[Federal Register Volume 75, Number 233 (Monday, December 6, 2010)]
[Rules and Regulations]
[Pages 75762-75807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29943]
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Part III
Environmental Protection Agency
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40 CFR Part 131
Water Quality Standards for the State of Florida's Lakes and Flowing
Waters; Final Rule
Federal Register / Vol. 75 , No. 233 / Monday, December 6, 2010 /
Rules and Regulations
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA-HQ-OW-2009-0596; FRL-9228-7]
RIN 2040-AF11
Water Quality Standards for the State of Florida's Lakes and
Flowing Waters
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA or Agency) is
promulgating numeric water quality criteria for nitrogen/phosphorus
pollution to protect aquatic life in lakes, flowing waters, and springs
within the State of Florida. These criteria apply to Florida waters
that are designated as Class I or Class III waters in order to
implement the State's narrative nutrient provision at Subsection 62-
302-530(47)(b), Florida Administrative Code (F.A.C.), which provides
that ``[i]n no case shall nutrient concentrations of a body of water be
altered so as to cause an imbalance in natural populations of aquatic
flora or fauna.''
DATES: This final rule is effective March 6, 2012, except for 40 CFR
131.43(e), which is effective February 4, 2011.
ADDRESSES: An electronic version of the public docket is available
through EPA's electronic public docket and comment system, EPA Dockets.
You may use EPA Dockets at http://www.regulations.gov to view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. For additional information about EPA's
public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. Although listed in the index, some
information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyright material, is not
placed on the Internet and will be publicly available only in hard copy
form. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at the
Docket Facility. The Office of Water (OW) Docket Center is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The OW Docket Center telephone number is 202-566-1744 and the
Docket address is OW Docket, EPA West, Room 3334, 1301 Constitution
Ave., NW., Washington, DC 20004. The Public Reading Room is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744.
FOR FURTHER INFORMATION CONTACT: For information concerning this
rulemaking, contact Danielle Salvaterra, U.S. EPA Headquarters, Office
of Water, Mailcode: 4305T, 1200 Pennsylvania Avenue, NW., Washington,
DC 20460; telephone number: 202-564-1649; fax number: 202-566-9981; e-
mail address: [email protected].
SUPPLEMENTARY INFORMATION: This supplementary information section is
organized as follows:
Table of Contents
I. General Information
A. Executive Summary
B. Which water bodies are affected by this rule?
C. What entities may be affected by this rule?
D. How can I get copies of this document and other related
information?
II. Background
A. Nitrogen/Phosphorus Pollution
B. Statutory and Regulatory Background
C. Water Quality Criteria
D. EPA Determination Regarding Florida and EPA's Rulemaking
III. Numeric Criteria for Streams, Lakes, and Springs in the State
of Florida
A. General Information
B. Numeric Criteria for the State of Florida's Streams
C. Numeric Criteria for the State of Florida's Lakes
D. Numeric Criterion for the State of Florida's Springs
E. Applicability of Criteria When Final
IV. Under what conditions will federal standards be withdrawn?
V. Alternative Regulatory Approaches and Implementation Mechanisms
A. Designating Uses
B. Variances
C. Site-Specific Alternative Criteria
D. Compliance Schedules
E. Proposed Restoration Water Quality Standard
VI. Economic Analysis
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
G. Executive Order 13045 (Protection of Children From
Environmental Health and Safety Risks)
H. Executive Order 13211 (Actions That Significantly Affect
Energy Supply, Distribution, or Use)
I. National Technology Transfer Advancement Act of 1995
J. Executive Order 12898 (Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations)
K. Congressional Review Act
I. General Information
A. Executive Summary
Florida is known for its abundant and aesthetically beautiful
natural resources, in particular its water resources. Florida's water
resources are very important to its economy, for example, its $6.5
billion fishing industry.\1\ However, nitrogen/phosphorus pollution has
contributed to severe water quality degradation in the State of
Florida. Based upon waters assessed and reported by the Florida
Department of Environmental Protection (FDEP) in its 2008 Integrated
Water Quality Assessment for Florida, approximately 1,049 miles of
rivers and streams (about 5% of total assessed streams), 349,248 acres
of lakes (about 23% of total assessed lakes), and 902 square miles of
estuaries (about 24% of total assessed estuaries) are known to be
impaired for nutrients by the State.\2\
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\1\ Florida Fish and Wildlife Conservation Commission. 2010. The
economic impact of freshwater fishing in Florida. http://www.myfwc.com/CONSERVATION/Conservation_ValueofConservation_EconFreshwaterImpact.htm. Accessed August 2010.
\2\ Florida Department of Environmental Protection (FDEP). 2008.
Integrated Water Quality Assessment for Florida: 2008 305(b) Report
and 303(d) List Update.
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The information presented in FDEP's latest water quality assessment
report, the 2010 Integrated Water Quality Assessment for Florida,
documents increased identification of assessed waters that are impaired
due to nutrients. In the FDEP 2010 Integrated Water Quality Assessment
for Florida, approximately 1,918 miles of rivers and streams (about 8%
of assessed river and stream miles), 378,435 acres of lakes (about 26%
of assessed lake acres), and 569 square miles of estuaries \3\ (about
21% of assessed square miles of estuaries) \4\ are identified as
impaired by
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nutrients.\5\ The challenge of nitrogen/phosphorus pollution has been
an ongoing focus for FDEP. Over the past decade or more, FDEP reports
that it has spent over 20 million dollars collecting and analyzing data
related to concentrations and impacts of nitrogen/phosphorus pollution
in the State.\6\ Despite FDEP's intensive efforts to diagnose and
evaluate nitrogen/phosphorus pollution, substantial and widespread
water quality degradation from nitrogen/phosphorus over-enrichment has
continued and remains a significant problem.
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\3\ The estimated miles for estuaries were recalculated in 2010.
FDEP used revised GIS techniques to calculate mileages and corrected
estuary waterbody descriptions by removing land drainage areas that
had been included in some descriptions, which reduced the estimates
of total estuarine water area for Florida waters generally, as well
as for some of the estuary classifications in the 2010 report.
\4\ For the Integrated Water Quality Assessment for Florida:
2010 305(b) Report and 303(d) List Update, Florida assessed about
3,637 additional miles of streams, about 24,833 fewer acres of
lakes, and about 1,065 fewer square miles of estuaries than the 2008
Integrated Report. In addition, Florida reevaluated the WBID segment
boundaries using ``improved GIS techniques'' for mapping. The most
significant result of the major change in mapping was the reduction
of assessed estuarine area from 3,726 to 2,661 square miles. The net
result to the impaired waters for estuaries is that the percent of
assessed estuaries impaired remains about the same in 2008 (24%) as
in 2010 (21%).
\5\ FDEP. 2010. Integrated Water Quality Assessment for Florida:
2010 305(b) Report and 303(d) List Update.
\6\ FDEP. 2009. Florida Numeric Nutrient Criteria History and
Status. http://www.dep.state.fl.us/water/wqssp/nutrients/docs/fl-nnc-summary-100109.pdf. Accessed September 2010.
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On January 14, 2009, EPA determined under Clean Water Act (CWA)
section 303(c)(4)(B) that new or revised water quality standards (WQS)
in the form of numeric water quality criteria are necessary to protect
the designated uses from nitrogen/phosphorus pollution that Florida has
set for its Class I and Class III waters. The Agency considered (1) the
State's documented unique and threatened ecosystems, (2) the large
number of impaired waters due to existing nitrogen/phosphorus
pollution, and (3) the challenge associated with growing nitrogen/
phosphorus pollution associated with expanding urbanization, continued
agricultural development, and a significantly increasing population
that the U.S. Census estimates is expected to grow over 75% between
2000 and 2030.\7\ EPA also reviewed the State's regulatory
accountability system, which represents a synthesis of both technology-
based standards and point source control authority, as well as
authority to establish enforceable controls for nonpoint source
activities.
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\7\ U.S. Census Bureau, Population Division, Interim State
Population Projections, 2005. http://www.census.gov/population/projections/SummaryTabA1.pdf.
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A significant challenge faced by Florida's water quality program is
its dependence and current reliance upon an approach involving
resource-intensive and time-consuming site-by-site data collection and
analysis to interpret non-numeric narrative criteria. This approach is
used to make water quality impairment determinations under CWA section
303(d), to set appropriately protective numeric nitrogen and phosphorus
pollution targets to guide restoration of impaired waters, and to
establish numeric nitrogen and phosphorus goals to ensure effective
protection and maintenance of non-impaired waters. EPA determined that
Florida's reliance on a case-by-case interpretation of its narrative
criterion in implementing an otherwise comprehensive water quality
framework of enforceable accountability mechanisms was insufficient to
ensure protection of applicable designated uses under Subsection 62-
302.530(47)(b), F.A.C., which, as noted above, provides ``[i]n no case
shall nutrient concentrations of a body of water be altered so as to
cause an imbalance in natural populations of aquatic flora or fauna.''
In accordance with the terms of EPA's January 14, 2009
determination, an August 2009 Consent Decree, and June 7, 2010 and
October 27, 2010 revisions to that Consent Decree, which are discussed
in more detail in Section II.D, EPA is promulgating and establishing
final numeric criteria for lakes and springs throughout Florida, and
flowing waters (e.g., rivers, streams, canals, etc.) located outside of
the South Florida Region.\8\
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\8\ For purposes of this rule, EPA has distinguished South
Florida as those areas south of Lake Okeechobee and the
Caloosahatchee River watershed to the west of Lake Okeechobee and
the St. Lucie watershed to the east of Lake Okeechobee, hereinafter
referred to as the South Florida Region. Numeric criteria applicable
to flowing waters in the South Florida Region will be addressed in
the second phase of EPA's rulemaking regarding the establishment of
estuarine and coastal numeric criteria. (Please refer to Section I.B
for a discussion of the water bodies affected by this rule).
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Regarding numeric criteria for streams, the Agency conducted a
detailed technical evaluation of the substantial amount of sampling,
monitoring and associated water quality analytic data available on
Florida streams together with a significant amount of related
scientific analysis. EPA concluded that reliance on a reference-based
methodology was a strong and scientifically sound approach for deriving
numeric criteria, in the form of total nitrogen (TN) and total
phosphorus (TP) concentration values for flowing waters including
streams and rivers. This information is presented in more detail in
Section III.B below.
For lakes, EPA is promulgating a classification approach using
color and alkalinity based upon substantial data that show that lake
color and alkalinity are important predictors of the degree to which TN
and TP concentrations result in a biological response such as elevated
chlorophyll a levels. EPA found that correlations between nitrogen/
phosphorus and biological response parameters in the different types of
lakes in Florida were specific, significant, and documentable, and when
considered in combination with additional lines of evidence, support a
stressor-response approach to criteria development for Florida's lakes.
EPA's results show a significant relationship between concentrations of
nitrogen and phosphorus in lakes and algal growth. The Agency is also
promulgating an accompanying supplementary analytical approach that the
State can use to adjust TN and TP criteria within a certain range for
individual lakes where sufficient data on long-term ambient chlorophyll
a, TN, and TP levels are available to demonstrate that protective
chlorophyll a criterion for a specific lake will still be maintained
and attainment of the designated use will be assured. This information
is presented in more detail in Section III.C below.
EPA also evaluated what downstream protection criteria for streams
that flow into lakes is necessary for assuring the protection of
downstream lake water quality pursuant to the provisions of 40 CFR
130.10(b), which requires that water quality standards (WQS) must
provide for the attainment and maintenance of the WQS of downstream
waters. EPA examined a variety of lake modeling techniques and data to
ensure protection of aquatic life in downstream lakes that have streams
flowing into them. Accordingly, this final rule includes a tiered
approach to adjust instream TP and TN criteria for flowing waters to
ensure protection of downstream lakes. This approach is detailed in
Section III.C(2)(f) below.\9\
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\9\ As provided by the terms of the June 7, 2010 amended Consent
Decree, downstream protection values for estuaries and coastal
waters will be addressed in the context of the second phase of this
rulemaking process.
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Regarding numeric criteria for springs, EPA is promulgating a
nitrate+nitrite criterion for springs based on stressor-response
relationships that are based on laboratory data and field evaluations
that document the response of nuisance \10\ algae and periphyton growth
to nitrate+nitrite concentrations in springs. This criterion is
explained in more detail in Section III.D below.
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\10\ Nuisance algae is best characterized by Subsection 62-
302.200(17), F.A.C.: ``Nuisance Species'' shall mean species of
flora or fauna whose noxious characteristics or presence in
sufficient number, biomass, or areal extent may reasonably be
expected to prevent, or unreasonably interfere with, a designated
use of those waters.
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Finally, EPA is promulgating in this notice an approach to
authorize and allow derivation of Federal site-specific alternative
criteria (SSAC) based upon EPA review and approval of applicant
submissions of scientifically defensible
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recalculations that meet the requirements of CWA section 303(c) and
EPA's implementing regulations at 40 CFR part 131. Total maximum daily
load (TMDL) targets submitted to EPA for consideration as new or
revised WQS would be reviewed under this SSAC process. This approach is
discussed in more detail in Section V.C below.
Throughout the development of this rulemaking, EPA has emphasized
the importance of sound science and widespread input in developing
numeric criteria. Stakeholders have reiterated that numeric criteria
must be scientifically sound. As demonstrated by the extent and detail
of scientific analysis explained below, EPA continues to strongly
agree. Under the CWA and EPA's implementing regulations, numeric
criteria must protect the designated use of a waterbody (as well as
ensure protection of downstream uses) and must be based on sound
scientific rationale. (See CWA section 303(c); 40 CFR 131.11). In
Florida, EPA relied upon its published criteria development
methodologies \11\ and a substantial body of scientific analysis,
documentation, and evaluation, much of it provided to EPA by FDEP. As
discussed in more detail below, EPA believes that the final criteria in
this rule meet requirements for designated use and downstream WQS
protection under the CWA and that they are clearly based on sound and
substantial data and analyses.
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\11\ USEPA. 2000a. Nutrient Criteria Technical Guidance Manual:
Lakes and Reserviors. EPA-822-B-00-001. U.S. Environmental
Protection Agency, Office of Water, Washington, DC. USEPA. 2000b.
Nutrient Criteria Technical Guidance Manual: Rivers and Streams.
EPA-822-B-00-002. U.S. Environmental Protection Agency, Office of
Water, Washington, DC.
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B. Which water bodies are affected by this rule?
The criteria in this final rulemaking apply to a group of inland
waters of the United States within Florida. Specifically, as defined
below, these criteria apply to lakes and springs throughout Florida,
and flowing waters (e.g., rivers, streams, canals, etc.) located
outside of the South Florida Region. For purposes of this rule, EPA has
distinguished South Florida as those areas south of Lake Okeechobee and
the Caloosahatchee River watershed to the west of Lake Okeechobee and
the St. Lucie watershed to the east of Lake Okeechobee, hereinafter
referred to as the South Florida Region. In this section, EPA defines
the water bodies affected by this rule with respect to the Clean Water
Act, Florida Administrative Code, and geographic scope in Florida.
Because this regulation applies to inland waters, EPA defines fresh
water as it applies to the affected water bodies.
The CWA requires adoption of WQS for ``navigable waters.'' CWA
section 303(c)(2)(A). The CWA defines ``navigable waters'' to mean
``the waters of the United States, including the territorial seas.''
CWA section 502(7). Whether a particular waterbody is a water of the
United States is a waterbody-specific determination. Every waterbody
that is a water of the United States requires WQS under the CWA. EPA is
not aware of any waters of the United States in Florida that are
currently exempted from the State's WQS. For any privately-owned water
in Florida that is a water of the United States, the applicable numeric
criteria for those types of waters would apply. This rule does not
apply to waters for which the Miccosukee Tribe of Indians or Seminole
Tribe of Indians has obtained Treatment in the Same Manner as a State
status for Sections 303 and 401 of the CWA, pursuant to Section 518 of
the CWA.
EPA's final rule defines ``lakes and flowing waters'' (a phrase
that includes lakes, streams, and springs) to mean inland surface
waters that have been classified as Class I (Potable Water Supplies) or
Class III (Recreation, Propagation and Maintenance of a Healthy, Well-
Balanced Population of Fish and Wildlife) water bodies pursuant to
Section 62-302.400, F.A.C., which are predominantly fresh waters,
excluding wetlands. Class I and Class III surface waters share water
quality criteria established to ``protect recreation and the
propagation and maintenance of a healthy, well-balanced population of
fish and wildlife'' pursuant to Subsection 62-302.400(4), F.A.C.\12\
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\12\ Class I waters also include an applicable nitrate limit of
10 mg/L and nitrite limit of 1 mg/L for the protection of human
health in drinking water supplies. The nitrate limit applies at the
entry point to the distribution system (i.e., after any treatment);
see Chapter 62-550, F.A.C., for additional details.
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Geographically, the regulation applies to all lakes and springs
throughout Florida. EPA is not finalizing numeric criteria for
Florida's streams or canals in south Florida at this time. As noted
above, EPA has distinguished South Florida as those areas south of Lake
Okeechobee and the Caloosahatchee River watershed to the west of Lake
Okeechobee and the St. Lucie watershed to the east of Lake Okeechobee,
hereinafter referred to as the South Florida Region. The Agency will
propose criteria for south Florida flowing waters in conjunction with
criteria for Florida's estuarine and coastal waters by November 14,
2011.
Consistent with Section 62-302.200, F.A.C., EPA's final rule
defines ``predominantly fresh waters'' to mean surface waters in which
the chloride concentration at the surface is less than 1,500 milligrams
per liter (mg/L). Consistent with Section 62-302.200, F.A.C., EPA's
final rule defines ``surface water'' to mean ``water upon the surface
of the earth, whether contained in bounds created naturally,
artificially, or diffused. Water from natural springs shall be
classified as surface water when it exits from the spring onto the
earth's surface.'' In this rulemaking, EPA is promulgating numeric
criteria for the following waterbody types: lakes, streams, and
springs. EPA's final rule also includes definitions for each of these
waters. ``Lake'' means a slow-moving or standing body of freshwater
that occupies an inland basin that is not a stream, spring, or wetland.
``Stream'' means a free-flowing, predominantly fresh surface water in a
defined channel, and includes rivers, creeks, branches, canals,
freshwater sloughs, and other similar water bodies. ``Spring'' means a
site at which ground water flows through a natural opening in the
ground onto the land surface or into a body of surface water.
Consistent with Section 62-312.020, F.A.C., ``canal'' means a trench,
the bottom of which is normally covered by water with the upper edges
of its two sides normally above water.
C. What entities may be affected by this rule?
Citizens concerned with water quality in Florida may be interested
in this rulemaking. Entities discharging nitrogen or phosphorus to
lakes and flowing waters of Florida could be indirectly affected by
this rulemaking because WQS are used in determining National Pollutant
Discharge Elimination System (NPDES) permit limits. Categories and
entities that may ultimately be affected include:
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Examples of potentially affected
Category entities
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Industry......................... Industries discharging pollutants to
lakes and flowing waters in the
State of Florida.
Municipalities................... Publicly-owned treatment works
discharging pollutants to lakes and
flowing waters in the State of
Florida.
Stormwater Management Districts.. Entities responsible for managing
stormwater runoff in Florida.
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This table is not intended to be exhaustive, but rather provides a
guide for entities that may be directly or indirectly affected by this
action. This table lists the types of entities of which EPA is now
aware that potentially could be affected by this action. Other types of
entities not listed in the table, such as nonpoint source contributors
to nitrogen/phosphorus pollution in Florida's waters may be affected
through implementation of Florida's water quality standards program
(i.e., through Basin Management Action Plans (BMAPs)). Any parties or
entities conducting activities within watersheds of the Florida waters
covered by this rule, or who rely on, depend upon, influence, or
contribute to the water quality of the lakes and flowing waters of
Florida, may be affected by this rule. To determine whether your
facility or activities may be affected by this action, you should
carefully examine the language in 40 CFR 131.43, which is the final
rule. If you have questions regarding the applicability of this action
to a particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
D. How can I get copies of this document and other related information?
1. Docket. EPA has established an official public docket for this
action under Docket Id. No. EPA-HQ-OW-2009-0596. The official public
docket consists of the document specifically referenced in this action,
any public comments received, and other information related to this
action. Although a part of the official docket, the public docket does
not include CBI or other information whose disclosure is restricted by
statute. The official public docket is the collection of materials that
is available for public viewing at the OW Docket, EPA West, Room 3334,
1301 Constitution Ave., NW., Washington, DC 20004. This Docket Facility
is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The Docket telephone number is 202-566-2426. A
reasonable fee will be charged for copies.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.regulations.gov to view public comments,
access the index listing of the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. For additional information about EPA's public docket,
visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through the Docket Facility identified in Section
I.C(1).
II. Background
A. Nitrogen/Phosphorus Pollution
1. What is nitrogen/phosphorus pollution?
Excess loading of nitrogen and phosphorus compounds,\13\ is one of
the most prevalent causes of water quality impairment in the United
States. Nitrogen/phosphorus pollution problems have been recognized for
some time in the U.S., for example a 1969 report by the National
Academy of Sciences \14\ notes ``[t]he pollution problem is critical
because of increased population, industrial growth, intensification of
agricultural production, river-basin development, recreational use of
waters, and domestic and industrial exploitation of shore properties.
Accelerated eutrophication causes changes in plant and animal life--
changes that often interfere with use of water, detract from natural
beauty, and reduce property values.'' Inputs of nitrogen and phosphorus
lead to over-enrichment in many of the Nation's waters and constitute a
widespread, persistent, and growing problem. Nitrogen/phosphorus
pollution in fresh water systems can significantly impact aquatic life
and long-term ecosystem health, diversity, and balance. More
specifically, high nitrogen and phosphorus loadings result in harmful
algal blooms (HABs), reduced spawning grounds and nursery habitats,
fish kills, and oxygen-starved hypoxic or ``dead'' zones. Public health
concerns related to nitrogen/phosphorus pollution include impaired
surface and groundwater drinking water sources from high levels of
nitrates, possible formation of disinfection byproducts in drinking
water, and increased exposure to toxic microbes such as
cyanobacteria.15 16 Degradation of water bodies from
nitrogen/phosphorus pollution can result in economic consequences. For
example, given that fresh and salt water fishing in Florida are
significant recreational and tourist attractions generating over six
billion dollars annually,\17\ changes in Florida's waters that degrade
water quality to the point that sport fishing populations are affected,
will also affect this important part of Florida's economy. Elevated
nitrogen/phosphorus levels can occur locally in a stream or
groundwater, or can accumulate much further downstream leading to
degraded lakes, reservoirs, and estuaries where fish and aquatic life
can no longer survive.
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\13\ To be used by living organisms, nitrogen gas must be fixed
into its reactive forms; for plants, either nitrate or ammonia
(Boyd, C.E. 1979. Water Quality in Warmwater Fish Ponds. Auburn
University: Alabama Agricultural Experiment Station, Auburn, AL).
Eutrophication is defined as the natural or artificial addition of
nitrogen/phosphorus to bodies of water and to the effects of added
nitrogen/phosphorus (National Academy of Sciences (U.S.). 1969.
Eutrophication: Causes, Consequences, Correctives. National Academy
of Sciences, Washington, DC.)
\14\ National Academy of Sciences (U.S.). 1969. Eutrophication:
Causes, Consequences, Correctives. National Academy of Sciences,
Washington, DC.
\15\ Villanueva, C.M. et al., 2006. Bladder Cancer and Exposure
to Water Disinfection By-Products through Ingestion, Bathing,
Showering, and Swimming in Pools. American Journal of Epidemiology
165(2):148-156.
\16\ USEPA. 2009. What is in Our Drinking Water?. United States
Environmental Protection Agency, Office of Research and Development.
http://www.epa.gov/extrmurl/research/process/drinkingwater.html.
Accessed December 2009.
\17\ Florida Fish and Wildlife Conservation Commission. 2010.
The economic impact of freshwater fishing in Florida. http://www.myfwc.com/CONSERVATION/Conservation_ValueofConservation_EconFreshwaterImpact.htm. Accessed August 2010.
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Excess nitrogen/phosphorus in water bodies comes from many sources,
which can be grouped into five major categories: (1) Urban stormwater
runoff--sources associated with urban land use and development, (2)
municipal and industrial waste water discharges, (3) row crop
agriculture, (4) livestock production, and (5) atmospheric deposition
from the production of nitrogen oxides in electric
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power generation and internal combustion engines. These sources
contribute significant loadings of nitrogen and phosphorus to surface
waters, causing major impacts to aquatic ecosystems and significant
imbalances in the natural populations of flora and
fauna.18 19
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\18\ National Research Council. 2000. Clean coastal waters:
Understanding and reducing the effects of nutrient pollution.
National Academies Press, Washington, DC; Howarth, R.W., A.
Sharpley, and D. Walker. 2002. Sources of nutrient pollution to
coastal waters in the United States: Implications for achieving
coastal water quality goals. Estuaries 25(4b):656-676; Smith, V.H.
2003. Eutrophication of freshwater and coastal marine ecosystems.
Environmental Science and Pollution Research 10(2):126-139; Dodds,
W.K., W.W. Bouska, J.L. Eitzmann, T.J. Pilger, K.L. Pitts, A.J.
Riley, J.T. Schloesser, and D.J. Thornbrugh. 2009. Eutrophication of
U.S. freshwaters: Analysis of potential economic damages.
Environmental Science and Technology 43(1):12-19.
\19\ State-EPA Nutrient Innovations Task Group. 2009. An Urgent
Call to Action: Report of the State-EPA Nutrient Innovations Task
Group.
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2. Adverse Impacts of Nitrogen/Phosphorus Pollution on Aquatic Life,
Human Health, and the Economy
Fish, shellfish, and wildlife require clean water for survival.
Changes in the environment resulting from elevated nitrogen/phosphorus
levels (such as algal blooms, toxins from harmful algal blooms, and
hypoxia/anoxia) can cause a variety of effects. The causal pathways
that lead from human activities to excess nutrients to impacts on
designated uses in lakes and streams are well established in the
scientific literature (e.g., Streams: Stockner and Shortreed 1976,
Stockner and Shortreed 1978, Elwood et al. 1981, Horner et al. 1983,
Bothwell 1985, Peterson et al. 1985, Moss et al. 1989, Dodds and Gudder
1992, Rosemond et al. 1993, Bowling and Baker 1996, Bourassa and
Cattaneo 1998, Francoeur 2001, Biggs 2000, Rosemond et al. 2001,
Rosemond et al. 2002, Slavik et al. 2004, Cross et al. 2006, Mulholland
and Webster 2010; Lakes: Vollenweider 1968, NAS 1969, Schindler et al.
1973, Schindler 1974, Vollenweider 1976, Carlson 1977, Paerl 1988,
Elser et al. 1990, Smith et al. 1999, Downing et al. 2001, Smith et al.
2006, Elser et al. 2007).\20\
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\20\ For Streams:
Stockner, J.G., and K.R.S. Shortreed. 1976. Autotrophic
production in Carnation Creek, a coastal rainforest stream on
Vancouver Island, British Columbia. Journal of the Fisheries
Research Board of Canada 33:1553-1563.;
Stockner, J.G., and K.R.S. Shortreed. 1978. Enhancement of
autotrophic production by nutrient addition in a coastal rainforest
stream on Vancouver Island. Journal of the Fisheries Research Board
of Canada 35:28-34.;
Elwood, J.W., J.D. Newbold, A.F. Trimble, and R.W. Stark. 1981.
The limiting role of phosphorus in a woodland stream ecosystem:
effects of P enrichment on leaf decomposition and primary producers.
Ecology 62:146-158.;
Horner, R.R., E.B. Welch, and R.B. Veenstra. 1983. Development
of nuisance periphytic algae in laboratory streams in relation to
enrichment and velocity. Pages 121-134 in R.G. Wetzel (editor).
Periphyton of freshwater ecosystems. Dr. W. Junk Publishers, The
Hague, The Netherlands.;
Bothwell, M.L. 1985. Phosphorus limitation of lotic periphyton
growth rates: an intersite comparison using continuous-flow troughs
(Thompson River system, British Columbia). Limnology and
Oceanography 30:527-542.;
Peterson, B.J., J.E. Hobbie, A.E. Hershey, M.A. Lock, T.E. Ford,
J.R. Vestal, V.L. McKinley, M.A.J. Hullar, M.C. Miller, R.M.
Ventullo, and G.S. Volk. 1985. Transformation of a tundra river from
heterotrophy to autotrophy by addition of phosphorus. Science
229:1383-1386.;
Moss, B., I. Hooker, H. Balls, and K. Manson. 1989.
Phytoplankton distribution in a temperate floodplain lake and river
system. I. Hydrology, nutrient sources and phytoplankton biomass.
Journal of Plankton Research 11:813-835.;
Dodds, W.K., and D.A. Gudder. 1992. The ecology of Cladophora.
Journal of Phycology 28:415-427.; Rosemond, A. D., P. J. Mulholland,
and J. W. Elwood. 1993. Top-down and bottom-up control of stream
periphyton: Effects of nutrients and herbivores. Ecology 74:1264-
1280.;
Bowling, L.C., and P.D. Baker. 1996. Major cyanobacterial bloom
in the Barwon-Darling River, Australia, in 1991, and underlying
limnological conditions. Marine and Freshwater Research 47: 643-
657.;
Bourassa, N., and A. Cattaneo. 1998. Control of periphyton
biomass in Laurentian streams (Quebec). Journal of the North
American Benthological Society 17:420-429.;
Francoeur, S.N. 2001. Meta-analysis of lotic nutrient amendment
experiments: detecting and quantifying subtle responses. Journal of
the North American Benthological Society 20:358-368.;
Biggs, B.J.F. 2000. Eutrophication of streams and rivers:
dissolved nutrient-chlorophyll relationships for Benthic algae.
Journal of the North American Benthological Society 19:17-31.;
Rosemond, A.D., C.M. Pringle, A. Ramirez, and M.J. Paul. 2001. A
test of top-down and bottom-up control in a detritus-based food web.
Ecology 82: 2279-2293.;
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When excessive nitrogen/phosphorus loads change a waterbody's algae
and plant species, the change in habitat and available food resources
can induce changes affecting an entire food chain. Algal blooms block
sunlight that submerged grasses need to grow, leading to a decline of
submerged aquatic vegetation beds and decreased habitat for juvenile
organisms. Algal blooms can also increase turbidity and impair the
ability of fish and other aquatic life to find food.\21\ Algae can also
damage or clog the gills of fish and invertebrates.\22\ Excessive algal
blooms (those that use oxygen for respiration during periods without
sunlight) can lead to diurnal shifts in a waterbody's production and
consumption of dissolved oxygen (DO) resulting in reduced DO levels
that are sufficiently low to harm or kill important recreational
species such as largemouth bass.
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Rosemond, A.D., C.M. Pringle, A. Ramirez, M.J. Paul, and J.L.
Meyer. 2002. Landscape variation in phosphorus concentration and
effects on detritus-based tropical streams. Limnology and
Oceanography 47:278-289.;
Slavik, K., B.J. Peterson, L.A. Deegan, W.B. Bowden, A.E.
Hershey, and J.E. Hobbie. 2004. Long-term responses of the Kuparuk
River ecosystem to phosphorus fertilization. Ecology 85:939--954.;
Cross, W.F., J.B. Wallace, A.D. Rosemond, and S.L. Eggert. 2006.
Whole-system nutrient enrichment Increases secondary production in a
detritus-based ecoystem. Ecology 87:1556-1565.;
Mulholland, P.J. and J.R. Webster. 2010. Nutrient dynamics in
streams and the role of J-NABS. Journal of the North American
Benthological Society 29:100-117.;
For Lakes:
Vollenweider, R.A. 1968. Scientific Fundamentals of the
Eutrophication of Lakes and Flowing Waters, With Particular
Reference to Nitrogen and Phosphorus as Factors in Eutrophication
(Tech Rep DAS/CS/68.27, OECD, Paris).;
National Academy of Science. 1969. Eutrophication: Causes,
Consequences, Correctives. National Academy of Science, Washington,
DC.;
Schindler D.W., H. Kling, R.V. Schmidt, J. Prokopowich, V.E.
Frost, R.A. Reid, and M. Capel. 1973. Eutrophication of Lake 227 by
addition of phosphate and nitrate: The second, third, and fourth
years of enrichment 1970, 1971, and 1972. Journal of the Fishery
Research Board of Canada 30:1415-1440.;
Schindler D.W. 1974. Eutrophication and recovery in experimental
lakes: Implications for lake management. Science 184:897-899.;
Vollenweider, R.A. 1976. Advances in Defining Critical Loading
Levels for Phosphorus in Lake Eutrophication. Memorie dell'Istituto
Italiano di Idrobiologia 33:53-83.;
Carlson R.E. 1977. A trophic State index for lakes. Limnology
and Oceanography 22:361-369.;
Paerl, H.W. 1988. Nuisance phytoplankton blooms in coastal,
estuarine, and inland waters. Limnology and Oceanography 33:823-
847.;
Elser, J.J., E.R. Marzolf, and C.R. Goldman. 1990. Phosphorus
and nitrogen limitation of phytoplankton growth in the freshwaters
of North America: a review and critique of experimental enrichments.
Canadian Journal of Fisheries and Aquatic Science 47:1468-1477.;
Smith, V.H., G.D. Tilman, and J.C. Nekola. 1999. Eutrophication:
impacts of excess nutrient inputs on freshwater, marine, and
terrestrial ecosystems. Environmental Pollution 100:179-196.;
Downing, J.A., S.B. Watson, and E. McCauley. 2001. Predicting
cyanobacteria dominance in lakes. Canadian Journal of Fisheries and
Aquatic Sciences 58:1905-1908.;
Smith, V.H., S.B. Joye, and R.W. Howarth. 2006. Eutrophication
of freshwater and marine ecosystems. Limnology and Oceanography
51:351-355.;
Elser, J.J., M.E.S. Bracken, E.E. Cleland, D.S. Gruner, W.S.
Harpole, H. Hillebrand, J.T. Ngai, E.W. Seabloom, J.B. Shurin, and
J.E. Smith. 2007. Global analysis of nitrogen and phosphorus
limitation of primary production in freshwater, marine, and
terrestrial ecosystems. Ecology Letters 10:1135-1142.
\21\ Hauxwell, J., C. Jacoby, T. Frazer, and J. Stevely. 2001.
Nutrients and Florida's Coastal Waters: Florida Sea Grant Report No.
SGEB-55. Florida Sea Grant College Program, University of Florida,
Gainesville, FL.
\22\ NOAA. 2009. Harmful Algal Blooms: Current Programs
Overview. National Oceanic and Atmospheric Administration. http://www.cop.noaa.gov/stressors/extremeevents/hab/default.aspx. Accessed
December 2009.
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Excessive algal growth also contributes to increased oxygen
consumption associated with decomposition (e.g. decaying vegetative
matter), in many instances reducing
[[Page 75767]]
oxygen to levels below that needed for aquatic life to survive and
flourish.23 24 Mobile species, such as adult fish, can
sometimes survive by moving to areas with more oxygen. However,
migration to avoid hypoxia depends on species mobility, availability of
suitable habitat, and adequate environmental cues for migration. Less
mobile or immobile species, such as mussels, cannot move to avoid low
oxygen and are often killed during hypoxic events.\25\ While certain
mature aquatic animals can tolerate a range of dissolved oxygen levels
that occur in the water, younger life stages of species like fish and
shellfish often require higher levels of oxygen to survive.\26\
Sustained low levels of dissolved oxygen cause a severe decrease in the
amount of aquatic life in hypoxic zones and affect the ability of
aquatic organisms to find necessary food and habitat.
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\23\ NOAA. 2009. Harmful Algal Blooms: Current Programs
Overview. National Oceanic and Atmospheric Administration. http://www.cop.noaa.gov/stressors/extremeevents/hab/default.aspx. Accessed
December 2009.
\24\ USGS. 2009. Hypoxia. U.S. Geological Survey. http://toxics.usgs.gov/definitions/hypoxia.html. Accessed December 2009.
\25\ ESA. 2009. Hypoxia. Ecological Society of America. http://www.esa.org/education_diversity/pdfDocs/hypoxia.pdf. Accessed
December 2009.
