[Federal Register Volume 75, Number 16 (Tuesday, January 26, 2010)]
[Proposed Rules]
[Pages 4174-4226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1220]
[[Page 4173]]
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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; Proposed Rule
Federal Register / Vol. 75 , No. 16 / Tuesday, January 26, 2010 /
Proposed Rules
[[Page 4174]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA-HQ-OW-2009-0596; FRL-9105-1]
RIN 2040-AF11
Water Quality Standards for the State of Florida's Lakes and
Flowing Waters
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing numeric
nutrient water quality criteria to protect aquatic life in lakes and
flowing waters, including canals, within the State of Florida and
proposing regulations to establish a framework for Florida to develop
``restoration standards'' for impaired waters. On January 14, 2009, EPA
made a determination under section 303(c)(4)(B) of the Clean Water Act
(``CWA'' or ``the Act'') that numeric nutrient water quality criteria
for lakes and flowing waters and for estuaries and coastal waters are
necessary for the State of Florida to meet the requirements of CWA
section 303(c). Section 303(c)(4) of the CWA requires the Administrator
to promptly prepare and publish proposed regulations setting forth new
or revised water quality standards (``WQS'' or ``standards'') when the
Administrator, or an authorized delegate of the Administrator,
determines that such new or revised WQS are necessary to meet
requirements of the Act. This proposed rule fulfills EPA's obligation
under section 303(c)(4) of the CWA to promptly propose criteria for
Florida's lakes and flowing waters.
DATES: Comments must be received on or before March 29, 2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2009-0596, by one of the following methods:
1. www.regulations.gov: Follow the online instructions for
submitting comments.
2. E-mail: [email protected].
3. Mail to: Water Docket, U.S. Environmental Protection Agency,
Mail Code: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460,
Attention: Docket ID No. EPA-HQ-OW-2009-0596.
4. Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301
Constitution Avenue, NW., Washington, DC 20004, Attention: Docket ID
No. EPA-HQ-OW-2009-0596. Such deliveries are only accepted during the
Docket's normal hours of operation, and special arrangements should be
made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2009-
0596. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at a docket facility. The Office
of Water (OW) Docket Center is open from 8:30 until 4:30 p.m., Monday
through Friday, excluding legal holidays. The OW Docket Center
telephone number is (202) 566-2426, and the Docket address is OW
Docket, EPA West, Room 3334, 1301 Constitution Avenue, 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.
Public hearings will be held in the following cities in Florida:
Tallahassee, Orlando, and West Palm Beach. The public hearing in
Tallahassee is scheduled for Tuesday, February 16, 2010 and will be
held from 1 p.m. to 5 p.m. and 7 p.m. to 10 p.m. at the Holiday Inn
Capitol East, 1355 Apalachee Parkway, Tallahassee, FL 32301. The public
hearing in Orlando is scheduled for Wednesday, February 17, 2010 and
will be held from 1 p.m. to 5 p.m. and 7 p.m. to 10 p.m. at the Crowne
Plaza Orlando Universal, 7800 Universal Boulevard, Orlando, FL 32819.
The public hearing in West Palm Beach is scheduled for Thursday,
February 18, 2010 and will be held from 1 p.m. to 5 p.m. and 7 p.m. to
10 p.m. at the Holiday Inn Palm Beach Airport, 1301 Belvedere Road,
West Palm Beach, FL 33405. If you need a sign language interpreter at
any of these hearings, you should contact Sharon Frey at 202-566-1480
or [email protected] at least ten business days prior to the meetings
so that appropriate arrangements can be made. For further information,
including registration information, please refer to the following Web
site: http://www.epa.gov/waterscience/standards/rules/florida/.
FOR FURTHER INFORMATION 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. What Entities May Be Affected by This Rule?
C. What Should I Consider as I Prepare My Comments for EPA?
D. How Can I Get Copies of This Document and Other Related
Information?
II. Background
A. Nutrient Pollution
B. Statutory and Regulatory Background
C. Water Quality Criteria
D. Agency Determination Regarding Florida
III. Proposed Numeric Nutrient Criteria for the State of Florida's
Lakes and Flowing Waters
A. General Information
B. Proposed Numeric Nutrient Criteria for the State of Florida's
Lakes
C. Proposed Numeric Nutrient Criteria for the State of Florida's
Rivers and Streams
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D. Proposed Numeric Nutrient Criteria for the State of Florida's
Springs and Clear Streams
E. Proposed Numeric Nutrient Criteria for South Florida Canals
F. Comparison Between EPA's and Florida DEP's Proposed Numeric
Nutrient Criteria for Florida's Lakes and Flowing Waters
G. Applicability of Criteria When Final
IV. Under What Conditions Will Federal Standards Be Either Not
Finalized or Withdrawn?
V. Alternative Regulatory Approaches and Implementation Mechanisms
A. Designating Uses
B. Variances
C. Site-Specific Criteria
D. Compliance Schedules
VI. Proposed Restoration Water Quality Standards (WQS) Provision
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)
I. General Information
A. Executive Summary
Excess loadings of nitrogen and phosphorus, commonly referred to as
nutrient pollution, are one of the most prevalent causes of water
quality impairment in the United States. Anthropogenic nitrogen and
phosphorus over-enrichment in many of the Nation's waters is a
widespread, persistent, and growing problem. Nutrient pollution can
significantly impact aquatic life and long-term ecosystem health,
diversity, and balance. More specifically, high nitrogen and phosphorus
loadings, or nutrient pollution, 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
nutrient pollution include impaired drinking water sources, increased
exposure to toxic microbes such as cyanobacteria, and possible
formation of disinfection byproducts in drinking water, some of which
have been associated with serious human illnesses such as bladder
cancer. Nutrient problems can exhibit themselves locally or much
further downstream leading to degraded lakes, reservoirs, and
estuaries, and to hypoxic zones where fish and aquatic life can no
longer survive.
In the State of Florida, nutrient pollution has contributed to
severe water quality degradation. Based upon waters assessed and
reported in the 2008 Integrated Water Quality Assessment for Florida,
approximately 1,000 miles of rivers and streams, 350,000 acres of
lakes, and 900 square miles of estuaries are known to be impaired for
nutrients by the State.\1\ The actual number of stream miles, lake
acres, and estuarine square miles of waters impaired for nutrients in
Florida may be higher, as many waters currently are classified as
``unassessed.''
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\1\ Florida Department of Environmental Protection. 2008.
Integrated Water Quality Assessment for Florida: 2008 305(b) Report
and 303(d) List Update, p. 67.
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The challenge of nutrient pollution has been a top priority for
Florida's Department of Environmental Protection (FDEP). Over the past
decade or more, FDEP has spent over 20 million dollars collecting and
analyzing data on the relationship between phosphorus, nitrogen, and
nitrite-nitrate concentrations and the biological health of aquatic
systems. Moreover, Florida is one of the few states that has in place a
comprehensive framework of accountability that applies to both point
and nonpoint sources and provides the enforceable authority to address
nutrient reductions in impaired waters based upon the establishment of
site-specific total maximum daily loads (TMDLs).
Despite FDEP's intensive efforts to diagnose and control nutrient
pollution, substantial water quality degradation from nutrient over-
enrichment remains a significant problem. On January 14, 2009, EPA
determined under CWA section 303(c)(4)(B) that new or revised WQS in
the form of numeric nutrient water quality criteria are necessary to
meet the requirements of the CWA in the State of Florida. The Agency
considered (1) the State's documented unique and threatened ecosystems,
(2) the high number of impaired waters due to existing nutrient
pollution, and (3) the challenge associated with growing nutrient
pollution resulting from expanding urbanization, continued agricultural
development, and a significantly increasing population that is expected
to grow 75% between 2000 to 2030.\2\ EPA also reviewed the State's
regulatory nutrient accountability system, which represents an
impressive synthesis of technology-based standards, point source
control authority, and authority to establish enforceable controls for
nonpoint source activities. However, the significant challenge faced by
the water quality components of this system is its dependence upon an
approach involving resource-intensive and time-consuming site-specific
data collection and analysis to interpret non-numeric narrative
nutrient criteria. EPA determined that Florida's reliance on a case-by-
case interpretation of its narrative nutrient criterion in implementing
an otherwise comprehensive water quality framework of enforceable
accountability was insufficient to ensure protection of applicable
designated uses. As part of the Agency's determination, EPA indicated
that it expected to propose numeric nutrient criteria for lakes and
flowing waters within 12 months, and for estuarine and coastal waters
within 24 months, of the January 14, 2009 determination.
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\2\ http://www.census.gov/population/projections/SummaryTabA1.pdf.
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On August 19, 2009, EPA entered into a phased Consent Decree with
Florida Wildlife Federation, Sierra Club, Conservancy of Southwest
Florida, Environmental Confederation of Southwest Florida, and St.
Johns Riverkeeper, committing to sign a proposed rule setting forth
numeric nutrient criteria for lakes and flowing waters in Florida by
January 14, 2010, and for Florida's estuarine and coastal waters by
January 14, 2011, unless Florida submits and EPA approves State numeric
nutrient criteria before EPA's proposal. The phased Consent Decree also
provides that EPA issue a final rule by October 15, 2010 for lakes and
flowing water, and by October 15, 2011 for estuarine and coastal
waters, unless Florida submits and EPA approves State numeric nutrient
criteria before a final EPA action.
Accordingly, this proposal is part of a phased rulemaking process
in which EPA will propose and take final action in 2010 on numeric
nutrient criteria for lakes and flowing waters and for estuarine and
coastal waters in 2011. The two phases of this rulemaking are linked
because nutrient pollution in Florida's rivers and streams affects not
only instream aquatic conditions but also downstream estuarine and
coastal waters ecosystem conditions. The Agency could have waited to
propose estuarine and coastal downstream protection criteria values for
rivers and streams as part of the second phase of this rulemaking
process. However, the substantial data, peer-reviewed methodologies,
and extensive scientific
[[Page 4176]]
analyses available to and conducted by the Agency to date indicate that
numeric nutrient water quality criteria for estuarine and coastal
waters, when proposed and finalized in 2011, may result in the need for
more stringent rivers and streams criteria to ensure protection of
downstream water quality, particularly for the nitrogen component of
nutrient pollution. Therefore, considering the numerous requests for
the Agency to share its analysis and scientific and technical
conclusions at the earliest possible opportunity to allow for full
review and comment, EPA is including downstream protection values for
total nitrogen (TN) as proposed criteria for rivers and streams to
protect the State's estuaries and coastal waters in this notice.
As described in more detail below and in the technical support
document accompanying this notice, these proposed nitrogen downstream
protection values are based on substantial data, thorough scientific
analysis, and extensive technical evaluation. However, EPA recognizes
that additional data and analysis may be available, including data for
particular estuaries, to help inform what numeric nutrient criteria are
necessary to protect Florida's waters, including downstream lakes and
estuaries. EPA also recognizes that substantial site-specific work has
been completed for a number of these estuaries. This notice and the
proposed downstream protection values are not intended to address or be
interpreted as calling into question the utility and protectiveness of
these site-specific analyses. Rather, the proposed values represent the
output of a systematic and scientific approach that was developed to be
generally applicable to all flowing waters in Florida that terminate in
estuaries for the purpose of ensuring the protection of downstream
estuaries. EPA is interested in obtaining feedback at this time on this
systematic and scientific approach. EPA is also interested in feedback
regarding site-specific analyses for particular estuaries that should
be used instead of this general approach for establishing final values.
The Agency further recognizes that the proposed values in this notice
will need to be considered in the context of the Agency's numeric
nutrient criteria for estuarine and coastal waters scheduled for
proposal in January of 2011.
Regarding the criteria for flowing waters for protection of
downstream lakes and estuaries, at this time, EPA intends to take final
action on the criteria for protection of downstream lakes as part of
the first phase of this rulemaking (by October 15, 2010) and to
finalize downstream protection values in flowing waters as part of the
second phase of this rulemaking process (by October 15, 2011) in
coordination with the proposal and finalization of numeric nutrient
criteria for estuarine and coastal waters in 2011. However, if
comments, data and analyses submitted as a result of this proposal
support finalizing these values sooner, by October 2010, EPA may choose
to proceed in this manner. To facilitate this process, EPA requests
comments and welcomes thorough evaluation on the technical and
scientific basis of these proposed downstream protection values, as
well as information on estuaries where site-specific analyses should be
used, as part of the broader comment and evaluation process that this
proposal initiates.
In accordance with the terms of EPA's January 14, 2009
determination and the Consent Decree, EPA is proposing numeric nutrient
criteria for Florida's lakes and flowing waters which include the
following four water body types: Lakes, streams, springs and clear
streams, and canals in south Florida. In developing this proposal, EPA
worked closely with FDEP staff to review and analyze the State's
extensive dataset of nutrient-related measurements as well as its
analysis of stressor-response relationships and benchmark or modified-
reference conditions. EPA also conducted further analyses and modeling,
in addition to requesting an independent external peer review of the
core methodologies and approaches that support this proposal.
For lakes, EPA is proposing a classification scheme using color and
alkalinity based upon substantial data that show that lake color and
alkalinity play an important role in the degree to which TN and total
phosphorus (TP) concentrations result in a biological response such as
elevated chlorophyll a levels. EPA found that correlations between
nutrients and biological response parameters in the different types of
lakes in Florida were sufficiently robust, combined with additional
lines of evidence, to support stressor-response criteria development
for Florida's lakes. The Agency is also proposing an accompanying
supplementary analytical approach that the State can use to adjust TN
and TP criteria for a particular lake within a certain range where
sufficient data on long-term ambient TN and TP levels are available to
demonstrate that protective chlorophyll a criteria 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.B
below.
Regarding numeric nutrient criteria for streams and rivers, EPA
considered the extensive work of FDEP to analyze the relationship
between TN and TP levels and biological response in streams and rivers.
EPA found that relationships between nutrients and biological response
parameters in rivers and streams were affected by many factors that
made derivation of a quantitative relationship between chlorophyll a
levels and nutrients in streams and rivers difficult to establish in
the same manner as EPA did for lakes (i.e., stressor-response
relationship). EPA considered an alternative methodology that evaluated
a combination of biological information and data on the distribution of
nutrients in a substantial number of healthy stream systems. Based upon
a technical evaluation of the significant available data on Florida
streams and related scientific analysis, the Agency concluded that
reliance on a statistical distribution methodology was a stronger and a
more sound approach for deriving TN and TP criteria in streams and
rivers. This information is presented in more detail in Section III.C
below.
In developing these proposed numeric nutrient criteria for rivers
and streams, EPA also evaluated their effectiveness for assuring the
protection of downstream lake and estuary designated uses 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. For rivers and streams in Florida, EPA must ensure, to the
extent that available science allows, that its nutrient criteria take
into account the impact of near-field nutrient loads on aquatic life in
downstream lakes and estuaries. EPA currently has evaluated the
protectiveness of its rivers and streams TP criteria for lake
protection and also the protectiveness of its rivers and streams TN
criteria for 16 out of 26 of Florida's downstream estuaries using
scientifically sound approaches for both estimating protective loads
and deriving concentration-based upstream values. Of the ten downstream
estuaries not completely evaluated to date, seven are in south Florida
and receive TN loads from highly managed canals and waterways and three
are in low lying areas of central Florida.
As noted above, EPA used best available science and data related to
downstream waters and found that there are cases where the nutrient
criteria EPA is proposing to protect instream aquatic life may not be
stringent enough to ensure protection of aquatic life in certain
downstream lakes and estuaries. Accordingly, EPA is also proposing an
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equation that would be used to adjust stream and river TP criteria to
protect downstream lakes and a different methodology to adjust TN
criteria for streams and rivers to ensure protection of downstream
estuaries. These approaches as reflected in these proposed regulations
and the revised criteria that would result from adjusting TN criteria
for streams and rivers to ensure protection of downstream estuaries,
based on certain assumptions, are detailed in Section III.C(6)(b)
below. The Agency specifically requests comment on the available
information, analysis, and modeling used to support the approaches EPA
is proposing for addressing downstream impacts of TN and TP. EPA also
invites additional stakeholder comment, data, and analysis on
alternative technically-based approaches that would support the
development of numeric nutrient WQS, or some other scientifically
defensible approach, for protection of downstream waters. To the degree
that substantial data and analyses are submitted that support a
significant revision to downstream protection values for TN outlined in
Section III.C(6)(b) below, EPA would intend to issue a supplemental
Federal Register Notice of Data Availability (NODA) to present the
additional data and supplemental analyses and solicit further comment
and input. EPA anticipates obtaining the necessary data and information
to compute downstream protection values for TP loads for many estuarine
water bodies in Florida in 2010 and will also make this additional
information available by issuing a supplemental Federal Register NODA.
Regarding numeric nutrient criteria for springs and clear streams,
EPA is proposing a nitrate-nitrite criterion for springs and clear
streams based on experimental laboratory data and field evaluations
that document the response of nuisance algae and periphyton to nitrate-
nitrite concentrations. This criterion is explained in more detail in
Section III.D below.
For canals in south Florida, EPA is proposing a statistical
distribution approach similar to its approach for rivers and streams,
and based on sites meeting designated uses with respect to nutrients
identified in four canal regions to best represent the necessary
criteria to protect these highly managed water bodies. This approach is
presented in more detail in Section III.E below. The Agency has also
considered several alternative approaches to developing numeric
nutrient criteria for canals and these are described, as well, for
public comment and response.
Stakeholders have expressed concerns that numeric nutrient criteria
must be scientifically sound. Under the Clean Water Act and EPA's
implementing regulations, numeric nutrient standards must protect the
designated use of a water (as well as ensure protection of downstream
uses) and must be based on sound scientific rationale. In the case of
Florida, EPA and FDEP scientists completed a substantial body of
scientific work; EPA believes that these proposed criteria clearly meet
the regulatory standards of protection and that they are clearly based
on a sound scientific rationale.
Separate from and in addition to proposing numeric nutrient
criteria, EPA is also proposing a new WQS regulatory tool for Florida,
referred to as ``restoration WQS'' for impaired waters. This tool will
enable Florida to set incremental water quality targets (uses and
criteria) for specific pollutant parameters while at the same time
retaining protective criteria for all other parameters to meet the full
aquatic life use. The goal is to provide a challenging but realistic
incremental framework in which to establish appropriate control
measures. This provision will 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 planned
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. The phased numeric standards would be
included in Florida's water quality regulations during the restoration
period. This proposed regulatory tool is discussed in more detail in
Section VI below.
Finally, EPA is including in this notice a proposed approach for
deriving Federal site-specific alternative criteria (SSAC) based upon
State submissions of scientifically defensible recalculations that meet
the requirements of CWA section 303(c). TMDL targets submitted to EPA
by the State for consideration as new or revised WQS could be reviewed
under this SSAC process. This proposed approach is discussed in more
detail in Section V.C below.
Overall, EPA is soliciting comments and data regarding EPA's
proposed criteria for lakes and flowing waters, the derivation of these
criteria, the protectiveness of the streams and rivers criteria for
downstream waters, and all associated alternative options and
methodologies discussed in this proposed rulemaking.
B. 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. Stakeholders in
Florida facing obstacles in immediately achieving full aquatic life
protection in impaired waters may be interested in the restoration
standards concept outlined in this rulemaking. Categories and entities
that may ultimately be affected include:
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Examples of potentially
Category affected 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 could also be affected, such as
nonpoint source contributors to nutrient pollution in Florida's waters.
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, might be affected by this rule. To determine whether
your facility or activities may be affected by this action, you should
examine this proposed 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.
C. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk
or CD-ROM that
[[Page 4178]]
you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then
identify electronically within the disk or CD-ROM the specific
information that is claimed as CBI. In addition to one complete version
of the comment that includes information claimed as CBI, a copy of the
comment that does not contain the information claimed as CBI must be
submitted for inclusion in the public docket. Information so marked
will not be disclosed except in accordance with procedures set forth in
40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date, and page number).
2. Follow directions--The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Make sure to submit your comments by the comment period deadline
identified.
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 202-566-1744. 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.D(1).
II. Background
A. Nutrient Pollution
1. What Is Nutrient Pollution?
Excess anthropogenic concentrations of nitrogen (typically in
oxidized, inorganic forms, such as nitrate) \3\ and phosphorus
(typically as phosphate), commonly referred to as nutrient pollution,
in surface waters can result in excessive algal and aquatic plant
growth, referred to as eutrophication.\4\ One impact associated with
eutrophication is low dissolved oxygen, due to decomposition of the
aquatic plants and algae when these plants and algae die. As noted
above, high nitrogen and phosphorus loadings also result in HABs,
reduced spawning grounds and nursery habitats for aquatic life, and
fish kills. Public health concerns related to eutrophication include
impaired drinking water sources, increased exposure to toxic microbes
such as cyanobacteria, and possible formation of disinfection
byproducts in drinking water, some of which have been associated with
serious human illnesses such as bladder cancer.5 6 Nutrient
problems can manifest locally or much further downstream in lakes,
reservoirs, and estuaries.
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\3\ To be used by living organisms, nitrogen gas must be fixed
into its reactive forms; for plants, either nitrate or ammonia.
\4\ Eutrophication is defined as an increase in organic carbon
to an aquatic ecosystem caused by primary productivity stimulated by
excess nutrients--typically compounds containing nitrogen or
phosphorus. Eutrophication can adversely affect aquatic life,
recreation, and human health uses of waters.
\5\ 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.
\6\ U.S. EPA. 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.
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Excess nutrients in water bodies come from many sources, which can
be grouped into five major categories: (1) Sources associated with
urban land use and development, (2) municipal and industrial waste
water discharge, (3) row crop agriculture, (4) animal husbandry, and
(5) atmospheric deposition that may be increased by production of
nitrogen oxides in electric 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.\7\
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\7\ National Research Council, 2000. Clean Coastal Waters:
Understanding and Reducing the Effects of Nutrient Pollution. Report
prepared by the Ocean Study Board and Water Science and Technology
Board, Commission on Geosciences, Environment and Resources,
National Resource Council. National Academy 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. Environ. Sci. and Poll. Res. 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. Environ. Sci.
Tech.. 43(1):12-19.
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2. Adverse Impacts of Nutrient Pollution on Aquatic Life, Human Health,
and the Economy
To protect aquatic life, EPA regulates pollutants that have adverse
effects on aquatic life. For most pollutants, these effects are
typically negative impacts on growth, reproduction, and survival. As
previously noted, excess nutrients can lead to increases in algal and
other aquatic plant growth, including toxic algae that can result in
HABs. Increases in algal and aquatic plant growth provide excess
organic matter in a water body and can contribute to subsequent
degradation of aquatic communities, human health impacts, and
ultimately economic impacts.
Fish, shellfish, and wildlife require clean water for survival.
Changes in the environment resulting from elevated nutrient levels
(such as algal blooms, toxins from HABs, and hypoxia/anoxia) can cause
a variety of effects. When excessive nutrient loads change a water
body's algae and plant species, the change in habitat and available
food resources can induce changes affecting an entire food chain. Algal
blooms block
[[Page 4179]]
sunlight that submerged grasses need to grow, leading to a decline of
seagrass 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.\8\ Algae can also damage or clog the
gills of fish and invertebrates.\9\
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\8\ Hauxwell, J. C. Jacoby, T. Frazer, and J. Stevely. 2001.
Nutrients and Florida's Coastal Waters. Florida Sea Grant.
\9\ NOAA. 2009. Harmful Algal Blooms: Current Programs Overview.
National Oceanic and Atmospheric Administration. http://www.cop.noaa.gov/stressors/extremeevents/hab/welcome.html. Accessed
December 2009.
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HABs can form toxins that cause illness or death for some animals.
Some of the more commonly affected animals include sea lions, turtles,
seabirds, dolphins, and manatees.\10\ More than 50% of unusual marine
mortality events may be associated with HABs.\11\ Lower level
consumers, such as small fish or shellfish, may not be harmed by algal
toxins, but they bioaccumulate toxins, causing higher exposures for
higher level consumers (such as larger predator fish), resulting in
health impairments and possibly death.12 13
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\10\ NOAA. 2009. Harmful Algal Blooms: Current Programs
Overview. National Oceanic and Atmospheric Administration. http://www.cop.noaa.gov/stressors/extremeevents/hab/welcome.html. Accessed
December 2009.
\11\ WHOI. 2008. HAB Impacts on Wildlife. Woods Hole
Oceanographic Institution. http://www.whoi.edu/redtide/page.do?pid=9682. Accessed December 2009.
\12\ WHOI. 2008. Marine Mammals. Woods Hole Oceanographic
Institution. http://www.whoi.edu/redtide/page.do?pid=14215. Accessed
December 2009.
\13\ WHOI. 2008. HAB Impacts on Wildlife. Woods Hole
Oceanographic Institution. http://www.whoi.edu/redtide/page.do?pid=9682. Accessed December 2009.
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There are many examples of HAB toxins significantly affecting
marine animals. For example, between March and April 2003, 107
bottlenose dolphins (Tursiops truncatus) died, along with hundreds of
fish and marine invertebrates, along the Florida Panhandle.\14\ High
levels of brevetoxin (a neurotoxin), produced by a harmful species of
dinoflagellate (a type of algae), were measured in all of the stranded
dolphins examined, as well as in their fish prey.\15\
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\14\ WHOI. 2008. Marine Mammals. Woods Hole Oceanographic
Institution. http://www.whoi.edu/redtide/page.do?pid=14215. Accessed
December 2009.
\15\ WHOI. 2008. Marine Mammals. Woods Hole Oceanographic
Institution. http://www.whoi.edu/redtide/page.do?pid=14215. Accessed
December 2009.
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In freshwater, cyanobacteria can produce toxins that have been
implicated as the cause of a large number of fish and bird mortalities.
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.\16\ A recent study showed that at
least one type of cyanobacteria has been linked to cancer and tumor
growth in animals.\17\
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\16\ WHOI. 2008. HAB Impacts on Wildlife. Woods Hole
Oceanographic Institution. http://www.whoi.edu/redtide/page.do?pid=9682. Accessed December 2009.
\17\ Falconer, I.R., A.R. Humpage. 2005. Health Risk Assessment
of Cyanobacterial (Blue-green Algal) Toxins in Drinking Water. Int.
J. Environ. Res. Public Health. 2(1): 43-50.
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Excessive algal growth contributes to increased oxygen consumption
associated with decomposition, potentially reducing oxygen to levels
below that needed for aquatic life to survive and
flourish.18 19 Low oxygen, or hypoxia, often occurs in
episodic ``events,'' which sometimes develop overnight. 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 oysters
and mussels, cannot move to avoid low oxygen and are often killed
during hypoxic events.\20\ 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.\21\ 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. In extreme cases, anoxic conditions occur
when there is a complete lack of oxygen. Very few organisms can live
without oxygen (for example some microbes), hence these areas are
sometimes referred to as dead zones.\22\
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\18\ NOAA. 2009. Harmful Algal Blooms: Current Programs
Overview. National Oceanic and Atmospheric Administration. http://www.cop.noaa.gov/stressors/extremeevents/hab/welcome.html. Accessed
December 2009.
\19\ USGS. 2009. Hypoxia. U.S. Geological Survey. http://toxics.usgs.gov/definitions/hypoxia.html. Accessed December 2009.
\20\ ESA. 2009. Hypoxia. Ecological Society of America. http://www.esa.org/education_diversity/pdfDocs/hypoxia.pdf. Accessed
December 2009.
\21\ USEPA. 2000. Ambient Aquatic Life Water Quality Criteria
for Dissolved Oxygen (Saltwater): Cape Cod to Cape Hattaras.
Environmental Protection Agency, Office of Water, Washington DC PA-
822-R-00-012.
\22\ Ecological Society of America. 2009. Hypoxia. Ecological
Society of America, Washington, DC. http://www.esa.org/education/edupdfs/hypoxia.pdf. Accessed December 2009.
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Primary impacts to humans result directly from elevated nutrient
pollution levels and indirectly from the subsequent water body changes
that occur from increased nutrients (such as algal blooms and toxins).
Direct impacts include effects on human health through drinking water
or consuming toxic shellfish. Indirect impacts include restrictions on
recreation (such as boating, swimming, and kayaking). 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.
Highly elevated nitrogen levels, in the form of nitrate, in
drinking water supplies and private wells can cause methemoglobinemia
(blue baby syndrome, which refers to high levels of nitrate in a baby's
blood that reduce the blood's ability to deliver oxygen to the skin and
organs resulting in a bluish tinge to the skin; in severe cases
methemoglobinemia can lead to coma and death).\23\ Monitoring of
Florida Public Water Supplies from 2004-2007 indicates that violations
of nitrate maximum contaminant levels (MCL) ranged from 34-40
violations annually.\24\ In addition, in the predominantly agricultural
regions of Florida, of 3,949 drinking water wells analyzed for nitrate
by the Florida Department of Agriculture and Consumer Services, (FDACS)
and the FDEP, 2,483 (63%) contained detectable nitrate and 584 wells
(15%) contained nitrate above the U.S. EPA MCL. Of the 584 wells
statewide that exceeded the MCL, 519 were located in the Central
Florida Ridge citrus growing region, encompassed primarily by Lake,
Polk and Highland Counties.\25\ 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
[[Page 4180]]
system problems.26 27 Humans can also be impacted by
accidentally ingesting toxins, resulting from toxic algal blooms in
water, while recreating or by consuming drinking water that still
contains toxins despite treatment. For example, cyanobacteria toxins
can sometimes pass through the normal water treatment process.\28\
After consuming seafood tainted by toxic HABs, humans can develop
gastrointestinal distress, memory loss, disorientation, confusion, and
even coma and death in extreme cases. Some toxins only require a small
dose to cause illness or death.\29\ EPA expects that by addressing
protection of aquatic life uses through the application of the proposed
numeric nutrient criteria in this rulemaking, risks to human health
will also be alleviated, as nutrient levels that represent a balance of
natural populations of flora and fauna will not produce HABs nor result
in highly elevated nitrate levels.
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\23\ USEPA. 2007. Nitrates and Nitrites. U.S. Environmental
Protection Agency. http://www.epa.gov/teach/chem_summ/Nitrates_summary.pdf. Accessed December 2009.
\24\ FDEP 2009. Chemical Data for 2004, 2005, 2006, 2007 and
2008. Florida Department of Environmental Protection. http://www.dep.state.fl.us/water/drinkingwater/chemdata.htm. Accessed
January 2010.
\25\ Southern Regional Water Program. 2010. Drinking Water and
Human Health in Florida. Southern Regional Water Program, http://srwqis.tamu.edu/florida/program-information/florida-target-themes/drinking-water-and-human-health.aspx. Accessed January 2010.
\26\ USEPA. 2009. Drinking Water Contaminants. U.S.
Environmental Protection Agency. Accessed http://www.epa.gov/safewater/hfacts.html. December 2009.
\27\ CFR. 2006. 40 CFR parts 9, 141, and 142: National Primary
Drinking Water Regulations: Stage 2 Disinfectants and Disinfection
Byproducts Rule. Code of Federal Regulations, Washington, DC. http://www.epa.gov/fedrgstr/EPA-WATER/2006/January/Day-04/w03.htm.
Accessed December 2009.
\28\ Carmichael, W.W. 2000. Assessment of Blue-Green Algal
Toxins in Raw and Finished Drinking Water. AWWA Research Foundation,
Denver, CO.
\29\ NOAA. 2009. Marine Biotoxins. National Oceanic and
Atmospheric Administration. http://www.nwfsc.noaa.gov/hab/habs_toxins/marine_biotoxins/index.html. Accessed December 2009.
