paving the way to improved water quality

8/7/2019 PAVING THE WAY TO IMPROVED WATER QUALITY

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I. Introduction

As the growth of population continues in Florida, so do the environmental impacts

associated with this expansion. Awareness of this problem after World War II sparked Congress

to enact The Water Quality Act of 1948.1

This act was designed to encourage states to adopt

pollution control measures of their own. 2 Quickly, Congress began to realize that pollution

was not restricted to the geographical boundaries of states. Pollution could travel by air or

water across state lines and be just as damaging to the environment where it traveled as it

could to the environment where it was generated. Thus, a national scheme was necessary to

properly protect our nations water supply.3 In 1972, Congress enacted the Federal Water

Pollution Control Act (Clean Water Act) which empowered the Environmental Protection

Agency (EPA) to control the unpermitted discharge into surface waters.4

The Act also

developed a National Pollutant Discharge Elimination System (NPDES) and required technology-

based controls on dischargers. 5

The statutes were revolutionary because they replaced what had been primarily research

and assistance programs with a scheme to control and enforce water quality throughout the

country.6

To help accomplish EPAs goal to improve water quality with considerations to

chemical, biological, and physical integrity, five water management districts (South Florida

Water Management District, South West Florida Water Management District, St. Johns River

Water Management District, Suwannee River Management District and Northwest Florida

1Robert V. Percival et al., Environmental Regulation Law, Science and Policy 89 (2006).

2Id.

3Id.

433 U.S.C. 1251(a)(5) (2003).

5Id. 1342(a)(1).

6Percival, supra, at 93.


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Water Management District) were created in Florida. 7 These districts operate under authority

mandated to the Florida Department of Environmental Protection (FDEP). Today, these water

management districts play a large role in determining whether development will occur

throughout Florida.

Until the past fifty years, Floridas appreciation of water quality was secondary to

economic and societal benefits. As development expanded across the state, more and more

land was being converted from existing forest and open space to subdivisions and strip malls -

but, at what price? Under the watchful eye of the EPA cities were expanding and merging into

each other. The EPA had a difficult role in this expansion. If EPAs rules are too restrictive on

free market and enterprise, it is possible that its rules could be considered a taking and the EPA

will be sued. If its rules are too lax and industry violates water quality standards, then it can

also be sued. Thus, EPA is forced to walk a tightrope in its creation of law that neatly fits with

the goal of improving water quality while still allowing development to occur. Too much

development though will affect sustainability.

A. Sustainable development in FloridaMost studies that address sustainable development in Florida begin from an

anthropocentric or human viewpoint. At the heart of the issue is maintaining the public water

supply that is readily available, safe and affordable.8 Sustainability of our surrounding

ecosystems should really be at the forefront of this analysis though. The Florida Everglades are

regarded as one of the most pristine treasures in Florida, yet development is squeezing this

733 U.S.C. 1251(a) (2003).

8http://www.fsawwa.org/apps/Draft%20Issue%20Papers/FL2030_SurfaceWater_09-23-08.pdf at 2.


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historic landmark from the east and west. 9 The Aquifer Storage Recovery (ASR) plan is to pump

water into the aquifer during the rainy season for use later. 10 According to Challenges to Water

Resources Sustainability in Florida, the water will have to be treated to drinking water

standards before it is injected and after it is removed.11

The problem, though, is that in the

Everglades region pollutants can enter the aquifer through infiltration.12 This is just one of the

areas of concern across the state. A solution to this problem is more adequate management of

surface waters through revisions to development laws.

One of the major problems with the philosophy of the laws that govern development in

Florida is that development can occur under legislation if no adverse impacts to water quality

are expected. 13 The idea is that if the developer can design a system that matches the water

quality after construction with that of the water quality before construction there is no impact

to the environment. This fundamental principle behind current law in the state of Florida needs

to be refined. I propose that the current laws in Florida should be adjusted to force

development to improve water quality. Environmental Resource Permits should only be issued

after it has been shown by the applicant that the post-development condition will improve

water quality.

The next logical question that flows from this proposal, though, is how much

improvement would the applicant have to show? Technically, one thousandth of a percent of

water quality improvement is improvement. This, however, would simply force designers to

9Joseph J. Delfino, James P. Heaney, Challenges to Water Resources Sustainability in Florida 1 (2004).

10Id.

11Id.

12Id.

13Ralph L. Fanson, Yvette Bonilla, Environmental Resource Permit Information Manual Volume IV 4-8 (2008).


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aim for this goal, and the net effect would be negligible. I propose that water quality laws

should be revised to require applicants to improve water quality by at least twenty percent. The

reasons for this proposed revision are threefold: the inexactness of the science, the need for

improved water quality, and the motivation by development to cheat the science for financial

purposes.

II. Permitting in Florida

For the most part all an applicant has to do now is comply with part IV of chapter 373 of

the Florida statutes, then an Environmental Resource Permit is issued and construction may

begin. 14 So lets take a closer look at the current permitting process in Florida.

The five water management districts primarily permit under the same criteria. However,

different districts have areas of specific interest. For example, the South Florida Water

Management District has a higher awareness on impacts to the Everglades and phosphorous

loadings entering Lake Okeechobee. 15 The Northwest Water Management District, on the

other hand, is particularly concerned with development that is occurring in Santa Rosa,

Okaloosa and Walton counties.16

Regardless of their focus, the permitting criteria that each

district implements is for the most part, the same. Each water management district uses a

basis of review to determine if the proposed project meets water quantity, water quality, and

proper environmental criteria. 17 Though the focus here is water quality, some understanding of

water quantity or the means by which rainfall runoff travels to streams, lakes, retention ponds,

14South Florida Water Management District Website Permits, http://www.swfwmd.state.fl.us/permits/erp/.