\26\ USEPA. 1986. Ambient Water Quality Criteria for Dissolved
Oxygen Freshwater Aquatic Life. EPA-800-R-80-906. Environmental
Protection Agency, Office of Water, Washington DC.
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In freshwater, HABs including, for example, blue-green algae from
the phylum of bacteria called cyanobacteria,\27\ can produce toxins
that have been implicated as the cause of a number of fish and bird
mortalities.\28\ These toxins have also been tied to the death of pets
and livestock that may be exposed through drinking contaminated water
or grooming themselves after bodily exposure.\29\ Many other States,
and countries for that matter, are experiencing problems with algal
blooms.\30\ Ohio on September 3, 2010,\31\ for example, listed eight
water bodies as ``Bloom Advisory,'' \32\ six water bodies as ``Toxin
Advisory,'' \33\ and two waters as ``No Contact Advisory.'' \34\
Species of cyanobacteria associated with freshwater algal blooms
include: Microcystis aeruginosa, Anabaena circinalis, Anabaena flos-
aquae, Aphanizomenon flos-aquae, and Cylindrospermopsis raciborskii.
The toxins from cyanobacterial harmful algal blooms can produce
neurotoxins (affect the nervous system), hepatotoxins (affect the
liver), produce lipopolysaccharides that affect the gastrointestinal
system, and some are tumor promoters.\35\ A recent study showed that at
least one type of cyanobacteria has been linked to cancer and tumor
growth in animals.\36\ Cyanobacteria toxins can also pass through
normal drinking water treatment processes and pose an increased risk to
humans or animals.\37\
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\27\ CDC. 2010. Facts about cyanobacteria and cyanobacterial
harmful algal blooms. Centers for Disease Control and Prevention.
http://www.cdc.gov/hab/cyanobacteria/facts.htm. Accessed August
2010.
\28\ Ibelings, Bas W. and Karl E. Havens. 2008 Chapter 32:
Cyanobacterial toxins: a qualitative meta-analysis of
concentrations, dosage and effects in freshwater, estuarine and
marine biota. In Cyanobacterial Harmful Algal Blooms: State of the
Science and Research Needs. From the Monograph of the September 6-
10, 2005 International Symposium on Cyanobacterial Harmful Algal
Blooms (ISOC-HAB) in Durham, NC. http://www.epa.gov/cyano_habs_symposium/monograph/Ch32.pdf. Accessed August 19, 2010.
\29\ WHOI. 2008. HAB Impacts on Wildlife. Woods Hole
Oceanographic Institution. http://www.whoi.edu/redtide/page.do?pid=9682. Accessed December 2009.
\30\ FDEP. 2010. Blue Green Algae Frequently Asked Questions.
http://www.dep.state.fl.us/water/bgalgae/faq.htm. Accessed August
2010.
\31\ Ohio DNR. 2010. News Release September 3, 2010. http://www.epa.state.oh.us/portals/47/nr/2010/september/9-3samplingresults.pdf. Accessed September 2010.
\32\ Defined as: Cautionary advisory to avoid contact with any
algae. Ohio DNR. 2010. News Release September 3, 2010. http://www.epa.state.oh.us/portals/47/nr/2010/september/9-3samplingresults.pdf. Accessed September 2010.
\33\ Defined as: Avoid contact with any algae and direct contact
with water. Ohio DNR. 2010. News Release September 3, 2010. http://www.epa.state.oh.us/portals/47/nr/2010/september/9-3samplingresults.pdf. Accessed September 2010.
\34\ Defined as: Avoid any and all contact with or ingestion of
the lake water. This includes the launching of any watercraft on the
lake. Ohio DNR. 2010. News Release September 3, 2010. http://www.epa.state.oh.us/portals/47/nr/2010/september/9-3samplingresults.pdf. Accessed September 2010.
\35\ CDC. 2010. Facts about cyanobacteria and cyanobacterial
harmful algal blooms, Centers for Disease Control and Prevention.
http://www.cdc.gov/hab/cyanobacteria/facts.htm. Accessed August
2010.
\36\ Falconer, I.R., and A.R. Humpage. 2005. Health Risk
Assessment of Cyanobacterial (Blue-green Algal) Toxins in Drinking
Water. International Journal of Research and Public Health 2(1): 43-
50.
\37\ Carmichael, W.W. 2000. Assessment of Blue-Green Algal
Toxins in Raw and Finished Drinking Water. AWWA Research Foundation,
Denver, CO.
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Health and recreational use impacts to humans result directly from
exposure to elevated nitrogen/phosphorus pollution levels and
indirectly from the subsequent waterbody changes that occur from
increased nitrogen/phosphorus pollution (such as algal blooms and
toxins). Direct impacts include effects to human health through
potentially contaminated drinking water. Indirect impacts include
restrictions on recreation (such as boating and swimming). Algal blooms
can prevent opportunities to swim and engage in other types of
recreation. In areas where recreation is determined to be unsafe
because of algal blooms, warning signs are often posted to discourage
human use of the waters.
Nitrate in drinking water can cause serious health problems for
humans,\38\ especially infants. EPA developed a Maximum Contaminant
Level (MCL) of 10 mg/L for nitrate in drinking water.\39\ In the 2010
USGS National Water-Quality Assessment Program report, nitrate was
found to be the most frequently detected nutrient in streams at
concentrations greater than 10 mg/L. The report also found that
concentrations of nitrate greater than the MCL of 10 mg/L were more
prevalent and widespread in groundwater used for drinking water than in
streams.\40\ Florida has adopted EPA's recommendations for the nitrate
MCL in Florida's regulated drinking water systems and a 10 mg/L
criteria for nitrate in Class I waters. FDEP shares EPA's concern
regarding blue-baby syndrome as can be seen in information FDEP reports
on its drinking water information for the public: ``Nitrate is used in
fertilizer and is found in sewage and wastes from human and/or farm
animals and generally gets into drinking water from those activities.
Excessive levels of nitrate in drinking water have caused serious
illness and sometimes death in infants less than six months of age \41\
* * * EPA has set the drinking water standard at 10 parts per million
(ppm) [or 10 mg/L] for nitrate to protect
[[Page 75768]]
against the risk of these adverse effects \42\ * * * Drinking water
that meets the EPA standard is associated with little to none of this
risk and is considered safe with respect to nitrate.'' \43\
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\38\ For more information, refer to Manassaram, Deana M.,
Lorraine C. Backer, and Deborah M. Moll. 2006. A Review of Nitrates
in Drinking Water: Maternal Exposure and Adverse Reproductive and
Developmental Outcomes. Environmental Health Perspect. 114(3): 320-
327.
\39\ USEPA. 2007. Nitrates and Nitrites: TEACH Chemical Summary.
U.S. Environmental Protection Agency. http://www.epa.gov/teach/chem_summ/Nitrates_summary.pdf. Accessed December 2009.
\40\ Dubrovsky, N.M., Burow, K.R., Clark, G.M., Gronberg, J.M.,
Hamilton P.A., Hitt, K.J., Mueller, D.K., Munn, M.D., Nolan, B.T.,
Puckett, L.J., Rupert, M.G., Short, T.M., Spahr, N.E., Sprague,
L.A., and Wilber, W.G. 2010. The quality of our Nation's waters--
Nutrients in the Nation's streams and groundwater, 1992-2004: U.S.
Geological Survey Circular 1350, 174p. Available electronically at:
http://water.usgs.gov/nawqa/nutrients/pubs/circ1350.
\41\ The serious illness in infants is caused because nitrate is
converted to nitrite in the body. Nitrite interferes with the oxygen
carrying capacity of the child's blood. This is an acute disease in
that symptoms can develop rapidly in infants. In most cases, health
deteriorates over a period of days. Symptoms include shortness of
breath and blueness of the skin. (source: FDEP. 2010. Drinking
Water: Inorganic Contaminants. Florida Department of Environmental
Protection. http://www.dep.state.fl.us/water/drinkingwater/inorg_con.htm. Accessed September 2010.)
\42\ EPA has also set a drinking water standard for nitrite at 1
mg/L. To allow for the fact that the toxicity of nitrate and nitrite
are additive, EPA has also established a standard for the sum of
nitrate and nitrite at 10 mg/L. (source: FDEP. 2010. Drinking Water:
Inorganic Contaminants. Florida Department of Environmental
Protection. http://www.dep.state.fl.us/water/drinkingwater/inorg_con.htm. Accessed September 2010.)
\43\ FDEP. 2010. Drinking Water: Inorganic Contaminants. Florida
Department of Environmental Protection. http://www.dep.state.fl.us/water/drinkingwater/inorg_con.htm. Accessed September 2010.
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Human health can also be impacted by disinfection byproducts formed
when disinfectants (such as chlorine) used to treat drinking water
react with organic carbon (from the algae in source waters). Some
disinfection byproducts have been linked to rectal, bladder, and colon
cancers; reproductive health risks; and liver, kidney, and central
nervous system problems.44 45
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\44\ USEPA. 2009. National Primary Drinking Water Regulations.
Contaminants. U.S. Environmental Protection Agency. Accessed http://www.epa.gov/safewater/hfacts.html. December 2009.
\45\ National Primary Drinking Water Regulations: Stage 2
Disinfectants and Disinfection Byproducts Rule, 40 CFR parts 9, 141,
and 142. U.S. Environmental Protection Agency, FR 71:2 (January 4,
2006). pp. 387-493. Available electronically at: http://www.epa.gov/fedrgstr/EPA-WATER/2006/January/Day-04/w03.htm. Accessed December
2009.
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Economic losses from algal blooms and harmful algal blooms can
include increased costs for drinking water treatment, reduced property
values for streams and lakefront areas, commercial fishery losses, and
lost revenue from recreational fishing, boating trips, and other
tourism-related businesses.
In terms of increased costs for drinking water treatment, for
example, in 1991, Des Moines (Iowa) Water Works constructed a $4
million ion exchange facility to remove nitrate from its drinking water
supply. This facility was designed to be used an average of 35-40 days
per year to remove excess nitrate levels at a cost of nearly $3000 per
day.\46\
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\46\ Jones, C.S., D. Hill, and G. Brand. 2007. Use a
multifaceted approach to manage high sourcewater nitrate. Opflow
June pp. 20-22.
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Fremont, Ohio (a city of approximately 20,000) has experienced high
levels of nitrate from its source, the Sandusky River, resulting in
numerous drinking water use advisories. An estimated $15 million will
be needed to build a reservoir (and associated piping) that will allow
for selective withdrawal from the river to avoid elevated levels of
nitrate, as well as to provide storage.\47\
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\47\ Taft, Jim, Association of State Drinking Water
Administrators (ASDWA). 2009. Personal Communication.
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In regulating allowable levels of chlorophyll a in Oklahoma
drinking water reservoirs, the Oklahoma Water Resources Board estimated
that the long-term cost savings in drinking water treatment for 86
systems would range between $106 million and $615 million if such
regulations were implemented.\48\
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\48\ Moershel, Philip, Oklahoma Water Resources Board (OWRB) and
Mark Derischweiler, Oklahoma Department of Environmental Quality
(ODEQ). 2009. Personal Communication.
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3. Nitrogen/Phosphorus Pollution in Florida
Florida's flat topography causes water to move slowly over the
landscape, allowing ample opportunity for nitrogen and phosphorus to
dissolve and eutrophication responses to develop. Florida's warm and
wet, yet sunny, climate further contributes to increased run-off and
ideal temperatures for subsequent eutrophication responses.\49\
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\49\ Perry, W. B. 2008. Everglades restoration and water quality
challenges in south Florida. Ecotoxicology 17:569-578.
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As outlined in the EPA January 2009 determination and the January
2010 proposal, water quality degradation resulting from excess nitrogen
and phosphorus loadings is a documented and significant environmental
issue in Florida. FDEP notes in its 2008 Integrated Water Quality
Assessment that nutrient pollution poses several challenges in Florida.
For example, the FDEP 2008 Integrated Water Quality Assessment notes:
``the close connection between surface and ground water, in combination
with the pressures of continued population growth, accompanying
development, and extensive agricultural operations, present Florida
with a unique set of challenges for managing both water quality and
quantity in the future. After trending downward for 20 years, beginning
in 2000 phosphorus levels again began moving upward, likely due to the
cumulative impacts of nonpoint source pollution associated with
increased population and development. Increasing pollution from urban
stormwater and agricultural activities is having other significant
effects. In many springs across the State, for example, nitrate levels
have increased dramatically (twofold to threefold) over the past 20
years, reflecting the close link between surface and ground water.''
\50\ To clarify current nitrogen/phosphorus pollution conditions in
Florida, EPA analyzed recent STORET data pulled from Florida's Impaired
Waters Rule (IWR),\51\ (which are the data Florida uses to create its
integrated reports) and found increasing levels of nitrogen and
phosphorus compounds in Florida waters over the past 12 years (1996-
2008). Florida's IWR STORET data indicates that levels of total
nitrogen have increased from a State-wide average of 1.06 mg/L in 1996
to 1.27 mg/L in 2008 and total phosphorus levels have increased from an
average of 0.108 mg/L in 1996 to 0.151 mg/L in 2008.
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\50\ FDEP. 2008. Integrated Water Quality Assessment for
Florida: 2008 305(b) Report and 303(d) List Update.
\51\ IWR Run 40. Updated through February 2010.
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The combination of the factors reported by FDEP and listed above
(including population increase, climate, stormwater runoff,
agriculture, and topography) has contributed to significant nitrogen/
phosphorus effects to Florida's waters.\52\ For example, newspapers in
Florida regularly report about impacts associated with nitrogen/
phosphorus pollution; recent examples include reports of algal blooms
and fish kills in the St Johns River \53\ and reports of white foam
associated with algal blooms lining parts of the St. Johns River.\54\
Spring releases of water from Lake Okeechobee into the St Lucie Canal,
necessitated by high lake levels due to rainfall, resulted in reports
of floating mats of toxic Microcystis aeruginosa that prompted Martin
and St Lucie county health departments to issue warnings to the
public.\55\
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\52\ FDEP. 2008. Integrated Water Quality Assessment for
Florida: 2008 305(b) Report and 303(d) List Update.
\53\ Patterson, S. 2010, July 23. St John's River Looks Sick.
Florida Times Union. http://jacksonville.com/news/metro/2010-07-23/story/st-johns-looks-sick-nelson-says. Accessed September 2010.
\54\ Patterson, S. 2010, July 21. Foam on St. John's River
Churns Up Environmental Interest. Florida Times Union. http://jacksonville.com/news/metro/2010-07-21/story/foam-st-johns-churns-environmental-questions. Accessed October 2010.
\55\ Killer, E. 2010, June 10. Blue-green Algae Found Floating
Near Palm City as Lake Okeechobee Releases Continue. Treasure Coast
Times. http://www.tcpalm.com/news/2010/jun/10/blue-green-algae-found-floating-near-palm-city-o/. Accessed October 2010.
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The 2008 Integrated Water Quality Assessment lists nutrients as the
fourth major source of impairment for rivers and streams in Florida
(after dissolved oxygen, mercury in fish, and fecal coliforms). For
lakes and estuaries, nutrients are ranked first and second,
respectively. These same rankings are also confirmed in FDEP's latest
2010 Integrated Water Quality Assessment.
[[Page 75769]]
According to FDEP's 2008 Integrated Water Quality Assessment,\56\
approximately 1,049 miles of rivers and streams, 349,248 acres of
lakes, and 902 square miles of estuaries are impaired by nutrients in
the State. To put this in context and as noted above, approximately 5%
of the total assessed river and stream miles, 23% of the total assessed
lake acres, and 24% of the total assessed square miles of estuaries are
impaired for nutrients according to the 2008 Integrated Report.\57\ In
recent published listings of impairments for 2010, Florida Department
of Environmental Protection lists nutrient impairments in 1,918 stream
miles (about 8% of the total assessed stream miles), 378,435 lake acres
(about 26% of total assessed lake acres), and 569 square miles of
estuaries (about 21% of total assessed estuarine square miles).\58\
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\56\ FDEP. 2008. Integrated Water Quality Assessment for
Florida: 2008 305(b) Report and 303(d) List Update.
\57\ FDEP. 2008. Integrated Water Quality Assessment for
Florida: 2008 305(b) Report and 303(d) List Update.
\58\ FDEP. 2010. Integrated Water Quality Assessment for
Florida: 2010 305(b) Report and 303(d) List Update.
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Compared to FDEP's 2008 Integrated Water Quality Assessment, the
2010 Integrated Water Quality Assessment shows an increase in nutrient
impairments for rivers and streams (from approximately 1000 miles to
1918 miles) and lakes (from approximately 350,000 lake acres to 378,435
lake acres). While the square miles of estuaries identified as impaired
by nutrients decreased from 2008 to 2010 (from approximately 900 to 569
square miles), the 2010 Integrated Water Quality Assessment notes that
all square miles of estuaries in the report were decreased based on
improved GIS techniques and corrected waterbody descriptions.\59\
Consequently, the decrease in estuarine square miles identified as
impaired by nutrients in 2010 does not necessarily reflect a
corresponding decrease in nitrogen/phosphorus pollution affecting
Florida's estuarine water bodies.
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\59\ FDEP. 2010. Integrated Water Quality Assessment for
Florida: 2010 305(b) Report and 303(d) List Update.
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FDEP has expressed concern about nitrogen/phosphorus pollution in
Florida surface waters,\60\ in addition to concerns about freshwater
harmful algal blooms and the potential for adverse human health impacts
as noted in FDEP's 2008 Integrated Water Quality Assessment.\61\ This
concern is underscored by a toxic blue-green algae bloom that occurred
north of the Franklin Lock on the Caloosahatchee River in mid-June
2008. The Olga Water Treatment Plant, which obtains its source water
from the Caloosahatchee and provides drinking water for 30,000 people,
was forced to temporarily shut down as a result of this bloom.\62\
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\60\ ``While significant progress has been made in reducing
nutrient loads from point sources and from new development, nutrient
loading and the resulting harmful algal blooms continue to be an
issue. The occurrence of blue-green algae is natural and has
occurred throughout history; however, algal blooms caused by
nutrient loading from fertilizer use, together with a growing
population and the resulting increase in residential landscapes, are
an ongoing concern.'' FDEP. 2010. Integrated Water Quality
Assessment for Florida: 2010 305(b) Report and 303(d) List Update.
\61\ ``Freshwater harmful algal blooms (HABs) are increasing in
frequency, duration, and magnitude and therefore may be a
significant threat to surface drinking water resources and
recreational areas. Abundant populations of blue-green algae, some
of them potentially toxigenic, have been found statewide in numerous
lakes and rivers. In addition, measured concentrations of
cyanotoxins--a few of them of above the suggested guideline levels--
have been reported in finished water from some drinking water
facilities.'' FDEP. 2008. Integrated Water Quality Assessment for
Florida: 2008 305(b) Report and 303(d) List Update.
\62\ Peltier, M. 2008. Group files suit to enforce EPA water
standards. Naples News. http://news.caloosahatchee.org/docs/NaplesNews_080717.htm. Accessed August 2010.
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There has also been an increase in the level of pollutants,
especially nitrate, in groundwater over the past decades.\63\ The
Florida Geological Survey concluded that ``The presence of nitrate and
the other nitrogenous compounds in ground water, is not considered in
Florida to be a result of interaction of aquifer system water with
surrounding rock materials. Nitrate in ground water is a result of
specific land uses.'' \64\
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\63\ Scott, T.M., G.H. Means, R.P. Meegan, R.C. Means, S.B.
Upchurch, R.E. Copeland, J. Jones, T. Roberts, and A. Willet. 2004.
Springs of Florida. Bulletin No. 66. Florida Geological Survey,
Tallahassee, FL. 677 pp.
\64\ FL Geological Survey. 1992. Special Publication No. 34,
Florida's Ground Water Quality Monitoring Program, (nitrate-pp 36-
6).
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Historically, nitrate+nitrite concentrations in Florida's spring
discharges were estimated to have been around 0.05 mg/L or less, which
is sufficiently low to restrict growth of algae and vegetation under
``natural'' conditions.\65\ Of 125 spring vents sampled by the Florida
Geological Survey in 2001-2002, 42% had nitrate+nitrite concentrations
exceeding 0.50 mg/L and 24% had concentrations greater than 1.0 mg/
L.\66\ In the same study, mean nitrate+nitrite levels in 13 first-order
springs were observed to have increased from 0.05 mg/L to 0.9 mg/L
between 1970 and 2002. Overall, data suggest that nitrate+nitrite
concentrations in many spring discharges have increased by an order of
magnitude or a factor of 10 over the past 50 years, with the level of
increase closely correlated with anthropogenic activity and land use
changes within the karst regions of Florida where springs most often
occur.\67\
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\65\ Maddox, G.L., J.M. Lloyd, T.M. Scott, S.B. Upchurch and R.
Copeland. 1992. Florida's Groundwater Quality Monitoring Program--
Background Hydrochemistry. Florida Geological Survey Special
Publication No. 34, Tallahassee, FL.
\66\ Scott, T.M., G.H. Means, R.P. Meegan, R.C. Means, S.B.
Upchurch, R.E. Copeland, J. Jones, T. Roberts, and A. Willet. 2004.
Springs of Florida. Bulletin No. 66. Florida Geological Survey,
Tallahassee, FL. 677 pp.
\67\ Katz, B.G., H.D. Hornsby, J.F. Bohlke and M.F. Mokray.
1999. Sources and chronology of nitrate contamination in spring
water, Suwannee River Basin, Florida. Water-Resources Investigations
Report 99-4252. U.S. Geological Survey, Tallahassee, FL. Available
electronically at: http://fl.water.usgs.gov/PDF_files/wri99_4252_katz.pdf.
Scott, T.M., G.H. Means, R.P. Meegan, R.C. Means, S.B. Upchurch,
R.E. Copeland, J. Jones, T. Roberts, and A. Willet. 2004. Springs of
Florida. Bulletin No. 66. Florida Geological Survey, Tallahassee,
FL. 677 pp.
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Nitrates are found in ground water and wells in Florida, ranging
from the detection limit of 0.02 mg/L to over 20 mg/L. Monitoring of
Florida Public Water Supplies from 2004-2009 indicates that exceedances
of nitrate maximum contaminant levels (MCL) (which are measured at the
entry point of the distribution system and represent treated drinking
water from a supplier) reported by drinking water plants in Florida
ranged from 34-40 annually, during this period.\68\
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\68\ FDEP. 2009. Chemical Data for 2004, 2005, 2006, 2007 2008,
and 2009. Florida Department of Environmental Protection. http://www.dep.state.fl.us/water/drinkingwater/chemdata.htm. Accessed
January 2010.
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About 10% of Florida residents receive their drinking water from a
private well or small public source not inventoried under public
supply.\69\ A study in the late 1980s conducted by Florida Department
of Agriculture and Consumer Services (FDACS) and FDEP, analyzed 3,949
shallow drinking water wells for nitrate.70 71 Nitrate was
detected in 2,483 (63%) wells, with 584 wells (15%) above the MCL of 10
mg/L. Of the 584 wells that exceeded the MCL, 519 were located in Lake,
Polk,
[[Page 75770]]
and Highland counties located in Central Florida. Results of monitoring
conducted between 1999 and 2003 in a network of wells in that area
indicated that of the 31 monitoring wells, 90% exceeded the nitrate
drinking-water standard of 10 mg/L one or more times.72 73
FDEP monitored this same area (the VISA monitoring network) in 1990,
1993, and 1996, analyzing samples from 15-17 wells each cycle and
reported median concentrations ranging from 17 to 20 mg/L nitrate,
depending on the year.\74\ Some areas of Florida tend to be more
susceptible to groundwater impacts from nitrogen pollution, especially
those that have sandy soils, have high hydraulic conductivity, and have
overlying land uses that are subject to applications of fertilizers and
animal or human wastes.\75\ For example, USGS reports that in Highland
county, highly developed suburban and agricultural areas tend to have
levels of nitrates in the surficial groundwater that approach and can
exceed the State primary drinking water standard of 10 mg/L for public
water systems. Other areas in Highland county that are less developed
tend to have much lower levels of nitrates in the surficial
groundwater, often below detection levels.
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\69\ Marella, R.L. 2009. Water Withdrawals, Use, and Trends in
Florida, 2005. Scientific Investigations Report 2009-5125. U.S.
Geological Survey, Reston, VA.
\70\ Southern Regional Water Program. 2010. Drinking Water and
Human Health in Florida. http://srwqis.tamu.edu/florida/program-information/florida-target-themes/drinking-water-and-human-health.aspx. Accessed January 2010.
\71\ T.A. Obreza and K.T. Morgan. 2008. Nutrition of Florida
Citrus Trees 15 months after publication of the final rule, except
for the Federal site-specific alternative criteria (SSAC) procedure
in section 131.43(e) of the rule which will go into effect 60 days
after publication. 2nd ed. SL 253. University of Florida, IFAS
Extension. http://edis.ifas.ufl.edu/pdffiles/SS/SS47800.pdf.
Accessed September 2010.
\72\ T.A. Obreza and K.T. Morgan. 2008. Nutrition of Florida
Citrus Trees. 2nd ed. SL 253. University of Florida, IFAS Extension.
http://edis.ifas.ufl.edu/pdffiles/SS/SS47800.pdf. Accessed September
2010.
\73\ USGS. 2009, November. Overview of Agricultural Chemicals:
Pesticides and Nitrate. http://fl.water.usgs.gov/Lake_Wales_Ridge/html/overview_of_agrichemicals.html. Accessed September 2010.
\74\ FDEP. 1998. Ground Water Quality and Agricultural Land Use
in the Polk County Very Intense Study Area (VISA). Florida
Department of Environmental Protection, Division of Water
Facilities. http://www.dep.state.fl.us/water/monitoring/docs/facts/fs9802.pdf. Accessed September 2010.
\75\ USGS. 2010. Hydrogeology and Groundwater Quality of
Highlands County, FL. Scientific Investigations Report 2010-5097.
U.S. Geological Survey, Reston, VA.
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The Floridian aquifer system is one of the largest sources of
ground water in the U.S., and serves as a primary source of drinking
water in Northern Florida. The Upper Floridian aquifer is unconfined or
semiconfined in areas in Northern Florida, but is also confined by the
overlying surficial aquifer system which is used for water supply.
Wells in unconfined areas of the Upper Floridian aquifer tested in
northern Florida had nitrate levels higher than 1 mg/L in 40% of wells;
17% of samples from the semiconfined area had nitrate levels above 1
mg/L. In both aquifer systems this indicates the widespread impact of
nitrate on groundwater quality in this area.76 77 This
baseline sampling indicates a pattern of widespread nitrate occurrence
in the Upper Floridian aquifer from two decades ago. A portion of these
early samples exceeded 10 mg/L nitrate (25 of the 726 samples taken
from this unconfined or semi-confined aquifer; 50 of the 421 water
samples from the surficial aquifer).
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\76\ Berndt, M.P., 1996. Ground-water quality assessment of the
Georgia-Florida Coastal Plain study unit--Analysis of available
information on nutrients, 1972-92. Water-Resources Investigations
Report 95-4039. U.S. Geological Survey, Tallahassee, FL.
\77\ Berndt, Marian P., 1993. National Water-Quality Assessment
Program-Preliminary assessment of nitrate distribution in ground
water in the Georgia-Florida Coastal Plain Study Unit, 1972-90.
Open-File Report 93-478. U.S. Geological Survey.
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Growing population trends in Florida contribute to the significant
challenge of addressing nitrogen/phosphorus pollution in Florida.
Historically, the State has experienced a rapidly expanding population.
Significantly growing demographics are considered to be a strong
predictor of nitrogen/phosphorus loading and associated effects because
of increases in stormwater runoff from increased impervious surfaces
and increased wastewater treatment flows both of which typically
contain some level of nitrogen/phosphorus.\78\ Florida is currently the
fourth most populous State in the nation, with an estimated 18 million
people.\79\ The U.S. Census bureau predicts the Florida population will
exceed 28 million people by 2030, making Florida the third most
populous State in the U.S.\80\
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\78\ National Research Council, Committee on Reducing Stormwater
Discharge Contributions to Water Pollution. 2008. Urban Stormwater
Management in the United States. National Academies Press,
Washington, DC.
\79\ U.S. Census Bureau. 2009. 2008 Population Estimates Ranked
by State. http://factfinder.census.gov. Accessed January 2010.
\80\ U.S. Census Bureau. 2009. 2008 Population Estimates Ranked
by State. http://factfinder.census.gov. Accessed January 2010.
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B. Statutory and Regulatory Background
Section 303(c) of the CWA (33 U.S.C. 1313(c)) directs States to
adopt WQS for their navigable waters. Section 303(c)(2)(A) and EPA's
implementing regulations at 40 CFR part 131 require, among other
things, that State WQS include the designated use or uses to be made of
the waters and criteria that protect those uses. EPA regulations at 40
CFR 131.11(a)(1) provide that States shall ``adopt those water quality
criteria that protect the designated use'' and that such criteria
``must be based on sound scientific rationale and must contain
sufficient parameters or constituents to protect the designated use.''
As noted above, 40 CFR 130.10(b) provides that ``[i]n designating uses
of a waterbody and the appropriate criteria for those uses, the State
shall take into consideration the water quality standards of downstream
waters and ensure that its water quality standards provide for the
attainment and maintenance of the water quality standards of downstream
waters.''
States are also required to review their WQS at least once every
three years and, if appropriate, revise or adopt new standards. (See
CWA section 303(c)(1)). Any new or revised WQS must be submitted to EPA
for review and approval or disapproval. (See CWA section 303(c)(2)(A)).
Finally, CWA section 303(c)(4)(B) authorizes the Administrator to
determine, even in the absence of a State submission, that a new or
revised standard is needed to meet CWA requirements. The criteria
finalized in this rulemaking translate Florida's narrative nutrient
provision at Subsection 62-302-530(47)(b), F.A.C., into numeric values
that apply to lakes and springs throughout Florida and flowing waters
outside of the South Florida Region.\81\
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\81\ The criteria finalized in this rulemaking do not address or
translate Florida's narrative nutrient provision at Subsection 62-
302.530(47)(a), F.A.C. Subsection 62-302.530(47)(a), F.A.C., remains
in place as an applicable WQS for CWA purposes.
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C. Water Quality Criteria
Under CWA section 304(a), EPA periodically publishes criteria
recommendations (guidance) for use by States in setting water quality
criteria for particular parameters to protect recreational and aquatic
life uses of waters. Where EPA has published recommended criteria,
States have the option of adopting water quality criteria based on
EPA's CWA section 304(a) criteria guidance, section 304(a) criteria
guidance modified to reflect site-specific conditions, or other
scientifically defensible methods. (See 40 CFR 131.11(b)(1)). For
nitrogen/phosphorus pollution, EPA has published under CWA section
304(a) a series of peer-reviewed, national technical approaches and
methods regarding the development of numeric criteria for lakes and
reservoirs,\82\ rivers and streams,\83\ and estuaries and coastal
marine waters.\84\
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\82\ USEPA. 2000a. Nutrient Criteria Technical Guidance Manual:
Lakes and Reservoirs. EPA-822-B-00-001. U.S. Environmental
Protection Agency, Office of Water, Washington, DC.
\83\ USEPA. 2000b. Nutrient Criteria Technical Guidance Manual:
Rivers and Streams. EPA-822-B-00-002. U.S. Environmental Protection
Agency, Office of Water, Washington, DC.
\84\ USEPA. 2001. Nutrient Criteria Technical Manual: Estuarine
and Coastal Marine Waters. EPA-822-B-01-003. U.S. Environmental
Protection Agency, Office of Water, Washington, DC.
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[[Page 75771]]
EPA based the methodologies used to develop numeric criteria for
Florida in this regulation on its published guidance on developing
criteria that identifies three general approaches for criteria setting.
The three types of empirical analyses provide distinctly different,
independently and scientifically defensible, approaches for deriving
nutrient criteria from field data: (1) Reference condition approach
derives candidate criteria from observations collected in reference
waterbodies, (2) mechanistic modeling approach represents ecological
systems using equations that represent ecological processes and
parameters for these equations that can be calibrated empirically from
site-specific data, and (3) empirical nutrient stressor-response
modeling is used when data are available to accurately estimate a
relationship between nutrient concentrations and a response measure
that is directly or indirectly related to a designated use of the
waterbody (e.g., a biological index or recreational use measure). Then,
nutrient concentrations that are protective of designated uses can be
derived from the estimated relationship).\85\ Each of these three
analytical approaches is appropriate for deriving scientifically
defensible numeric nutrient criteria when applied with consideration of
method-specific data needs and available data. In addition to these
empirical approaches, consideration of established (e.g., published)
nutrient response thresholds is also an acceptable approach for
deriving criteria.\86\
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\85\ USEPA. 2000a. Nutrient Criteria Technical Guidance Manual:
Lakes and Reservoirs. EPA-822-B-00-001. U.S. Environmental
Protection Agency, Office of Water, Washington, DC.
USEPA. 2000b. Nutrient Criteria Technical Guidance Manual:
Rivers and Streams. EPA-822-B-00-002. U.S. Environmental Protection
Agency, Office of Water, Washington, DC.
USEPA. 2001. Nutrient Criteria Technical Guidance Manual:
Estuarine and Coastal Marine Waters. EPA-822-B-01-003. U.S.
Environmental Protection Agency, Office of Water, Washington, DC.
USEPA. 2008. Nutrient Criteria Technical Guidance Manual:
Wetlands. EPA-822-B-08-001. U.S. Environmental Protection Agency,
Office of Water, Washington, DC.
\86\ USEPA. 2000a. Nutrient Criteria Technical Guidance Manual:
Lakes and Reservoirs. EPA-822-B-00-001. U.S. Environmental
Protection Agency, Office of Water, Washington, DC.
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For lakes, EPA used a stressor-response approach to link nitrogen/
phosphorus concentrations to predictions of corresponding chlorophyll a
concentrations. EPA used a reference-based approach for streams,
relying on a comprehensive screening methodology to identify least-
disturbed streams as reference streams. For springs, EPA used algal or
nitrogen/phosphorus thresholds developed under laboratory conditions
and stressor-response relationships from several field studies of algal
growth in springs. For each type of waterbody, EPA carefully considered
the available data and evaluated several lines of evidence to derive
scientifically sound approaches (as noted above) for developing the
final numeric criteria.
Based on comments received from the Scientific Advisory Board
(SAB), EPA has modified a draft methodology guidance document on using
stressor-response relationships for deriving numeric criteria, which is
available as a final technical guidance document.\87\ In addition, the
reference-based and algal or nitrogen/phosphorus threshold approaches
have been peer reviewed and have been available for many years.
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\87\ USEPA. 2010. Using Stressor-Response Relationships to
Derive Numeric Nutrient Criteria. EPA-820-S-10-001. U.S.
Environmental Protection Agency, Office of Water, Washington, DC.
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As mentioned above, the criteria finalized in this rulemaking
translate Florida's narrative nutrient provision at Subsection 62-
302.530(47)(b), F.A.C., (``[i]n no case shall nutrient concentrations
of a body of water be altered so as to cause an imbalance in natural
populations of aquatic flora or fauna'') into numeric values that apply
to lakes and springs throughout the State and flowing waters outside of
the South Florida Region. EPA believes that numeric criteria will
expedite and facilitate the effective implementation of Florida's
existing point and non-point source water quality programs in terms of
timely water quality assessments, TMDL development, NPDES permit
issuance and, where needed, Basin Management Action Plans (BMAPs) to
address nitrogen/phosphorus pollution. EPA notes that Subsection 62-
302.530(47)(a), F.A.C. (``[t]he discharge of nutrients shall continue
to be limited as needed to prevent violations of other standards
contained in this chapter. Man-induced nutrient enrichment (total
nitrogen or total phosphorus) shall be considered degradation in
relation to the provisions of Sections 62-302.300, 62-302.700, and 62-
4.242, F.A.C.'') could result in more stringent nitrogen/phosphorus
limits, where necessary to protect other applicable WQS in Florida.
