State Rep. Franklin Sands, D-Plantation (Pic by Mark Foley)
State Rep. Franklin Sands, D-Plantation (Pic by Mark Foley)

State agency cites industry numbers when questioned by lawmakers about water rule costs

By | 04.05.11 | 12:30 pm

When asked by state lawmakers how much new EPA water quality standards may cost Florida businesses, the Department of Environmental Protection supplied them with numbers written by the very industries that could be affected. In doing so, the department vouched for the statistics as the “most ‘likely’” estimates despite the EPA’s vigorous disagreement, and without indicating the business-affiliated source of the numbers.

Cost estimates associated with implementing the EPA’s numeric nutrient standards have varied widely. The EPA has said the criteria are likely to cost the state $1 billion over time, while industry representatives say they could cost as much as $10 billion.

A new examination of internal Florida Department of Environmental Protection emails reveals that the state agency cited those higher industry-derived cost estimates as the “most ‘likely’” when asked for figures by state lawmakers.

With lawsuits piling up, the number of public officials supporting the criteria seems to be dwindling — likely because many of the cost estimates affiliated with implementing them are enormous. In the wake of an economic disaster and a housing crisis, Floridians are wary to support a billion-dollar project, even if a lack of support means more toxic algal blooms and, with them, fish and dolphin kills.

In a recent House Memorial (.pdf), members urged the United States Congress to “prevent the EPA from overextending its mandate and to direct the agency not to intrude into Florida’s previously approved clean water program.”

One likely impetus for the memorial? High cost estimates from the state Department of Environmental Protection:

EPA-generated annualized cost estimates to achieve the numeric criteria ($130-$150 million) differ dramatically from estimates provided by the Florida Department of Environmental Protections (DEP) ($5.7 – $8.4 billion). One study places the estimates for wastewater utilities alone at between $24 billion and $51 billion in capital costs for additional wastewater treatment facilities and annual operating costs between $4 million and $1 billion to comply with the federal numeric nutrient criteria.

In late March, House Democratic research assistant Jessica Koburger contacted the department, asking about its cost estimates. The next day, the department’s Environmental Administrator Ken Weaver wrote to his colleagues to discuss the conversation.

From a Feb. 1, 2011 email obtained through a public records request by The Florida Independent:

I received a call from Jessica Koburger late yesterday afternoon. Ms. Koburger is a Legislative Research Assistant with the House Democratic Office. She contacted me regarding the estimated cost of implementing EPA’s numeric nutrient criteria. She referenced recent newspaper articles with figures ranging from pennies per day per person (EPA-Guest) to three billion dollars (or more) per year. She wants to know DEP’s estimate of the potential cost. I told her that I was just technical guy and not the best person to discuss the economics. I committed to having someone follow-up with her as soon as possible.

Hours later, Frank Nearhoof, science coordinator of the department’s Division of Environmental Assessment & Restoration, replied:

I gave her the estimates out there (ours from last April, one from Cardno-ENTRIX in Nov, and new one from EPA with their final criteria). Told her that Cardno-ENTRIX one is most thorough, since it takes into account uncertainty. That one gives two levels of estimate, one for BMPs & Level of Technology, the other for having to meet numbers at end of pipe. Gives range around each of those. We are currently working with Cardno-ENTRIX (since they have actual, real-life, trained economists on board rather than our make-shift, faux economist (me). I actually felt pretty good when our April estimate fell squarely in the range of theirs (whew!).

Weaver responded that he, too, had given Koburger the same estimate: “I have to admit that I did cite the Cardno-ENTRIX estimates as the most ‘likely’ to her, but wanted her to get the whole story from our resident faux economist.”

The Cardo-ENTRIX report (.pdf) was released in November 2010, and prepared for the Florida Water Quality Coalition, a group of industries that would likely be some of the most affected by the criteria.

James Spratt, the president of the coalition, is also the director of government affairs at the Florida Nursery, Growers and Landscape Association. Others on the Board include Ray Hodge, director of government affairs for Southeast Milk, and Staci Braswell, director of government affairs for the Florida Farm Bureau.

Koburger says that, as a legislative research assistant for the House, her duty was to gather cost estimates and report them to the Democratic members of the House Select Committee on Water Policy.

“I wanted to give Democratic members of that committee time to really understand what was really going on,” says Koburger. “I didn’t take that specific study and say, ‘This is what its going to cost,’ but I took it and said, ‘This is what the DEP says it will cost.’”

Koburger says the Department of Environmental Protection did not tell her that the numbers had been generated by an industry-sponsored study.

“Obviously, I feel that the State of Florida should be correcting its own problems,” says state Rep. Franklin Sands, the ranking Democratic member of the Water Policy committee. ”However, to correct our own problems, we need to have correct information. And some of these estimates seem more like ‘gut feelings.’ If somebody has a gut feeling about whether they should do or not do something, that’s one thing. But you can’t have [a] gut feeling about numeric nutrient criteria. … You need an economist; you need a trained professional. We base our decisions on the information we’ve been given.”

The House Select Committee on Water Policy was put in place in December by Speaker Dean Cannon, R- Winter Park, as a means of examining state water regulations. The Committee’s Chair, Rep. Trudi Williams, R-Fort Myers, has been vocal in her opposition of the nutrient criteria and is currently sponsoring a bill (.pdf) that would prohibit the implementation of the rules.

As an attorney for the environmental law firm Earthjustice, David Guest represented several organizations (including the St. Johns Riverkeeper and The Sierra Club) that sued the EPA over the lack of a strict set of water pollution standards. Their courtroom win led to the proposal of the numeric nutrient criteria by the EPA.

“Instead of taking the bull by the horns and trying to solve the problem, we have our own DEP making up stories about why that’s impossible because the cost is too high,” Guest says. “I find this to be pretty shocking. The public should be able to trust the state DEP to protect public health instead of being shills for polluting industries.”

“The government has expressed reservations about this, and I think that Gov. Scott is well advised to have reservations,” says Guest. “If the state abdicates any role in applying the federal standards, it’s not like the standards are going to away. Those standards will be enforced in court by somebody, somewhere. It’s easier for the state to adhere to these rules rather than to engage in spectacularly expensive court proceedings.”

“Florida is talking about the issue from both sides of its mouth,” Rep. Sands says. “It’s a little bit disingenuous. Those opposed to the criteria say that ‘one size doesn’t fit all.’ But those same people supported the fertilizer bill, which says that ‘one size fits all.’ So which is it — one size fits all or individual rules for waterbodies?”

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