The deluge of new environmental legislation in the 1970s caused a backlash during the 1980s from a variety of perspectives (Merchant 2007; Davis and Arsenault 2005). At the same time, readily observable symptoms of environmental degradation continued to surface. During the 1990s, stormwater run-off, failing septic tanks, and other factors imperiled water quality and contributed to algae blooms in the LSJRB (DEP 2002; Crooks 2004; SJRWMD 2010a).
Such conditions have not been acceptable to the public and policy makers. Since the 1990s, water quality improvements have been achieved in Florida through the seesawing efforts of policymakers and public and private stakeholders (see Interactive Timeline and Appendix 1.4.1). The policymakers take legislative and executive approaches, while public/private interests promote judicial actions (via lawsuits). The last four decades have been marked by this oscillation between lawsuits, laws, and executive actions, resulting in incremental and adaptive water quality management. Since the 1980s, adaptive management has included replacement of failing septic tanks, upgrading of wastewater treatment facilities, and requiring the construction of stormwater retention ponds (Crooks 2004). Such efforts have continued into the 2000s, as government agencies work with developers, farmers, forestry interests, and the general public to reduce nutrient discharges into local wetlands and streams (State of the River Report Section 2; Bauerlein 2021a). The increased duration and frequency of blooms (due to nutrient discharges), observes Dale Casamatta, “are perhaps the most difficult issue to manage in aquatic ecology” (State of the River Report 2023 Section 1.1).
- Implementation of the Clean Water Act and the Total Maximum Daily Load Provisions of the Clean Water Act
Implementation of the Clean Water Act (CWA) has also been a key feature of adaptive water quality management. A comprehensive law, the CWA seeks to restore and maintain the physical, chemical, and biological integrity of the nation’s waters. Specific features include: (1) federal assistance to the states and cities to enhance wastewater treatment; (2) prevention of all discharges of pollution from point sources (those coming from a specific, identifiable outfall, pipe, or discharge point) without an approved permit; (3) creation of water quality standards for all of the nation’s navigable waters; (4) establishment of state programs to identify bodies of water that do not meet water quality standards; (5) restoration of polluted waters through enhanced wastewater treatment and other methods (EAO 2020; EPA 2020d). Provisions of the CWA that address point source pollution have been very successful. As many as half of the nation’s bodies of water are far cleaner today than they were before passage of this legislation (Andreen and Jones 2009).
In Florida, the FDEP is the main agency tasked with enforcing provisions of the CWA. The state has also established its own surface water quality standards, which help address particular bodies of water. In Florida, there are six designated use standards, the most common of which is Class III, which is a water body that is suitable for “Fish Consumption, Recreation, Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish and Wildlife” (DEP 2020a). To attain designated standards for each body of water, the CWA also requires states to submit a list of “impaired” (polluted) waters to the EPA every two years. The impaired category is typically based on whether the water body meets specific chemical and biological standards or exhibits safety risks to people. Once a state has an approved or “verified 303(d)” list of impaired waters, it must develop a management plan to address the impairments (EPA 2020a).
For years, a key provision of the CWA was overlooked until an influential court decision in 1999. That year, several Florida environmental groups won a significant lawsuit against the EPA, pushing the agency to enforce the Total Maximum Daily Load (TMDL) provisions of the CWA. Under the law, the states must develop and implement a TMDL for each body of water designated as impaired under Section 303 (d). Accordingly, 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 (EPA 2020a; EPA 2020b).
In terms used under the CWA, a TMDL = (WLA+LA+MOS), where:
- WLA, or Waste Load Allocations are “. . . point sources that receive a waste load allocation,” where “. . . point sources include all sources subject to regulation under the National Pollutant Discharge Elimination System (NPDES) program, e.g., wastewater treatment facilities, some stormwater discharges and concentrated animal feeding operations (CAFOS). . .”