D. EPA Determination Regarding Florida and EPA's Rulemaking
On January 14, 2009, EPA determined under CWA section 303(c)(4)(B)
that new or revised WQS in the form of numeric water quality criteria
for nitrogen/phosphorus pollution are necessary to meet the
requirements of the CWA in the State of Florida. As noted above, the
portion of Florida's currently applicable narrative criterion
translated by this final rule provides, in part, that ``in no case
shall nutrient concentrations of a body of water be altered so as to
cause an imbalance in natural populations of aquatic flora or fauna.''
(See Subsection 62-302.530(47)(b), F.A.C.). EPA determined that
Florida's narrative criterion alone was insufficient to ensure
protection of applicable designated uses. The determination recognized
that Florida has a comprehensive regulatory and non-regulatory
administrative water quality program to address nitrogen/phosphorus
pollution through a water quality strategy of assessments, non-
attainment listing and determinations, TMDL development, and National
Pollutant Discharge Elimination System (NPDES) permit regulations;
individual watershed management plans through the State's BMAPs;
advanced wastewater treatment technology-based requirements under the
1990 Grizzle-Figg Act; together with rules to limit nitrogen/phosphorus
pollution in geographically specific areas like the Indian River Lagoon
System, the Everglades Protection Area, and Wekiva Springs. However,
the determination noted that despite Florida's existing regulatory and
non-regulatory water quality framework and the State's intensive
efforts to diagnose nitrogen/phosphorus pollution and address it on a
time-consuming and resource-intensive case-by-case basis, substantial
water quality degradation from nitrogen/phosphorus over-enrichment
remains a significant challenge in the State and conditions are likely
to worsen with continued population growth and land-use changes.
Overall, the combined impacts of urban and agricultural activities,
along with Florida's physical features and important and unique aquatic
ecosystems, made it clear that the current reliance on the narrative
criterion alone and a resource-intensive, site-specific implementation
approach, and the resulting delays that it entails, do not ensure
protection of applicable designated uses for the many State waters that
either have been listed as impaired and require loadings reductions or
those that are high quality and require protection from future
degradation. EPA concluded that numeric criteria for nitrogen/
phosphorus pollution will enable the State to take necessary action to
protect
[[Page 75772]]
the designated uses in a timely manner that will ensure protection of
the designated use. The resource-intensive efforts to interpret the
State's narrative criterion contribute to substantial delays in
implementing the criterion and, therefore, undercut the State's ability
to provide the needed protections for applicable designated uses. EPA,
therefore, determined that numeric criteria for nitrogen/phosphorus
pollution are necessary for the State of Florida to meet the CWA
requirement to have criteria that protect applicable designated uses.
EPA determined that numeric water quality criteria would strengthen the
foundation for identifying impaired waters, establishing TMDLs, and
deriving water quality-based effluent limits in NPDES permits, thus
providing the necessary protection for the State's designated uses in
its waters. In addition, numeric criteria will support the State's
ability to effectively partner with point and nonpoint sources to
control nitrogen/phosphorus pollution, thus further providing the
necessary protection for the designated uses of the State's water
bodies. EPA's determination is available at the following Web site:
http://www.epa.gov/waterscience/standards/rules/fl-determination.htm.
While Florida continues to work to implement its watershed
management program, the impairments for nutrient pollution are
increasing as evidenced by the 2008 and 2010 Integrated Water Quality
Assessment for Florida report results, and the tools to correct the
impairments (TMDLs and BMAPs) are not being completed at a pace to keep
up. Numeric criteria can be used as a definitive monitoring tool to
identify impaired waters and as an endpoint for TMDLs to establish
allowable loads necessary to correct impairments. When developing
TMDLs, as it does when determining reasonable potential and deriving
limits in the permitting context, Florida translates the narrative
criterion into a numeric target that the State determines is necessary
to meet its narrative criterion and protect applicable designated uses.
This process involves a site-specific analysis to determine the
nitrogen and phosphorus concentrations that would ``cause an imbalance
in natural populations of aquatic flora or fauna'' in a particular
water.
When deriving NPDES water quality-based permit limits, Florida
initially conducts a site-specific analysis to determine whether a
proposed discharge has the reasonable potential to cause or contribute
to an exceedance of its narrative water quality criterion. The absence
of numeric criteria make this ``reasonable potential'' analysis more
complex, data-intensive, and protracted. Following a reasonable
potential analysis, the State then evaluates what levels of nitrogen
and phosphorus would ``cause an imbalance in natural populations of
aquatic flora or fauna'' and translates those levels into numeric
``targets'' for the receiving water and any other affected waters.
Determining on a State-wide, water-by-water basis the levels of
nitrogen and phosphorus that would ``cause an imbalance in natural
populations of aquatic flora or fauna'' is a difficult, lengthy, and
data-intensive undertaking. This work involves performing detailed
location-specific analyses of the receiving water. If the State has not
already completed this analysis for a particular waterbody, it can be
very difficult to accurately determine in the context and timeframe of
the NPDES permitting process. For example, in some cases, site-specific
data may take several years to collect and, therefore, may not be
available for a particular waterbody at the time of permitting issuance
or re-issuance.
The January 14, 2009 determination stated EPA's intent to propose
numeric criteria for lakes and flowing waters in Florida within 12
months of the January 14, 2009 determination, and for estuarine and
coastal waters within 24 months of the determination. On August 19,
2009, EPA entered into a Consent Decree with Florida Wildlife
Federation, Sierra Club, Conservancy of Southwest Florida,
Environmental Confederation of Southwest Florida, and St. Johns
Riverkeeper, committing to the schedule stated in EPA's January 14,
2009 determination to propose numeric criteria for lakes and flowing
waters in Florida by January 14, 2010, and for Florida's estuarine and
coastal waters by January 14, 2011. The Consent Decree also required
that final rules be issued by October 15, 2010 for lakes and flowing
waters, and by October 15, 2011 for estuarine and coastal waters. FDEP,
independently from EPA, initiated its own State rulemaking process in
the spring/summer of 2009 to adopt nutrient water quality standards
protective of Florida's lakes and flowing waters. FDEP held several
public workshops on its draft numeric criteria for lakes and flowing
waters. In October 2009, however, FDEP decided not to bring the draft
criteria before the Florida Environmental Regulation Commission, as had
been previously scheduled.
Pursuant to the Consent Decree, EPA's Administrator signed the
proposed numeric criteria for Florida's lakes and flowing waters on
January 14, 2010, which was published in the Federal Register on
January 26, 2010. EPA conducted a 90-day public comment period for this
rule that closed on April 28, 2010. During this period, EPA also
conducted 13 public hearing sessions in 6 cities in Florida. EPA
received over 22,000 public comments from a variety of sources,
including environmental groups, municipal wastewater associations,
industry, State agencies, local governments, agricultural groups, and
private citizens. The comments addressed a wide range of issues,
including technical analyses, policy issues, economic costs, and
implementation concerns. In this notice, EPA explains the inland waters
final rule and provides a summary of major comments and the Agency's
response in the sections that describe each of the provisions of the
final rule. EPA has prepared a detailed ``Comment Response Document,''
which includes responses to the comments contributed during the public
hearing sessions, as well as those submitted in writing on the proposed
rule, and is located in the docket for this rule.
On June 7, 2010, EPA and Plaintiffs filed a joint notice with the
Court extending the deadlines for promulgating numeric criteria for
Florida's estuaries and coastal waters, flowing waters in south Florida
(including canals), and the downstream protection values for flowing
waters into estuaries and coastal waters. The new deadlines are
November 14, 2011 for proposing this second phase of criteria, and
August 15, 2012 for publishing a final rule for these three categories.
This will allow EPA time to hold a public peer review by EPA's
Scientific Advisory Board (SAB) of the scientific methodologies for
estuarine and coastal criteria, flowing waters in south Florida, and
downstream protection values for estuaries and coastal waters.
Based upon comments and new data and information received during
the public comment phase of the January 2010 proposed rule, on August
3, 2010 EPA published a supplemental notice of data availability and
request for comment related to the Agency's January 26, 2010 notice of
proposed rulemaking. In its supplemental notice, EPA solicited comment
on a revised regionalization approach for streams, additional
information and analysis on least-disturbed sites as part of a modified
benchmark distribution approach, and additional options for developing
downstream protection values (DPVs) for lakes. EPA did not solicit
additional comment on any other provisions of the January 2010
proposal. EPA received 71 public comments from a variety of sources,
including local and State governments, industry, and
[[Page 75773]]
environmental groups. As mentioned above, EPA provides a summary of
major comments and the Agency's response in the sections that describe
each of the provisions of the final rule. Responses to comments
submitted during the public comment period associated with the
supplemental notice are also included in EPA's detailed ``Comment
Response Document,'' located in the docket for this rule.
On October 8, 2010, EPA filed an unopposed motion with the Court
requesting that the deadline for signing the final rule be extended to
November 14, 2010. The Court granted EPA's motion on October 27, 2010.
EPA used this additional time to review and confirm that all comments
were fully considered.
In accordance with the January 14, 2009 determination, the August
19, 2009 Consent Decree, and the June 7, 2010 and October 27, 2010
revisions to that Consent Decree, in this final notice EPA is
promulgating final numeric criteria for streams, lakes, and springs in
the State of Florida.\88\
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\88\ For purposes of this rule, EPA has distinguished South
Florida as those areas south of Lake Okeechobee and the
Caloosahatchee River watershed to the west of Lake Okeechobee and
the St. Lucie watershed to the east of Lake Okeechobee, hereinafter
referred to as the South Florida Region. Numeric criteria applicable
to flowing waters in the South Florida Region will be addressed in
the second phase of EPA's rulemaking regarding the establishment of
estuarine and coastal numeric criteria. (Please refer to Section I.B
for a discussion of the water bodies affected by this rule).
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III. Numeric Criteria for Streams, Lakes, and Springs in the State of
Florida
A. General Information
For this final rule, EPA derived numeric criteria for streams,
lakes and springs to implement Florida Subsection 62-302.530(47)(b),
F.A.C.\89\ This final rule also includes downstream protection values
(DPVs) to ensure the attainment and maintenance of the WQS for
downstream lakes. Derivation of these criteria is based upon an
extensive amount of Florida-specific data. EPA has carefully considered
numerous comments from a range of stakeholders and has worked in close
collaboration with FDEP technical and scientific experts to analyze,
evaluate, and interpret these Florida-specific data in deriving
scientifically sound numeric criteria for this final rulemaking.
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\89\ In no case shall nutrient concentrations of a body of water
be altered so as to cause an imbalance in natural populations of
aquatic flora or fauna.
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To support derivation of the final streams criteria, EPA screened
and evaluated water chemistry data from more than 11,000 samples from
over 6,000 sites statewide. EPA also evaluated biological data
consisting of more than 2,000 samples from over 1,100 streams. To
support derivation of the final lakes criteria, EPA screened and
evaluated relevant lake data, which consisted of over 17,000 samples
from more than 1,500 lakes statewide. Finally, for the final springs
criterion, EPA evaluated and relied on scientific information and
analyses from more than 40 studies including historical accounts,
laboratory scale dosing studies and field surveys.
In deriving these final numeric values, the EPA met and consulted
with FDEP expert scientific and technical staff on numerous occasions
as part of an ongoing collaborative process. EPA carefully considered
and evaluated the technical approaches and scientific analysis that
FDEP presented as part of its July 2009 draft numeric criteria,\90\ as
well as its numerous comments on different aspects of this rule. The
Agency also received and carefully considered substantial stakeholder
input from 13 public hearings in 6 Florida cities. Finally, EPA
reviewed and evaluated further analysis and information included in
more than 22,000 comments on the January 2010 proposal and an
additional 71 comments on the August 2010 supplemental notice.
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\90\ FDEP. 2009. Draft Technical Support Document: Development
of Numeric Nutrient Criteria for Florida's Lakes and Streams.
Florida Department of Environmental Protection, Standards and
Assessment Section. Available electronically at: http://www.dep.state.fl.us/water/wqssp/nutrients/docs/tsd_nutrient_crit.docx. Accessed October 2010.
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EPA has created a technical support document that provides detailed
information regarding the methodologies discussed herein and the
derivation of the final criteria. This document is entitled ``Technical
Support Document for EPA's Final Rule for Numeric Criteria for
Nitrogen/Phosphorus Pollution in Florida's Inland Surface Fresh
Waters'' (``EPA Final Rule TSD for Florida's Inland Waters'' or
``TSD'') and is part of the record and supporting documentation for
this final rule. As part of its review of additional technical and
scientific information, EPA has documented its consideration of key
comments and issues received from a wide range of interested parties
during the rulemaking process. This analysis and consideration is
included as part of a comment response document entitled ``Response to
Comments--EPA's Numeric Criteria for Nitrogen/Phosphorus Pollution in
the State of Florida's Lakes and Flowing Waters'' that is also part of
the record and supporting documentation for this final rule.
This section of the preamble describes EPA's final numeric criteria
for Florida's streams (III.B), lakes (III.C), and springs (III.D), with
the associated methodologies EPA employed to derive them. Each
subsection includes the final numeric criteria (magnitude, duration,
and frequency) and background information and supporting analyses.
Section III.E discusses the applicability and implementation of these
final criteria.
As discussed, the scientific basis for the derivation of the
applicable criteria for streams, lakes and springs in this final rule
is outlined below and explained in more detail in the Technical Support
Document accompanying this rulemaking. The final criteria and related
provisions in this rule reflect a detailed consideration and full
utilization of the best available science, data, literature, and
analysis related to the specific circumstances and contexts for
deriving numeric criteria in the State of Florida. This includes, but
is not limited to, the substantial quantity and quality of available
data in Florida, Florida's regional hydrologic, biological, and land
use characteristics, and the biological responses in Florida's surface
water systems.
B. Numeric Criteria for the State of Florida's Streams
(1) Final Rule
EPA is promulgating numeric criteria for TN and TP in five
geographically distinct watershed regions of Florida's streams
classified as Class I or III waters under Florida law (Section 62-
302.400, F.A.C.).
Table B-1--EPA's Numeric Criteria for Florida Streams
------------------------------------------------------------------------
Instream protection
value criteria
Nutrient watershed region ---------------------
TN (mg/ TP (mg/
L) * L) *
------------------------------------------------------------------------
Panhandle West \a\................................ 0.67 0.06
Panhandle East \b\................................ 1.03 0.18
North Central \c\................................. 1.87 0.30
West Central \d\.................................. 1.65 0.49
Peninsula \e\..................................... 1.54 0.12
------------------------------------------------------------------------
Watersheds pertaining to each Nutrient Watershed Region (NWR) were based
principally on the NOAA coastal, estuarine, and fluvial drainage areas
with modifications to the NOAA drainage areas in the West Central and
Peninsula Regions that account for unique watershed geologies. For
more detailed information on regionalization and which WBIDs pertain
to each NWR, see the Technical Support Document.
[[Page 75774]]
\a\ Panhandle West region includes: Perdido Bay Watershed, Pensacola Bay
Watershed, Choctawhatchee Bay Watershed, St. Andrew Bay Watershed,
Apalachicola Bay Watershed.
\b\ Panhandle East region includes: Apalachee Bay Watershed, and
Econfina/Steinhatchee Coastal Drainage Area.
\c\ North Central region includes the Suwannee River Watershed.
\d\ West Central region includes: Peace, Myakka, Hillsborough, Alafia,
Manatee, Little Manatee River Watersheds, and small, direct Tampa Bay
tributary watersheds south of the Hillsborough River Watershed.
\e\ Peninsula region includes: Waccasassa Coastal Drainage Area,
Withlacoochee Coastal Drainage Area, Crystal/Pithlachascotee Coastal
Drainage Area, small, direct Tampa Bay tributary watersheds west of
the Hillsborough River Watershed, Sarasota Bay Watershed, small,
direct Charlotte Harbor tributary watersheds south of the Peace River
Watershed, Caloosahatchee River Watershed, Estero Bay Watershed,
Kissimmee River/Lake Okeechobee Drainage Area, Loxahatchee/St. Lucie
Watershed, Indian River Watershed, Daytona/St. Augustine Coastal
Drainage Area, St. John's River Watershed, Nassau Coastal Drainage
Area, and St. Mary's River Watershed.
* For a given waterbody, the annual geometric mean of TN or TP
concentrations shall not exceed the applicable criterion concentration
more than once in a three-year period.
(2) Background and Analysis
(a) Methodology for Stream Classification
In January 2010, EPA proposed to classify Florida's streams into
four regions (referred to in the proposed rule as ``Nutrient Watershed
Regions'') for application of TN and TP criteria. This proposal was
based upon the premise that streams within each of these regions
(Panhandle, Bone Valley, Peninsula and North Central) reflect similar
geographical characteristics, including phosphorus-rich soils,
nitrogen/phosphorus concentrations and nitrogen to phosphorus ratios.
To classify these four regions, EPA began by considering the watershed
boundaries of downstream estuaries and coastal waters in recognition of
the hydrology of Florida's flowing waters and the importance of
protecting downstream water quality. This is consistent with a
watershed approach to water quality management, which EPA encourages to
integrate and coordinate efforts within a watershed in order to most
effectively and efficiently protect our nation's water resources.\91\
EPA then classified Florida's streams based upon a consideration of the
natural factors that contribute to variability in nutrient
concentrations in streams (e.g., geology, soil composition). In the
State of Florida, these natural factors are mainly associated with
phosphorus. EPA's proposal reflected a conclusion that these natural
factors could best be represented by separating the watersheds in the
State into four regions and then using the least-disturbed sites within
those regions to differentiate between the expected natural
concentrations of TN and TP.
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\91\ U.S. EPA. 2008. Handbook for Developing Watershed Plans to
Restore and Protect Our Waters. EPA 841-B-08-002. U.S. Environmental
Protection Agency, Office of Water, Washington, DC.
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EPA received comments suggesting that the proposed stream
regionalization be amended to more accurately account for naturally-
high phosphorus soils in the northern Panhandle, west of the proposed
North Central region. Specifically, EPA was asked to consider the
westward extent of the Hawthorn Group, a phosphorus-rich geological
formation that can influence stream phosphorus concentrations. At
proposal, EPA had taken the Hawthorn Group into account when it
proposed two distinct stream regions to the east and south of the
panhandle region: the North Central and the West Central (formerly
called the Bone Valley at proposal). Following proposal and in response
to these comments, EPA revisited its review of underlying soils and
geology in the Panhandle, itself, and the relationship of those
geological characteristics to observed patterns in phosphorus
concentrations in streams. EPA further considered how well such a
revised regionalization explained observed variability in TP
concentrations relative to the proposed regionalization. EPA concluded
that a revised regional classification subdividing the proposed
Panhandle region into a western and eastern section accurately
reflected phosphate contributions from the underlying geologic
formations that are reflected in the expected instream phosphorus
concentrations. As discussed in the August 2010 supplemental notice,
EPA has used the revised Panhandle regions for TN criteria to assure
consistency and clarity in applicability decisions and implementation.
This approach addresses the concerns of commenters that regionalization
is an important consideration in developing stream criteria. EPA
provided a supplemental notice and solicitation of comment in August
2010 on this potential change to the Panhandle region. In this final
rule, EPA has thus taken into account the portion of the Hawthorn Group
that lies in the eastern portion of the Panhandle region and has
delineated the Panhandle region along watershed boundaries into East
and West portions divided by the eastern edge of the Apalachicola River
watershed (or alternatively, the western edge of the Suwannee River
watershed). For more information regarding the EPA's consideration of
alternative approaches for classification, please see the TSD and
response to comments.
EPA also received comment that the original West Central region
(referred to as the Bone Valley in the proposed rule) was too broad and
incorporated watersheds that were not influenced by underlying Hawthorn
Group geology, especially small, direct coastal drainage watersheds
along the western and southern boundaries. EPA reexamined the watershed
delineations of the West Central and Peninsula regions based on
information in these comments and concluded that the comments were
technically correct. EPA also provided a supplemental notice and
solicitation of comment on this potential change to the West Central
and Peninsula regions. In this final rule, EPA has refined the boundary
delineations accordingly. The result for the West Central region was a
modified boundary that shifts small, direct Tampa Bay tributary
watersheds west of the Hillsborough River Watershed; small, direct
Charlotte Harbor tributary watersheds south of the Peace River
Watershed; and the entire Sarasota Bay Watershed from the West Central
(Bone Valley) to the Peninsula region. EPA believes these adjustments
to the West Central and Peninsula stream region boundaries more
accurately reflect the watershed boundaries and better reflect natural
differences in underlying geological formations and expected stream
chemistry.
In summary, EPA is finalizing numeric stream criteria for TN and TP
for five separate Nutrient Watershed Regions (NWR): Panhandle West,
Panhandle East, North Central, West Central and Peninsula (north of
Lake Okeechobee, including the Caloosahatchee River Watershed to the
west and the St. Lucie Watershed to the east). For a map of these
regions, refer to ``Technical Support Document for U.S. EPA's Final
Rule for Numeric Criteria for Nitrogen/Phosphorus Pollution in
Florida's Inland Surface Fresh Waters'' (Chapter 1: Derivation of EPA's
Numeric Criteria for Streams) included in the docket as part of the
record for this final rule.
(b) Methodology for Calculating Instream Protective TN and TP Values
In the January 2010 proposal, EPA used a reference condition
approach to derive numeric criteria that relied on the identification
of biologically healthy sites that were unimpaired by nitrogen or
phosphorus. EPA identified these sites from FDEP's streams data set,
selecting sites where Stream Condition
[[Page 75775]]
Index (SCI) scores were 40 and higher. The SCI is a multi-metric index
of benthic macroinvertebrate community composition and taxonomic data
developed by FDEP to assess the biological health of Florida's
streams.\92\ An SCI score > 40 has been determined to be indicative of
biologically healthy conditions based on an expert workshop and
analyses performed by both FDEP and EPA. Please refer to the EPA's
January 2010 proposal and the final TSD accompanying this final rule
for more information on the SCI and the selection of the SCI value of
40 as an appropriate threshold to identify biologically healthy sites.
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\92\ The SCI method was developed and calibrated by FDEP. See
Fore et al. 2007. Development and Testing of Biomonitoring Tools for
Macroinvertebrates in Florida Streams (Stream Condition Index and
BioRecon). Final prepared for the Florida Department of
Environmental Protection, Tallahassee, FL.
---------------------------------------------------------------------------
EPA further screened these sites by cross-referencing them with
Florida's 2008 CWA section 303(d) list and excluded sites in waterbody
identification numbers (WBIDs) with identified nutrient impairments or
dissolved oxygen impairments. EPA grouped the remaining sites
(hereinafter referred to as ``SCI sites'') according to the four
proposed Nutrient Watershed Regions (Panhandle, North Central, West
Central (referred to as Bone Valley at proposal), and Peninsula). For
each NWR, EPA compiled data (TN and TP concentrations). EPA then
calculated the average concentration at each site using all available
samples. The resulting site average concentrations represent the
distribution of nitrogen/phosphorus concentrations for each region. EPA
found that while these sites were determined to be biologically
healthy, the proposed SCI approach does not include information that
can be directly related to an evaluation of least anthropogenically-
impacted conditions (e.g., a measure of land use surrounding a
reference site), which can be used as a factor in identifying a
minimally-impacted reference population for criteria development. For
these reasons, EPA concluded the 75th percentile of the distribution of
site average values was an appropriate threshold to use in the SCI
approach for criteria derivation.
EPA requested comment on basing the TN and TP criteria for the
Nutrient Watershed Regions on the SCI approach. The Agency also
requested comment on an alternative approach that utilizes benchmark
sites identified by FDEP. EPA received comments supporting the
benchmark reference condition approach and the selection of the 90th
percentile (generally) for deriving the TN and TP criteria. The
criteria in this final rule are based on a further evaluation and more
rigorous screening of the benchmark data set of reference sites using
the population of least-disturbed benchmark sites developed by FDEP and
further refined by EPA as discussed in the August 2010 supplemental
notice. EPA concluded that the revised benchmark approach is an
appropriate reference condition approach for deriving stream criteria
because it utilizes a quantitative assessment of potential human
disturbance through the use of surrounding land cover analysis of
stream corridor and watershed land development indices that provide an
added dimension to the benchmark approach not considered in EPA's
proposed SCI site approach. EPA is finalizing stream criteria for most
NWRs based on the benchmark approach with the addition of supplemental
data screening steps to ensure that an evaluation of benchmark sites
utilizes best available information representing reference conditions
related to least-disturbed as well as and biologically healthy streams
in the State. For this reason, EPA found the benchmark reference
condition approach to be a compelling basis to support numeric criteria
for Florida's streams more closely associated with least-disturbed
sites. For the West Central region only, EPA is finalizing stream
criteria based on SCI sites because the benchmark approach resulted in
the identification of only one WBID as being least-disturbed. EPA found
the SCI sites provide a more compelling basis to support numeric
criteria in that region because more data are available at more sites
that have been identified as biologically healthy, which provide a
broader representation of nitrogen and phosphorus concentrations within
this region.
For this final rule, EPA is using the large amount of high-quality
scientific data available on TN and TP concentrations with
corresponding information on land use and human disturbance for a wide
variety of stream types as part of a reference condition approach to
derive numeric criteria for Florida's streams. EPA used available data
that are quantitative measures of land use, indicators of human
disturbance, and site-specific evaluations of biological condition
using a multi-metric biological index to identify a population of
least-disturbed benchmark locations (benchmark sites). EPA used
associated measurements of TN and TP concentrations from the benchmark
sites and SCI sites (in the case of the West Central region) as the
basis for deriving the final numeric criteria for streams.
The reference condition approach used in this final rule for
streams consist of three steps: (1) Defining the reference population,
(2) calculating a distribution of values, and (3) determining
appropriate thresholds. For the first step as discussed above, EPA used
the least-disturbed benchmark reference condition approach initially
developed by FDEP to define the reference condition population, this
approach starts with a query of FDEP's data in the STORET \93\ (STOrage
and RETrieval) and GWIS (Generalized Water Information System)
databases and identified sites with data that met quality assurance
standards.\94\ Sites with data were then evaluated by FDEP to assess
the level of human disturbance in the vicinity of the site using the
Landscape Development Intensity Index (LDI) \95\ to analyze a 100 meter
distance of land on both sides of and 10 kilometers upstream of each
stream site (i.e., corridor LDI). Sites with stream corridor LDI scores
less than or equal to two \96\ were considered sites with relatively
low potential human disturbance. The group of sites with LDI scores
less than or equal to two were further reviewed and inspected by FDEP
based on site visits and aerial photography to assess the degree of
potential human impact. Based on this review, sites that FDEP
determined had potential human impact were removed. Sites with mean
nitrate concentrations greater than 0.35 mg/L, a concentration
identified by several lines of evidence to result in the growth of
excessive algae in laboratory studies and extensive field evaluations
of spring and clear stream sites in Florida \97\ were also removed.
Following proposal and in response to additional comments and
information, EPA further evaluated the benchmark sites and screened out
additional sites with identified nutrient impairments or dissolved
oxygen impairments according to Florida's 2008 CWA section 303(d) list.
EPA also removed sites that have available watershed LDI scores greater
than three as this reflects a higher level of human disturbance on
[[Page 75776]]
a watershed basis.\98\ Finally, EPA removed benchmark sites that have
available Stream Condition Index (SCI) scores less than 40. These
additional screens provide greater confidence that the remaining sites
are both least-disturbed and biologically healthy. The benchmark
approach resulted in the identification of only one WBID as least-
disturbed within the West Central region. For this reason, EPA is
utilizing the SCI sites identified at proposal to define the reference
population for the West Central region in this final rule. EPA grouped
the remaining sites (hereinafter referred to as ``reference sites'')
according to its Nutrient Watershed Regions (Panhandle West, Panhandle
East, North Central, West Central, and Peninsula). For each NWR, EPA
compiled data (TN and TP concentrations) from the reference sites.
---------------------------------------------------------------------------
\93\ FL STORET can be found at: http://www.dep.state.fl.us/WATER/STORET/INDEX.HTM.
\94\ Quality assurance review conducted by FDEP and detailed in
EPA's accompanying Technical Support Document.
\95\ Brown, M.T., and M.B. Vivas. 2005. Landscape Development
Intensity Index. Environmental Monitoring and Assessment 101: 289-
309.
\96\ Brown, M.T., and M.B. Vivas. 2005. Landscape Development
Intensity Index. Environmental Monitoring and Assessment 101: 289-
309.
\97\ See the springs criterion discussion below.
\98\ The threshold value for watershed LDI is higher than the
threshold value for the corridor LDI because human disturbance in
the watershed is known to more weakly influence in-stream nitrogen/
phosphorus concentrations than human disturbance in the stream
corridor (Peterjohn, W.T. and D. L. Correll. 1984. Nutrient dynamics
in an agricultural watershed: Observations on the role of a riparian
forest. Ecology 65: 1466-1475).
---------------------------------------------------------------------------
The second step in deriving instream protection values was to
calculate the distribution of nitrogen/phosphorus values of benchmark
sites within each region. EPA calculated the geometric mean of the
annual geometric mean of nitrogen/phosphorus concentrations for each
WBID within which reference sites occurred. EPA provided notice and
solicited comment on calculating streams criteria on the basis of WBIDs
in the August 2010 supplemental notice. All samples from reference
sites within those WBIDs were used to calculate the annual geometric
mean. The geometric mean of this annual geometric mean for each WBID is
utilized so that each WBID represents one average concentration in the
distribution of concentrations for each NWR. Geometric means were used
for all averages because concentrations were log-normally distributed.
The third step in deriving instream protection values was to
determine appropriate thresholds from these distributions to support
balanced natural populations of aquatic flora and fauna. The upper end
of the distribution (the 90th percentile) is appropriate if there is
confidence that the distribution reflects minimally-impacted reference
conditions and can be shown to be supportive of designated uses (i.e.,
balanced natural populations of aquatic flora and fauna).\99\ EPA
concluded that the benchmark data set and the resulting benchmark
distributions of TN and TP were based on substantial evidence of least-
disturbed reference conditions after the additional quality assurance
screens applied by EPA. This analysis provides EPA with the confidence
that the benchmark sites are least-disturbed sites and with the
additional screens applied by the Agency provide a basis for the use of
the 90th percentile of values from this population to establish the
final rule criteria. It is appropriate to use the 90th percentile for
the benchmark distribution because the least-disturbed sites identified
in Florida that are used to derive the criteria more closely
approximate minimally-impacted conditions.\100\ For the West Central
region, where reference sites are identified using the SCI approach,
there is less confidence that these sites are least-disturbed and
represent minimally-impacted conditions. As mentioned above, this is
because this approach does not rely on a quantitative assessment of
potential human disturbance through the use of surrounding land cover
analysis of stream corridor and watershed land development indices.
Therefore, EPA is finalizing the stream criteria in the West Central
region using the 75th percentile values of the distribution from the
SCI sites.\101\
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\99\ USEPA. 2008. Nutrient Criteria Technical Guidance Manual:
Wetlands. EPA-822-B-08-001. U.S. Environmental Protection Agency,
Office of Water, Washington, DC.
\100\ The 90th percentile is selected so that nitrogen/
phosphorus concentrations that are above the criterion value have a
low probability (< 10%) of being observed in sites that are similar
to benchmark sites.
\101\ USEPA. 2000b. Nutrient Criteria Technical Guidance Manual:
Rivers and Streams. EPA-822-B-00-002. U.S. Environmental Protection
Agency, Office of Water, Washington, DC.
These percentages were initially proposed by FDEP. See FDEP.
2009. Draft Technical Support Document: Development of Numeric
Nutrient Criteria for Florida's Lakes and Streams. Florida
Department of Environmental Protection, Standards and Assessment
Section. Available electronically at: http://www.dep.state.fl.us/water/wqssp/nutrients/docs/tsd_nutrient_crit.docx. Accessed
October 2010.
---------------------------------------------------------------------------
EPA's approach in this final rule results in numeric criteria that
are protective of a balanced natural population of aquatic flora and
fauna in Florida's streams. EPA has determined, however, that these
instream values may not always ensure the attainment and maintenance of
WQS in downstream lakes and that more stringent criteria may be
necessary to assure compliance with 40 CFR 131.10(b). Therefore, EPA is
finalizing an approach in this rule for deriving TN and TP values for
streams to ensure the attainment and maintenance of WQS in downstream
lakes.\102\ This approach is discussed in Section III.C(2)(f).
---------------------------------------------------------------------------
\102\ EPA will propose and request comment on the comparable
issue for deriving TN and TP values for streams to ensure the
attainment and maintenance of WQS in downstream estuaries as part of
the coastal and estuarine waters rule on November 14, 2011.
---------------------------------------------------------------------------
(c) Duration and Frequency
Aquatic life water quality criteria contain three components:
Magnitude, duration, and frequency. For the numeric TN and TP criteria
for streams, the derivation of the criterion-magnitude values is
described above and these values are provided in the table in Section
III.B(1). The duration component of these stream criteria is specified
in footnote a of Table B-1 as an annual geometric mean. EPA is
finalizing the proposed frequency component as a no-more-than-one-in-
three-years excursion frequency for the annual geometric mean criteria
for streams. These duration and frequency components of the criteria
are consistent with the data set used to derive these criteria, which
applied distributional statistics to measures of annual geometric mean
values from multiple years of record. EPA has determined that this
frequency of excursions will not result in unacceptable effects on
aquatic life as it will allow the stream ecosystem enough time to
recover from occasionally elevated levels of nitrogen/phosphorus in the
stream.103 104 105 These selected duration and frequency
components recognize that hydrological variability (e.g., high and low
flows) will produce variability in nitrogen and phosphorus
concentrations, and that individual measurements may at times be
greater than the criteria magnitude concentrations without causing
unacceptable effects to aquatic organisms and their uses. Furthermore,
the frequency and duration components balance the representation of
underlying data and analyses based on the central tendency of many
years of data with the need to exercise some caution to ensure that
streams have sufficient time to process individual years of elevated
nitrogen and phosphorus levels and
[[Page 75777]]
avoid the possibility of cumulative and chronic effects (i.e., the no-
more-than-one-in-three-year component). More information on this
specific topic is provided in EPA's Final Rule TSD for Florida's Inland
Waters, Chapter 1: Methodology for Deriving U.S. EPA's Criteria for
Streams located in the record for this final rule.
---------------------------------------------------------------------------
\103\ USEPA. 1985. Guidelines for Deriving Numeric National
Water Quality Criteria for the Protection of Aquatic Organisms and
Their Uses. EPA PB85-227049. U.S. Environmental Protection Agency,
Office of Research and Development, Environmental Research
Laboratories.
\104\ Hutchens, J. J., K. Chung, and J. B. Wallace. 1998.
Temporal variability of stream macroinvertebrate abundance and
biomass following pesticide disturbance. Journal of the North
American Benthological Society 17:518-534.
\105\ Wallace, J.B. D. S.Vogel, and T.F. Cuffney. 1986. Recovery
of a headwater stream from an insecticide induced community
disturbance. Journal of North American Benthological Society 5: 115-
l 26.
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d. Reference Condition Approach
In deriving the final criteria for streams, EPA has relied on a
reference condition approach, which has been well documented, peer
reviewed, and developed in a number of different
contexts.106 107 108 109 110 In the case of Florida, this
approach is supported by a substantial Florida-specific database of
high quality information, sound scientific analysis and extensive
technical evaluation.
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\106\ USEPA. 2000a. Nutrient Criteria Technical Guidance Manual:
Lakes and Reservoirs. EPA-822-B-00-001. U.S. Environmental
Protection Agency, Office of Water, Washington, DC.
\107\ USEPA. 2000b. Nutrient Criteria Technical Guidance Manual:
Rivers and Streams. EPA-822-B-00-002. U.S. Environmental Protection
Agency, Office of Water, Washington, DC.
\108\ Stoddard, J. L., D. P. Larsen, C. P. Hawkins, R. K.
Johnson, and R. H. Norris. 2006. Setting expectations for the
ecological condition of streams: the concept of reference condition.
Ecological Applications 16:1267-1276.
\109\ Herlihy, A. T., S. G. Paulsen, J. Van Sickle, J. L.
Stoddard, C. P. Hawkins, L. L. Yuan. 2008. Striving for consistency
in a national assessment: the challenges of applying a reference-
condition approach at a continental scale. Journal of the North
American Benthological Society 27:860-877.
