The Santa Fe River Basin Management Action Plan makes it clear that this grant of immunity to agriculture is one of the key assumptions underlying the plan:
By law, agricultural producers who implement FDACS-adopted BMPs applicable to their operations (identified through the submittal of a NOI [Notice of Intent]) have a presumption of compliance with state water quality standards.[ii]
But this isn’t quite true: according to the applicable statute, only “[i]mplementation . . . of practices that have been initially verified to be effective, or verified to be effective by monitoring at representative sites, by the department”[iii] provides the presumption of compliance. Effectiveness refers not merely to whether the practices reduce the pollution, but to whether they are likely to achieve the targets set forth in the BMAP:
Where interim measures, best management practices, or other measures are adopted by rule, the effectiveness of such practices in achieving the levels of pollution reduction established in allocations developed by the department . . . must be verified at representative sites by the department. The department shall use best professional judgment in making the initial verification that the best management practices are reasonably expected to be effective.[iv]
That is not is what [was] happening. The Department of Environmental Protection did not make an initial verification that following the BMPs [could] be reasonably expected to result in a 35% reduction in nitrates coming from agriculture in the Santa Fe River Basin. Apparently, the Department’s view is that DACS may set the BMPs based on the particular crop activity on a state-wide basis, without regard to a specific TMDL. Again, that is not what the statute appears to say:
[DACS] may develop and adopt by rule . . . suitable interim measures, best management practices, or other measures necessary to achieve the level of pollution reduction established by the department for agricultural pollutant sources.[v]
One recently adopted BMP rule is typical. The Best Management Practices for Florida Equine Operations says that its purpose “is to effect pollutant reduction through the implementation of agricultural Best Management Practices (BMPs) that may be determined to have minimal individual or cumulative adverse impacts to the water resources of the state.”[vi] However, just because the harmful effects have been minimized does not mean that they are minimal. There certainly is no connection between following the practices and meeting the targeted reduction.
For example, the manual says that is a best practice to follow the Institute of Food and Agricultural Sciences (IFAS) guidelines for pasture fertilization.[vii] The IFAS guidelines recommend that not more than 50 to 160 pounds of nitrogen be applied per acre, depending on grazing use, whether the pasture is being cut for hay, and other factors.[viii] Because data suggests that farmers use about 69 pounds of nitrogen per acre on improved pasture, following the recommendations is not likely to have a big impact on the nitrate load coming from improved pasture, which is one of the biggest single sources of nitrate load in the Santa Fe River basin.
The DACS rule also provides for the Presumption of Compliance:
[A]gricultural operations that implement BMPs, in accordance with FDACS rules, that have been verified by the Florida Department of Environmental Protection as effective in reducing pollutants addressed by the practices are presumed to comply with state water quality standards, and are released from the provisions of the Section 376.307(5), F.S., for those pollutants.[ix]
In other words, the farmers are off the hook for polluting the aquifer as long as they make some effort to reduce nitrate, even if those efforts are insufficient to meet the target.
The failure to link the BMPs to the required reductions makes it almost certain that the target level will not be reached. This is even more true in the areas where the approved TMDLs require even greater reductions in the amount of nitrate to reach the 0.35 mg/L target. The proposed TMDLs for Silver and Rainbow Springs require 79% and 82% reductions, respectively. These levels of reduction cannot be obtained by compliance with the published BMPs. Thus the BMAPs essentially become licenses to continue to dump nitrates into the aquifer at levels known to cause ecological harm.