15Id.

16North West Florida Water Management District, http://www.nwfwmd.state.fl.us/aboutdistrict.html.

17Fanson, supra, at i.


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wetlands and other water bodies is necessary to help understand why the proposed shift in the

jurisprudence of permitting is important.

A. Water QuantityOne of the major concerns of each water management district is flooding. To prevent

flooding a district is concerned with how an Environmental Resource Permit applicant proposes

to handle the hydrological impacts of the development. In other words, how much more runoff

will be created by the proposed development? This defines how much of the runoff needs to

be stored within the proposed development in an attempt to maintain the pre-development

runoff conditions. In theory, a retention pond is built and the water is channeled via ditch, pipe

or other method to the pond and an outfall structure controls how much water discharges.

This amount is matched to an existing calculation and, if those numbers are close enough, the

water management district can determine that there is no adverse impact to the water body

into which the project is discharging and the applicant has met this aspect of the standards

required under the law. The science, though, is anything but exact. The most widely accepted

method of calculation for runoff in small watersheds is the Soil Conservation Service (SCS)

hydrograph method.18

This method uses the drainage area, a curve number (CN), a time of

concentration, the amount of rainfall, and any depressional storage that would store the runoff

before discharging. 19 The problem with permitting a proposed development under the current

laws though is that each one of these variables presents its own range of uncertainty that

developers can exploit.

18Fanson, supra, at 89.

19Office of Design, Drainage Section, State of Florida Department of Transportation Drainage Handbook Hydrology

21 (2004).


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B. Curve NumberThe Curve Number (CN) is a dimensionless coefficient used in the determination of how

much runoff will occur in a certain area.20

The CN takes into account soil conditions, land cover,

absorption and evaporation. The ends of the spectrum shed light on its function. A CN of 100

means that 100 percent of the rainfall would be considered runoff. On the other hand, a CN of

0 would mean that none of the rainfall became runoff. A CN for each watershed is therefore

always in between 0 and 100. To determine what this number should be designers look to CN

charts that take into consideration all the factors just noted. Charts list CNs based on

hydrologic soil group (A, B, C, or D) and land cover.21 Type A soils generally drain well and

produce lower CNs, whereas Type D soils drain poorly and produce higher CNs.22 The CN

though is picked off a chart based on the land cover within the area. CN tables exist for

impervious area such as roads, open spaces such as fields, or even acre lots for houses built

on acre of land. The list is long and varied to almost any use. A composite or average CN is

then computed based on all the different CNs picked from the chart based on the soil group

and land cover. Part of the problem, however, is since this is such an inexact science, there can

be a tendency for a designer to inflate or deflate the CN depending upon how it is used in the

analysis. Another design variable with intrinsic uncertainty is the time of concentration.

C.Time of ConcentrationThe time of concentration (Tc) is defined as the time it takes for runoff to reach a design

20Id.

21Id.

22Id.


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point.23 There are many acceptable methods for calculating the time of concentration. The

velocity method, kinematic wave equation and the overland flow method are often used. 24

There is an inherent problem, though, with determining the accuracy of this number. How long

it takes for a particle of water to travel over an area of land can be argued to be many different

numbers. From an applicants perspective, this time of concentration can be manipulated in

the right direction and can produce runoff results more favorable to the developers goals.

Unfortunately for the water management district, the science isnt absolute enough to

determine whether a time of concentration calculation is completely accurate or not. Gross

inaccuracies can be detected, but results that are reasonable will pass inspection. Thus,

allowing the applicant a window of opportunity to maximize the development. Another

variable that can be used to maximize a design at the expense of the environment is the

amount of rainfall.

D. Rainfall and frequencyOne of the most basic parameters needed in the analysis of a stormwater system is the

amount of rainfall and frequency used to determine runoff. The water management districts

have rainfall records at gauge locations throughout the state. From these rainfall records at

specified locations, rainfall curves were computed to estimate the amount of rainfall that

statistically will occur at a given location. 25 The result is an array of rainfall in inches based on

how long the storm is measured. The South Florida Water Management District is primarily

23Id. at 2.

24Id. at 6-7.

25Fanson, supra, at C-10.


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concerned with the 25-year 72-hour storm duration. 26 This means the highest amount of

rainfall that would occur statistically once every 25 years over a 72-hour time period. From an

applicant and reviewer standpoint the number is easily obtained from a graph, and

discrepancies would be noticed. There is uncertainty though with how accurate the number

proposed is, when considering the actual amount of rainfall that will occur every 25 years.

Similarly, there are inaccuracies from the creation of the rainfall curves from the gauges.

E. Plan versus ProductAnother area of interest when attempting to calculate how much runoff will be

discharging to downstream waters after construction is the connectivity to the surface water

management device and the design and construction of that surface water management

device. Most commonly used are storm sewer pipes that connect runoff to a water retention

pond and then discharge the runoff to a nearby stream or lake. The runoff is channeled to the

pond for storage for a period of time and then discharged to the stream at a controlled rate

after the runoff has been treated. In theory, the plans approved by a water management

district to construct a surface water management device will be identical to the finished

product constructed by the contractor. But, what if the pond built is slightly smaller? What if

the control structure (weir) that discharges the water does not function as the model

predicted? These are just a few of the areas where imperfection between theory and practice

makes it necessary for a buffer to exist.