\110\ U.S. EPA. 2001. Nutrient Criteria Technical Manual:
Estuarine and Coastal Marine Waters. Office of Water, Washington,
DC. EPA-822-B-01-003.
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EPA received comments regarding the scientific defensibility of the
reference condition approach, using either the benchmark sites or the
SCI sites. Many commenters observed that such approaches do not
mechanistically link biological effects to nitrogen/phosphorus levels
and therefore assert that EPA cannot scientifically justify numeric
criteria without an observed biological effect. EPA views the reference
condition approach as scientifically appropriate to derive the
necessary numeric criteria in Florida streams. Reference conditions
provide the appropriate benchmark against which to determine the
nitrogen and phosphorus concentrations present when the designated use
is being met. When the natural background concentrations of specific
parameters can be defined by identifying reference conditions at
anthropogenically-undisturbed sites, then the concentrations at these
sites can be considered as sufficient to support the aquatic life
expected to occur naturally at that site.\111\ Also, setting criteria
based on the conditions observed in reference condition sites reflects
both the stated goal of the Clean Water Act and EPA's National Nutrient
Strategy that calls for States, including Florida, to take protective
and preventative steps in managing nitrogen/phosphorus pollution to
maintain the chemical, physical and biological integrity of the
Nation's waters before adverse biological and/or ecological effects are
observed.\112\
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\111\ Davies, T.T., USEPA. 1997, November 5. Memorandum to Water
Management Division Directors, Regions 1-10, and State and Tribal
Water Quality Management Program Directors on Establishing Site
Specific Aquatic Life Criteria Equal to Natural Background.
\112\ USEPA. 1998. National Strategy for the Development of
Regional Nutrient Criteria. EPA 822-R-98-002. U.S. Environmental
Protection Agency, Office of Water, Washington, DC; Grubbs, G.,
USEPA. 2001, November 14. Memorandum to Directors of State Water
Programs, Directors of Great Water Body Programs, Directors of
Authorized Tribal Water Quality Standards Programs and State and
Interstate Water Pollution Control Administrators on Development and
Adoption of Nutrient Criteria into Water Quality Standards.;
Grumbles, B.H., USEPA. 2007, May 25.Memorandum to Directors of State
Water Programs, Directors of Great Water Body Programs, Directors of
Authorized Tribal Water Quality Standards Programs and State and
Interstate Water Pollution Control Administrators on Nutrient
Pollution and Numeric Water Quality Standards.
---------------------------------------------------------------------------
The effects of TN and TP on an aquatic ecosystem are well
understood and documented. There is a substantial and compelling
scientific basis for the conclusion that excess TN and TP will have
adverse effects on
streams113 114 115 116 117 118 119 120 121 122 123 124 125 126 127
. As discussed in Section II above, excess nitrogen/phosphorus in
streams, like other aquatic ecosystems, increase vegetative growth
(plants and algae), and change the assemblage of plant and algal
species present in the system. These changes can affect the organisms
that are consumers of algae and plants by altering the balance of food
resources available to different trophic levels. For example, excess
nitrogen/phosphorus promotes the growth of opportunistic and short-
lived plant species that die quickly leaving more dead vegetative
material available for consumption by lower tropic levels.
Additionally, excess nitrogen/phosphorus can promote the growth of less
palatable nuisance algae species that results in less food available
for filter feeders. These changes can also alter the habitat structure
by covering the stream or river bed with periphyton (attached algae)
rather than submerged aquatic plants, or clogging the water column with
phytoplankton (floating algae). In addition, excess nitrogen/phosphorus
can lead to the production of algal toxins that can be toxic to fish,
invertebrates, and humans. Chemical characteristics of the water, such
as pH and concentrations of dissolved oxygen (DO), can also be affected
by excess nitrogen/phosphorus leading to low DO conditions and hypoxia.
Each of these changes can, in turn, lead to other changes in the stream
community and, ultimately, to changes in the stream ecology that
supports the overall function of the linked aquatic ecosystem.
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\113\ Biggs, B.J.F. 2000. Eutrophication of streams and rivers:
dissolved nutrient-chlorophyll relationships for benthic algae.
Journal of the North American Benthological Society 19:17-31
\114\ Bothwell, M.L. 1985. Phosphorus limitation of lotic
periphyton growth rates: an intersite comparison using continuous-
flow troughs (Thompson River system, British Columbia). Limnology
and Oceanography 30:527-542
\115\ Bourassa, N., and A. Cattaneo. 1998. Control of periphyton
biomass in Laurentian streams (Quebec). Journal of the North
American Benthological Society 17:420-429
\116\ Bowling, L.C., and P.D. Baker. 1996. Major cyanobacterial
bloom in the Barwon-Darling River, Australia, in 1991, and
underlying limnological conditions. Marine and Freshwater Research
47: 643-657
\117\ Cross, W. F., J. B. Wallace, A. D. Rosemond, and S. L.
Eggert. 2006. Whole-system nutrient enrichment increases secondary
production in a detritus-based ecosystem. Ecology 87: 1556-1565
\118\ Dodds, W.K., and D.A. Gudder. 1992. The ecology of
Cladophora. Journal of Phycology 28:415-427
\119\ Elwood, J.W., J.D. Newbold, A.F. Trimble, and R.W. Stark.
1981. The limiting role of phosphorus in a woodland stream
ecosystem: effects of P enrichment on leaf decomposition and primary
producers. Ecology 62:146-158
\120\ Francoeur, S.N. 2001. Meta-analysis of lotic nutrient
amendment experiments: detecting and quantifying subtle responses.
Journal of the North American Benthological Society 20: 358-368
\121\ Moss, B., I. Hooker, H. Balls, and K. Manson. 1989.
Phytoplankton distribution in a temperate floodplain lake and river
system. I. Hydrology, nutrient sources and phytoplankton biomass.
Journal of Plankton Research 11: 813-835
\122\ Mulholland, P.J. and J.R. Webster. 2010. Nutrient dynamics
in streams and the role of J-NABS. Journal of the North American
Benthological Society 29: 100-117
\123\ Peterson, B.J., J.E. Hobbie, A.E. Hershey, M.A. Lock, T.E.
Ford, J.R. Vestal, V.L. McKinley, M.A.J. Hullar, M.C. Miller, R.M.
Ventullo, and G. S. Volk. 1985. Transformation of a tundra river
from heterotrophy to autotrophy by addition of phosphorus. Science
229:1383-1386
\124\ Rosemond, A. D., P. J. Mulholland, and J. W. Elwood. 1993.
Top-down and bottom-up control of stream periphyton: Effects of
nutrients and herbivores. Ecology 74: 1264-1280
\125\ Rosemond, A. D., C. M. Pringle, A. Ramirez, and M.J. Paul.
2001. A test of top-down and bottom-up control in a detritus-based
food web. Ecology 82: 2279-2293
\126\ Rosemond, A. D., C. M. Pringle, A. Ramirez, M.J. Paul, and
J. L. Meyer. 2002. Landscape variation in phosphorus concentration
and effects on detritus-based tropical streams. Limnology and
Oceanography 47: 278-289.
\127\ Slavik, K., B. J. Peterson, L. A. Deegan, W. B. Bowden, A.
E. Hershey, J. E. Hobbie. 2004. Long-term responses of the Kuparuk
River ecosystem to phosphorus fertilization. Ecology 85: 939-954.
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[[Page 75778]]
C. Numeric Criteria for the State of Florida's Lakes
(1) Final Rule
EPA is promulgating numeric criteria for chlorophyll a, TN and TP
in three classes of Florida's lakes, classified as Class I or III
waters under Florida law (Section 62-302.400, F.A.C.):
Table C-17--EPA's Numeric Criteria for Florida Lakes
----------------------------------------------------------------------------------------------------------------
Chl-a (mg/L) \b\
Lake color \a\ and alkalinity * TN (mg/L) TP (mg/L)
----------------------------------------------------------------------------------------------------------------
Colored Lakes \c\...................................... 0.020 1.27 0.05
[1.27-2.23] [0.05-0.16]
Clear Lakes, High Alkalinity \d\....................... 0.020 1.05 0.03
[1.05-1.91] [0.03-0.09]
Clear Lakes, Low Alkalinity \e\........................ 0.006 0.51 0.01
[0.51-0.93] [0.01-0.03]
----------------------------------------------------------------------------------------------------------------
\a\ Platinum Cobalt Units (PCU) assessed as true color free from turbidity.
\b\ Chlorophyll a is defined as corrected chlorophyll, or the concentration of chlorophyll a remaining after the
chlorophyll degradation product, phaeophytin a, has been subtracted from the uncorrected chlorophyll a
measurement.
\c\ Long-term Color > 40 Platinum Cobalt Units (PCU).
\d\ Long-term Color <= 40 PCU and Alkalinity > 20 mg/L CaCO3.
\e\ Long-term Color <= 40 PCU and Alkalinity <= 20 mg/L CaCO3.
* For a given waterbody, the annual geometric mean of chlorophyll a, TN or TP concentrations shall not exceed
the applicable criterion concentration more than once in a three-year period.
For each class of water defined by color and alkalinity, the
applicable criteria are the values in bold for chlorophyll a, TN and
TP. The criteria framework provides flexibility for FDEP to derive
lake-specific, modified TN and TP criteria if the annual geometric mean
chlorophyll a concentration is less than the criterion for an
individual lake in each of the three immediately preceding years. In
such a case, the corresponding criteria for TN and/or TP may be
modified to reflect maintenance of ambient conditions within the range
specified in the parenthetical below each baseline TN and TP criteria
printed in bold in Table C-1 above. Modified criteria for TN and/or TP
must be based on data from at least the immediately preceding three
years \128\ in a particular lake. Modified TN and/or TP criteria may
not be greater than the higher value specified in the range. Modified
TN and/or TP criteria for a lake also may not be above criteria
applicable to streams to which a lake discharges in order to ensure the
attainment and maintenance of downstream water quality standards.
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\128\ The previous three years of data are required as a basis
for modifying TN and TP criteria and must meet FDEP's data quality
assurance objectives. Additional historical data may be used to
augment the three years of data characterizing the lake's annual and
inter-annual variability. Only historical data containing data for
all three parameters can be used and the data must meet FDEP's data
quality assurance objectives.
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Utilization of the range flexibility in the numeric lake criteria
in this final rule requires that the ambient calculation for modified
TN and TP criteria be based on: (1) The immediately preceding three-
year record of observation for each parameter,\129\ (2) representative
sampling during each year (at least one sample in May-September and at
least one sample in October-April), and (3) a minimum of 4 samples from
each year. Requiring at least three years of data accounts for year-to-
year hydrological variability, ensures longer-term stable conditions,
and appropriately accounts for anomalous conditions in any given year
that could lead to erroneous conclusions regarding the true
relationship between nitrogen/phosphorus and chlorophyll a levels in a
lake. Representative samples from each year minimize the effects of
seasonal variations in nitrogen/phosphorus and chlorophyll a
concentrations. Finally, the minimum sample size of 4 samples per year
allows estimates of reliable geometric means while still maintaining a
representative sample of lakes. The State shall notify EPA Region 4 and
provide the supporting record within 30 days of determination of
modified lake criteria.
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\129\ As noted above, if more than three years of data are
available for each parameter, then more data can be used.
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To ensure attainment of applicable downstream lake criteria, this
final rule provides a tiered approach for adjusting instream criteria
presented in section III.B.(1) above for those streams that flow into
lakes.\130\ Where site-specific data on lake characteristics are
available, the final rule provides a modeling approach for the
calculation of downstream lake protection values that relies upon the
use of the BATHTUB model.\131\ In circumstances where sufficient site-
specific lake data are readily available and either EPA or FDEP
determine that another scientifically defensible model is more
appropriate (e.g., the Water Quality Analysis Simulation Program, or
WASP), the modeling approach accommodates use of a scientifically
defensible alternative. In the absence of models, other approaches for
ensuring protection of downstream lakes are provided and described
further below.
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\130\ Approximately 30% of Florida lakes are fed by streams to
which this DPV analysis would apply (Schiffer, Donna M. 1998.
Hydrology of Central Florida Lakes--A Primer. U.S. Geological Survey
in cooperation with SJWMD and SFWMD: Circular 1137).
\131\ Kennedy, R.H. 1995. Application of the BATHTUB model to
Selected Southeastern Reservoirs. Technical Report EL-95-14. U.S.
Army Engineer Waterways Experiment Station, Vicksburg, MS.; Walker,
W.W., 1985. Empirical Methods for Predicting Eutrophication in
Impoundments; Report 3, Phase II: Model Refinements. Technical
Report E-81-9. U.S. Army Engineer Waterways Experiment Station,
Vicksburg, MS.; Walker, W.W., 1987. Empirical Methods for Predicting
Eutrophication in Impoundments; Report 4, Phase III: Applications
Manual. Technical Report E-81-9. U.S. Army Engineer Waterways
Experiment Station, Vicksburg, MS.
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(2) Background and Analysis
(a) Methodology for Lake Classification
In the January 2010 proposal, EPA used color and alkalinity to
classify Florida's lakes based on substantial data demonstrating that
these characteristics influence the response of lakes to increased
nitrogen/phosphorus and the expected background chlorophyll a
concentration. Many of Florida's lakes contain dissolved organic matter
leached from surface vegetation that
[[Page 75779]]
colors the water. More color in a lake limits light penetration within
the water column, which in turn limits algal growth. Thus, in lakes
with colored water, higher levels of nitrogen/phosphorus may occur
without exceeding the chlorophyll a criteria concentrations. EPA
evaluated relationships among TN, TP, and chlorophyll a concentration
data, and found that lake color influenced these relationships. More
specifically, EPA found the correlations between nitrogen/phosphorus
and chlorophyll a concentrations to be stronger and less variable when
lakes were categorized into two distinct groups based on a color
threshold of 40 PCU, with clear lakes demonstrating more algal growth
with increased nitrogen/phosphorus, as would be predicted by the
increased light penetration. This threshold is consistent with the
distinction between clear and colored lakes long observed in
Florida.\132\
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\132\ Shannon, E.E., and P.L. Brezonik. 1972. Limnological
characteristics of north and central Florida lakes. Limnology and
Oceanography 17(1): 97-110.
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Within the clear lakes category, color is not the dominant
controlling factor in algal growth. For these clear lakes, EPA proposed
the use of alkalinity as an additional distinguishing characteristic.
Alkalinity and pH increase when water is in contact with carbonate
rocks, such as limestone, or limestone-derived soil in the State of
Florida. Limestone is also a natural source of phosphorus, and thus, in
Florida, lakes that are higher in alkalinity are often associated with
naturally elevated TP levels. The alkalinity (measured as
CaCO3 concentration) of Florida clear lakes ranges from zero
to over 200 mg/L. EPA proposed classifying clear Florida lakes into
acidic and alkaline classes based on an alkalinity threshold of 50 mg/L
CaCO3, and solicited comment on whether a 20 mg/L
CaCO3 threshold would be more appropriate. EPA received
comments noting that that the lower alkalinity classification threshold
would be more representative of naturally oligotrophic conditions by
creating a class of lakes with very low alkalinity and correspondingly
low chlorophyll a concentrations. After reviewing available lake data,
EPA found that clear lakes below 20 mg/L CaCO3 were more
similar to one another in terms of naturally expected chlorophyll a,
TN, and TP concentrations than clear lakes below 50 mg/L
CaCO3. Thus, EPA concluded that an alkalinity threshold of
20 mg/L CaCO3 was an appropriate threshold for classifying
clear lakes and EPA is finalizing the lower alkalinity threshold in
this rule. More information on this specific topic is provided in EPA's
Finals TSD for Florida's Inland Waters, Chapter 2: Methodology for
Deriving U.S. EPA's Criteria for Lakes located in the record for this
final rule.
EPA also proposed the use of specific conductance as a surrogate
for alkalinity. EPA received comments that conductivity was not an
accurate surrogate measure for alkalinity. EPA evaluated the
association between specific conductivity and alkalinity and concluded
that alkalinity is a preferred parameter for lake classification
because it is a more direct measure of the presence of carbonate rocks,
such as limestone that are associated with natural elevated phosphorus
levels. Changes in specific conductivity can be attributed to changes
in alkalinity, but in many cases may be caused by increases in the
concentrations of other compounds that originate from human activities.
Thus, EPA has concluded that alkalinity is a more reliable indicator
for characterizing natural background conditions for Florida lakes.
A number of comments suggested EPA consider a system that
delineates 47 lake regions and a system that classifies lakes as a
continuous function of both alkalinity and color. As discussed in more
detail in the TSD supporting this final rule, EPA evaluated each of
these alternative classification approaches, and found that they did
not improve the predictive accuracy of biological responses to
nitrogen/phosphorus over EPA's classification, nor result in a
practical system that can be implemented by FDEP. For example, in the
case of the 47 lake region approach, insufficient data are available to
derive numeric criteria across all of the 47 regions and in the case of
the continuous function approach there is a reliance on an assumption
that TN and TP are always co-limiting that is not always true.\133\
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\133\ Guildford, S. J. and R. E. Hecky. 2000. Total nitrogen,
total phosphorus, and nutrient limitation in lakes and oceans: Is
there a common relationship? Limnology and Oceanography 45: 1213-
1223.
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A number of commenters suggested that lake-specific criteria would
be more appropriate than the three broad classes that EPA proposed. The
substantial data available in the record for this final rule supports
the conclusion that many of Florida's lakes share similar physical,
chemical, and geological characteristics, which in turn justifies,
based on sound scientific evidence, broad classification of Florida
lakes. EPA concluded, based on the substantial data and associated
analysis explained above, that color and alkalinity are primary
distinguishing factors in Florida lakes with respect to nitrogen/
phosphorus dynamics and the associated biological response. With
respect to consideration of site-specific information that goes beyond
the detailed site-specific sampling and monitoring analysis already
discussed,\134\ the numeric lake criteria in this final rule are
established within a flexible regulatory framework that allows
adjustment of TN, TP, and/or chlorophyll a criteria based on additional
lake-specific data. This framework provides an opportunity to derive
lake-specific criteria similar to the manner suggested in public
comment, where lake-specific data and information are available, while
ensuring that numeric criteria are in place to protect all of Florida's
lakes. Further site-specific flexibility is provided in this final rule
through the derivation of alternative criteria by a Federal Site
Specific Adjusted Criteria (SSAC) process discussed in more detail
below in Section V.C.
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\134\ Technical Support Document for EPA's Final Rule for
Numeric Nutrient Criteria for Nitrogen/Phosphorus Pollution in
Florida's Inland Surface Fresh Waters.
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In this final rule, EPA is dividing Florida's lakes into three
classes: (1) Colored Lakes >40 Platinum Cobalt Units (PCU), (2) Clear,
High Alkalinity Lakes (<=40 PCU with alkalinity >20 mg/L calcium
carbonate (CaCO3)), and (3) Clear, Low Alkalinity Lakes
(<=40 PCU with alkalinity <=20 mg/L CaCO3). These two
parameters, color and alkalinity, both affect lake productivity and
plant biomass, as measured by chlorophyll a. For more information
regarding these classes, please refer to EPA's Final Rule TSD for
Florida's Inland Waters, Chapter 2: Methodology for Deriving U.S. EPA's
Criteria for Lakes.
(b) Methodology for Chlorophyll a Criteria
EPA proposed the use of chlorophyll a concentration as an indicator
of a healthy biological condition, supportive of natural balanced
populations of aquatic flora and fauna in each of the classes of
Florida's lakes. Excess algal growth is associated with degradation in
aquatic life, and chlorophyll a levels are a measure of algal growth.
To derive the proposed chlorophyll a concentrations that would be
protective of natural balanced populations of aquatic flora and fauna
in Florida's lakes, EPA utilized the expected trophic status of the
lake, based on internationally accepted lake use classifications.\135\
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\135\ OECD. 1982. Eutrophication of Waters. Monitoring,
Assessment and Control. Organisation for Economic Development and
Co-Operation, Paris, France.
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[[Page 75780]]
As discussed in more detail at proposal, lakes can be classified
into one of three trophic State categories (i.e., oligotrophic,
mesotrophic, eutrophic).\136\ EPA concluded at proposal that healthy
colored lakes and clear, high alkalinity lakes should maintain a
mesotrophic status, because they receive significant natural nitrogen/
phosphorus input and still support a healthy diversity of aquatic life
in warm, productive climates such as Florida. For these two categories
of lakes, EPA proposed a chlorophyll a criterion of 0.020 mg/L to
support balanced natural populations of aquatic life flora and fauna.
At concentrations above 0.020 mg/L chlorophyll a, the trophic status of
the lake is more likely to become eutrophic and the additional
chlorophyll a will reduce water clarity, negatively affecting native
submerged macrophytes, and the invertebrate and fish communities that
depend on them. Commenters suggested that this threshold is overly
protective of naturally eutrophic lakes in the State. For those lakes
that may currently be naturally eutrophic, this final rule contains a
formal SSAC process to revise these criteria for this unique type of
lake. For more information on the SSAC process, please refer to Section
V.C of this final rule.
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\136\ Trophic state describes the nitrogen/phosphorus levels and
algal state of an aquatic system: Oligotrophic (low nitrogen/
phosphorus and algal productivity), mesotrophic (moderate nitrogen/
phosphorus and algal productivity), and eutrophic (high nitrogen/
phosphorus and algal productivity).
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In contrast, clear, low alkalinity lakes in Florida do not receive
natural nitrogen/phosphorus input from underlying geological formations
in the watershed and thus, they support less algal growth and have
lower chlorophyll a levels than colored or clear, high alkalinity
lakes. EPA concluded at proposal that these lakes should maintain an
oligotrophic status to support balanced natural populations of aquatic
flora and fauna. EPA proposed a chlorophyll a criterion of 0.006 mg/L
in clear, low alkalinity lakes to support balanced natural populations
of aquatic life flora and fauna. At concentrations above 0.006 mg/L
chlorophyll a, the trophic status of the lake is more likely to become
mesotrophic and the additional chlorophyll a will reduce water clarity,
negatively affecting native submerged macrophytes, and the invertebrate
and fish communities that depend on them. Commenters suggested that
this chlorophyll a concentration may not be appropriate for clear lakes
with alkalinity less than 50 mg/L. As explained in more detail above,
in this final rule EPA concluded that 20 mg/L is an appropriate
threshold between low and high alkalinity lakes. Thus, lakes with
alkalinity greater than 20 mg/L will have a chlorophyll a criterion
that is applicable to clear, high alkalinity lakes. Based on the
revision of the alkalinity threshold to 20 mg/L, EPA reviewed the
available chlorophyll a data for clear, low alkalinity lakes and found
that the majority of lakes have chlorophyll a concentrations less than
0.006 mg/L reflective of oligotrophic conditions which leads EPA to
conclude that this chlorophyll a concentration will serve to maintain
the trophic status of these lakes.
In this final rule, EPA is promulgating chlorophyll a criteria of
0.020 mg/L in colored lakes and clear, high alkalinity lakes and a
chlorophyll a criterion of 0.006 mg/L in clear, low alkalinity lakes as
an indicator of a healthy biological condition, supportive of natural
balanced populations of aquatic flora and fauna in these classes of
Florida's lakes. For more information regarding these chlorophyll a
criteria, please refer to EPA's Final Rule TSD for Florida's Inland
Waters, Chapter 2: Methodology for Deriving U.S. EPA's Criteria for
Lakes.
(c) Methodology for Total Nitrogen (TN) and Total Phosphorus (TP)
Criteria in Lakes
EPA proposed TN and TP criteria for each of the classes of lakes
described in Section III.C(2)(a) based on the response of chlorophyll a
to increases in TN and TP for clear and colored lakes in Florida. These
responses were quantitatively estimated with linear regressions. Each
data point used in estimating the statistical relationships was the
geometric mean of samples taken over the course of a year in a
particular Florida lake. Statistical analyses of these relationships
showed that the chlorophyll a responses to changes in TN and TP
differed for colored versus clear lakes, as would be expected, because
color blocks light penetration in the water column and limits algal
growth. These analyses also showed that chlorophyll a responds to
changes in TN and TP in high and low alkalinity clear lakes similarly,
as would be expected, because alkalinity does not affect light
penetration. These relationships were used to derive TN and TP criteria
that would maintain chlorophyll a concentrations at desired levels
known to be supportive of balanced natural populations of aquatic flora
and fauna as discussed above. These analyses are explained in more
detail in EPA's Final Rule TSD for Florida's Inland Waters, Chapter 2:
Methodology for Deriving U.S. EPA's Criteria for Lakes included in the
record for this final rule.
EPA proposed baseline TN and TP criteria based on the 75th
percentile of the predicted distribution of chlorophyll a
concentrations, given a TN or TP concentration. Commenters suggested
alternative approaches for deriving TN and TP criteria, including using
either the mean predicted chlorophyll a concentration, using the 25th
percentile of the predicted distribution of chlorophyll a
concentrations, and using an additional criterion based on a higher
percentile that is associated with a different exceedance frequency.
EPA considered these alternative approaches and concluded that
calculating the TN and TP criteria as a baseline concentration with an
associated concentration range was a more flexible approach than a
single value approach manifested as the TN and TP concentration
associated with a specific chlorophyll a concentration. Thus, the
approach included in this final rule takes into account the natural
variability observed in different classes of lakes (i.e., colored or
clear) in a way that a single value approach based on the regression
line or the lower value of the 50th percentile prediction interval does
not.
In this final rule, the TN and TP criteria are based on linear
regressions (i.e., best-fit lines) predicting the annual geometric mean
chlorophyll a concentration as a function of the annual geometric mean
TN or TP. Baseline TN and TP criteria are calculated as the point at
which the 75th percentile of the predicted distribution of chlorophyll
a concentrations from the regression relationship is equivalent to the
chlorophyll a criterion for the appropriate lake class. The range of
values in the predicted distribution of chlorophyll a concentrations
arises from small differences in the nitrogen/phosphorus-chlorophyll a
relationships across different lakes and variability in these
relationships between years in the same lake. Hence, TN and TP criteria
are based on the 75th percentile that will be protective at the
majority of lakes and in the majority of years.
The predicted distribution of chlorophyll a concentrations for
lakes differs inherently from the distribution of TN and TP
concentrations calculated from reference sites for criteria for Florida
streams (Section III.B(2)(b)). In the case of the criteria for Florida
streams for most NWRs, benchmark sites represent a population of least-
[[Page 75781]]
disturbed sites and the criteria based on the 90th percentile of
nitrogen and phosphorus concentrations from these sites are selected to
characterize the upper bound of nitrogen/phosphorus concentrations that
one would expect from such sites. Criteria for Florida lakes rely on a
predictive relationship between nitrogen/phosphorus and chlorophyll a
concentrations, and the 75th percentile is selected from the
distribution of chlorophyll a concentrations predicted for specific
concentrations of TN and TP. As discussed above, basing criteria on
this percentile provides a means of accounting for variability in
chlorophyll a concentrations predicted for a given TN and TP
concentration. In short, the percentile for the streams criteria is
selected to ensure that nitrogen/phosphorus concentrations in all
streams are at least as low as those observed in reference streams,
whereas the percentile for the lakes criteria is selected such that
concentrations appropriately account for variability in the
relationships between nitrogen/phosphorus and chlorophyll a
concentrations.
(d) Duration and Frequency
Aquatic life water quality criteria include magnitude, duration,
and frequency components. For the chlorophyll a, TN, and TP criteria
for lakes, the criterion-magnitude values, expressed as a
concentration, are provided in Table C-1 in bold. The criterion-
duration of this magnitude is specified in a footnote to this Table as
an annual geometric mean. EPA is finalizing the criterion-frequency as
a no-more-than-once-in-three-years excursion frequency of the annual
geometric mean criteria for lakes. The duration component of the
criteria is based on annual geometric means to be consistent with the
data set used to derive these criteria, which applied stressor-response
relationships based on annual geometric means for individual years at
individual lakes. These selected duration and frequency components
recognize that hydrological variability (e.g., high and low flows) will
produce variability in nitrogen and phosphorus concentrations, and that
individual measurements may at times be greater than the criterion-
magnitude concentrations without causing unacceptable effects to
aquatic organisms and their uses. Furthermore, they balance the
representation of the central tendency of the predicted relationship
between TN or TP and chlorophyll a based from many years of data with
the need to exercise some caution to ensure that lakes have sufficient
time to process individual years of elevated nitrogen and phosphorus
concentrations and avoid the possibility of cumulative and chronic
effects (i.e., the no-more-than-one-in-three-year component).
Additionally, because nitrogen/phosphorus pollution is best managed on
a watershed basis, this is the same frequency and duration used in the
final streams criteria. More information on this specific topic is
provided in EPA's Final Rule TSD for Florida's Inland Waters, Chapter
2: Methodology for Deriving U.S. EPA's Criteria for Lakes located in
the record for this final rule.
(e) Application of Lake-Specific, Ambient Condition-Based Modified TN
and TP Criteria
EPA proposed an accompanying approach that the State could use to
adjust TN and TP criteria for a particular lake within a certain range
where sufficient data on long-term ambient chlorophyll a, TN and TP
levels are available to demonstrate that protective chlorophyll a
criterion for a specific lake will still be maintained and a balance of
natural populations of aquatic flora and fauna will be supported. This
approach allows for readily available site-specific data to be taken
into account in the expression of TN and TP criteria, while still
ensuring support of balanced natural populations of aquatic flora and
fauna by maintaining the associated chlorophyll a level at or below the
chlorophyll a criterion level. The scientific premise for the lake-
specific ambient calculation provision for modified TN and/or TP
criteria is that if ambient lake data show that a lake's chlorophyll a
levels are at or below the established criteria (i.e., magnitude) for
at least the last three years and its TN and/or TP levels are within
the lower and upper bounds, then those ambient levels of TN and TP
represent conditions that will continue to support the specified
chlorophyll a response level. The lower bound of the range is based on
the TN/TP values that correspond to the 75th percentile of the
predicted chlorophyll a distribution and the upper bound of the range
is based on the TN/TP values that correspond to the 25th percentile of
the same predicted distribution. The use of the 25th and 75th
percentiles accounts for the majority of variability that may occur
around the central tendency of the predicted relationship between TN or
TP and chlorophyll a.
This final rule provides that FDEP must establish and document
these modified criteria in a manner that clearly recognizes their
status as the applicable criteria for a particular lake. To this end,
FDEP must submit a letter to EPA Region 4 formally documenting the use
of modified criteria as the applicable criteria for particular lakes.
This final rule allows for a one-time adjustment without a requirement
that FDEP go through a formal SSAC process. EPA believes that such
modified TN and TP criteria do not need to go through the SSAC process
because the conditions under which they are applicable are clearly
stated in this final rule and data requirements are clearly laid out so
that the outcome is clear, consistent, transparent, and reproducible.
By providing a specific process for deriving modified criteria within
the WQS rule itself, each individual outcome of this process is an
effective WQS for CWA purposes and does not need separate adoption by
FDEP or approval by EPA. For more information on the SSAC process,
please refer to Section V.C of this final rule.
Application of the ambient calculation provision has implications
for assessment and permitting because the outcome of applying this
provision is to establish alternate numeric TN and/or TP values as the
applicable lake criteria. For accountability and tracking purposes, the
State must document the result of the ambient calculation for any given
lake. Once modified criteria are established under this approach, they
remain the applicable criteria for the long-term for purposes of
implementing the State's water quality program until they are
subsequently modified either through the Federal SSAC process or State
revision to the applicable WQS, which has been approved by EPA pursuant
to CWA section 303(c).
This site-specific lake criteria adjustment provision is subject to
the downstream protection requirements more broadly discussed below.
Thus in a comparable manner this final rule provides that calculated TN
and/or TP values in a lake that discharges to a stream may not exceed
criteria applicable to the stream to which a lake discharges.
(f) Downstream Protection of Lakes
In developing the proposed stream criteria, EPA also evaluated
their effectiveness for assuring the protection of downstream lake
water quality standards pursuant to the provisions of 40 CFR 130.10(b),
which requires that WQS must provide for the attainment and maintenance
of the WQS of downstream waters.\137\ EPA's criteria for
[[Page 75782]]
lakes are, in some cases, more stringent than the final criteria for
streams that flow into the lakes, and thus the instream criteria may
not be stringent enough to ensure protection of WQS in certain
downstream lakes. As a result, EPA proposed application of the
Vollenweider equation to ensure that the TP criteria in streams are
protective of downstream lakes, and requested comment on alternative
approaches such as the BATHTUB model and whether there should be an
allowance for use of other models that are demonstrated to be
protective and scientifically defensible.
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\137\ EPA will assess the effectiveness of final stream criteria
for assuring the protection of downstream estuaries in a separate
rulemaking that focuses on estuarine and coastal waters to be
proposed by November 14, 2011 and finalized by August 15, 2012.
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The proposed use of the Vollenweider model equation to ensure the
protection of downstream lakes requires input of two lake-specific
characteristics: the fraction of inflow due to stream flow and the
hydraulic retention time. EPA provided alternative preset values for
percent contribution from stream flow and hydraulic retention time that
could be used in those instances where lake-specific input values are
not readily available. EPA's January 2010 proposed rule discussed the
flexibility for the State to use site-specific inputs to the
Vollenweider equation for these two parameters, as long as the State
determines that such inputs are appropriate and documents the site-
specific values. Some commenters stated that the Vollenweider equation
is overly simplistic and does not include the necessary factors to
account for physical, hydrologic, chemical, and biological processes
necessary to determine protective criteria. Several commenters also
suggested the need for TN values to protect downstream lakes that are
nitrogen-limited (such as many of the lakes in the phosphorus-rich
areas of the State). Comments included a recommendation to use models
that can better represent site-specific conditions, such as BATHTUB.
EPA's August 2010 Supplemental Notice of Data Availability and
Request for Comment requested additional comment on using the BATHTUB
model in place of the Vollenweider equation for deriving both TP and TN
criteria to protect downstream lakes, allowing the use of alternative
models under certain circumstances, and providing for an alternative
approach to protect downstream lakes when limited data are available
that would use the lake criteria themselves as criteria for upstream
waters flowing into the lake.
In the final rule, protection of downstream lakes is accomplished
through establishment of a downstream protection value (DPV). The
applicable criteria for streams that flow into downstream lakes include
both the instream criteria for TN and TP and the DPV, which is a
concentration or loading value at the point of entry into a lake that
results in attainment of the lake criteria. EPA selected the point of
entry into the lake, also referred to as the ``pour point,'' as the
location to measure water quality because the lake responds to the
input from the pour point and all contributions from the stream network
above this point in a watershed affect the water quality at the pour
point. When a DPV is exceeded at the pour point, the waters that
collectively comprise the network of streams in the watershed above
that pour point are considered to not attain the DPV for purposes of
section 303(d) of the Clean Water Act. The State may identify these
impaired waters as a group rather than individually.
It is appropriate to express the DPV as either a load or
concentration (load divided by flow) because both are expressions of
the amount of TN and TP that are delivered to the downstream water. In
an expression of load, the amount is expressed directly as mass per
time (e.g., pounds per year), whereas a concentration expresses the
amount in terms of the mass contained in a particular volume of water
(e.g., milligrams per liter). Either expression may be used for
assessment and source control allocation purposes. Calculating a DPV as
a load will require modeling or other technical information, such as a
TMDL, that accounts for both the volume of the receiving water and the
flow contributed through the pour point. A DPV expressed as a
concentration may be based on a model or TMDL or may reflect a TN or TP
level that corresponds to a TN, TP, or chlorophyll a concentration that
protects the lake.
Contributions of TN and/or TP from sources in stream tributaries
upstream of the point of entry are accountable to the DPV because the
water quality in the stream tributaries must result in attainment of
the DPV at the pour point into the lake. The spatial allocation of load
within the watershed is an important accounting step to ensure that the
DPV is achieved at the point of entry into the lake. How the watershed
load is allocated may differ based on watershed characteristics and
existing sources (e.g., areas that are more susceptible to physical
loss of nitrogen; location of towns, farms, and dischargers), so long
as the DPV is met at the point of entry into the downstream lake. Where
additional information is available, watershed modeling could be used
to develop allocations that reflect hydrologic variability and other
water quality considerations. For protection of the downstream lake,
what is important is an accounting for nutrient loadings on a watershed
scale that results in meeting the DPV at the point of entry into the
downstream lake.
