Will basin management action plans restore Florida's impaired waters?

• Author: MacLaughlin, Douglas H.
• Position: Environmental and Land Use Law

There are certain traditional American values not to be questioned--the flag, motherhood, apple pie ... and clean water. The value of clean water is not only traditional, it is instilled in our laws. The Florida Legislature declared that pollution of Florida's waters is "a menace to public health and welfare." (1) The Federal Water Pollution Control Act states that it was the national goal that the discharge of pollutants into navigable waters be eliminated by 1985. (2) Yet, to this date, many water bodies in Florida do not meet water quality standards. Based on extensive scientific study, the Florida Department of Environmental Protection (DEP) determined the amount of pollutants that can be safely discharged to many impaired water bodies without violating water quality standards. This acceptable amount of pollutants that can be assimilated into a water body is referred to as the total maximum daily load (TMDL). The Florida Legislature directed DEP to "fairly and equitably" allocate the TMDL among the dischargers of the pollutants to the impaired water bodies. This allocation program is to be implemented through basin management action plans (BMAPs). The legislation is serious about this approach, as it has directed DEP to adopt these BMAPs as final orders that are enforceable by law. As of November 2014, DEP adopted 19 BMAPs and is in the process of adopting many more. Will the BMAPs accomplish their goal and restore Florida's impaired waters? This article explores that question.

What is a Basin Management Action Plan?

While both state and federal laws established comprehensive programs to control discharge of pollutants into waters, the Florida Legislature found that many water bodies are still in need of restoration, and "better coordination" is needed to control point sources of pollution, such as industrial and wastewater facilities and nonpoint sources of pollution. (3) Nonpoint sources, such as runoff from the land draining into water bodies, have been especially difficult to control. (4) As a result, a program based on establishing the TMDLs for both point and nonpoint sources is developing in Florida. The TMDL is the amount of pollutants from all sources that impaired water bodies can assimilate without violating water quality standards. Once the TMDL is established for an impaired water body, the allowable load is to be "fairly and equitably" allocated to both nonpoint and point sources discharging to the water body. (5)

In Florida, the TMDL program set forth in F.S. [section]403.067 is known as the Watershed Protection Act. DEP is designated as the lead agency in administering the TMDL program. (6) DEP developed scientifically based methodologies to identify impaired water bodies in Florida in F.A.C. Ch. 62-303. Once the impaired water bodies are identified and verified, the list is adopted by final order. DEP then develops the TMDL for the water body. (7) The TMDLs are adopted by F.A.C.R. 62-304.

To accomplish the goal of meeting the TMDL in these impaired water bodies, the Florida Legislature directed DEP to establish a program based on watershed basins called BMAPs. (8) The BMAPs are to integrate "management strategies available to the state through existing water quality protection programs to achieve the TMDL." (9) These strategies are to include permit limits on point source discharges, urban and agricultural best management practices for nonpoint discharges, and identification and analysis of any nonregulatory projects in the basin that will reduce the pollution load. (10) A BMAP must equitably allocate pollutant reductions "between or among point and nonpoint sources that will alone, or in conjunction with other management and restoration activities" meet the TMDL. (11) The BMAPs are adopted by DEP as an order, (12) and as such, are challengeable and enforceable the same as any other agency order adopted under F.S. Ch. 120.

What a BMAP Looks Like--An Example

Much effort, time, and cost have been and will continue to be spent in developing BMAPs in Florida. Already, DEP adopted 19 BMAPs, and continues the process to adopt many more for all of the basins containing impaired water bodies throughout the state. (13) The first BMAP, the Upper Ocklawaha River BMAP (UOR BMAP), was adopted on August 14, 2007. (14) Phase II of this BMAP was recently adopted on July 1, 2014. (15) A review of this BMAP, particularly the recently adopted Phase II version, reflects the content of many of the other BMAPs adopted by DEP.

* Identifying the Pollution Load and the Reduction Needed--The UOR BMAP addresses certain waters in the Upper Ocklawaha River Basin in central Florida that DEP identified as impaired, primarily for exceeding the nutrient standard for total phosphorus (most of the BMAPs adopted by DEP address waters impaired by nutrient or fecal coliform violations). In 2003, DEP established TMDLs for 10 impaired water bodies in this basin. Among those water bodies is Lake Apopka.

The UOR BMAP identifies the present load of pollutants, in this case, total phosphorus, which the water body is receiving and then identifies the amount of load the water body can receive and still meet water quality standards (the TMDL). The difference in the amount of load the water body is receiving, minus the amount it should...