EVERGLADES WATER QUALITY
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Everglades Forever Act Rules Out "Moderating Provisions"Fortunately for the Everglades, the Legislature took direct steps to rule out most of the "wiggle room" lawyers for polluters would normally have to evade enforcement of the phosphorus criterion. DEP lawyers, however, urged on by the sugar industry, want to read this exclusion in a far more limited manner - having it apply only to "best management practices". The Everglades Forever Act states that:"Mixing zones, variances, and moderating provisions, or relief mechanisms for compliance with water quality standards as provided by department rules, shall not be permitted for discharges which are subject to paragraph (4)(f) and subject to this section, except that site specific alternative criteria may be allowed for nonphosphorus parameters if the applicant shows entitlement under applicable law. After December 31, 2006, all such relief mechanisms may be allowed for nonphosphorus parameters if otherwise provided for by applicable law." While paragraph (4) (f) relates to the geographical area of the EAA where best management practices are required, the last sentence of the prohibition clearly applies to the discharges which begin to be regulated under the phosphorus criterion on December 31, 2006. That is, in fact, the only purpose in the Everglades Forever Act that this date has. Limiting the application of the prohibition on mixing zones, variances ect. to "best management practices" is also a complete break with logic - variances, mixing zones, and similar moderating provisions have no application to "best management practices" in any event, so there would be no purpose in including this language in the EFA if it were targeted to those programs rather than actual pollution discharges from the agricultural area. |
What should be done?No one disputes that in January, 2007, when the new criterion (hopefully10ppb) is first enforced, some discharges will be out of compliance at some sites. This is not unusual for a broad range of water quality standards throughout Florida and other states. The technologies that can be immediately applied to further reduce STA discharges from their current levels in the 30 ppb range, such as augmentation of the existing STAs with "submerged aquatic vegetation and periphyton based treatment areas promise results that may approach, but not guarantee compliance with 10 ppb. However, adjusting the standard or granting broad variances to simply tolerate this expected performance is not what the Everglades Forever Act requires. The EFA contemplates handling "violations" through special conditions in the unique "Long Term Compliance Permits" required under subsection 10 of the act. Those permits obviate the need for "relief mechanisms" by writing a prescription for remedying non-compliance. Under those permits, dischargers that cause violations must immediately start developing plans, schedules and funding mechanisms to do something more to achieve compliance. "First, do no harm." This maxim ought to be carefully considered by state officials dealing with the Everglades phosphorus standard. Since the law already provides a "default standard" of 10 ppb, there is no need to accept a bad compromise simply to get the same standard adopted by rule. |
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