The final rule provides that additional DPVs may be established in
upstream locations to represent sub-allocations of the total allowable
loading or concentration. Such sub-allocations may be useful where
there are differences in hydrological conditions and/or sources of TN
and/or TP in different parts of the watershed. The rule specifies that
DPVs apply to stream tributaries up to the point of reaching a
waterbody that is not a stream as defined in the rule (e.g., up to
reaching another lake in a ``nested'' or chain of lakes situation). The
rule also includes an option, however, to establish a DPV to account
for a larger watershed area in a modeling context. Establishing DPVs
that apply to a larger watershed may be useful to address a situation
where the water that is furthest downstream in a watershed is also the
water that is most sensitive to nitrogen/phosphorus pollution. That
situation may require a more equitable distribution, across the larger
watershed, of the load that protects the most sensitive waterbody.
Where multiple tributaries enter a lake, the total allowable
loading to the lake may be distributed among the tributaries for
purposes of DPV calculation in any manner that results in meeting the
total allowable loading for the lake, remembering that those
tributaries are also subject to the instream protection value
established for the tributaries.
Where sufficient data and information are available, DPVs may be
established through application of the BATHTUB model. BATHTUB applies
empirical models to morphometrically complex lakes and reservoirs. The
model performs steady-state water and nutrient balance calculations,
uses spatially segmented hydraulic networks, and accounts for advective
and diffusive transport of nutrients. When properly calibrated and
applied, BATHTUB predicts nutrient-related water quality conditions
such as TP, TN, and chlorophyll a concentrations, transparency, and
hypolimnetic oxygen depletion rates. The model can apply to a variety
of lake sizes, shapes and transport characteristics. A high degree of
flexibility is available for specifying
[[Page 75783]]
model segments as well as multiple influent streams. Because water
quality conditions are calculated using relationships derived from data
specific to each lake, BATHTUB accounts for differences between lakes,
such as the rate of internal loading of phosphorus from bottom
sediments. The above descriptive information is summarized from
available technical references that also describe the model and its
applications in greater detail.138 139 140 EPA believes
BATHTUB is appropriate for DPV calculations because BATHTUB can
represent a number of site-specific variables that may influence
nutrient responses and can estimate both TN and TP concentrations at
the pour points to protect the receiving lake. BATHTUB has been
previously used for lake water quality management purposes, such as the
development of TMDLs in States, including Florida. This model was
selected because it does not have extensive data requirements, yet it
provides for the capability to be calibrated based on observed site-
specific lake data and it provides for reliable estimates that will
ensure the protection of downstream lakes.
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\138\ Walker, W.W., 1981. Empirical Methods for Predicting
Eutrophication in Impoundments; Report 1, Phase I: Data Base
Development. Technical Report E-81-9. U.S. Army Engineer Waterways
Experiment Station, Vicksburg, MS.
\139\ Walker, W.W., 1982. Empirical Methods for Predicting
Eutrophication in Impoundments; Report 2, Phase II: Model Testing.
Technical Report E-81-9. U.S. Army Engineer Waterways Experiment
Station, Vicksburg, MS.
\140\ Walker, W.W., 1999. Simplified Procedures for
Eutrophication Assessment and Prediction: User Manual; Instruction
Report W-96-2. U.S. Army Corps of Engineers Waterways Experiment
Station, Vicksburg, MS.
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EPA's final rule also specifically authorizes FDEP or EPA to use a
model other than BATHTUB when either FDEP or EPA determines that it
would be appropriate to use another scientifically defensible modeling
approach that results in the protection of downstream lakes. While
BATHTUB is a peer-reviewed and versatile model, there are other models
that, when appropriately calibrated and applied, can offer additional
capability to address complex situations with an even greater degree of
site-specificity. Adopted and approved TMDLs may contain sufficient
information to support derivation of a DPV when the TMDL is based on
relevant data, defensible science, and accurate analysis.
As discussed in more detail in the Agency's August 2010
Supplemental Notice of Data Availability and Request for Comment on
this issue, one example of an alternative model that FDEP or EPA might
consider using for particularly complex site-specific conditions is the
Water Quality Analysis Simulation Program (WASP) model. This model
allows users to conduct detailed simulations of water quality responses
to natural and manmade pollutant inputs. WASP is a dynamic compartment-
modeling program for aquatic systems, including both the water column
and the underlying benthos. WASP allows the user to simulate systems in
1, 2, or 3 dimensions, and a variety of pollutant types. The model can
represent time varying processes of advection, dispersion, point and
diffuse mass loading, and boundary exchange. WASP also can be linked
with hydrodynamic and sediment transport models that can provide flows,
depths, velocities, temperature, salinity and sediment fluxes. The
above summary information as well as additional technical information
may be found at http://www.epa.gov/athens/wwqtsc/html/wasp.html. Like
BATHTUB, WASP has also been previously used for lake water quality
management purposes, such as TMDLs, nationally and in the State of
Florida. This model is different from BATHTUB because it does have
extensive data requirements that allow for the capability to be finely
calibrated based on observed site-specific lake data, but is similar to
BATHTUB in that it also provides for reliable estimates that will
ensure the protection of downstream lakes.
EPA is finalizing a provision in this section of the rule for
situations where data are not readily available to derive TN and/or TP
DPVs using BATHTUB or another scientifically defensible model. In that
situation, the rule describes how DPVs are determined where the
downstream lake is attaining the lake criteria and where the downstream
lake is either not assessed or is impaired.
Where sufficient information is not available to derive TN and/or
TP DPVs using BATHTUB or another scientifically defensible technical
model and the lake attains the applicable criteria, the DPVs would be
the associated ambient instream levels of TN and/or TP at the point of
entry into the lake. As long as the TN and TP concentrations necessary
to support a balanced natural population of aquatic flora and fauna in
the downstream lake are maintained in the inflow from streams, this
approach will provide adequate protection of downstream lakes and would
be used as the applicable DPVs in the absence of readily available data
to support derivation of TN and TP DPVs using BATHTUB or another
scientifically defensible technical model such as WASP.
EPA's final rule provides that when the DPV is based on the ambient
condition associated with attainment of criteria in the downstream
lake, degradation in water quality from those established levels would
be considered impairment, unless the State or EPA revises the DPV using
a modeling approach or TMDL to show that higher levels of nutrient
contribution from the tributaries would still result in attainment of
applicable lake criteria. This provision is not intended to limit
growth and/or development in the watershed, nor intended to maintain
current conditions regardless of further analysis. Rather this
provision is intended to ensure that WQS are not only restored when
found to be impaired, but are in fact maintained when found to be
attained, consistent with the goals of the Clean Water Act. Higher
levels of TN and/or TP may be allowed in such watersheds where it is
demonstrated that such higher levels will fully protect the lake's WQS.
Where sufficient information is not available to derive TN and/or
TP DPVs using BATHTUB or another scientifically defensible technical
model and the lake does not attain the applicable TN, TP, and/or
chlorophyll a criteria or is un-assessed, lake criteria values for TN
and/or TP are to be used as the DPVs. EPA believes that this approach
is protective because the TN and TP concentrations entering the lake
are unlikely to need to be lower than the criterion concentration
necessary to be protective of the lake itself.
(g) Stressor-Response Approach
In deriving the final criteria for lakes, EPA has relied on a
stressor-response approach which has been well documented and developed
in a number of different contexts.141 142 143 Stressor-
response approaches estimate the relationship between nitrogen/
phosphorus concentrations and a response measure that is either
directly or indirectly related to the designated use (in this case,
chlorophyll a as a measure of attaining a balanced natural population
of aquatic flora and fauna). Then, concentrations that support the
[[Page 75784]]
designated use can be derived from the estimated relationship. In the
case of Florida, the use of this approach is supported by a substantial
Florida-specific database of high quality information, sound scientific
analysis and technical evaluation.
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\141\ USEPA. 2000a. Nutrient Criteria Technical Guidance Manual:
Lakes and Reservoirs. EPA-822-B-00-001. U.S. Environmental
Protection Agency, Office of Water, Washington, DC.
\142\ USEPA. 2000b. Nutrient Criteria Technical Guidance Manual:
Rivers and Streams. EPA-822-B-00-002. U.S. Environmental Protection
Agency, Office of Water, Washington, DC.
\143\ USEPA. 2008. Nutrient Criteria Technical Guidance Manual:
Wetlands. EPA-822-B-08-001. U.S. Environmental Protection Agency,
Office of Water, Washington, DC.
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The effects of nitrogen/phosphorus pollution are manifested in
lakes in a variety of ways and are well-
documented.144 145 146 147 A common effect of nitrogen/
phosphorus pollution in lakes is the over-stimulation of algal growth
resulting in algal blooms, which can cause changes in algal and animal
assemblages due to adverse changes in important water quality
parameters necessary to support aquatic life. Algal blooms can decrease
water clarity and aesthetics, which in turn can affect the suitability
of a lake for primary (e.g., swimming) and secondary (e.g., boating)
contact recreation. Algal blooms can adversely affect drinking water
supplies by releasing toxins, interfering with disinfection processes,
or requiring additional treatment. Algal blooms can adversely affect
biological process by decreasing light availability to submerged
aquatic vegetation (which serves as habitat for aquatic life),
degrading food quality and quantity for other aquatic life, and
increasing the rate of oxygen consumption.
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\144\ Lee, G.F., W. Rast, R.A. Jones. 1978. Eutrophication of
water bodies: Insights for an age-old problem. Environmental Science
and Technology 12: 900-908.
\145\ Carlson R.E. 1977. A trophic state index for lakes.
Limnology and Oceanography 22:361-369.
\146\ Smith, V.H., G.D. Tilman, and J.C. Nekola. 1999.
Eutrophication: impacts of excess nutrient inputs on freshwater,
marine, and terrestrial ecosystems. Environmental Pollution 100:
179-196.
\147\ Smith, V.H., S.B. Joye, and R.W. Howarth. 2006.
Eutrophication of freshwater and marine ecosystems. Limnology and
Oceanography 51:351-355.
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D. Numeric Criterion for the State of Florida's Springs
(1) Final Rule
EPA defines ``spring'' as a site at which ground water flows
through a natural opening in the ground onto the land surface or into a
body of surface water. This definition is drawn from the U.S.
Geological Survey, Circular 1137.\148\ This definition is not intended
to include streams that flow in a defined channel that have some
groundwater baseflow component. EPA recognized that groundwater-surface
water interactions in Florida are complex and that FDEP will need to
make site-specific determinations about whether water is subject to the
stream criteria or the springs criterion. EPA is promulgating the
numeric criterion for nitrate+nitrite for Florida's springs classified
as Class I or III waters under Florida law (Section 62-302.400,
F.A.C.):
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\148\ Schiffer, Donna M. 1998. Hydrology of Central Florida
Lakes--A Primer. U.S. Geological Survey in cooperation with SJWMD
and SFWMD: Circular 1137.
The applicable nitrate (NO3-) + Nitrite
(NO2-) is 0.35 mg/L as an annual geometric mean,
not to be exceeded more than once in a three-year period
(2) Background and Analysis
(a) Derivation of Nitrate + Nitrite Criterion
In its January proposal, EPA proposed a nitrate+nitrite criterion
of 0.35 mg/L for springs and clear streams that would support balanced
natural populations of aquatic flora and fauna in springs. EPA proposed
criteria for nitrate+nitrite because one of most significant factors
causing adverse changes in spring ecosystems is the pollution of
groundwater, principally with nitrate+nitrite, resulting from human
land use changes, cultural practices, and significant population
growth.149 150
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\149\ Katz, B.G., H.D. Hornsby, J.F. Bohlke and M.F. Mokray.
1999. Sources and chronology of nitrate contamination in spring
water, Suwannee River Basin, Florida. Water-Resources Investigations
Report 99-4252. U.S. Geological Survey, Tallahassee, FL. Available
electronically at: http://fl.water.usgs.gov/PDF_files/wri99_4252_katz.pdf.
\150\ Brown M.T., K. Chinners Reiss, M.J. Cohen, J.M. Evans,
P.W. Inglett, K. Sharma Inglett, K. Ramesh Reddy, T.K. Fraze, C.A.
Jacoby, E.J. Phlips, R.L. Knight, S.K. Notestein, R.G. Hamann, and
K.A. McKee. 2008. Summary and Synthesis of the Available Literature
on the Effects of Nutrients on Spring Organisms and Systems.
University of Florida, Gainesville, Florida. Available
electronically at: http://www.dep.state.fl.us/springs/reports/files/UF_SpringsNutrients_Report.pdf. Accessed October 2010.
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EPA based its proposed criterion on multiple lines of stressor-
response evidence, which included controlled, laboratory-scale
experimental data and analysis of field-based data. EPA's first line of
evidence is stressor-response data from controlled laboratory
experiments, which studied the growth response of algae in springs to
different concentrations of nitrate+nitrite. EPA found in its review of
comprehensive surveys 151 152 and a study \153\ of 29
Florida springs at over 150 sampling sites, conducted on behalf of FDEP
over three years, that two nuisance algal taxa, the cyanobacterium
Lyngbya wollei and the macroalgae Vaucheria sp., were the most commonly
occurring taxa. The authors of the study conducted controlled
laboratory experiments, which tested the growth response of Lyngbya
wollei and Vaucheria sp. to different doses of nitrate+nitrite. They
found that Lyngbya wollei and Vaucheria sp. growth rates increased in
response to increased doses of nitrate+nitrite and that most of their
highest growth rates were reached at and above 0.23 mg/L
nitrate+nitrite. EPA interpreted the results from these studies as
strong empirical evidence of a stressor-response relationship between
nuisance algae and nitrate+nitrite and further indicated specific
concentrations above which undesirable growth of nuisance algal may be
likely to occur.
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\151\ Pinowska, A., R.J. Stevenson, J.O. Sickman, A. Albertin,
and M. Anderson. 2007a. Integrated interpretation of survey for
determining nutrient thresholds for macroalgae in Florida Springs:
Macroalgal relationships to water, sediment and macroalgae
nutrients, diatom indicators and land use. Florida Department of
Environmental Protection, Tallahassee, FL.
\152\ Stevenson, R.J., A. Pinowska, and Y.K. Wang. 2004.
Ecological Condition of Algae and Nutrients in Florida Springs.
Florida Department of Environmental Protection, Tallahassee, FL.
\153\ Pinowska, A., R.J. Stevenson, J.O. Sickman, A. Albertin,
and M. Anderson. 2007b. Integrated interpretation of survey and
experimental approaches for determining nutrient thresholds for
macroalgae in Florida Springs: Laboratory experiments and
disturbance study. Florida Department of Environmental Protection,
Tallahassee, FL.
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In addition to the laboratory-based experimental evidence, EPA
reviewed information compiled by FDEP in its assessment of limits to
restore springs and protect them from excess algal
growth.154 155 The second line of evidence was based on data
collected from in-situ algal monitoring and long-term field surveys in
rivers FDEP considered to exhibit similar aquatic conditions to springs
(e.g., algal communities, water clarity, and proportion of flow coming
from a spring). EPA found additional stressor-response evidence in an
analysis \156\ based on over 200 algal samples collected from 13
different algal monitoring stations along the Suwannee, Santa Fe, and
Withlacoochee Rivers from 1990 to 1998. The analysis examined algal
growth response over a range of nitrate+nitrite concentration. Results
indicated a sharp increase in
[[Page 75785]]
algal abundance and biomass above 0.4 mg/L nitrate + nitrite.
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\154\ Gao, X. 2008. Nutrient TMDLs for the Wekiva River (WBIDs
2956, 2956A, and 2956C) and Rock Springs Run (WBID 2967). Florida
Department of Environmental Protection, Division of Water Resource
Management, Tallahassee, FL.
\155\ Hallas, J.F. and W. Magley. 2008. Nutrient and Dissolved
Oxygen TMDL for the Suwannee River, Santa Fe River, Manatee Springs
(3422R), Fanning Springs (3422S), Branford Spring (3422J), Ruth
Spring (3422L), Troy Spring (3422T), Royal Spring (3422U), and
Falmouth Spring (3422Z). Florida Department of Environmental
Protection, Bureau of Watershed Management, Tallahassee, FL.
\156\ Niu, X.-F. 2007. Appendix B. Change Point Analysis of the
Suwannee River Algal Data. In Gao, X. 2008. Nutrient TMDLs for the
Wekiva River (WBIDs 2956, 2956A, and 2956C) and Rock Springs Run
(WBID 2967). Florida Department of Environmental Protection,
Division of Water Resource Management, Tallahassee, FL.
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EPA concluded the two different lines of stressor-response evidence
point to a nitrate+nitrite concentration of 0.35 mg/L that would
prevent excess algal growth and be supportive of balanced natural
populations of aquatic flora and fauna in Florida springs. This
concentration is higher than that observed in laboratory-scale
experiments that may not be closely representative of reference spring
sites in Florida, but lower than the concentration that was associated
with changes in the balance of natural populations of aquatic flora and
fauna observed in an analysis of field data. EPA believes a
nitrate+nitrite criterion set at 0.35 mg/L represents an appropriate
and reasonable balance of the scientific evidence.
EPA received a number of comments regarding EPA's proposed
criterion for springs, including concerns that the biological responses
observed in the field were not representative of all springs in
Florida. EPA disagrees with these commenters who suggested that the
observed effects in the field are not sufficient evidence to support
numeric criteria derivation in springs. The algal taxa, Lyngbya sp. and
Vaucheria sp., are representative taxa found in Florida springs. In
fact, Lyngbya and Vaucheria are the most commonly observed macroalgae
in Florida springs.\157\ Thus, the Agency considers the biological
responses of these representative taxa observed in the field and in
laboratory experiments to be ecologically meaningful and indicative of
an adverse biological response to elevated nitrate+nitrite
concentrations above 0.35 mg/L.
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\157\ Stevenson, R.J., A. Pinowska, and Y.K. Wang. 2004.
Ecological Condition of Algae and Nutrients in Florida Springs.
Florida Department of Environmental Protection, Tallahassee, FL.
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EPA also received comment that the proposed nitrate+nitrite
criterion was inappropriately applied to all clear streams within the
State. After considering these comments, EPA concluded that clear
streams are more appropriately addressed as part of the regionalized
reference approach that is supported by a broader range of stream
monitoring data as discussed above. Therefore, EPA has decided not to
finalize the springs nitrate+nitrite criterion in clear streams because
EPA considers the numeric criteria it is finalizing in this rule for
streams in the five NWRs, which includes clear streams, to be
adequately protective and scientifically defensible. These systems will
also be protected from excess nitrogen from groundwater by the
nitrate+nitrite criteria applicable in the springs that flow into them;
thus, additional nitrate+nitrite criteria are not needed.
In this final rule, EPA is finalizing nitrate+nitrite criterion for
springs with a magnitude of 0.35 mg/L. For more information regarding
the springs criterion, please refer to EPA's Final Rule TSD for
Florida's Inland Waters, Chapter 3: Methodology for Deriving U.S. EPA's
Criteria for Springs located in the record for this final rule.
(b) Duration and Frequency
EPA proposed a nitrate+nitrite criterion duration as an annual
geometric mean with a criterion frequency of not to be exceeded more
than once in three years. EPA also took comment on alternative
durations, such as a monthly geometric mean, and alternative
frequencies, such as a not to be exceeded more than 10% of the time.
EPA considered that the timescales of the algal responses in the
laboratory experiments (i.e., 21 to 28 days) might support a shorter
duration over which biological response to nitrate+nitrite could occur.
However, EPA found in its review of springs data and information that
nitrate concentrations can be variable from month to month, and this
intra-annual variability was not necessarily associated with impairment
of the designated use. Therefore, to account for intra-annual
variability, EPA chose to express the nitrate+nitrite criterion for
springs on an annual basis. Comments included a suggestion to express
the frequency component of the criterion as ``not to be exceeded during
a three year period as a three year average.'' However, EPA is
concerned that cumulative effects of exposure may manifest themselves
in shorter periods of time than three years. This is because springs
tend to be clear which provides the opportunity for fast growing
nuisance algal species to quickly utilize the excess nitrogen. When
nuisance algae species grow prolifically, they outcompete and replace
native submerged aquatic vegetation. Thus, more frequent exceedances of
the criterion-magnitude will not support a balanced natural population
of aquatic flora and fauna in springs because submerged aquatic
vegetation can be lost quickly from the effects of nitrate+nitrite
pollution, but can take many years, if not decades, to recover.\158\
For these reasons, EPA is finalizing the proposed duration and
frequency of an annual geometric mean not to be exceeded more than once
in three years.
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\158\ Duarte, C.M. 1995. Submerged aquatic vegetation in
relation to different nutrient regimes. Ophelia: International
Journal of Marine Biology 41: 87-112.
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E. Applicability of Criteria When Final
(1) Final Rule
This final rule is effective 15 months after publication in the
Federal Register, except for the Federal site-specific alternative
criteria (SSAC) provision of section 131.43(e), which is effective 60
days after publication in the Federal Register. This rule will apply in
addition to any other existing CWA-effective criteria for Class I or
Class III waters already adopted and submitted to EPA by the State (and
for those adopted and submitted to EPA after May 30, 2000, approved by
EPA). FDEP establishes its designated uses through a system of classes
and Florida waters are designated into one of several different
classes. Class III waters provide for healthy aquatic life and safe
recreational use. Class I waters include all the protection of
designated uses provided for Class III waters, and also include
protection for designated uses related to drinking water supply. See
Section 62-302.400, F.A.C. Class I and III waters, together with Class
II waters that are designated for shellfish propagation or harvesting,
comprise the set of Florida waters that are assigned designated uses
that include the goals articulated in Section 101(a)(2) of the CWA
(i.e. protection and propagation of fish, shellfish, and wildlife and
recreation in and on the water).\159\ Class II waters will be covered
under EPA's forthcoming rulemaking efforts for estuarine and coastal
waters. EPA is promulgating numeric criteria for lakes and flowing
waters, consistent with the terms of the Agency's Consent Decree, that
Florida has designated as Class I or Class III.
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\159\ Because FL classifications are cumulative, Class I waters
include protections for aquatic life and recreation, in addition to
protecting drinking water supply use.
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In terms of final rule language, EPA has removed regulatory
provisions at 40 CFR 131.43(c)(2)(iii) and 131.43(c)(4)-(6) because
these criteria (criteria for protection of downstream estuarine waters,
flowing waters in the South Florida Region, and estuaries and coastal
waters) will be included with the Agency's 2011 proposed rulemaking for
estuarine and coastal waters. For water bodies designated as Class I
and Class III predominately fresh waters, EPA's final numeric criteria
will be applicable CWA water quality criteria for purposes of
implementing CWA programs, including permitting under the NPDES
program, as well as
[[Page 75786]]
monitoring, assessments, and listing of impaired waters based on
applicable CWA WQS and establishment of TMDLs.
In this final rule, the Agency has also deleted proposed regulatory
provisions at 40 CFR 131.43(d)(2)(i)-(iii) on mixing zones, design
flow, and listing impaired waters. EPA notes that the final criteria in
this rule are subject to Florida's general rules of applicability in
the same way and to the same extent as are other State-adopted and/or
Federally-promulgated criteria for Florida waters. (See 40 CFR
131.43(d)(2)). States have discretion to adopt policies generally
affecting the application and implementation of WQS. (See 40 CFR
131.13). There are many applications of criteria in Florida's water
quality programs. Therefore, EPA believes that it is not necessary for
purposes of this final rule to enumerate each of them, nor is it
necessary to restate any otherwise applicable requirements. This broad
reference to general rules of applicability provides sufficient
coverage and has been used without further elaboration in EPA's most
recent criteria promulgation applicable to State waters.\160\ The
Agency is also concerned that addressing some applications in this
final regulations and not others may create unnecessary and unintended
questions, confusion, and uncertainty about the overall application of
Florida's general rules.
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\160\ See 40 CFR 131.41(d)(2).
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(2) Summary of Major Comments
Regarding application of criteria, several commenters asked EPA to
provide more detail on how waters would be monitored, whether EPA would
use the rotating basin approach that FDEP uses, how EPA would enforce
the criteria, and how specific entities would be affected. In response,
EPA points out that WQS generally, and EPA's rule specifically, do not
specify how to achieve those WQS. As discussed above, the State of
Florida will determine how best to meet these Federal numeric criteria
in a way that most effectively meets the needs of its citizens and
environment. FDEP is the primary agency responsible for implementing
CWA programs in the State of Florida. As such, EPA defers to FDEP in
administering applicable CWA programs consistent with the CWA and EPA's
implementing regulations. EPA has worked closely with the State to
address nitrogen/phosphorus pollution problems in Florida. EPA will
continue to collaborate with FDEP as the State implements EPA's
Federally-promulgated numeric criteria.
Several commenters asserted that Florida would not be able to
implement EPA's Federally-promulgated numeric criteria without first
adopting the criteria into State law. EPA does not believe that, in
order to implement EPA's Federally-promulgated numeric criteria, FDEP
is required to adopt EPA's rule into State law. EPA's numeric criteria
for Florida's lakes and flowing waters will be effective for CWA
purposes 15 months after publication of the final criteria in the
Federal Register and will apply in addition to any other existing CWA-
effective criteria for Class I or Class III waters already adopted by
the State and submitted to EPA (and for those adopted after May 30,
2000, adopted and submitted by FDEP and approved by EPA). FDEP retains
the authority to move forward with its own rulemaking process at any
time to establish State numeric criteria and to submit such criteria to
EPA for review and approval under section 303(c) of the CWA. If FDEP
does not adopt State numeric criteria, the Department retains its
current authority to implement Federally promulgated criteria through
the State's narrative or ``free from'' criteria. FDEP's General Counsel
has confirmed, in a 2005 letter to EPA that the State's water quality
criteria regulations for surface waters, set out at Section 62-302.500,
F.A.C., provide authority for the Department to address and implement
EPA promulgated criteria in CWA programs.\161\
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\161\ FDEP. 2005, January 5. ``Petition to Withdraw Florida's
NPDES Authority of March 19, 2004 Response to EPA Letter of December
8, 2004.'' Letter from George Munson, General Counsel.
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Several commenters suggested that EPA incorporate water quality
targets from adopted and approved TMDLs as site-specific criteria
(SSAC) for specific waters in lieu of the more broadly applicable
criteria promulgated by EPA. These commenters asserted that the TMDL
values better reflect site-specific needs and were already serving as
the basis for many pollutant reduction actions, including Basin
Management Action Plans (BMAPs). Commenters expressed concern that
actions to implement the TMDLs would be curtailed or delayed because of
the uncertainty whether additional reductions might be required, and
that both the Federal SSAC process (described in Section V.C of this
notice) and use attainability analysis (UAA)/variance process would be
too burdensome and time-consuming to be effective alternatives.
Similarly, some commenters requested that specific restoration projects
be exempted from EPA's criteria or that EPA employ a process for
delaying application of the criteria where a water is under study.
EPA's position is that EPA-established or approved TMDLs may
provide sufficient information to support a site-specific alternative
criterion, but that such a demonstration should be made after
considering and taking into account any new relevant information
available, including but not limited to the substantial analysis and
data considered and made a part of the record for this final rule. For
this reason, EPA considers the Federal SSAC procedure to be the
appropriate mechanism for determining whether any specific TMDL target
should be adopted as a SSAC. For restoration projects or waters under
study, a State-issued variance may also be an appropriate vehicle for
regulatory flexibility.
Several commenters requested clarification regarding the effect of
EPA's Federally-promulgated numeric criteria on existing TMDLs. A TMDL
is established at levels necessary to attain and maintain ``applicable
narrative and numerical water quality standards.'' (See 40 CFR
130.7(c)(1)). A TMDL addressing a narrative WQS requires translating
the narrative WQC into a numeric water quality target (e.g., a
concentration). TMDLs are not implemented directly but through other
programs such as NPDES permitting and non-point source programs. For
example, a NPDES permitting authority must ensure at the time of permit
issuance that WQBELs are consistent with the assumptions and
requirements of any available wasteload allocation (WLA) for that
discharge contained in a TMDL, as well as derive from and comply with
all applicable WQS. (See 40 CFR 122.44(d)(1)(vii)(A) and (B)).
Some existing TMDLs translate the same portion of Florida's
narrative criterion, Subsection 62-302.530(47)(b), F.A.C., as EPA has
translated to derive its numeric criteria, e.g. no imbalance in natural
populations of aquatic flora and fauna. The permitting authority must
ensure that any permit issuance or re-issuance include WQBELs that are
as stringent as necessary to meet the promulgated numeric criteria,
pursuant to CWA section 301(b)(1)(C) and 40 CFR 122.44(d)(1). These
existing TMDLs will likely include information that is relevant and
helpful in evaluating necessary discharge limitations, such as
consideration of other sources of the pollutant and hydrodynamics of
the waterbody. EPA recommends that existing TMDLs that are based on
translation of Subsection 62-302.520(47)(b), F.A.C. (``no imbalance in
natural population of aquatic flora and
[[Page 75787]]
fauna''), undergo a two-part evaluation. The first step is to assess
whether the waterbody is still, in fact, water quality-limited
(impaired) using the new numeric WQC. If the waterbody is still water
quality-limited, then a second evaluation should be conducted to
determine whether the existing TMDL based on the narrative is
sufficient to meet the new numeric criterion, and in turn, whether or
not it may be appropriate to revise the TMDL. The State may also wish
to pursue submitting the TMDL water quality target derived by
translating the narrative for determination as a Federal SSAC.
Other existing TMDLs translate another part of Florida's narrative
nutrient criterion, Subsection 62-302.530(47)(a) F.A.C. This provision
provides that nitrogen/phosphorus pollution shall be limited so as to
prevent violation of another Florida WQS. Where a TMDL water quality
target was developed as a translation of this part of Florida's
narrative nutrient criterion (for example, that amount of nitrogen/
phosphorus that would not cause excursions of Florida's dissolved
oxygen WQS), the appropriate WQBEL is the more stringent result of
applying the TMDL WLA or the promulgated numeric criteria.
It is important to keep in mind that no TMDL will be rescinded or
invalidated as a result of this final rule, nor does this final rule
have the effect of withdrawing any prior EPA approval of a TMDL in
Florida. Neither the CWA nor EPA regulations require TMDLs to be
completed or revised within any specific time period after a change in
water quality standards occurs. TMDLs are typically reviewed as part of
States' ongoing water quality assessment programs. Florida may review
TMDLs at its discretion based on the State's priorities, resources, and
most recent assessments. NPDES permits are subject to five-year permit
cycles, and in certain circumstances are administratively continued
beyond five years. In practice, States often prioritize their
administrative workload in permits. This prioritization could be
coordinated with TMDL review.
EPA-established or approved TMDLs may provide sufficient
information to support a site-specific alternative criterion (SSAC).
The SSAC path is one that local governments or businesses may want to
pursue where they desire assurance that the TMDL will become the
applicable numeric criteria in advance of the State's review of the
TMDL or where substantial investments in pollution controls are
predicated on water quality based effluent limits, and local
governments or businesses need long-term planning certainty before
making these investments. The demonstrations supporting SSAC requests
for TMDLs should reflect any new relevant information that has become
available since the TMDL was developed, including but not limited to
the substantial analysis and data considered and made a part of the
record for this final rule. For this reason, EPA considers the Federal
SSAC procedure to be the appropriate mechanism for determining whether
any specific TMDL target should replace the otherwise applicable
numeric criteria in this final rule. EPA will work cooperatively with
entities requesting SSAC to expedite consideration of TMDL targets and
associated TN and/or TP levels as Federal SSAC for purposes of this
final rule. As explained in the preamble to the final rule, EPA has
delayed the effective date of its numeric criteria for 15 months. EPA
encourages any entity wishing to have EPA adopt a particular TMDL
target as a SSAC to submit such TMDL to EPA for consideration as a SSAC
as soon as possible during these 15 months. When submitting such
requests to EPA, such entity must copy FDEP so that FDEP may provide
any comments it has to EPA. EPA would then review the SSAC application
and prepare the SSAC for public notice once this final rule takes
effect. Following this process, the TMDL target, if scientifically and
technically justified, could replace the otherwise applicable numeric
criteria within a very short period of time after this final rule takes
effect. Following any such establishment of site-specific numeric
criteria, the State of Florida may review and/or revise the TMDL at its
discretion based on the changed criteria and the State's priorities,
resources, and most recent assessments. EPA is still required to
approve any changes to a previously approved TMDL.
EPA is extending the effective date of this rule, with the
exception of the site-specific alternative criteria provision for
reasons discussed below, for 15 months to allow time for the Agency to
work with stakeholders and FDEP on important implementation issues and
to help the public and all affected parties better understand the final
criteria and the bases for those criteria. EPA solicited comment on the
rule's proposed effective date in the preamble to the proposed rule (75
FR 4216 (January 26, 2010)) and received many comments requesting that
EPA delay the effective date of the final criteria. A range of
commenters suggested delayed effective dates from several months to
several years, including linking the effective date of this rule with
the forthcoming estuaries and coastal waters rule to allow closer
coordination of the related parts of the two rulemakings. EPA does not
agree with some commenters that such an extensive delay is necessary.
However, EPA does believe, as discussed below, that these criteria
present a unique opportunity for substantial nitrogen and phosphorus
loadings reductions in the State that would be greatly facilitated and
expedited by strongly coordinated and well-informed stakeholder
engagement, planning, and support before a rule of this significance
and broad scope begins to take effect and be implemented through the
State's regulatory programs.
EPA believes that it is critical, before the rule becomes
effective, to engage and support, in full partnership with FDEP, the
general public, stakeholders, local governments, and sectors of the
regulated community across the State in a process of public outreach,
education, discussion, and constructive planning. EPA solicited comment
on the proposed rule in January 2010 and has carefully considered those
comments, which numbered more than 22,000, in developing the final
rule. However, the nature of rule development has kept EPA from
publicly discussing the contents of the final rule until the rule
development process, itself, was complete. An investment in outreach,
information, coordination, technical assistance and planning following
this action may result in far more effective, expeditious, and
ultimately effective implementation of appropriate and badly needed
nutrient pollution reduction measures leading to public health and
environmental improvements, the goals of this rule. EPA recognizes that
in order for FDEP to effectively implement the final criteria for
nutrients, it needs to plan how to best address the criteria in State
programs such as the permits, waterbody assessment and listing, and
TMDL programs. The State may need to develop implementation plans and
guidance for affected State regulatory programs, train employees, and
educate the public and regulated communities. EPA will work with FDEP
as a partner over the next 15 months as FDEP takes the steps necessary
to implement the new standards in an orderly manner. Moreover, EPA
believes it would be useful and beneficial to have discussions with
State and local officials, organizations of interested parties, and
with the general public to explain the final rule, the bases for that
[[Page 75788]]
rule, and respond to implementation questions and concerns.
Several stakeholder groups have provided comments about particular
implementation issues that will require time to address before
effective implementation of the final rule can be achieved. Florida has
a unique local government administration structure that includes
county, municipal, and special districts, all which have overlapping
authorities with respect to managing water resources. The special
districts provide water resource management oversight of flood control
and water supply services. These multiple layers of government
authorities will require time to coordinate responsibilities. An
additional concern for local governments is their budgeting process.
Most local governments operate on a fiscal year cycle of October to
September; thus they have recently begun a new fiscal year. These local
governments engage in multi-year budget planning and have already begun
laying the budget foundations for up to five successive years. EPA
recognizes that Florida's agricultural community has implemented a
variety of best management practices (BMPs) that are effective at
reducing nitrogen and phosphorus pollution from farms. However,
Florida's agriculture industry is composed of a large number of small
farms (about 17,000) that have average annual sales of less than
$10,000 each, and most do not receive any form of government
assistance.\162\ EPA anticipates that the Natural Resource Conservation
Service and the University of Florida/Institute of Food and
Agricultural Sciences Extension will need time to educate those not
currently enrolled in nutrient management and BMP programs to control
nutrient runoff.