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Nutrient pollution and eutrophication can also impact the economy
through additional reactive costs, such as medical treatment for humans
who ingest HAB toxins, treating drinking water supplies to remove algae
and organic matter, and monitoring water for shellfish and other
affected resources.
Economic losses from algal blooms and HABs can include reduced
property values for lakefront areas, commercial fishery losses, and
lost revenue from recreational fishing and boating trips, as well as
other tourism-related businesses. Commercial fishery losses occur
because of a decline in the amount of fish available for harvest due to
habitat and oxygen declines. Some HAB toxins can make seafood unsafe
for human consumption, and can reduce the amount of fish bought because
people might question if eating fish is safe after learning of the
presence of the algal bloom.\30\ To put the issue into perspective,
consider the following estimates: For freshwater lakes, losses in
fishing and boating trip-related revenues nationwide due to
eutrophication are estimated to range from $370 million to almost $1.2
billion dollars and loss of lake property values from excessive algal
growth are estimated to range from $300 million to $2.8 billion
annually on a national level.\31\
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\30\ WHOI. 2008. Hearing on 'Harmful Algal Blooms: The
Challenges on the Nation's Coastlines.' Woods Hole Oceanographic
Institution. http://www.whoi.edu/page.do?pid=8916&tid=282&cid=46007. Accessed December 2009.
\31\ 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. Environ.l Sci. Tech.y. 43(1):12-19.
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3. Nutrient Pollution in Florida
Water quality degradation resulting from excess nitrogen and
phosphorus loadings is a documented and significant environmental issue
in Florida. According to Florida's 2008 Integrated Report,\32\
approximately 1,000 miles of rivers and streams, 350,000 acres of
lakes, and 900 square miles of estuaries are impaired for nutrients in
the State. To put this in context, these values represent approximately
5% of the assessed river and stream miles, 23% of the assessed lake
acres, and 24% of the assessed square miles of estuaries that Florida
has listed as impaired in the 2008 Integrated Report.\33\ Nutrients are
ranked as the fourth major source of impairment for rivers and streams
in the State (after dissolved oxygen, mercury in fish, and fecal
coliforms). For lakes and estuaries, nutrients are ranked first and
second, respectively. As discussed above, impairments due to nutrient
pollution result in significant impacts to aquatic life and ecosystem
health. Nutrient pollution also represents, as mentioned above, an
increased human health risk in terms of contaminated drinking water
supplies and private wells.
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\32\ Florida Department of Environmental Protection. 2008.
Integrated Water Quality Assessment for Florida: 2008 305(b) Report
and 303(d) List Update.
\33\ Florida Department of Environmental Protection. 2008.
Integrated Water Quality Assessment for Florida: 2008 305(b) Report
and 303(d) List Update.
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Florida is particularly vulnerable to nutrient pollution.
Historically, the State has experienced a rapidly expanding population,
which is a strong predictor of nutrient loading and associated effects,
and which combined with climate and other natural factors, make Florida
waters sensitive to nutrient effects. Florida is currently the fourth
most populous state in the nation, with an estimated 18 million
people.\34\ Population is expected to continue to grow, resulting in an
expected increase in urban development, home landscapes, and
wastewater. Florida's flat topography causes water to move slowly over
the landscape, allowing ample opportunity for eutrophication responses
to develop. Similarly, small tides in many of Florida's estuaries
(especially on the Gulf coast) also allow for well-developed
eutrophication responses in tidal waters. Florida's warm and wet, yet
sunny, climate further contributes to increased run-off and subsequent
eutrophication responses.\35\ Exchanges of surface water and ground
water contribute to complex relationships between nutrient sources and
the location and timing of eventual impacts.\36\
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\34\ U.S. Census Bureau. 2009. 2008 Population Estimates Ranked
by State. http://factfinder.census.gov.
\35\ Perry, W.B. 2008. Everglades restoration and water quality
challenges in south Florida. Ecotoxicology 17:569-578.
\36\ USGS. 2009. Florida Waters: A Water Resources Manual.
http://sofia.usgs.gov/publications/reports/floridawaters/. Accessed
June 9, 2009.
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In addition, extensive agricultural development and associated
hydrologic modifications (e.g., canals and ditches) amplify the State's
susceptibility to nutrient pollution. Many of Florida's inland areas
have extensive tracts of agricultural lands. Much of the intensive
agriculture and associated fertilizer usage takes place in locations
dominated by poorly drained sandy soils and with high annual rainfall
amounts, two conditions favoring nutrient-rich runoff. These factors,
along with population increase, have contributed to a significant
upward trend in nutrient inputs to Florida's waters.\37\ High
historical water quality and the human and aquatic life uses of many
waterways in Florida often means that very low nutrients, low
productivity, and high water clarity are needed and expected to
maintain uses.
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\37\ Florida Department of Environmental Protection. 2008.
Integrated Water Quality Assessment for Florida: 2008 305(b) Report
and 303(d) List Update.
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B. Statutory and Regulatory Background
Section 303(c) (33 U.S.C. 1313(c)) of the CWA 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
provisions, 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
[[Page 4181]]
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 ``In designating uses of a water
body 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 (CWA
section 303(c)(1)). States are required to submit these new or revised
WQS for EPA review and approval or disapproval (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 proposed in this rulemaking apply to lakes and flowing waters
of the State of Florida. EPA's proposal defines ``lakes and flowing
waters'' to mean inland surface waters that have been classified by
Florida as Class I (Potable Water Supplies Use) or Class III
(Recreation, Propagation and Maintenance of a Healthy, Well-Balanced
Population of Fish and Wildlife Use) water bodies pursuant to Florida
Administrative Code (F.A.C.) Rule 62-302.400, excluding wetlands, and
which are predominantly fresh waters.
C. Water Quality Criteria
EPA has issued guidance for use by states when developing 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. When 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. 40 CFR 131.11(b)(1).
For nutrients, EPA has published under CWA section 304(a) a series
of peer-reviewed, national technical approaches and methods regarding
the development of numeric nutrient criteria for lakes and
reservoirs,\38\ rivers and streams,\39\ and estuaries and coastal
marine waters.\40\ Basic analytical approaches for nutrient criteria
derivation include, but are not limited to: (1) Stressor-response
analysis, (2) the reference condition approach, and (3) mechanistic
modeling. The stressor-response, or effects-based, approach relates a
water body's response to nutrients and identifies adverse effect
levels. This is done by selecting a protective value based on the
relationships of nitrogen and phosphorus field measures with indicators
of biological response. This approach is empirical, and directly
relates to the designated uses. The reference condition approach
derives candidate criteria from distributions of nutrient
concentrations and biological responses in a group of waters.
Measurements are made of causal and response variables and a protective
value is selected from the distribution. The mechanistic modeling
approach predicts a cause-effect relationship using site-specific input
to equations that represent ecological processes. Mechanistic models
require calibration and validation. Each approach has peer review
support by the broader scientific community, and would provide adequate
means for any state to develop scientifically defensible numeric
nutrient criteria.
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\38\ U.S. EPA. 2000a. Nutrient Criteria Technical Guidance
Manual: Lakes and Reservoirs. Office of Water, Washington, DC. EPA-
822-B-00-001.
\39\ U.S. EPA. 2000b. Nutrient Criteria Technical Guidance
Manual: Rivers and Streams. Office of Water, Washington, DC. EPA-
822-B-00-002.
\40\ U.S. EPA. 2001. Nutrient Criteria Technical Manual:
Estuarine and Coastal Marine Waters. Office of Water, Washington,
DC. EPA-822-B-01-003, and wetlands (U.S. EPA, 2007).
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In cases where scientifically defensible numeric criteria cannot be
derived, EPA regulations provide that narrative criteria should be
adopted. 40 CFR 131.11(b)(2). Narrative criteria are descriptions of
conditions necessary for the water body to attain its designated use.
Often expressed as requirements that waters remain ``free from''
certain characteristics, narrative criteria can be the basis for
controlling nuisance conditions such as floating debris or
objectionable deposits. States often establish narrative criteria, such
as ``no toxics in toxic amounts,'' in order to limit toxic pollutants
in waters where the state has yet to adopt an EPA-recommended numeric
criterion and or where EPA has yet to derive a recommended numeric
criterion. For nutrients, in the absence of numeric nutrient criteria,
states have often established narrative criteria such as ``no nuisance
algae.'' Reliance on a narrative criterion to derive NPDES permit
limits, assess water bodies for listing purposes, and establish TMDL
targets can often be a difficult, resource-intensive, and time-
consuming process that entails conducting case-by-case analyses to
determine the appropriate numeric target value based on a site-specific
translation of the narrative criterion. Narrative criteria are most
effective when they are supported by procedures to translate them into
quantitative expressions of the conditions necessary to protect the
designated use.
D. Agency Determination Regarding Florida
On January 14, 2009, EPA determined under CWA section 303(c)(4)(B)
that new or revised WQS in the form of numeric nutrient water quality
criteria are necessary to meet the requirements of the CWA in the State
of Florida. Florida's currently applicable narrative nutrient criterion
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.'' Florida Administrative Code
(F.A.C.) 62-302-530(47)(b). EPA determined that Florida's narrative
nutrient criterion alone was insufficient to ensure protection of
applicable designated uses. The determination recognized that Florida
has a proactive and innovative program to address nutrient pollution
through a strategy of comprehensive National Pollutant Discharge
Elimination System (NPDES) permit regulations, Basin Management Action
Plans (BMAPs) for implementation of TMDLs which include controls on
nonpoint sources, municipal wastewater treatment technology-based
requirements under the 1990 Grizzle-Figg Act, and rules to limit
nutrient 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
intensive efforts to diagnose and control nutrient pollution,
substantial water quality degradation from nutrient over-enrichment
remains a significant challenge in the State and one that is likely to
worsen with continued population growth and land-use changes.
Florida's implementation of its narrative water quality criterion
for nutrients is based on site-specific detailed biological assessments
and analyses, together with site-by-site outreach and stakeholder
engagement in the context of specific CWA-related
[[Page 4182]]
actions, specifically NPDES permits, TMDLs required for both permitting
and BMAP activities, and assessment and listing decisions. 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 nutrient water quality criterion. The State
then determines what levels of nutrients 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 water-by-water basis for thousands of
State waters the levels of nutrients 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 site-specific analyses of the receiving water and any other
affected waters. If the State has not already completed this analysis
for a particular water, it can be very difficult to accurately
determine in the context and timeframe of the NPDES permitting process.
For example, in some cases, adequate data may take several years to
collect and therefore, may not be available for a particular water at
the time of permitting issuance or re-issuance.
When developing TMDLs, as it does when determining reasonable
potential and deriving limits in the permitting context, Florida
translates the narrative nutrient criterion into a numeric target that
the State determines is necessary to meet its narrative criterion and
protect applicable designated uses. This process also involves a site-
specific analysis to determine the nutrient levels that would ``cause
an imbalance in natural populations of aquatic flora or fauna'' in a
particular water. Each time a site-specific analysis is conducted to
determine what the narrative criterion means for a particular water
body in developing a TMDL, the State takes site-specific considerations
into account and devises a method that works with the available data
and information.
In adopting the Impaired Waters Rule (IWR), Florida took important
steps toward improving implementation of its narrative nutrient
criterion by establishing and publishing an assessment methodology to
identify waters impaired for nutrients. This methodology includes
numeric nutrient impairment ``thresholds'' above which waters are
automatically deemed impaired. Even when a listing is made, however,
development of a TMDL is then generally required to support issuance of
a permit or development of a BMAP.
Based on the considerations outlined above, EPA concluded that
numeric criteria for nutrients will enable the State to take necessary
actions to protect the designated uses, in a timelier manner. The
resource intensive efforts to interpret the State's narrative criterion
contribute to delays in implementing the criterion and therefore,
affect the State's ability to provide the needed protections for
applicable designated uses. EPA, therefore, determined that numeric
nutrient criteria are necessary for the State of Florida to meet the
CWA requirement to have criteria that protect applicable designated
uses.
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 use of the narrative
nutrient criterion alone and the resulting delays that it entails do
not ensure protection of applicable designated uses for the many State
waters that are either unimpaired and need protection or have been
listed as impaired and require loadings reductions. EPA determined that
numeric nutrient 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 nutrient criteria will support the State's ability to
effectively partner with point and nonpoint sources to control
nutrients, 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.
The January 14, 2009 determination stated EPA's intent to propose
numeric nutrient criteria for lakes and flowing waters in Florida
within twelve months of the January 14, 2009 determination, and for
estuarine and coastal waters within 24 months of the determination. EPA
has also 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 nutrient 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 requires that final rules be issued by October 15, 2010 for lakes
and flowing waters, and by October 15, 2011 for estuarine and coastal
waters.
In accordance with the determination and EPA's Consent Decree, EPA
is proposing numeric nutrient criteria for Florida's lakes and flowing
waters with this proposed rule. As envisioned in EPA's determination,
this time frame has allowed EPA to utilize the large data set collected
by Florida as part of a detailed analysis of nutrient-impaired waters.
In a separate rulemaking, EPA intends to develop and propose numeric
nutrient criteria for Florida's estuarine and coastal waters by January
14, 2011. EPA's determination did not apply to Florida's wetlands, and
as a result, Florida's wetlands will not be addressed in this
rulemaking or in EPA's forthcoming rulemaking involving estuarine and
coastal waters.
III. Proposed Numeric Nutrient Criteria for the State of Florida's
Lakes and Flowing Waters
A. General Information
(1) Which Water Bodies Are Affected by This Proposed Rule?
The criteria proposed in this rulemaking apply to lakes and flowing
waters of the State of Florida. EPA's proposal defines ``lakes and
flowing waters'' 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 Rule 62-
302.400, F.A.C., excluding wetlands, and which are predominantly fresh
waters. Pursuant to Rule 62-302.200, F.A.C., EPA's proposal 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) and ``surface water'' means water upon the surface of the
Earth, whether contained in bounds created naturally, artificially, or
diffused. Waters 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 proposing numeric nutrient criteria for
the following four water body types: Lakes, streams, springs and clear
streams, and canals in south Florida. EPA's proposal also includes
definitions for each of these waters. ``Lake'' means a freshwater water
body that is not a stream or other watercourse with some open
contiguous water free from emergent vegetation. ``Stream'' means a
free-flowing, predominantly fresh surface water in a
[[Page 4183]]
defined channel, and includes rivers, creeks, branches, canals (outside
south Florida), freshwater sloughs, and other similar water bodies.
``Spring'' means the point where underground water emerges onto the
Earth's surface, including its spring run. ``Spring run'' means a free-
flowing water that originates from a spring or spring group whose
primary (>50%) source of water is from a spring or spring group.
Downstream waters from a spring that receive 50% or more of their flow
from surface water tributaries are not considered spring runs. ``Clear
stream'' means a free-flowing water whose color is less than 40
platinum cobalt units (PCU, which is assessed as true color free from
turbidity). Classification of a stream as clear or colored is based on
the instantaneous color of the sample. Consistent with Rule 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. Consistent with Rule 62-302.200, F.A.C., all secondary and
tertiary canals wholly within Florida's agricultural areas are
classified as Class IV waters, not Class III, and therefore, are not
subject to this proposed rulemaking. The classes of waters, as
specified in this paragraph and as subject to this proposed rulemaking,
are hereinafter referred to as ``lakes and flowing waters'' in this
proposed rule.
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 water body is a water of the
United States is a water body-specific determination. Every water body
that is a water of the United States requires protection 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
nutrient 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 as a State for Section
303 of the CWA, pursuant to Section 518 of the CWA.
(2) Background on EPA's Derivation of Proposed Numeric Nutrient
Criteria for the State of Florida's Lakes and Flowing Waters
In proposing numeric nutrient criteria for Florida's lakes and
flowing waters, EPA developed numeric nutrient criteria to support a
balanced natural population of flora and fauna in Florida lakes and
flowing waters, and to ensure, to the extent that the best available
science allows, the attainment and maintenance of the WQS of downstream
waters. Where numeric nutrient criteria do not yet exist, in proposed
or final form, for a water body type that is downstream from a lake or
flowing water (e.g., estuaries) in Florida, EPA has interpreted the
currently applicable State narrative criterion, ``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,'' to ensure
that the numeric criteria EPA is proposing would not result in nutrient
concentrations that would ``cause an imbalance in natural populations
of aquatic flora or fauna'' in such downstream water bodies. EPA's
actions are consistent with and support existing Florida WQS
regulations. EPA used the best available science to estimate protective
loads to downstream estuaries, and then used these estimates (and
assumptions about the distribution of the load throughout the
watershed), along with mathematical models, to calculate concentrations
in upstream flowing waters that would have to be met to ensure the
attainment and maintenance of the State's narrative criterion
applicable to downstream estuaries.
EPA relied on an extensive amount of Florida-specific data,
collected and analyzed, in large part, by FDEP and then reviewed by
EPA. EPA worked extensively with FDEP on data interpretation and
technical analyses for developing scientifically sound numeric nutrient
criteria for this proposed rulemaking. Because EPA is committed to
ensuring the use of the best available science, the Agency submitted
its criteria derivation methodologies, developed by EPA in close
collaboration with FDEP experts and scientists, to an independent,
external, scientific peer review in July 2009.
To support derivation of EPA's proposed lakes criteria, EPA
searched extensively for relevant and useable lake data. In this case
the effort resulted in 33,622 samples from 4,417 sites distributed
among 1,599 lakes statewide.
Regarding the derivation of EPA's proposed streams criteria, EPA
evaluated water chemistry data from 11,761 samples from 6,342 sites
statewide in the ``all streams'' dataset. EPA also used data collected
for linking nutrients to specific biological responses that consisted
of 2,023 sample records from more than 1,100 streams.
For EPA's proposed springs and clear streams criteria, EPA
evaluated data gathered and synthesized by FDEP using approximately 50
studies including historical accounts, laboratory nutrient amendment
bioassays, field surveys, and TMDL reports that document increasing
patterns of nitrate-nitrite levels and corresponding ecosystem level
responses observed within the last 50 years. At least a dozen of these
studies were used to develop and support the proposed nitrate-nitrite
criterion for spring ecosystems.
For EPA's proposed criteria for canals for south Florida, EPA
started with more than 1,900,000 observations from more than 3,400
canal sites. These were filtered for data relevant to nutrient criteria
development and resulted in observations at more than 500 sites for
variables (nutrient parameter data and chlorophyll a data). Reliance on
these extensive sets of data has enabled EPA to use the best available
information and science to derive robust, scientifically sound criteria
applicable to Florida's lakes and flowing waters.
Section III describes EPA's proposed numeric nutrient criteria for
Florida's lakes, streams, springs and clear streams, and canals and the
associated methodologies EPA employed to derive them. These criteria
are based on sound scientific rationale and will protect applicable
designated uses in Florida's lakes and flowing waters. EPA solicits
public comment on these criteria and their derivation. This preamble
also includes discussions of alternative approaches that EPA considered
but did not select as the preferred option to derive the proposed
criteria. EPA invites public comment on the alternative approaches as
well. In addition, EPA requests public comment on whether the proposed
numeric nutrient criteria are consistent with Florida's narrative
criterion with respect to nutrients at Rule 62-302.530(47)(a), F.A.C.,
specifying that the discharge of nutrients shall be limited as needed
to prevent violations of other standards. EPA seeks scientific data and
information on whether, for example, nutrient criteria should be more
stringent to prevent exceedances of dissolved oxygen criteria.
EPA has created a technical support document that provides detailed
information regarding all methodologies discussed herein and the
derivation of the proposed criteria. This document is entitled
``Technical Support Document for EPA's Proposed Rule For Numeric
Nutrient Criteria for Florida's Inland Surface Fresh Waters''
(hereafter, EPA TSD for Florida's Inland Waters) and is
[[Page 4184]]
located at www.regulations.gov, Docket ID No. EPA-HQ-OW-2009-0596.
B. Proposed Numeric Nutrient Criteria for the State of Florida's Lakes
Florida's 2008 Integrated Water Quality Assessment Report \41\
indicates that Florida lakes provide important habitats for plant and
animal species and are a valuable resource for human activities and
enjoyment. The State has more than 7,700 lakes, which occupy close to
6% of its surface area. The largest lake, Lake Okeechobee (covering
435,840 acres), is the ninth largest lake in surface area in the United
States and the second largest freshwater lake wholly within the
coterminous United States.\42\ Most of the State's lakes are shallow,
averaging seven to 20 feet deep, although many sinkhole lakes and parts
of other lakes are much deeper.
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\41\ FDEP. 2008. Integrated Water Quality Assessment for
Florida: 2008 305(b) Report and 303(d) List Update. Florida
Department of Environmental Protection.
\42\ Fernald, E.A. and E.D. Purdum. 1998. Water Resources Atlas
of Florida. Tallahassee: Institute of Science and Public Affairs,
Florida State University.
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Florida's lakes are physically, chemically, and biologically
diverse. Many lakes are spring-fed, others are seepage lakes fed by
ground water, and still others (about 20%) are depression lakes fed by
surface water sources. For purposes of developing numeric nutrient
criteria, EPA identified two classifications of lakes, colored lakes
and clear lakes, which respond differently to inputs of TN and TP, as
discussed in detail below. EPA further classified the clear lakes into
clear alkaline lakes (relatively high alkalinity) and clear acidic
lakes (relatively low alkalinity), which have different baseline
expectations for the level of nutrients present.
(1) Proposed Numeric Nutrient Criteria for Lakes
EPA is proposing the following numeric nutrient criteria and
geochemical classifications for Florida's lakes classified as Class I
or III waters under Florida law (Rule 62-302.400, F.A.C.):
----------------------------------------------------------------------------------------------------------------
Baseline criteria \b\ Modified criteria (within
Long-term average lake color and Chlorophyll a -------------------------------- these bounds) \c\
alkalinity \f\ ([mu]g/L) -------------------------------
\a\ TP (mg/L) \a\ TN (mg/L) \a\ TP (mg/L) \a\ TN (mg/L) \a\
----------------------------------------------------------------------------------------------------------------
A B C D E F
----------------------------------------------------------------------------------------------------------------
Colored Lakes > 40 PCU.......... 20 0.050 1.23 0.050-0.157 1.23-2.25
Clear Lakes, Alkaline <= 40 PCU 20 0.030 1.00 0.030-0.087 1.00-1.81
\d\ and > 50 mg/L CaCO3 \e\....
Clear Lakes, Acidic <= 40 PCU 6 0.010 0.500 0.010-0.030 0.500-0.900
\d\ and <= 50 mg/L CaCO3 \e\...
----------------------------------------------------------------------------------------------------------------
\a\ Concentration values are based on annual geometric mean not to be surpassed more than once in a three-year
period. In addition, the long-term average of annual geometric mean values shall not surpass the listed
concentration values. (Duration = annual; Frequency = not to be surpassed more than once in a three-year
period or as a long-term average).
\b\ Baseline criteria apply unless data are readily available to calculate and apply lake-specific, modified
criteria as described below in footnote c and the Florida Department of Environmental Protection issues a
determination that a lake-specific modified criterion is the applicable criterion for an individual lake. Any
such determination must be made consistent with the provisions in footnote c below. Such determination must
also be documented in an easily accessible and publicly available location, such as an official State Web
site.
\c\ If chlorophyll a is below the criterion in column B and there are representative data to calculate ambient-
based, lake-specific, modified TP and TN criteria, then FDEP may calculate such criteria within these bounds
from ambient measurements to determine lake-specific, modified criteria pursuant to CWA section 303(c).
Modified TN and TP criteria must be based on at least three years of ambient monitoring data with (a) at least
four measurements per year and (b) at least one measurement between May and September and one measurement
between October and April each year. These same data requirements apply to chlorophyll a when determining
whether the chlorophyll a criterion is met for purposes of developing modified TN and TP criteria. If the
calculated TN and/or TP value is below the lower value, then the lower value is the lake-specific, modified
criterion. If the calculated TN and TP value is above the upper value, then the upper value is the lake-
specific, modified criterion. Modified TP and TN criteria may not exceed criteria applicable to streams to
which a lake discharges. If chlorophyll a is below the criterion in column B and representative data to
calculate modified TN and TP criteria are not available, then the baseline TN and TP criteria apply. Once
established, modified criteria are in place as the applicable WQS for all CWA purposes.
\d\ Platinum Cobalt Units (PCU) assessed as true color free from turbidity. Long-term average color based on a
rolling average of up to seven years using all available lake color data.
\e\ If alkalinity data are unavailable, a specific conductance of 250 micromhos/cm may be substituted.
\f\ 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.
The following section describes the methodologies EPA used to
develop its proposed numeric nutrient criteria for lakes. EPA is
soliciting comments and scientific data regarding the proposed criteria
for lakes and their derivation. Section III.B(4) describes one
alternative approach and two supplementary modifications considered by
the Agency in developing this lakes proposal. EPA solicits comments and
data on that approach and those modifications.
(2) Methodologies for Deriving EPA's Proposed Criteria for Lakes
The process used to develop proposed numeric nutrient criteria for
a range of diverse waters begins with grouping those waters into
categories that generally have a common response to elevated levels of
the stressor pollutants, in this case TN and TP. The following sections
provide a discussion of (1) the lake classification approach for this
proposal, (2) identification of an appropriate response variable and
the levels of that variable that indicate or represent healthy aquatic
conditions associated with each water body classification, and (3) the
concentrations of TN and TP that correspond to protective levels of the
response variable, in this case, chlorophyll a.
EPA has recommended that nutrient criteria include both causal
(e.g., TN and TP) and response variables (e.g., chlorophyll a and some
measure of clarity) when establishing numeric nutrient criteria for
water bodies.\43\ EPA
[[Page 4185]]
recommends causal variables, in part, to have the means to develop
source control targets and, in part, to have the means to assess water
body conditions with knowledge that responses can be variable,
suppressed, delayed, or expressed at different locations. EPA
recommends response variables, in part, to have a means to assess water
body conditions that synthesize the effect of causal variables over
time, recognizing the daily, seasonal, and annual variability in
measured nutrient levels.\44\ The ability to establish protective
criteria for both causal and response variables depends on available
data and scientific approaches to evaluate these data. For its lake
criteria, EPA is proposing causal variables for TN and TP and a
response variable for chlorophyll a. For water clarity, Florida has
criteria for transparency and turbidity, applicable to all Class I and
III waters, expressed in terms of a measurable deviation from natural
background (Rules 32-302.530(67) and (69), F.A.C.). For further
information on this topic, refer to EPA's TSD for Florida's Inland
Waters.
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\43\ U.S. EPA. 1998. National Strategy for the Development of
Regional Nutrient Criteria. Office of Water, Washington, DC. EPA
822-R-98-002; Grubbs, G. 2001. U.S. EPA. (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. November 14, 2001); Grumbles, B.H. 2007. U.S. EPA.
(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. May 25, 2007).
\44\ U.S. EPA. 2000. Nutrient Criteria Technical Guidance
Manual: Rivers and Streams. Office of Water, Washington, DC. EPA-
822-B-00-002.
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Interested readers should consult EPA TSD for Florida's Inland
Waters, Chapter 1: Methodology for Deriving U.S. EPA's Proposed
Criteria for Lakes, for more detailed information, data, and graphs
supporting the development of the proposed lake criteria.
(a) Methodology for Proposed Lake Classification
Based on analyses of geochemical influences in Florida's lakes, EPA
proposes the following classification scheme for Florida lakes: (1)
Colored Lakes > 40 Platinum Cobalt Units (PCU), (2) Clear Lakes <= 40
PCU with alkalinity > 50 mg/L calcium carbonate (CaCO3), and
(3) Clear Lakes <= 40 PCU with alkalinity <= 50 mg/L CaCO3.
Following original work conducted by FDEP, EPA considered several
key characteristics to categorize Florida's lakes and tailor numeric
nutrient criteria, recognizing that different types of lakes in Florida
may respond differently to nutrients. Many of Florida's lakes contain
dissolved organic matter leached from surface vegetation that 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 nutrients may occur without exceeding
desired algal levels. EPA evaluated the relationships between nutrients
and algal responses for these waters (as measured by chlorophyll a
concentration), which indicated that water color influences algal
responses to nutrients. Based on this analysis, EPA found color to be a
significant factor for categorizing lakes. More specifically, EPA found
the correlations between nutrients and chlorophyll a concentrations to
be stronger and less variable when lakes were categorized into two
distinct groups based on a threshold of 40 PCU. This threshold is
consistent with the distinction between clear and colored lakes long
observed in Florida.\45\ Different relationships between nutrients and
chlorophyll a emerged when lakes were characterized by color, with
clear lakes demonstrating greater sensitivity to nutrients as would be
predicted by the increased light penetration, which promotes algal
growth.
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\45\ Shannon, E.E. and P.L. Brezonik. 1972. Limnological
characteristics of north and central Florida lakes. Limnol.
Oceanogr. 17(1): 97-110.
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Within the clear lakes category, where color is not generally the
controlling factor in algal growth, EPA evaluated alkalinity as an
additional distinguishing characteristic. Calcium carbonate
(CaCO3), dissolved from limestone formations and calcareous
soils, affects the alkalinity and pH of groundwater that feeds into
lakes. Alkalinity and pH increase when water is in contact with
limestone or limestone-derived soil. Limestone is also a source of TP,
and lakes that are higher in alkalinity in Florida are often associated
with naturally elevated TP levels. These types of lakes are often in
areas of the State where the underlying geology includes limestone. The
alkalinity (measured as CaCO3) of Florida clear lakes ranges
from zero to well over 200 mg/L. FDEP's Nutrient Criteria Technical
Advisory Committee (TAC) evaluated available data from Florida lakes
and concluded that 50 mg/L alkalinity as CaCO3 is an
appropriate threshold above which associated nutrient levels would be
expected to be significantly elevated among clear lakes. EPA concluded
that FDEP's proposed approach of using 50 mg/L alkalinity as
CaCO3 is an appropriate distinguishing characteristic in
clear lakes in Florida because lakes with alkalinity <=50
CaCO3 represent a comprehensive group of lakes that may be
naturally oligotrophic. Thus, EPA proposes to classify Florida clear
lakes as either acidic (<=50 mg/L alkalinity as CaCO3) or
alkaline (>50 mg/L alkalinity as CaCO3).
EPA recognizes that in certain cases FDEP may not have historic
alkalinity data on record to classify a particular clear lake as either
alkaline or acidic. When alkalinity data are unavailable, EPA proposes
a specific conductivity threshold of 250 microSiemens per centimeter
([mu]S/cm) as a substitute for the threshold of 50 mg/L alkalinity as
CaCO3. Specific conductivity is a measure of the ionic
activity in water and a data analysis performed by FDEP and re-examined
by EPA found that a specific conductivity threshold value of 250 [mu]S/
cm is sufficiently correlated with alkalinity to serve as a surrogate
measure. Of these two measures, alkalinity is the preferred parameter
to measure because it is less variable and therefore, a more reliable
indicator, and also because it is a more direct measure of the presence
of underlying geology associated with elevated nutrient levels.
EPA solicits comment on the proposed categorization scheme and
associated thresholds used to classify Florida's lakes. Please see
Section III.B(4)(b) below in which EPA invites comment on alternative
lake categorization approaches that EPA considered, in particular,
those approaches with respect to alkalinity classification and lakes
occurring in sandhills of northwestern and central Florida.
(b) Methodology for Proposed Chlorophyll a Criteria
Because excess algal growth is associated with degradation in
aquatic life and because chlorophyll a levels are a measure of algal
growth, EPA is using chlorophyll a levels as indicators of healthy
biological conditions, supportive of aquatic life in each of the
categories of Florida's lakes described above. EPA found multiple lines
of evidence supporting chlorophyll a criteria as an effective indicator
of ambient conditions that would be protective of Florida's aquatic
life use in lakes. These lines of evidence included trophic state of
lakes, historical reference conditions in Florida lakes, and model
results.
