1.5. Modern environmental management (1980s to 2000s)

The deluge of new environmental legislation in the 1970s caused a backlash during the 1980s from a property rights perspective (Davis and Arsenault 2005). At the same time, readily observable symptoms of environmental degradation continued to surface. Periodic blooms of blue-green algae, lesions in fish, and fish kills appeared in the St. Johns River (DEP 2002). Each of these conditions was a visible expression of degraded water quality and represented changes that were not acceptable to the public and policymakers.

Since the 1990s, water quality improvements have been achieved in Florida through the seesawing efforts of policymakers and public and private stakeholders (Table 1.1 and Appendix 1.4.1). The policymakers push on the legislative side (via governmental regulatory agencies), while public/private interests push on the judicial side (via lawsuits in the courts). The last four decades have been marked by this oscillation between lawsuits and laws. The result has been incremental and adaptive water quality management.

An important element of protecting the St. Johns River is the possession of a good understanding of the economic impact the river has on the region. To that end, the Florida Legislature in 2013 funded a report on the river’s economic value to the state of Florida (Hackney 2015). This report described the economic impact of the St. Johns River in terms of a conceptual model relating natural functions with natural values, an assessment of wetland importance for flood prevention and nutrient removal, the effect on real estate values along or near the river, the importance of surface water in both water-use and water quality dimensions, and the impact of recreation and ecotourism.

In January 2016, the Florida Legislature signed the Environmental Resources bill into law. This law addressed flow levels in springs, management plans for certain watersheds in South Florida, including Lake Okeechobee and the St. Lucie and Caloosahatchee Rivers, and guidelines for the Central Florida Water Initiative, a multi-agency effort to secure water resources for Central Florida. Business and industry groups, along with environmental groups like Audubon Florida and the Nature Conservancy, have supported its effort to advance protection of water resources. Other groups, such as the St. Johns Riverkeeper and the Florida Springs Council, have opposed the bill, citing weakened protections for land around springs and a lack of emphasis on water conservation (Staletovich 2016) and interbasin water transfer authority for each water management district that exceeds its jurisdictional boundaries.

Another concern is the provision that when any water management district declines a consumptive-water-use permit due to impact on river or spring flow levels, that district must submit its water supply plan to DEP for additional review and revision, thus effectively weakening the water management districts’ authority over permitting (Curry 2016).

DEP has developed new criteria for bacteria at beaches and other recreational waters. Instead of counting the large class of fecal coliform bacteria, the new criteria will specify counts of Escherichia coli for freshwater and enterococci for marine waters. These species are better predictors of bacterial contamination with human health implications. This process was initiated in July 2013 and is complete.

New changes to water quality standards were announced by the DEP in July 2016 (DEP 2017d). These changes would have established new water quality criteria for 39 chemicals that previously had no limits in Florida, such as beryllium, a metal used in copper alloys and the cause of chronic beryllium disease (OSHA 2017). The new rule also updated water quality criteria for 43 other chemicals, for which standards have existed but have not changed since 1992 (DEP 2016d). Some of these changes would have lowered allowable concentrations of chemicals, such as trichloroethylene, a chlorinated solvent used in degreasing applications (Klas 2016). Other changes would have increased allowable concentrations of chemicals, including several discharged by the hydraulic fracturing (“fracking”) and pulp and paper industries (Klas 2016). DEP conducted several public workshops on the proposed rule, and its scientific methods for determining human health criteria and risk factors were developed and reviewed by a group of scientists from universities within and outside Florida, as well as state and federal environmental agencies (DEP 2016l).

The new rule was approved in July 2016 by a 3-2 vote of the Environmental Regulation Commission (Turner 2016). The Environmental Regulation Commission, a seven-member board selected by the Florida Governor, had two vacant seats at the time of the vote: the seat representing the environmental community, and the seat representing local governments (Klas 2016). U.S. Senator Bill Nelson and several U.S. Congress members expressed concern in a letter to EPA Director Gina McCarthy (Turner 2016). Several entities formally requested a stay on the proposed rule, including the city of Miami, Martin County, the Seminole Tribe, and the Florida Pulp and Paper Association Environmental Affairs Inc. (Saunders 2016).

The requests for a stay on the rule were rejected by Florida Administrative Law Judge Bram Kanter in October 2016 (Saunders 2016). Plaintiffs filed appeals in the Florida First and Third District Courts of Appeal.

In 2018, the DEP formally withdrew the rule and initiated new rule making (DEP 2018e). The DEP stated, “The Department of Environmental Protection (department) is initiating rulemaking to consider proposed revisions to the human health-based surface water quality criteria in Rule 62-302.530, Florida Administrative Code (F.A.C). The department intends to conduct a statewide fish consumption survey to more accurately determine the amount and types of fish commonly eaten by Floridians in advance of criteria development and adoption. The human health-based criteria listed in Rule 62-302.530, F.A.C., will be revised based on the results of the survey and any additional relevant data and information collected by the department” (DEP 2018f).