26Id. at 78.


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F. Retention PondsOne of the primary functions of a water management districts is to protect the supply and

quality of water resources by regulating the management of surface waters.27

The major

control mechanism used in the cleansing of these surface waters are retention ponds. There

are primarily two types of ponds designed in Florida, wet detention ponds and dry retention

ponds.28 Which one is chosen for the development normally depends upon the depth of the

ground water or seasonal high water table (SHWT) in that location. Wet detention ponds are

designed with the pond bottom below the SHWT, and are intended to have water in them all

year round.29 Dry retention ponds, on the other hand are designed so that the pond bottom is

above the SHWT. These ponds are intended to only be wet for a short period of time after a

storm event.30

i. TreatmentBoth types of ponds serve to purify the runoff before it is discharged to adjacent lakes or

streams. The purification of the runoff is attempted by channeling the runoff to the pond for

cleansing. Once in the pond, the runoff is channeled through the pond to a littoral zone (man-

made wetland within the pond), which is supposed to help remove the sediments from the

runoff before discharge. 31 The amount of runoff required to be stored for cleansing within the

pond before discharging is called the treatment volume.32 For wet detention, this volume is

27South Florida Water Management District Website Permits, http://www.swfwmd.state.fl.us/permits/erp/.

28http://www.florida-stormwater.org/pdfs/pondsarticle.pdf.

29Id.

30Id.


32Id. at 70.


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one inch over the entire area of land or 2.5 inches times the amount of impervious area, 33

whichever is greater within the area to be permitted. For dry detention the volume is 75

percent of that required for wet detention.34

The idea behind the treatment is that oils,

sediments, and other debris will accumulate after development on the ground. Vehicle usage

and other human activities increase the accumulation of pollutants on the grounds surface.

The Clean Water Act defines pollutant as dredged spoil, solid waste, incinerator residue,

sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive

materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial,

municipal, and agricultural waste discharged into water. 35 This is intentionally a very broad and

inclusive definition. Thus, the theory of the treatment component is to capture in the pond all

the pollutants before discharging to nearby lakes or streams.

With these parameters and the control elevation36 a designer, theoretically, now has

enough information to determine how large a surface water treatment facility needs to be. The

applicants goal: build the water treatment facility as small as possible just to meet water

quality standards not to improve water quality. From an applicants perspective improving

water quality would be over design, a waste of usable land, and a financial loss. This,

unfortunately, is the economics of development. The solution then must come from the

permitting side.

33Impervious area is the percentage of the drainage basin occupied by impervious surfaces, such as buildings,

parking lots, and streets which do not allow or minimally allow penetration of water. Office of design, supra, 15.34

Fanson, supra, at 70.35

33 U.S.C. 1362 (6).36

The control elevation is the lowest elevation within the pond where water is allowed to exit the pond through a

control structure. Fanson, supra, at 2.


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ii. Retention Pond Recovery ProcessRegardless of which pond is used, each pond is designed with an outfall structure. For a

wet pond this serves as the primary link for the water to exit the pond, whereas in a dry pond

its serves as a safety measure for larger storm events. The recovery process occurs by

discharging a portion of water within a given period of time to make room for the next storm

event. 37 What happens though when storm events are so close to each other that the pond is

already filled from the previous storm event? For wet detention ponds, which tend to be more

used in the southern portions of Florida and along the coastline, this can be devastating.

Runoff can then exit these ponds almost immediately after entering and bypass the cleansing

process intended by their design.

Surprisingly, many of these systems do not have adequate safeguards in place. Once

constructed, little or no maintenance is done on them and the major hurdle of permitting is in

the past. The real question is whether the water management districts are even aware of when

these systems fail. Similarly, do they have the resources to check every permitted system from

large subdivisions to the convenience store on the corner after a hurricane? What is the

solution after they discover a system has failed and discharged untreated water to a nearby

lake or stream?

Up until 1987, the water quality treatment methods outlined above were the main criteria

thought to be the most crucial in protecting water quality. In 1987, the EPA modified the Clean

Water Act to include section 303(d)(1).38

37Id. at 0-8.

38Id.


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G. Total Maximum Daily Loads (TMDLs)Congress enacted two regulatory strategies to improve water quality, one was

technologically based on end-of-pipe standards and the other was based on ambient water

quality.39

Section 301(a) of the Clean Water Act states that discharge of any pollutant by any

person shall be unlawful.40 The act does allow the discharge of pollutants under section 402 if a

permit is obtained. These permits are technologically based and covered by the National

Pollution Discharge elimination System (NPDES).41 Viewed as one of the success stories of the

Clean Water Act, this section has proven to be very effective in preventing industrial, large-

scale polluters from discharging pollutants to lakes and streams.42 The other prong of the

regulatory strategies, ambient water quality, has attacked the water quality from a different

angle. Section 303 (d) of the Clean Water Act regulates water quality from a theoretical

standpoint examining where the water is currently and where it should be in the future.43 The

methodology behind this is called the Total Maximum Daily Load (TMDL).44

In pertinent parts, this section forces each state to establish a list of waters within its

jurisdiction where the effluent limitations are not stringent enough to achieve water quality

standards.45

The statute also requires each state to prioritize this list of waters based on

severity of the pollution and designated uses of the waters.46 Finally, a state must then set

39

Oliver A. Houck, TMDLs: The Resurrection of Water Quality Standards-Based Regulation Under the Clean WaterAct, 27 Envtl. L. Rep. 10,329, 10,330 (1997).40

33 U.S.C. 407 (2003).41

Id. 1251(a)(5).42

Id.43

Id. 1313(d)(1)(a).44

Id.45

Id.46

Id.