As a primary line of evidence, EPA reviewed and evaluated the
Trophic State Index (TSI) information in deriving chlorophyll a
criteria that are protective of designated aquatic life uses in
Florida's lakes. The TSI quantifies the degree of eutrophication
(oligotrophic, mesotrophic, eutrophic) \46\ in a water body based on
observed measurements of nutrients and chlorophyll a. These types of
boundaries are commonly used in scientific literature and represent an
[[Page 4186]]
established, scientific classification system to describe current
status and natural expectations for lake conditions with respect to
nutrients and algal productivity.\47\ EPA's review of TSI studies
\48\ \49\ indicated that in warm-water lakes such as those
in Florida, TSI values of 50, 60, and 70 are associated with
chlorophyll a concentrations of 10, 20, and 40 micrograms per liter
([mu]g/L), respectively. Studies indicated that mesotrophic lakes in
Florida have TSI values ranging from 50 to 60 and eutrophic lakes have
TSI values ranging from 60 to 70. Thus a TSI value of 60 (chlorophyll a
concentration of 20 [mu]g/L) represents the boundary between mesotrophy
and eutrophy. EPA concluded that mesotrophic status is the appropriate
expectation for colored and clear alkaline lakes because they receive
significant natural nutrient input and support a healthy diversity of
aquatic life in warm, productive climates such as Florida, and
mesotrophy represents a lake maintaining a healthy balance between
benthic macrophytes (i.e., plants growing on the lake bottom) and algae
in such climates under such conditions. However, clear acidic lakes in
Florida do not receive comparable natural nutrient input to be
classified as mesotrophic, and for those lakes, EPA has developed
criteria that correspond to an oligotrophic status. Oligotrophic lakes
support less algal growth and have lower chlorophyll a levels. Studies
indicate that a TSI value of 45 reflects an approximate boundary
between oligotrophy and mesotrophy (corresponding to chlorophyll a at
about 7 [mu]g/L). EPA requests comment on these conclusions regarding
oligotrophic and mesotrophic status expectations for these categories
of Florida lakes.
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\46\ Trophic state describes the nutrient and algal state of an
aquatic system: Oligotrophic (low nutrients and algal productivity),
mesotrophic (moderate nutrients and algal productivity), and
eutrophic (high nutrients and algal productivity).
\47\ Carlson, R.E. 1977. A trophic state index for lakes.
Limnol. Oceanogr. 22:361-369.
\48\ Carlson, R.E. 1977. A trophic state index for lakes.
Limnol. Oceanogr. 22:361-369.
\49\ Salas and Martino. 1991. A simplified phosphorus trophic
state index for warm water tropical lakes. Wat. Res. 25:341-350.
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Another line of evidence that supports EPA's proposed chlorophyll a
criteria is historical reference conditions. Diatoms are a very common
type of free-floating algae (i.e., phytoplankton) that have shells or
``frustules'' made of silica that are preserved in the fossil record.
Diatoms preserved in lake sediments can be used to infer chlorophyll a
levels in lakes prior to any human disturbance. Paleolimnological
studies \50\ that examined preserved diatom frustules in Florida lake
sediments indicate that historical levels of chlorophyll a are
consistent with mesotrophic expectations derived from the TSI studies
described above, with chlorophyll a levels falling just below the
selected criterion for mesotrophic lakes. (These studies did not
evaluate lakes expected to be naturally oligotrophic so there is no
comparable information for those lakes).
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\50\ Whitmore and Brenner. 2002. Paleologic characterization of
pre-disturbance water quality conditions in EPA defined Florida lake
regions. Univ. Florida Dept. Fisheries and Aquatic Sciences. 30 pp.
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In addition to this evidence, EPA used information from the
application of a Morphoedaphic Index (MEI) model \51\ that predicts
nutrient and chlorophyll a concentrations for any lake given its depth,
alkalinity, and color to support the proposed chlorophyll a criteria.
Scientists from the St. John's Water Management District presented
modeling results for various Florida lakes in each colored and clear
category at the August 5, 2009 meeting of the Nutrient Criteria TAC in
Tallahassee. In addition to predicting natural or reference conditions,
these scientists used the model to predict chlorophyll a and TP
concentrations associated with a 10% reduction in water transparency
for a set of lakes with varying color levels and alkalinities. Because
submerged aquatic vegetation is dependent on light, maintaining a
lake's historic balance between algae and submerged aquatic plants
requires maintaining overall water transparency. The risk of disrupting
the balance between algae and submerged aquatic plants increases when
reductions in transparency exceed 10%. The MEI predictions corroborated
the results from lake TSI studies and investigations of
paleolimnological reference conditions because natural or reference
predictions (i.e., a ``no effect'' level) were generally below selected
criteria levels and 10% transparency loss predictions (i.e., a
``threshold effect'' level) were at or slightly above selected criteria
levels. EPA considered these lines of evidence to develop the proposed
chlorophyll a criteria, discussed below by lake class:
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\51\ Vighi and Chiaudani. 1985. A simple method to estimate lake
phosphorus concentrations resulting from natural background
loadings. Wat. Res.19:987-991.
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(i) Colored Lakes: EPA proposes a chlorophyll a criterion of 20
[mu]g/L in colored lakes to protect Florida's designated aquatic life
uses. As indicated by the warm-water TSI studies discussed above,
chlorophyll a concentrations of 20 [mu]g/L represent the boundary
between mesotrophy and eutrophy. Because mesotrophy maintains a healthy
balance of plant and algae populations in these types of lakes,
limiting chlorophyll a concentrations to 20 [mu]g/L would, therefore,
protect colored lakes in Florida from the adverse impacts of
eutrophication. Paleolimnological studies of six colored lakes in
Florida demonstrated natural (i.e., before human disturbance)
chlorophyll a levels in the range of 14-20 [mu]g/L and the MEI model
predicted reference chlorophyll a concentrations of 1-25 [mu]g/L for a
set of colored lakes in Florida. The model also predicted that
concentrations of chlorophyll a ranging from 15-36 [mu]g/L in
individual lakes would result in a 10% loss of transparency (all but
two lakes were above 20 [mu]g/L). Because of natural variability, it is
typical for ranges of natural or reference conditions to overlap with
ranges of where adverse effects may begin occurring (such as the 10%
transparency loss endpoint) for any sample population of lakes. In
addition, these modeling results, as with any line of evidence, have
uncertainty associated with any individual lake prediction. Given these
considerations, EPA found that because the clear majority (eight of
eleven) of lakes had predicted natural or referenced conditions below
20 [mu]g/L chlorophyll a and the clear majority (nine of eleven) of
lakes had predicted 10% transparency loss above 20 [mu]g/L chlorophyll
a, these results supported the TSI-based proposed chlorophyll a
criterion.
(ii) Clear, Alkaline Lakes: EPA proposes a chlorophyll a
concentration of 20 [mu]g/L in clear, alkaline lakes to protect
Florida's designated aquatic life uses. As noted in Section
III.B(2)(a), alkalinity and TP are often co-occurring inputs to Florida
lakes because of the presence of TP in limestone, which is often a
feature of the geology in Florida. Clear, alkaline lakes, therefore,
are likely to be naturally mesotrophic. EPA's analysis determined that
aquatic life in clear, alkaline lakes is protected at similar
chlorophyll a levels as colored lakes (at the TSI boundary between
mesotrophy and eutrophy). The MEI model predicted reference chlorophyll
a concentrations of 12-24 [mu]g/L for a set of clear, alkaline lakes in
Florida, and predicted a 10% loss of transparency when chlorophyll a
concentrations ranged from 19-33 [mu]g/L. Similar to the results for
colored lakes, half of the clear, alkaline lakes had predicted natural
or referenced conditions at or below 20 [mu]g/L chlorophyll a and all
but one clear,
[[Page 4187]]
alkaline lake had predicted 10% transparency loss above 20 [mu]g/L
chlorophyll a. Thus, EPA found this evidence to be supportive of the
proposed chlorophyll a criterion. EPA solicits comment on this
chlorophyll a criterion and the evidence EPA used to support the
criterion.
(iii) Clear, Acidic Lakes: EPA proposes a chlorophyll a
concentration of 6 [mu]g/L in clear, acidic lakes to ensure balanced
natural populations of flora and fauna (i.e., aquatic life) in these
lakes. In contrast to colored lakes and clear, alkaline lakes, this
category of lakes does not receive significant natural nutrient inputs
from groundwater or other surface water sources. EPA has thus based the
proposed criteria on an expectation that these lakes should be
oligotrophic in order to support balanced natural populations of flora
and fauna. Some of Florida's clear, acidic lakes, in the sandhills in
northwestern and central Florida, have been identified as extremely
oligotrophic \52\ with chlorophyll a levels of less than 2 [mu]g/L. As
discussed above, warm water TSI studies suggest a chlorophyll a level
of approximately 7 [mu]g/L at the oligotrophic-mesotrophic boundary.
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\52\ Canfield, D.E., Jr., M.J. Maceina, L.M. Hodgson, and K.A.
Langeland. 1983. Limnological features of some northwestern Florida
lakes. J. Freshw. Ecol. 2:67-79; Griffith, G.E., D.E. Canfield, Jr.,
C.A. Horsburgh, J.M. Omernik, and S.H. Azevedo. 1997. Lake regions
of Florida. Map prepared by U.S. EPA, Corvallis, OR; available at
http://www.epa.gov/wed/pages/ecoregions/fl_eco.htm (accessed 10/09/
2009).
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In July 2009, FDEP proposed a chlorophyll a criterion for clear,
acidic lakes of 9 [mu]g/L.\53\ In comments sent to EPA via e-mail in
October 2009,\54\ FDEP reported that the Nutrient TAC suggested in June
2009 that maintaining chlorophyll a below 10 [mu]g/L in clear, acidic
lakes would be protective of the designated use, because a value of <
10 [mu]g/L would still be categorized as oligotrophic. However, EPA's
review of the TSI categorization based on the work of Salas and Martino
(1991) on warm water lakes indicates that a chlorophyll a of 10 [mu]g/L
(TSI of 50) would better represent the central tendency of the
mesotrophic category rather than the oligotrophic-mesotrophic boundary.
In the October 2009 comments, FDEP also presented an analysis of lake
data that showed lack of correlation between an index of benthic
macroinvertebrate health and chlorophyll a levels in the range of 5-10
[mu]g/L as supporting evidence for a chlorophyll a criterion of 9
[mu]g/L in clear acidic lakes. However, within this small range of
chlorophyll a, it is not surprising that a correlation with an
indicator responsive to numerous aspects of natural conditions and
stressors such as benthic macroinvertebrate health would not exhibit a
clear statistical relationship. Importantly, there was some evidence of
meaningful distinctions within the range of 5-10 [mu]g/L chlorophyll a
based on endpoints more directly responsive to nutrients. In this case,
the MEI model predicted reference chlorophyll a concentrations within
the range of 1.4-7.0 [mu]g/L (with seven of the eight values below 5
[mu]g/L) for a set of clear, acidic lakes in Florida, and predicted a
10% loss of transparency when chlorophyll a concentrations ranged from
5.6-11.8 [mu]g/L (with five of the eight values below 7 [mu]g/L). All
but one of the clear, acid lakes had predicted natural or reference
conditions below 6 [mu]g/L chlorophyll a and the majority (six of
eight) of clear, alkaline lakes had predicted 10% transparency loss
above 6 [mu]g/L chlorophyll a. Given available information on reference
condition and predicted effect levels, EPA adjusted the approximate
oligotrophic-mesotrophic boundary value of 7 [mu]g/L slightly downward
to 6 [mu]g/L as the proposed chlorophyll a criterion. For determining
the proposed chlorophyll a criterion in the three lake categories, only
in this case for clear, acid lakes did EPA use reference condition
information and predicted effect levels for more than just support of
the value coming from the TSI-based line of evidence, and in this case
EPA deviated from that value by only 1 [mu]g/L.
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\53\ More information on this issue is available on FDEP's Web
site at http://www.dep.state.fl.us/water/wqssp/nutrients/docs/dep_responses_100909.pdf and included in the ``External Peer Review of
EPA's `Proposed Methods and Approaches for Developing Numeric
Nutrient Criteria for Florida's Inland Waters' '' and EPA's TSD for
Florida's Inland Waters located in the docket ID No. EPA-HQ-OW-2009-
0596.
\54\ FDEP document titled, ``DEP's Responses to EPA's 9/16
Comment Letter.'' October 9, 2009. Located in the docket ID EPA-HQ-
OW-2009-0596.
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EPA specifically solicits comment on the chlorophyll a criterion of
6 ug/L and the evidence EPA used to support the criterion. EPA also
solicits comment on whether a higher criterion of 9 ug/L, as proposed
by Florida in its July 2009 proposed nutrient WQS, would be fully
protective of clear acidic lakes, and the scientific basis for such a
conclusion.
(c) Methodology for Proposed Total Phosphorus (TP) and Total Nitrogen
(TN) Criteria in Lakes
EPA proposes TP and TN criteria for each of the classes of lakes
described in Section III.B(2)(a). The proposed TP and TN criteria are
based principally on independent statistical correlations between TN
and chlorophyll a, and TP and chlorophyll a for clear and colored lakes
in Florida. Each data point used in the statistical correlations
represents a geometric mean of samples taken over the course of a year
in a particular Florida lake. After establishing the protective levels
of chlorophyll a as 20 [mu]g/L for colored lakes and clear alkaline
lakes and 6 [mu]g/L for clear acidic lakes, EPA evaluated the data on
TN and TP concentrations associated with these chlorophyll a levels and
the statistical analyses performed by FDEP in support of the State's
efforts to develop numeric nutrient criteria.
These analyses showed that the response dynamics of TN and TP with
chlorophyll a were different 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 the
correlation relationships for TN and TP compared with chlorophyll a in
acidic and alkaline clear lakes were comparable, as would be expected
because alkalinity does not affect light penetration. These analyses
are available in EPA's TSD for Florida's Inland Waters, Chapter 1:
Methodology for Deriving U.S. EPA's Proposed Criteria for Lakes.
The difference between clear, acidic and clear, alkaline lakes is
that clear, alkaline lakes naturally receive more nutrients and,
therefore, have an expected trophic status of mesotrophic to maintain a
healthy overall production and balance of plants and algae. On the
other hand, clear, acidic lakes naturally receive much lower nutrients
and, therefore, have an expected trophic status of oligotrophic to
maintain a healthy, but lower than mesotrophic, level of plant and
algae aquatic life. Because of the different expectations for trophic
condition, different chlorophyll a criteria are appropriate (as
mentioned earlier, chlorophyll a is a measure of algal production).
Although clear, alkaline lakes and colored lakes have the same proposed
chlorophyll a criterion, they will have different TP and TN criteria
because of the effect of color on light penetration and algal growth.
The TN and TP values EPA is proposing are based on the lower and
upper TN and TP values derived from the 50th percentile prediction
interval of the regression (i.e., best-fit line) through the
chlorophyll a and corresponding TN or TP values plotted on a
logarithmic scale. In other words, the prediction interval displays the
range of TN and TP values typically associated with a given chlorophyll
a concentration. At any given chlorophyll a concentration, there will
be a lower
[[Page 4188]]
TN or TP value and an upper TN or TP value corresponding to this
prediction interval. EPA agrees with the FDEP approach that uses the
50th percentile prediction interval because it effectively separates
the data into three distinct groups. This analysis of the substantial
lake data collected by Florida indicates that the vast majority of
monitored lakes with nutrient levels below the lower TN or TP value
have associated chlorophyll a values below the protective chlorophyll a
threshold level. Similarly, the vast majority of monitored lakes with
measured nutrient levels above the upper TN or TP value have associated
measured chlorophyll a values above the protective chlorophyll a
threshold level. Between these TN and TP bounds, however, this analysis
indicates that monitored lakes are equally likely to be above or below
the protective chlorophyll a threshold level. Setting TN and TP
criteria based on the bounds of the 50th percentile prediction
interval, in conjunction with lake-specific knowledge of whether the
lake chlorophyll a threshold is met, accounts for the naturally
variable behavior of TN and TP while ensuring protection of aquatic
life.
EPA's proposed criteria framework sets a protective chlorophyll a
threshold and TN and TP criteria at the lower values of the range
defined by the 50th percentile prediction interval for the three
different categories of lakes as ``baseline'' criteria. The criteria
framework also provides flexibility for FDEP to derive lake-specific,
modified TN and TP criteria within the bounds of the upper and lower
values based on at least three years of ambient measurements where a
chlorophyll a threshold is not exceeded. More specifically, if the
chlorophyll a criterion for an individual lake is met for a period of
record of at least three years, then the corresponding TN and TP
criteria may be derived from ambient measurements of TN and TP from
that lake within the bounds of the lower and upper values of the
prediction interval discussed above. Both the ambient chlorophyll a
levels as well as the corresponding ambient TN and TP concentrations in
the lake must be established with at least three years worth of data.
EPA's proposed rule provides that these modified criteria need to be
documented by FDEP. EPA's rule, however, does not require that FDEP go
through a formal SSAC process subject to EPA review and approval.
In this proposed rule, EPA specifies that in no case, however, may
the modified TN and TP criteria be higher than the upper value
specified in the criteria bounds, nor lower than the lower value
specified in the criteria bounds. In addition to nutrients, chlorophyll
a in a lake may be limited by high water color, zooplankton grazing,
mineral turbidity, or other unknown factors. In the absence of
detailed, site-specific knowledge, the upper values represent
increasing risk that chlorophyll a will exceed its criterion value. To
maintain the risk at a manageable level, the upper values are not to be
exceeded. EPA requests comments on this approach. EPA also requests
comment on whether the rule should specify that the modified TN and TP
criteria be set at levels lower than the lower value of the criteria
bounds if that is what is reflected in the outcome of the ambient-based
calculation.
EPA's proposed approach for TN and TP criteria in lakes reflects
the natural variability in the relationship between chlorophyll a
concentrations and corresponding TP and TN concentrations that may
exist in lakes. This variability remains even after some explanatory
factors such as color and alkalinity are addressed by placing lakes in
different categories based on color and alkalinity because other
natural factors play important roles. Natural variability in the
physical, chemical, and biological dynamics for any individual lake may
result from differences in geomorphology, concentrations of other
constituents in lake waters, hydrological conditions and mixing, and
other factors.
This approach allows for consideration of readily available site-
specific data to be taken into account in the expression of TN and TP
criteria, while still ensuring protection of aquatic life by
maintaining the associated chlorophyll a level at or below the proposed
chlorophyll a criterion level. Because the chlorophyll a level in a
lake is the direct measure of algal production, it can be used to
evaluate levels that pose a risk to aquatic life. The scientific
premise for the lake-specific ambient calculation provision for
modified TN and TP criteria is that if ambient lake data show that a
lake's chlorophyll a levels are below the established criteria and its
TN and/or TP levels are within the lower and upper bounds, then those
ambient levels of TN and TP represent protective conditions. Basing the
ambient calculation upon at least three years worth of data is a
condition set to address and account for year-to-year hydrologic
variability in the derivation of modified criteria. EPA requests
comment on the requirement of three years worth of data for both
chlorophyll a and TN and TP in order to use this option. Specifically,
are there situations in which less than three years of data might be
adequate for an adjusted TN or TP criterion?
EPA selected the proposed TP and TN criteria based on the
relationships with chlorophyll a described above. However, the MEI
modeling results described in Section III.B(2)(b) also provide
additional support for the TP criteria selection. The MEI predicted a
10% transparency loss when TP concentrations ranged from 0.053-0.098
mg/L in colored lakes (with one predicted value at 0.037 mg/L), from
0.038-0.068 mg/L in clear, alkaline lakes, and from 0.012-0.024 mg/L in
clear, acidic lakes. All but one of these predicted values are within
the lower and upper bounds of the proposed TP criteria. The MEI
modeling results did not address TN.
(d) Proposed Criteria: Duration and Frequency
Numeric criteria include magnitude (i.e., how much), duration
(i.e., how long), and frequency (i.e., how often) components. Beginning
with EPA's 2004 Integrated Report Guidance,\55\ EPA has used the term
``exceeding criteria'' to refer to situations where all criteria
components are not met. The term ``digression'' refers to an ambient
level that goes beyond a level specified by the criterion-magnitude
(e.g., in a given grab sample). The term ``excursion'' refers to
conditions that do not meet the criterion-magnitude and criterion-
duration, in combination. A criterion-frequency specifies the maximum
rate at which ``excursions'' may occur.
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\55\ USEPA. Guidance for 2004 Assessment, Listing and Reporting
Requirements Pursuant to Sections 303(d) and 305(b) of the Clean
Water Act. http://www.epa.gov/OWOW/tmdl/tmdl0103/Accessed December
2009.
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For the chlorophyll a, TN, and TP criteria for lakes, the
criterion-magnitude values (expressed as a concentration) are provided
in the table and the criterion-duration (or averaging period) is
specified as annual. The criterion-frequency is no-more-than-once-in-a-
three-year period. In addition, the long-term arithmetic average of
annual geometric mean values shall not exceed the criterion-magnitude
values (concentration values).
Appropriate duration and frequency components of criteria should be
based on how the data used to derive the criteria were analyzed, and
what the implications are for protection of designated uses given the
effects of exposure at the specified criterion concentration for
different periods of time and recurrence patterns. For lakes, the
stressor-response relationship was based on annual geometric means for
[[Page 4189]]
individual years at individual lakes. The appropriate duration period
is therefore annual. The key question is whether this annual geometric
mean needs to be met every year, or if some allowance for a particular
year to exceed the applicable criterion could still be considered
protective.
Data that contribute to the analysis of TSI, as well as data
generated from supporting paleolimnological studies and MEI modeling,
typically represent periods of time greater than a single year.
Moreover, many of the models and analyses that form the basis of TSI
results are designed to represent the ``steady-state,'' or long-term
stable water quality conditions. However, researchers have suggested
caution in applying steady-state assumptions to lakes with long
residence times.\56\ In other words, the effects of spikes in annual
loading could linger and disrupt the steady-state in some lakes. As a
result, EPA is proposing two expressions of allowable frequency, both
of which are to be met. First, EPA proposes a no-more-than-one-in-
three-years excursion frequency for the annual geometric mean criteria
for lakes. Second, EPA proposes that the long-term arithmetic average
of annual geometric means not exceed the criterion-magnitude
concentration. EPA anticipates that Florida will use its standard
assessment periods as specified in Rule 62-303, F.A.C. (Impaired Waters
Rule) to implement this second provision. These selected frequency and
duration components recognize that hydrological variability will
produce variability in nutrient regimes, and individual measurements
may exceed the criteria magnitude concentrations. Furthermore, they
balance the representation of underlying data and analyses based on the
central tendency of many years of data (i.e., the long-term average
component) with the need to exercise some caution to ensure that lakes
have sufficient time to process individual years of elevated nutrient
levels and 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 TSD for Florida's Inland
Waters, Chapter 1: Methodology for Deriving U.S. EPA's Proposed
Criteria for Lakes.
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\56\ Kenney (1998) as reported in Salas and Martino (1991).
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EPA requests comment on these proposed criteria duration and
frequency expressions, and the basis for their derivation. EPA notes
that some scientists and resource managers have suggested that nutrient
criteria duration and frequency expressions should be more restrictive
to avoid seasonal or annual ``spikes'' from which the aquatic system
cannot easily recover, whereas others have suggested that criteria
expressed as simply a long-term average of annual geometric means,
consistent with data used in criteria derivation, would still be
protective. EPA also requests comment on any alternative duration and
frequency expressions that might be considered protective, including
(1) a criterion-duration expressed as a monthly average or geometric
mean, (2) a criterion-frequency expressed as meeting allowable
magnitude and duration every year, (3) a criterion-frequency expressed
as meeting allowable magnitude and duration in more than half the years
of a given assessment period, and (4) a criterion-frequency expressed
as meeting allowable magnitude and duration as a long-term average
only. EPA further requests comment on whether an expression of the
criteria in terms of an arithmetic average of annual geometric mean
values based on rolling three-year periods of time would also be
protective of the designated use.
(e) Application of Lake-Specific, Ambient Condition-Based Modified TP
and TN Criteria
As described in Section III.B(2)(c), EPA is proposing a framework
that uses both the upper and lower bounds of the 50th percentile
prediction interval to allow the derivation of modified TP and TN lake-
specific criteria to account for the natural variability in the
relationship between chlorophyll a and TP and TN that may exist in
certain lakes. The proposed rule would allow FDEP to calculate ambient
modified criteria for TN and TP based on at least three years of
ambient monitoring data with (a) at least four measurements per year
and (b) at least one measurement between May and September and one
measurement between October and April each year. If a calculated
modified TN and TP criterion is below the lower value, then the lower
value is the criteria. If a calculated modified TN and TP criterion is
above the upper value, then the upper bound is the criteria. Calculated
modified TP and TN values may not exceed criteria applicable to streams
to which a lake discharges.
EPA's proposed rule provides that FDEP must document these modified
criteria and establish them in a manner that clearly recognizes their
status as the applicable criterion for a particular lake so that the
public and all regulatory authorities are aware of its existence.
However, EPA's proposed rule does not require that FDEP go through a
formal SSAC process subject to EPA review and approval. (For more
information on the SSAC process, please refer to Section V of this
proposal). EPA believes such modified criteria do not need to go
through the SSAC process because the conditions under which they are
applicable are clearly stated in the proposed rule and the methods of
calculation are clearly laid out so that the outcome is predictable and
transparent. 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
approval by EPA.
One technical concern is the extent to which the variability in the
data relating chlorophyll a levels to TN and TP levels truly reflects
differences between lakes, as opposed to temporal differences in the
conditions in the same lake. To address this issue, EPA verified that
the observed variability in the supporting analysis was indeed
predominantly ``across lake'' variability, not ``within lake''
variability.
Another technical concern is that there may be a time lag between
the presence of high nutrients and the biological response. In a study
of numerous lakes, researchers found that there was often a lag period
of a few years in chlorophyll a response to changes in nutrient
loading, but that there was correlation between chlorophyll a and
nutrient concentrations on an annual basis.\57\ The difference between
nutrient loading and nutrient concentration as a function of time is
related to the hydraulic retention time of a lake. EPA proposed TN and
TP criteria as concentration values with an annual averaging period, so
any time lag in response would not be expected to confound the
derivation of modified criteria. Furthermore, EPA is proposing to
require three years worth of data, which would reflect any short time
lag in response.
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\57\ Jeppeson et al. 2005. Lake responses to reduced nutrient
loading--an analysis of contemporary long-term data from 35 case
studies. Freshwater Biology 50: 1747-1771.
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A third technical concern is the presence of temporary or long-term
site-specific factors that may suppress biological response, such as
the presence of grazing zooplankton, excess sedimentation that blocks
light penetration, extensive canopy cover, or seasonal herbicide use
that impedes proliferation of algae. If any of these suppressing
factors are removed, then nutrient levels may result in a spike in
algal production above protective levels.
[[Page 4190]]
EPA is proposing to require that the ambient calculation for
modified TP and TN criteria be based on at least a three-year record of
observation, and be based on representative sampling (i.e., four
samples per year with at least one between May and September and one
between October and April) during each year. These requirements will
minimize the influence of long-term site-specific factors and ensure
longer-term stable conditions. EPA selected three years as a reasonable
minimum length of time to appropriately account for anomalous
conditions in any given year that could lead to erroneous conclusions
regarding the true relationship between nutrient levels in a lake and
chlorophyll a levels. EPA anticipates that the State would use all
recent consecutive years of data on record (i.e., it would not be
appropriate to select three random years within a complete record over
the past seven years). EPA is requiring four measurements within a year
to provide seasonal representation (i.e., May-September and October-
April). Providing seasonal representation is important because nutrient
levels can vary by season. In addition, this minimum sample size is
conducive to the derivation of central tendency measurements, such as a
geometric mean, with an acceptable degree of confidence. EPA is
proposing that the chlorophyll a criterion must be met in each of the
three or more years of ambient monitoring that define the record of
observation for the lake to be eligible for the ambient calculation
modified provision for TN and TP. EPA requests comment on whether three
years of data is sufficient to establish for a particular lake that
there is a fundamentally different relationship between chlorophyll a
levels and TN and TP levels. EPA also requests comment on whether less
data or a different specification would be sufficient to establish this
different relationship in a particular lake, e.g. whether revised TN
and TP ambient criteria should be allowed when the chlorophyll a
criterion concentration has been exceeded once in three years.
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 TP values as the
applicable numeric nutrient criteria for TN and TP. For accountability
and tracking purposes, the State would need to document in a publicly
available and accessible manner, such as on an official State Web site,
the result of the ambient calculation for any given lake. The State may
wish to issue a public notification, with an opportunity to submit
additional data and check calculations, to ensure an appropriate value
is determined. The State may wish to publicly certify the outcome via a
Secretarial order or some other official statement of intent and
applicability. EPA's preference is that once modified criteria are
developed, they remain the applicable criteria for the long-term. The
State has the flexibility to revise the criteria, but the expectation
is that they will not be a continuously moving target for
implementation purposes. As an example of how the lakes criteria might
work in practice, consider a colored lake which meets the chlorophyll a
criterion. If FDEP established a modified TP criterion of 0.110 mg/L
and subsequent monitoring showed levels at 0.136 mg/L, that lake would
not be considered attaining the applicable criteria for CWA purposes
(unless the State goes through the process of establishing a revised
modified criterion).
The permitting authority would use publicly certified modified TN
or TP criteria to develop water quality-based effluent limits (WQBELs)
that derive from and comply with applicable WQS. In this application,
the permit writer would use the modified ambient criterion, computed as
described above, as the basis for any reasonable potential analysis or
permit limit derivation. In this case, as in any other case, EPA
expects the details to be fully documented in the permit fact sheet.
This type of ambient calculation provision based on meeting
response criteria applicable to the assessed water may not be
appropriate when the established TN and TP criteria are serving to
maintain and protect waters downstream. To address this concern, EPA
proposes that calculated TP and TN values in a lake that discharges to
a stream may not exceed criteria applicable to the stream to which a
lake discharges. EPA requests comment on this provision.
(3) Request for Comment and Data on Proposed Approach
EPA is soliciting comment on the approaches described in this
proposal, the data underlying those approaches, and the proposed
criteria. EPA will evaluate all data and information submitted by the
close of the public comment period for this rulemaking with regard to
nutrient criteria for Florida's lakes. For the application of the
modified ambient calculation provision, EPA is seeking comment on
allowing the calculation to occur one time only, based on an adequate
period of record, and then holding that value as the protective TP or
TN criteria for future assessment and implementation purposes. EPA is
also seeking comment on whether to require an ambient chlorophyll a
level demonstrated to be below the chlorophyll a threshold criterion
for at least three years become the protective chlorophyll a criterion
for a lake subject to the modified ambient calculation provision (i.e.,
whether to require a more stringent chlorophyll a criterion if three
years of data show that the more stringent level reflects current
conditions in the lake). EPA also requests comment on whether an
additional condition for being able to apply a modified criterion
include continued ambient monitoring and verification that chlorophyll
a levels remain below the protective criterion. EPA could specify that
modified criteria remain in effect as long as FDEP subsequently
conducts monthly (or some other periodic) monitoring of the lake to
ensure that chlorophyll a levels continue to meet the protective
criterion. If this monitoring is not conducted and documented, EPA
could specify that the baseline criterion would become the applicable
criterion. Among others, this provision may address concerns about
whether the modified criterion adequately represents long-term
hydrologic variability. Finally, EPA requests comment on the
appropriate procedure for documenting and tracking the results of
modified criteria that allows transparency, public access, and
accountability.