 1.5.1. Implementation of the Total Maximum Daily Load (TMDL) provisions of the Clean Water Act (CWA)

For years, one aspect of the CWA was overlooked until an influential court decision in 1999. Several Florida environmental groups won a significant lawsuit against the EPA, pushing the agency to enforce the Total Maximum Daily Load (TMDL) provisions in the Federal CWA. For many waterbodies, the CWA requires the development and implementation of a TMDL in order to reverse water quality degradation. In the TMDL approach, state agencies must determine for each impaired water body: 1) the sources of the pollutants that could contribute to the impairment 2) the capacity of the water body to assimilate the pollutant without degradation and 3) how much pollutant from all possible sources, including future sources, can be allowed while attaining and maintaining compliance with water quality standards. From this information, agency scientists determine how much of a pollutant may be discharged by individual sources, and calculate how much of a load reduction is required by that source (Pollutant Load Reduction Goal or “PLRG”). Once the required load reductions are determined, then a Basin Management Action Plan (“BMAP”) must be developed to implement those reductions. Monitoring programs must also be designed to evaluate the effectiveness of load reduction on water quality.

Since 1999, the EPA, DEP, SJRWMD, and numerous public and private stakeholders have been working through this TMDL/BMAP process to reduce pollution in the LSJRB. Several TMDLs have been adopted in the LSJRB, including those for nutrients in the mainstem and fecal coliforms in the tributaries. In most cases, adoption of TMDLs is followed by development of a BMAP. According to DEP, “the strategies developed in each BMAP are implemented into National Pollutant Discharge Elimination System (NPDES) permits for wastewater facilities and municipal separate storm sewer system (MS4) permits” (DEP 2008b). A mainstem nutrient BMAP was completed in October 2008. In December 2009, the DEP released the BMAP for fecal coliform in the Lower St. Johns River Tributaries (DEP 2009b). This BMAP addressed ten tributaries for which TMDLs had been adopted in 2006 and 2009: Newcastle Creek, Hogan Creek, Butcher Pen Creek, Miller Creek, Miramar Creek, Big Fishweir Creek, Deer Creek, Terrapin Creek, Goodbys Creek, and Open Creek (DEP 2009b). In August 2010, DEP released the second BMAP to address fecal coliform in fifteen LSJRB tributaries (Tributary BMAP II; DEP 2010a). A progress report on the mainstem BMAP was published in 2016 (DEP 2016m).  Updates on the tributary BMAPs were published in 2016 and progress reports on the tributary BMAPs were published in 2017.

The DEP has also released a new comprehensive statewide updated list of verified impaired waterbodies as of August 1, 2018 (DEP 2018f).

Table 1.2 shows the number of 303(d) impairments in 2004, 2009, 2014, on April 11, 2018 (DEP 2018g), and as of August 1, 2018 (DEP 2018c). It also shows delisted impairments in 2009, 2014, 2017 (DEP 2018b), on April 11, 2018 and as of August 1, 2018 (DEP 2018b). The August 1, 2018 impairments are primarily due to fecal coliform, iron, and dissolved oxygen. Figure 1.6 illustrates the breakdown of the August 1, 2018 impairments. Delistings occurred for a variety of reasons, such as satisfying water quality criteria, or confirmation that natural conditions, not anthropogenic loading, caused the observed impairment, among other things (DEP 2018b).

Current and future efforts to improve the health of the LSJR (and other waterbodies in Florida) will continue to focus on implementation of the TMDL provisions of the CWA. As this process presses forward, Florida’s public and policymakers may continue to find themselves on the litigation-legislation seesaw, as both groups attempt to balance environmental concerns with an exploding population’s desire to dwell and prosper in the Sunshine State.

Table 1.2 Summary of the verified 303(d) 2004, 2009, 2014, 2017 and 2018 lists of LSJR impaired waterbodies or segments of waterbodies requiring TMDLs.

2014239151167Statewide mercury TMDL finalized in 2013, adding many WBIDs to impairment list.
2018 (4/11/2018)
2018 (8/01/2018)11796345
Pie chart of Waterbodies Listed with Verified Impairment
Figure 1.6 Percent of waterbodies or segments of waterbodies listed with various impairments in the
Lower St. Johns River Basin in the 2018 verified list (as of August 1, 2018).

1.5.2. Water Quality Credit Trading

In 2008, the Florida Legislature passed revisions to the Florida Watershed Restoration Act that established the framework for a system of water quality credit trading in the Lower St. Johns River Basin (DEP 2010g). This system allows individual dischargers of a pollutant, such as a local utility or a municipality, to trade credits for nutrients, which consist of total nitrogen and phosphorus. Each individual discharger has a goal for reduction of nutrients. Because some dischargers are able to control nutrients with a very different cost outlay than others, some dischargers meet and even exceed their goals, while others do not meet the goals. Thus, those that exceed their goals possess “credits” that they can sell to those who do not meet their goals.

Prior to 2014, JEA exceeded its nutrient reduction goal and accumulated credits; however, the City of Jacksonville (COJ) did not meet its goal. COJ was required by law to meet 50% of its goal by 2015, so Ordinance 2015-0105, passed by the City Council in April 2015, decreed that COJ would pay JEA approximately $2 million per year over eight years for 30.32 metric tons of credits. This ordinance also established that COJ would gain 10.15 metric tons of credits from FDOT in exchange for a 5% reduction of FDOT’s obligation for nitrogen in non-point source runoff, from 10% to 5%, along with an increase in COJ’s obligation rising from 90 to 95% (Long 2018; COJ 2018). However, on March 22, 2016, COJ and JEA executed a new interagency agreement by which JEA conveys its credits to COJ at no charge to COJ (Kitchen 2016; Cordova 2016). This is accompanied by an agreement between JEA and COJ to contribute $15 million each to a plan to replace septic tanks with sewer lines in existing neighborhoods.

Water Quality, Fisheries, Aquatic Life, & Contaminants