March 29, 2017
Mr. Kevin O’Donnell
Environmental Administrator
Watershed Assessment Section
Division of Environmental Assessment & Restoration
Florida Department of Environmental Protection
2600 Blair Stone Road MS #3560
Tallahassee, FL 32399
Kevin.ODonnell@dep.state.fl.us
Dear Kevin:
Thank you for your e-mail of March 28th. In it you refer to the voluminous set of regulations set forth in FAC 62-303 “Identification of Impaired Surface Waters”. Your e-mail asserts that before a water body such as Spring Lake can be protected with protective water quality based effluent limitations on the discharge of waste waters into the lake — based on the Total Maximum Daily Load (TMDL) (and related Waste Load Allocation (WLA)— processes of the federal Clean Water Act — the State must “meet certain data sufficiency requirements” to justify designating the water body (here Spring Lake) as “impaired”.
You suggest that — in order to reach the conclusion that Spring Lake is “impaired” and thus eligible to have Spring Lake’s water quality protected with stringent water quality based effluent limitations — the residents who live on the shores of Spring Lake must await a laborious bureaucratic assessment by your Department governed by dozens of pages of single-spaced regulations set forth in FAC 62-303.
I respectfully disagree. I submit that the threshold question of whether Spring Lake’s water quality standards are being violated can be readily answered today by paraphrasing the well-known maxim:
“If it quacks like a duck, walks like a duck, and swims like a duck, it’s a duck”
Similarly, the visual and photographic evidence that we have submitted to you demonstrates conclusively that the State narrative water quality standards for Spring Lake are currently being violated. As I stated in my March 16th letter to Secretary Mathews and Mr. Iglehart:
“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 State’s narrative water quality standards for Spring Lake are very explicit:
“62-302.500 Surface Waters: Minimum Criteria, General Criteria.
(1) Minimum Criteria. All surface waters of the State shall at all places and at all times be free from:
(a) Domestic, industrial, agricultural, or other man-induced non-thermal components of discharges which, alone or in combination with other substances or in combination with other components of discharges (whether thermal or non-thermal):
1. Settle to form putrescent deposits or otherwise create a nuisance; or
2.Float as debris, scum, oil, or other matter in such amounts as to form nuisances; or
3.Produce color, odor, taste, turbidity, or other conditions in such degree as to create a nuisance”
(e) A violation of any surface water quality criterion as set forth in this chapter constitutes pollution.”
(emphasis added)
As the photos which I have enclosed in my earlier letters to the Department (and enclosed again) visually prove, the discharges coming from the City’s storm sewer discharging into the North end of Spring Lake are producing scum, oily matter and nuisance algae in quantities that are causing a nuisance and which are incompatible with the classification of Spring Lake as a recreational body of water. Clearly these conditions constitute a violation of the State’s water quality standards in Spring Lake.
As I said earlier – if it “quacks like a duck …. It is a duck”. Without question, our visual and photographic examination of Spring Lake demontrates nuisance conditions — and that the State’s water quality standards are being violated. Therefore, the central question that serves as the foundation for more stringent protective water quality based effluent limations under the TMDL/WLA process of §303(d) of the Clean Water Act has been answered.
This indisputable conclusion — that the water quality standards for Spring Lake are currently being violated— leads to what we lawyers call an a fortiori (i.e., logically
necessary) conclusion that the current total loading of both point and nonsource pollutants into Spring Lake is causing the violations of the water quality standards in Spring Lake. Therefore, there is an equally indisputable conclusion that Spring Lake is an impaired body of water under §303(d) of the federal Clean Water Act — i.e., a water body where the technology based effluent limitations (e.g., “best management practices”) are insufficient to achieve the state water quality standards for Spring Lake.
Necessarily following from these conclusions is the State’s responsibility under the federal Clean Water Act to develop the TMDL, Waste Load Alocation, and water quality based effluent limitations needed to a) achieve compliance with the state water quality standards in Spring Lake and b) prevent future violations of these water standards.
We cannot understand why — with the clear legal obligations of §303(d) of the Clean Water Act in the United States Code since 1972 — the State has not met its §303(d) mandatory responsibilities as to Spring Lake. Nor can we understand why the State has allowed and continues to allow additional wastes (such as the 465 Fifth project) to be discharged into Spring Lake without providing the water quality based effluent limitations (based on §303(d) TMDL/WLA) needed to prevent continuing water quality standards violations in Spring Lake.
You state in your e-mail that you are coordinating with the DEP staff “to formally address the issues” I have presented to you in my earlier letters. On behalf of my fellow Spring Lake homeowners, I respectfully ask that the DEP take the following actions:
1. Please undertake whatever bureaucratic processes the Department feels it needs to pursue to formalize what is “self-evident” to even the most casual observer — the water quality standards for Spring Lake are being violated and the current lenient “best management practices” effluent limitations allowed by the DEP are insufficient to achieve the water quality standards.
2. While developing the TMDL and WLA to serve as the basis for the water quality based effluent limitations needed to achieve water quality standards in Spring Lake, the DEP should prohibit any future discharges (including from the 465 project) into the City of Naples storm sewer system or from independent point source discharges until the DEP has concluded its TMDL/WLA process for Spring Lake.
Thank you for your attention to my concerns.
Respectfully yours
John McGarry, Esq
641 West Lake Drive
Naples, FL 34102
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 & Stormwater Department (gstrakaluse@naples.gov)