(4) Alternatives Considered by EPA
During EPA's review of the available data and information for
development of numeric nutrient criteria for Florida's lakes, EPA
considered and is soliciting comment on an alternative approach to
deriving lakes criteria from the statistical correlation plots and
regression analysis. The alternative approach would use either the
central tendency values or the lower values associated with the 50th
percentile prediction interval for TN and TP criteria and would not
include the framework to calculate modified TP and TN criteria when the
chlorophyll a criterion is met. EPA is also seeking comments on the
following two supplementary modifications that EPA considered but did
not include in this proposal: (1) the use of a modified categorization
of lakes in Florida; and (2) the addition of upper percentile criteria
with a different exceedance frequency.
[[Page 4191]]
(a) Single Value Approach To Derive Lakes Criteria--Derive TN and TP
Criteria Using Correlations Associated With the Regression Line or
Lower Value of the 50th Percentile Prediction Interval
One alternative means of selecting TN and TP criteria is to use the
regression line (central tendency) to calculate TP and TN
concentrations that correlate to the proposed chlorophyll a criteria
for each lake class. A second alternative is to use the lower value of
the 50th percentile prediction interval to calculate TP and TN
concentrations. Establishing TP and TN criteria using the central
tendency of the regression line represents the best estimate of TN and
TP associated with a protective chlorophyll a criterion across all
lakes, but carries some risk of being overprotective for some
individual lakes and under-protective for others because of the
demonstrated variability of the data. On the other hand, establishing
TP and TN criteria using the lower value of the 50th percentile
prediction interval will likely be protective in most cases, but could
be overprotective for a greater number of lakes because the data
demonstrate that many lakes achieve the protective chlorophyll a
criterion with higher levels of TN and TP. Neither approach accounts
for lake-specific natural variability, apart from that accounted for by
color and alkalinity classification. However, the correlated TP and TN
concentrations within each lake class at these alternative statistical
boundaries would result in single criteria values for TN and TP, which
is an approach that water quality program managers will have more
familiarity. EPA's rationale for proposing a framework that uses both
the upper and lower values of the 50th percentile prediction interval
to allow the derivation of modified TN and TP lake-specific criteria
rather than either of these single values was to account for the
natural variability in the relationship between chlorophyll a and TN
and TP that may exist in lakes. EPA solicits comment, however, on this
alternative approach of using single values for TN and TP criteria in
Florida's lakes.
(b) Modification to Proposed Lakes Classification
As discussed in Section III.B(2)(a), EPA used available data to
determine a classification scheme for Florida's lakes, based on a color
threshold of 40 PCU and a threshold of 50 mg/L alkalinity as
CaCO3. In its July 2009 numeric nutrient criteria proposal,
Florida considered a similar classification approach based on color and
alkalinity but proposed a chlorophyll a criterion of 9 [micro]g/L to
protect aquatic life in clear, acidic lakes. As discussed above, EPA
believes that the scientific evidence more strongly supports a
chlorophyll a criterion of 6 [micro]g/L to protect Florida's clear,
acidic lakes that include the very oligotrophic lakes found in
Florida's sandhills, principally in three areas: the Newhope Ridge/
Greenhead slope north of Panama City (locally called the Sandhill Lakes
region); the Norfleet/Springhill Ridge just west of Tallahassee, and
Trail Ridge northeast of Gainesville.\58\ However, some stakeholders
have suggested that many lakes in the clear, acidic class (as currently
defined) might be sufficiently protected with a chlorophyll a criterion
of 9 [micro]g/L. EPA believes the scientific basis for a 9 [micro]g/L
chlorophyll a value may be more applicable to clear acidic lakes other
than those in Florida's sandhills (i.e., other than those in the
Sandhill Lakes region, the Norfleet/Springhill Ridge just west of
Tallahassee and Trail Ridge northeast of Gainesville). To address this,
EPA could separate clear, acidic lakes into two categories: one
category for clear, acidic lakes in sandhill regions of Florida, and a
second category for clear, acidic lakes in other areas of the State.
EPA could assign the first category (clear, acidic sandhill lakes) a
chlorophyll a criterion of 6 [micro]g/L and the second category (clear,
acidic non-sandhill lakes) a chlorophyll a criterion of 9 [micro]g/L.
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\58\ Griffith, G.E., D.E. Canfield, Jr., C.A. Horsburgh, J.M.
Omernik, and S.H. Azevedo. 1997. Florida lake regions. U.S. EPA,
Corvallis, OR. http://www.epa.gov/wed/pages/ecoregions/fl_eco.htm.
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Alternatively, EPA could lower the defining alkalinity threshold to
20 mg/L CaCO3 so that the clear, acidic lakes category would
only include lakes with very acidic values and correspondingly low
chlorophyll a, TN, and TP values. EPA's analysis of a distribution of
alkalinity data from Florida's clear lakes found that lakes with
alkalinity values >= 20 mg/L CaCO3 had higher levels of
nutrients and nutrient response parameters than lakes with alkalinity
values < 20 mg/L CaCO3. By adjusting the alkalinity
threshold to 20 mg/L CaCO3, EPA would be creating a smaller
group of clear, acidic lakes that may be more representative of
naturally more acidic, oligotrophic conditions than the proposed
alkalinity threshold of 50 mg/L CaCO3. EPA opted to propose
a threshold of 50 mg/L CaCO3 because it represents a more
comprehensive group of lakes that may be naturally oligotrophic (i.e.,
ensures protection where there may be some uncertainty). EPA solicits
comment on these alternative approaches to classifying Florida's lakes.
EPA also notes, as discussed previously, that FDEP recommended a
criterion of 9 [mu]g/L as being protective of all clear acidic lakes,
including sandhill lakes and that the Nutrient Criteria TAC supported
``less than 10 [mu]g/L'' as protective. EPA also requests comment on 9
[mu]g/L chlorophyll a as being protective of all clear acidic lakes,
including sandhill lakes.
(c) Modification To Include Upper Percentile Criteria
EPA is considering promulgating upper percentile criteria for
chlorophyll a, TN, and TP in colored, clear alkaline, and clear acidic
lakes to provide additional aquatic life protection. Accordingly, EPA
could add that the instantaneous concentration in the lake not surpass
these criterion-magnitude concentrations more than 10% of the time
(criterion-duration: instant; criterion-frequency: 10% of the time).
EPA derived example upper percentile criteria using the observed
standard deviation from the mean of lake samples meeting the respective
criteria (lower values of the TN and TP ranges) within each lake class.
Using this example, the calculated criteria-magnitude concentrations
for chlorophyll a, TN, and TP respectively by lake class are: 63 [mu]g/
L, 1.5 mg/L and 0.09 mg/L for colored lakes; 48 [mu]g/L, 1.8 mg/L and
0.05 mg/L for clear, alkaline lakes; and 15 [mu]g/L, 0.6 mg/L and 0.02
mg/L for clear, acidic lakes.
These criteria would provide the means to protect lakes from
episodic events that increase loadings for significant periods of time
during the year, but are balanced out by lower levels in other parts of
the year such that the annual geometric mean value is met. EPA chose
not to propose such criteria because of the significant variability of
chlorophyll a, TN, and TP, the variety of other factors that may
influence levels of these parameters in the short-term, and that
significant environmental damage from eutrophication is more likely
when levels are elevated for longer periods of time. However, EPA
solicits comment on this additional approach of promulgating upper
percentile criteria for chlorophyll a, TN, and TP.
(5) Request for Comment and Data on Alternative Approaches
EPA is soliciting comment on the Agency's proposed approach, as
well as the alternative approach to deriving numeric nutrient criteria
for Florida's lakes and the supplemental modifications as described in
Section III.B(4). EPA will evaluate all data and
[[Page 4192]]
information submitted by the close of the public comment period for
this rulemaking with regard to nutrient criteria for Florida's lakes.
C. Proposed Numeric Nutrient Criteria for the State of Florida's Rivers
and Streams
(1) Proposed Numeric Nutrient Criteria for Rivers and Streams
EPA is proposing numeric nutrient criteria for TN and TP in four
geographically distinct watershed regions of Florida's rivers and
streams (hereafter, streams) classified as Class I or III waters under
Florida law (Rule 62-302.400, F.A.C.).
------------------------------------------------------------------------
Instream protection value
criteria
Nutrient watershed region -------------------------------
TN (mg/L) \a\ TP (mg/L) \a\
------------------------------------------------------------------------
Panhandle \b\........................... 0.824 0.043
Bone Valley \c\......................... 1.798 0.739
Peninsula \d\........................... 1.205 0.107
North Central \e\....................... 1.479 0.359
------------------------------------------------------------------------
\a\ Concentration values are based on annual geometric mean not to be
surpassed more than once in a three-year period. In addition, the long-
term average of annual geometric mean values shall not surpass the
listed concentration values. (Duration = annual; Frequency = not to be
surpassed more than once in a three-year period or as a long-term
average).
\b\ Panhandle region includes the following watersheds: Perdido Bay
Watershed, Pensacola Bay Watershed, Choctawhatchee Bay Watershed, St.
Andrew Bay Watershed, Apalachicola Bay Watershed, Apalachee Bay
Watershed, and Econfina/Steinhatchee Coastal Drainage Area.
\c\ Bone Valley region includes the following watersheds: Tampa Bay
Watershed, Sarasota Bay Watershed, and Charlotte Harbor Watershed.
\d\ Peninsula region includes the following watersheds: Waccasassa
Coastal Drainage Area, Withlacoochee Coastal Drainage Area, Crystal/
Pithlachascotee Coastal Drainage Area, Indian River Watershed,
Caloosahatchee River Watershed, St. Lucie Watershed, Kissimmee River
Watershed, St. John's River Watershed, Daytona/St. Augustine Coastal
Drainage Area, Nassau Coastal Drainage Area, and St. Mary's River
Watershed.
\e\ North Central region includes the Suwannee River Watershed.
The following section describes the methodology used to derive the
proposed numeric nutrient criteria for streams. EPA is soliciting
comments and scientific data and information regarding these proposed
criteria and their derivation.
(2) Methodology for Deriving EPA's Proposed Criteria for Streams
Like other aquatic ecosystems, excess nutrients in streams
increases vegetative growth (plants and algae), and changes the
assemblage of plant and algal species present in the system. These
changes can affect the organisms that are consumers of algae and plants
in many ways. For example, these changes can alter the available food
resources by providing more dead plant material versus live plant
material, or providing algae with a different cell size 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, these changes 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, can also be affected by
excess nutrients. Each of these changes can, in turn, lead to other
changes in the stream community and, ultimately, to the stream ecology
that supports the overall function of the linked aquatic ecosystem.
Although the general types of adverse effects can be described, not
all of these effects will occur in every stream at all times. For
example, some streams are well shaded, which would tend to reduce the
near-field effect of excess nutrients on primary production because
light, which is essential for plant or algae growth, does not reach the
water surface. Some streams are fast moving and pulses of nutrients are
swiftly carried away before any effect can be observed. However, if the
same stream widens and slows downstream or the canopy that provided
shading opens up, then the nutrients present may accelerate plant and
algal biomass production. As another example, the material on the
bottom of some streams, referred to as substrate, is frequently scoured
from intense rain storms. These streams may lack a natural grazing
community to consume excess plant growth and may be susceptible to
phytoplankton algae blooms during periods when water velocity is slower
and water residence time is longer. The effects of excess nutrients may
be subtle or dramatic, easily captured by measures of plant and algal
response (such as chlorophyll a) or not, and may occur in some
locations along a stream but not others.
Notwithstanding natural environmental variability, there are well
understood and documented analyses and principles about the underlying
biological effects of TN and TP on an aquatic ecosystem. There is a
substantial and compelling scientific basis for the conclusion that
excess TN and TP will have adverse effects; however, it is often
unclear where precisely the impacts will occur. The value of regional
numeric nutrient criteria for streams is that the substantial
expenditure of time and scarce public resources to document and
interpret inevitable and expected stream variability on a site-by-site,
segment-by-segment basis (i.e., as in the course of interpreting a
narrative WQS for WQBELs and TMDL estimations) is no longer necessary.
Rather, regional numeric nutrient criteria for streams allows an
expedited and expanded level of aquatic protection across watersheds
and greatly strengthens local and regional capacity to support and
maintain State designated uses throughout aquatic ecosystems. In terms
of environmental outcomes, the result is a framework of expectations
and standards that is able to extend the protection needed to restore
and maintain valuable aquatic resources to entire watersheds and
associated aquatic ecosystems. At the same time, the ability to
promulgate SSAC, as well as other flexibilities discussed in this
proposal, allows the State to continue to address water bodies where
substantial data and analyses show that the regional criteria may be
either more stringent than necessary or not stringent enough to protect
designated uses.
As mentioned earlier, to effectively apply this well understood and
documented science, EPA has recommended that nutrient criteria
[[Page 4193]]
include both causal (e.g., TN and TP) and response variables (e.g.,
chlorophyll a and some measure of clarity) for water bodies.\59\ EPA
recommends causal variables, in part, to have the means to develop
source control targets and, in part, to have the means to assess stream
condition with knowledge that responses can be variable, suppressed,
delayed, or expressed at different locations. EPA recommends response
variables, in part, to have a means to assess stream condition that
synthesizes the effect of causal variables over time, recognizing the
daily, seasonal, and annual variability in measured nutrient
levels.\60\
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\59\ U.S. EPA. 1998. National Strategy for the Development of
Regional Nutrient Criteria. Office of Water, Washington, DC. EPA
822-R-98-002; Grubbs, G. 2001. U.S. EPA. (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. November 14, 2001); Grumbles, B.H. 2007. U.S. EPA.
(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. May 25, 2007).
\60\ U.S. EPA. 2000. Nutrient Criteria Technical Guidance
Manual: Rivers and Streams. Office of Water, Washington, DC. EPA-
822-B-00-002.
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The ability to establish protective criteria for both causal and
response variables depends on available data and scientific approaches
to evaluate these data. Whereas, there are data available for water
column chlorophyll a (phytoplankton) and algal thickness on various
substrates (periphyton) for certain types of streams in Florida, there
are currently no available approaches to interpret these data to infer
scientifically supported thresholds for these nutrient-specific
response variables in Florida streams. Additionally, in previously
published guidance,\61\ EPA has recommended water clarity as a response
variable for numeric nutrient criteria because algal density in a water
column results in turbidity, and thus a related decrease in water
clarity can serve as an indicator of excess algal growth. For water
clarity, Florida has criteria for transparency and turbidity,
applicable to all Class I and III waters, expressed in terms of a
measurable deviation from natural background (32-302.530(67) and (69),
F.A.C.). Therefore, EPA is not proposing criteria for any response
variable in Florida's streams at this time, however, EPA will consider
additional data that becomes available during the comment period. One
approach for deriving criteria for water quality variables such as a
measure for water clarity or chlorophyll a, could be to apply a
statistical distribution approach to a population of streams for each
of the proposed NWRs. This approach is further described in previous
EPA guidance.\62\
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\61\ U.S. EPA. 2000. Nutrient Criteria Technical Guidance
Manual: Lakes and Reservoirs. Office of Water, Washington, DC. EPA-
822-B-00-001; U.S. EPA. 2000. Nutrient Criteria Technical Guidance
Manual: Rivers and Streams. Office of Water, Washington, DC. EPA-
822-B-00-002; U.S. EPA. 2001. Nutrient Criteria Technical Manual:
Estuarine and Coastal Marine Waters. Office of Water, Washington,
DC. EPA-822-B-01-003.
\62\ U.S. EPA. 2000. Nutrient Criteria Technical Guidance
Manual: Rivers and Streams. Office of Water. 4304. EPA-822-B-00-002.
---------------------------------------------------------------------------
For Florida streams, EPA has determined that there are sufficient
available data on TN and TP concentrations with corresponding
information on biological condition for a wide variety of stream types
that can be used to derive numeric nutrient criteria for those causal
variables. EPA used multiple measures of stream condition (or metrics)
that describe the biological condition of the benthic invertebrate
community. EPA then coupled the stream condition metrics with
associated measurements of TN and TP concentrations to provide the
basis for deriving causal variable numeric nutrient criteria.
EPA's proposed instream numeric nutrient criteria for Florida's
streams are based upon EPA's evaluation of data on TN and TP levels in
rivers and streams that have been carefully evaluated by FDEP, and
subsequently by EPA, on a site-specific basis and identified as
biologically healthy. EPA's approach results in numeric criteria that
are protective of the streams themselves. EPA has determined, however,
that these instream values may not always be protective of the
designated uses in downstream lakes and estuaries. Therefore, EPA has
also developed an approach for deriving TN and TP values for rivers and
streams to ensure the protection of downstream lakes and estuaries.
This approach is discussed in Section III.C(6).
(a) Methodology for Stream Classification: EPA's Nutrient Watershed
Regions (NWRs)
EPA classified Florida's streams north of Lake Okeechobee by
separating watersheds with a substantially different ratio of TN and TP
export into Nutrient Watershed Regions (NWR). The resulting regions
reflect the inherent differences in the natural factors that contribute
to nutrient concentrations in streams (e.g., geology, soil composition,
and/or hydrology). Reliance on a watershed-based classification
approach reflects the understanding that upstream water quality affects
downstream water quality. This watershed classification also
facilitates the ability to address the effects of TN and TP from
streams to downstream lakes or estuaries in the same watershed.
EPA's classification approach results in four watershed regions:
the Panhandle, the Bone Valley, the Peninsula, and the North Central
(for a map of these regions, refer to the EPA TSD for Florida's Inland
Waters or the list of watersheds in the table above). These four
regions do not include the south Florida region (corresponding to
FDEP's Everglades Bioregion) that is addressed separately in Section
III.E which sets out EPA's proposed numeric nutrient criteria for
canals in south Florida. All flowing waters in this region are either a
canal or a wetland.
When classifying Florida's streams, EPA identified geographic areas
of the State as having phosphorus-rich soils and geology, such as the
Bone Valley and the northern Suwannee River watershed. As indicated
above, the Bone Valley region and the Suwannee River watersheds are
classified in this proposal as separate NWRs because it is well
established that the naturally phosphorus-rich soils in these areas
significantly influence stream phosphorus concentrations in these
watersheds. EPA would expect from a general ecological standpoint that
the associated aquatic life uses, under these naturally-occurring,
nutrient-rich conditions, would be supported. The Agency requests
comment on this particular classification decision (regions based on
phosphorus-rich soils), as well as an alternate classification approach
that would not separate out the phosphorus-rich watersheds described in
this notice. The latter approach is similar to the approach proposed by
EPA, but would not result in separate NWRs for the Bone Valley and/or
North Central. Rather these NWRs would be integrated within the other
NWRs.
(b) The Use of the Stream Condition Index as an Indicator of
Biologically Healthy Conditions
For EPA's proposed approach, the Agency utilized a multi-metric
index of benthic macroinvertebrate community composition and taxonomic
data known as the Stream Condition Index (SCI) developed by FDEP to
assess the
[[Page 4194]]
biological health of Florida's streams.\63\ Of the metrics that
comprise the SCI, some decrease in response to human disturbance-based
stressors, such as excess nutrients; for example, (1) total taxa
richness, (2) richness of Ephemeroptera (mayflies), (3) richness of
Plecoptera (stoneflies), (4) percentage of sensitive taxa, and (5)
percentage of filterers and suspension feeders. Other metrics increase
in response to human disturbance-based stressors; for example, percent
of very tolerant taxa (e.g., Genera Prostoma, Lumbriculus) and percent
of the dominant taxa (i.e., numerical abundance of the most dominant
taxon divided by the total abundance of all taxa).
---------------------------------------------------------------------------
\63\ The SCI method was developed and calibrated by FDEP. See
``Fore et al. 2007. Development and testing biomonitoring tools for
macroinvertebrates in Florida streams (Stream Condition Index and
BioRecon). Final report to Florida Department of Environmental
Protection'' and the EPA TSD for Florida's Inland Waters for more
information on the SCI.
---------------------------------------------------------------------------
The SCI was developed by FDEP in 2004, with subsequent revisions in
2007 to reduce the variability of results. In order to ensure that data
are produced with the highest quality, field biologists and lab
technicians must follow detailed Standard Operating Procedures (SOPs)
and additional guidance for sampling and data use provided through a
FDEP document entitled ``Sampling and Use of the Stream Condition Index
(SCI) for Assessing Flowing Waters: A Primer (DEP-SAS-001/09).'' Field
biologists must pass a rigorous audit with FDEP, and laboratory
taxonomists are regularly tested and must maintain greater than 95%
identification accuracy.
EPA considered two lines of evidence in determining the SCI range
of scores that would indicate biologically healthy systems. The first
line of evidence was an evaluation of SCI scores in streams considered
by FDEP to be least-disturbed streams in Florida. A statistical
analysis balanced the probability of a stream being included in this
reference set with the probability of a stream not being included in
this reference set, and indicated that an SCI score of 40 was an
appropriate threshold. SCI scores range from 1 to 100 with higher
scores indicating healthier biology.
A second line of evidence was the result of an expert workshop
convened by FDEP in October 2006. The workshop included scientists with
specific knowledge and expertise in stream macroinvertebrates. These
experts were asked to individually and collectively evaluate a range of
SCI data (i.e., macroinvertebrate composition and taxonomic data) and
then assign those data into one of the six Biological Condition
Gradient (BCG) \64\ categories, ranging from highly disturbed (Category
6) to pristine (Category 1). EPA analyzed the results of these
categorical assignments using a proportional odds regression model \65\
that predicts the probability of an SCI score occurring within one of
the BCG categories by overlapping the ranges of SCI scores associated
with each category from the individual expert assignment. The results
of the analysis provided support for identifying a range of SCI scores
that minimized the probability of incorrectly assigning a low quality
site to a high quality category, and incorrectly assigning a high
quality site to a low quality category, using the collective judgment
of expert opinion. The results indicated a range of SCI scores of 40-44
to represent an appropriate threshold of healthy biological condition.
Please refer to the EPA TSD for Florida's Inland Waters for more
information on such topics as EPA's estimates of the Type I and Type II
error associated with various threshold values. Thus, two very
different approaches yielded comparable results. A subsequent EPA
statistical analysis indicated that nutrient conditions in Florida
streams within different regions remain essentially constant within an
SCI score range of 40-50 providing further support for a selection of
40 as a threshold that is sufficiently protective for this application.
The resulting TN and TP concentrations associated with a SCI score of
40 versus 50 did not represent a statistical difference and 40 was more
in line with other lines of evidence for a SCI score threshold.
---------------------------------------------------------------------------
\64\ Appendix H in ``Fore et al. 2007. Development and testing
biomonitoring tools for macroinvertebrates in Florida streams
(Stream Condition Index and BioRecon). Final report to Florida
Department of Environmental Protection''.
\65\ See the EPA TSD for Florida's Inland Waters for more
information on the proportional odds regression model.
---------------------------------------------------------------------------
(c) Methodology for Calculating Instream Protection Values: The
Nutrient Watershed Region Distribution Approach
EPA evaluated several methodologies, including reference conditions
and stressor-response relationships, to develop values that protect
designated uses of Florida streams instream. EPA analyzed stressor-
response relationships in Florida streams based on available data, but,
as mentioned above, did not find sufficient scientific support for
their use in the derivation of numeric nutrient criteria for Florida
streams. More specifically, EPA was not able to demonstrate a
sufficiently strong correlation between the biological response
indicators (e.g., chlorophyll a, periphyton biomass, or SCI) and TN or
TP concentrations. Thus, the Agency could not confidently predict a
specific biological response (such as an SCI score) for an individual
stream solely from the associated stream measurements of TN or TP
concentrations.
There may be several reasons why empirical relationships between
field-derived data of nutrient stressor and biological response
variables show a relatively weak correlation. First, the relationship
between nutrient concentrations and a biological response, such as
algal growth, can be confounded by the presence of other stressors. For
example, other stressors, such as excessive scour could cause low
benthic invertebrate diversity, as measured by the SCI, even where
nutrients are low. Excessive scour could also suppress a biological
response (such as chlorophyll a or periphyton biomass) when nutrients
are high. Another reason for stressor-response relationships with low
correlations is that algal biomass accumulation is difficult to
characterize because dynamic conditions in an individual stream can
allow algae to accumulate and be removed rapidly, which is difficult to
capture with periodic monitoring programs.
As an alternative to the stressor-response approach, EPA analyzed
the TN and TP concentrations associated with a healthy biological
condition in streams, and examined the statistical distributions of
these data in order to identify an appropriate threshold for providing
protection of aquatic life designated uses. To derive the instream
protection values under this approach, EPA first assembled the
available nutrient concentrations and biological response data for
streams in Florida. EPA used FDEP's data from the IWR and STORET \66\
databases and identified sites where SCI scores were 40 and higher. EPA
further screened these sites by cross-referencing them with Florida's
CWA section 303(d) list for Florida and excluded sites with identified
nutrient impairments or dissolved oxygen impairments associated with
elevated nutrients. EPA grouped the remaining sites (hereafter,
biologically healthy sites) according to its nutrient watershed regions
(Panhandle, Bone Valley, Peninsula, and North Central). For each
nutrient watershed region, EPA compiled nutrient data (TN and TP
[[Page 4195]]
concentrations) associated with the biologically healthy sites, and
calculated distributional statistics for annual average TN and TP
concentrations.
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\66\ FL IWR and STORET can be found at: http://www.dep.state.fl.us/WATER/STORET/INDEX.HTM.
---------------------------------------------------------------------------
The second step in deriving instream protection values was to
further characterize the distribution of TN and TP among biologically
healthy sites. Specifically, EPA calculated the number of biologically
healthy sites within integer log-scale ranges of TN and TP
concentrations, as well as the cumulative distribution. These nutrient
distributions from biologically healthy sites in each nutrient
watershed region are represented on a log-scale because concentration
data are typically log-normally distributed. A log-normal distribution
is skewed, with a mode near the geometric mean rather than the
arithmetic mean.
The third step in deriving instream protection values was to
determine appropriate thresholds from these distributions for providing
protection of aquatic life designated uses. Selection of a central
tendency of the distribution (i.e., the median or geometric mean of a
log-normal distribution) would imply that half of the biologically
healthy sites are not attaining their uses. In contrast, an extreme
upper end of the distribution (e.g., the 90th or 95th percentile) may
be the most likely to be heavily influenced by extreme event factors
that are not representative of typically biologically healthy sites.
This might be the case because the upper tail of the distribution might
reflect a high loading year (landscape and/or atmospheric), and/or lack
of nutrient uptake by algae (in turn due to a myriad of physical and
biological factors like scour, grazing, light limitation, other
pollutants). Thus, this tail of the distribution may just represent the
most nutrient ``tolerant'' among the sites. Another possibility is that
these streams may experience adverse effects from nutrient enrichment
that are not yet reflected in the SCI score. A reasonable choice for a
threshold is one which lies just above the vast majority of the
population of healthy streams. This choice is reasonable because it
reflects a point where most biologically healthy sites will still be
identified as attaining uses, but avoids extrapolations into areas of
the distribution characterized by only a few data points (as would be
the case for the 90th or 95th percentile). When a threshold is
established as a water quality criterion, sites well below that
threshold might be allowed to experience an increase in nutrient levels
up to the threshold level. There is little assurance that biologically
healthy sites with nutrient concentrations well below the 90th or 95th
percentile would remain biologically healthy if nutrient concentrations
increased to those levels because relatively few sites with nutrient
concentrations as high as those at the 90th or 95th percentile are
demonstrated to be biologically healthy.
The range between the 25th and 75th percentiles, or inter-quartile
range, is a common descriptive statistic used to characterize a
distribution of values. For example, statistical software packages
typically include the capability to display distributions as ``box and
whisker'' plots, which very prominently identify the inter-quartile
range. The inter-quartile range of a log normal distribution spans a
smaller range of values than the inter-quartile range of a distribution
of the data evenly spread across the entire range of values. This means
that the further a value goes past the 75th percentile of a log normal
distribution, the less representative it is of the majority of data (in
this case, less representative of biologically healthy sites). Within
the inter-quartile range of a log normal distribution, the slope of the
cumulative frequency distribution will be the greatest. The 75th
percentile represents a reasonable upper bound of where there is the
greatest confidence that biologically healthy sites will be
represented. Beyond the inter-quartile range (i.e., below the 25th
percentile and above the 75th percentile), there is a greater chance
that measurements may represent anomalies that would not correspond to
long-term healthy conditions in the majority of streams. Based on this
analysis, EPA concluded that the 75th percentile represents an
appropriate and well-founded protective threshold derived from a
distribution of nutrient concentrations from biologically healthy
sites. EPA solicits comment on its analysis of what constitutes a
protective threshold.
(d) Proposed Criteria: Duration and Frequency
Aquatic life water quality criteria contain three components:
Magnitude, duration, and frequency. For the TN and TP numeric criteria
for streams, the derivation of the criterion-magnitude values is
described above and these values are provided in the table in Section
III.C(1). The criterion-duration of this magnitude is specified in
footnote a of the streams criteria table as an annual geometric mean.
EPA is proposing two expressions of allowable frequency, both of which
are to be met. First, EPA proposes a no-more-than-one-in-three-years
excursion frequency for the annual geometric mean criteria for lakes.
Second, EPA proposes that the long-term arithmetic average of annual
geometric means not to exceed the criterion-magnitude concentration.
EPA anticipates that Florida will use their standard assessment periods
as specified in Rule 62-303, F.A.C. (Impaired Waters Rule) to implement
this second provision. These proposed 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 an occasionally elevated year of nutrient
loadings. The Agency requests comment on these proposed duration and
frequency components of the stream numeric nutrient criteria.
EPA notes that some scientists and resource managers have suggested
that nutrient criteria duration and frequency expressions should be
more restrictive to avoid seasonal or annual ``spikes'' from which the
aquatic system cannot easily recover, whereas others have suggested
that criteria expressed as simply a long-term average of annual
geometric means, consistent with data used in criteria derivation, and
would still be protective. EPA requests comment on alternative duration
and frequency expressions that might be considered protective,
including (1) a criterion-duration expressed as a monthly average or
geometric mean, (2) a criterion-frequency expressed as meeting
allowable magnitude and duration every year, (3) a criterion-frequency
expressed as meeting allowable magnitude and duration in more than half
the years of a given assessment period, and (4) a criterion-frequency
expressed as meeting allowable magnitude and duration as a long-term
average only. EPA further requests comment on whether an expression of
the criteria in terms of an arithmetic average of annual geometric mean
values based on rolling three-year periods of time would also be
protective of the designated use.
(3) Request for Comment and Data on Proposed Approach
EPA is soliciting comments on the approaches taken by the Agency to
derive these proposed criteria, the data underlying those approaches,
and the proposed criteria specifically. EPA is requesting that the
public submit any other scientific data and information that may be
available related to nutrient concentrations and associated biological
responses in Florida's streams. EPA is
[[Page 4196]]
soliciting comment specifically on the selection of criteria parameters
for TN and TP; the proposed classification of streams into four regions
based on aggregated watersheds; and the conclusion that the proposed
criteria for streams are protective of designated uses and adequately
account for the spatial and temporal variability of nutrients. In
addition, EPA requests comment on folding the Suwannee River watershed
in north central Florida into the larger Peninsula NWR (i.e., not
having a separate North Central region) or, alternatively, making a
smaller North Central region within Hamilton County alone where the
highest phosphorus-rich soils are located, with the remainder of the
North Central becoming part of the Peninsula Region.
(4) Alternative Approaches Considered by EPA
During EPA's review of the available data and information for
derivation of numeric nutrient criteria for Florida's streams, EPA also
considered an alternative approach for criteria derivation. EPA is
specifically requesting comment on a modified reference condition
approach called the benchmark distribution approach, as described
below.
