Clean Water Network Florida

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CLEANING UP THE CALOOSAHATCHEE ESTUARY - latest comments: 07/15/09

By  Linda Young

The following comment letter was sent to the Florida Department of Environmental Protection on Friday, July 10, 2009 regarding the proposed TMDL for nutrients for the Caloosahatchee estuary by the Clean Water Network of Florida.

 

Dear Mr. Mandrup-Poulsen:

Thank you for your response, dated June 16, 2009, to the comment letter submitted by Clean Water Network of Florida, Inc. and Conservancy of Southwest Florida, regarding the draft nutrient TMDL for the Caloosahatchee Estuary.  Although your response did address some of the issues raised in the letter, we continue to have serious concerns with the Draft TMDL report, and especially the Department’s decision not to develop limits for dissolved oxygen.  Accordingly, Clean Water Network of Florida, Inc. (CWN of FL) respectfully submits the following additional comments for the administrative record.  We again urge the Florida Department of Environmental Protection to consider these comments in order to assure that the final report is comprehensive, representative, and based on the best available science.

The TMDL Should Incorporate Limits for Dissolved Oxygen

The Florida Department of Environmental Protection (FDEP) continues to advocate the position that dissolved oxygen (DO) is naturally low in the Caloosahatchee estuary, and therefore FDEP will not develop limits for DO for inclusion in the TMDL.  The CWN of FL joins the Conservancy of Southwest Florida in its continued objection to this conclusion. 

In your June 16 response to our comment letter, and in the TMDL report, FDEP has supported its conclusion that low DO is natural to many of the hydrologic systems in Southwest Florida, and specifically in the Caloosahatchee estuary, by comparison to several sites maintained by the Rookery Bay National Estuarine Research Reserve System.  This comparison is flawed.  FDEP has presented the Rookery Bay estuary as a natural model system, one with few anthropogenic impacts.  However, WBIDs 3278I (Faka Union South), 3278G (Fakahatchee Strand), 3261C (Barron River Canal), and 3261B (Tamiami Canal), all impaired for DO, flow into the Rookery Bay estuary, and therefore impact its water quality.  The presence of these impaired waterbodies, coupled with the extensive agricultural activities in the surrounding land area, suggests that the Rookery Bay estuary is not an appropriate model system for comparison, and does not support the conclusion that waterbodies in Southwest Florida experience naturally low DO.

In contrast, there is evidence to suggest that the Caloosahatchee River and estuary are impaired for DO.  As one example, in a 2003 study of the Caloosahatchee, Janicki Environmental, Inc. found that water quality in the river has steadily declined over time.  The study found there were significant temporal trends over the past 10-15 years, with increases in Biochemical Oxygen Demand (BOD), Total Suspended Solids (TSS) and turbidity, fecal coliform bacteria, many species of nutrients, and relatedly, a decrease in DO levels.  Furthermore, Doering and Chamberlain (1998) and Janicki Environmental Inc., (2002) found that Total Nitrogen (TN) and Total Phosphorous (TP) were elevated in the Caloosahatchee compared to statewide median concentrations, reference site concentrations, and historical data (for TP),[1] suggesting that other factors may be influencing DO in the watershed.

Furthermore, in 2005 the Environmental Protection Agency (EPA) proposed a draft TMDL for the Caloosahatchee, including at least one WBID in the tidal Caloosahatchee.[2]  The TMDL report documents low DO levels throughout the Caloosahatchee river and estuary and lists a number of sources which contribute to the depletion of in-stream DO, including the Fort Meyers Central Waste Water Treatment Plant, which discharges directly into the estuary; stormwater from Lee County, the City of Cape Coral, and the City of Ft. Myers; fertilizers and animal waste from the agriculture in the surrounding land area; and runoff from septic tanks in residential communities.  The TMDL report does not attribute the low DO levels to natural conditions.

Ultimately, in excluding limits for DO from the TMDL, FDEP is taking the first step toward delisting the tidal Caloosahatchee from the state 303(d) List, in reliance on its position that the DO is naturally low.  EPA’s 2008 listing guidance recommends that states should list waters which exceed water quality criteria based on a combination of anthropogenic and natural sources.  Thus, even if we accept that DO is naturally low in the Caloosahatchee estuary, the extensive urban, suburban, and agricultural activities in the land area surrounding the estuary have a documented effect on DO levels that must be remediated.

FDEP’s conclusion that low DO is natural to the watershed is unreasonable and lacks support.  We strongly urge FDEP to reconsider its decision to exclude DO limits from the TMDL.

The Proposed Reduction in Total Nitrogen is not

Sufficiently Protective of Water Quality

FDEP has proposed a 23 percent reduction in total nitrogen in order to achieve its target, 25 percent bottom irradiance.  The proposed reduction is based on the Department’s conclusion that a 19.8 percent reduction in total nitrogen is sufficient to meet the selected target for bottom irradiance, plus an explicit margin of safety.