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TMDLs allowable for those waters.47 This list is required to be submitted to the EPA by April 1

every even numbered year.48

The Florida Department of Environmental Protection (FDEP) enacted chapter 62-303,

Florida Administrative Code, in 2001 to implement the 303(d)(1) requirement placed on the

states by EPA. 49 This rule created a methodology for listing Impaired Surface Waters in Florida

and a need to establish allowable TMDLs for those waters considered impaired.50 To complete

the puzzle Florida enacted the Watershed Restoration Act in 1999.51 This act provided a

methodology for the FDEP to list the TMDLs for the impaired waters.52

These Florida rules have

already withstood numerous challenges by environmental groups. The challenges primarily

contested whether or not the Florida rules modified Floridas water quality standards, the

methodology for listing impaired waters, and the lack of enforcement by the EPA.53

A successful

challenge, however, was brought in Sierra Club v. Leavitt, which alleged that the EPAs approval

of Floridas 2002 list of impaired waters was arbitrary and capricious.54 The Sierra Club further

argued that neither should the listing of impaired waters be restricted to data collected only

within the past 7.5 years, nor should the list not include naturally impaired waters.55

The court

agreed with this argument, reasoning that Florida had a requirement under Florida Statutes

47Id.

48

Susan L. Stephens, TMDLS & Impaired Water Listings: The Saga Continues, 1 (2003).49 FLA. ADMIN. CODE ANN. r. 62-303 (2003).50

Id.51

FLA. STAT. 403.067 (2003).52

Id.53

Cynthia D. Norgart, Floridas Impaired Waters Rule: Is There a Method to the Madness? 19:2 J. Land Use &

Envtl. L., Spr. 2004, 349.54

Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 909 (11th Cir. 2007).55

Id.


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130.7(b)(5) to evaluate all existing and relevant available data.56 This certainly was a victory for

improved water quality by having more waters listed as impaired waters, but what about the

waters not listed on the impaired waters list? Why should we wait until the waters are

damaged to apply the more stringent criteria? This promotes development in areas where

water quality is high because permitting criteria will be less stringent. A better approach should

be to apply the TMDLs to all projects, not just those within watersheds that outfall to impaired

waters.

In the early part of 2007, applicants seeking environmental resource permits in Florida

were beginning to submit calculations of pollutants or TMDLs for turbidity, dissolved oxygen,

total phosphorus and nitrogen. 57 The amount of pollutants were estimated before

development and then compared to the post-development condition. The TMDL can be

expressed as the sum of all the point source loads58, the non-point source loads59 and margin

of safety.60 The margin of safety takes into account the uncertainty between the effluent

limitations and water quality. 61 There are inherent problems though with the assumptions

made in determining the amount of pollutants over a watershed. The accepted practice is to

pick from a chart the pollutant amount based on the hydrological soil group62

and land cover.

56Id.

57http://www.nwfwmd.state.fl.us/permits/erp/erp_downloads/62-346(1)-APPLICATION%20FOR%20

stormwater%20permit_10-01-07.pdf.58

point source pollution comes from a single identifiable localized source such as a pipe. Percival, supra, at 629.59 nonpoint source pollution comes from many different sources. Runoff picks up natural and man-made

pollutants and discharges them to nearby streams and rivers. Id. at 586.60

Wayne Magley, Total Maximum Daily Load for Total Phosphorus for Lake Apopka Lake and Orange Counties,

Florida 12 (2003).61

Id.62

Hydrological soil groups range from A,B,C, or D. Soils of type A drain well and are generally sandy type soils. On

the other side of the spectrum are type D soils which drain poorly. Type D soils typically consist of clay. Office of

Design, supra, at B-9.


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For example, within the Lake Apopka Basin, highways that have a maximum impervious area of

50% within soil group A will have 0.710 kg/ac-yr. 63 This method puts no burden on the designer

or applicant to actually determine how much pollutant is within the region. A number picked

from a chart may or may not accurately represent the amount of pollutant within that

watershed. Thus, there is no check and balance as to the validity of that number. I address a

solution to this flaw at the end of this paper.

III. Point Sources versus Non-point SourcesThe TMDL concept is still fairly new to the design world and the court system. Currently

the EPA does not require TMDLs for non-point sources. A non point source is a source of

pollution that does not directly connect to a system before it discharges to a lake or stream. 64

A point source, on the other hand, is a pipe that connects to a river or stream. The South

Florida Water Management Districts basis or review handbook states that the department shall

achieve the highest statutory and regulatory requirement for new and existing point sources.65

Non-point sources are only held to the Best Management Practice (BMP) and cost- effective

standard.66

Although the Florida courts have not addressed this issue, the Ninth Circuit has

addressed this issue twice. In Oregon Natural Resources Councilv. U.S. ForestService, the Ninth

Circuit held that even though non-point sources were proven to be a major cause of pollution in

the nations waters, the Clean Water Act did not allow for the enforcement of non-point

sources.

67

Five years later the court came to a different conclusion. In Pronsolinov. Nastri, the

63Magley, supra, at 59.



66Id.

67Oregon Natural Resources Councilv. U.S. ForestService, 834 F.2d 842, 849 (9th Cir. 1987).