(a) Benchmark Distribution Approach
EPA's previously published guidance has recommended a variety of
methods to derive numeric nutrient criteria.\67\ One method, the
reference condition approach, relies on the identification of reference
waters that exhibit minimal impacts from anthropogenic disturbance and
are known to support designated uses. The thresholds of nutrient
concentrations where designated uses are in attainment are calculated
from a distribution of the available associated measurements of ambient
nutrient concentrations at these reference condition sites.
---------------------------------------------------------------------------
\67\ U.S. EPA. 2000. Nutrient Criteria Technical Guidance
Manual: Rivers and Streams. Office of Water. 4304. EPA-822-B-00-002.
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EPA is seeking comment on a modified reference condition approach,
which was developed by FDEP and is referred to as the benchmark
distribution approach. The benchmark approach relies on least-disturbed
sites rather than true reference, or minimally-impacted, sites. The
benchmark distribution is a step-wise procedure used to calculate
distributional statistics of TN and TP from identified least-disturbed
streams.
(i) Identification of Least-Disturbed Streams
FDEP identified benchmark stream sites in the following step-wise
manner (1) compiled a list of sites with low landscape development
intensity using FDEP's Landscape Development Intensity Index,\68\ (2)
eliminated any sites on Florida's CWA section 303(d) list of impaired
waters due to nutrients, as well as certain sites impaired for
dissolved oxygen, where the State determined the dissolved oxygen
impairment was caused by nutrients, (3) eliminated any sites with
nitrate concentrations greater than FDEP's 0.35 mg/L proposed nitrate-
nitrite criterion in order to reduce the possibility of including sites
with far-field human disturbance from groundwater impacts, (4)
eliminated sites known by FDEP district scientists to be disturbed, (5)
eliminated potentially erroneous data through outlier analysis, (6)
verified sites using high resolution aerial photographs, and (7)
verified a random sample of the sites in the field.
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\68\ A quantitative, integrated measure of the degree of human
landscape disturbance within 100 meters on either side of a
specified stream reach and extending to 10 kilometers upstream of
the same stream reach.
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(ii) Calculation of Benchmark Distribution Approach and Selection of
Percentiles From the Benchmark Distribution
FDEP selected either the 75th or 90th percentile of the benchmark
distribution approach from FDEP's proposed nutrient regions (75th
percentile--Bone Valley; 90th percentile--Panhandle, North Central,
Northeast, and Peninsula). FDEP's rationale for selecting either the
75th or 90th percentiles was based on the degree of certainty regarding
the benchmark sites reflecting least-disturbed conditions and a
probability (10% for the 90th percentile) of falsely identifying a
least-disturbed site as being impaired for nutrients.
With this approach, the distribution of available annual geometric
means of nutrient concentrations for the benchmark sites within the
regional classes of streams is calculated. To compute the numeric
criteria for the causal variables, TN, and TP, EPA is seeking comment
on whether the 75th or 90th percentile of the benchmark distribution
for each nutrient stream region should be selected. As mentioned above,
the rationale for selecting either the 75th or 90th percentiles is
based on the degree of certainty regarding the benchmark sites
reflecting least-disturbed conditions and a probability of falsely
identifying a least-disturbed site as being impaired for nutrients or
vice-versa. In cases where data are more limited for a given nutrient
region (i.e., in the Bone Valley there were only four sites), the 75th
percentile may be more appropriate because the 90th percentile may not
be sufficiently robust (i.e., may be highly sensitive to a few data
points). In other cases, the 90th percentile may be more appropriate
when there is a more extensive data set. For further information,
please refer to EPA's TSD for Florida's Inland Waters, Chapter 2:
Methodology for Deriving U.S. EPA's Proposed Criteria for Streams.
In evaluating whether to propose this approach, EPA determined that
a considerable amount of uncertainty remained whether this approach
would result in a list of benchmark sites that represented truly least-
disturbed conditions. Specifically, EPA is concerned that nutrient
concentrations at these sites may reflect anthropogenic sources (e.g.,
sources more than 100 meters away from and/or 10 kms upstream of the
segment), even if the sites appear least-disturbed on a local basis.
EPA is particularly concerned that several benchmark sites in the FDEP
dataset appear to have a high potential to be affected by
fertilizations associated with forestry activities. FDEP provided an
analysis in which FDEP concluded that this is not likely.\69\ EPA
solicits comment on this issue and more generally on whether the
benchmark sites identified by FDEP in its July 2009 proposal are an
appropriate set of least-disturbed sites on which to base the criteria
calculations.
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\69\ FDEP document titled, ``Responses to Earthjustice's
Comments on the Department's Reference Sites.'' Draft October 2,
2009. Located in the docket ID EPA-HQ-OW-2009-0596.
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(5) Request for Comment and Data on Alternative Approach
EPA is soliciting comment on the alternative to deriving numeric
nutrient criteria for Florida's streams as described in Section
III.C(4).
(6) Protection of Downstream Lakes and Estuaries
Two key objectives of WQS are: First, to protect the immediate
water body to which a criterion initially applies and, second, to
ensure that criteria provide for protection of downstream WQS affected
by flow of pollutants from the upstream water body. See 40 CFR 131.11
and 131.10(b). EPA WQS regulations reflect the importance of protecting
downstream waters by requiring that upstream WQS ``provide for the
attainment and maintenance of the water quality standards of
[[Page 4197]]
downstream waters.'' 40 CFR 131.10(b). Thus, in developing numeric
nutrient criteria for Florida, EPA considered both instream aquatic
conditions and downstream aquatic ecosystem needs. In addressing the
issue of how, if at all, instream criteria values need to be adjusted
to assure attainment of downstream standards, EPA necessarily examined
the WQS for downstream lakes and estuaries. For lakes, this analysis
starts with the numeric nutrient criteria proposed in this notice. For
estuaries, this notice proposes an analytical approach to determine the
loadings that a particular estuary can receive and still assure
attainment and maintenance of the State's WQS for the estuary (i.e., a
protective load). An approach is then proposed for translating those
downstream loading values into criteria levels in the contributing
watershed stream reaches in a manner that ensures that the protective
downstream loadings are not exceeded.
In connection with both lakes and estuaries, EPA fully recognizes
that there are a range of important technical questions and related
significant issues raised by this proposed approach for developing
instream water quality criteria that are protective of downstream
designated uses. With regard, in particular, to the protection of
estuaries, the Agency is working closely with FDEP to derive estuarine
numeric nutrient criteria for proposal and publication in 2011. Even
though estuarine numeric nutrient criteria will be developed in 2011,
there is already a substantial body of information, science, and
analysis that presently exists that should be considered in determining
flowing water criteria that are protective of downstream water quality.
The substantial data, peer-reviewed methodologies, and extensive
scientific analyses available to and conducted by the Agency to date
indicate that numeric nutrient criteria for estuaries, when proposed
and finalized in 2011, may result in the need for more stringent rivers
and streams criteria to ensure protection of downstream water quality,
particularly for the nitrogen component of nutrient pollution.
Therefore, considering the numerous requests for the Agency to share
its analysis and scientific and technical conclusions at the earliest
possible opportunity to allow for full review and comment, EPA is
including downstream protection values for TN as proposed criteria for
rivers and streams to protect the State's estuaries in this notice.
As described in more detail below and in EPA's TSD for Florida's
Inland Waters accompanying this notice, these proposed nitrogen
downstream protection values are based on substantial data, thorough
scientific analysis, and extensive technical evaluation. However, EPA
recognizes that additional data and analysis may be available for
particular estuaries to help inform what water quality criteria are
necessary to protect these waters. EPA also recognizes that substantial
site-specific work (including some very sophisticated analyses in the
context of certain TMDLs) has been completed for a number of these
estuaries. This notice and the proposed downstream protection values
are not intended to address or be interpreted as calling into question
the utility and protectiveness of these site-specific analyses. Rather,
the proposed values represent the output of a systematic and scientific
approach that may be generally applicable to all flowing waters in
Florida that terminate in estuaries for the purpose of ensuring the
protection of downstream estuaries. EPA is interested in obtaining
feedback at this time on this systematic and scientific approach. The
Agency further recognizes that the proposed values in this notice will
need to be considered in the context of the Agency's numeric nutrient
criteria for estuaries scheduled for proposal in January of 2011. At
this time, EPA plans to finalize any necessary downstream protection
values for nitrogen in flowing waters as part of the second phase of
this rulemaking process in coordination with the proposal and
finalization of numeric criteria for estuarine and coastal waters in
2011. However, if comments, data and analyses submitted as a result of
this proposal support finalizing such values sooner, by October 2010,
EPA may choose to proceed in this manner. To facilitate this process,
EPA requests comments and welcomes thorough evaluation on the need for
and the technical and scientific basis of these proposed downstream
protection values as part of the broader comment and evaluation process
that this proposal initiates.
EPA believes that a detailed consideration and related proposed
approach to address protection of downstream water quality in this
proposal is necessary for several reasons, including (1) water quality
standards are required to protect downstream uses under Federal
regulations at 40 CFR 131.10(b), meaning also for prevention of
impairment; (2) it may be a relevant consideration in the development
of any TMDLs, NPDES permits, and Florida BMAPs that the State completes
in the interim period between the final rule for Florida lakes and
flowing waters in October 2010 and a final rule for Florida estuarine
and coastal waters in October of 2011; and (3) perhaps most
importantly, it is essential for informing and supporting a transparent
and engaged public consideration, evaluation, and discussion on the
question of what existing information, tools, and analyses suggest
regarding the need to ensure protection of downstream waters. The
Agency continues to emphasize its interest in and request for
additional information, further analysis, and any alternative
technically-based approaches that may be available to address
protection of downstream water quality. EPA also reiterates its
commitment to a full evaluation of all comments received and notes the
ability to issue a NODA to allow a full public review should
significant new additional information and analysis become available as
part of the comment period.
In deriving criteria to protect designated uses, as noted above,
Federal WQS regulations established to implement the CWA provide WQS
must provide for the protection of designated uses in downstream
waters. In the case of deriving numeric nutrient criteria for streams
in Florida, EPA's analyses reflected in this notice indicate that the
proposed criteria values for instream protection of streams may not
fully protect downstream lakes and downstream estuaries. EPA's proposed
criteria for lakes are, in some cases, more stringent than the proposed
criteria for streams that flow into the lakes. For estuaries, EPA's
analyses of protective loads delivered to a specific estuary, and the
corresponding expected concentration values for streams that flow into
that estuary, indicate the proposed criteria for instream protection
may not always be sufficient to provide for the attainment and
maintenance of the estuarine WQS. For more detailed information, please
consult EPA's TSD for Florida's Inland Waters, Chapter 2: Methodology
for Deriving U.S. EPA's Proposed Criteria for Streams.
To address each of these issues, EPA is proposing first, for lakes,
an equation that allows for input of lake characteristics to determine
the concentration in flowing streams that is needed to attain and
maintain the receiving lake's designated use and protective criteria.
Second, for estuaries, EPA is proposing an approach for identifying the
total nutrient loads a particular estuary can receive and still attain
and maintain the State's designated use for the water body.
[[Page 4198]]
Third, also for estuaries, the Agency is proposing a methodology to
derive protective concentration values for the instream criteria where
necessary to assure that downstream estuarine loads are not exceeded.
The following sections provide a more detailed explanation of the
proposed downstream protective approach for lakes and then for
estuaries.
(a) Downstream Protection of Lakes
EPA is proposing an equation to relate a lake TP concentration
criterion to the concentration needed to be met in incoming streams to
support the lake criterion. EPA proposes to apply the resulting stream
concentration as the applicable criterion for all stream segments
upstream of the lake. EPA used a mathematical modeling approach to
derive this equation, with allowable input of lake-specific
characteristics, to calculate protective criteria necessary to assure
attainment and maintenance of the numeric lake nutrient criteria in
this proposal. More specifically, EPA started with a phosphorus loading
model equation first developed by Vollenweider.\70\ EPA assumed that
rainfall exceeds evaporation in Florida lakes and that all external
phosphorus loading comes from streams. EPA considers the first
assumption reasonable given the rainfall frequency and volume in
Florida. The second assumption is reasonable to the extent that surface
runoff contributions are far greater than groundwater or atmospheric
sources of TP in Florida lakes. EPA requests comment on both these
assumptions. After expressing these assumptions in terms of the
mathematical relationships among loading rates, stream flow, and lake
and stream concentrations, EPA derived the following equation to relate
a protective lake criterion to a corresponding protective stream
concentration:
---------------------------------------------------------------------------
\70\ Vollenweider, R.A. 1975. Input-output models with special
reference to the phosphorus loading concept in limnology.
Schweizerische Zeitschrift fur Hydrologie. 37: 53-84; Vollenweider,
R.A. 1976. Advances in differing critical loading levels for
phosphorus in lake eutrophication. Mem. Ist. Ital. Idrobid.
33:53:83.
[GRAPHIC] [TIFF OMITTED] TP26JA10.000
---------------------------------------------------------------------------
where:
[TP]S is the total phosphorus (TP) downstream lake
protection value, mg/L
[TP]L is applicable TP lake criterion, mg/L
cf is the fraction of inflow due to all stream flow, 0 <=
cf <= 1
[tau]w is lake's hydraulic retention time (water volume
divided by annual flow rate)
The term
[GRAPHIC] [TIFF OMITTED] TP26JA10.005
expresses the net phosphorus loss from the water column (e.g. via
settling of sediment-sorbed phosphorus) as a function of the lake's
retention time
This model equation requires input of two lake-specific
characteristics: The fraction of inflow due to stream flow and the
hydraulic retention time. Water in a lake can come from a combination
of groundwater sources, rainfall, and streams that flow into it. Using
the model equation above, the calculated stream TP criterion to protect
a downstream lake will be more stringent for lakes where the portion of
its volume coming from streams flowing into it is the greatest. In
addition, the calculated stream TP criterion to protect a downstream
lake will be more stringent for lakes with short hydraulic retention
times (how long water stays in a lake) because the longer the water
stays in the lake, the more phosphorus will settle out in the
underlying lake sediment.
Because lake-specific input values may not always be readily
available, EPA is providing preset values for percent contribution from
stream flow and hydraulic retention time. In Florida lakes, rainfall
and groundwater sources tend to contribute a large portion of the total
volume of lake water. In fact, only about 20% of the more than 7,000
Florida lakes have a stream flowing into them,\71\ with the rest
entirely comprised of groundwater and rainwater sources. EPA evaluated
representative values for percent contribution from stream flow \72\
and hydraulic retention time,\73\ and selected 50% stream flow
contribution and 0.2 years (about two and a half months) retention time
as realistic and representative preset values to provide a protective
outcome for Florida lakes, in the absence of site-specific data. Using
these preset values, streams that flow into colored lakes would have a
TP criterion of 0.12 mg/L, and streams that flow into clear, alkaline
lakes would have a TP criterion of 0.073 mg/L, with respect to
downstream lake protection. In the Peninsula NWR, this compares to a
0.107 mg/L TP stream criterion protective of instream designated uses.
EPA's proposed rule does offer the flexibility to use site-specific
inputs to the Vollenweider equation for fraction of inflow from
streamflow and hydraulic retention time, as long as data supporting
such inputs are sufficiently robust and well-documented.
---------------------------------------------------------------------------
\71\ Fernald, E.A. and E.D. Purdum. 1998. Water Resources Atlas
of Florida. Tallahassee: Institute of Science and Public Affairs,
Florida State University.
\72\ Gao, X. 2006. Nutrient and Unionized Ammonia TMDLs for Lake
Jesup, WBIDs 2981 and 2981A. Prepared by Florida Department of
Environmental Protection, Division of Water Resource Management,
Bureau of Watershed Management, Tallahassee, FL.
\73\ Steward, J.S. and E.F. Lowe. In Press. General empirical
models for estimating nutrient load limits for Florida's estuaries
and inland waters. Limnol. Oceanogr. 55: (in press).
---------------------------------------------------------------------------
EPA carefully evaluated use of a settling/loss term for phosphorus
in the model equation. Florida lakes tend to be shallow, and internal
loadings to the lake water (e.g. from re-suspension of settled
phosphorus after storms that stir up lake sediment) may be substantial.
A more detailed model might be able to simulate this phenomenon
mechanistically, but would likely require substantial site-specific
data for calibration. For this reason, EPA chose to use the model
formulation above. EPA considered a simpler alternative to exclude the
settling/loss term from the above equation, or even to reverse the sign
on the settling/loss term so that it becomes a net source term, perhaps
with the inclusion of a default multiplier. However, EPA did not have
sufficient information to conclude that such a conservative approach
was necessary as a general application to all Florida lakes. EPA
remains open and receptive to comment on these alternatives or other
technically sound and protective approaches. EPA's supporting analyses
and detailed information on this downstream lake protection methodology
are provided in the accompanying TSD for Florida's Inland Waters,
Chapter 2: Methodology for Deriving U.S. EPA's Proposed Criteria for
Streams.
The same processes that occur in lakes and affect lake water
phosphorus concentration may also occur in streams that feed lakes and
affect stream water phosphorus concentrations. These processes include
sorption to stream bed sediments, uptake into biota, and release into
the water column from decaying vegetation. EPA took into consideration
these processes when deciding whether it would be appropriate to add a
term to the model equation to account for phosphorus loss or uptake
within the streams in deriving stream criteria for downstream lake
protection. However, the net result of these processes is nutrient
spiraling, whereby nutrients released upstream gradually propagate
downstream at a rate slower than that of the moving water, and cycle
into and out of the food chain in the process. Over the short term, the
result may be water concentrations that decrease in the downstream
direction. However, unlike for nitrogen, there are no long-term
phosphorus net removal processes at work in streams. Phosphorus
adsorbed to sediment particles is eventually
[[Page 4199]]
carried downstream with the sediment, and phosphorus taken up by plants
is eventually returned to the flowing water. Over the long term,
upstream phosphorus inputs are in equilibrium with downstream
phosphorus outputs. Recognizing this feature of stream systems and the
conservative nature of phosphorus in aquatic environments, EPA
concluded that it was not appropriate to include a phosphorus loss term
that would apply to streams as they progress toward a downstream lake.
For further information, please refer to EPA's TSD for Florida's Inland
Waters, Chapter 2: Methodology for Deriving U.S. EPA's Proposed
Criteria for Streams.
EPA requests comment on the need for additional instream criteria
to protect uses in downstream lakes. EPA further requests comment on
the model equation approach presented here to protect downstream lakes,
and also requests comment on use of an alternative model such as one
with a negative or zero settling term (i.e., set (1+
[radic][tau]w) in the equation above either equal to zero or
with the plus sign switched to a minus sign). EPA also requests comment
on whether and how to address direct surface runoff into the lake.
Where this input is substantial and land use around the lake indicates
that phosphorus input is likely, EPA believes it may be appropriate to
include this water volume contribution as part of the fraction of
inflow considered to be streamflow to be protective and consistent with
the assumption of no loading from sources other than streamflow. EPA
specifically requests comment on use of the Land Development Index
(LDI) as an indicator of how to treat this inflow, examination of
regional groundwater phosphorus levels to see if a zero TP input from
this source is appropriate, and potential development of regionally-
specific preset values as inputs to the equation. In addition, EPA
requests comment on the potential to develop a corollary approach for
nitrogen.
EPA is open to alternative technically-supported approaches based
on best available data that offer the ability to address lake-specific
circumstances. The Agency recognizes that more specific information may
be readily available for individual lakes which could allow the use of
alternative approaches such as the BATHTUB model.\74\ The Agency
welcomes comment and technical analysis on the availability and
application of these models. In this regard, EPA requests comment on
whether there should be a specific allowance for use of alternative
lake-specific models where demonstrated to be protective and
scientifically defensible based upon readily and currently available
data, and whether use of such alternatives should best be facilitated
through use of the SSAC procedure described in Section V.C.
---------------------------------------------------------------------------
\74\ 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.
---------------------------------------------------------------------------
(b) Downstream Protection of Estuaries
(i) Overview
EPA is proposing a methodology for calculation of applicable
criteria for streams that flow into estuaries and provide for their
protection. The proposed methodology would allow the State to utilize
either (1) EPA's downstream protection values (DPVs), or (2) the EPA
DPV methodology utilizing EPA's estimates of protective loading to
estuaries but with the load re-distributed among the tributaries to
each estuary, or (3) an alternative quantitative methodology, based on
scientifically defensible approaches, to derive and quantify the
protective load to each estuary and the associated protective stream
concentrations. The DPV methodology with a re-distributed load may be
used if the State provides public notice and opportunity for comment.
To use an alternative technical approach, based on scientifically
defensible methods to derive and quantify the protective load to each
estuary and the associated protective stream concentrations, the State
must go through the process for a Federal SSAC as described in Section
V.C. In some cases, the substantial and sophisticated analyses and
scientific effort already completed in the context of the TMDL process
may provide sufficient support for a SSAC. In such circumstances, EPA
encourages FDEP to submit these through the SSAC process and EPA looks
forward to working with FDEP in this process.
EPA's approach to developing nutrient criteria for streams to
protect downstream estuaries in Florida involves two separate steps.
The first step is determining the average annual nutrient load that can
be delivered to an estuary without impairing designated uses. This is
the protective load. The second step is determining nutrient
concentrations throughout the network of streams and rivers that
discharge into an estuary that, if achieved, are expected to result in
nutrient loading to estuaries that do not exceed the protective load.
These concentrations, called ``downstream protection values'' or DPVs,
depend on the protective load for the receiving estuary and account for
nutrient losses within streams from natural biological processes. In
this way, higher DPVs may be appropriate in stream reaches where a
significant fraction of either TN or TP is permanently removed within
the reach before delivery to downstream receiving waters. EPA's
approach utilizes results obtained from a watershed modeling approach
called SPAtially Referenced Regressions on Watershed attributes, or
SPARROW.\75\ The specific model that was used is the South Atlantic,
Gulf and Tennessee (SAGT) regional SPARROW model.\76\ EPA selected this
model because it provided the information that was needed at the
appropriate temporal and spatial scales and it applies to all waters
that flow to Florida's estuaries.\77\ SPARROW was developed by the
United States Geological Survey (USGS) and has been reviewed,
published, updated and widely applied over the last two decades. It has
been used to address a variety of scientific applications, including
management and regulatory applications.\78\ In order to fully
understand EPA's methodology for developing DPVs, it is useful to
understand how the approach utilizes results from SPARROW, as well some
aspects of how SPARROW works.
---------------------------------------------------------------------------
\75\ http://water.usgs.gov/nawqa/sparrow.
\76\ Hoos, A.B., and G. McMahon. 2009. Spatial analysis of
instream nitrogen loads and factors controlling nitrogen delivery to
stream in the southeastern United Sates using spatially referenced
regression on watershed attributes (SPARROW) and regional
classification frameworks. Hydrological Processes. DOI: 10.1002/
hyp.7323.
\77\ Hoos, A.B., S. Terziotti,, G. McMahon, K. Savvas, K.C.
Tighe, and R. Alkons-Wolinsky. 2008. Data to support statistical
modeling of instream nutrient load based on watershed attributes,
southeastern United States, 2002: U.S. Geological Survey Open-File
Report 2008-1163, 50 p.
\78\ USGS SPARROW publications Web site: http://water.usgs.gov/nawqa/sparrow/intro/pubs.html.
---------------------------------------------------------------------------
[[Page 4200]]
[GRAPHIC] [TIFF OMITTED] TP26JA10.001
The remaining discussion focuses on TN, for which EPA has already
computed DPVs. The approach for computing DPVs for TP from estimates of
the protective TP load is expected to be essentially the same as for
TN. However, there is some question as to whether the same approach
used to determine the protective TN load will also apply to TP. EPA
requests comment on this issue.
(ii) EPA Approach to Estimating Protective Nitrogen Loads for Estuaries
The first step in EPA's approach is to narrow the range of possible
values. The protective TN load is expected to vary widely among Florida
estuaries because they differ significantly in their size and physical
and biological attributes. For example, well flushed estuaries are able
to receive higher TN loading without adverse effect compared to poorly
flushed estuaries. EPA recognized that it may be possible to narrow
this initially very broad range of possible protective loads using one
consistent approach, and then consider whether additional information
might enable a further reduction in uncertainty. EPA is soliciting
credible scientific evidence that may improve these estimates and
further reduce uncertainty surrounding the proposed protective loads.
The most useful evidence would provide a scientific rationale, an
alternative estimate of the protective load, and an associated
confidence interval for the estimate. For further information, please
refer to EPA's TSD for Florida's Inland Waters, Chapter 2: Methodology
for Deriving U.S. EPA's Proposed Criteria for Streams.
EPA first narrowed the range of possible protective loads by
establishing an estimate of current loading as an upper bound. Most of
Florida's estuaries are listed as impaired to some extent by nutrients
or nutrient-related causes. Florida's 1998 CWA section 303(d) verified
list of impaired waters under the Impaired Waters Rule (FAC 62-303)
identify many estuaries or estuary segments that are impaired by
nutrients, chlorophyll a, or low dissolved oxygen. Many or most
estuaries have reduced water clarity and substantial loss of seagrass
habitats. The National Estuarine Eutrophication Assessment \79\ reports
that current conditions are poor for many estuaries in Florida. This
information implies that current levels of TN loading are at least an
upper limit for the protective load and likely exceed the protective
load in many estuaries.
---------------------------------------------------------------------------
\79\ Bricker, S., B. Longstaff, W. Dennison, A. Jones, K.
Boicourt, C. Wicks and J. Woerner, 2007. Effects of nutrient
enrichment in the Nation's estuaries: A decade of change. NOAA
Coastal Ocean Program Decision Analysis Series No. 26. National
Centers for Coastal Ocean Science, Silver Spring, MD 322.
---------------------------------------------------------------------------
EPA used the SAGT-SPARROW regional watershed model to estimate
current loading to each estuary in Florida. While nitrogen loads have
been estimated from monitored gauge stations in many stream and rivers,
a large fraction of Florida streams and watersheds are not gauged and
thus load estimates were not previously available. An approach was
needed to spatially extrapolate the available measurements of loading
to obtain estimates of loading for all streams including those in
unmonitored watersheds or portions of watersheds. The SAGT SPARROW
model provided these estimates for all Florida estuarine watersheds.
The SPARROW modeling approach utilizes a multiple regression equation
to describe the relationship between watershed attributes (i.e., the
predictors) and measured instream nutrient loads (i.e., the responses).
The statistical methods incorporated into SPARROW help explain instream
nutrient water quality data (i.e., the mass flux of nitrogen) as a
function of upstream sources and watershed attributes. The SAGT-SPARROW
model utilized period of record monitored streamflow and nutrient water
quality data from Florida and across the SAGT region for load
estimation. SAGT-SPARROW also used extensive geospatial data sets
describing topography, land-use, climate, and soil characteristics,
nitrogen loading for point sources in Florida obtained from EPA's
permit compliance system, and estimates of nitrogen in fertilizer and
manure from county-level fertilizer sales, census of agriculture, and
population estimates. TN load estimates explain 96% of the variation in
observed loads from monitoring sites across the region with no spatial
bias at Florida sites.\80\ A more thorough description of the SAGT-
SPARROW model, the data sources, and analyses are found in the EPA TSD
for Florida's Inland Waters and in USGS publications.\81\
---------------------------------------------------------------------------
\80\ Hoos, A.B., and G. McMahon. 2009. Spatial analysis of
instream nitrogen loads and factors controlling nitrogen delivery to
stream in the southeastern United Sates using spatially referenced
regression on watershed attributes (SPARROW) and regional
classification frameworks. Hydrological Processes. DOI: 10.1002/
hyp.7323.
\81\ Hoos, A.B., S. Terziotti,, G. McMahon, K. Savvas, K.C.
Tighe, and R. Alkons-Wolinsky. 2008. Data to support statistical
modeling of instream nutrient load based on watershed attributes,
southeastern United States, 2002: U.S. Geological Survey Open-File
Report 2008-1163, 50 p.
---------------------------------------------------------------------------
EPA further narrowed the range of possible protective loads by
establishing the background load as a lower bound. EPA recognizes that
a measure of natural background TN loading is the true lower limit, yet
EPA recognizes also that some level of anthropogenic nutrient loading
is acceptable, difficult to avoid, and unlikely to cause adverse
biological responses. The current TN load minus the fraction of TN
loading estimated to result from anthropogenic sources is used as an
estimate of the background TN load. EPA used the SAGT-SPARROW regional
watershed model to estimate background loading. SAGT-SPARROW
empirically associates 100% of the measured nutrient loading into one
of five classes (fertilizer, manure, urban, point sources, and
atmospheric). EPA recognizes that some watershed models define more
types of sources, according to their modeling objectives; however, it
is important to recognize that these are
[[Page 4201]]
source classes, not sources, and that 100% of the measured loading is
accounted for explicitly or implicitly by SPARROW in terms of these
source classes.
The class termed ``atmospheric'' reflects all loading that cannot
be empirically attributed to causal variables associated with the other
classes. EPA used the estimate for this class of loading as the
background TN load. EPA recognizes that the SPARROW-estimated
``atmospheric'' load includes anthropogenic contributions associated
with regional-scale nitrogen emissions and does not represent pre-
industrial or true ``natural'' background loading. The ``atmospheric''
source term from SPARROW is also not equal to atmospheric nitrogen
deposition as measured by the National Atmospheric Deposition Program
(NADP). To properly interpret the TN load attributed to the
``atmospheric'' source term in SPARROW, it is useful to recognize that
SPARROW is a nonlinear regression model that seeks to explain measured
TN loads in streams and rivers in terms of a series of explanatory
variables. The atmospheric term is in all cases less, and often much
less, than the measured deposition because not all the nitrogen
deposited to the landscape is transported to streams, and not all of
the nitrogen transported in streams reaches estuaries. The atmospheric
source term from SPARROW excludes all the loading associated with both
local anthropogenic nitrogen sources and factors contributing to
increased transport of nitrogen from all sources (e.g., impervious
surfaces). Therefore, EPA expects that reasonable values for the
protective TN load are not likely to be less than these values.
The protective TN load should be less than the current load and
greater than the background load. Although this recognition may appear
to be trivial, it is important. EPA estimates that TN loads to
estuaries across Florida vary approximately 25-fold (~2 to 50 grams of
nitrogen per square meter of estuary area). However, the ratio of the
current load to the background load varies only between 1.7 and 5; for
most estuaries, the range is between 2 and 4. Alternatively stated,
current TN loads, which include local anthropogenic nitrogen sources,
are two to four-fold higher than the background loads which do not
include those sources. Thus, for any specific estuary, there is a
relatively narrow range between the upper and lower bounds of potential
protective loads.
EPA acknowledges that not all the TN entering estuaries comes
directly from the streams within its watershed. In some estuaries,
direct atmospheric nitrogen deposition to the estuary surface may be an
important source of TN loading to the estuary. Similarly, point sources
such as industrial or wastewater treatment plant discharges directly to
the estuary can be significant. In general, these sources are most
significant when the ratio of watershed area to estuary area is
relatively small compared to other estuaries (e.g., St. Andrew Bay,
Sarasota Bay). In a few cases in Florida, point source loads directly
to the estuary account for a large fraction of the aggregate load from
all sources.
As a second step, EPA sought to further reduce the range of
possible protective loading values by considering additional evidence.
One line of evidence EPA considered is previous estimates of protective
loads. These have been developed as part of TMDLs for Florida estuaries
or as part of Florida's Pollutant Load Reduction Goal or PLRG program.