- LA, or Load Allocation is the allowable pollution load from non-point sources where “. . . nonpoint sources include all remaining sources of the pollutant as well as natural background sources.”
- MOS, Margin of Safety is an amount to compensate for error (EPA 2020a; EPA 2020b).
Once the required load reductions are determined, then a Basin Management Action Plan (BMAP) must be developed to implement those reductions. According to the FDEP, “BMAPs contain a comprehensive set of solutions, such as permit limits on wastewater facilities, urban and agricultural best management practices, and conservation programs designed to achieve pollutant reductions established by a total maximum daily load (TMDL).” BMAPs also involve local input and commitment, and are enforceable by Secretarial Order (DEP 2020b).
As an alternative to this federal process, the FDEP encourages local communities to develop their own plans to restore waters that do not meet state water quality standards. As the FDEP notes, “Early implementation of restoration activities is more cost effective, and may allow the Department to forgo certain regulatory steps (most notably, the development of total maximum daily loads [TMDLs] and basin management action plans [BMAPs]), thereby focusing limited local and state resources directly toward measures that will improve water quality” (DEP 2020a).
Figure 1.14 represents the entire federal process – from water quality assessment through TMDL.
As a result of this process, the FDEP has recently designated numerous tributaries as impaired according to Section 303(d) of the Clean Water Act. Figure 1.15 represents a list of tributaries, selected for inclusion here because they are designated as “high” or “medium” in terms of the state’s priority for addressing impairments and because they are relatively well-known. Not all reasons for impairment are listed here. Generally, “high” refers to streams where the impairment poses a “. . . threat to potable water or human health . . .” and/or which are to be addressed within the next five years. Those designated as “medium” are generally to be addressed within a five to ten-year period, depending upon resources (DEP 2021b; DEP 2021a). In the table, “WBID” represents the “Water Body Identification Number” assigned to each discrete body of water, while “Designated Use” represents the state’s desired water quality standard, according to the state’s interpretation of the CWA. Under these regulations, a designation of “3F” refers to a body of fresh water that is suitable for “recreation, propagation, and maintenance of a healthy, well-balanced population of fish and wildlife.” Likewise, a designation of “3M” refers to a marine body of water that is suitable for “recreation, propagation, and maintenance of a healthy, well-balanced population of fish and wildlife” (DEP 2021b; DEP 2021a).
Please see the more detailed discussion of the tributaries in Section 2.7 of the State of the River Report.
Since 1999, the FDEP, SJRWMD, and numerous other 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 main stem and fecal coliforms in the tributaries. In most cases, adoption of TMDLs is followed by development of a BMAP.
The development of a fecal coliform TMDL for Hogan Creek illustrates this process. Originally, the FDEP determined that Hogan Creek should meet the water quality standard of a Class III stream; that is, it must be suitable for recreation and fishing. From 1996 to 2003, FDEP sampled water in Hogan Creek and determined that the stream exceeded acceptable levels of fecal coliform contamination in almost every month sampled. The FDEP then surveyed likely sources of fecal coliform in Hogan Creek and determined percentages of loading from permitted industrial plants, failing septic tanks, leaking sewer lines, and other sources. Finally, the FDEP determined that a 92% reduction in fecal coliform loading was necessary to restore Hogan Creek to a Class III stream. The final Fecal Coliform TMDL from 2006 reflected these conclusions. Actual implementation of the TMDL occurs through a BMAP (DEP 2006; DEP 2008b).
As part of this overall process, a main stem nutrient BMAP for the LSJRB was adopted in 2008. In 2009, the FDEP also released a fecal coliform BMAP for ten Lower St. Johns River tributaries (DEP 2009b), and in 2010, a second fecal coliform BMAP for 15 additional LSJRB tributaries (DEP 2010a). The FDEP has published an update on the main stem BMAP and on the tributary BMAPs in its 2020, Statewide Annual Report (DEP 2021d).