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EPA imposed TMDLs on a river that was polluted by only non-point sources and landowners

brought suit.68 The Ninth Circuit based its reasoning on the broad goal of section 303(d).69 The

court also reasoned that regardless whether the water body was being impacted from point

sources or non-point sources the poor water quality triggered 303(d)(1)(a) to apply.70

This trend

is important to note, but in Florida non-point sources are still not forced to abide by the TMDL

requirements.

A. The Truth Behind Non-point SourcesThe EPA has recently reported that the number one cause of pollution to our nations

water (including Florida) is from non-point sources.71 These pollutants include excess fertilizer,

herbicides, and insecticides from agricultural lands and residential areas, oil and grease from

urban runoff, pet wastes, and sediment from improperly managed construction sites, faulty

septic systems, and many other sources consistent with one thing in common human

modification to the land. Despite this knowledge, though, the EPA still remains unarmed to

fight pollutants from non-point sources and defers this task to the states. One of the reasons

for this, according to Professor Sarah Birkeland, is the fundamental structural flaw

characteristic of ambient approaches to pollution abatement.72

The pollutant to a water body

must be traced from effect back to cause using science that is filled with uncertainty.73 If a

waterbody is determined to be exceeding its TMDL limit in an area with non-point sources,

quantifying who and how much is contributing forces many hydrologic assumptions. Another

68Pronsolinov. Nastri, 291 F.3d 1123, 1125 (9th Cir. 2001).

69Id. at 1135.

70Id.


72Sarah Birkeland, EPAs TMDL Program, 28 Ecology L.Q. 297, 9 (2001).

73Id.


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huge obstacle standing in the way of the TMDL idealistic approach, is the massive amount of

testing required to prove its progress. 74 Each water management district in Florida has been

divided up into five groups of waters where each group is tested once every five years.75

This

process began in 2000.76

In 2008, the Florida Department of Environmental Protection released the integrated

water assessment for Florida Report.77 Under sections 303(b) and section 303(d) of the Clean

Water Act this report is required by law to be submitted to the EPA for an overview of Floridas

surface and ground water quality.78

Not surprisingly, the report states that most of the surface

water quality problems are found in densely populated areas such as Orlando, Tampa,

Jacksonville, and the south east coast. 79 Though it seems these reports have perfected the

identification portion of the TMDL strategy, the implementation of these TMDLs is lagging far

behind. The report states that of the 2,565 TMDLs evaluated in the 1,688 waters of Florida,

322 TMDLs within 166 water bodies have been developed, proposed, or adopted.80 This, of

course, could mean all are proposed and none are adopted. Since the creation of the section

303(d) program, it has never been clearer just how hard it will be to implement this fairly

simple TMDL concept.

It certainly cannot be perceived to be a coincidence that Floridas water bodies with the

worst water quality are located in the areas of heaviest population. Ten years after a water

74

Id.75 Except for Northeast District, they were divided into four groups of waters. This process began in 2000. Florida

Department of Environmental Protection, Integrated Water Quality Assessment for Florida 2008 305(b) Report

and 303(d) List Update 50 (2008).76

Id.77

Id.78

Id.79

Id. at 7180

Id.


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management district permits the construction of a subdivision, it has almost no control of how

much fertilizer a landowner chooses to use. Similarly, oils sediments and debris generated by

the new inhabitants occupying the land are no longer under any government supervision.

Ideally, the runoff from a subdivision is collected in a stormsewer system, sent to a surface

water management system, treated, and then conveyed to a lake. That, however, is assuming

that there is no infiltration. In actuality, some of the runoff (containing fertilizer and oil) seeps

into the ground and makes its way to that same lake untreated. The question of how much

infiltration takes place is based on many scientific uncertainties such as hydrological soil

conditions, land use, storm event, and amount of pollutant. 81 When you couple the

undeniable results of poor water quality in more developed areas of Florida with the

uncertainty of how the development actually affects water quality, a strong solution emerges:

make the design criteria more stringent. It is on this logic and data that I base my proposal that

the water management districts philosophy should be to refrain from issuing a permit unless

the proposed development will increase water quality.

IV. A Hard Look at the Results: Three StudiesIn December of 1991, the St. Johns River Water Management District initiated a study to

determine the water quality effectiveness of its stormwater design criteria.82 Among the

objectives for this study were to determine, first, the water quality of permitted and

constructed projects compared to state water quality standards and, second, correlations

between discharge water quality and design criteria.83

The study tracked the water quality of

81Office of Design, supra, at 2.

82http://www.stormwaterauthority.org/assets/117PPondAssessments.pdf.

83Id.


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24 stormwater ponds that received runoff from single family homes, multi-family homes, roads,

commercial uses, and single family homes with golf courses.84 Water samples were collected at

the treatment facilities outfall or discharge and sent to a laboratory for analysis.85

The samples

were analyzed for physical properties, inorganic / organic concentrations, and metal

concentrations.86 The results from the study illustrated that these permitted ponds produced

water quality discharges below state standards. The water discharging to a nearby stream or

river was below state standards for zinc, copper, dissolved oxygen, and total suspended

solids.87

As noted at the conclusion of this study though, this was not enough information to

change the permitting laws.88

Approximately ten years later another study concerning the water quality of permitted

projects was conducted.89

Dr. Harvey Harper posed this question: Do stormwater

management systems truly mitigate the impacts from new development?90 This study

analyzed primarily the same properties as had been done ten years previously.91 Dr. Harper

estimated the existing amount of pollutants before construction and compared that to the

estimated removal rates of the stormwater treatment facilities. Removal efficiencies were

separated by different types of land uses, hydrologic soil conditions, and types of stormwater

84Id.