We continue to urge FDEP to adopt a more significant reduction in total nitrogen.  In your June 16 response to our comment letter, FDEP noted, “[i]t is not the goal of the TMDL Program to return any watershed to a pristine condition, but rather (as required by statute and rule) we are to ensure that designated uses and water quality standards are met.”  However, as we have routinely asserted, the proposed 23 percent reduction in total nitrogen does not ensure that the Caloosahatchee estuary will attain water quality standards.  To the contrary, the Department’s own model simulations indicate that the reduction in nitrogen is not sufficient to eliminate at least three discrete violations of the target for bottom irradiance.  Moreover, these model simulations assume that Lake Okeechobee is meeting the phosphorous limits established in its TMDL, an event which is not likely to happen in the immediate future.  In order to have a meaningful effect on nutrient levels in the Caloosahatchee, we continue to urge FDEP to incorporate a more significant reduction (26 percent) in total nitrogen.

Continued Concerns about the Model

Finally, in all our previous comments, both in person and in writing, CWN of FL has consistently urged FDEP to (a) calibrate the model to accurately reflect wetlands as non-polluting land uses; and (b) to calibrate the model to reflect a more accurate BMP implementation rate.  

In your June 16 response to our comment letter, FDEP indicated that it could not, with the model selected, attribute loading rates from wetlands at a zero or negative load.  CWN of FL joins Conservancy of Southwest Florida in suggesting that a different model be used that could model wetlands with a zero or negative load, as this process would hold vast implications for the outcome.  Assessing natural wetlands as being net exporters, expressed as an annualized average positive load value, greatly inflates the load estimated for the natural predevelopment conditions of the area.  If the natural predevelopment conditions are the reference target for load reductions, this would result in percentage load reductions which are ultimately insufficient to truly restore water quality conditions.  FDEP should not confine itself to a model that does not provide an opportunity for the incorporation of the best available science, which recognizes that wetlands have a negative net nutrient load.

With respect to our second concern, that the model be calibrated to reflect a more accurate BMP implementation rate, FDEP did provide any response in its June 16 response letter.  We have consistently expressed our concern that an unrealistic and inaccurately high level of agricultural BMP implementation was assumed for the purposes of the modeling analysis in the development of this TMDL.  Because there is little data to support the actual implementation rate and the pollutant removal efficiencies of such BMPs, we requested that the model be calibrated to create a more conservative analysis which includes only BMPs that are required and enforceable through a permit by a regulatory agency because, in fact, these are the only BMPs which could realistically be assumed to actually be implemented and maintained. 

 

Conclusion

Thank you for your careful consideration of our comments.  We hope FDEP will consider incorporating these suggestions into both the Caloosahatchee model and its future modeling and TMDL efforts for other impaired water bodies across Florida.  If you have any questions, please feel free to contact us by phone, (850) 222.8701, or email, llyoung2@earthlink.net.

Sincerely,

Linda L. Young

Director

Clean Water Network of Florida, Inc.

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Florida's Toilet: 08/05/08

By  Linda Young

See inside for the complete report.  Click on "Issues", then "Sewage", then "sewage report".

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International Paper Case Victory Proves Hollow : 05/06/08

By  Marcy LaHart, Esq.

In August of last year the Florida Department of Environmental Protection (DEP) issued a final order denying International Paper’s applications to discharge 23.8 million gallons of industrial wastewater effluent from its Cantonment paper mill into waters of the state. I had the honor of representing James Lane and Friends of Perdido Bay in the administrative hearing concerning DEP’s proposal to issue the permit and other regulatory authorizations that International Paper (IP) sought. After eleven days of testimony, the Administrative Law Judge (ALJ) recommended denial of the permit application, and DEP issued a press release with a nice color picture of Secretary Mike Sole, looking all handsome and officious, and the statement that, while the Secretary “does not agree with all the Judge’s rulings,” he was nonetheless denying the permits.

 

Before my co-counsel and I even had time to toast our “victory” IP appealed the order, and almost simultaneously submitted a new permit application. Well, virtually the same permit application actually.

 

A stay pending appeal was immediately granted by DEP, without addressing any of the factors that would typically be considered in granting or denying a stay, such as IP’s likelihood of success on the merits, or whether the stay was in the public interest. Thanks to the stay, IP’s discharge into 11 mile creek in violation of water quality standards continues unabated, as it has for decades.  Funny but DEP did not issue a press release broadcasting that little tidbit.