In early 2022, the City of Jacksonville reported that it might fall short of its requirement to reduce nitrogen loading in the river under the 2008 nutrient BMAP. According to the BMAP, the city has until December of 2023 to achieve a total reduction of about 107 metric tons. Some current efforts include the irrigation ordinances (2008-030 and 2009-360) that prohibit irrigation between 10 am and 4 pm; handheld watering is excluded, as well as the fertilizer ordinances (2008-028 and 2009-360) that address application and storage requirements (COJ 2023b).
As of January 2022, the city projected that it could fall 44 metric tons of this goal. Since then, COJ Mayor’s office has been considering ways to further reduce nutrient loading in the river (Long 2022; Patterson 2022c; Patterson 2022a).
Based on the recent history of environmental management in the LSRJB, and existing laws, current and future efforts to improve the health of the LSJRB will continue to focus on implementation of TMDL provisions of the CWA and other policies (State of the River Report Section 2). As this process presses forward, Florida’s stakeholders may continue to find themselves on the litigation-legislation seesaw, as they attempt to balance environmental concerns with an exploding population’s desire to dwell and prosper in the Sunshine State.
Of note is a recent US Supreme Court decision in Sackett v. Environmental Protection Agency, whereby water bodies are protected under Section 4 of the Clean Water Act only if they have a continuous surface connection. This means that if wetlands do not abut streams, rivers, lakes or oceans, they are not protected from activities that discharge pollutants or fill material into them (WSC 2023; EPA 2023b; Weiss and Martin 2023).
1.5.2. Water Quality Credit Trading
In 2008, the Florida Legislature established the framework for a system of water quality credit trading in the Lower St. Johns River Basin (DEP 2010g). This system has been extended to other BMAPs in the state, with each individual discharger of nutrient pollutants now has a goal for reduction of those nutrients. Because some dischargers can control nutrients more effectively than others, some dischargers meet and even exceed their goals, while others do not meet the goals. Those that exceed their goals earn “credits” which they can sell to those who do not meet them (FDOS 2016).
Prior to 2014, JEA exceeded its nutrient reduction goal and accumulated credits; however, the City of Jacksonville 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 run-off, from 10% to 5%, along with an increase in COJ’s obligation rising from 90 to 95% (Long 2018; COJ 2018; EPA 2020b). 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 (Kitchen 2016).
The most recent updates water quality trading arrangements (as of February 17, 2023) in the LSJRB are listed at the Florida Water Quality Trading Registry (DEP 2020h).
1.5.3. Other Laws and Executive Actions
An important element in 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, in 2013, the Florida Legislature funded a report on the river’s economic value to the state of Florida. This report described the economic impact of the St. Johns River in terms of a conceptual model relating natural functions and ecosystem services with natural values, an assessment of wetland importance for flood prevention and nutrient removal, the effect on real estate values near the river, the importance of surface water in both water-use and water quality dimensions, and the impact of recreation and ecotourism (Hackney 2015).
In January 2016, the Florida Legislature passed the Environmental Resources Bill. This law addressed flow levels in springs, management plans for certain watersheds in South Florida, and guidelines for the Central Florida Water Initiative (CFWI) (CBSMiami 2016). The CFWI is a collaborative, regional planning effort intended to ensure sustainable, long-term water supplies for Central Florida, using coordination between agencies, conservation, and the identification of alternative sources of water (CFWI 2020). Business and industry groups, along with environmental groups like Audubon Florida and The Nature Conservancy, have supported this effort to protect water resources. Other groups, such as the St. Johns Riverkeeper and the Florida Springs Council, have opposed the bill, claiming weakened protections for land around springs and a lack of emphasis on water conservation, among other things (Staletovich 2016).
In January of 2019, Governor Ron DeSantis issued Executive Order 19-12 focusing on water resources. This Executive Order:
- Instructed FDEP to establish a septic tank remediation and grant program.
- Instructed FDEP to prioritize accountability and transparency regarding water restoration projects.