The scientific approaches utilized for TMDLs and PLRGs vary from simple
to sophisticated and have recommended TN loading reductions between 3%
and 63%, with a median of 38%. Higher reductions are typically
associated with portions of estuaries currently receiving higher
anthropogenic loading. Unfortunately, these analyses have not been
completed for all of Florida's estuaries. Steward and Lowe (2009) \82\
showed that the TN loading limits suggested by TMDLs and PLRGs for a
variety of aquatic ecosystems in Florida, including estuaries, could be
statistically related to water residence time for the receiving water.
EPA evaluated these relationships as an additional line of evidence for
estimating protective TN loads for estuaries. EPA found these
relationships to confirm in most cases, but not all, that the loading
limits were likely between the bounds EPA previously established using
SPARROW. However, the limits of uncertainty associated with the
relationship were nearly as large as those already established.
Nonetheless, the models provide additional support for EPA's estimates
of protective estuary loads, but no further refinement of the
estimates.
---------------------------------------------------------------------------
\82\ Steward, J.S. and E.F. Lowe. 2010. General empirical models
for estimating nutrient load limits for Florida's estuaries and
inland waters. Limnology and Oceanography 55(1):433-445.
---------------------------------------------------------------------------
Another approach to considering existing TMDLs and PLRGs is to
consider directly the loading rate reductions recommended from those
efforts, the median of which is 38% in Florida. This percent TN
reduction is similar to the scientific consensus for several well-
studied coastal systems elsewhere (e.g., Chesapeake Bay, northern Gulf
of Mexico) which have been subjected to increased TN loads from known
anthropogenic sources. EPA recognizes that the magnitude of
anthropogenic TN loads varies across Florida estuaries and that
applying a uniform percent reduction across all estuaries does not
account for the variable extent of anthropogenic loads and could lead
to estimates below background load. An alternative approach is to
assume that the appropriate loading reduction is proportional to the
magnitude of anthropogenic enrichment. Thus, EPA suggests that
protective TN loading may be estimated by assuming that the
anthropogenic component of TN loading should be reduced by a constant
fraction.
As a result, EPA computed the protective TN load by reducing the
current TN load by one half of the anthropogenic contribution to that
load. EPA's protective load estimates are on average 25% less than
current TN loading (range = 5 to 40%), consistent with most TMDLs and
PLRGs for Florida estuaries.
EPA developed protective TN loads for 16 estuarine water bodies in
Florida for the purpose of computing DPVs for streams that are
protective of uses in the estuarine receiving waters. EPA did not
develop loading targets for the seven estuarine water bodies in south
Florida (Caloosahatchee, St. Lucie, Biscayne Bay, Florida Bay, North
and South Ten Thousand Islands, and Rookery Bay), because requisite
information related to TN loading from the highly managed canals and
waterways cannot be derived from SAGT-SPARROW and were not available
otherwise, and three in central Florida (coastal drainage areas of the
Withlacoochee River, Crystal-Pithlachascotee River and Daytona-St.
Augustine) because EPA is still evaluating appropriate protective loads
and the flows necessary to derive DPVs.
EPA notes that some stakeholders, including FDEP staff,\83\ have
raised
[[Page 4202]]
concerns about the suitability of the SAGT SPARROW to address
downstream protection of estuaries and have suggested alternative
models and approaches that have been applied for several of Florida's
larger estuaries and their watersheds. These concerns include known
limitations of the SPARROW model, particularly related to inadequate
resolution of complex hydrology in several parts of the State. EPA also
recognizes this limitation and as a result, has not used SAGT SPARROW
to propose protective loads and associated downstream protection values
for ten estuaries and their watersheds in Florida. EPA acknowledges
that other approaches and models may also provide defensible estimates
of protective loads.
---------------------------------------------------------------------------
\83\ For further information on concerns raised by FDEP
regarding the use of SPARROW, refer to ``Florida Department of
Environmental Protection Review of SPARROW: How useful is it for the
purposes of supporting water quality standards development?,''
``Assessment of FDEP Panhandle Stream proposed benchmark numeric
nutrient criteria for downstream protection of Apalachicola Bay,''
and ``Analysis of Proposed Freshwater Stream Criteria's Relationship
to Protective Levels in the Lower St. Johns River Based on the Lower
St. Johns River Nutrient TMDL.'' located in EPA's docket ID No. EPA-
HQ-OW-2009-0596.
---------------------------------------------------------------------------
Among the technical concerns that stakeholders including FDEP staff
have raised are that: (1) SPARROW is useful for general pattern, but
the large scale calibration lead to large errors for specific areas,
(2) SPARROW only utilizes four source inputs, and (3) SPARROW was
calibrated to only one year's worth of data. As presented in the above
sections, but to briefly reiterate here: (1) SPARROW is calibrated
across a larger area, but it utilizes a large amount of Florida site-
specific data and it explains 96% of the variation in observed loads
from monitoring sites, (2) SPARROW accounts for all sources, but groups
them into four general categories, and (3) SPARROW uses available data
from the 1975-2004 period at monitored sites. This last concern may be
confused with the technical procedure of presenting loading estimates
as ``detrended to 2002''. This procedure accounts for long-term, inter-
annual variability to ensure that long-term conditions and trends are
represented. The year 2002 was selected as a baseline because it has
the best available land use/land cover information available, but the
loading estimates, in fact, represent a long-term condition
representative of many years of record. EPA encourages technical
reviewers to consult with the technical references cited in this
section for the complete explanations of technical procedures.
EPA requests comment on its use of the SPARROW model to derive
protective loads for downstream estuaries, as well as data and analyses
that would support alternate methods of deriving downstream loads, or
alternate methods of ensuring protection of designated uses in
estuaries. For estuaries where sophisticated scientific analyses have
been completed, relying on ample site-specific data to derive
protective loads in the context of TMDLs, EPA encourages FDEP to submit
resulting alternative DPVs under the SSAC process.
(iii) Computing Downstream Protection Values (DPVs)
Once an estimate of protective TN loads is derived, EPA developed a
methodology for computing DPVs, for streams that, if achieved, are
expected to result in an average TN loading rate that does not exceed
the protective load. EPA's methodology, which is used as the narrative
translator, allows for the fraction of the protective TN loading
contributed from each tributary within the watershed of an estuary to
be determined by the fraction of the total freshwater flow contributed
by that tributary. The DPV is specified as an average TN concentration,
which is computed by dividing the protective TN load by the aggregate
average freshwater inflow from the watershed. This approach results in
the same DPV for each stream or river reach that terminates into a
given estuary.
EPA's methodology accounts for instream losses of TN. EPA
recognizes that not all the TN transported within a stream network will
ultimately reach estuaries. Rather, some TN is permanently lost from
streams. This is not the same as reversible transformations of TN, such
as algal uptake. Losses of TN are primarily associated with
bacterially-mediated processes in stream sediments that convert
biologically available nitrogen into inert N2 gas, which
enters the atmosphere (a process called denitrification). This occurs
more rapidly in shallow streams and at almost negligible rates in
deeper streams and rivers. EPA refers to the fraction of nitrogen
transported in streams that ultimately reaches estuaries as the
``fraction delivered.'' Estimates of the fraction delivered in Florida
are less than 50% in streams very distant from the coast, but is
between 80 and 100% in approximately half the stream reaches in
Florida's estuarine watersheds.
EPA's approach relies on estimating the fraction of TN delivered to
downstream estuaries. Measuring instream loss rates at the appropriate
time and space scale is exceedingly difficult, and it is not possible
to do State-wide. EPA is not aware of other models or data suitable to
estimating nitrogen losses in streams across the State of Florida. EPA
obtained estimates from the SAGT-SPARROW model,\84\ which is possibly
the best generally applicable approach to obtaining these estimates.
One reason is that SPARROW estimates watershed-scale instream losses at
the annual time scales across the entire region. Estimates of instream
losses are modeled in SPARROW using a first-order decay rate as a
function of time-of-travel in the reach. The inverse exponential
relationship is consistent with scientific understanding that nitrogen
losses decrease with increasing stream size and with results from
experimental reach-scale studies using a variety of methods.\85\ EPA
recognizes that stream attributes other than reach time-of-travel or
size may influence instream loss rates and though the SPARROW model did
not include these, the lack of spatial bias in model residuals suggests
that inclusion of other potential subregional-scale or State-wide
stream attributes may not improve modeled instream loss estimates.
---------------------------------------------------------------------------
\84\ Hoos, A.B., and G. McMahon. 2009. Spatial analysis of
instream nitrogen loads and factors controlling nitrogen delivery to
streams in the southeastern United States using spatially referenced
regression on watershed attributes (SPARROW) and regional
classification frameworks. Hydrological Processes. DOI: 10.1002/
hyp.7323.
\85\ Bohlke, J.K., R.C. Antweiler, J.W. Harvey, A.E. Laursen,
L.K. Smith, R.L. Smith, and M.A. Voytek. 2009. Multi-scale
measurements and modeling of Denitrification in streams with varying
flow and nitrate concentration in the upper Mississippi River basin,
USA. Biogeochemistry 93: 117-141. DOI 10.1007/s10533-008-9282-8.
---------------------------------------------------------------------------
EPA developed and applied this methodology to compute DPVs for
every stream reach in each of 16 estuarine watersheds starting with
estuarine-specific estimates of the protective load. These estuarine
watersheds align with the Nutrient Watershed Regions (NWR) used to
derive instream protection values (IPVs). It is important to note that
the scale at which protective loads and DPVs were derived is smaller
than for IPVs (i.e., 16 estuarine watersheds vs. 4 nutrient watershed
regions). EPA's recognition that some fraction of nitrogen transported
in streams is retained or assimilated before reaching estuarine waters
help ensure that the DPVs are not overprotective of downstream use in
any particular estuary.
In determining TN DPVs, EPA considered the contribution of TN
inputs from wastewater discharged in shoreline catchments directly to
the estuary. EPA found these point source inputs to be significant (>
5% of total loading) in three (St. Andrew's Bay, St. Marys, St. John's)
of the 16 estuaries. However, for the purpose of computing stream reach
DPVs for a given estuarine watershed, EPA considered only those TN
loads delivered from the estuarine watershed stream network and did not
[[Page 4203]]
include TN inputs from wastewater discharged in shoreline catchments
directly to an estuary because these loads do not originate from
upstream sources. However, point sources loads directly to the estuary
would need to be considered in developing TMDLs based on estuary-
specific criteria.
EPA's computation of DPVs using estimates of protective loading for
each estuary and the fraction-delivered to estuaries is shown by
equation (1):
[GRAPHIC] [TIFF OMITTED] TP26JA10.002
where the terms are defined as follows for a specific or (ith)
stream reach:
Ci maximum flow-averaged nutrient concentration for a specific (the
ith) stream reach consistent with downstream use protection (i.e.,
the DPV)
k fraction of all loading to the estuary that comes from the stream
network resolved by SPARROW
Lest protective loading rate for the estuary, from all sources
QW combined average freshwater discharged into the estuary from the
portion of the watershed resolved by the SPARROW stream network
Fi fraction of the flux at the downstream node of the specific (ith)
reach that is transported through the stream network and ultimately
delivered to estuarine receiving waters (i.e., Fraction Delivered).
Note that the quantity kLest is equal to the loading to the estuary
from sources resolved by SPARROW. For the purposes of practical
implementation, EPA classified each stream water body (i.e., Water Body
Identification or ``WBID'' using the FDEP term) according to the
estuarine receiving water and one of six categories based on the
fraction of TN delivered (0 to 50%, 51-60%, 61-70%, 71-80%, 81-90%, and
91-100%). For each category, the upper end of the range was utilized to
compute the applicable DPV for streams in the category, resulting in a
value that will be protective. This approach reduces the number of
unique DPVs from thousands to less than 100. Because the stream network
utilized by the SAGT-SPARROW watershed model (ERF1) does not recognize
all of the smaller streams in Florida (i.e., it is on a larger scale),
EPA mapped WBIDs to the applicable watershed-scale unit, or
``incremental watersheds,'' of the ERF1 reaches, assigning to each WBID
the fraction of TN delivered estimated for the ERF1 reach whose
incremental watershed includes the WBID. Where the WBID includes
portions of the incremental watersheds of more than one ERF1 reach, EPA
computed a weighted-average based on the proportion of WBID area in the
watershed of each ERF1 reach.
Given an even distribution of reaches within each 10% interval,
EPA's ``binning'' approach to the fraction-delivered estimates results
in a 5% to 10% margin of safety for the average reach in each range
(closer to 10% for the lower fraction-delivered ranges). Potentially
larger margins are possible within the 0 to 50% range, where the
fraction delivered might be 20%, but the DPV would be computed assuming
a fraction delivered of 50%. However, only one watershed in Florida for
which EPA is proposing DPVs, the St. Johns River, has a substantial
number of reaches estimated to have less than 50% TN delivered to
estuarine waters. The SAGT-SPARROW watershed model estimates that 17%
of the stream reaches in the St. Johns watershed are in this category,
with about half the reaches delivering nearly 50% of TN and a
substantial number delivering only 20% of TN. Given EPA's DPV for
terminal reaches in the St. Johns watershed, however, the DPV for
reaches with a fraction delivered less than 50% will be higher than the
IPV, and therefore, will not apply. EPA requests comment on the binning
approach for calculating DPVs, which allows for a relatively simple
table of DPVs to be presented as compared to using the actual estimate
of fraction TN delivered to calculate a DPV unique to each WBID using
formula (1), above.
At this time, EPA has not calculated protective TP loads for
Florida's estuaries or DPVs for TP. However, advances in the
application of regional watershed models, such as SPARROW, that address
the sources and terrestrial and aquatic processes that influence the
supply and transport of TP in the watershed and delivery to estuaries
are currently in advanced stages of development.\86\ EPA anticipates
obtaining the necessary data and information to compute TP loads for
the estuarine water bodies in Florida in 2010 and could make this
additional information available by issuing a supplemental Federal
Register Notice of Data Availability (NODA), which would also be posted
in the public docket for this proposed rule. EPA intends to derive
proposed protective loads and DPVs for TP using an analogous approach
as used for TN DPVs. EPA expects the approach will recognize that TP,
like TN, is essential for estuarine processes but in excess will
adversely impact aquatic life uses.
---------------------------------------------------------------------------
\86\ Hoos, A.B., S. Terziotti, G. McMahon, K. Savvas, K.C.
Tighe, and R. Alkons-Wolinsky. 2008. Data to support statistical
modeling of instream nutrient load based on watershed attributes,
southeastern United States, 2002: U.S. Geological Survey Open-File
Report 2008--1163, 50 p.
---------------------------------------------------------------------------
(iv) EPA Downstream Protection Values (DPVs)
The following criteria tables and corresponding DPVs for a given
stream reach category have been geo-referenced to specific WBIDs which
are managed by FDEP as the principal assessment unit for Florida's
surface waters. To see where the criteria are geographically
applicable, refer to EPA's TSD for Florida's Inland Waters, Appendix B-
18: In-Stream and Downstream Protection Value (IPV/DPV) Tables with DPV
Geo-Reference Table to Florida WBIDs.
----------------------------------------------------------------------------------------------------------------
(mg L-1) TP (mg L-1)
River/stream reach category--percent -------------------------------------------------------------------
delivered to estuary \4\ TN IPV \5\ TN DPV \6\ TP IPV \7\ TP DPV \8\
----------------------------------------------------------------------------------------------------------------
Perdido Bay Watershed \PH\ (EDA Code: \1\ G140x)
Protective TN Load for the Estuary: \2\: 847,520 kg y-\1\
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... NR NR 0.043 TBD
50.1-60.0%.................................. NR NR 0.043 TBD
60.1-70.0%.................................. NR NR 0.043 TBD
70.1-80.0%.................................. NR NR 0.043 TBD
80.1-90.0%.................................. 0.824 0.34 0.043 TBD
90.1-100%................................... 0.824 0.30 0.043 TBD
----------------------------------------------------------------------------------------------------------------
[[Page 4204]]
Pensacola Bay Watershed \PH\ (EDA Code: \1\ G130x)
Protective TN Load for the Estuary: \2\ 4,388,478 kg y-\1\
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... NR NR 0.043 TBD
50.1-60.0%.................................. NR NR 0.043 TBD
60.1-70.0%.................................. NR NR 0.043 TBD
70.1-80.0%.................................. NR NR 0.043 TBD
80.1-90.0%.................................. 0.824 0.48 0.043 TBD
90.1-100%................................... 0.824 0.43 0.043 TBD
----------------------------------------------------------------------------------------------------------------
Choctawhatchee Bay Watershed \PH\ (EDA Code: \1\ G120x)
Protective TN Load for the Estuary: \2\ 2,875,861 kg y-\1\
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... NR NR 0.043 TBD
50.1-60.0%.................................. NR NR 0.043 TBD
60.1-70.0%.................................. NR NR 0.043 TBD
70.1-80.0%.................................. 0.824 0.48 0.043 TBD
80.1-90.0%.................................. 0.824 0.43 0.043 TBD
90.1-100%................................... 0.824 0.39 0.043 TBD
----------------------------------------------------------------------------------------------------------------
St. Andrew Bay Watershed \PH\ (EDA Code: \1\ G110x)
Protective TN Load for the Estuary: \2\ 310,322 kg y-\1\
Protective TP Load for the Estuary: \3\ TBDK
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... 0.824 0.48 0.043 TBD
50.1-60.0%.................................. NR NR 0.043 TBD
60.1-70.0%.................................. NR NR 0.043 TBD
70.1-80.0%.................................. 0.824 0.30 0.043 TBD
80.1-90.0%.................................. 0.824 0.27 0.043 TBD
90.1-100%................................... 0.824 0.24 0.043 TBD
----------------------------------------------------------------------------------------------------------------
Apalachicola Bay Watershed \PH\ (EDA Code: \1\ G100x)
Protective TN Load for the Estuary: \2\ 10,971,582 kg y-\1\
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... 0.824 0.91 0.043 TBD
50.1-60.0%.................................. NR NR 0.043 TBD
60.1-70.0%.................................. 0.824 0.65 0.043 TBD
70.1-80.0%.................................. 0.824 0.57 0.043 TBD
80.1-90.0%.................................. 0.824 0.51 0.043 TBD
90.1-100%................................... 0.824 0.46 0.043 TBD
----------------------------------------------------------------------------------------------------------------
Apalachee Bay Watershed \PH\ (EDA Code: \1\ G090x)
Protective TN Load for the Estuary: \2\ 2,539,883 kg y-\1\
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... NR NR 0.043 TBD
50.1-60.0%.................................. NR NR 0.043 TBD
60.1-70.0%.................................. NR NR 0.043 TBD
70.1-80.0%.................................. 0.824 0.67 0.043 TBD
80.1-90.0%.................................. 0.824 0.59 0.043 TBD
90.1-100%................................... 0.824 0.53 0.043 TBD
----------------------------------------------------------------------------------------------------------------
Econfina/Steinhatchee Coastal Drainage Area \PH\ (CDA Code: \1\ G086x)
Protective TN Load for the Estuary: \2\ 185,301 kg y-\1\
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... NR NR 0.043 TBD
50.1-60.0%.................................. NR NR 0.043 TBD
60.1-70.0%.................................. NR NR 0.043 TBD
70.1-80.0%.................................. NR NR 0.043 TBD
80.1-90.0%.................................. 0.824 0.41 0.043 TBD
90.1-100%................................... 0.824 0.37 0.043 TBD
----------------------------------------------------------------------------------------------------------------
Suwannee River Watershed\NC\ (EDA Code: \1\G080x)
Protective TN Load for the Estuary: \2\ 5,421,050 kg y-\1\
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... NR NR 0.359 TBD
50.1-60.0%.................................. NR NR 0.359 TBD
60.1-70.0%.................................. 1.479 0.78 0.359 TBD
[[Page 4205]]
70.1-80.0%.................................. 1.479 0.69 0.359 TBD
80.1-90.0%.................................. 1.479 0.61 0.359 TBD
90.1-100%................................... 1.479 0.55 0.359 TBD
----------------------------------------------------------------------------------------------------------------
Waccasassa Coastal Drainage Area \PN\ (CDA Code: \1\ 078x)
Protective TN Load for the Estuary: \2\ 433,756 kg y-\1\
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... NR NR 0.107 TBD
50.1-60.0%.................................. NR NR 0.107 TBD
60.1-70.0%.................................. NR NR 0.107 TBD
70.1-80.0%.................................. NR NR 0.107 TBD
80.1-90.0%.................................. 1.205 0.45 0.107 TBD
90.1-100%................................... 1.205 0.40 0.107 TBD
----------------------------------------------------------------------------------------------------------------
Withlacoochee Coastal Drainage Area \PN\ (CDA Code: \1\ G076x)
Protective TN Load for the Estuary: \2\ TBD
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... 1.205 TBD 0.107 TBD
50.1-60.0%.................................. 1.205 TBD 0.107 TBD
60.1-70.0%.................................. 1.205 TBD 0.107 TBD
70.1-80.0%.................................. 1.205 TBD 0.107 TBD
80.1-90.0%.................................. 1.205 TBD 0.107 TBD
90.1-100%................................... 1.205 TBD 0.107 TBD
----------------------------------------------------------------------------------------------------------------
Crystal/Pithlachascotee Coastal Drainage Area \PN\ (CDA Code: \1\ G074x)
Protective TN Load for the Estuary: \2\ TBD
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... 1.205 TBD 0.107 TBD
50.1-60.0%.................................. NR TBD 0.107 TBD
60.1-70.0%.................................. NR TBD 0.107 TBD
70.1-80.0%.................................. NR TBD 0.107 TBD
80.1-90.0%.................................. 1.205 TBD 0.107 TBD
90.1-100%................................... 1.205 TBD 0.107 TBD
----------------------------------------------------------------------------------------------------------------
Tampa Bay Watershed \BV\ (EDA Code: \1\ G070x)
Protective TN Load for the Estuary: \2\ 1,289,671 kg y-\1\
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... 1.798 1.11 0.739 TBD
50.1-60.0%.................................. 1.798 0.93 0.739 TBD
60.1-70.0%.................................. 1.798 0.80 0.739 TBD
70.1-80.0%.................................. 1.798 0.70 0.739 TBD
80.1-90.0%.................................. 1.798 0.62 0.739 TBD
90.1-100%................................... 1.798 0.56 0.739 TBD
----------------------------------------------------------------------------------------------------------------
Sarasota Bay Watershed \BV\ (EDA Code: \1\ G060x)
Protective TN Load for the Estuary: \2\ 155,576 kg y-\1\
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... NR NR 0.739 TBD
50.1-60.0%.................................. NR NR 0.739 TBD
60.1-70.0%.................................. NR NR 0.739 TBD
70.1-80.0%.................................. NR NR 0.739 TBD
80.1-90.0%.................................. NR NR 0.739 TBD
90.1-100%................................... 1.798 0.54 0.739 TBD
----------------------------------------------------------------------------------------------------------------
Charlotte Harbor Watershed \BV\ (EDA Code: \1\ G050w)
Protective TN Load for the Estuary: \2\ 2,710,107 kg y-\1\
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... NR NR 0.739 TBD
50.1-60.0%.................................. 1.798 1.58 0.739 TBD
60.1-70.0%.................................. 1.798 1.35 0.739 TBD
70.1-80.0%.................................. 1.798 1.18 0.739 TBD
80.1-90.0%.................................. 1.798 1.05 0.739 TBD
90.1-100%................................... 1.798 0.95 0.739 TBD
----------------------------------------------------------------------------------------------------------------
[[Page 4206]]
Indian River Watershed \PN\ (EDA Code: \1\ S190x)
Protective TN Load for the Estuary: \2\ 463,724 kg y-\1\
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... NR NR 0.107 TBD
50.1-60.0%.................................. NR NR 0.107 TBD
60.1-70.0%.................................. NR NR 0.107 TBD
70.1-80.0%.................................. 1.205 0.87 0.107 TBD
80.1-90.0%.................................. 1.205 0.77 0.107 TBD
90.1-100%................................... 1.205 0.69 0.107 TBD
----------------------------------------------------------------------------------------------------------------
Caloosahatchee River Watershed PN,# (EDA Code: \1\ G050a)
Protective TN Load for the Estuary: \2\ TBD
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... 1.205 TBD 0.107 TBD
50.1-60.0%.................................. 1.205 TBD 0.107 TBD
60.1-70.0%.................................. 1.205 TBD 0.107 TBD
70.1-80.0%.................................. 1.205 TBD 0.107 TBD
80.1-90.0%.................................. 1.205 TBD 0.107 TBD
90.1-100%................................... 1.205 TBD 0.107 TBD
----------------------------------------------------------------------------------------------------------------
St. Lucie River Watershed PN,# (EDA Code: \1\ S190x)
Protective TN Load for the Estuary: \2\ TBD
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... 1.205 TBD 0.107 TBD
50.1-60.0%.................................. 1.205 TBD 0.107 TBD
60.1-70.0%.................................. 1.205 TBD 0.107 TBD
70.1-80.0%.................................. 1.205 TBD 0.107 TBD
80.1-90.0%.................................. 1.205 TBD 0.107 TBD
90.1-100%................................... 1.205 TBD 0.107 TBD
----------------------------------------------------------------------------------------------------------------
Kissimmee River Watershed PN,[caret]
Protective TN Load for the Estuary: \2\ TBD
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... 1.205 TBD \9\ 0.107 TBD \9\
50.1-60.0%.................................. 1.205 TBD \9\ 0.107 TBD \9\
60.1-70.0%.................................. 1.205 TBD \9\ 0.107 TBD \9\
70.1-80.0%.................................. 1.205 TBD \9\ 0.107 TBD \9\
80.1-90.0%.................................. 1.205 TBD \9\ 0.107 TBD \9\
90.1-100%................................... 1.205 TBD \9\ 0.107 TBD \9\
----------------------------------------------------------------------------------------------------------------
St. John's River Watershed; \PN\ (EDA Code: \1\ S180x)
Protective TN Load for the Estuary: \2\ 4,954,662 kg y-\1\
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... 1.205 1.41 0.107 TBD
50.1-60.0%.................................. 1.205 1.17 0.107 TBD
60.1-70.0%.................................. 1.205 1.00 0.107 TBD
70.1-80.0%.................................. 1.205 0.88 0.107 TBD
80.1-90.0%.................................. 1.205 0.78 0.107 TBD
90.1-100%................................... 1.205 0.70 0.107 TBD
----------------------------------------------------------------------------------------------------------------
Daytona/St. Augustine Coastal Drainage Area \PN\ (CDA Code: \1\ S183x)
Protective TN Load for the Estuary: \2\ TBD
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... NR TBD 0.107 TBD
50.1-60.0%.................................. NR TBD 0.107 TBD
60.1-70.0%.................................. NR TBD 0.107 TBD
70.1-80.0%.................................. NR TBD 0.107 TBD
80.1-90.0%.................................. 1.205 TBD 0.107 TBD
90.1-100%................................... 1.205 TBD 0.107 TBD
----------------------------------------------------------------------------------------------------------------
Nassau Coastal Drainage Area \PN\ (CDA Code: \1\ S175x)
Protective TN Load for the Estuary: \2\ 131,389 kg y-\1\
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... 1.205 0.59 0.107 TBD
50.1-60.0%.................................. NR NR 0.107 TBD
60.1-70.0%.................................. NR NR 0.107 TBD
[[Page 4207]]
70.1-80.0%.................................. NR NR 0.107 TBD
80.1-90.0%.................................. 1.205 0.33 0.107 TBD
90.1-100%................................... 1.205 0.30 0.107 TBD
----------------------------------------------------------------------------------------------------------------
St. Mary's River Watershed \PN\ (EDA Code: \1\ S170x)
Protective TN Load for the Estuary: \2\ 562,644 kg y-\1\
Protective TP Load for the Estuary: \3\ TBD
----------------------------------------------------------------------------------------------------------------
Less than 50%............................... NR NR 0.107 TBD
50.1-60.0%.................................. NR NR 0.107 TBD
60.1-70.0%.................................. NR NR 0.107 TBD
70.1-80.0%.................................. 1.205 0.43 0.107 TBD
80.1-90.0%.................................. 1.205 0.38 0.107 TBD
90.1-100%................................... 1.205 0.34 0.107 TBD
----------------------------------------------------------------------------------------------------------------
Footnotes associated with this table:
\1\ Watershed delineated by NOAA's Coastal Assessment Framework and associated Florida Department of
Environmental Protection's estuarine and coastal water body identifier (WBID).
\2\ Estimated TN load delivered to the estuary protective of aquatic life use. These estimates may be revised
pursuant to the EPA final rule for numeric nutrient criteria for Florida's estuaries and coastal waters
(October 2011).
\3\ Estimated TP load delivered to the estuary protective of aquatic life use. These estimates are currently
under development. Preliminary estimates may be revised pursuant to the EPA final rule for numeric nutrient
criteria for Florida's estuaries and coastal waters (October 2011).
\4\ River/Stream reach categories within each estuarine watershed are linked spatially to a specific FDEP water
body identifier (WBID). See Appendix B-18 of the ``Technical Support Document for EPA's Proposed Rule for
Numeric Nutrient Criteria for Florida's Inland Surface Fresh Waters.''
\5\ Instream Protection Value (IPV) is the TN concentration protective of instream aquatic life use.
\6\ Downstream protection values (DPVs) are estimated TN concentrations in the river/stream reach that meet the
estimated TN load, protective of aquatic life use, delivered to the estuarine waters. These estimates may be
revised pursuant to the EPA final rule for numeric nutrient criteria for Florida's estuaries and coastal
waters (October 2011).
\7\ Instream Protection Value (IPV) is the TP concentration protective of instream aquatic life use.
\8\ Downstream protection values (DPVs) are estimated TP concentrations in the river/stream reach that meet the
estimated TP load, protective of aquatic life use, delivered to the estuarine waters. These estimates are
currently under development. Preliminary estimates may be revised pursuant to the EPA final rule for numeric
nutrient criteria for Florida's estuaries and coastal waters (October 2011).
\9\ EPA's proposed TN and TP criteria for colored lakes (>40 PCU) are 1.2 and 0.050 mg L-\1\, respectively.
Estimated TN and TP loads protective of aquatic life in the Caloosahatchee and St. Lucie River
estuaries, and in turn estimated TN and TP concentrations that would meet those protective loads, could not be
calculated using EPA's downstream protection approach. An alternative downstream protection approach will be
proposed in EPA's proposed rule for FL estuaries (January 2011).
[caret] Kissimmee River watershed does not have an EDA or CDA code because it does not drain directly to an
estuary or coastal area, but rather indirectly through Lake Okeechobee and the south Florida canal system.
A protective TN and TP load for Lake Okeechobee has not been calculated, however, a TMDL is in effect for TP.
EPA's proposed colored lake criteria (> 40 PCU) could be used to develop DPVs for TN and TP for the Kissimmee
watershed (see footnote 9).
\LO\ DPVs to be based on protective TN and TP loads for Lake Okeechobee. EPA's proposed colored lake criteria
(>40 PCU) could be used to develop DPVs for TN and TP for the Kissimmee watershed (see footnote 9).
\NR\ There are no stream reaches present in this watershed that have a percent-delivered within this range and
thus criteria are not applicable.
\PH\ Panhandle Nutrient Watershed Region.
\BV\ Bone Valley Nutrient Watershed Region.
\PN\ Peninsula Nutrient Watershed Region.
\NC\ North Central Nutrient Watershed Region.
\TBD\ To be determined.
