"Ultimately, command-and-control environmental protection laws have failed, not because the laws are inadequate, but because the administrative agencies tasked with developing, implementing, and enforcing the regulations, standards, and standards-based source controls lack the will to fulfill their official responsibilities in these regards. This is because the backlash from the regulated entities and the politicians they control can damage or destroy a career and the family it supports immediately, while the damage to or destruction of an environmental resources takes a long time to manifest itself unambiguously and it is hard to prove what caused it, so the institutional response is to delay, deflect, and misdirect, until a lawsuit removes the onus of enforcing the law."Click 'read more' for the entire text of his letter:
"Setting a limiting nutrient Class III numerical Water Quality Standard at a concentration that results in an acceptable frequency of extreme manifestations of eutrophication stress in the form of toxic algae blooms is like setting a standard for cholesterol in human blood based on an acceptable frequency of heart attacks, instead of using more subtle indicators of risk, such as the concentrations and ratio of HDL to LDL forms of cholesterol associated with the absence of heart disease.
If a cardiac specialist managed heart disease in the former manner, he would eventually be stripped of his license to practice medicine, because people become debilitated and die as a result of his or her professional negligence, even if Big Pharma sells more heart pills. However, when an administrative agency regulates nutrients or toxicants in such a way as to be professionally negligent, we the people have no legal recourse, because the professional negligence is institutionalized and persists after each old and new administration is voted out and in, respectively, even in the face of successful lawsuits compelling agency action.
All Class III waters are protected for fishable and swimmable uses at all times. The Environmental Regulation Commission (ERC) promulgates Florida's water quality rules and revisions thereto. The Florida Department of Environmental Protection (FDEP) is the agency tasked with the responsibility for administering the narrative and numerical Water Quality Standards program, conducting a triennial review of existing WQS and proposing revisions to correct deficient WQS for promulgation by ERC, and implementing and enforcing the duly promulgated WQS as water quality-based effluent limitations for point sources and best management practices (BMPs) for nonpoint sources. Where a waterbody has been listed as impaired under Section 303(d) of the Clean Water Act (CWA), and compliance with technology-based effluent limits will not eliminate the impaired condition, CWA Section 303(d)(1)(C) requires that the administering agency develop for each impairing pollutant in each impaired water body a Total Maximum Daily Load (TMDL) as the mass loading rate of the pollutant that will not cause the WQS to be exceeded, taking into account the seasonal variation in the assimilative capacity of the water body and with an adequate margin of safety to compensate for any lack of knowledge about the relationship between the pollutant loading rate and the pollutant concentration in water, sediment, and fish or shellfish under those seasonally appropriate design low-assimilative capacity conditions. Although not required by Section 303(d)(1)(C), USEPA requires for each impaired waterbody the development, publication, and review and approval of a watershed water quality management plan to implement the point source WQBELs and nonpoint source BMPs based on the TMDL. This can delay attainment of WQS by years to decades.
After years of foot-dragging enabled by the inaction of the agency responsible for Federal oversight of the state-delegated program, USEPA Region 4 was successfully sued by EarthJustice on behalf of a consortium of environmental NGOs to force USEPA Region 4 to force FDEP to promulgate a numerical Class III WQS for limiting nutrients protective of Florida waters or for USEPA Region 4 to promulgate if the revised WQS were late or deficient. To implement the Court Order, FDEP has proposed a procedure for translating the narrative "no eutrophication" WQS into an equivalent numerical WQS for the limiting nutrient in a water body, either phosphorus (P) or nitrogen (N) as Total P (TP) or Total N (TN). It is based on an acceptable nature (type of stress), extent (spatial area covered by the stressful condition), magnitude (density), duration (length of time of each event), and frequency of recurrence (time between events) of an extreme manifestation of
eutrophication stress, algae blooms. The alternative approach would be to use more subtle, early-warning indicators, like a threshold ratio of healthy to unhealthy algae species, which can be inferred from the carbon(C), N, and P ratios in suspended solids, well below the threshold for a toxic algae bloom.