85Id. at 1.

86The physical properties analyzed were turbidity, alkalinity, hardness, total suspended solids, total dissolved

solids, temperature, ph, conductivity, and dissolved oxygen. The inorganic / organic concentrations were

sulfate, orthophosphate, total phosphorous, nitrate-nitrite, total Kjeldahl nitrogen (TKN) and ammonia. Themetal concentrations analyzed were calcium, magnesium, strontium, arsenic, iron, zinc, lead, cadmium, copper

and chromium. Id.87

Id. at 11.88

Id. at 12.89

http://stormwaterauthority.org/assets/155PLHarper100.pdf.90

Id.91

The properties were: Nitrogen, ortho-Phosphorous, total phosphorous, total suspended solids (TSS), BOD,

copper, lead, and zinc. Id. at 17.


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ponds. He concluded that current stormwater regulations in Florida do not fully mitigate the

loading impacts caused by development. 92 In fact, he asserted that substantial increases to

treatment volume requirements are necessary to achieve the desired standard in which pre-

development water quality equals post-development water quality.93

Another study by the University of Florida was completed in 2007 for the Florida

Stormwater Association (FSA).94 This study was focused on municipal separate storm sewer

systems (MS4) rather than private land development. The goal was to determine how effective

these stormwater systems were in reducing pollutants.95

The study separated the results into

three basic categories: (1) estimates of mass reduction from stormwater Management

Programs; (2) pollutant reductions from cleaning practices; and (3) the total pollutant reduced

from a stormwater management program.96

The summary of the study acknowledged the

difficulty in determining with any accuracy and precision a TMDL and referred to the

assessment of them as at best a back-of- the-envelope snap-shot in time. 97 The summary

went on to note that the concept of a TMDL is fairly basic but, developing the numbers is filled

with scientific uncertainty.98

Consequently, the results of the study were lacking sampling

uniformity and testing methodology.99

In other words, the samples taken from the bottom of

ponds and measured for pollutants produced results that were unreliable. Thus, there was no

determination made as to how well these ponds were functioning based on TMDL criteria.

92Id. at 48.

93Id.

94http://www.florida-stormwater.org/pdfs/MS4%20Assessment07FinalReport.pdf 6.

95Id.

96Id. at 10.

97Id. at 6.

98Id.

99Id.


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Whats even more troubling is that these government projects or MS4s can go through the

permitting process with less stringent design requirements based on the need for the project.

In theory, government agencies should work together for the greater good of the public.

However, with vastly different agendas, they function to operate quite separately. For

example, the Florida Department of Transportation (FDOT) has a budget to design and

construct roadway projects within the state of Florida. 100 Many of their roadway projects

require an Environmental Resource Permit when a new road is built or a road is widened. The

smaller the surface water management system required by the water management district to

build a road the more FDOT saves on land acquisition costs. Thus, FDOT has little or no

incentive to be concerned about water quality and wants to build retention ponds as small as

possible.

V. The Previously Permitted ProblemThe EPA and water management districts are still implementing changes to try and solve

the water quality issues related to development. Yet, rapid growth continues. The changes

made for new criteria to improve water quality for future development inherently proves

inadequacies in the old. However, previously permitted projects that are constructed are not

subject to new laws.

What would be the cost of retro-fitting old ponds to new design criteria? The Florida

Stormwater Association attempted to answer this question in 2002.

101

The study estimated

that it would cost the city of Tallahassee $27 million to improve its water quality from its

100http://www.dot.state.fl.us/financialplanning/AGENCY_OVERVIEW.pdf 10.

101http://www.florida-stormwater.org/pdfs/2-13-02TMDL.pdf 6.


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currently 30% adequate standing to 45% water quality based on the new TMDL criteria.102 It

further estimated that it would cost the city $127 million to retro-fit the citys water quality to

90% compliance.103

Alarmingly, this $127 million would represent 100 percent of the funding

available from stormwater revenues for decades.104

Based on this information, a cost analysis was then estimated for the entire state. 105Since,

the standard of 90% compliance was simply financially unobtainable, the study turned to a 45%

retrofit based on the per capita population of the state.106 It was estimated that the cost to

implement this 45% retrofit to be over $1 billion dollars based on 2009 dollars.107

The number

estimate was also considered to be low because Tallahassees 30% current water quality is

higher than average across the state.108 Consequently, retrofitting is virtually an impossible

solution. Thus, the approach needs to focus on new development.

VI. Environmental Impacts Caused by DevelopmentThe development of our states infrastructure of roads, bridges, schools, hospitals, and

subdivisions was certainly necessary in part to support the shear volume of people living here,

but this growth has resulted in many negative impacts. The degradation of our states waters

and wetlands has undoubtedly been one of these. Environmental laws have come a long way

from the industrial revolution where any progress justified deforestation and wetlands were

viewed as merely a nuisance. Still, the environmental impact versus human progress balance

102Id.

103Id.

104Id.

105Id.

106Id. at 6.

107Id.

108Id.