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\162\ NASS. 2009a. 2007 Census of agriculture Florida State and
county data, Volume 1, Geographic Area Series, Part 9, AC-07-A-9,
Updated December 2009, National Agricultural Statistics Service,
U.S. Department of Agriculture, Washington, DC. http://www.agcensus.usda.gov/Publications/2007/Full_Report/Volume_1,_Chapter_1_State_Level/Florida/flv1.pdf (retrieved July 15, 2010).
NASS. 2009. 2009 State agriculture overview--Florida. U.S.
Department of Agriculture, National Agricultural Statistics Service,
Washington, DC, http://www.nass.usda.gov/Statistics_by_State/Ag_Overview/AgOverview_FL.pdf (retrieved June 17, 2010).
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A delayed effective date of 15 months for the criteria will also
provide time for interested parties to pursue site-specific alternative
criteria (SSAC) for a given waterbody. EPA's final rule and associated
preamble describe the process by which any entity may seek a SSAC. A
decision to seek a SSAC could not be made, however, until interested
parties know what the applicable criteria would be. The Federal SSAC
portion of the rule, Sec. 131.43(e), goes into effect 60 days after
publication of this rule to allow this important work to proceed in
advance of the effective date for the remaining provisions of the rule.
During the 15 months before the criteria become effective, parties may
evaluate the final criteria, decide whether they want to seek a SSAC,
and, if so, submit their SSAC application materials to EPA, copying
FDEP. EPA could then review the application, and if complete, public
notice the application and technical support document pursuant to the
SSAC provision in the final rule. If, after reviewing public comment,
EPA believes that the SSAC application meets the requirements of this
rule, EPA could determine that such SSAC apply to the specific
waterbody in lieu of the criteria in the final rule, even before the
criteria in the final rule become effective due to the earlier
effective date of the SSAC provision.
EPA believes that the 15-month period of time between publication
in the Federal Register and the effective date of the criteria will
ultimately result in attainment of the criteria in an overall shorter
period of time. As EPA frequently points out in its guidance and
training materials, criteria are not ``self-implementing'', that is, it
takes knowledgeable and experienced professionals to effectively and
properly employ the criteria in monitoring and assessment programs,
permit limit derivation and expression, nonpoint source (NPS) control
strategies, and other program applications. Without time to develop
procedures, there is the risk of ineffective implementation that will
not meet the underlying objective of this action--to restore and
protect Florida's waters from harm caused by nitrogen and phosphorus
pollution. Well designed and mapped out NPS control strategies, in
particular, will be critical to gain stakeholder trust and
participation.
EPA wishes to actively engage in partnership with FDEP to support
FDEPs implementation of these new standards, for example by considering
applications for site-specific alternative criteria. After careful
consideration of time requirements for critical steps, along with
recognition of important planning and accounting mechanisms such as
fiscal years, and local and county meeting and planning cycles, EPA has
determined that a 15-month time period is both reasonable and will
allow time for important implementation activities to take place. This
15-month period will allow for a four-month education and outreach
rollout to cover the major interest sectors and geographic locations
throughout the State of Florida; a three-month period of training and
guidance concurrent with data synthesis and analysis to support
potential SSAC development; a two-month public comment and response
period to allow development of effective guidance, training and
possible workshops to run concurrent with SSAC submittals; a three-
month period for finalizing guidance materials along with development
of rollout strategies (e.g., for NPS control) concurrent with notice
and comment of SSAC; and finally a 3-month period for statewide
education and training on guidance and contingency planning. In short,
the 15 months before the criteria become effective will ensure
application of programs to achieve criteria in a manner that makes the
most efficient use of limited resources and gains the broadest possible
support for timely and effective action upon reaching the effective
date of the criteria.
IV. Under what conditions will Federal standards be withdrawn?
Under the CWA, Congress gave States primary responsibility for
developing and adopting WQS for their navigable waters. (See CWA
section 303(a)-(c)). Although EPA is promulgating numeric criteria for
lakes and springs throughout Florida and flowing waters outside the
South Florida Region, Florida continues to have the option to adopt and
submit to EPA numeric criteria for the State's Class I and Class III
waters consistent with CWA section 303(c) and implementing regulations
at 40 CFR part 131.
Pursuant to 40 CFR 131.21(c), EPA's promulgated WQS are applicable
WQS for purposes of the CWA until EPA withdraws those Federally-
promulgated WQS. Withdrawing the Federal standards for the State of
Florida would require rulemaking by EPA pursuant to the requirements of
the Administrative Procedure Act (5 U.S.C.551 et seq.). EPA would
undertake such a rulemaking to withdraw the Federal criteria if and
when Florida adopts and EPA approves numeric criteria that fully meet
the requirements of section 303(c) of the CWA and EPA's implementing
regulations at 40 CFR part 131.
[[Page 75789]]
V. Alternative Regulatory Approaches and Implementation Mechanisms
A. Designating Uses
(1) Background and Analysis
Under CWA section 303(c), States shall adopt designated uses after
taking ``into consideration the use and value of water for public water
supplies, protection and propagation of fish, shellfish, and wildlife,
recreation in and on the water, agricultural, industrial and other
purposes including navigation.'' Designated uses ``shall be such as to
protect the public health or welfare, enhance the quality of water and
serve the purposes of [the CWA].'' (See CWA section 303(c)(2)(A)).
EPA's regulation at 40 CFR 131.3(f) defines ``designated uses'' as
``those uses specified in water quality standards for each waterbody or
segment whether or not they are being attained.'' A ``use'' is a
particular function of, or activity in, waters of the United States
that requires a specific level of water quality to support it. In other
words, designated uses are a State's concise statements of its
management objectives and expectations for each of the individual
surface waters under its jurisdiction.
In the context of designating uses, States often work with
stakeholders to identify a collective goal for their waters that the
State intends to strive for as it manages water quality. States may
evaluate the attainability of these goals and expectations to ensure
they have designated appropriate uses. (See 40 CFR 131.10(g)).
Consistent with CWA sections 101(a)(2) and 303(c)(2)(A), EPA's
implementing regulations specify that States adopt designated uses that
provide water quality for the protection and propagation of fish,
shellfish, and wildlife and for recreation in and on the water,
wherever attainable. (See 40 CFR 131.10). Where States do not designate
those uses, or remove those uses, they must demonstrate that such uses
are not attainable consistent with the use attainability analysis (UAA)
provisions of 40 CFR 131.10, specifically 131.10(g). States may
determine, based on a UAA, that attaining a designated use is not
feasible and propose to EPA to change the use to something that is
attainable. This action to change a designated use must be completed in
accordance with EPA regulations. (See 40 CFR 131.10(g) and (h)). In
implementing these regulations, EPA allows grouping waters together in
a watershed in a single UAA, provided that there is site-specific
information to show how each individual water fits into the group in
the context of any single UAA and how each individual water meets the
applicable requirements of 40 CFR 131.10(g).
EPA's final numeric criteria for lakes and flowing waters apply to
those waters designated by FDEP as Class I (Potable Water Supplies) or
Class III (Recreation, Propagation and Maintenance of a Healthy, Well-
Balanced Population of Fish and Wildlife). If Florida removes either
the Class I and/or Class III designated use for any particular
waterbody ultimately affected by this rule, and EPA finds that removal
to be consistent with CWA section 303(c) and regulations at 40 CFR part
131, then the Federally-promulgated numeric criteria would not apply to
that waterbody because it would no longer be designated Class I or III.
Instead, any criteria associated with the newly designated use would
apply to that waterbody.
(2) Summary of Major Comments
Many commenters took the opportunity to emphasize the need to
adhere to the regulations governing the process of modifying or
removing a designated use. Some commenters suggested that the process
to change a designated use is extremely difficult. EPA's experience is
that UAAs may range from simple to complex, depending on a variety of
factors, such as the type of waterbody involved, the size of the
segment, the use being changed, the relative degree of change proposed
for the designated use, the presence of unique ecological habitats, and
the level of public interest/involvement in the designated use
decision. EPA agrees that, while a UAA is being conducted, the current
designated use and corresponding criteria remain in place. In the case
of Florida's Class I and Class III flowing waters and lakes, EPA's
promulgated numeric criteria will remain the applicable WQS for CWA
purposes, including assessments, listings, TMDL development and the
issuance of NPDES permits, unless and until the State adopts revised
designated uses (with different associated criteria) that are submitted
to and approved by EPA under CWA section 303(c).
B. Variances
(1) Final Rule
For purposes of this rule, EPA is promulgating criteria that apply
to use designations that Florida has already established. EPA believes
that the State has sufficient authority to use its currently EPA-
approved variance procedures with respect to a temporary modification
of its Class I or Class III uses as it pertains to any Federally-
promulgated criteria. For this reason, EPA did not propose and is not
promulgating an alternative Federal variance procedure.
(2) Background and Analysis
A variance is a temporary modification to the designated use and
associated water quality criteria that would otherwise apply to the
receiving water.\163\ Variances constitute new or revised WQS subject
to the substantive requirements applicable to removing a designated
use.\164\ Thus, a variance is based on the same factors, set out at 40
CFR 131.10(g), that are required to revise a designated use through a
UAA. Typically, variances are time-limited (e.g., three to five years),
but renewable. Temporarily modifying the designated use for a
particular waterbody through a variance process allows a State to limit
the applicability of a specific criterion to that water and to identify
an alternative designated use and associated criteria to be met during
the term of the variance. A variance should be used instead of removal
of a use where the State believes the standard can be attained at some
point in the future. By maintaining the designated use for all other
criteria and dischargers, and by specifying a point in the future when
the designated use will be fully applicable in all respects, the State
ensures that further progress will be made in improving water quality
and attaining the standard. A variance may be written to address a
specified geographic area, a specified pollutant or pollutants, and/or
a specified pollutant source. All other applicable WQS not specifically
modified by the variance would remain applicable (e.g., any other
criteria adopted to protect the designated use). State variance
procedures, as part of State WQS, must be consistent with the
substantive requirements of 40 CFR part 131. Each variance, as a
revised WQS, must be submitted to EPA for review pursuant to CWA
section 303(c). A variance allows, among other things, NPDES permits to
be written such that reasonable progress is made \165\ toward attaining
the underlying standards for affected waters without violating section
402(a)(l) of the Act, which requires that NPDES permits
[[Page 75790]]
must meet the applicable WQS. (See CWA section 301(b)(1)(C)).
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\163\ Water Quality Standards Regulation, 40 CFR part 131:
Advance notice of proposed rulemaking. USEPA FR 63:129 (July 7,
1998). p. 36741-36806.
\164\ In re Bethlehem Steel Corporation, General Counsel Opinion
No. 58. March 29, 1977 (1977 WL 28245 (E.P.A. G.C.)).
\165\ USEPA. 1994. Water Quality Standards Handbook: Second
Edition. EPA-823-B-94-005a. U.S. Environmental Protection Agency,
Office of Water, Washington, DC.
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(3) Summary of Major Comments
In response to comments, EPA agrees that variances could be adopted
on a multiple-discharger basis and can be renewed so long as the State
and EPA conclude that such variances are consistent with the CWA and
implementing regulations. In this regard, EPA allows grouping waters
together in a watershed in a single variance application, provided that
there is site-specific information to show how each individual water
fits into the group in the context of any single variance and how each
individual water meets the applicable requirements of 40 CFR 131.10(g).
EPA disagrees that Florida law, at 403.201(2), F.S., prohibits the
State from issuing variances for waters affected by the Federally-
promulgated numeric criteria. Florida law at 403.201(2), F.S., provides
that a variance may not be granted that would result in State
requirements that are less stringent than a comparable Federal
provision or requirement. As discussed above, a variance is a temporary
modification to the designated use and thus to the associated water
quality criteria that would otherwise apply to the receiving water.
EPA's Federal rule, however, does not promulgate or revise any Florida
designated uses. EPA's criteria are intended to protect the Class I and
Class III designated uses that Florida already has in place. EPA's
criteria do not apply where and when the use is something other than
Class I or Class III, as would be the case for a variance. Rather,
Florida would establish alternative criteria associated with the
variance. Any variance would constitute a new or revised WQS subject to
EPA review and approval pursuant to section 303(c) of the CWA.
C. Site-Specific Alternative Criteria
(1) Final Rule
EPA believes that there is benefit in establishing a specific
procedure in the Federal rule for EPA adoption of Federal site-specific
alternative criteria (SSAC) for the numeric chlorophyll a, TN, TP, and
nitrate+nitrite criteria in this rule. In this rulemaking, EPA is
promulgating a procedure whereby the Regional Administrator, Region 4,
may establish a SSAC after providing for public comment on the proposed
SSAC and the supporting documentation. (See 40 CFR 131.43(e)). This
procedure allows any entity, including the State, to submit a proposed
Federal SSAC directly to EPA for the Agency's review and assessment as
to whether an adjustment to the applicable Federal numeric criteria is
appropriate and warranted. The Federal SSAC process is separate and
distinct from the State's SSAC processes in its WQS.
The Federal SSAC procedure allows EPA to determine that a revised
site-specific chlorophyll a, TN, TP, or nitrate + nitrite numeric
criterion should apply in lieu of the generally applicable criteria
promulgated in this final rule where that SSAC is demonstrated to be
protective of the applicable designated use(s). The promulgated
procedure provides that EPA will solicit public comment on its
determination. Because EPA's rule establishes this procedure,
implementation of this procedure does not require withdrawal of
Federally-promulgated criteria for affected water bodies for the
Federal SSAC to be effective for purposes of the CWA. EPA has
promulgated similar procedures for EPA granting of variances and SSACs
in other Federally-promulgated WQS.\166\
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\166\ See 40 CFR 131.33(a)(3), 40 CFR 131.34(c), 40 CFR
131.36(c)(3)(iii), 40 CFR 131.38(c)(2)(v), 40 CFR 131.40(c).
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EPA is aware of concerns expressed by some commenters that a
waterbody may exceed the numeric criteria in this rule and still meet
Florida's designated uses related to recreation, public health, and the
propagation and maintenance of a healthy, well-balanced population of
fish and wildlife. EPA recognizes that there may be certain situations
where additional, new, or more specific data related to the local
conditions or biology of a particular waterbody may well support an
alternate site-specific numeric criteria which may appropriately be
more (or less) stringent than the criteria in this final rule in order
to ensure maintenance of instream designated uses and protection of
downstream waters. EPA believes that the SSAC process is an appropriate
mechanism to address such situations and is committed to acting on
Federal SSAC applications intended to address such situations as
expeditiously as possible.
The process for obtaining a Federal SSAC includes the following
steps. First, an entity seeking a SSAC compiles the supporting data,
conducts the analyses, develops the expression of the criterion, and
prepares the supporting documentation demonstrating that alternative
numeric criteria are protective of the applicable designated use. The
``entity'' may be the State, a city or county, a municipal or
industrial discharger, a consulting firm acting on a behalf of a
client, or any other individual or organization. The entity requesting
the SSAC bears the burden of demonstrating that any proposed SSAC meets
the requirements of the CWA and EPA's implementing regulations,
specifically 40 CFR 131.11. Second, if the entity is not the State, the
entity must provide notice of the proposed SSAC to the State, including
all supporting documentation so that the State may provide comments on
the proposal to EPA. Third, the Regional Administrator will evaluate
the technical basis and protectiveness of the proposed SSAC and decide
whether to publish a public notice and take comment on the proposed
SSAC. The Regional Administrator may decide not to publish a public
notice and instead return the proposal to the entity submitting the
proposal, with an explanation as to why the proposed SSAC application
did not provide sufficient information for EPA to determine whether it
meets CWA requirements or not. If EPA solicits public comment on a
proposed SSAC, upon review of comments, the Regional Administrator may
determine that the Federal SSAC is appropriate to account for site-
specific conditions and make that determination publicly available
together with an explanation of the basis for the decision. The
Regional Administrator may also determine that the Federal SSAC is not
appropriate and make that determination publicly available together
with an explanation of the basis for the decision.
To successfully develop a Federal SSAC for a given lake, stream, or
spring, a thorough analysis is necessary that indicates how designated
uses are being supported both in the waterbody itself and in downstream
water bodies at concentrations of either TN, TP, chlorophyll a, or
nitrate+nitrite that are either higher or lower than the Federally-
promulgated applicable criteria. This analysis should have supporting
documentation that consists of examining both indicators of longer-term
response to multiple stressors, such as benthic macroinvertebrate
health as determined by Florida's Stream Condition Index (SCI), and
indicators of shorter-term response specific to nitrogen/phosphorus
pollution, such as periphyton algal thickness or water column
chlorophyll a concentrations. To pursue a Federal SSAC on a watershed-
wide basis, the same types of procedures that EPA used to develop the
Federally promulgated applicable criteria can be used with further
refinements to the categorization of water bodies. For example, an
entity could derive alternative instream protective TP and/or TN values
using
[[Page 75791]]
EPA's approach by further sub-delineating the Nutrient Watershed
Regions and providing the corresponding data, analysis and
documentation to support derivation of an alternative criteria that is
protective of the designated use that applies both to the smaller
watershed regions as well as to downstream waters. This type of refined
reference condition approach is described in EPA guidance manuals \167\
and would be consistent with methods used to develop the Federally-
promulgated criteria for Florida. In developing either a site-specific
or watershed-wide Federal SSAC, it is necessary to ensure that values
allowed in an upstream segment as a result of a SSAC provide for the
attainment and maintenance of the WQS of downstream waters. It will be
important to examine a stream system on a broader basis to ensure that
a SSAC established for one segment does not result in adverse effects
in nearby segments or downstream waters, such as a downstream lake.
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\167\ USEPA. 2000b. Nutrient Criteria Technical Guidance Manual:
Rivers and Streams. EPA-822-B-00-002. U.S. Environmental Protection
Agency, Office of Water, Washington, DC.
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This rule specifically identifies four approaches for developing
SSAC. The first two approaches are replicating the approaches EPA used
to develop stream and lake criteria, respectively, and applying these
methods to a smaller subset of waters. The third approach for
developing SSAC is to conduct a biological, chemical, and physical
assessment of waterbody conditions. The fourth approach for developing
SSAC is a general provision for using another scientifically defensible
approach that is protective of the designated use. The first two
approaches for developing SSAC replicate EPA's methods in deriving the
stream and lake criteria set out in this final rule. To understand the
necessary steps in this analysis, interested parties should refer to
the complete documentation of these methods in the materials included
in the rule docket.
The third approach for developing SSAC is to conduct a biological,
chemical, and physical assessment of waterbody conditions. This is a
more general approach than the replication approaches and would need
additional detail and description of supporting rationale in the
documentation submitted to EPA. The components of this approach could
include, but not be limited to, evaluation of benthic macroinvertebrate
health using the Stream Condition Index (SCI), presence or absence of
native flora and fauna, chlorophyll a concentrations or periphyton
density, average daily dissolved oxygen fluctuation, organic versus
inorganic components of total nitrogen, habitat assessment, and
hydrologic disturbance. This approach could apply to any waterbody
type, with specific components of analysis tailored for the situation.
The fourth approach for developing SSAC is a general provision for
using another scientifically defensible approach that is protective of
the designated use. This provision allows applicants to make a complete
demonstration to EPA using methods not otherwise described in the rule
or its statement of basis, consistent with 40 CFR 131.11(b)(1)(iii).
This approach could potentially include use of mechanistic models or
other data and information.
(2) Background and Analysis
A SSAC is an alternative value to criteria set forth in this final
rule that would be applied on a watershed, area-wide, or water-body
specific basis that meets the regulatory test of protecting the
instream designated use, having a basis in sound science, and ensuring
the protection and maintenance of downstream WQS. SSAC may be more or
less stringent than the otherwise applicable Federal numeric criteria.
In either case, because the SSAC must protect the same designated use
and must be based on sound science (i.e., meet the requirements of 40
CFR 131.11(a)), there is no need to modify the designated use or
conduct a UAA. A SSAC may be appropriate when further scientific data
and analyses can bring added precision or accuracy to express the
necessary level or concentration of chlorophyll a, TN, TP, and/or
nitrate+nitrite that protects the designated use for a particular
waterbody.
(3) Summary of Major Comments
Many commenters expressed support for the concept of EPA's proposed
SSAC procedure, although many also expressed concerns about the
viability, requirements, expense, and time associated with the process.
In EPA's proposed rule, the SSAC process was to be initiated by the
State submitting a request to EPA. Many commenters were confused about
the relationship between the Federal SSAC process and the State's Type
1 and Type 2 SSAC processes, and how the processes relate for purposes
of the Federal rule. The Federal SSAC process is separate and
independent from the State SSAC processes. A Federal SSAC is
established by the Regional Administrator of EPA Region 4 after due
notice and comment from the public. To resolve this confusion, and to
provide a more direct means for entities other than the State to
initiate the SSAC process, EPA's final rule provides that any entity
may submit a request for a SSAC directly to the Regional Administrator.
The final rule adds a requirement that entities submit proposed SSAC
and supporting materials to the State at the same time those materials
are submitted to EPA to ensure the State has the opportunity to submit
comments to EPA.
As several commenters have pointed out, Florida WQS regulations
currently do not authorize the State to adopt a SSAC as State WQS
except where natural conditions are outside the limits of broadly
applicable criteria established by the State (Section 62-302.800,
F.A.C.). However, the State may choose to be the entity that submits a
SSAC request to EPA under the Federal process described above and set
forth at 40 CFR 131.43(e). There is no requirement that the State go
through its own State-level Type 1 or Type 2 SSAC process before
submitting a proposed SSAC to EPA for consideration under this rule.
Commenters included suggestions for specific approaches for
developing SSAC as well as an ``expedited'' process for determination
as a Federal SSAC. EPA agrees that many of the suggested approaches
have merit for purposes of developing SSAC, and has adapted many of the
suggestions to provide more information on approaches that would meet
the general requirements for protective criteria. Many of the comments
regarding an ``expedited'' process suggested a process where SSAC
become effective automatically, without need for EPA review and
approval. With the exception of State adjustment of lake criteria
within a very specific and limited range accompanied by a specified
data set and calculation as discussed in Section III.C(2)(e) above, the
Agency does not agree with the view that criteria established in this
rule can be revised without documentation and public notice and comment
process as outlined above.\168\ Another commenter asked about the
potential to develop a SSAC on a ``watershed-scale.'' EPA does not see
any barrier to conducting such an analysis, where it can be
demonstrated that the watershed-scale SSAC is protective for all waters
in a particular grouping and meets the requirements of 40 CFR 131.11
and 40
[[Page 75792]]
CFR 131.10(b). Many commenters expressed the desire to defer the
applicability of promulgated criteria prior to developing a SSAC. The
Federal SSAC portion of the rule, Sec. 131.43(e), goes into effect 60
days after publication of this rule to allow this important work to
proceed in advance of the effective date of 15 months after publication
for the remaining provisions of the rule. The SSAC review process will
depend in substantial part on the nature of the SSAC proposal itself:
Its clarity, substance, documentation, and scientific rigor. Some
commenters stated that EPA's requirement that Federal SSAC be
scientifically defensible and protective of designated uses is too
vague; however, it is the same requirement for criteria in the Federal
WQS regulation. (See 40 CFR 131.11). EPA will consider the need for
further developing supporting technical guidance in the future if it
appears at that time that such guidance would help support the process.
---------------------------------------------------------------------------
\168\ EPA's criteria allow for one-time site-specific
modifications to the promulgated lake criteria, without requiring
those modifications to be submitted as SSAC. See 40 CFR
131.43(c)(1)(ii) and Section III.C(2)(e).
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D. Compliance Schedules
(1) Final Rule
Florida has adopted a regulation authorizing compliance schedules.
That regulation, Subsection 62-620.620(6), F.A.C., is not affected by
this final rule. The complete text of the Florida rules concerning
compliance schedules is available at https://www.flrules.org/gateway/RuleNo.asp?ID=62-620.620. Florida is, therefore, authorized to grant
compliance schedules, as appropriate, under its rule for WQBELs based
on EPA's numeric criteria.
(2) Background and Analysis
A compliance schedule, or schedule of compliance, refers to ``a
schedule of remedial measures included in a `permit,' including an
enforceable sequence of interim requirements * * * leading to
compliance with the CWA and regulations.'' (See 40 CFR 122.2, CWA
section 502(17)). In an NPDES permit, WQBELs are effluent limits based
on applicable WQS for a given pollutant in a specific receiving water
(See NPDES Permit Writers Manual, EPA-833-B-96-003, December, 1996).
EPA regulations provide that schedules of compliance may only be
included in permits if they are determined to be ``appropriate'' given
the circumstances of the discharge and are to require compliance ``as
soon as possible'' (See 40 CFR 122.47).\169\
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\169\ Hanlon, Jim, USEPA Office of Wastewater Management. 2007,
May 10. Memorandum to Alexis Stauss, Director of Water Division EPA
Region 9, on ``Compliance Schedules for Water Quality-Based Effluent
Limitations on NPDES Permits.''
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(3) Summary of Major Comments
EPA generally received favorable comment on its description of
compliance schedules. Some commenters asked EPA to consider
promulgating its own compliance schedule provisions as part of the
final rule. Florida's regulations, however, already include an
authorizing provision that allows NPDES permit writers to include
compliance schedules in permits, where appropriate. Florida's
regulations do not limit the criteria which may be subject to
compliance schedules. Therefore, Florida may choose to issue permit
compliance schedules for nitrogen/phosphorus pollution, as appropriate.
As a result, there is no need for EPA to provide an additional
compliance schedule authorizing provision in this final rule. EPA
disagrees with commenters who assert that Florida's regulation at
Subsection 62-620.620(6), F.A.C., authorizing compliance schedules
applies only to industrial and domestic wastewater facilities. Chapter
62-620, F.A.C., sets out permit procedures for wastewater facilities or
activities that discharge wastes into waters of the State or which will
reasonably be expected to be a source of water pollution. (See
Subsection 62-620.100(1), F.A.C.). Subsection 62-620.620(6), F.A.C.,
applies, therefore, more broadly than to just industrial and domestic
wastewater facilities. In addition, Chapter 62-4, F.A.C., which sets
out procedures on how to obtain a permit from FDEP, provides that
permits may include a reasonable time for compliance with new or
revised WQS. Subsection 62-4.160(10), F.A.C., does not limit the type
of permits that may include such compliance schedules.
E. Proposed Restoration Water Quality Standard
(1) Final Rule
In EPA's January 2010 proposal, the Agency proposed a new WQS
regulatory tool for Florida, referred to as ``restoration WQS'' for
impaired waters. This provision was intended to allow Florida to retain
full aquatic life protection (uses and criteria) for its water bodies
while establishing a transparent phased WQS process that would result
in implementation of enforceable measures and requirements to improve
water quality over a specified time period to ultimately meet the long-
term designated aquatic life use. For reasons discussed below and in
EPA's response to comment document, EPA has decided not to promulgate a
restoration WQS tool specifically for Florida, as proposed.
(2) Summary of Major Comments
EPA received a significant number of comments on its proposal that
provided constructive and useful information for EPA to consider
regarding the proposed restoration WQS provision. Such comments ranged
from identifying additional needed requirements to concerns that the
restoration WQS tool was so burdensome it would not be helpful. EPA
evaluated the current, existing flexibility available to Florida to
implement this final rule through variances, compliance schedules,
permit reissuance cycles, permit reopener provisions, TMDL scheduling,
and workload and administrative prioritization. These are all
considerations that FDEP presently brings to the administration of its
water quality program. EPA also considered the flexibility that this
final rule offers through lake criteria adjustment provisions,
alternative approaches to deriving downstream lake protection values
and the SSAC process discussed above. The Agency concluded that the
range of implementation tools available to the State in combination
with a number of the provisions contained in this final rule provide
adequate flexibility to implement EPA's numeric criteria finalized in
this rule. Florida may use any of these existing tools or exercise its
authority to propose additional tools in the future that allow
implementation flexibility where demonstrated to be appropriate and
consistent with the CWA and implementing regulations. Therefore, EPA
believes that its decision not to finalize restoration WQS will not
adversely affect Florida's ability to implement the Federal numeric
criteria.
VI. Economic Analysis
State implementation of this rule may result in new or revised
National Pollutant Discharge Elimination System (NPDES) permit
conditions for point source dischargers, and requirements for nitrogen/
phosphorus pollution treatment controls on other sources (e.g.,
agriculture, urban runoff, and/or septic systems) through the
development of additional Total Maximum Daily Loads (TMDLs) and Basin
Management Action Plans (BMAPs). To provide information on the
potential incremental costs associated with these related State
actions, EPA conducted an analysis to estimate both the additional
impaired waters that may be identified as a result of this final rule
and the potential State of Florida requirements that may be
[[Page 75793]]
necessary to assure attainment of applicable State water quality
designated uses. EPA's analysis is fully described in the document
entitled: ``Economic Analysis of Final Water Quality Standards for
Nutrients for Lakes and Flowing Waters in Florida,'' which can be found
in the docket and record for this final rule.
An economic analysis of a regulation compares a likely scenario
absent the regulation (the baseline) to a likely scenario with the
regulation. The impacts of the regulation are measured by the resulting
differences between these two scenarios (incremental impacts). However,
the regulatory effect of this final rule can be interpreted in several
ways, which can significantly influence the conditions considered
appropriate for representing the baseline. On January 14, 2009 EPA made
a determination that numeric nutrient water quality criteria were
necessary to meet the requirements of the CWA in the State of Florida.
In July 2009 the State of Florida released draft numeric nutrient
criteria for lakes and streams.\170\ Therefore, when the Agency
proposed this rule for lakes and flowing waters in January 2010, EPA
evaluated the incremental impacts of the proposed rule in comparison
with the provisions of the Florida July 2009 draft criteria. Although
the State subsequently did not proceed forward with those numeric
criteria provisions, EPA has conducted the same evaluation as part of
the economic analysis accompanying this final rule to illustrate the
difference between Florida's draft approach and the provisions of this
rule. Using this same baseline approach and the refined analysis
methodology described below, EPA estimates the potential incremental
costs associated with this rule as ranging between $16.4 million/year
and $25.3 million/year.
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\170\ Florida Department of Environmental Protection, 2009,
``Draft Technical Support Document: Development of Numeric Nutrient
Criteria for Florida Lakes and Streams,'' available electronically
at: http://www.dep.state.fl.us/water/wqssp/nutrients/docs/tsd_nutrient_crit.docx.
---------------------------------------------------------------------------
An alternative interpretation of the impact of this final rule is
that EPA is promulgating numeric criteria to address deficiencies in
the State of Florida's current narrative nutrient criteria (current
conditions approach), and the incremental impacts of this rule are
those associated with the difference between EPA's numeric criteria and
Florida's narrative criteria. Under this scenario, the baseline
incorporates requirements associated with current water quality,
impaired waters, and TMDLs that exist at the time of the analysis. The
incremental impacts of this rule are the costs and benefits associated
with additional pollution controls beyond those currently in place or
required as a result of Florida's existing narrative criteria. This
analysis is principally designed to gain an understanding of the
potential costs and benefits associated with implementation of EPA's
numeric criteria for lakes and flowing waters above and beyond the
costs associated with State implementation of its current narrative
nutrient criteria for those waters. For waters that the State of
Florida has already identified as impaired, EPA expects that the effect
of this final rule will be to shorten the time and reduce the resources
necessary for the State of Florida to implement its existing regulatory
and nonregulatory framework of tools, limits, measures and BMP guidance
to initiate a broader, expedited, more comprehensive, and more
effective approach to reducing nutrient loadings necessary to meet the
numeric criteria that support current State designated uses. The
further effect of this final rule will likely be the assessment and
identification of additional waters that are impaired and not meeting
the designated use set forth at Section I.B, and new or revised water
quality-based effluent limits in NPDES permits. EPA's economic analysis
quantifies the costs and cost savings associated with the
identification of newly impaired waters and new or revised water
quality-based effluent limits, but does not attempt to measure the
costs and cost savings associated with addressing waters that are
currently listed as impaired under Florida's existing narrative
nutrient criteria (these costs are considered part of the baseline).
Although using the State of Florida's draft numeric criteria as a
baseline provides one possible measure of the incremental impact
associated with this final rule, the current conditions approach can
provide valuable information to the State of Florida and the public
about other potential costs and benefits that may be realized as a
result of this final rule. To provide this additional information, and
in part to respond to public comments on the economic analysis at
proposal, this economic analysis also measures the incremental costs
and benefits of this final rule using current conditions in the State
of Florida as the baseline. Using this interpretation of the baseline,
EPA estimates the potential incremental costs associated with this
final rule as ranging between $135.5 million per year and $206.1
million per year. Although analyses using both baselines are described
in EPA's economic analysis document entitled: ``Economic Analysis of
Final Water Quality Standards for Nutrients for Lakes and Flowing
Waters in Florida,'' the analytical methods and results described below
highlight the current conditions baseline in detail.
To develop this analysis, EPA first assessed State control
requirements associated with current water quality, impaired waters,
and total maximum daily loads (the baseline). EPA then assessed the
costs and benefits associated with additional pollution controls beyond
those currently in place or required to meet EPA's numeric criteria
that support Florida designated uses. To estimate incremental point
source costs, EPA gathered publicly available information and data on
control technologies currently in place at wastewater treatment plants
and other industrial facilities, and used Florida Department of
Environmental Protection (FDEP) point source implementation procedures
to project the potential additional treatment that the State may
require as a result of applying the criteria in this final rule. EPA
assessed potential non-point source control costs by using publicly
available information and data to determine land uses near waters that
would likely be identified as impaired under this rule, and using FDEP
and the Florida Department of Agriculture and Consumer Services (FDACS)
nonpoint source control procedures, estimated costs to implement
agricultural best management practices (BMPs) the State may require in
order to attain the new numeric criteria. EPA also estimated the
potential costs of additional State control requirements for storm
water runoff, and potential costs associated with upgrades of homeowner
septic systems. EPA also assessed additional potential government
regulatory costs of developing additional total maximum daily loads
(TMDLs) for waters identified as impaired under this rule. Finally, EPA
qualitatively and quantitatively described and estimated some of the
potential benefits of complying with the new water quality standards.
Because of the inherent uncertainties associated with the benefits
analysis, potential benefits are likely underestimated compared to
costs. Although it is difficult to predict with certainty how the State
of Florida will implement these new water quality standards, the
results of these analyses represent EPA's estimates of costs and
benefits of this final rule.
A. Point Source Costs
Point sources of wastewater must have a National Pollution
Discharge
[[Page 75794]]
Elimination System (NPDES) permit to discharge into surface waters. EPA
identified point sources potentially discharging nitrogen or phosphorus
to lakes and flowing waters by evaluating EPA's NPDES Permit Compliance
System (PCS) database. EPA identified all the industry codes associated
with any permitted discharger with an existing numeric effluent limit
or monitoring requirement for nitrogen or phosphorus. This analysis
identified 193 point sources as having the potential to discharge
nitrogen and/or phosphorus. The following table summarizes the number
of point sources with the potential to discharge nitrogen and/or
phosphorus.
Table VI(A)--Point-Sources Potentially Discharging Nitrogen and/or Phosphorus to Florida Lakes and Flowing
Waters
----------------------------------------------------------------------------------------------------------------
Major Minor
Discharger category dischargers \a\ dischargers \b\ Total
----------------------------------------------------------------------------------------------------------------
Municipal Wastewater...................................... 43 42 85
Industrial Wastewater..................................... 57 51 108
-----------------------------------------------------
Total................................................. 100 93 193
----------------------------------------------------------------------------------------------------------------
\a\ Facilities discharging greater than one million gallons per day and likely to discharge toxic pollutants in
toxic amounts.
\b\ Facilities discharging less than one million gallons per day and not likely to discharge toxic pollutants in
toxic amounts.
1. Municipal Waste Water Treatment Plant (WWTP) Costs
EPA considered the costs of known nitrogen and phosphorus treatment
options for municipal WWTPs. Nitrogen and phosphorus removal
technologies that are available can reliably attain an annual average
total nitrogen (TN) concentration of approximately 3.0 mg/L or less and
an annual average total phosphorus (TP) concentration of approximately
0.1 mg/L or less.\171\ Wastewater treatment to these concentrations was
considered target levels for the purpose of this analysis.
---------------------------------------------------------------------------
\171\ U.S. EPA, 2008, ``Municipal Nutrient Removal Technologies
Reference Document. Volume 1--Technical Report,'' EPA 832-R-08-006.