The approach proposed by FDEP also assumes that the effects of each stressful eutrophication event in each water body are sufficiently short-lived, not cumulative, and reversible that the aquatic ecosystem recovers to the same unstressed condition each time over time, at least out to the planning horizon of the watershed management plan. This set of assumptions ignores the effects of the accumulation of undecomposed organic matter from the only slowly decomposing refractory fraction of algae biomass that deposits on the sediments from the overlying water column as unconsolidated muck. This accumulating undecomposed organic matter temporarily smothers fish and shellfish spawning beds, while contributing to the recycling of P and N back to the overlying water column. In addition, the organic particles in the unconsolidated muck are much more readily resuspended by prop, wind, and wave action than consolidated sediments, temporarily shading out
desirable algae and submersed aquatic vegetation (SAV) species. If the resuspension events are sufficiently long-lived before conditions settle down, the SAV that stabilize the lake bottom can die off. This sets up a vicious spiral of increasingly problematic resuspension events, algae blooms, impaired uses, die-offs of DO-sensitive aquatic animals and then light-sensitive plants, and more limiting nutrient released from sediment storage. This vicious cycle is increasingly evident in Lake Okeechobee, prompted the hydraulic dredging of Lake Trafford, and in the extreme has resulted in permanent loss of SAV in shallow Lake Apopka.
The smothering of a lake to death is what is at risk when we play FDEP's most dangerous game with our precious water resources for the benefit of point and nonpoint sources of limiting nutrient pollution in each watershed. For context and perspective, see the video on the pre-dredging hypereutrophic condition in a a shallow, formerly world-class largemouth bass fishery, Lake Trafford (http://www.youtube.com/watch?v=F3j6HtnKLQw) that prompted its Federal-Florida-Collier County partnership to pay for the apparently successful hydraulic dredging project (http://www.sfwmd.gov/portal/page/portal/xrepository/sfwmd_repository_pdf/spl_lake_trafford.pdf) and the post-dredging conditions that support bass restocking by the Fish and Wildlife Conservation Commission (http://swflorida.blogspot.com/2011/03/colliers-lake-trafford-getting-more.html).
So the assumptions that the consequences of these extreme manifestations of eutrophication stress are short-lived, not cumulative and reversible are demonstrably false, and a water quality management program that is based on these demonstrably false assumptions will result in an increase in the number and degree of nutrient-impaired, hypereutrophic water resources held in public trust for which there is no administrative precedent and no administrative remedy, because, if allowed to continue long enough, the effects are only reversible by in-place stabilization or dredging. However, if the volume of sediments to be stabilized or dredged crosses some threshold of expense the public is unwilling to tolerate, as some claim it has in Lake Okeechobee, then the condition becomes unabatable, and the water body is officially downgraded from Class III fishable and swimmable waters to whatever the unabatable, hypereutrophic conditions will sustain.
Ultimately, command-and-control environmental protection laws have failed, not because the laws are inadequate, but because the administrative agencies tasked with developing, implementing, and enforcing the regulations, standards, and standards-based source controls lack the will to fulfill their official responsibilities in these regards. This is because the backlash from the regulated entities and the politicians they control can damage or destroy a career and the family it supports immediately, while the damage to or destruction of an environmental resources takes a long time to manifest itself unambiguously and it is hard to prove what caused it, so the institutional response is to delay, deflect, and misdirect, until a lawsuit removes the onus of enforcing the law.
However, now even the threat of being found in contempt of court has lost its sting, as evidenced by USEPA Region 4's contempt for Judge Gold's rulings, because nobody pays a fine or has to go to jail for sacrificing the public health, safety, or welfare or the public trust to save one's career and family. As long as this private sector extortion of the public sector is cost-effective, it will continue unabated, because the extortion is profitable, and money talks and nonpoint source controls on odoriferous bovine fecal matter walks.
If responsible agency staff are immune from their administrative negligence in the absence of demonstrable evidence that money changed hands, perhaps it is time to employ other means to obtain the desired ends, such as a constitutional amendment that strips officials of that immunity when their administratively institutionalized nonfeasance, misfeasance, malfeasance, or dereliction of duty, individually or collectively, causes or contributes to severe, widespread, aggravated, and irreversible suffering or mortality of humans, livestock, huntable or fishable wildlife, or threatened or endangered or migratory bird species protected by law. It will still be hard to prove, but perhaps if one's private purse and individual welfare are at risk, the way the game is played with the public purse and public welfare will change. Otherwise, if it gets any worse, the game is over, because agencies are already willing to cave at the drop of a threat, so eventually there will be no resources left to protect.
Larry E. Fink, M.S.
Waterwise Consulting, LLC