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takes place today. In Florida Keys Citizens Coalition, Inc. v. UnitedStates ArmyCorpsof

Engineers, environmental groups sought an injunctive relief against the Army Corps of

Engineers (ACOE), the Florida Department of Transportation (FDOT), and Federal Highway

Association (FHA) for the construction of a highway project in Florida.109

The environmental

groups had numerous challenges. They challenged the decision-making process and ultimate

decision of the federal agencies that approved this project, including: the FDOT decision not to

evaluate the constructive use of the Everglades National Park where the project would impact

and the ACOE decision to issue a permit in violation of the Clean Water Act. The court analyzed

each environmental argument and struck down each one. The court determined that the

Federal Department of Transportation Act (FDTA) allowed the secretary of Transportation to

use public owned park lands if there was no prudent alternative to using that land and the

proposed project includes all planning to minimize the harm resulting from the use.110 This type

of logic is certainly far from an ecocentric point of view and, once again, humans have self-

servingly justified their actions. The court then analyzed the environmental groups second

argument. In determining whether the Army Corps of Engineers properly issued the permit, the

court relied on ACOEs evaluation of probable impacts, cumulative, impacts, and the proposed

activities intended use for the public. 111 Similarly, the impact was justified. The balancing of

harm to the environment versus benefit to humans ends in the same result as it would have

during the industrial revolution, except now a permit is needed.

109Fla. Keys Citizens Coalition, Inc. v. UnitedStates ArmyCorpsofEngineers, 374 F. Supp. 2d 1116, 1122 (Fla. Cir.

Ct. 2008).110

Id. at 1124.111

Id.


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VII. The Precautionary PrincipleThe Precautionary Principle is the basic premise that humans should proceed with

caution when advances in science creates potential for danger to the environment.112

This

principle is used to not stop progress, but to warn that the effects need to be known before

acting. How effective surface water treatment facilities are remains unclear. The three studies

listed within this paper have one thing in common, there is either not information to tell if they

retention ponds are removing enough of the pollutants or the retention ponds are not

removing enough of the pollutants. Either way the precautionary principle suggests

reexamining the methodology behind the science before proceeding. Using this principle,

ultimate proof would be necessary to show that water quality and wetlands are not being

impacted as opposed to the current balancing test.

Although wetland destruction can occur by filling in wetlands, destruction can also occur

from excessive pollutant discharge to wetlands.113 Naturally occurring wetlands have an

existing fragile ecosystem that additional runoff (water quantity) and pollutants (water quality)

can degrade.114

In all circumstances, wetlands should be protected from the adverse affects of

stormwater runoff from development which will lead to plant die off and the destruction of

wildlife.115 Yet despite these known environmental concerns, development and the destruction

of wetlands continue. Between 1987 and 1996 the U.S. Fish and wildlife Service estimated that

644,000 acres of wetlands were destroyed.

116

In this same time period, an additional 30 million

112Rio Declaration ,Princep 15, UNCED (1992).

113http://www.dep.state.fl.us/central/Home/SLERP/Wetlands/LivingWithWet.pdf 2.

114http://www.stormwaterauthority.org/assets/Storm%20Water%20Wetland.pdf.

115Id.

116http://www.balance.org/articles/wetlands.html.


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people were added to the U.S.117 One of the front runners for the path to quickest destruction

is Florida. Estimated to be the seventh fastest growing state and having the most wetlands in

the continental U.S., Florida is arguably leading the nation in damages to the environment

caused by development.118

The idea of water quality trading, however, has gained popularity

which can offset the tremendous growth in Florida.

VIII. Water Quality Credit TradingWater quality credit trading (WQCT) or pollutant trading is a market-based approach to

allow industries, businesses and other forms of development to trade credits for the removal of

pollutants based on the understanding that the costs related to the removal of certain

pollutants can range substantially.119 The goal is not financial gain, but a more cost effective

approach to water quality.120

In theory, this practice could have substantial impacts, but many

of the details have not been finalized. Under EPAs current proposed rules, the Florida

Department of Environmental Protection (FDEP) will hold both trading parties accountable

regardless of fault. 121 This promotes self checking and coordination to reduce potential loop

holes in the transfer process.

One state has already enacted the water quality credit trading laws and codified the

details. 122 On January 1, 2007 Ohio enacted the water quality trading rules. 123 One of the

problems, though, similar to the TMDLs, is that this trading practice adds even more

117Id.

118Id.

119http://www.dep.state.fl.us/water/tmdl/docs/WQ_CreditTradingReport_final_December2006.pdf 2.

120Id.

121F. Joseph Ullo, Environmental and Land Use Law: Water Quality and Credit Training: A Practitioners

Perspective, 81 Fla. Bar J. 60, 60 (2007).122

Ohio Admin. Code 3745-5 (2006).123

Id.


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supervision and testing to an already complicated process. In order to determine when and

where the credits were transferred a system must be in place to validate these transfers.124

More importantly, gauges would be needed to confirm that the water quality credit

trading is functioning properly. This highlights a limitation to the water quality credit transfer

system, testing is needed to prove its effectiveness. However, with out fundamental changes

to the roots of our water quality laws what was a good idea on paper will lead to diminished

water quality in practice. The water quality credit trading system, much like water quality law,

is premised on either no adverse impacts, or a no net cumulative effect on the environment.

This has been the error of the water management districts permitting process.

The water quality credit trading if implemented correctly could lead to improved water

quality. If a more stringent approach is taken, similar to how I am proposing for the

abolishment of no adverse impacts, large gains in water quality improvement could result.

Instead of the credits balancing to zero as if no transfer was occurring, the credits should be

transferred with a net benefit in mind. This should be done for two reasons. First, these cost

savings should translate into improved water quality by forcing an applicant to focus on

improving the overall water quality of a water body as opposed to not adversely impacting it.

Secondly, the monitoring will be difficult. Since pollutants can vary based on the type of

pollutant being tested for and the location tested, a buffer should exist. Thus, any errors in the

calculation, tracking, and testing of these credits, will not necessarily result in diminished water

quality.