 

Even though my side supposedly won, we filed a cross appeal challenging a portion of the state law that allows DEP to issue or renew an operating permit even when, as in the IP case, the discharge will not comply with applicable statutes and rules, so long as “granting the operation permit will be in the public interest.”  You see, during the hearing I asked William Evans, Domestic Wastewater Permitting Supervisor with the Department’s Northwest District Office, how the determination was made that IP’s noncompliant discharge would be in the public interest. His answer was that DEP had basically considered “International Paper’s interest as public interest in our test.” I am not making that up.

 

IP has had literally decades to come into compliance. And DEP, rather than enforcing our environmental laws and fining IP for its pollution, instead grants more permits and waivers and variances with a few more years and then a few more years to come into compliance. Pollution control technology costs money, cutting production to stay within discharge limits costs money, why cut into profits when you can just get your consent order “administratively continued” for almost 20 years?

So, on behalf of my clients I have challenged as vague the state law that leaves it to DEP’s apparently unbridled discretion to determine when discharges that will pollute our state waters are “in the public interest.” I have done that in hope that the law will eventually amended,  so that factors such as impacts on fish and wildlife and recreational values will be explicitly part of the permit review, not just the interest of the would be polluter. If that provision is stricken as vague, DEP just might have to start enforcing our state’s environmental regulations instead of issuing consent agreements that allow IP to keep operating despite the fact that its wastewater discharge does not and will not comply with water quality standards.

So here is the kicker. FDEP moved to dismiss my cross-appeal based upon my clients having supposedly won. “You cannot appeal a case that you won” FDEP’s attorney, David Thulman has argued. 

 

But what exactly have my clients won? IP, which just reported preliminary first-quarter 2008 net earnings of $133 million, continues to cause pollution by discharging its paper mill effluent into 11 mile creek, a water body that is too small to assimilate the pollution. The pollution continues to flow into Perdido Bay, which would be a far healthier, more productive estuary if DEP didn’t allow it to be IP’s sewer.  And DEP is already proposing to approve of IP’s “new” permit application, which at first blush is strikingly similar to the proposal it reluctantly denied last August. This leaves my supposedly victorious clients with two options. Option number one, hope the same proposal will work, a ten mile pipeline to wetlands bordering Perdido Bay, even though they already defeated that proposal once when the Judge did not believe the wetlands could assimilate IP’s waste.  Option number two, lawyer up and hire experts and spend thousands of dollars to challenge the “new” permit all over again-whether the appeal in the First District Court of Appeals is successful or not. Even though we are the so called “prevailing party” in the previous permit challenge, for their efforts my clients appear to be no closer to their ultimate goal of clean water in Perdido Bay.

Last May while we were in the middle of the hearing regarding IP’s permit, IP issued a press release which announced it was closing its mill in Terre Haute, IN.  According to IP, "The mill's relatively small size and high manufacturing costs hindered its long-term competitiveness, and ultimately have led to our decision to close the mill." Obviously, when it is in IP’s economic interest to close a mill, it does so. If IP can not operate the Cantonment mill profitably and in compliance with environmental regulations, that mill should be closed too.

 

Marcy LaHart, Esq.

711 Talladega St.

WPB, FL 33405

561-655-9537

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June 2-23 Updates: 06/23/07

By  Rachael Moore, Webmaster

Updates between June 2 and June 23:

• Added to new sections to our site For the Kids and Miscellaneous Items of Interest. One newsclip about flying sturgeon has been added to the For the Kids page.
• Posted the affidavit of Dr. Steve Davis to our Bay County Airport Issue page. This affidavit regards his scientific evaluation of the environmental impact of the development.
• Correction was made to a typo in Senator Mel Martinez's fax number on our Government Contacts page: the last 4 digits are 5171 (not 51713).
• A number of links were added to the Broward.org website.
• A letter from Senator Mel Martinez was added to our Federal Legislature page. In this letter, Senator Martinez politely declined to take a standard for clean water.

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Weblog/Site News Feed!: 06/03/07

By  Rachael Moore, Webmaster

We've added a news feed to the Clean Water Network site. The feed contains full-content blog entries, and all of our update, victory, and event posts.

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June 2nd Updates: 06/02/07

By  Rachael Moore, Webmaster

• Added an article from the Palm Beach Post to our International Paper newsclips.
• Posted the 5/25/07 grant letter from the FAA to the Bay County Airport Authority to our Bay County Airport issue page.

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May Updates: 05/27/07

By  Rachael Moore, Webmaster

• Posted the Isphording Perdido Bay Study and our IP Permit Comments to our International Paper - Pulp and Paper issue page. Also added an opinion piece to our International Paper Newsclips page.
• Added information on Clean Water Network of Florida's petition for an Administrative Hearing to our NW Florida Transportation corrider page.
• Posted our 5/3/07 correspondence with Sen. Nelson to the Bay County Airport issue.

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