairis a member of Jackson Kelly’s Energy and Environmental Practice Group in the Charleston, West Virginia office. He may be reached at (304) 340-1146. For more information on the author see here.
Energy and Environment Monitor