Heroic Work Deserves Thanks, Recognition

By Frank L. Hearne, Esq.

Under the quiet leadership of the Tampa Bay Estuary Program, the Tampa Bay Nitrogen Management Consortium (NMC) has made important strides toward effectively addressing the complicated issues of nutrient loading in the Bay. The NMC brings together the Tampa Bay community including federal and state regulators, local governments and key industry and landowner stakeholders. Together, the group has developed a nutrient management strategy which has made Tampa Bay one of the few urban estuaries in the world where water quality is improving even as populations continue to grow in surrounding watersheds. Given this nearly heroic local effort, it now falls upon Florida Department of Environmental Protection and the federal Environmental Protection Agency to incorporate the efforts of the NMC into other regulatory efforts presently underway.

First, the story of nutrients in the Bay: The huge population growth in the Tampa Bay watershed in the decades from 1950 to 1970 led to a large increase in nutrient additions, particularly from untreated sewage. Among other things, the science showed that the addition of nitrogen is the critical nutrient resulting in increased algal populations which reduced transparency of waters and produced declines in seagrass and therefore fish and shellfish. Scientific understanding of these relationships was buttressed by extensive collection of Bay water quality data over many years by the Environmental Protection Commission of Hillsborough County.

In the 1970s, the construction of advanced waster water treatment facilities by the City of Tampa, increased use of reclaimed water by the City of St. Petersburg and other projects sharply reduced nutrient additions to the Bay. The establishment of the Agency on Bay Management in 1985, encouraged regional review of Bay conditions. The Tampa Bay Estuary Program, established in 1991, focused on comprehensive planning for the conservation and management of the Bay environment.

In the late 1990s, agreements between local governments and private industry established plans for holding constant the total additions of nitrogen to the Bay. The NMC was formed to assess those levels. With the additional management in place, concentrations of chlorophyll fell sharply and the acreage of seagrasses increased markedly.

Next, the federal and state roles: The federal Clean Water Act called for the establishment of regulatory “total maximum daily loads” or TMDLs of particular pollutants in certain impacted water bodies through a complex state-federal process. Importantly, the Florida state regime allows flexibility for local programs like the TBEP to have a role in developing TMDL-related requirements for particular water bodies. If such a program does exist and is progressing toward the goals of the program, the formal TMDL listing and development process would not apply. The TBEP and NMC demonstrated to FDEP and EPA in 2002 that the local plans and agreements could effectively control nitrogen discharges to the Bay. In the last few months, the NMC updated this effort by setting protective nitrogen load allocations for all major sources in the Tampa Bay watershed and submitted the report to FDEP. All along, NMC has kept EPA in the loop. It appears that FDEP will accept this request and the agency should be encouraged to do so by all interested parties.

Meanwhile, at the beginning of the year, EPA proposed very specific numeric limits on nutrients in Florida flowing waters, including those entering Tampa Bay, to replace the more general narrative limits in current state law. This regulatory effort is driven by a consent order resulting from litigation by environmental groups which requires EPA to propose additional similar rules for Florida's estuarine and coastal waters by January 14, 2011. There are many serious questions raised by EPA’s proposals which are the subject of extensive debate, including the scientific basis for the numbers proposed and the practical implications of enforcing them.

Indeed, some reviewers believe that the vast majority of the most pristine waters in the state would not presently meet the proposed EPA standards today. State-wide, numerous public and private wastewater discharges will have to be more highly treated or eliminated altogether at enormous expense.

Happily, the efforts of the TBEP and the NMC may provide at least some degree of assistance to the Bay community in dealing with the draconian federal rules. Based upon 25 years of study, planning, action and cooperation, the Bay community has set forth a reasonable proposal to EPA which should be supported by all interested parties.

Tampa Bay NMC has formally requested that EPA recognize its nutrient control plans as sufficiently protective of the estuary. As such, EPA could and should take these levels into account in setting limits for tributaries of the Bay and use them to form the basis for numeric nutrient criteria for the estuary to be published next year. While this action may not solve the many complex issues raised by the EPA rules completely, at least in the case of Tampa Bay, there will be some basis for moving forward using levels which are both scientifically sound and the subject of community consensus.

If the efforts with FDEP and EPA are successful, the Bay community owes a debt of gratitude to the Estuary Program and the NMC. As a result of their efforts, it may well be that the Bay area is better equipped than other areas of the state to address the severe regulatory challenges to economic prosperity in the future raised by increasingly complicated and severe state and federal water quality limitations.

Frank L. Hearne is an environmental lawyer with the firm of Mechanik Nuccio Hearne & Wester, P.A., in Tampa and is a long-time member of the Bay Soundings editorial advisory board. He holds degrees in water resources engineering and estuarine zoology in addition to his legal credentials.