- Instructed water management districts to prioritize projects that address harmful algae blooms and maximize nutrient reductions.
- Instructed FDEP to engage with governments and stakeholders to identify alternative water supplies to meet the needs of Florida’s growing economy, and encourage conservation and reuse of water (DEP 2019d).
- Established a Blue-Green Algae Task Force (focusing mainly on bodies of water in South Florida) to study the problem of blue-green algae, to make recommendations on restoration efforts, and to provide guidance on regulatory solutions, among other things (DEP 2019f; DEP 2019b; DEP 2020c).
In July 2020, the Florida Legislature passed (and the governor signed) SB 712, the “Clean Waterways Act.” The legislation authorized the following measures, among other things:
- Transferred monitoring of septic tanks from the Department of Health to FDEP and adopted other measures to enhance the remediation of septic tanks in BMAPs.
- Required the creation of wastewater treatment plans for “certain BMAPs” while also providing access to a grant fund for enhancing wastewater treatment and reducing nutrient pollution.
- Required FDEP to upgrade its stormwater permitting, monitoring, and management procedures.
- Required the Department of Agriculture and Consumer Services (DACS) to perform regular monitoring of agricultural producers enrolled in Best Management Practice (BMP) programs, among other actions.
- Required entities engaged in the application of biosolids to enroll in BMP programs and to restrict application of biosolids in other circumstances. Allowed local entities to maintain existing biosolid regulations (FloridaSenate 2020).
SB 712 garnered mixed reactions from stakeholders. While the law enjoyed support from both parties in the Florida State Legislature and from the FDEP, environmentalists were sharply critical. They faulted the bill for ignoring some recommendations of the state’s Blue-Green Algae Task Force and for not allowing local governments to pass their own laws to protect waterways. Environmentalists also criticized the bill for not sufficiently restricting nutrient discharges from agriculture, among other things (Downey 2020; FGO 2020; Cassels 2020; Turner 2020).
In addition, SB 64, signed by the Governor in 2021, required that certain public utilities submit plans to FDEP for the elimination of “nonbeneficial surface water discharge within a specified time frame.” The law also provided incentives for utilities to develop “potable reuse,” and/or “graywater technologies” (Long 2022; FloridaSenate 2021).
Since 2021, the State of Florida has adopted additional measures to address water-related issues. In June of 2022, Governor Ron DeSantis signed a budget which included some $286 million for water projects in various parts of the state, in addition to $75 million for springs (Lake City Reporter 2022). The St. Johns River Water Management District also allocated $20.5 million for projects to reduce nutrient loading, more than half of which will go to Volusia, Flagler, and St. Johns County (Kustura 2022).
At the same time, however, some critics maintain that the State of Florida has not done enough to protect its waterways. In April of 2022, the state’s Blue-Green Algae Task Force charged that the State Legislature was not acting quickly or forcefully enough to implement recommendations of the Task Force. Specific concerns included a lack of attention to BMAPs and sewer overflows, and inadequate protection of public health from algae blooms (Chesnes 2022). In the summer of 2022, a coalition of environmental groups issued its own progress report on the state’s efforts to control blue-green algae, noting several areas for improvement (St. Johns Riverkeeper 2022).
