Citrus growers look to live with new EPA standards; legal action promised
by Chip Carter | June 17, 2010
BONITA SPRINGS, FL -- Water, water everywhere -- and according to the U.S.
Environmental Protection Agency, it is mostly loaded with nitrogen and
phosphorus, so much so that the agency has created a set of new runoff
regulations for Florida's lakes, springs and rivers that could drown the state's
farmers in a sea of red tape and increased costs.
About 200 Florida citrus growers packed a panel discussion on the new EPA
numeric nutrient criteria at the Florida citrus industry annual conference June
10 at the Hyatt Regency Coconut Point Resort, here.
Growers are up in arms because the new EPA criteria specifically target
Florida's wetlands and waterways. Representatives from the Florida
agriculture industry claim that this is because the state is the first in the
nation to collect the kind of extensive data the EPA eventually wants from all
states. The information gathered from that ongoing process, Florida growers
feel, is being used against them to create standards that are simply
Florida Attorney General Bill McCollum, a Republican candidate for the
gubernatorial post currently held by Charlie Crist, told growers at a June 11
luncheon, "The nutrient standards are outlandish as they are [proposed]. We
will file a lawsuit against the U.S. government. We cannot and should not live
with these standards."
The standards are particularly unfair, growers say, because the culprit in
many cases is Mother Nature. Now, the industry says, the EPA wants Florida
farmers to clean up her mess. Florida wetlands are not only where much of
the state's wildlife begins, they are where the circle of life ends as well.
Naturally occurring nitrogen and phosphorus -- much of it from decaying
organic matter -- have "polluted" many Florida waterways to levels
unacceptable under the proposed EPA standards.
Suburban and urban areas add to the problem. Domestic supply wells in
Jacksonville and Gainesville have stopped or slowed the flow of many of the
natural springs that dot the northern half of the state and provide potable
water for much of the rest. And in areas where urban life and agriculture
meet, the problem is exacerbated. When strawberry growers in Plant City, FL,
watered their fields round the clock for two weeks in January to protect the
crop from freeze damage, they inadvertently ran dry 710 local wells and
pumped enough water out of the Florida aquifer to create 140 sinkholes --
including one smack dab in the middle of Interstate 4, one of the state's
Richard Budell, director of the Florida Office of Agricultural Water Policy, told
the growers, "Numeric nutrient criteria are coming to a neighborhood near
you. Business as usual is not an option."
Added Jerry Brooks, director of the Division of Environmental Assessment &
Restoration of the Florida Department of Environmental Protection, "It is a
fact that many of the waterways that define the character of Florida are at
The concern is that elevated levels of nitrogen and phosphorus in flowing and
standing waters could choke Florida's wetlands, turning vibrant estuaries into
stagnant pools and lifeless marshes.
Florida has been collecting EPA-mandated data on its waterways for 10 years,
Mr. Brooks said. "We have more data than any state in the nation, more than
all the Southeastern states combined, probably more than two-thirds of the
states in the nation combined."
In 1998, the EPA initiated the National Strategy for the Development of
Regional Nutrient Criteria in an effort to assist states' adoption of numerical
criteria -- as opposed to narrative standards -- as a more effective means to
protect water resources from nutrient pollution. A 2008 EPA report said that
19 states have adopted numeric nutrient standards for some or all of their
lakes and reservoirs, and that 14 states have adopted numeric nutrient
standards for some or all of their rivers and streams.
The prevailing narrative standards use "descriptive language" to define the
point where a body of water becomes "impaired." Numerical nutrient criteria
establish set levels at which a body of water is declared impaired.
In Florida, the narrative standard currently reads, "In no case shall nutrient
concentrations of a body of water be altered so as to cause an imbalance in
the natural population of flora or fauna." To even attempt to comply with
proposed numerical standards would wreak havoc on Florida agriculture,
according to officials from every industry segment in the state.
In 2004, the Florida Department of Environmental Protection began a
developmental plan in conjunction with EPA to establish numeric nutrient
criteria for the state. In 2007, the plan was revised as the Florida Department
of Environmental Protection's strategy and technical approach to the problem
continued to slowly evolve. In July 2008, an organization called Earthjustice,
representing the Florida Wildlife Federation, the Conservancy of Southwest
Florida, the Environmental Confederation of Southwest Florida, St. John's
Riverkeeper and the Sierra Club, filed suit in an effort to speed up the
adoption of numeric nutrient criteria.
