March 16, 2017
Ryan E.Mathews
Interim Secretary
Florida Department of Environmental Protection
3900 Commonwealth Blvd, Tallahassee, FL 32399
ryan.matthews@dep.state.fl.us
Jon M. Iglehart
Director of District Management
South District
Florida Department of Environmental Protection
Post Office Box 2549
Fort Myers, FL 2549 SouthDistrict@dep.state.fl.us
Gentlemen:
I am writing as to follow up on my correspondence(enclosed) with the Department relating to what are likely unlawful discharges into Spring Lake in Naples, FL (see my letter of January 17, 2017 and Mr. Iglehart’s response of February 8, 2017).
As a homeowner residing on Spring Lake in Naples, Florida, I and my fellow Spring lake homeowners are concerned about the degraded water quality of Spring Lake.
My January letter raised several questions about the Department’s compliance with— and enforcement of — requirements of the federal Clean Water Act and related Florida statutes as these laws relate to protecting the water quality in Spring Lake; and as these laws relate to the regulation and control of pollutant (waste) discharges into Spring Lake.
Mr. Iglehart’s February reply revealed that the building project at 465 Fifth Avenue South — though already discharging into a City of Naples storm sewer and thence into Spring Lake — had been unlawfully discharging pollutants (wastes) without having previously received an NPDES permit for its discharges as required by both the federal Clean Water Act and Florida state statutes.
Mr. Iglehart’s letter states that — after-the-fact — the Department issued an NPDES permit to the 465 Fifth project and he enclosed a copy of the permit.
Unfortunately, neither Mr. Iglehart’s letter nor the NPDES permit issued by the Department addresses the significant legal problems afflicting both the Department’s actions and the related failure of the 465 Building and the City of Naples to comply with the Clean Water Act’s legal mandates.
Mr. Iglehart’s letter and the NPDES permit issued to the 465 building require only minimal technology based so-called “best management practices” for discharges of pollutants into the City of Naples storm sewer and thence into Spring Lake. Presumably, the City of Naples also has generic “best management practices” NPDES permit for its discharges from its storm sewer(s) into Spring Lake.
But as the Department well knows, these minimal technology-based “best management practices” are wholly inadequate to comply with the much stricter “water quality based” discharge (effluent) limits which must be imposed under the Clean Water Act’s TMDL (Total Maximum Daily Loads) and WLA (Waste Loan Allocation) requirements where the receiving water — here Spring Lake — does not meet the water quality standards established by the State for that body of water.
As you know, the Department is under both a federal Clean Water Act and Florida state statute mandate to investigate and determine if state water quality standards are being met in the water bodies of the state — including Spring Lake. If the water quality standards are being met, the Department can rely on the more lenient technology based limits (typically referred to as “best management practices”). However, if the water quality standards for the receiving water are not being met, the much more stringent water quality based effluent limitations are imposed based upon the TMDL/WLA process. If the state finds that the water quality standards are not being met (e.g., in Spring Lake), the state must declare the water body “impaired” and conduct the TMDL/WLA process to impose more stringent water quality based effluent limitations on discharges such as the discharges by the 465 Building and the City into Spring Lake.
I expressly asked in my January letter whether the Department had conducted the investigation and assessment mandated by federal and state law to determine if the state water quality standards for Spring Lake were: a) being achieved or b) being violated.
“Under the framework described above several mandatory steps should have been taken in assessing whether a TMDL and an associated WLA and water quality based effluent limitations needed to be established for Spring Lake. First the DEP should have conducted an assessment as to whether the required water quality standards are being achieved in Spring Lake. Has the DEP conducted a water quality standards assessment for Spring Lake to determine if the water quality standards applicable to Spring Lake are being achieved?”
(emphasis added)
In response to my question, Mr. Iglehart’s letter provides a confusing and cryptic statement:
“Regarding your questions relating to waterbody assessment and TMD status, the Department does not currently have Spring Lake specifically identified as impaired. “
Does this statement mean that the Department has conducted the mandated investigation of Spring Lake and found that the state water quality standards for Spring Lake are not being violated? Alternatively, does the statement mean (as I suspect) that the Department has not conducted the mandatory investigation and — as a consequence of that failure — “does not currently have Spring Lake specifically identified as impaired”? Put another way: Is the reason the Department does not have Spring Lake “specifically identified as impaired” because the Department has neglected its statutory responsibility and has not even conducted the mandated investigation in Spring Lake to determine if water quality standards are being met or are being violated?
In stark contrast to the Department’s apparent failure toconduct the mandated investigation, a simple visual orphotographic examination reveals that state water standards for Spring Lake are being violated.
State regulations classify Spring Lake as a “Class III water”stating that conditions in Spring Lake shall be suitable for “Fish Consumption; Recreation, Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish and Wildlife”Florida Administrative Code 62-302.400.To protect these uses the Florida Administrative Code provides both narrative requirements and prohibitions (e.g.,to prevent unsightly or noxious conditions) and numeric quantitative limitations on chemical and biologic conditions in the water. See e.g., FAC 62-302.500 Surface Waters: Minimum Criteria, General Criteria.
The enclosed photos show recent noxious conditions near the shore in Spring Lake in the immediate vicinity of the City storm sewer outfall into Spring Lake — with significant chemical or biological surface scum and large unsightly algae blooms. Coincidentally,
since the 465 5th Ave. project pumping began, fish & fish birds of prey, like osprey and eagles, have disappeared from Spring Lake, anda noxious odor has developed.Clearly the water quality limitations of FAC 62-302.500Surface Waters: Minimum Criteria, General Criteria are being violated.
On behalf of Spring Lake homeowners, I respectfully ask the Department to order a halt to discharges from the 465 Fifth project until the Department has developed and imposed the required water quality based effluent limitations (based on the TMDL/WLA process) needed to ensure that water quality standards will be met in Spring Lake. Further, I respectfully ask that the Department impose a moratorium on permitting any new discharges from any other sources to and through the City storm sewer system until the Department conducts the required TMDL/WLA process. Finally, I ask that appropriate water quality based effluent limitation be imposed on all City storm sewer discharges into Spring Lake after the TMDL/WLA process is completed.
In closing I must observe that the entire Clean Water Act framework — i.e., water quality standards, impairment assessment of water quality standards in receiving waters, development of TMDLs and WLAs, and water quality based effluent limitations more stringent than the more lenient technology based limitations — is not some new mandate.
This mandatory framework has been the law for more than 45 years. It’s time that the Department and dischargers such as the 465 Building and the City be required to obey the law.
Respectfully yours
John McGarry, Esq
641 West Lake Drive
Naples, FL.
Enclosures
Kevin O’Donnell, FDEP (Kevin.ODonnell@dep.state.fl.us)
Marisa Carrozzo, Conservancy of SW Florida (marisac@conservancy.org)
Anne Heard, USEPA, Region 4 (heard.anne@epa.gov)
Bill Barnett, Naples Mayor (mayorbill@naples.gov)
Linda Penniman, Naples Vice-Mayor (lpenniman@naples.gov)
Reg Buxton, Naples Councilor (rbuxton@naples.gov)
Doug Finlay, Naples Councilor (dfinlay@naples.gov)
Michelle McLeod, Naples Councilor (mmcleod@naples.gov)
Sam Saad III, Naples Councilor (ssaad@naples.gov)
Ellen Seigel, Naples Councilor (eseigel@naples.gov)
Bill Moss, Naples City Manager (citymanager@naples.gov)
Gregg Strakaluse, Naples Streets & StormwaterDepartment (gstrakaluse@naples.gov)