EVERGLADES WATER QUALITY
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Dangerous territory - Monitoring, Mixing Zones and VariancesWhile DEP is making a commendable, science backed recommendation for a 10 part per billion phosphorus criterion, and is opposing the sugar industry efforts to set the criterion at a higher number, DEP staff appear to be straying into dangerous territory when it comes to the agency's willingness to bend toward the sugar industry's position on important related issues. The Everglades Forever Act (EFA) envisioned a rulemaking proceeding to adopt a simple number as a phosphorus criterion, and the Legislature provided such a number as a default standard based on the best research available at the time (1994), which was 10 ppb. The "default standard" will be adopted by operation of law on December 31, 2003 in the event that DEP does nothing, or if the standard is still in dispute. The EFA directs that DEP enforce the criterion by establishing " discharge limits in permits for discharges into the EAA canals and the Everglades Protection Area." In other words, the law says that a monitoring network and decisions on how monitoring is to be conducted should be written into each discharge permit rather than being taken up and decided as a part of a single rule covering the whole Everglades Protection Area. This is only logical, as the discharge area of each permit is obviously going to be different, and decisions on how to measure and monitor each one can't be dealt with in a "one size fits all" approach in a single rule. At the urging of the sugar industry, DEP is proceeding to complicate its proposed rule by including a monitoring methodology. While DEP personnel usually claim that this methodology will only be used to produce a general "report card" on the health of the Everglades, sugar industry advocates believe it will be used to decide whether their discharges comply with the criterion for enforcement purposes. It is at best unclear whether the inclusion of monitoring provisions is even authorized for rulemaking by the EFA. At this writing, DEP staff's final monitoring proposal to be made to the Environmental Regulation Commission has not been disclosed. |
The sugar industry is
pressing hard for this monitoring language to include the concept of
averaging monitoring sites across broad areas of the Everglades Protection
Area, and to have monitoring conducted so as to average samples over a
lengthy time period. It is possible that such a scheme could allow actual
discharges to the Everglades to range upwards to near 100 parts per billion
while facilitating a claim of "compliance" based on averaging. Of even greater concern is DEP Staff's recently announced intent to include "moderating provisions", such as variances, mixing zones, or reliance on "net improvement" as a substitute for compliance with the phosphorus criterion as possible features of the rule. In a recent presentations to the South Florida Water Management District Governing Board, and the Environmental Regulation Commission, an attorney under contract to DEP to help with development of phosphorus criterion rule indicated that the final draft of the rule to be submitted to the Environmental Regulation Commission in December, will include at least some of these moderating provisions. The attorney suggested that: "A moderating provision may allow for discharges in excess of 10 ppb if:
In essence, DEP's consulting attorney has suggested that compliance with the criterion be replaced by a flexible and subjective process that allows non-compliance to be excused in response to the sugar industry's complaints that compliance costs too much. |
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