(v) Application of DPVs for Downstream Estuary Protection
The following discussion further explains the conceptual
relationship between IPVs and DPVs for stream criteria. EPA developed
IPVs to protect the uses that occur within the stream itself at the
point of application, such as protection of the benthic invertebrate
community and maintenance of a healthy balance of phytoplankton
species. In contrast, EPA developed DPVs for streams to protect WQS of
downstream waters. EPA derived DPVs in Florida streams by distributing
the protective load from the aggregate stream network identified for
each downstream estuary (that is protective of estuarine conditions)
across the watershed in proportion to the amount of flow contributed by
each stream reach. EPA's approach also accounts for attenuation of
nutrients (or loss from the system) as water travels from locations
upstream in the watershed to locations near the mouth of the estuary.
When comparing an IPV and DPV that are each deemed to apply to a
particular stream segment, the more stringent of the two values is the
numeric nutrient criterion that would need to be met when implementing
CWA programs. Water bodies can differ significantly in their
sensitivity to nutrients in general and to TN specifically. Although
not universally true, freshwaters are generally phosphorus-limited and
thus more sensitive to phosphorus enrichment because nitrogen is
present in excess. Enriching freshwaters with phosphorus does not
usually drive these systems into nitrogen limitation but can simply
encourage growth of nitrogen-fixing algal species which can convert
atmospheric nitrogen into ammonia. Conversely, estuaries are more often
nitrogen limited and thus more sensitive to adverse impacts from
nitrogen enrichment. As a result, it is not at all surprising that DPVs
for TN in Florida are often less than the corresponding IPVs.
Adjustments to DPVs are possible with a redistribution approach,
which revises the original uniform assignment of protective downstream
estuarine loadings across the estuarine drainage area using the DPV
methodology, or by revising either the protective load delivered to the
downstream estuary and/or the equivalent DPVs using a technical
approach of comparable scientific rigor and the Federal SSAC procedure
described in section V.C of this notice.
[[Page 4208]]
Re-distributing the allocation of protective loading within an
estuarine drainage area, or subset of an estuarine drainage area, is
appropriate and protective because the total load delivered to the
mouth of the estuary would still meet the protective load. DPVs may be
a series of values for each reach in the upstream drainage area such
that the sum of reach-specific incremental loading delivered to the
estuary equals the protective loading rate taking into account that
downstream reaches must reflect loads established for upstream reaches.
Adjustments to DPVs may also factor in additional nutrient attenuation
provided by already existing landscape modifications or treatment
systems, such as constructed wetlands or stormwater treatment areas,
where the attenuation is sufficiently documented and not a temporary
condition. Unlike re-allocation of an even distribution of loading,
these types of adjustments, as well as other site-specific information
on alternative fractions delivered, would require use of the SSAC
procedure under this proposal. EPA requests comment on whether these
adjustments should be allowed to occur in the implementation of the re-
allocation process rather than as a SSAC.
A technical approach of comparable scientific rigor will include a
systematic data driven evaluation and accompanying analysis of relevant
factors to identify a protective load delivered to the estuary. An
acceptable alternate numeric approach also includes a method to
distribute and apply the load to streams and other waters within the
estuarine drainage area in a manner that recognizes conservation of
mass and makes use of a peer-reviewed model (empirical or mechanistic)
of comparable or greater rigor and scientific defensibility than the
USGS SPARROW model. To use an alternative technical approach, the State
must go through the process for a Federal SSAC procedure as described
in Section V.C.
EPA requests comment on the DPV approach, the technical merit of
the estimated protective loadings, and the technical merit of the
method for calculating stream reach values. EPA also requests comment
on other scientifically defensible approaches for ensuring protection
of designated uses in estuaries. At this time, EPA plans to take final
action with respect to downstream protection values for nitrogen as
part of the second phase of this rulemaking process in coordination
with the proposal and finalization of numeric standards for estuarine
and coastal waters in 2011. However, if comments, data and analyses
submitted as a result of this proposal support finalizing these values
sooner, by October 2010, EPA may choose to proceed in this manner. To
facilitate this process, EPA requests comments and welcomes thorough
evaluation on the technical and scientific basis of these proposed
downstream protection values as part of the broader comment and
evaluation process that this proposal initiates.
D. Proposed Numeric Nutrient Criteria for the State of Florida's
Springs and Clear Streams
(1) Proposed Numeric Nutrient Criteria for Springs and Clear Streams
Springs and their associated spring runs in Florida are a unique
class of aquatic ecosystem, highly treasured for their biological,
economic, aesthetic, and recreational value. Globally, the largest
number of springs (per unit of area), occur in Florida; Florida has
over 700 springs and associated spring runs. Many of the larger spring
ecosystems in Florida have likely been in existence since the end of
the last major ice age (approximately 15,000 to 30,000 years ago). The
productivity of the diverse assemblage of aquatic flora and fauna in
Florida springs is primarily determined by the naturally high amount of
light availability of these waters (naturally high clarity).\87\ As
recently as 50 years ago, these waters were considered by naturalists
and scientists to be some of the most unique and exceptional waters in
the State of Florida and the Nation as a whole.
---------------------------------------------------------------------------
\87\ 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. http://www.dep.state.fl.us/springs/reports/files/UF_SpringsNutrients_Report.pdf, University of Florida, Gainesville, Florida.
---------------------------------------------------------------------------
In Florida, springs are also highly valued as a water resource for
human use: people use springs for a variety of recreational purposes
and are interested in the intrinsic aesthetics of clear, cool water
emanating vigorously from beneath the ground. A good example of the
value of springs in Florida is the use of the spring boil areas that
have sometimes been modified to encourage human recreation (bathing or
swimming).\88\
---------------------------------------------------------------------------
\88\ 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.
---------------------------------------------------------------------------
Over the past two decades, scientists have identified two
significant anthropogenic factors linked to adverse changes in spring
ecosystems that have the potential to permanently alter Florida's
spring ecosystems. These are: (1) Pollution of groundwater,\89\
principally with nitrate-nitrite, resulting from human land use
changes, cultural practices, and explosive population growth; and (2)
simultaneous reductions in groundwater supply from human
withdrawals.\90\ Pollution associated with human activities is one of
the most critical issues affecting the health of Florida's springs.\91\
---------------------------------------------------------------------------
\89\ 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. U.S. Geological Survey Water-
Resources Investigations Report 99-4252. Reston, VA.
\90\ 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. http://www.dep.state.fl.us/springs/reports/files/UF_SpringsNutrients_Report.pdf, University of Florida, Gainesville, Florida.
\91\ Ibid.
---------------------------------------------------------------------------
Excess nutrients, in particular excess nitrogen, seep into the
soils and move to groundwater.\92\ When in excess, nutrients lead to
eutrophication of groundwater-fed springs, allowing algae and invasive
plant species to displace native plants, which in turn results in an
ecological imbalance.\93\ Excessive growth of nuisance algae and
noxious plant species in turn result in reduced habitat and food
sources for native wildlife,\94\ excess organic carbon production,
accelerated decomposition, and lowered quality of the floor or
``bottom'' of springs and spring runs, all of which adversely impact
the overall health and aesthetics of Florida's springs.
---------------------------------------------------------------------------
\92\ 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. U.S. Geological Survey Water-
Resources Investigations Report 99-4252. Reston, VA.
\93\ Doyle, R.D. and R.M. Smart. 1998. Competitive reduction of
noxious Lyngbya wollei mats by rooted aquatic plants. Aquatic Botany
61:17-32.
\94\ Stevenson, R.J., A. Pinowska, A. Albertin, and J.O.
Sickman. 2007. Ecological condition of algae and nutrients in
Florida springs: The Synthesis Report. Prepared for the Florida
Department of Environmental Protection. Tallahassee, FL. 58 pp.
Bonn, M.A. and F.W. Bell. 2003. Economic Impact of Selected
Florida Springs on Surrounding Local Areas. Report prepared for the
Florida Department of Environmental Protection. Tallahassee, FL.
---------------------------------------------------------------------------
Adverse impacts on the overall health of Florida's springs have
been evident over the past several decades. Within the last 20-30
years, observations at
[[Page 4209]]
several of Florida's springs suggest that nuisance algae species have
proliferated, and are now out-competing and replacing native submerged
vegetation. Numerous biological studies have documented excessive algal
growth at many major springs. In some of the more extreme examples,
such as Silver Springs and Weeki Wachee Springs, algal mat
accumulations have become over three feet thick.\95\\,\\96\
---------------------------------------------------------------------------
\95\ Pinowska, A., R.J. Stevenson, J.O. Sickman, A. Albertin,
and M. Anderson. 2007. 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.
\96\ 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.
---------------------------------------------------------------------------
As a result of human-induced land use changes, cultural practices,
and explosive population growth, there has been an increase in the
level of pollutants, especially nitrate, in groundwater over the past
decades.\97\ Because there is no geologic source of nitrogen in
springs, all of the nitrogen emerging in spring vents originates from
that which is deposited on the land. Historically, nitrate
concentrations in Florida's spring discharges were thought to have been
around 0.05 mg/L or less, which is sufficiently low to restrict growth
of algae and vegetation under ``natural'' conditions.\98\
---------------------------------------------------------------------------
\97\ 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.
\98\ 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 34. Tallahassee, FL.
---------------------------------------------------------------------------
Regions where springs emanate in Florida have experienced
unprecedented population growth and changes in land use over the past
several decades.\99\ With these changes in population and growth came a
transfer of nutrients, particularly nitrate, to groundwater. Of 125
spring vents sampled by the Florida Geological Survey in 2001-2002, 42%
had nitrate concentrations exceeding 0.50 mg/L and 24% had
concentrations greater than 1.0 mg/L.\100\ Similarly, a recent
evaluation of water quality in 13 springs shows that mean nitrate-
nitrite levels 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 from 10 to 350 fold 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 predominate.
---------------------------------------------------------------------------
\99\ 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. U. S. Geological Survey Water-
Resources Investigations Report 99-4252. Reston, VA.
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. http://www.dep.state.fl.us/springs/reports/files/UF_SpringsNutrients_Report.pdf, University of Florida, Gainesville, Florida.
\100\ 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.
---------------------------------------------------------------------------
As nitrate-nitrite concentrations have increased during the past 20
to 50 years, many Florida springs have undergone adverse environmental
and biological changes. According to FDEP, there is a general consensus
in the scientific community that nitrate is an important factor leading
to the observed changes in spring ecosystems, and their associated
biological communities. Nitrogen, particularly nitrate-nitrite, appears
to be the most problematic nutrient problem in Florida's karst
region.\101\
---------------------------------------------------------------------------
\101\ 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. http://www.dep.state.fl.us/springs/reports/files/UF_SpringsNutrients_Report.pdf, University of Florida, Gainesville, Florida.
---------------------------------------------------------------------------
Because nitrate-nitrite has been linked to many of the observed
detrimental impacts in spring ecosystems, there is an immediate need to
reduce nitrate-nitrite concentrations in spring vents and groundwater.
A critical step in achieving reductions in nitrate-nitrite is to
develop a numeric nitrate-nitrite criterion for spring systems that
will be protective of these unique and treasured resources.\102\
---------------------------------------------------------------------------
\102\ 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. http://www.dep.state.fl.us/springs/reports/files/UF_SpringsNutrients_Report.pdf, University of Florida, Gainesville, Florida.
---------------------------------------------------------------------------
To protect springs and clear streams and to provide assessment
levels and restoration goals for those that have already been impaired
by nutrients, EPA is proposing numeric nutrient criteria for the
following parameter for Florida's springs and clear streams (< 40 PCU)
classified as Class I or III waters under Florida law (Rule 62-302.400,
F.A.C.):
Nitrate (NO3\-\)+Nitrite (NO2\-\) shall
not surpass a concentration of 0.35 mg/L as an annual geometric mean
more than once in a three-year period, nor surpassed as a long-term
average of annual geometric mean values.
In addition to the nitrate-nitrite criterion, TN and TP criteria
developed for streams on a watershed basis are also applicable to clear
streams. See Section III.C(1) ``Proposed Numeric Nutrient Criteria for
the State of Florida's Rivers and Streams'' for the table of proposed
TN and TP criteria that would apply to clear streams located within
specific watersheds.
(2) Methodology for Deriving EPA's Proposed Criteria for Springs and
Clear Streams
EPA's proposed nitrate-nitrite criterion for springs and clear
streams are derived from a combination of FDEP laboratory data, field
surveys, and analyses which include analyses conducted to determine the
stressor response-based thresholds that link nitrate-nitrite levels to
biological risk in springs and clear streams. These data document the
response of nuisance algae, Lyngbya wollei and Vaucheria sp., and
periphyton to nitrate-nitrite concentrations. Please refer to EPA's TSD
for Florida's Inland Waters, Chapter 3: Methodology for Deriving U.S.
EPA's Proposed Criteria for Springs and Clear Streams.
As described in Section III.C(2), the ability to establish
protective criteria for both causal and response variables depends on
available data and scientific approaches to evaluate these data. EPA
has not undertaken the development of TP criteria for springs because
phosphorus has historically been present in Florida's springs, given
the State's naturally phosphorus-rich geology, and the lack of an
increasing trend of phosphorus concentrations in most spring
discharges. EPA is not proposing chlorophyll a and clarity criteria due
to the lack of available data for these response variables in spring
systems. Furthermore, scientific evidence examining the strong
relationship between rapid periphyton survey data (measurements of the
thickness of algal biomass attached to substrate rather than free-
floating) and nutrients in clear streams (those with color <40 PCU and
canopy cover <= 40% which are comparable to most waters found in
springs and spring runs) show that benthic algal thickness is highly
dependent on nitrogen parameters (TN and total inorganic nitrogen), as
opposed to phosphorus. In addition,
[[Page 4210]]
EPA is proposing to apply the nitrate-nitrite criteria derived for
springs to clear streams as a measure to gauge anthropogenic
contributions to TN. EPA is not currently proposing criteria for
clarity and chlorophyll a for clear streams due to the lack of
scientific evidence supporting the relationship between these response
variables and nutrients. Clear streams show weak relationships between
nutrients and chlorophyll a, as opposed to color streams where
phytoplankton responses occur more readily than periphyton growth.
Please refer to EPA's TSD for Florida's Inland Waters, Chapter 3:
Methodology for Deriving U.S. EPA's Proposed Criteria for Springs and
Clear Streams.
(a) Derivation of Proposed Nitrate-Nitrite Criteria
EPA's goal in deriving nitrate-nitrite criteria for Florida springs
and clear streams is to ensure that the criteria will preserve the
ecosystem structure and function of Florida's springs and clear
streams. EPA reviewed Florida data, FDEP's approach and analyses, and
FDEP's proposed nitrate-nitrite criterion for springs and clear streams
and has concluded that the FDEP approach and the values FDEP derived
represent a scientifically sound basis for the derivation of these
criteria. FDEP evaluated results from laboratory scale dosing studies,
data from in-situ algal monitoring, real-world surveys of biological
communities and nutrient levels in Florida springs, and data on
nitrate-nitrite concentrations found in minimally-impacted reference
locations.
FDEP analyzed laboratory data\103\ that evaluated the growth
response of nuisance algae to nitrate addition. FDEP's analysis showed
that Lyngbya wollei and Vaucheria sp. reached 90% of their maximum
growth at 0.230 mg/L and 0.261 mg/L nitrate-nitrite, respectively. FDEP
also reviewed long-term field surveys that examined the response of
nuisance algae, periphyton, and eutrophic indicator diatoms to nitrate-
nitrite concentration.\104\ The results showed a sharp increase in
abundance and/or biomass of the nuisance algae, periphyton, and diatoms
at 0.44 mg/L nitrate-nitrite.
---------------------------------------------------------------------------
\103\ Stevenson, R.J., A. Pinowska, A. Albertin, and J.O.
Sickman. 2007. Ecological condition of algae and nutrients in
Florida springs: The Synthesis Report. Prepared for the Florida
Department of Environmental Protection. Tallahassee, FL. 58 pp.
Cowell, B.C. and C.J. Dawes. 2004. Growth and nitrate-nitrogen
uptake by the cyanobacterium Lyngbya wollei. J. Aquatic Plant
Management 42: 69-71.
\104\ 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, Tallahassee, Florida.
---------------------------------------------------------------------------
FDED also reviewed the field surveys used to develop TMDLs for
Wekiva River and Rock Spring Run to evaluate the relationship between
the observed excessive algal growth and imbalance in aquatic flora with
measurements of nutrients in these particular systems. FDEP found that
taxa indicative of eutrophic conditions increased significantly with
increasing nitrate-nitrite concentrations above approximately 0.35 mg/
L.
Based on its review of a combination of this laboratory and field
data, FDEP concluded that significant alterations in community
composition (eutrophic indicator diatoms), in combination with an
increase in periphyton cell density and biomass, clearly demonstrate
that a nitrate-nitrite level in the range between 0.23 mg/L (the
laboratory threshold) and 0.44 mg/L (the field study derived value
associated with the upper bound nitrate-nitrite concentration where
substantial observed biological changes were apparent) is the amount of
nitrate-nitrite associated with an imbalance of aquatic flora in spring
systems.\105\
---------------------------------------------------------------------------
\105\ Mattson, R.A., E.F. Lowe, C.L. Lippincott, D. Jian, and L.
Battoe. 2006. Wekiva River and Rock Springs Run Pollutant Load
Reduction Goals. St. Johns River Water Management District, Palatka,
Florida.
---------------------------------------------------------------------------
FDEP conducted further statistical analyses of the available data
from the multiple lines of evidence, applied an appropriate safety
factor to ensure that waters would not reach the nitrate-nitrite levels
associated with ``substantial observed biological changes,'' and
averaged the results to arrive at a final protective threshold value
for nitrate-nitrite in springs and clear streams of 0.35 mg/L. Based on
the discussion above and corresponding analysis in the TSD for
Florida's Inland Waters, EPA has concluded that this value was derived
in a scientifically sound manner, appropriately considering the
available data, and appropriately interpreting the multiple lines of
evidence. Accordingly, EPA is proposing 0.35 mg/L nitrate-nitrite as a
protective criterion for aquatic life in Florida's springs and clear
streams.
(b) Proposed Criteria: Duration and Frequency
EPA is proposing a duration and frequency expression of an annual
geometric mean not to be surpassed more than once in a three-year
period to be consistent with the expressions of duration and frequency
for other water body types (e.g., lakes, streams, canals) for TN and TP
and for the same reasons EPA selected a three-year period for those
waters. Second, EPA proposes that the long-term arithmetic average of
annual geometric means not exceed the criterion-magnitude
concentration. EPA anticipates that Florida will use its standard
assessment periods as specified in Rule 62-303, F.A.C. (Impaired Waters
Rule) to implement this second provision. EPA has determined that this
frequency of excursions should not result in unacceptable effects on
aquatic life as it will allow the springs and clear streams aquatic
systems enough time to recover from an occasionally elevated year of
nutrient loadings. The Agency requests comment on these proposed
duration and frequency expressions of the springs and clear streams
numeric nutrient criteria.
EPA also considered as an alternative, expressing the criterion as
a monthly median not to be surpassed more than 10% of the time. Stated
another way, the median value over any given calendar month shall not
be higher than the criterion-magnitude value in more than one out of
every ten months. It is appropriate to express a monthly criterion as a
median because the median is less susceptible to outliers than the
geometric mean. This is particularly important when dealing with small
sample sizes. This alternative is consistent with the expression that
FDEP proposed in July 2009 for its State rule and the expression in the
TSD for Florida's Inland Waters that EPA sent out for external
scientific peer review in July 2009. The rationale for this alternative
is that field data indicate that the response in springs is correlated
to monthly exposure at the criterion-magnitude concentration value and
a 10% frequency of excursions is a reasonable and fully protective
allowance given small sample sizes in any given month (i.e., the
anticipated amount of data that will be available for assessment
purposes in the future). The clear streams nitrate-nitrite criterion
was derived by FDEP based on multiple lines of evidence, with the
primary lines of evidence being mesocosm dosing experiments and field
studies. These two main studies were conducted by FDEP over very
different time frames. One set of mesocosm studies was conducted by
FDEP for periods just under one month (i.e., 21 to 28 days), while
another, the algal biomass field survey, was conducted over an 18-year
period and was analyzed using four to five year averaging periods.\106\
While lab
[[Page 4211]]
studies indicate that algal communities can respond to excess nitrate-
nitrite over a short period of time, the mesocosm and other dosing
studies indicate that this response occurs on the order of a month,
which might support a monthly expression of the criterion.\107\
However, there is no evidence to suggest that the responses observed
within a month under controlled lab settings equate to impairment of
the designated use in conditions experienced in State waters. Please
refer to EPA's TSD for Florida's Inland Waters, Chapter 3: Methodology
for Deriving U.S. EPA's Proposed Criteria for Springs and Clear
Streams.
---------------------------------------------------------------------------
\106\ Gao, X. 2008. Nutrient TMDLs for the Wekiva River (WBIDs
2956, 2956A, 2956C) and Rock Springs Run (WBID 2967). Florida
Department of Environmental Protection, Tallahassee, Florida.
\107\ Stevenson, R.J., A. Pinowska, A. Albertin, and J.O.
Sickman. 2007. Ecological condition of algae and nutrients in
Florida springs: The Synthesis Report. Prepared for the Florida
Department of Environmental Protection. Tallahassee, FL. 58 pp.
---------------------------------------------------------------------------
The 10% excursion frequency would recognize that in most cases the
monthly ``median'' would actually be based on a single sample, given
that most springs are only sampled monthly at the most. A 10% excursion
frequency may be considered a reasonable and fully protective allowance
given small sample sizes in any given month, essentially requiring that
the monthly median nitrate-nitrate concentrations thought to be fully
supportive of relevant designated uses be met 90% of the time.
EPA requests comment on these proposed criteria duration and
frequency expressions, and the basis for their derivation. EPA notes
that some scientists and resource managers have suggested that nutrient
criteria duration and frequency expressions should be more restrictive
to avoid seasonal or annual ``spikes'' from which the aquatic system
cannot easily recover, whereas others have suggested that criteria
expresssed as simply a long-term average of annual geometric means,
consistent with data used in criteria derivation, would still be
protective. EPA requests comment on alternative duration and frequency
expressions that might be considered protective, including (1) a
criterion-duration expressed as a monthly average or geometric mean,
(2) a criterion-frequency expressed as meeting allowable magnitude and
duration every year, (3) a criterion-frequency expressed as meeting
allowable magnitude and duration in more than half the years of a given
assessment period, and (4) a criterion-frequency expressed as meeting
the allowable magnitude and duration as a long-term average only. EPA
further requests comment on whether an expression of the criteria in
terms of an arithmetic average of annual geometric mean values based on
rolling three-year periods of time would also be protective of the
designated use.
(3) Request for Comment and Data on Proposed Approach
EPA believes the proposed nutrient criterion for springs and clear
streams in this rule are protective of the designated aquatic life use
of these waters in Florida. EPA is soliciting comment on the approach
FDEP used and EPA adopted to derive nitrate-nitrite criterion for
springs and clear streams, including the data and analyses underlying
the proposed criterion. EPA is seeking additional, readily-available,
pertinent data and information related to nutrient concentrations or
nutrient responses in springs and clear streams in Florida. EPA is also
soliciting views on other potential, scientifically sound approaches to
deriving protective nitrate-nitrite criterion for springs and clear
streams in Florida.
(4) Alternative Approaches: Nitrate-Nitrite Criterion for All Waters as
an Independent Criterion
EPA is soliciting comment on the environmental benefits associated
with deriving a nitrate-nitrite criterion for all waters covered by
this proposal (i.e., all streams, lakes, and canals), in addition to
the other proposed nutrient criteria for those water bodies. Adoption
of a nitrate-nitrite criterion for waters other than springs and clear
streams could be useful from an assessment and management perspective.
Florida could use nitrate-nitrite data to identify increasing trends
that may indicate the need for more specific controls of certain
nitrogen enrichment sources. In cases where waters are impaired for
either TN, nitrate-nitrite, or both TN and nitrate-nitrite, FDEP could
use the nitrate-nitrite data to potentially target discharges of
anthropogenic origin given their relative source contribution to
nitrogen enrichment.
This alternative approach, which would involve EPA deriving
nitrate-nitrite criteria for all waters or alternatively applying 0.35
mg/L nitrate-nitrite to all waters, could provide additional protection
for aquatic life designated uses. The alternative approach would also
eliminate the need for FDEP to characterize streams as clear or not.
Deriving and applying a nitrate-nitrite criterion to all waters would
reduce the likelihood of excess loading of the specific anthropogenic
components of TN to colored waters. However, these colored streams may
be less likely to show an observed response to nitrate-nitrite due to
the presence of tannins that block light penetration. Thus, the
presence of color in streams may confound the relationship that
produced the 0.35 mg/L nitrate-nitrite criterion.
E. Proposed Numeric Nutrient Criteria for South Florida Canals
(1) Proposed Numeric Nutrient Criteria for South Florida Canals
There are thousands of miles of canals in Florida, particularly in
the southeastern part of the State. Canals are artificial waterways
that are either the result of modifications to existing rivers or
streams, or waters that have been created for various purposes,
including drainage and flood control (stormwater management),
irrigation, navigation, and recreation. These canals also allow for the
creation of many waterfront home sites in Florida. Ecosystems that
existed in rivers and streams prior to their modification into canals
are altered. These changes can affect fish and wildlife and plant
growth, as further explained in the following paragraphs. Newly created
canals may have a tendency to fill with aquatic plants. Canals in south
Florida vary greatly in size and depth. They can be anywhere from a few
feet wide and a few feet deep to hundreds of feet wide and as deep as
30-35 feet.
South Florida canals vary in their hydrology and behavior due to
their size, function, and seasonality. Shallow canals with slow water
flow have poor turnover of water and little flushing. Large canals also
may have low flow and turnover during the dry season. In contrast,
during the wet season these same large canals are flowing systems that
quickly move large volumes of water, as they were designed to
accomplish. Excess nutrients in canals in combination with poor water
circulation and decreased levels of dissolved oxygen, can lead to
accelerated eutrophication and adverse impacts on other forms of
aquatic life such as fish and other aquatic animals. In these canals,
the accumulation of decaying organic matter on the canal bottom can
also adversely impact healthy aquatic ecosystems.
South Florida canals are highly managed waterways. Some canals are
prone to an over-abundance of aquatic plants. Without regular and
frequent management, dense vegetation can clog the waterways making
navigation difficult and slowing the movement of water through the
canal system. This can interfere with flood control, boating, and
fishing. Aquatic plants (like plants in the terrestrial environment)
respond
[[Page 4212]]
and grow when fertilized with nutrients such as phosphorus and
nitrogen, and thus nutrient runoff into canals is likely a significant
contributor to both nuisance algal blooms and clogging of canal systems
by aquatic plants.
EPA is proposing numeric nutrient criteria for the following
parameters and geographic classifications in south Florida, for canals
classified as Class III waters under Florida law (Rule 62-302.400,
F.A.C.). The proposed and alternative approaches described herein would
not apply for TP in canals within the Everglades Protection Area (EvPA)
since there is an existing TP criterion of 0.010 mg/L that currently
applies to the marshes and adjacent canals within the EvPA (Rule 62-
302.540, F.A.C.).
----------------------------------------------------------------------------------------------------------------
Total
Chlorophyll a phosphorus Total nitrogen
([micro]g/L) (TP) (mg/L) (TN) (mg/L)
\a\ \a\ \b\ \a\
----------------------------------------------------------------------------------------------------------------
Canals.......................................................... 4.0 0.042 1.6
----------------------------------------------------------------------------------------------------------------
\a\ Concentration values are based on annual geometric mean not to be surpassed more than once in a three-year
period. In addition, the long-term average of annual geometric mean values shall not surpass the listed
concentration values. (Duration = annual; Frequency = not to be surpassed more than once in a three-year
period or as a long-term average).
\b\ Applies to all canals within the Florida Department of Environmental Protection's South Florida bioregion,
with the exception of canals within the Everglades Protection Area (EvPA) where the TP criterion of 0.010 mg/L
currently applies.
The following sections detail the methodology EPA used to develop
the proposed numeric nutrient criteria for canals in south Florida, and
request comment on the proposed criteria and their derivation. In
addition, EPA is providing details of two alternative options for
deriving canal criteria values that EPA considered and is soliciting
comments on these alternatives.
(2) Methodology for Deriving EPA's Proposed Criteria for South Florida
Canals
Based on the available information for canals, EPA determined that
the most scientifically sound way to derive protective numeric nutrient
criteria for south Florida's canals is to use a similar approach to
what EPA used to derive numeric nutrient criteria for streams. That is,
EPA chose a nutrient concentration distribution-based approach using
data from only those canals that have been determined to support the
applicable designated use. EPA used existing water quality assessments
and identified canals that have been determined to be impaired for
nutrients. Data for those canals were excluded from the larger data set
in order to create a set of data representing canals attaining the
designated use of aquatic life, according to FDEP's assessment
decisions. For further information, please refer to EPA's TSD for
Florida's Inland Waters, Chapter 4: Methodology for Deriving U.S. EPA's
Proposed Criteria for Canals.
(a) Derivation of Proposed Numeric Nutrient Criteria for South Florida
Canals
EPA derived numeric nutrient criteria for south Florida canals for
two causal variables, TN and TP, and one response variable, chlorophyll
a. In contrast to EPA's proposed criteria for Florida's streams, EPA
concluded that there was a sufficient scientific basis for a
chlorophyll a criterion for south Florida canals. EPA considered
chlorophyll a to be an appropriate indicator of nutrient impairment in
canals on the basis of the observed seasonal flow regimes, particularly
during the relatively drier winter months when flows are relatively
lower and canal water residence time is relatively higher (as compared
to wetter, summer months). Furthermore, EPA found evidence that canals
are susceptible to impairment due to excessive chlorophyll a based on
the number of canals on Florida's CWA section 303(d) list with
chlorophyll a cited as the parameter of concern. EPA analyzed the range
of chlorophyll a concentrations in canals and found that 12% of
chlorophyll a concentration observations occurred at 10 [mu]g/L or
higher and 5% of chlorophyll a concentration observations occurred at
20 [mu]g/L or higher. As a point of reference, Florida has chlorophyll
a thresholds of 20 as the numeric interpretations of its narrative
nutrient criteria for streams and 11 [mu]g/L for estuaries/open coastal
waters, respectively, in its Impaired Waters Rule (IWR) (Rules 62-
303.351 and 62-303.353, F.A.C.). Thus, EPA included chlorophyll a as a
nutrient criterion to protect canal aquatic life designated uses from
an unacceptable biological response to excess nutrients.
EPA employed a statistical distribution approach for deriving
numeric nutrient criteria for south Florida canals. Specifically, EPA
computed statistical distributions and descriptive statistics (e.g.,
quartiles, mean, standard deviation) of TN, TP, and chlorophyll a
concentrations from data derived at canal sites across south Florida
that are not on the impaired waters list for Florida. EPA has
determined that the criteria derived from a distribution of canal data
from canals with no evidence of nutrient impairment are appropriate and
protective of designated uses.
As described in detail in Section III.C(2)(c), EPA concluded that
the 75th percentiles of the respective TN, TP, and chlorophyll a
distributions would yield values that would ensure that aquatic life
designated uses would be protected in south Florida canals. A
reasonable choice is one that lies just above the vast majority of the
population. The 75th percentile represents such a point on the
distribution of TN, TP, and chlorophyll a values.
(b) Other Data and Analyses Conducted and Considered by EPA in the
Derivation of Proposed Numeric Nutrient Criteria for South Florida
Canals
EPA undertook extensive analyses and considered a variety of data
and methods for deriving numeric nutrient criteria for Florida's
canals. Although EPA derived the proposed values based on the approach
outlined in the section above, EPA also factored into its decision-
making process the results of these other analyses as additional lines
of evidence.