---------------------------------------------------------------------------
The NPDES permitting authority determines the need for water
quality based effluent limits for point sources on the basis of
analysis of reasonable potential to exceed water quality criteria. To
estimate the potential incremental costs for WWTPs, the likelihood that
WWTPs discharging to Florida lakes and flowing waters have reasonable
potential to exceed the numeric criteria in this final rule should be
evaluated. However, the site-specific data and information required to
precisely determine reasonable potential for each facility was not
available. Thus, on the basis that most WWTPs are likely to discharge
nitrogen and phosphorus at concentrations above applicable criteria,
EPA made the conservative assumption that all WWTPs have reasonable
potential to exceed the numeric criteria.
For municipal wastewater, EPA estimated costs to reduce effluent
concentrations to 3 mg/L or less for TN and 0.1 mg/L or less for TP
using advanced biological nutrient removal (BNR). Although reverse
osmosis and other treatment technologies may have the potential to
reduce nitrogen and phosphorus concentrations even further, EPA
believes that implementation of reverse osmosis applied on such a large
scale has not been demonstrated as practical or necessary.\172\ Such
treatment has not been required for WWTPs by the State of Florida in
the past, even those WWTPs under TMDLs with nutrient targets comparable
to the criteria in this final rule. EPA believes that should state-of-
the-art BNR technology together with other readily available physical
and chemical treatment demonstrated to be effective in municipal WWTP
operations not result in compliance with permit limits associated with
meeting the new numeric nutrient criteria, then it is reasonable to
assume that entities would first seek out other available means of
attaining water quality standards such as reuse, nonpoint source
reductions, site-specific alternative criteria, variances, and
designated use modifications.
---------------------------------------------------------------------------
\172\ Treatment using reverse osmosis also requires substantial
amounts of energy and creates disposal issues as a result of the
large volume of concentrate that is generated.
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To estimate compliance costs for WWTPs, EPA identified current WWTP
treatment performance using information obtained from NPDES permits
and/or water quality monitoring reports. EPA assumed that WWTPs under
existing TMDLs are currently meeting their wasteload allocation
requirements and would not incur additional treatment costs. EPA
further assumed that costs to WWTPs discharging to currently impaired
waters are not attributable to this final rule because those costs
would be incurred absent the rule (under the baseline). However,
sufficient location information was not available to insure that all
WWTPs discharging to impaired waters were identified. Thus, costs may
be overstated to the extent that some WWTPs discharging to currently
impaired waters are included in EPA's estimate. The following table
summarizes EPA's best estimate of the number of potentially affected
municipal WWTPs that may require additional treatment to meet the
numeric criteria supporting State designated uses.
Table VI(A)(1)(a)--Potential Additional Nutrient Controls for Municipal Wastewater Treatment Plants
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of dischargers
-----------------------------------------------------------------------------------------
Discharge type Additional Additional Additional No incremental
reduction in TN reduction in TN reduction in TP controls needed Total
and TP \a\ only \b\ only \c\ \d\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Major......................................................... 11 2 9 21 43
Minor......................................................... 19 1 3 19 42
-----------------------------------------------------------------------------------------
[[Page 75795]]
Total..................................................... 30 3 12 40 85
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes dischargers without treatment processes capable of achieving the target levels or existing WLA for TN and TP, or for which the treatment
train description is missing or unclear.
\b\ Includes dischargers with chemical precipitation only and those with a wasteload allocations under a TMDL for TP only.
\c\ Includes dischargers with MLE, four-stage Bardenpho, and BNR specified to achieve less than 3 mg/L and those with WLA under a TMDL for TN only.
\d\ Includes dischargers with A\2\ /O, modified Bardenpho, modified UCT, oxidation ditches, or other BNR coupled with chemical precipitation and those
with WLAs under a TMDL for both TN and TP.
An EPA study provides unit cost estimates for biological nutrient
removal controls for various TN and TP performance levels.\173\ To
estimate costs for WWTPs, EPA used the average capital and average
operation and maintenance (O&M) unit costs for technologies that
achieve an annual average of 3 mg/L or less for TN and/or 0.1 mg/L or
less for TP. EPA also estimated a maximum cost for TN and TP reduction
by using the highest cost TN and TP removal technology (estimated by
finding the maximum of annualized costs for each technology option).
Using average and maximum unit costs and multiplying unit costs by flow
reported in EPA's PCS database, EPA estimated total capital costs could
be approximately $108 million to $219 million and operation and
maintenance (O&M) costs could be approximately $12 million per year to
$18 million per year. Total annual costs would be approximately $22.3
million per year to $38.1 million per year (capital costs annualized at
7% over 20 years). The following table summarizes estimated costs for
municipal WWTPs.
---------------------------------------------------------------------------
\173\ U.S. EPA, 2008.
Table VI(A)(1)(b)--Potential Incremental Costs for Municipal Waste Water Treatment Plants
----------------------------------------------------------------------------------------------------------------
O&M costs Annual costs
Cost component Capital costs (millions per (millions per
(millions) \a\ year) year)
----------------------------------------------------------------------------------------------------------------
Advanced BNR............................................ $108-$219 $12-$18 $22.3-$38.1
----------------------------------------------------------------------------------------------------------------
\a\ Low estimate represents average of unit costs; high estimate represents costs for treatment processes that
results in the highest annualized costs (annualized capital at 7% over 20 years plus O&M).
Using Florida's 2009 draft criteria as the baseline, municipal WWTP
costs associated with this final rule are zero because treatment
technologies needed to achieve Florida's 2009 draft criteria are the
same as those needed to achieve the criteria in this final rule, even
though the criteria themselves are somewhat different.
After EPA published its proposed criteria for Florida (75 FR 4173),
several organizations in Florida developed alternative estimates of
compliance costs for WWTPs that were substantially higher than EPA's
estimated costs. EPA disagrees with these cost estimates because they
included costs for nutrient controls that are beyond what would be
required by Florida to meet the new numeric criteria. For example, the
Florida Water Environment Association Utility Council (FWEAUC)
estimated annual costs for WWTPs would be approximately $2.0 billion
per year to $4.4 billion per year.\174\ However, FWEAUC included in
their analysis facilities that discharge to estuaries or coastal
waters, and facilities that utilize deep well injection or generate
reuse water which are not covered by this rule. FWEAUC also estimated
costs to upgrade WWTPs regardless of the treatment that already exists
at the facilities. Finally, FWEAUC assumed that all WWTPs will require
expensive microfiltration and reverse osmosis control technology to
comply with the new standard. EPA is not aware of any WWTPs in Florida
that utilize microfiltration or reverse osmosis, even those discharging
to currently impaired waters with TMDLs that have nutrient targets
comparable to the criteria in this final rule. Thus, as noted above,
EPA does not believe that this type of treatment technology for WWTPs
in Florida has been demonstrated as practical or necessary. These
differences appear to explain the discrepancy between FWEAUC and EPA
estimates.
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\174\ Florida Water Environment Association Utility Council,
2009, ``Numeric Nutrient Criteria Cost Implications for Florida
POTWs,'' available electronically at: http://www.fweauc.org/PDFs/FWEAUC%20letter%20to%20Crist%20re%20NNC%20Cost%20Implications%20for%20Fla%20POTWs%20with%20attachment.pdf.
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2. Industrial Point Source Costs
Incremental costs for industrial dischargers are likely to be
facility-specific and depend on process operations, existing treatment
trains, and composition of waste streams. EPA previously estimated that
108 industrial dischargers may potentially be affected by this rule
(Table VI(A)). Of those 108 dischargers, EPA identified 38 of them as
under an existing TMDL for nitrogen and/or phosphorus and 14 of them as
discharging to waters listed as impaired for nutrients and/or dissolved
oxygen. As with WWTPs, EPA assumed that industrial dischargers under an
existing TMDL are currently meeting their wasteload allocation
requirements and would not incur additional treatment costs, and costs
at facilities discharging to currently impaired waters are not
attributable to this final rule because those costs would be incurred
absent the rule (under the baseline). To estimate the potential costs
to the remaining 56 potentially affected
[[Page 75796]]
industrial facilities, EPA took a random sample of those facilities
from each industry. EPA then analyzed their effluent data obtained from
EPA's PCS database and other information in NPDES permits to determine
whether or not they have reasonable potential to cause or contribute to
an exceedance of the numeric nutrient criteria in this final rule. For
those facilities with reasonable potential, EPA further analyzed their
effluent data and estimated potential revised water quality based
effluent limits (WQBEL) for TN and TP. If the data indicated that the
facility would not be in compliance with the revised WQBEL, EPA
estimated the additional nutrient controls those facilities would
likely implement to allow receiving waters to meet State designated
uses and the costs of those controls. EPA then calculated the average
flow-based cost of compliance for the sampled facilities in each
industrial category, and used the average cost to extrapolate to the
potential cost for the total flow associated with all facilities in
each category (see economic analysis support document for more
information). Using this method, EPA estimated the potential costs for
industrial dischargers could be approximately $25.4 million per year.
Table VI(A)(2)--Potential Incremental Costs for Industrial Dischargers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Average sample
Industrial category Total number of facilities cost ($/mgd/yr) Total annual
facilities sampled \a\ costs \b\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chemicals and Allied Products................................. 9 2 $14,100 $1,116,800 ................
Electric Services............................................. 9 2 0 ................ $0
Food.......................................................... 7 2 123,300 ................ 1,390,000
Mining........................................................ 10 2 160,600 16,442,300 ................
Other......................................................... 17 3 0 0 ................
Pulp and Paper................................................ 4 1 117,300 6,466,800 ................
-----------------------------------------------------------------------------------------
Total..................................................... 56 12 ................ 25,415,900 ................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Calculated by dividing total annual sample discharger costs by total sample discharger flow. Note that where flow for a sample discharger is not
available, EPA used the average flow for dischargers in that category and discharger type (major or minor).
\b\ Represents average sample discharger unit cost multiplied by total flow of dischargers affected by the rule in each industrial category.
Using Florida's 2009 draft criteria as the baseline, industrial
discharger costs associated with this final rule is zero because
treatment technologies needed to achieve the Florida's 2009 draft
criteria are the same as those needed to achieve the criteria in this
final rule, even though the criteria themselves are somewhat different.
Several organizations in Florida developed alternative estimates of
compliance costs for EPA's proposed rule that were substantially higher
than EPA's estimated costs for industrial dischargers. EPA disagrees
with these cost estimates because they assumed that facilities will
need to install treatment technologies that are much more expensive
than those that would likely be required by Florida to meet the numeric
criteria. For example, FDEP estimated that the costs for industrial
dischargers would be approximately $2.1 billion per year.\175\ However,
FDEP assumed that every industrial facility would treat their total
discharge volume using reverse osmosis which EPA believes is
impractical and unnecessary. In addition, FDEP estimated costs for
reverse osmosis on the basis of each facility's maximum daily discharge
flow instead of its reported design capacity (in some cases the maximum
daily flow was more than double the design capacity). Installing
treatment technology to handle maximum daily flows would be unnecessary
because equalization basins or storage tanks (used to temporarily hold
effluent during peak flows) would be a less expensive compliance
strategy. Finally, EPA found no indication that industrial facilities
in Florida have installed reverse osmosis for the purpose of complying
with a nutrient-related TMDL, even those TMDLs with nutrient targets
comparable to the criteria in this final rule. These differences appear
to explain the discrepancy between FDEP and EPA estimates.
---------------------------------------------------------------------------
\175\ Florida Department of Environmental Protection, 2010,
``FDEP Review of EPA's `Preliminary Estimate of Potential Compliance
Costs and Benefits Associated with EPA's Proposed Numeric Nutrient
Criteria for Florida','' p. 3.
---------------------------------------------------------------------------
B. Incrementally Impaired Waters
To estimate nonpoint source incremental costs associated with State
control requirements that may be necessary to assure attainment of
designated uses, EPA first removed from further consideration any
waters the State of Florida has already determined to be impaired or
has established a TMDL and/or BMAP because these waters were considered
part of the baseline for this analysis. EPA next identified Florida
waters that may be identified as incrementally impaired using the
criteria of this final rule, and then identified the watersheds
surrounding those incrementally impaired waters. EPA analyzed FDEP's
database of ambient water quality monitoring data and compared
monitoring data for each waterbody with EPA's new criteria for TN and
TP in lakes and flowing waters, and nitrate+nitrite concentrations in
springs. To account for streams that may have downstream protection
values (DPVs) as applicable criteria, streams intersecting lakes were
assigned the applicable lake criteria. Costs may be overestimated
because the method does not distinguish between upstream and downstream
intersecting streams. Thus DPVs and additional controls may have been
attributed to streams downstream of an impaired lake. EPA compiled the
most recent five years of monitoring data, calculated the annual
geometric mean for each waterbody identified by a waterbody
identification number (WBID), and identified waters as incrementally
impaired if they exceeded the applicable criteria in this final rule.
[[Page 75797]]
Table VI(B)--Summary of Potential Incrementally Impaired Waters
----------------------------------------------------------------------------------------------------------------
Number of water bodies
Category ------------------------------------------------------ Total
Lake Stream \a\ Spring
----------------------------------------------------------------------------------------------------------------
Total in State.......................... 1,310 3,901 126 5,337
Not Listed/Covered by TMDL \b\.......... 1,099 3,608 119 4,826
Water Quality Monitoring Data for 878 1,273 72 2,223
Nutrients \c\..........................
Sufficient Data Available \d\........... 655 930 72 1,657
Potentially Exceeding Criteria 148 153 24 325
(incrementally impaired) \e\...........
----------------------------------------------------------------------------------------------------------------
\a\ Includes blackwater.
\b\ As reported in TMDL documents and FDEP.
\c\ Data within last 5 years meeting data quality requirements.
\d\ Annual geometric means based on at least 4 samples with one sample from May to September and one sample from
October to April in a given year.
\e\ Annual geometric mean exceeding the applicable criteria more than once in a three year period.
C. Non-Point Source Costs
To estimate the potential incremental costs associated with
controlling nitrogen/phosphorus pollution from non-point sources, EPA
identified land areas near incrementally impaired waters using GIS
analysis. EPA first identified all the 10-digit hydrologic units (HUCs)
in Florida that contain at least a de minimus area of an incrementally
impaired WBID (WBIDs were GIS polygons), and excluding those HUCs that
contain at least a de minimus area of a currently impaired WBID. EPA
then identified land uses using GIS analysis of data obtained from the
State of Florida.\176\
---------------------------------------------------------------------------
\176\ Florida Geological Data Library, 2009, ``GIS Data:
WBIDs,'' available electronically at: http://www.fgdl.org/download/index.html.
---------------------------------------------------------------------------
1. Costs for Urban Runoff
EPA's GIS analysis indicates that urban land (excluding land for
industrial uses covered under point sources) accounts for approximately
seven percent of the land near incrementally impaired waters. EPA's
analysis also indicates that urban runoff is already regulated on
approximately one half of this land under EPA's storm water program
requiring municipal storm sewer system (MS4) NPDES permits. Florida has
a total of 28 large (Phase I) permitted MS4s serving greater than
100,000 people and 131 small (Phase II) permitted MS4s serving less
than 100,000 people. MS4 permits generally do not have numeric nutrient
limits, but instead rely on implementation of BMPs to control
pollutants in storm water to the maximum extent practicable. Even those
MS4s in Florida discharging to impaired waters or under a TMDL
currently do not have numeric limits for any pollutant.
In addition to EPA's storm water program, several existing State
rules are intended to reduce pollution from urban runoff. Florida's
Urban Turf Fertilizer rule (administered by FDACS) requires a reduction
in the amount of nitrogen and phosphorus that can be applied to lawns
and recreational areas. Florida's 1982 storm water rule (Chapter 403 of
Florida statues) requires storm water from new development and
redevelopment to be treated prior to discharge through the
implementation of BMPs. The rule also requires that older systems be
managed as needed to restore or maintain the beneficial uses of waters,
and that water management districts establish and implement other storm
water pollutant load reduction goals. In addition, Chapter 62-40,
F.A.C., ``Water Resource Implementation Rule,'' establishes that storm
water design criteria adopted by FDEP and the water management
districts shall achieve at least 80% reduction of the average annual
load of pollutants that cause or contribute to violations of WQS (95%
reduction for outstanding natural resource waters). The rule also
states that the pollutant loading from older storm water management
systems shall be reduced as necessary to restore or maintain the
designated uses of waters.
Although urban runoff is currently regulated under the statutes and
rules described above, this final rule may indirectly result in changes
to MS4 NPDES permit requirements for urban runoff so that Florida
waters meet State designated uses. However, the combination of
additional pollution controls required will likely depend on the
specific nutrient reduction targets, the controls already in place, and
the relative amounts of nitrogen/phosphorus pollution contained in
urban runoff at each particular location. Because storm water programs
are usually implemented using an iterative approach, with the
installation of controls followed by monitoring and re-evaluation to
determine the need for additional controls, estimating the complete set
of pollution controls required to meet a particular water quality
target would require site-specific analysis.
Although it is difficult to predict the complete set of potential
additional storm water controls that may be required to meet the
numeric criteria that supports State designated uses in incrementally
impaired waters, EPA estimated potential costs for additional treatment
by assessing the amount of urban land that may require additional
pollution controls for storm water. FDEP has previously assumed that
all urban land developed after adoption of Florida's 1982 storm water
rule would be in compliance with this final rule.\177\ Using this same
assumption, EPA used GIS analysis of land use data obtained from the
State of Florida \178\ to identify the amount of remaining urban land
located near incrementally impaired waters. Using this procedure, EPA
estimated that up to 48,100 acres of Phase I MS4 urban land, 30,700
acres of Phase II MS4 urban land, and 30,600 acres of non-MS4 urban
land may require additional storm water controls. EPA estimated costs
of implementing controls for Phase I MS4 urban land based on a range of
acres with 48,100 acres as the upper bound and zero acres as the lower
bound because Phase I MS4 urban land already must implement controls to
the ``maximum extent practicable'' and may not require additional
controls if existing requirements are already fully implemented.
---------------------------------------------------------------------------
\177\ Florida Department of Environmental Protection, 2010,
``FDEP Review of EPA's `Preliminary Estimate of Potential Compliance
Costs and Benefits Associated with EPA's Proposed Numeric Nutrient
Criteria for Florida','' p. 9.
\178\ Florida Geological Data Library, 2009.
---------------------------------------------------------------------------
The cost of storm water pollution controls can vary widely. FDEP
has assessed the cost of completed storm water projects throughout the
State in dollars per acre treated.\179\ Capital costs
[[Page 75798]]
range from $62 to $60,300 per acre treated, with a median cost of
$6,800 per acre. EPA multiplied FDEP's median capital cost per acre by
the number of acres identified as requiring controls to estimate the
potential additional storm water control costs that may be needed to
meet the numeric criteria in this rule. EPA also used FDEP's estimate
of operating and maintenance (O&M) costs as 5% of capital costs, and
annualized capital costs using FDEP's discount rate of 7% over 20
years. EPA estimates the total annual cost for additional storm water
controls could range between approximately $60.5 and $108.0 million per
year. The following table summarizes these estimates.
---------------------------------------------------------------------------
\179\ Florida Department of Environmental Protection, 2010,
appendix 3.
Table VI(C)(1)--Potential Incremental Urban Storm Water Cost Scenarios
--------------------------------------------------------------------------------------------------------------------------------------------------------
Capital cost (millions $) Annual cost (millions $)
Land type Acres needing controls \a\ \b\ O&M cost (millions $) \c\ \d\
--------------------------------------------------------------------------------------------------------------------------------------------------------
MS4 Phase I Urban................... 0-48,100................... $0-$329.1.................. $0-$16.4................... $0-$47.5
MS4 Phase II Urban.................. 30,700..................... $210.0..................... $10.5...................... $30.3
Non-MS4 Urban....................... 30,600..................... $208.8..................... $10.4...................... $30.2
-------------------------------------------------------------------------------------------------------------------
Total........................... 61,300-109,400............. $418.8-$747.0.............. $20.9-$37.4................ $60.5-$108.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Phase I MS4s range represents implementation of BMPs to the MEP resulting in compliance with EPA's rule or controls needed on all pre-1982 developed
land; Phase II MS4s and urban land outside of MS4s represent controls needed on all pre-1982 developed land that is not low density residential.
\b\ Represents acres needing controls multiplied by median unit costs of storm water retrofit costs obtained from FDEP.
\c\ Represents 5% of capital costs.
\d\ Capital costs annualized at 7% over 20 years plus annual O&M costs.
Using Florida's 2009 draft criteria as the baseline, potential
incremental costs for urban storm water are estimated to range from
$13.7 million per year to $27.2 million per year.
Several organizations in Florida developed alternative estimates of
compliance costs for EPA's proposed rule that were substantially higher
than EPA's estimated costs for urban storm water. EPA disagrees with
these cost estimates because they utilized incorrect assumptions about
the areas that would have to implement controls. For example, FDEP
estimated costs for urban storm water controls at $1.97 billion per
year.\180\ However, FDEP estimated costs for pollution controls on
urban land in watersheds that may not be listed as impaired, have
already been listed as impaired, or will require controls under
existing rules (e.g. land currently permitted under EPA's MS4 storm
water program). In contrast, EPA estimated costs for urban storm water
controls only for urban land with storm water flows to waters that may
be listed as impaired as a result of this rule. This difference appears
to explain the discrepancy between FDEP and EPA estimates.
---------------------------------------------------------------------------
\180\ Florida Department of Environmental Protection, 2010, p.
3.
---------------------------------------------------------------------------
2. Agricultural Costs
EPA's GIS analysis of land use indicates that agriculture accounts
for about 19 percent of the land near incrementally impaired waters.
Agricultural runoff can be a source of phosphorus and nitrogen to lakes
and streams through the application of fertilizer to crops and pastures
and from animal wastes. Some agricultural practices may also contribute
nitrogen and phosphorus to groundwater aquifers that supply springs.
For waters impaired by nitrogen/phosphorus pollution, the 1999 Florida
Watershed Restoration Act established that agricultural BMPs should be
the primary instrument to implement TMDLs. Thus, additional waters
identified by the State as impaired under this rule may result in State
requirements or provisions to reduce the discharge of nitrogen and/or
phosphorus to incrementally impaired waters through the implementation
of BMPs.
EPA estimated the potential costs of additional agricultural BMPs
by evaluating land use data obtained from Florida's five water
management districts. BMP programs designed for each type of
agricultural operation and their costs were taken from a study of
agricultural BMPs to help meet TMDL targets in the Caloosahatchee
River, St. Lucie River, and Lake Okeechobee watersheds.\181\ Three
types of BMP programs were identified in this study. The first program,
called the ``Owner Implemented BMP Program,'' consists of a set of BMPs
that land owners might implement without additional incentives. The
second program, called the ``Typical BMP Program,'' is the set of BMPs
that land owners might implement under a reasonably funded cost share
program or a modest BMP strategy approach. The third program, called
the ``Alternative Program,'' is a more expensive program designed to
supplement the ``Owner Implemented Program'' and ``Typical Program'' if
additional reductions are necessary.
---------------------------------------------------------------------------
\181\ Soil and Water Engineering Technology, 2008, ``Nutrient
Loading Rates, Reduction Factors and Implementation Costs Associated
with BMPs and Technologies,'' (report prepared for South Florida
Water Management District).
---------------------------------------------------------------------------
The BMPs in the ``Owner Implemented Program'' and ``Typical
Program'' are similar to the BMPs adopted by FDACS. EPA has found no
indication that the ``Alternative BMP Program,'' which includes storm
water chemical treatment, has been required in historically nutrient
impaired watersheds with significant contributions from agriculture for
which TMDLs have been developed (e.g. Lake Okeechobee). Therefore, for
purposes of this analysis, EPA believes it is reasonable to assume that
nutrient controls for agricultural sources are best represented by the
``Owner Implemented Program'' and ''Typical Program'' described in the
study used here.\182\ EPA estimated potential incremental costs of BMPs
by multiplying the number of acres in each agricultural category by the
sum of unit costs for the ``Owner Implemented Program'' and ``Typical
Program.'' The following table summarizes the potential incremental
costs of BMPs on agricultural lands near incrementally impaired lakes
and streams for each agricultural category.
---------------------------------------------------------------------------
\182\ Soil and Water Engineering Technology, 2008.
[[Page 75799]]
Table VI(C)(2)(a)--Potential Incremental BMP Costs for Lakes and Streams
----------------------------------------------------------------------------------------------------------------
``Owner implemented
program'' plus ''typical Total ``owner implemented
Agricultural category Area (acres)\a\ program'' unit costs ($/ program'' and ''typical
ac/yr)\e\ program'' costs ($/yr)
----------------------------------------------------------------------------------------------------------------
Animal Feeding................ 1,814-1,846 18.56 33,671-34,260
Citrus........................ 15,482-27,343 156.80 2,427,652-4,287,343
Cow Calf Production (Improved 153,978-168,665 15.84 2,439,007-2,671,656
Pastures).
Cow Calf Production 49,054-51,057 4.22 207,203-215,663
(Unimproved Pastures).
Cow Calf Production (Rangeland 74,449-75,790 4.22 314,474-320,136
and Wooded).
Row Crop...................... 7,846-9,808 70.40 552,352-690,453
Cropland and Pastureland 152,976-160,814 27.26 4,169,512-4,383,135
(general). \b\.
Sod/Turf Grass................ 2,007 35.20 70,631
Ornamental Nursery............ 840 70.00 58,783
Dairies....................... 583-621 334.40 194,803-207,777
Horse Farms................... 1,632 15.84 25,857
Field Crop (Hayland) 194,181-215,168 18.56 3,603,996-3,993,521
Production.
Other Areas \c\............... 54,499-67,364 18.56 1,011,500-1,250,281
---------------------------------------------------------------------------------
Total \d\................. 709,340-782,954 ........................ 15,109,436-18,209,496
----------------------------------------------------------------------------------------------------------------
\a\ Based on GIS analysis of land use data from five water management districts (for entire State) and FDACS BMP
program NOI GIS data layer. Low end reflects acres in incrementally impaired HUCs (that are not included in
HUCs for baseline impairment) that are not enrolled in BMPs under FDACS; high end reflects all acres in
incrementally impaired HUCs, regardless of FDACS BMP enrollment.
\b\ ``Owner program'' and ``Typical Program'' BMP unit costs based on average costs for improved pastures,
unimproved/wooded pasture, row crops, and field crops.
\c\ Includes FLUCCS Level 3 codes 2160, 2200, 2230, 2400, 2410, 2500, 2540, and 2550.
\d\ Excludes land not in production.
\e\ Soil and Water Engineering Technology, 2008, Nutrient Loading Rates, Reduction Factors and Implementation
Costs Associated with BMPs and Technologies, Report prepared for South Florida Water Management District.
In addition to estimating potential costs associated with
agricultural BMPs to reduce nitrogen/phosphorus pollution to lakes and
streams as described above, EPA estimated potential costs associated
with BMPs to protect groundwater aquifers that supply water to springs.
Fertilizer application and other agricultural practices can
significantly increase nutrient loadings to springs, especially those
springs supplied by relatively large groundwater aquifers. EPA
evaluated the potential incremental costs to meet the numeric criteria
in this final rule for springs by assuming that all applicable
agricultural operations may be identified for implementation of
nutrient management. Nutrient management reduces over application of
fertilizers by determining realistic yield expectations, the nitrogen
requirements necessary to obtain those yields, and adjusting
application methods and timing to minimize nitrogen pollution.
Nutrient management is a cost-effective way to reduce groundwater
nitrogen, and may even result in cost savings to some farmers by
reducing unnecessary fertilizer application. Therefore, for the purpose
of this analysis, EPA assumed that all agricultural operations applying
fertilizer to land would implement a nutrient management program, even
those operations that are not associated with incrementally impaired
waters. To estimate the potential costs of nutrient management, EPA
estimated the amount of agricultural land where nutrient management
could be applicable. EPA identified general agriculture \183\ and
specialty crops \184\ as agricultural categories appropriate for
nutrient management. EPA then used GIS analysis of land use data
obtained from the State of Florida \185\ to identify the land areas
categorized as general agriculture or specialty crops. Approximately
4.9 million acres of agricultural land was identified as general
agriculture and 1 million acres was identified as specialty crops. EPA
further analyzed this agricultural land to identify the land near
waters already listed as impaired for nutrients or under a TMDL.
Similar to point sources, EPA assumed that nonpoint sources under an
existing TMDL are currently meeting their load allocation requirements
and would not incur additional costs, and costs to nonpoint sources
associated with waters that are currently listed as impaired for
nutrients are not attributable to this final rule because those costs
would be incurred absent the rule (under the baseline). EPA also
removed from this analysis land associated with incrementally impaired
waters to avoid double counting the costs of BMPs that were already
estimated to protect lakes and streams as described above. As a result
of this analysis, approximately 1 million acres of general agriculture
and 0.12 million acres of specialty crops was identified as land that
may need to implement a nutrient management program to meet the numeric
criteria for Florida springs in this final rule. Using unit costs of
$10 per acre for general agriculture and $20 per acre for specialty
crops obtained from Florida's Environmental Quality Incentive
Program,\186\ EPA estimated the annual cost of nutrient management
could be approximately $4.7 million per year. The following table
summarizes the estimated potential incremental costs of BMPs on
agricultural lands to protect State designated uses of springs on the
basis of the criteria in this final rule.
---------------------------------------------------------------------------
\183\ Cropland and pastureland, cow calf production (improved
pastures), cropland and pastureland (general), dairies, horse farms,
and field crop (hayland) production.
\184\ Citrus, row crops, sod/turf grass, and ornamental nursery.
\185\ Florida Geological Data Library, 2009.
\186\ Florida Environmental Quality Incentive Program, 2009,
``FY 2009 Statewide Payment Schedules,'' available electronically
at: ftp://ftp-fc.sc.egov.usda.gov/FL/eqip/EQIP_FY2009PaySched_STATEWIDE_FINAL.pdf.
[[Page 75800]]
Table VI(C)(2)(b)--Potential Incremental BMP Costs for Springs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acres identified
Nutrient management program type Total acres in for nutrient Unit cost ($/ Total cost Annual cost ($/
Florida \a\ management \b\ acre) year) \c\
--------------------------------------------------------------------------------------------------------------------------------------------------------
General Agriculture........................................... 4,885,643 1,003,973 $10 $10,039,729 $3,825,656
Specialty Crop................................................ 1,057,107 120,558 20 2,411,163 918,778
-----------------------------------------------------------------------------------------
Total..................................................... 5,942,750 1,124,531 ................ 12,450,892 4,744,433
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Excludes unimproved and woodland pastures, abandoned groves, aquaculture, tropical fish farms, open rural lands, and fallow cropland.
\b\ Calculated by subtracting agricultural land near incrementally impaired waters needing controls and agricultural land types participating in FDACS
BMP program (assuming all Tri-county agricultural area land is regular nutrient management land) from total land use area in Florida.
\c\ Costs annualized at 7% over 3 years on basis of 3 year useful life.
The following table summarizes the total estimated potential
incremental costs of BMPs on agricultural lands to meet the numeric
criteria.
Table VI(C)(2)(c)--Potential Annual Incremental Compliance Costs for Agriculture
----------------------------------------------------------------------------------------------------------------
Waterbody type Applicable acres Annual costs
----------------------------------------------------------------------------------------------------------------
Lakes and Streams................................... 709,340-782,954 $15,109,400-$18,209,500
Springs............................................. 1,124,531 $4,744,400
-----------------------------------------------------------
Total........................................... 1,833,871-1,907,485 $19,853,900-$22,953,900
----------------------------------------------------------------------------------------------------------------
Using Florida's 2009 draft criteria as the baseline, potential
incremental costs to agriculture are estimated to range from - $2.4
million per year (a negative cost represents a cost savings) to $2.1
million per year.
Several organizations in Florida developed alternative estimates of
compliance costs for EPA's proposed rule that were substantially higher
than EPA's estimated costs for agriculture. EPA disagrees with these
cost estimates because they use incorrect assumptions that overestimate
costs. For example, the FDACS estimated that costs for agriculture
would be approximately $0.9 billion to $1.6 billion per year.\187\
However, FDACS estimated BMP costs for all 13.6 million acres of
agricultural land in the State of Florida. This land includes
watersheds where waters are not expected to become listed as impaired
due to this final rule (including coastal and estuarine watersheds),
have already been listed as impaired, or will require controls under
existing rules (e.g. animal feeding operations) and thus are not
potentially affected by the rule. A portion of the agricultural land
used by FDACS to estimate costs includes 4.8 million acres of forest,
98.1% of which the State of Florida has claimed current BMPs
effectively protect surface waters \188\ and thus EPA assumes will not
require further controls. FDACS also estimated costs using the highest
cost Alternative BMP program. The Alternative BMP Program, which
includes storm water chemical treatment, is not yet required in
historically nutrient-impaired watersheds with significant
contributions from agriculture. Thus, it is uncertain whether such
controls would be necessary or required to meet the new numeric
criteria which are intended to implement Florida's existing narrative
criteria. In contrast, EPA estimated costs for BMPs that are likely to
be necessary, and only on the agricultural land identified as
incrementally impaired under this final rule (although costs could be
higher in some cases if further reductions are found to be necessary).
These differences appear to explain the discrepancy between FDACS and
EPA estimates.
---------------------------------------------------------------------------
\187\ Florida Department of Agriculture and Consumer Services,
2010, ``Consolidated Comments on Proposed EPA Numeric Nutrient
Criteria for Florida's Lakes and Flowing Waters,'' p. 1, available
electronically at: http://www.floridaagwaterpolicy.com/PDF/FINAL_FDACS_Consolidated_Comments_on_Docket_ID_No_EPA_HQ_OW_2009_0596.pdf.
\188\ Florida Division of Forestry, Department of Agriculture
and Consumer Services, 2010, ``Silviculture Best Management
Practices: 2009 Implementation Survey Report,'' available
electronically at: http://www.fl-dof.com/publications/2009_BMP_survey_report.pdf.
---------------------------------------------------------------------------
The alternative BMP program, which includes storm water chemical
treatment, is not yet required in the study basins which have
significant contributions from agriculture. Thus, for this analysis,
EPA assumed that nutrient controls for agricultural sources are best
represented by the owner/typical programs.
3. Septic System Costs
Some nutrient reductions from septic systems may be necessary for
incrementally impaired waters to meet the numeric nutrient criteria in
this final rule. Several nutrient-related TMDLs in Florida identify
septic systems as a significant source of nitrogen/phosphorus
pollution. Although properly operated and maintained systems can
provide treatment equivalent to secondary wastewater treatment,\189\
even properly functioning septic systems can be expected to contribute
to nitrogen/phosphorus pollution at some locations.\190\ Some of the
ways to address pollution from septic systems may include greater use
of inspection programs and repair of failing systems, upgrading
existing systems to advanced nutrient removal, installation of
decentralized cluster systems where responsible management entities
would ensure reliable operation and maintenance, and connecting
households and businesses to wastewater treatment plants. On the basis
of current practice in the State of
[[Page 75801]]
Florida, EPA assumed that the most likely strategy to reduce nutrients
loads from septic systems would be to upgrade existing conventional
septic systems to advanced nutrient removal systems.
---------------------------------------------------------------------------
\189\ Petrus, K., 2003, ``Total Maximum Daily Load for the
Palatlakaha River to Address Dissolved Oxygen Impairment, Lake
County, Florida,'' (Florida Department of Environmental Protection),
available electronically at: http://www.dep.state.fl.us/water/tmdl/docs/tmdls/final/gp1/palatlakaha_river_do_tmdl.pdf.
\190\ Florida Department of Environmental Protection, 2006,
``TMDL Report. Nutrient and Unionized Ammonia TMDLs for Lake Jesup,
WBIDs 2981 and 2981A,'' available electronically at: http://www.dep.state.fl.us/water/tmdl/docs/tmdls/final/gp2/lake-jessup-nutr_ammonia-tmdl.pdf.
---------------------------------------------------------------------------
Septic systems in close proximity to surface waters are more likely
to contribute nutrient loads to waters than distant septic systems.