124Id.


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IX. The details behind the proposed Water Quality rule changeCurrently an applicant seeking a permit from the water management district for an

Environmental Resource Permit must prove that the development will cause no adverse

impacts to water quality or the environment. Wetland impacts are specifically looked at, but

too often impacts are justified in the name of progress. However, since this is not the current

law, I propose development to improve water quality by at least 20%. This would shift the

current philosophy from no adverse impacts to benefiting the environment by at least 20% and

improvements beyond could be sold to developers within the same watershed. The water

quality improvement by 20% philosophy will help to account for the uncertainties involved in

development. More importantly though, it will change the mind set of permitters, designers,

and possibly the public as a whole to initiate an idea of creating and developing, while

improving the environment. The 20% number could be revised also as time progresses. This

number is logically based and should account for many errors that are either accidental or

intentional. If after five years, improvements to water quality around developments

constructed within that five year time period are not providing results that show improvement,

then this 20 percent should be raised. This number is certainly not fixed at 20 but a start to

change a basic premise engrained in permitting law. Only time will tell what this number needs

to be. It might be 30% improvement, it may even be 100% improvement, regardless of how

much improvement must be proven by an applicant to achieve improved water quality, the

current system of no adverse impacts will be modified to a path where improved water quality

will be possible.


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It is undisputed that the water quality in Florida is poorest in the more densely populated

areas. The combination of small development projects having small amounts of adverse

impacts has had a large cumulative affect. The hydrology, hydraulics, and chemistry of how a

pollutant flows from a developed piece of land to a pond and then to a river is certainly not an

exact science. Miscalculations in time of concentration, CN, pond size, storage, SHWL,

treatment volume, and basin areas are not only hard for the water management district staff to

identify, they can be argued to be different numbers. Thus, there exits a range of correctness,

and it is this range of correctness that has eroded Floridas water quality and continues to

damage the environment. The water quality improvement philosophy will help to account for

these uncertainties.

The economics associated with development is another area where water quality may

suffer based on current law. Each developer wants to use as much of the land for economic

gain as possible. The more parcels he can divide and sell on a piece of property, the more

money he makes. The more land used for surface water management facilities the less money

he can make, generally. This, unfortunately, promotes an economic basis to cheat the science.

With 20 % water quality improvements required, enough buffer is in place to prevent a

developer from profiting at the expense of the environment.

Turning to the TMDL issue, I propose three more stringent requirements on the

applicant. First, geotechnical investigations should be required to determine existing pollutants

within the soils. Currently similar investigations are required for the construction of ponds and

the construction of roads. These same geotechnical samples should be required to determine

what pollutants are existing prior to construction or in the pre-development phase. This would


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encourage the design of each retention pond to more specifically address potential pollutants

within that watershed. Second, retention ponds will be designed to remove at least 20% more

of the pollutants generated by the proposed project. Under this approach an applicant would

have to submit to the water management district detailed calculations that define the existing

pollutants before development and the proposed pollutants after development. The difference

between these pollutant loadings would be the amount required to be removed by the pond

with minimum safety factor of 20%.

Currently, a study is being done for the United States Geological Survey (USGS) by Amy

Kaleita at Iowa State. This study is attempting to show that the uncertainty associated with

sediment TMDLs can be quantified. 125 This information can later be used to better quantify

how much of the pollutants will reach a retention pond for treatment. However, regardless of

how accurate the science becomes a 20% gain should always be required. Third, the best

available water quality measuring devices should be installed at the outfall of each permitted

pond to ensure that pollutants are being removed at the proposed level. This would not

remove the need for water quality testing to occur at downstream locations, but would assist in

the monitoring of the effects that each development has on the water body it discharges into.

The cost would also be paid by developers, as opposed to the current system where the EPA is

forced to pay for various monitoring devices. These measuring devices would also provide

TMDL information for all water bodies by requiring the developer to install them. Currently

under the FDEPs system, TMDLs are only determined for water bodies in Florida that are listed

as impaired. This should be revised. Whether the downstream water body is listed as an

125http://water.usgs.gov/wrri/08grants/2008IA132B.html.


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impaired water should be immaterial. The simple reason behind listing TMDL information for

all water bodies is that If only waters listed as impaired are protected for TMDLs, then many

more of Floridas waters will eventually reach that impaired status.

X. ConclusionIt is undisputed that water quality in Florida is poorest in the most populated areas. With

revisions to the laws that govern development this trend can be altered. The basis of granting

permits has been premised on the idea of no adverse impacts. This is fundamentally flawed

and has been since the issuing of the first permit. Do to the inexact science that surrounds the

impacts on water quality caused by development a more careful approach should be adopted.

The precautionary principle has been applied to many areas where social and economic

advances by humans conflict with protecting the environment. In these cases the

precautionary principle advises to look before you leap. With areas of Floridas coasts

saturated with development and the population continuing to grow, it is time to fundamentally

change the philosophy behind development and water quality. Instead of no adverse impacts,

improvement by 20% water quality should be the new standard at which permits are granted in

Florida. The number of 20 percent is logically based and provides enough buffer for errors

created in design, construction, and maintenance of surface water management systems. The

cumulative effects that have occurred from each new development proposing no adverse

impacts to the water management district and having some adverse impact to the environment

have been devastating. The amendments to the water management districts policies would

have long term effects that will lead to improved water quality. More importantly though, it


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will change the philosophy of designers, builders, permitters, and possibly the general public

that development can and should be improving water quality not negatively impacting it.

paving the way to improved water quality

Documents