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Environment
Newsletter - Third Quarter 2001
 
In this Issue...
No Records Found
Florida Department of Environmental Protection Rulemaking Activities
 
 October 19, 2001
 

Impaired Waters Rule

Section 303(d) of the Clean Water Act requires states to identify water segments within the state that are unable to meet water quality standards and rank the segments according to the severity of their water quality problems. States must then establish a Total Maximum Daily Load (TMDL) for each pollutant of concern for the water segment that provides a pollutant budget and allocation of pollutant reductions designed to bring the water segment back into compliance. Over the past several years, major disputes have arisen in Florida about which water segments within the state should be on the "impaired waters" list.

The Florida Watershed Restoration Act, passed in 1999, requires the Florida Department of Environmental Protection (FDEP) to adopt a methodology to be used to analyze whether a water body segment is "impaired." FDEP must then develop a methodology for developing TMDLs for those impaired waters. For the past year, FDEP has been attempting to adopt its Identification of Impaired Waters Rule (Chapter 62-303), its methodology for determining impairment. FDEP’s proposed rule was adopted, with some relatively minor changes, by the Environmental Regulation Commission on April 26. The rule was promptly challenged by various individuals and environmental coalitions, who charged that the rule was too lax and would allow many allegedly impaired waters to escape placement on the list. Several industry associations intervened in support of the proposed rule. A three-week administrative hearing on the rule commenced on August 27. Parties to the rule challenge have 50 days after the transcript is filed to submit proposed final orders to the administrative law judge, and each party will then have the opportunity to file responses to the other PFOs. Given the number of parties involved, a final order on the validity of the Impaired Waters Rule is not expected before January 2002.

Triennial Review/Antidegradation Analysis

The Clean Water Act requires states to review and update, if necessary, their water quality standards every three years. FDEP is in the process of undertaking its triennial review. As part of the triennial review process, FDEP is proposing changes to its so-called "antideg rules." Rule 62-302.300(17) provides that the FDEP shall permit the new or expanded discharge only if it is "necessary or desirable under federal standards and under circumstances which are clearly in the public interest, and if all other Department requirements are met." This is known as the antidegradation analysis. Rule 62-4.242(1) sets forth what this analysis must consist of and what factors must be balanced to determine whether the discharge is "clearly in the public interest." In addition to the public interest balancing, the permit applicant must currently demonstrate that reuse of domestic reclaimed water and use of other discharge locations, land application or reuse are not "economically and technologically reasonable." These additional requirements have historically been applied primarily to domestic wastewater discharges and have had limited applicability to industrial dischargers.

Early draft changes to the antidegradation rules would have greatly expanded the review of disposal options that permit applicants must undertake. Industrial dischargers would be required to undertake extensive pollution prevention/waste minimization analysis. Draft changes to the rule circulated by FDEP on August 17 have scaled back this review somewhat, but would still require such dischargers to conduct a waste minimization and source reduction analysis consistent with EPA guidelines for Best Management Practices Plans.

The Environmental Regulation Commission will be briefed on the Triennial Review draft rule changes, including the draft changes to the antidegradation rules, on December 5. Adoption by the ERC is expected in January 2002.

For more information, contact Susan Stephens at 1-888-688-8500 or via e-mail at slstephe@hklaw.com.

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