In January 2009, the EPA determined that Florida was not moving quickly
enough toward adoption of numeric nutrient criteria. Last August, the EPA
entered into a consent decree to settle the 2008 litigation, committing to
propose numeric nutrient standards for lakes and flowing waters in Florida by
Jan. 14, with standards for estuarine and coastal waters to follow a year later.
The lakes and flowing waters rules are scheduled to go into effect this
October, the rest in October 2011, save estuaries, which recently received
another year's extension.
According to a 2008 Florida Department of Environmental Protection report,
at least 1,000 miles of Florida rivers and streams, 350,000 acres of lakes and
900 square miles of estuaries are impaired by nitrogen and/or phosphorus -
- numbers that will doubtless rise as assessment continues. Nutrients were
ranked as the fourth major source of impairment for rivers and streams after
dissolved oxygen, mercury in fish and fecal coliform contamination. For lakes
and estuaries, nutrients ranked first and second, respectively.
At this point, the argument has moved beyond whether the new EPA
standards are fair to farmers "when half that water is going to keep lawns
green," Mr. Budell said. "The urban-agriculture interface puts pressure on
agriculture." Urban and suburban runoff management programs will be put in
place, he said, so among farmers, the debate must now be squarely focused
on how the new standards might be adhered to.
First, though, Florida wants the EPA to examine lowering those standards just
a bit, Mr. Brooks said. To set acceptable levels, the EPA identifies "reasonably
pristine" waters and starts from there. To meet the new guidelines, Florida
waters have to fall within the 90th percentile of nutrient content of the most
pristine waters. Given natural effluent in Florida wetlands -- plus "legacy
loads" of nutrients from past agricultural use that will take years to flush from
the ecosystem -- Mr. Brooks said that the benchmark should be the 75th
The question is, "At what concentration do you see there to be an actual
biological response?" Mr. Brooks said. "There is so much variation between
one stream and another and one canal and another, you cannot devise a
standard truly applicable to every one of those bodies. Some are more
protected than necessary."
Said Mr. Budell, "We have to be practical. We're trying to balance the
ecological benefit with the economic reality of implementing these practices."
The new standards will carry "a significant associated economic impact," Mr.
Brooks said. Though "it's hard to know how much until implementation is
fully defined, the numbers are scary." Some experts suggest that the cost
might be as much as $100 per acre of Florida farmland, an expense borne by
A recent report issued by the Florida Department of Agriculture & Consumer
Services in conjunction with economists from the University of Florida's
Institute of Food & Agricultural Sciences placed total initial costs for
implementation between $855 million and $3.069 billion. Recurring (annual)
costs range from $271 million to $974 million. Lost revenues from land taken
out of production to implement on-farm water treatment practices add
another $631 million to the annual toll. The ripple effect from diminished
revenues -- including the loss of 14,545 full-time, part-time and seasonal
jobs -- tallies $1.148 billion annually.
The lone bright spot for Florida farmers is that simply promising and
attempting to meet the new regulations should be enough to avoid trouble in
the near future. Growers who sign a statement of intent to voluntarily follow
the EPA's best management practices "and put a high priority on
implementation and showing due diligence" will be "presumed to be in
compliance," regardless of actual nutrient levels in waters they are
responsible for, Mr. Brooks said.
About 85 percent of Florida's irrigated citrus land is already enrolled in best
management practices programs of some kind. If growers follow through on
the voluntary program, the state's waters should follow along on a timetable
reasonable enough to keep litigants at bay. If they do not, "then the
argument will be made in courts that there needs to be [government
mandated] regulatory enforcement," Mr. Brooks said, cautioning that "if
there's pressure brought to bear in court, what's that regulatory program
going to look like?"
Added Mr. Budell, "It's going to be very, very difficult for agriculture to meet
those numbers. But as long as we can demonstrate to third-party interests
that the industry has embraced these standards, it will buy us some time."