Florida Administrative Code provides that in most cases septic systems
should be located at least 75 feet from surface waters (F.A.C. 64E-
6.005(3)). In addition, many of Florida's existing nutrient-related
TMDLs identify nearby failing septic systems as contributing to
nutrient impairments in surface waters.
For this economic analysis, EPA assumed that some septic systems
located near incrementally impaired lakes and streams may be required
to upgrade to advance nutrient removal systems. However, the distance
that septic systems can be safely located relative to these surface
waters depends on a variety of site-specific factors. Because of this
uncertainty, EPA conservatively assumed that septic systems located
within 500 feet of any lake or stream in watersheds associated with
incrementally impaired lakes or streams \191\ may be identified for
upgrade from conventional to advanced nutrient removal systems.
---------------------------------------------------------------------------
\191\ In this analysis EPA considered septic systems within 500
feet of any lake or stream in an incrementally impaired watershed
rather than only within 500 feet of an incrementally impaired lake
or stream to account for the possibility of some downstream
transport of nutrients from nearby streams that may not themselves
be classified as incrementally impaired.
---------------------------------------------------------------------------
EPA identified the number of septic systems within 500 feet of any
lake or stream in watersheds associated with incrementally impaired
lakes and streams using GIS analysis on data obtained from the Florida
Department of Health \192\ that provides the location of active septic
systems in the State. This analysis yielded 8,224 active septic systems
that may potentially need to be upgraded from conventional to advanced
nutrient removal systems to meet the numeric nutrient criteria in this
final rule.
---------------------------------------------------------------------------
\192\ Florida Department of Health, 2010, ``Bureau of Onsite
Sewage GIS Data Files,'' available electronically at: http://www.doh.state.fl.us/Environment/programs/EhGis/EhGisDownload.htm.
---------------------------------------------------------------------------
EPA evaluated the cost of upgrading existing septic systems to
advanced nutrient removal systems. Upgrade costs range from $2,000 to
$6,500 per system. For O&M costs, EPA relied on a study that compared
the annual costs associated with various septic system treatment
technologies including conventional onsite sewage treatment and
disposal system and fixed film activated sludge systems.\193\ This
study estimated the incremental O&M costs for an advanced system to be
$650 per year. Thus, based on annual O&M costs of $650 and annualizing
capital costs at 7% over 20 years, annual costs could range from
approximately $800 to $1,300 for each upgrade. EPA estimated the total
annual costs of upgrading septic systems by multiplying this range of
unit costs with the number of systems identified for upgrade. Using
this method, total annual costs for upgrading septic systems to meet
State designated uses could range from $6.6 million per year to $10.7
million per year.
---------------------------------------------------------------------------
\193\ Chang, N., M. Wanielista, A. Daranpob, F. Hossain, Z.
Xuan, J. Miao, S. Liu, Z. Marimon, and S. Debusk, 2010, ``Onsite
Sewage Treatment and Disposal Systems Evaluation for Nutrient
Removal,'' (Stormwater Management Academy, University of Central
Florida).
---------------------------------------------------------------------------
Using Florida's 2009 draft criteria as the baseline, potential
incremental costs to upgrade septic systems are estimated to range from
$1.3 million per year to 2.2 million per year.
Several organizations in Florida developed alternative estimates of
compliance costs for septic systems in EPA's proposed rule that were
substantially higher than EPA's estimated costs. EPA disagrees with
these cost estimates because they used incorrect assumptions that
overestimate costs. For example, FDEP estimated that the costs related
to septic systems would be approximately $0.9 billion per year to 2.9
billion per year.\194\ However, FDEP assumed that 1,687,500 septic
systems would require complete replacement (calculated as the
proportion of all septic systems in the State of Florida on lots less
than 3 acres assumed to discharge to fresh waters because all urban
storm water discharges to freshwaters in that proportion). In contrast,
EPA estimated costs to upgrade 8,224 septic systems to advanced
nutrient removal systems that GIS analysis identified as located within
500 feet of any water within an incrementally impaired watershed.
---------------------------------------------------------------------------
\194\ Florida Department of Environmental Protection, 2010, p.
3.
---------------------------------------------------------------------------
D. Governmental Costs
This final rule may result in the identification of additional
impaired waters that would require the development of additional TMDLs.
As the principal State regulatory agency implementing water quality
standard, the State of Florida may incur costs related to developing
additional TMDLs. EPA's analysis identified 325 incrementally impaired
waters potentially associated with this final rule. Because current
TMDLs in Florida include an average of approximately two water bodies
each, EPA estimates that the State of Florida may need to develop and
adopt approximately 163 additional TMDLs. A 2001 EPA study found that
the cost of developing a TMDL could range between $6,000 and $154,000,
with an average cost of approximately $28,000.195 196 The
low end of the range reflects the typical cost associated with TMDLs
that are the easiest to develop and/or have the benefit of previous
TMDL development for other pollutants. Because most of the
incrementally impaired waters in EPA's analysis exceeded the criteria
for both nitrogen and phosphorus, EPA assumed that TMDLs would need to
be developed for both nitrogen and phosphorus. Under this assumption,
EPA estimated the average TMDL cost to be approximately $47,000
($28,000 on average for one pollutant, plus $6,000 on average for the
other pollutant, and adjusting for inflation). For 163 TMDLs, total
costs could be approximately $7.7 million. FDEP currently operates its
TMDL schedule on a five-phase cycle that rotates through the five
basins over five years. Under this schedule, completion of TMDLs for
high priority waters will take 9 years; it will take an additional 5
years to complete the process for medium priority waters. Thus,
assuming all the incremental impairments are high priority and FDEP
develops the new TMDLs over a 9-year period, annual costs could be
approximately $851,000 per year. Using Florida's 2009 draft criteria as
the baseline, potential incremental costs to develop additional TMDLs
could be approximately $261,000 per year.
---------------------------------------------------------------------------
\195\ U.S. EPA, 2001, ``The National Costs of the Total Maximum
Daily Load Program (Draft Report),'' (EPA-841-D-01-003).
\196\ EPA did not adjust these estimates to account for
potential reductions in resources required to develop TMDLs as a
result of this final rule.
---------------------------------------------------------------------------
Should the State of Florida submit current TMDL targets as Federal
site specific alternative criteria (SSAC) for EPA review and approval,
EPA believes it is reasonable to assume that information used in the
development of the TMDLs will substantially reduce the time and effort
needed to provide a scientifically defensible justification for such
applications. Thus, EPA assumed that incremental costs associated with
SSAC, if any, would be minimal.
Similarly, State and local agencies regularly monitor TN and TP in
ambient waters. These data are the basis for the extensive IWR database
the State of Florida maintains and which provided baseline water
quality data for EPA's analyses. Because Florida is currently
[[Page 75802]]
monitoring TN, TP, and chlorophyll a concentrations in many waters, EPA
assumed that this final rule is unlikely to have a significant impact
on costs related to water quality monitoring activities.
E. Benefits
Elevated concentrations of nutrients in surface waters can result
in adverse ecological effects and negative economic impacts. Excess
nutrients in water can cause eutrophication, which can lead to harmful
(sometimes toxic) algal blooms, loss of rooted plants, and decreased
dissolved oxygen, which can lead to adverse impacts on aquatic life,
fishing, swimming, wildlife watching, camping, and drinking water.
Excess nutrients can also cause nuisance surface scum, reduced food for
herbivorous wildlife, fish kills, alterations in fish communities, and
unsightly shorelines that can decrease property values. This final rule
will help reduce nitrogen and phosphorus concentrations in lakes and
flowing waters in Florida, and help improve ecological function and
prevent further degradation that can result in substantial economic
benefits to Florida citizens. EPA's economic analysis document
entitled: Economic Analysis of Final Water Quality Standards for
Nutrients for Lakes and Flowing Waters in Florida describes many of the
potential benefits associated with meeting the water quality standards
for nitrogen/phosphorus pollution in this rule.
Florida waters have historically provided an abundance of
recreational opportunities that are a vital part of the State's
economy. In 2007, over 4.3 million residents and over 5.8 million
visitors participated in recreational activities related to freshwater
beaches in Florida.\197\ Of these residents and visitors, over 2.7
million residents and approximately 1 million visitors used freshwater
boat ramps, over 3 million residents and over 900,000 visitors
participated in freshwater non-boat fishing, and over 2.6 million
residents and almost 1 million visitors participated in canoeing and
kayaking. Florida also ranks first in the nation in boat registrations
with 973,859 recreational boats registered across the State.
---------------------------------------------------------------------------
\197\ Florida Department of Environment, 2008, ``State
Comprehensive Outdoor Recreation Plan (SCORP),'' available
electronically at: http://www.dep.state.fl.us/parks/planning/default.htm.
---------------------------------------------------------------------------
Tourism comprises one of the largest sectors of the Florida
economy. In 2000, there were over 80.9 million visitors to the State of
Florida, accounting for an estimated $65 billion in tourism
spending.\198\ In 2008, tourism spending resulted in approximately $3.9
billion in State sales tax revenues and contributed to the direct
employment of more than 1 million Florida residents.\199\ Florida has
ranked first in the nation for the number of in-State anglers, angler
expenditures, angler-supported jobs, and State and local tax revenues
derived from freshwater fishing.\200\ In 2006, total fishing-related
expenditures by residents and nonresidents were more than $4.3
billion.\201\ In addition, Florida's freshwater springs are an
important inter- and intra-State tourist attraction.\202\ In 2002, Blue
Springs State Park estimated over 300,000 visitors per year.
---------------------------------------------------------------------------
\198\ VISIT Florida, 2010, available electronically at: http://media.visitflorida.org/research.php.
\199\ VISIT Florida, 2010.
\200\ Bonn, Mark A. and Frederick W. Bell., 2003, Economic
Impact of Selected Florida Springs on Surrounding Local Areas. For
Florida Department of Environmental Protection. Available
electronically at: http://www.dep.state.fl.us/springs/reports/files/EconomicImpactStudy.doc.
\201\ 2006 National Survey of Fishing, Hunting, and Wildlife-
Associated Recreation. Florida. U.S. Department of the Interior,
Fish and Wildlife Service, and U.S. Department of Commerce, U.S.
Census Bureau. Available electronically at: http://myfwc.com/docs/Freshwater/2006_Florida_NationalSurvey.pdf.
\202\ Florida Department of Environmental Protection, 2008.
---------------------------------------------------------------------------
Nitrogen/phosphorus pollution has contributed to severe water
quality degradation of Florida waters. In 2010, the State of Florida
reported approximately 1,918 miles of rivers and streams, and 378,435
acres of lakes that were known to be impaired by nitrogen/phosphorus
pollution (the actual number of waters impaired for nutrients may be
higher because many waters were not assessed).\203\ As water quality
declines, water resources have less recreational value. Waters impaired
by nitrogen/phosphorus pollution may become unsuitable for swimming and
fishing, and in some cases even unsuitable for boating. Nutrient-
impaired waters also are less likely to support native plant and animal
species, further lowering their value as tourist destinations.\204\
Drinking water supplies may also be more expensive to treat as a result
of nutrient impairments. Also, Florida citizens that depend on
individual wells for their drinking water may need to consider whether
on-site treatment is necessary to reduce elevated nitrate+nitrite
levels. Freshwater springs are particularly at risk due to
nitrate+nitrite.205 206 Silver Springs, the largest of
Florida's springs, has experienced reduced ecosystem health and
productivity over the past half century, due largely to
nitrate+nitrite.\207\ Nutrient impairment, characterized by algal
blooms, reduced numbers of native species, and lower water quality, in
turn leads to reduced demand and lower values for these resources.
---------------------------------------------------------------------------
\203\ Florida Department of Environmental Protection, 2010,
``Integrated Water Quality Assessment for Florida: 2010 305(b) and
303(d) List Update,'' available electronically at: http://www.dep.state.fl.us/water/docs/2010_Integrated_Report.pdf.
\204\ Zheng, Lei and Michael J. Paul., 2006, Effects of
Eutrophication on Stream Ecosystems. Available electronically at:
http://n-steps.tetratech-ffx.com/PDF&otherFiles/literature_review/Eutrophication%20effects%20on%20streams.pdf.
\205\ Florida Department of Environment, ``Deep Trouble: Getting
to the Source of Threats to Springs,'' accessed on October 1, 2010
at: http://www.floridasprings.org/protection/threats/.
\206\ Munch, D.A., D.J. Toth, C. Huang, J.B. Davis, C.M.
Fortich, W.L. Osburn, E.J. Phlips, E.L. Quinlan, M.S. Allen, M.J.
Woods, P. Cooney, R.L. Knight, R.A. Clarke and S.L. Knight., 2006,
``Fifty-year retrospective study of the ecology of Silver Springs,
Florida,'' (SJ2007-SP4).
\207\ Florida Department of Environment, 2008, Summary and
Synthesis of the Available Literature on the Effects of Nutrients on
Spring Organisms and Systems,'' available at: http://www.dep.state.fl.us/springs/reports/files/UF_SpringsNutrients_Report.pdf.
---------------------------------------------------------------------------
Some of the benefits of reducing nitrogen and phosphorus
concentrations can be monetized, at least in part, by translating these
changes into an indicator of overall water quality (water quality
index) and valuing these improvements in terms of willingness to pay
(WTP) for the types of uses that are supported by different water
quality levels. For this analysis, EPA used a Water Quality Index (WQI)
approach to link specific pollutant levels with suitability for
particular recreational uses. Using Florida water quality data,
available information on WTP, and an analytical approach described in
EPA's accompanying economic assessment report and supporting
references, EPA estimated potential changes that would result from
implementation of this final rule and their value to a distribution of
full-time and part-time Florida residents. This approach recognizes
that there are differences in WTP among a population and values for
households. Using the mid-point WTP and current conditions as the
baseline, total monetized benefits are estimated to be approximately
$21.7 million per year for improvements to flowing waters and $6.6
million per year for improvements to lakes for a total of $28.2 million
per year. Although these monetized benefits estimates do not account
for all potential economic benefits, they help to partially demonstrate
the economic importance of restoring and protecting Florida waters from
the impacts of nitrogen/phosphorus pollution.
[[Page 75803]]
F. Summary
The following table summarizes EPA's estimates of potential
incremental costs and benefits associated with additional State
requirements to meet the numeric criteria that supports State
designated uses. Because of uncertainties in the pollution controls
ultimately implemented by the State of Florida, actual costs may vary
depending on the procedures for assessing waters for compliance and the
site-specific source reductions needed to meet the new numeric
criteria.
Table VI(F)(a)--Summary of Potential Annual Costs
[millions of 2010 dollars per year]
------------------------------------------------------------------------
Source sector Annual costs
------------------------------------------------------------------------
Municipal Waste Water Treatment Plants.. $22.3-$38.1
Industrial Dischargers.................. $25.4
Urban Storm Water....................... $60.5-$108.0
Agriculture............................. $19.9-$23.0
Septic Systems.......................... $6.6-$10.7
Government/Program Implementation....... $0.9
------------------------------------------------------------------------
Total............................... $135.5-$206.1
------------------------------------------------------------------------
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action.'' Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under EO 12866 and any changes made in response to OMB
recommendations have been documented in the docket for this action.
This final rule does not establish any requirements directly applicable
to regulated entities or other sources of nitrogen/phosphorus
pollution. Moreover, existing narrative water quality criteria in State
law already require that nutrients not be present in waters in
concentrations that cause an imbalance in natural populations of flora
and fauna in lakes and flowing waters in Florida.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b). It does not include any
information collection, reporting, or record-keeping requirements.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have significant economic impact on a substantial number
of small entities. Small entities include small businesses, small
organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this action on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise that is independently owned and operated
and is not dominant in its field.
Under the CWA WQS program, States must adopt WQS for their waters
and must submit those WQS to EPA for approval; if the Agency
disapproves a State standard and the State does not adopt appropriate
revisions to address EPA's disapproval, EPA must promulgate standards
consistent with the statutory requirements. EPA also has the authority
to promulgate WQS in any case where the Administrator determines that a
new or revised standard is necessary to meet the requirements of the
Act. These State standards (or EPA-promulgated standards) are
implemented through various water quality control programs including
the NPDES program, which limits discharges to navigable waters except
in compliance with an NPDES permit. The CWA requires that all NPDES
permits include any limits on discharges that are necessary to meet
applicable WQS.
Thus, under the CWA, EPA's promulgation of WQS establishes
standards that the State implements through the NPDES permit process.
The State has discretion in developing discharge limits, as needed to
meet the standards. This final rule, as explained earlier, does not
itself establish any requirements that are applicable to small
entities. As a result of this action, the State of Florida will need to
ensure that permits it issues include any limitations on discharges
necessary to comply with the standards established in the final rule.
In doing so, the State will have a number of choices associated with
permit writing. While Florida's implementation of the rule may
ultimately result in new or revised permit conditions for some
dischargers, including small entities, EPA's action, by itself, does
not impose any of these requirements on small entities; that is, these
requirements are not self-implementing. Thus, I certify that this rule
will not have a significant economic impact on a substantial number of
small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
This final rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or Tribal
governments or the private sector. The State may use these resulting
water quality criteria in implementing its water quality control
[[Page 75804]]
programs. This final rule does not regulate or affect any entity and,
therefore, is not subject to the requirements of sections 202 and 205
of UMRA.
EPA determined that this final rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Moreover, WQS, including those promulgated here, apply
broadly to dischargers and are not uniquely applicable to small
governments. Thus, this final rule is not subject to the requirements
of section 203 of UMRA.
E. Executive Order 13132 (Federalism)
This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. EPA's authority and responsibility
to promulgate Federal WQS when State standards do not meet the
requirements of the CWA is well established and has been used on
various occasions in the past. The final rule will not substantially
affect the relationship between EPA and the States and territories, or
the distribution of power or responsibilities between EPA and the
various levels of government. The final rule will not alter Florida's
considerable discretion in implementing these WQS. Further, this final
rule will not preclude Florida from adopting WQS that EPA concludes
meet the requirements of the CWA, after promulgation of the final rule,
which would eliminate the need for these Federal standards and lead EPA
to withdraw them. Thus, Executive Order 13132 does not apply to this
final rule.
Although section 6 of Executive Order 13132 does not apply to this
action, EPA had extensive communication with the State of Florida to
discuss EPA's concerns with the State's water quality criteria and the
Federal rulemaking process.
F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
Subject to the Executive Order 13175 (65 FR 67249, November 9,
2000) EPA may not issue a regulation that has Tribal implications, that
imposes substantial direct compliance costs, and that is not required
by statute, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by Tribal governments, or
EPA consults with Tribal officials early in the process of developing
the proposed regulation and develops a Tribal summary impact statement.
EPA has concluded that this action may have Tribal implications.
However, the rule will neither impose substantial direct compliance
costs on Tribal governments, nor preempt Tribal law.
In the State of Florida, there are two Indian Tribes, the Seminole
Tribe of Florida and the Miccosukee Tribe of Indians of Florida, with
lakes and flowing waters. Both Tribes have been approved for treatment
in the same manner as a State (TAS) status for CWA sections 303 and 401
and have Federally-approved WQS in their respective jurisdictions.
These Tribes are not subject to this final rule. However, this rule may
impact the Tribes because the numeric criteria for Florida will apply
to waters adjacent to the Tribal waters. EPA met with the Seminole
Tribe on January 19, 2010 and requested an opportunity to meet with the
Miccosukee Tribe to discuss EPA's proposed rule, although a meeting was
never requested by the Tribe.
G. Executive Order 13045 (Protection of Children From Environmental
Health and Safety Risks)
This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because it is not economically significant as defined in EO
12866, and because the Agency's promulgation of this rule will result
in the reduction of environmental health and safety risks that could
present a disproportionate risk to children.
H. Executive Order 13211 (Actions That Significantly Affect Energy
Supply, Distribution, or Use)
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)), because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy.
I. National Technology Transfer Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This final rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations)
Executive Order (EO) 12898 (Feb. 16, 1994) establishes Federal
executive policy on environmental justice. Its main provision directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.
EPA has determined that this final rule does not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it will afford a
greater level of protection to both human health and the environment if
these numeric criteria are promulgated for Class I and Class III waters
in the State of Florida.
K. Congressional Review Act
The Congressional Review Act 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A ``major rule''
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule is effective March 6, 2012, except for 40 CFR
131.43(e), which is effective February 4, 2011.
List of Subjects in 40 CFR Part 131
Environmental protection, Water quality standards, Nitrogen/
phosphorus pollution, Nutrients, Florida.
[[Page 75805]]
Dated: November 14, 2010.
Lisa P. Jackson,
Administrator.
0
For the reasons set out in the preamble, 40 CFR part 131 is amended as
follows:
PART 131--WATER QUALITY STANDARDS
0
1. The authority citation for part 131 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
Subpart D--[Amended]
0
2. Section 131.43 is added effective February 4, 2011 to read as
follows:
Sec. 131.43 Florida.
(a)-(d) [Reserved]
(e) Site-specific alternative criteria. (1) The Regional
Administrator may determine that site-specific alternative criteria
shall apply to specific surface waters in lieu of the criteria
established for Florida waters in this section, including criteria for
lakes, criteria for streams, and criteria for springs. Any such
determination shall be made consistent with Sec. 131.11.
(2) To receive consideration from the Regional Administrator for a
determination of site-specific alternative criteria, an entity shall
submit a request that includes proposed alternative numeric criteria
and supporting rationale suitable to meet the needs for a technical
support document pursuant to paragraph (e)(3) of this section. The
entity shall provide the State a copy of all materials submitted to
EPA, at the time of submittal to EPA, to facilitate the State providing
comments to EPA. Site-specific alternative criteria may be based on one
or more of the following approaches.
(i) Replicate the process for developing the stream criteria in
this section.
(ii) Replicate the process for developing the lake criteria in this
section.
(iii) Conduct a biological, chemical, and physical assessment of
waterbody conditions.
(iv) Use another scientifically defensible approach protective of
the designated use.
(3) For any determination made under paragraph (e)(1) of this
section, the Regional Administrator shall, prior to making such a
determination, provide for public notice and comment on a proposed
determination. For any such proposed determination, the Regional
Administrator shall prepare and make available to the public a
technical support document addressing the specific surface waters
affected and the justification for each proposed determination. This
document shall be made available to the public no later than the date
of public notice issuance.
(4) The Regional Administrator shall maintain and make available to
the public an updated list of determinations made pursuant to paragraph
(e)(1) of this section as well as the technical support documents for
each determination.
(5) Nothing in this paragraph (e) shall limit the Administrator's
authority to modify the criteria established for Florida waters in this
section, including criteria for lakes, criteria for streams, and
criteria for springs.
0
3. Section 131.43 is revised effective March 6, 2012 to read as
follows:
Sec. 131.43 Florida.
(a) Scope. This section promulgates numeric criteria for nitrogen/
phosphorus pollution for Class I and Class III waters in the State of
Florida. This section also contains provisions for site-specific
alternative criteria.
(b) Definitions.--(1) Canal means a trench, the bottom of which is
normally covered by water with the upper edges of its two sides
normally above water.
(2) Clear, high-alkalinity lake means a lake with long-term color
less than or equal to 40 Platinum Cobalt Units (PCU) and Alkalinity
greater than 20 mg/L CaCO3.
(3) Clear, low-alkalinity lake means a lake with long-term color
less than or equal to 40 PCU and alkalinity less than or equal to 20
mg/L CaCO3.
(4) Colored lake means a lake with long-term color greater than 40
PCU.
(5) Lake means a slow-moving or standing body of freshwater that
occupies an inland basin that is not a stream, spring, or wetland.
(6) Lakes and flowing waters means inland surface waters that have
been classified as Class I (Potable Water Supplies) or Class III
(Recreation, Propagation and Maintenance of a Healthy, Well-Balanced
Population of Fish and Wildlife) water bodies pursuant to Rule 62-
302.400, F.A.C., excluding wetlands, and are predominantly fresh
waters.
(7) Nutrient watershed region means an area of the State,
corresponding to drainage basins and differing geological conditions
affecting nutrient levels, as delineated in Table 2.
(8) Predominantly fresh waters means surface waters in which the
chloride concentration at the surface is less than 1,500 milligrams per
liter.
(9) South Florida Region means those areas south of Lake Okeechobee
and the Caloosahatchee River watershed to the west of Lake Okeechobee
and the St. Lucie watershed to the east of Lake Okeechobee.
(10) Spring means a site at which ground water flows through a
natural opening in the ground onto the land surface or into a body of
surface water.
(11) State means the State of Florida, whose transactions with the
U.S. EPA in matters related to 40 CFR 131.43 are administered by the
Secretary, or officials delegated such responsibility, of the Florida
Department of Environmental Protection (FDEP), or successor agencies.
(12) Stream means a free-flowing, predominantly fresh surface water
in a defined channel, and includes rivers, creeks, branches, canals,
freshwater sloughs, and other similar water bodies.
(13) Surface water means water upon the surface of the earth,
whether contained in bounds created naturally or artificially or
diffused. Water from natural springs shall be classified as surface
water when it exits from the spring onto the Earth's surface.
(c) Criteria for Florida waters--(1) Criteria for lakes. (i) The
applicable criteria for chlorophyll a, total nitrogen (TN), and total
phosphorus (TP) for lakes within each respective lake class are shown
on Table 1.
Table 1
----------------------------------------------------------------------------------------------------------------
A B C
----------------------------------------------------------------------------------------------------------------
Chl-a (mg/L)
Lake Color \a\ and Alkalinity \b,\* TN (mg/L) TP (mg/L)
----------------------------------------------------------------------------------------------------------------
Colored Lakes \c\...................................... 0.020 1.27 0.05
[1.27-2.23] [0.05-0.16]
[[Page 75806]]
Clear Lakes,........................................... 0.020 1.05 0.03
High Alkalinity \d\.................................... [1.05-1.91] [0.03-0.09]
Clear Lakes,........................................... 0.006 0.51 0.01
Low Alkalinity \e\..................................... [0.51-0.93] [0.01-0.03]
----------------------------------------------------------------------------------------------------------------
\a\ Platinum Cobalt Units (PCU) assessed as true color free from turbidity.
\b\ Chlorophyll a is defined as corrected chlorophyll, or the concentration of chlorophyll a remaining after the
chlorophyll degradation product, phaeophytin a, has been subtracted from the uncorrected chlorophyll a
measurement.
\c\Long-term Color > 40 Platinum Cobalt Units (PCU)
\d\Long-term Color <= 40 PCU and Alkalinity > 20 mg/L CaCO3
\e\ Long-term Color <= 40 PCU and Alkalinity <= 20 mg/L CaCO3
* For a given waterbody, the annual geometric mean of chlorophyll a, TN or TP concentrations shall not exceed
the applicable criterion concentration more than once in a three-year period.
(ii) Baseline criteria apply unless the State determines that
modified criteria within the range indicated in Table 1 apply to a
specific lake. Once established, modified criteria are the applicable
criteria for all CWA purposes. The State may use this procedure one
time for a specific lake in lieu of the site-specific alternative
criteria procedure described in paragraph (e) of this section.
(A) The State may calculate modified criteria for TN and/or TP
where the chlorophyll a criterion-magnitude as an annual geometric mean
has not been exceeded and sufficient ambient monitoring data exist for
chlorophyll a and TN and/or TP for at least the three immediately
preceding years. Sufficient data include at least four measurements per
year, with at least one measurement between May and September and one
measurement between October and April each year.
(B) Modified criteria are calculated using data from years in which
sufficient data are available to reflect maintenance of ambient
conditions. Modified TN and/or TP criteria may not be greater than the
higher value specified in the range of values in column C of Table 1 in
paragraph (c)(1)(i) of this section. Modified TP and TN criteria may
not exceed criteria applicable to streams to which a lake discharges.
(C) The State shall notify the public and maintain a record of
these modified lake criteria, as well as a record supporting their
derivation. The State shall notify EPA Region 4 and provide the
supporting record within 30 days of determination of modified lake
criteria.
(2) Criteria for streams. (i) The applicable instream protection
value (IPV) criteria for total nitrogen (TN) and total phosphorus (TP)
for streams within each respective nutrient watershed region are shown
on Table 2.
Table 2
------------------------------------------------------------------------
Instream
protection value
criteria
Nutrient watershed region -------------------
TN (mg/ TP (mg/
L)* L)*
------------------------------------------------------------------------
Panhandle West a.................................... 0.67 0.06
Panhandle East b.................................... 1.03 0.18
North Central c..................................... 1.87 0.30
West Central d...................................... 1.65 0.49
Peninsula e......................................... 1.54 0.12
------------------------------------------------------------------------
Watersheds pertaining to each Nutrient Watershed Region (NWR) were based
principally on the NOAA coastal, estuarine, and fluvial drainage areas
with modifications to the NOAA drainage areas in the West Central and
Peninsula Regions that account for unique watershed geologies. For
more detailed information on regionalization and which WBIDs pertain
to each NWR, see the Technical Support Document.
a Panhandle West region includes: Perdido Bay Watershed, Pensacola Bay
Watershed, Choctawhatchee Bay Watershed, St. Andrew Bay Watershed, and
Apalachicola Bay Watershed.
b Panhandle East region includes: Apalachee Bay Watershed, and Econfina/
Steinhatchee Coastal Drainage Area.
c North Central region includes the Suwannee River Watershed.
d West Central region includes: Peace, Myakka, Hillsborough, Alafia,
Manatee, Little Manatee River Watersheds, and small, direct Tampa Bay
tributary watersheds south of the Hillsborough River Watershed.
e Peninsula region includes: Waccasassa Coastal Drainage Area,
Withlacoochee Coastal Drainage Area, Crystal/Pithlachascotee Coastal
Drainage Area, small, direct Tampa Bay tributary watersheds west of
the Hillsborough River Watershed, Sarasota Bay Watershed, small,
direct Charlotte Harbor tributary watersheds south of the Peace River
Watershed, Caloosahatchee River Watershed, Estero Bay Watershed,
Kissimmee River/Lake Okeechobee Drainage Area, Loxahatchee/St. Lucie
Watershed, Indian River Watershed, Daytona/St. Augustine Coastal
Drainage Area, St. John's River Watershed, Nassau Coastal Drainage
Area, and St. Mary's River Watershed.
* For a given waterbody, the annual geometric mean of TN or TP
concentrations shall not exceed the applicable criterion concentration
more than once in a three-year period.
(ii) Criteria for protection of downstream lakes. (A) The
applicable criteria for streams that flow into downstream lakes include
both the instream criteria for total phosphorus (TP) and total nitrogen
(TN) in Table 2 in paragraph (c)(2)(i) and the downstream protection
value (DPV) for TP and TN derived pursuant to the provisions of this
paragraph. A DPV for stream tributaries (up to the point of reaching
water bodies that are not streams as defined by this rule) that flow
into a downstream lake is either the allowable concentration or the
allowable loading of TN and/or TP applied at the point of entry into
the lake. The applicable DPV for any stream shall be determined
pursuant to paragraphs (c)(2)(ii)(B), (C), or (D) of this section.
Contributions from stream tributaries upstream of the point of entry
location must result in attainment of the DPV at the point of entry
into the lake. If the DPV is not attained at the point of entry into
the lake, then the collective set of streams in the upstream watershed
does not attain the DPV, which is an applicable water quality criterion
for the water segments in the upstream watershed. The State or EPA may
establish additional DPVs at upstream tributary locations that are
consistent with attaining the DPV at the point of entry into the lake.
The State or EPA also have discretion to establish DPVs to account for
a larger watershed area (i.e., include waters beyond the point of
reaching water bodies that are not streams as defined by this rule).
(B) In instances where available data and/or resources provide for
use of a scientifically defensible and protective lake-specific
application of the
[[Page 75807]]
BATHTUB model, the State or EPA may derive the DPV for TN and/or TP
from use of a lake-specific application of BATHTUB. The State and EPA
are authorized to use a scientifically defensible technical model other
than BATHTUB upon demonstration that use of another scientifically
defensible technical model would protect the lake's designated uses and
meet all applicable criteria for the lake. The State or EPA may
designate the wasteload and/or load allocations from a TMDL established
or approved by EPA as DPV(s) if the allocations from the TMDL will
protect the lake's designated uses and meet all applicable criteria for
the lake.
(C) When the State or EPA has not derived a DPV for a stream
pursuant to paragraph (c)(2)(ii)(B) of this section, and where the
downstream lake attains the applicable chlorophyll a criterion and the
applicable TP and/or TN criteria, then the DPV for TN and/or TP is the
associated ambient instream levels of TN and/or TP at the point of
entry to the lake. Degradation in water quality from the DPV pursuant
to this paragraph is to be considered nonattainment of the DPV, unless
the DPV is adjusted pursuant to paragraph (c)(2)(ii)(B) of this
section.
(D) When the State or EPA has not derived a DPV pursuant to
paragraph (c)(2)(ii)(B) of this section, and where the downstream lake
does not attain applicable chlorophyll a criterion or the applicable TN
and/or TP criteria, or has not been assessed, then the DPV for TN and/
or TP is the applicable TN and/or TP criteria for the downstream lake.
(E) The State and EPA shall maintain a record of DPVs they derive
based on the methods described in paragraphs (c)(2)(ii)(B) and (C) of
this section, as well as a record supporting their derivation, and make
such records available to the public. The State and EPA shall notify
one another and provide a supporting record within 30 days of
derivation of DPVs pursuant to paragraphs (c)(2)(ii)(B) or (C) of this
section.
(3) Criteria for springs. The applicable nitrate+nitrite criterion
is 0.35 mg/L as an annual geometric mean, not to be exceeded more than
once in a three-year period.
(d) Applicability. (1) The criteria in paragraphs (c)(1) through
(3) of this section apply to lakes and flowing waters, excluding
flowing waters in the South Florida Region, and apply concurrently with
other applicable water quality criteria, except when:
(i) State water quality standards contain criteria that are more
stringent for a particular parameter and use;
(ii) The Regional Administrator determines that site-specific
alternative criteria apply pursuant to the procedures in paragraph (e)
of this section; or
(iii) The State adopts and EPA approves a water quality standards
variance to the Class I or Class III designated use pursuant to Sec.
131.13 that meets the applicable provisions of State law and the
applicable Federal regulations at Sec. 131.10.
(2) The criteria established in this section are subject to the
State's general rules of applicability in the same way and to the same
extent as are the other Federally-adopted and State-adopted numeric
criteria when applied to the same use classifications.
(e) Site-specific alternative criteria. (1) The Regional
Administrator may determine that site-specific alternative criteria
shall apply to specific surface waters in lieu of the criteria
established in paragraph (c) of this section. Any such determination
shall be made consistent with Sec. 131.11.
(2) To receive consideration from the Regional Administrator for a
determination of site-specific alternative criteria, an entity shall
submit a request that includes proposed alternative numeric criteria
and supporting rationale suitable to meet the needs for a technical
support document pursuant to paragraph (e)(3) of this section. The
entity shall provide the State a copy of all materials submitted to
EPA, at the time of submittal to EPA, to facilitate the State providing
comments to EPA. Site-specific alternative criteria may be based on one
or more of the following approaches.
(i) Replicate the process for developing the stream criteria in
paragraph (c)(2)(i) of this section.
(ii) Replicate the process for developing the lake criteria in
paragraph (c)(1) of this section.
(iii) Conduct a biological, chemical, and physical assessment of
waterbody conditions.
(iv) Use another scientifically defensible approach protective of
the designated use.
(3) For any determination made under paragraph (e)(1) of this
section, the Regional Administrator shall, prior to making such a
determination, provide for public notice and comment on a proposed
determination. For any such proposed determination, the Regional
Administrator shall prepare and make available to the public a
technical support document addressing the specific surface waters
affected and the justification for each proposed determination. This
document shall be made available to the public no later than the date
of public notice issuance.
(4) The Regional Administrator shall maintain and make available to
the public an updated list of determinations made pursuant to paragraph
(e)(1) of this section as well as the technical support documents for
each determination.
(5) Nothing in this paragraph (e) shall limit the Administrator's
authority to modify the criteria in paragraph (c) of this section
through rulemaking.
(f) Effective date. This section is effective March 6, 2012, except
for Sec. 131.43(e), which is effective February 4, 2011.
[FR Doc. 2010-29943 Filed 12-3-10; 8:45 am]
BILLING CODE 6560-50-P