1.5.4. Other Issues
The potential for flooding along the Lower St. Johns River has also encouraged measures to modify and adapt to the environment. Among other things, the City of Jacksonville has participated in the Federal Emergency Management Administration (FEMA) Floodplain program. Under this program, FEMA incentivizes the purchase of flood insurance, the construction of buildings with higher foundations, and the ability of structures to withstand higher wave pressure (COJ 2020b; Clayton 2021). Like many other cities, the city of Jacksonville has also established a resiliency committee. In 2020 and 2021, a City of Jacksonville Special Committee on Resiliency (Special Committee) drew from the expertise of dozens of stakeholders to assess threats from flooding, sea level rise, storms, and climate change. These stakeholders included not only the City of Jacksonville and JEA, but also the ACOE, the FDEP, the Northeast Florida Regional Council, private interests, environmentalists, and others. In its Final Report, the Special Committee reported: (1) that sea level rise, climate change, and other factors pose a particular threat to neighborhoods; (2) more information was needed on the effects of dredging in the St. Johns River; (3) more attention is needed on septic tanks; (4) urban greenspace can mitigate the effects of flood waters; (4) resiliency issues should guide development; and (5) that the COJ should hire a City Resiliency Officer (Lahav 2021; Rivers 2021a). COJ subsequently hired Anna Coglianese as its Chief Resiliency Officer (Rivers 2021b). Ms. Coglianese is working with COJ officials and outside experts to assess vulnerabilities to sea level rise and hurricanes. According to Coglianese, the assessment will be used to create land use regulations and public works guidelines (Patterson 2022b).
Biosolids represent another issue in the LSJRB. Biosolids are the organic materials produced when sewage sludge is treated to remove harmful pathogens and heavy metals such as arsenic and lead. In the early 1990s, the federal government responded to concerns that the disposal of sewage sludge was polluting the sea and the air and issued regulations to govern its handling. Since biosolids are rich in nutrients, the federal government has also encouraged the recycling of biosolids as soil additives and as fertilizer for farms, ranches, and other lands (Perkins 2019). In 2010, the Florida Legislature adopted Florida Code 62-640, which regulates biosolids. Under the law, the FDEP classifies biosolids as either
“B,” “A,” or “AA,” depending upon the treatment method used to reduce pathogens and on the concentration of metals such arsenic, cadmium, and copper, among other substances. Class AA biosolids demonstrate the highest level of treatment and can be marketed as commercial fertilizer (State of the River Report Section 2.3; DEP 2019d; Perkins 2019).
Since the early 2000s, the recycling of biosolids on agricultural land has become a major environmental issue in Florida. Concerned about the effects of excess nutrients in South Florida watersheds, the Legislature banned the application of Class B biosolids in that part of the state. Instead, utilities began transporting biosolids north, to Indian River County and other lands near the headwaters of the St. Johns River. Since 2018, experts have suspected that nutrients leaching from biosolids in this part of the state are contributing to phosphorous pollution and algae blooms in Blue Cypress Lake, near the southern reaches of the river (Patterson 2018). Since about two thirds of all nutrients entering the LSJRB come from the middle and upper basins of the river, fertilizers and biosolids used in these parts of the river likely impact the LSJRB (Rivers 2018; COJ 2019).
As noted in Section 2.3.3 of this report, the state has established a committee to evaluate this problem and recommend new rules to regulate biosolids. Discussions have also been under way at the FDEP for new rules to regulate biosolids, with emphasis on tighter monitoring of the permitting process, more attention to nutrient pollution, and compliance with BMAPs. In 2021, the Florida Legislature ratified changes to Rule 62-640, which regulates biosolids. Among other things, the revised rule, “. . . establishes minimum requirements for biosolids which are to be applied to land for agricultural purposes, distributed and marketed, or used for land reclamation. Included are biosolids which are composite with yard trash, wood chips, or similar bulking agents and ultimately applied to land or distributed and marketed” (Patterson 2019b; DEP 2020d; DEP 2020j; FDOS 2021).
Another recent political development is the state approval of utilizing phosphogypsum as a pavement aggregate in road building in Florida. This waste byproduct of the fertilizer industry is considered radioactive and may pose a threat to water sources road construction crews (Chappell 2023). This new law, House Bill 1191, which compels the Florida Department of Transportation (FDOT) to conduct feasibility studies utilizing phosphogypsum and make recommendations by April 1, 2024 (Noel 2023). This new rule still requires Federal EPA review, and over 30 environmental organizations across the southeastern US have urged Governor DeSantis to veto this bill (Clark 2023; Noel 2023).