Secretary Michael W. Sole
Florida Department of Environmental Protection
3900 Commonwealth Blvd., MS-10
Tallahassee, FL 32399-3000
RE: Proposed Designated Use Changes
Dear Secretary Sole:
The Clean Water Network of Florida and the Conservancy of SW Florida, along with the additional undersigned organizations, is writing to respectfully request that the Florida Department of Environmental Protection consider alternatives to the proposed designated use changes, which we collectively believe would produce less protective water quality regulations and potentially undermine Florida’s efforts to protect and restore the health of Florida’s waters. As an alliance of 300 local, state and national conservation and environmental organizations dedicated to full implementation and enforcement of the Clean Water Act, we would have the following comments and recommendations on how this proposal would adversely impact Florida’s waters, as well as potential alternative solution.
Right now, we aim to make almost all our waterbodies safe for swimming and fishing – with “swimmable/fishable” as their designated use in water quality regulation. Indeed, the Clean Water Act was established to ensure that, where attainable, water quality be safe for citizens to fish and swim in healthy, productive waters. This water quality objective makes sense even for canals, because when canals aren’t being used for swimming or fishing, they still flow into natural rivers, bays and beach areas which are used for both. Lowering the designated use and corresponding water quality standards of an upper watershed waterbody such as a canal in Orlando will only make it that much more difficult to reach swimmable/fishable standards in the downstream waterbodies such as the Kissimmee River, Lake Okeechobee, or the Everglades. Financially, lowering water quality standards close to where pollution comes from will thwart efforts to ensure that the private sector be accountable in providing additional source control measures on-site - passing the enormous clean up costs to taxpayers downstream.
The success of protecting and restoring Florida’s waters depends not only upon cleaning up the pollution already in the system itself, but preventing additional pollution loads into it from outside areas. This can only be achieved if we maintain the highest water quality standards possible in waterbodies closest to the pollution sources. Creating lower designated use categories would allow additional pollution loading, undermining our ability to require additional source controls and leaving us with the need to fund more pollution clean-up projects around the state.
Clean Water in Florida’s Future Depends on Existing Pollutant Sources Being Adequately Controlled
Currently, waterbodies in the same geographic area generally share the same designated use and thus, are able to be lumped together into subbasins (commonly referred to as “WBIDs”). These WBIDs have been assessed for years according to the water quality standards for their current designated use. Some who have repeatedly not met standards have been deemed impaired and put on the state’s 303d list. Furthermore, some of these impaired WBIDs have gone onto having Total Maximum Daily Loads pollutant thresholds developed and in some cases, even gone onto developing a Basin Management Action Plan (BMAP) to meet that TMDL through outlining retrofitting and additional source control measure requirements.
The proposed designated use changes would substantially stymie this process, with each reclassified waterbody having to be removed from its existing WBID and identified as a new separate WBID. With its lower use and standards, it would most likely no longer be considered impaired and therefore, no TMDL or BMAP created. Additionally, the subbasin WBID it used to reside in would be affected, in some cases no longer itself being considered impaired with no TMDL or BMAP implemented as a result. Years of data would have to be resorted and reanalyzed. Pollutant thresholds and clean-up plans underway would in some cases need to be stopped and revisited. This would further delay and distance us from our overall mutual objective, to keep Florida’s waters clean, safe and healthy for future generations.
Proposed Designated Use Changes Put Additional Burden on Public Interest Groups
Anyone could initiate re-designation to a less-protective "use" category - with the burden of proof shifted from showing that swimmable/fishable standards can’t be met in order to down-grade protection, to also having to prove that standards can be met in order to upgrade and retain protection. For citizen groups or other entities to stop the downgrading of their local waters on a waterbody by waterbody basis would be extremely difficult, if not impossible.
Current Process Provides Flexibility
The current regulatory process allows a waterbody to deviate from the state quality standards for its designated use if scientifically demonstrated it should – through the establishment of site-specific alternative criteria. Pursuing this for waterbodies where exceptional circumstances prevent their attaining their swimmable/fishable designated use would alleviate unnecessary expending of resources for TMDL or BMAP development as appropriate. Additionally, the current regulation also allows a waterbody to change its designated use to another category if demonstrated that it has not and cannot attain its current use. Therefore, the current process provides the flexibility to adequately address most exceptional circumstances.
More Protective Alternative Solution to Proposed Designated Use Changes
The "poster-child" waterway that is being pointed to for why these new classifications are needed is the concrete-lined Franklin Ditch in Tallahassee, which reclassification proponents have argued should not have to be subject to swimmable / fishable standards. For these exceptional circumstances, we agree. We take exception to the idea that there are many “Franklin Ditches” around the state for which local governments are being required to implement a TMDL. However, creating new lower use classifications produces policy ripe for abuse and exploitation for downgrading water quality protections statewide.
We would like to propose a simple alternative solution. Rather than create new broad classifications, such as what FDEP is proposing, the existing Class IV or V designated uses for agricultural or industrial ditches could be revised to include “urban concrete-lined ditches” if scientifically demonstrated to be warranted. This would address the Franklin Ditch and other similar cases, without allowing any other type of waterbody to be downgraded.
We are also aware of the proposed four new aquatic uses, one of which is more protective than the current swimmable/fishable standards and intended to provide additional water quality protection potentially for springs and coral reefs. We are fully supportive of any effort to better protect our Florida water resources. However, a simpler alternative to revising our entire designated use and water quality standards structure would be to give such waterbodies a supplemental more protective designation such as “outstanding natural resource waters”. This would allow upgrading of specific waterbodies where justified, without radically changing the fundamental framework for determining impairment or leaving other types of waterbodies vulnerable to downgrading.
Please support retaining Florida’s current designated use classifications, with the potential addition to existing Class IV or V definitions to include only those specific waterbodies scientifically demonstrated to necessitate unswimmable designated uses and standards. Thank you for your time and consideration in this matter.
Linda L. Young Jennifer Hecker
Director Natural Resources Policy Manager
Clean Water Network of FL Conservancy of SW Florida
c.c. Governor Crist, State of Florida
Jim Giattina, EPA