One line of additional evidence is based on an evaluation of the
stressor-response relationship between chlorophyll a levels in canals
and TN and TP levels using a variety of statistical tools. A second
line of evidence is based on a consideration of the distribution of
chlorophyll a measurements, TN measurements, and TP measurements from
all canals, impaired and not impaired. Nutrient concentrations at the
lower end of these distributions were compared to the concentration
that the stressor-response analysis determined to be associated with
canals with no evidence of nutrient impairment. The third line of
evidence is based on a consideration of the distribution of chlorophyll
a, TN, and
[[Page 4213]]
TP values from only those canals considered to be minimally impacted by
nutrient-related pollution. EPA considered each of these lines of
evidence in deriving the numeric nutrient criteria for canals.
Because soil or substrate type at the bottom of a canal can
influence the nutrient cycling and relationships between the observed
biological response and the TP and TN levels in canals, EPA used data
on soil types in south Florida along with knowledge of the Everglades
Agricultural Area (EAA) and the Everglades Protection Area (EvPA) to
subdivide the canal areas for criteria derivation. Thus the first step
in these other analyses was to group canals and canal data by soil
type. The four groupings consist of histosol and entisol soils of the
EAA; histosol and entisol soils of the EvPA; spodosol and alfisol soils
and areas west of the EvPA and EAA (hereafter, West Coast); and
spodosol, entisol and alfisol soils and areas east of the EvPA and EAA
(hereafter East Coast).
EPA then sorted canal data (provided by FDEP, Miami-Dade County,
and the South Florida Water Management District) into the four canal
groupings. EPA screened the data to ensure the exclusion of the
following: (1) Sites without relevant data (e.g., nitrogen, phosphorus,
chlorophyll a), (2) sites influenced by marine waters, (3) sites within
Class IV canals or Lake Okeechobee, (4) data not originating within a
canal, (5) data with questionable units, and (6) outlier data. Data
were organized by canal regions and year. Each site occurring near the
border of a region and/or WBID was visually inspected using geographic
information system (GIS) tools to ensure the correct placement of those
sites. Local experts were also consulted by EPA. EPA analyzed the
resulting regionalized data using statistical distribution and
regression analyses. EPA undertook its additional analyses using these
canal (and data) groupings.
EPA's analysis of the distribution of chlorophyll a values in each
of the four groupings of canals (using data from impaired and
unimpaired sites) indicated that the lower percentile (i.e., 25th
percentile) ranged from 1.9 to 2.2 [micro]g/L for chlorophyll a in the
EvPA, West Coast, and East Coast, and was 6.3 [micro]g/L for the EAA.
EPA's analysis of the distribution of TN values in each of the four
groupings of canals indicated that the lower percentile (i.e., 25th
percentile) ranged from 0.8 to 1.4 mg/L for the EvPA, West Coast, and
East Coast and was 2.1 mg/L for the EAA. EPA's analysis of the
distribution of TP values in each of the four groupings of canals
indicated that the lower percentile (i.e., 25th percentile) ranged from
0.013 to 0.023 mg/L for the EvPA, West Coast, and East Coast and was
0.048 mg/L for the EAA canals.
In an effort to consider chlorophyll a, TN, and TP values in canals
minimally impacted by nutrient pollution, EPA identified canal sites
surrounded by the EvPA in the east and the Big Cypress National
Preserve in the west and considered the distribution of chlorophyll a,
TN and TP values for these sites. Although EPA acknowledges that these
sites have not been thoroughly vetted for biological condition, EPA
believes that because they are remote and surrounded by wetlands, that
these canal sites represent sites with the lowest impact from human
activities. The upper percentile values (i.e., the 75th percentile)
from the distributions of chlorophyll a, TN and TP values for these
lower impact sites are 3.4 [micro]g/L for chlorophyll a, 1.3 mg/L for
TN and 0.018 mg/L for TP.
When considering the results of these additional analyses and
comparing these results to the outcome of EPA's analysis of TN, TP, and
chlorophyll a concentrations from data derived at canal sites across
south Florida that are not on the impaired waters list for Florida, it
is clear that EPA's proposed criteria for canals are similar to those
derived from alternative approaches and therefore, represent a
reasonable integration of these multiple lines of evidence. For further
information, please refer to EPA's TSD for Florida's Inland Waters,
Chapter 4: Methodology for Deriving U.S. EPA's Proposed Criteria for
Canals.
(c) Proposed Criteria: Duration and Frequency
Aquatic life water quality criteria contain three components:
magnitude, duration, and frequency. For the TN and TP numeric criteria
for canals, the derivation of the criterion-magnitude values is
described above and these values are provided in the table in Section
III.E(1). The criterion-duration for this magnitude (or averaging
period) is specified in footnote a of the canals criteria table as an
annual geometric mean. EPA is proposing two expressions of allowable
frequency, both of which are to be met. First, EPA proposes a no-more-
than-one-in-three-years excursion frequency for the annual geometric
mean criteria for canals. Second, EPA proposes that the long-term
arithmetic average of annual geometric means not exceed the criterion-
magnitude concentration. EPA anticipates that Florida will use their
standard assessment periods as specified in Rule 62-303, F.A.C.
(Impaired Waters Rule) to implement this second provision. These
proposed duration and frequency components of the criteria are
consistent with the data set used to derive the criteria that contained
data from multiple years of record, all seasons, and a variety of
hydrologic conditions. EPA has determined that this frequency of
excursions should not result in unacceptable effects on aquatic life as
it will allow the canal aquatic system enough time to recover from an
occasionally elevated year of nutrient loadings. The Agency requests
comment on these proposed duration and frequency expressions of the
canal numeric nutrient criteria.
EPA notes that some scientists and resource managers have suggested
that nutrient criteria duration and frequency expressions should be
more restrictive to avoid seasonal or annual ``spikes'' from which the
aquatic system cannot easily recover, whereas others have suggested
that criteria expressed as simply a long-term average of annual
geometric means, consistent with data used in criteria derivation,
would still be protective. EPA requests comment on alternative duration
and frequency expressions that might be considered protective,
including (1) a criterion-duration expressed as a monthly average or
geometric mean, (2) a criterion-frequency expressed as meeting
allowable magnitude and duration every year, (3) a criterion-frequency
expressed as meeting allowable magnitude and duration in more than half
of the years of a given assessment period, and (4) a criterion-
frequency expressed as meeting the allowable magnitude and duration as
a long-term average only. EPA further requests comment on whether an
expression of the criteria in terms of an arithmetic average of annual
geometric mean values based on rolling three-year periods of time would
also be protective of the designated use.
(3) Request for Comment and Data on Proposed Approach
EPA believes the proposed numeric nutrient criteria for south
Florida canals in this rule are protective of the designated uses,
consistent with CWA section 303(c)(2)(A) and 40 CFR 131.11(a)(1). EPA
solicits comment on the approaches taken by the Agency in this
proposal, the data underlying those approaches, and the proposed
criteria. EPA is seeking other pertinent scientific data and
information that are readily available related to nutrient
concentrations or nutrient responses in Class III canals in south
Florida.
[[Page 4214]]
EPA is soliciting comment specifically on the selection of criteria
parameters for TN, TP, and chlorophyll a; development of criteria for
Class III canals across south Florida; and the conclusion that the
proposed criteria for Class III canals are protective of designated
uses and adequately account for the spatial and temporal variability of
nutrients.
(4) Alternative Approaches for Comment
EPA is requesting comments and views on the advantages and
disadvantages of alternative approaches to deriving protective criteria
for south Florida canals. These approaches include: (1) A stressor-
response approach (based on data from all canals or canals grouped by
soil type), and (2) methodologies that have been employed to develop
nutrient targets in an EPA-proposed TMDL for dissolved oxygen and
nutrients.\108\
---------------------------------------------------------------------------
\108\ Proposed Total Maximum Daily Load (TMDL) for Dissolved
Oxygen and Nutrient in the Everglades. Prepared by U.S. EPA Region
4. September 2007.
---------------------------------------------------------------------------
As previously described in Section III.E(2)(b), EPA considered the
underlying soil type of south Florida canals as a possible basis for
geographic classification. Analysis of the underlying soil types,
indicated by STATSGO,\109\ led EPA to identify the following four canal
regions: Everglades Agricultural Area (EAA) comprised of histosol and
entisol soils, EvPA comprised of histosol and entisol soils, areas west
of the EvPA and EAA, or West Coast, comprised of spodosol and alfisol
soils, and areas east of the EvPA and EAA, or East Coast, comprised of
spodosol, entisol, and alfisol soils.
---------------------------------------------------------------------------
\109\ State Soil Geographic (STATSGO) database provided by the
U.S. Department of Agriculture, Natural Resources Conservation
Service (NRCS).
---------------------------------------------------------------------------
Subsequent to classification, the proposed statistical
distribution-based approach or the alternatives to the proposed
approach described in the following sections could be used to derive
numeric nutrient criteria by canal region for any or all of the
proposed criteria (i.e., TN, TP, and chlorophyll a) provided that
sufficient data are available.
(a) Stressor-Response Approach
EPA considered two statistical analyses for assessing the stressor-
response relationship between nutrients and biological response. In
contrast to the proposed option, which included only data from sites
with no evidence of nutrient impairment, the stressor-response analyses
included all data regardless of whether sites were associated with
WBIDs that have been determined to be impaired. EPA conducted linear
and quantile regression analyses between chlorophyll a, TP, and TN on a
regional and aggregated regional basis. EPA used the linear regression
model as a statistical tool to predict the chlorophyll a response based
on matched chlorophyll a and TN and TP data. Similarly, quantile
regression was used to analyze the matched nutrient and chlorophyll a
data. In this application, quantile regression was used to predict the
90th percentile of the distribution of chlorophyll a concentration at a
given concentration of TN or TP.
To apply either statistical approach for developing numeric
nutrient criteria for TP or TN, EPA would need to identify the
concentration of chlorophyll a that would be protective of the
designated use for these canal systems. One approach would be to use
EPA's proposed chlorophyll a criterion of 4.0 [mu]g/L for canals to
derive the TN and TP criteria from stressor-response relationships.
(b) Calculation of TP Criteria for the Everglades Agricultural Area
(EAA) Using a Downstream Protection Approach
EPA considered using the methodologies described in the EPA-
proposed TMDL \110\ for dissolved oxygen and nutrients to develop
numeric nutrient criteria, specifically TP, for portions of the EAA.
These methodologies are described in the TMDL in Section 4.2.2.1 of the
TMDL document, ``Approach 1: Estimate STA inflow loads
resulting in WQS in downstream waters'', and Section 4.2.2.2 of the
TMDL document, ``Approach 2: Simple modeling approach.'' The
first approach takes into account the downstream criterion of the EvPA
and the performance of the stormwater treatment areas (STAs). Based on
these considerations, inflowing TP concentrations within the EAA to the
STAs were derived to meet the downstream EvPA TP criterion of 0.010 mg/
L. The second approach used a model that extrapolated natural
background TP concentrations, based on land use changes, for specific
WBIDs within the EAA. These approaches could support the derivation of
numeric nutrient criteria for TP within the EAA region. Approach
1 would result in a TP concentration of 0.10 mg/L, while
Approach 2 would result in a TP concentration of 0.087 mg/L.
---------------------------------------------------------------------------
\110\ Proposed Total Maximum Daily Load (TMDL) for Dissolved
Oxygen and Nutrient in the Everglades. Prepared by U.S. EPA Region
4. September 2007.
---------------------------------------------------------------------------
(5) Request for Comment and Data on Alternative Approaches
The alternatives for Class III south Florida canal criteria in this
proposed rule represent alternative approaches given the availability
of data in the State of Florida to date and are consistent with the
requirements of both the CWA and EPA's implementing regulations. EPA is
soliciting comment on the alternative approaches considered by the
Agency in this proposal, the data underlying those approaches, and the
proposed alternatives themselves, including criteria expressed as an
upper percentile maxima not to be exceeded more than 10% of the time in
one year, similar to those discussed for lakes. For further information
on the upper percentile criteria for canals, refer to EPA's TSD on
Florida's Inland Waters, Chapter 4: Methodology for Deriving U.S. EPA's
Proposed Criteria for Canals. EPA is seeking other pertinent data and
information related to nutrient concentrations or nutrient responses in
Class III canals in south Florida.
F. Comparison Between EPA's and Florida DEP's Proposed Numeric Nutrient
Criteria for Florida's Lakes and Flowing Waters
To date, Florida has invested significant resources in its
statewide nutrient criteria effort, and has made substantial progress
toward developing numeric nutrient criteria. For several years, FDEP
has been actively working with EPA on the development of numeric
nutrient criteria and EPA has worked extensively with FDEP on data
interpretation and technical analyses for developing EPA's recommended
numeric nutrient criteria proposed in this rulemaking.
On January 14, 2009, EPA formally determined that numeric nutrient
criteria were necessary to protect Florida's lakes and flowing waters
and should be developed by January 14, 2010. FDEP, independently from
EPA, initiated its own State rulemaking process to adopt numeric
nutrient water quality criteria protective of Florida's lakes and
flowing waters. According to FDEP, the State initiated its rulemaking
process to facilitate the assessment of designated use attainment for
Florida's waters and to provide a better means to protect its waters
from the adverse effects of nutrient over-enrichment. Florida
established a technical advisory committee, which met over a number of
years, to help develop its proposed numeric nutrient criteria. The
State also held several public workshops to solicit
[[Page 4215]]
comment on the draft WQS. While FDEP was progressing with its State
rulemaking, EPA moved forward to develop Federal numeric nutrient
criteria for Florida's lakes and flowing waters, consistent with EPA's
January 14, 2009 determination and based on the best available science.
Most recently, in July 2009, FDEP solicited public comment on its
proposed numeric nutrient criteria for lakes and flowing waters. In
October 2009, FDEP decided not to bring the draft criteria before the
Florida Environmental Regulation Commission (ERC), as had been
previously scheduled. FDEP did not make any final decisions as to
whether it might be appropriate to ask the ERC to adopt the criteria or
some portions of the criteria at a later date.
As described in Section III., EPA is proposing numeric nutrient
criteria for the following four water body types: Lakes, streams,
springs and clear streams, and canals in south Florida. Given that FDEP
has made its proposed numeric nutrient criteria available to the public
via its Web site (http://www.dep.state.fl.us/water/wqssp/nutrients/index.htm), it is worth providing a comparative overview between the
criteria and approaches that EPA is proposing in this rulemaking and
the criteria and approaches FDEP had initially proposed. Both EPA and
FDEP developed numeric criteria recognizing the hydrologic and spatial
variability of nutrients in Florida's lakes and flowing waters. As FDEP
indicated on its Web site, FDEP's preferred approach is to develop
cause and effect relationships between nutrients and valued ecological
attributes, and to establish nutrient criteria based on those cause and
effect relationships that ensure that the designated uses of Florida's
waters are protected and maintained. As described in EPA's guidance,
EPA also recommends this approach when scientifically defensible data
are available. Where cause and effect relationships could not be
demonstrated, however, both FDEP and EPA relied on a distribution-based
approach to derive numeric nutrient criteria protective of applicable
designated uses.
To set numeric nutrient criteria for lakes, EPA, like FDEP, is
proposing a classification scheme using color and alkalinity based upon
substantial data that show that lake color and alkalinity play an
important role in the degree to which TN and TP concentrations result
in a biological response such as elevated chlorophyll a levels. EPA and
FDEP both found that correlations between nutrients and response
parameters were sufficiently robust to use for criteria development in
Florida's lakes. EPA is proposing the same chlorophyll a criteria for
colored lakes and clear alkaline lakes as FDEP proposed, however, EPA
is proposing a lower chlorophyll a criterion for clear acidic lakes.
EPA, like FDEP, is also proposing an accompanying supplementary
analytical approach that Florida can use to adjust general TN and TP
lake criteria within a certain range where sufficient data on long-term
ambient TN and TP levels are available to demonstrate that protective
chlorophyll a criteria for a specific lake will still be maintained and
attainment of the designated use will be assured.
--------------------------------------------------------------------------------------------------------------------------------------------------------
EPA proposed criteria Florida proposed criteria
Lake class -----------------------------------------------------------------------------------------------
Chl a, [mu]g/L TN, mg/L TP, mg/L Chl a, [mu]g/L TN, mg/L TP, mg/L
--------------------------------------------------------------------------------------------------------------------------------------------------------
Colored Lakes > 40 PCU.................................. 20 1.23-2.25 0.050-0.157 20 1.23-2.25 0.05-0.157
Clear Lakes, Alkaline <= 40 PCU and > 50 mg/L CaCO3..... 20 1.00-1.81 0.030-0.087 20 1.00-1.81 0.03-0.087
Clear Lakes, Acidic <= 40 PCU and <= 50 mg/L CaCO3...... 6 0.500-0.900 0.010-0.030 9 0.85-1.14 0.015-0.043
--------------------------------------------------------------------------------------------------------------------------------------------------------
To set numeric nutrient criteria for streams, FDEP recommended a
statistical distribution approach based on ``benchmark sites''
identified in five nutrient regions (five regions for TP and two
regions for TN), given that FDEP determined cause and effect
relationships to be insufficiently robust for establishing numeric
thresholds. FDEP relied on the use of a narrative criterion to protect
downstream waters. EPA also concluded that a scientifically defensible
cause and effect relationship could not be demonstrated with the
available data and that a distribution-based approach was most
appropriate. However, EPA considered an alternative approach that
evaluated a combination of biological information and data on the
distribution of nutrients in a substantial number of healthy stream
systems to derive scientifically sound TN and TP criteria for streams.
The respective criteria for instream protection of Florida's
streams derived using EPA's recommended approach and FDEP's recommended
approach are comparable.
----------------------------------------------------------------------------------------------------------------
EPA proposed FL proposed
instream instream
criteria Florida nutrient watershed criteria
EPA nutrient watershed regions ------------------ regions -----------------
TN (mg/ TP (mg/ TN (mg/ TP (mg/
L) L) L) L)
----------------------------------------------------------------------------------------------------------------
Panhandle................................... 0.824 0.043 Panhandle..................... 0.820 0.069
Bone Valley................................. 1.798 0.739 Bone Valley................... 1.730 0.415
Peninsula................................... 1.205 0.107 Peninsula..................... ....... 0.116
North Central............................... 1.479 0.359 North Central................. ....... 0.322
....... ....... Northeast..................... ....... 0.101
----------------------------------------------------------------------------------------------------------------
In terms of protecting downstream waters, EPA used best available
science and data related to downstream waters and found that there are
cases where the numeric nutrient criteria EPA is proposing to protect
instream aquatic life may not be stringent enough to ensure protection
of WQS for aquatic life in certain downstream lakes and estuaries.
Accordingly, EPA is proposing an equation to be used to adjust stream
TP criteria to protect downstream lakes, and a different methodology to
adjust TN criteria for streams to ensure protection of WQS for
[[Page 4216]]
downstream estuaries. In cases where a stream first flows into a lake
and then flows out from the lake into another lake or estuary, the
portion of the stream that exits the lakes needs to comply with the
downstream protection values for estuaries, assuming that is the
terminal reach.
EPA is proposing the same nitrate-nitrite causal variable criterion
for springs and clear streams as proposed by FDEP. For canals in south
Florida, EPA is proposing a statistical distribution approach based on
sites meeting designated uses with respect to nutrients (i.e., not
identified as impaired by FDEP) identified in four canal regions. FDEP
did not propose numeric nutrient criteria for canals in its rulemaking.
Please refer to Section IV. Under What Conditions Will Florida Be
Removed From a Final Rule for information on how State-adopted and EPA-
approved WQS could become effective under the CWA 303(c).
G. Applicability of Criteria When Final
EPA's proposed numeric nutrient criteria for Florida's lakes and
flowing waters will be effective for CWA purposes 60 days after
publication of final criteria 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, approved by EPA). EPA requests comment on this proposed
effective date. 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. 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 meet the goals articulated in section 101(a)(2) of the CWA and the
waters for which EPA is proposing criteria. Pursuant to the schedule
set out in EPA's January 2009 determination, Class II waters will be
addressed in rulemaking in January 2011. For water bodies designated as
Class I and Class III predominately fresh waters, any final EPA numeric
nutrient criteria will be applicable CWA water quality criteria for
purposes of implementing CWA programs including permitting under the
NPDES program, as well as monitoring and assessment based on applicable
CWA WQS and establishment of TMDLs.
The proposed criteria in this rule, if and when finalized, would be
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 proposed 40 CFR
131.43(d)(2). For example, Florida regulations at Rule 62-4.244, F.A.C.
authorize mixing zones when deriving effluent limitations for
discharges of pollutants to Florida waters. These regulations would
apply to permit limitations implementing the criteria in this rule.
This proposal includes some additional language on mixing zone
requirements to help guide Florida in developing and applying mixing
zone policies for nutrient criteria. Specifically, EPA provides that
the criteria apply at the appropriate locations within or at the
boundary of the mixing zones; otherwise the criteria apply throughout
the water body including at the point of discharge into the water body.
See proposed 40 CFR 131.43(d)(2)(i). Likewise, EPA includes proposed
regulatory language specifying that Florida use an appropriate design
flow condition, one that matches the proposed criteria duration and
frequency, for use in deriving permit limits and establishing wasteload
and load allocations for a TMDL. See proposed 40 CFR 131.43(d)(2)(ii).
In addition, EPA recognizes that Florida regulations include
provisions for assessing whether waters should be included on the list
of impaired waters pursuant to section 303(d) of the CWA. See Rule 62-
303, F.A.C. The Impaired Waters Rule, or IWR, sets out a methodology to
identify waters that do not meet the State's WQS and, therefore, are
required to be included on CWA section 303(d) lists. The current IWR
does not address how to assess waters based on EPA's proposed numeric
nutrient criteria. The numeric nutrient criteria in any final rule,
nevertheless, will be applicable WQS that must be addressed when the
State assesses waters pursuant to CWA section 303(d).
EPA proposes language in this rulemaking that acknowledges the IWR
procedures and their function, specifying that those procedures apply
where they are consistent with the level of protection provided by the
proposed criteria. See proposed 40 CFR 131.43(d)(2)(iii). Some IWR
provisions, which describe the sufficiency or reliability of
information necessary for the State to make an attainment decision, do
not change the level of protection afforded Florida waters. These are
beyond the scope of WQS under CWA section 303(c). Other provisions of
the IWR may provide some additional detail relevant to assessment, such
as the number of years worth of data assessed for a particular listing
cycle submittal, which should be consistent with the level of
protection provided with the proposed criteria. Should any IWR
provisions apply a different level of protection than the Federal
criteria when making attainment decisions based on proposed criteria,
EPA would expect to take appropriate action to ensure that the States'
CWA section 303(d) list of impaired waters includes all waters not
attaining the Federal criteria.
IV. Under What Conditions Will Federal Standards Be Either Not
Finalized or 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 proposing numeric nutrient criteria for
Florida's lakes and flowing waters, Florida continues to have the
option to adopt and submit to EPA numeric nutrient criteria for the
State's lakes and flowing waters consistent with CWA section 303(c) and
implementing regulations at 40 CFR part 131. Consistent with CWA
section 303(c)(4), if Florida adopts and submits numeric nutrient
criteria and EPA approves such criteria as fully satisfying the CWA
before publication of the final rulemaking, EPA will not proceed with
the final rulemaking for those waters for which EPA approves Florida's
criteria.
Pursuant to 40 CFR 131.21(c), if EPA does finalize this proposed
rule, the EPA promulgated WQS would be applicable WQS for purposes of
the CWA until EPA withdraws the federally-promulgated standard.
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 only if
and when Florida adopts and EPA approves numeric nutrient criteria that
fully meet the requirements of section 303(c) of the CWA and EPA's
implementing regulations at 40 CFR part 131.
If EPA finalizes the proposed restoration standard provision
(discussed in Section VI below), that provision would be adopted into
regulation and would allow Florida to establish interim designated uses
with associated water quality criteria, while maintaining the full CWA
section 101(a)(2) aquatic life and/or recreational
[[Page 4217]]
designated use of the water as the ultimate goal. EPA may proceed to
promulgate numeric nutrient criteria for Florida together with or
separate from EPA's proposed restoration standards provision, depending
on the comments received on that proposal.
V. Alternative Regulatory Approaches and Implementation Mechanisms
A. Designating Uses
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].'' CWA section 303(c)(1). EPA's
regulation at 40 CFR 131.3(f) defines ``designated uses'' as ``those
uses specified in water quality standards for each water body or
segment whether or not they are being attained.'' Under 40 CFR 131.10,
EPA's regulation addressing ``Designation of uses'', 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), 40 CFR 131.2
provides that states ``should, wherever attainable, provide water
quality for the protection and propagation of fish, shellfish, and
wildlife and for recreation in and on the water.'' Where states do not
designate those uses, or remove those uses, they must demonstrate that
such uses are not attainable consistent with 40 CFR 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 and/or the associated
pollutant criteria 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)).
Within the framework described above, states have discretion in
designating uses. EPA's proposed numeric nutrient criteria for lakes
and flowing waters would 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 the Class I or Class III designated use
for any particular water body ultimately affected by this rule, and EPA
finds that removal to be consistent with CWA section 303(c) and the
regulations at 40 CFR part 131, then the federally-promulgated numeric
nutrient criteria would not apply to that water body. Instead, the
nutrient criteria associated with the newly designated use would apply
to that water body. FDEP has recently restarted an effort to refine the
State's current designated use classifications. As this process
continues, EPA expects that the State may find some instances where
this particular discussion may be relevant and useful as the refinement
of uses is investigated further.
Where states can identify multiple waters with similar
characteristics and constraints on attainability, EPA interprets the
Federal WQS regulation to allow states to conduct a ``categorical'' use
attainability analysis (UAA) under 40 CFR 131.10(g) for such waters.
This approach may reduce data collection needs, allowing a single
analysis to represent many sites. To use such an approach, however, the
State would need to have enough information about each particular site
to reliably place each site into a broader category and Florida would
need to specifically identify each site covered by the analysis.
Florida may wish to consider such an approach for certain waters, such
as a network of canals with similar hydrologic and morphological
characteristics, which can be characterized as a group and where the
necessary level of protection may differ substantially from other lakes
or flowing waters within the State.
B. Variances
A variance is a temporary modification to the designated use and
associated water quality criteria that would otherwise apply to the
receiving water. A variance is based on a UAA and identifies the
highest attainable use and associated criteria during the variance
period. Typically, variances are time-limited (e.g., three years), but
renewable. Modifying the designated use for a particular water 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 in a short period of
time. By maintaining the standard rather than changing it, 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 geographical coverage, 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. A variance allows, among
other things, NPDES permits to be written such that reasonable progress
is made toward attaining the underlying standards for affected waters
without violating section 402(a)(l) of the Act, which requires that
NPDES permits must meet the applicable WQS. See also CWA section
301(b)(1)(C).
For purposes of this proposal, EPA is proposing criteria that apply
to use designations that Florida has already established. EPA believes
that the State has sufficient authority to use its adopted and EPA-
approved variance procedures with respect to modification of their
Class I or Class III uses as it pertains to any federally-promulgated
nutrient criteria. For this reason, EPA is not proposing a Federal
variance procedure.
C. Site-Specific Criteria
A site-specific criterion is an alternative value to a statewide,
or otherwise applicable, water quality criterion that meets the
regulatory test of protecting the designated use and having a basis in
sound science, but is tailored to account for site-specific conditions.
Site-specific alternative criteria (SSAC) may be more or less stringent
than the otherwise applicable criteria. In either case, because the
SSAC must protect the same designated use and must be based on sound
science (i.e., meet the requirement of 40 CFR 131.11(a)), there is no
need to modify the designated use or conduct a UAA. SSAC may be
appropriate when additional scientific consideration can bring added
precision or accuracy to express the necessary level or concentration
of a water quality
[[Page 4218]]
parameter that is protective of the designated use.
Florida has adopted procedures for developing and adopting SSAC in
its WQS regulations at Florida Administrative Code (Rule 62-302.800,
F.A.C.). Florida's Type I SSAC procedure is intended to address site-
specific situations where a particular water body cannot meet the
applicable water quality criterion because of natural conditions. See
Rule 62-302.800(1). Florida's Type II SSAC procedure is intended to
address site-specific situations other than natural conditions where it
can be established that an alternative criterion from the broadly
applicable criteria established by the State is protective of a water's
designated uses. See Rule 62-302.800(1), F.A.C. Florida's Type II
procedure is primarily intended to address toxics but there is no
limitation in its use for other parameters, except for certain
parameters identified by FDEP, including nutrients. See Rule 62-
302.800(2). Florida's regulations currently do not allow use of Type II
procedures for nutrient criteria development because the State
currently does not have broadly applicable numeric nutrient criteria
for State waters. Rather, the current narrative criterion for nutrients
is implemented by translating it into numeric loads or concentrations
on a case-by-case basis. EPA's proposed rule would not affect Florida's
Type I or Type II SSAC procedures.
EPA believes that there would be benefit in establishing a specific
procedure in the Federal rule for EPA adoption of SSAC. In this
rulemaking, EPA is proposing a procedure whereby the State could
develop a SSAC and submit the SSAC to EPA with supporting documentation
for EPA's consideration. The State SSAC could be developed under either
the State SSAC procedures or EPA technical processes as set out more
fully below. EPA elected to propose this approach because this
procedure maintains the State in a primary decision-making role
regarding development of SSAC for State waters. The procedure that EPA
is proposing would also allow the State to submit a proposed SSAC to
EPA without having to first go through the State's rulemaking process.
The proposed procedure would provide that EPA could determine that
the SSAC should apply in lieu of the generally applicable criteria
promulgated pursuant to this rule. The proposed procedures provide that
EPA would solicit public comment on its determination. Because EPA's
rule would establish this procedure, implementation of this procedure
would not require withdrawal of federally-promulgated criteria for
affected water bodies in order for the 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.
EPA also considered technical processes necessary to develop
protective numeric nutrient criteria on a site-specific basis. To
complete a thorough and successful analysis to develop numeric nutrient
SSAC, EPA expects the State to conduct, or direct applicants to the
State to conduct, a variety of supporting analyses. For the instream
protection value (IPV) for streams, this analysis would, for example,
consist 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 nutrients, such as periphyton algal
thickness or chlorophyll a levels. The former analysis will help
address concerns that a potential nutrient effect is masked by other
stressors (such as turbidity which can limit light penetration and
primary production response to nutrient response), whereas the latter
analysis will help address concerns that a potential nutrient effect is
lagging in time and has not yet manifested itself. Indicators of
shorter-term response generally would not be expected to exhibit a lag
time.
It will also be important to examine a stream system on a watershed
basis to ensure that a SSAC established for one segment does not result
in adverse effects in nearby segments. For example, a shaded,
relatively swift flowing segment may open up to a shallow, slow moving,
open canopy segment that is more vulnerable to adverse nutrient
impacts. Empirical data analysis of multiple factors affecting the
expression of response to nutrients and mechanistic models of ecosystem
processes can assist in this type of analysis. It will also be
necessary to ensure that a larger load allowed from an upstream segment
as a result of a SSAC does not compromise protection on a downstream
segment that has not been evaluated.
The intent of this discussion is to illustrate a process that is
rigorous and based on sound scientific rationale, without being
inappropriately onerous to complete. Corollary analyses for a lake,
spring or clear stream, or canal situation would need to be pursued for
a SSAC on those systems.
In addition to the procedure that EPA is proposing, Florida always
has the option of submitting State-adopted SSAC as new or revised WQS
to EPA for review and approval under the CWA section 303(c). There is
no bar to a state adopting new or revised WQS for waters covered by a
federally-promulgated WQS. For any State-adopted SSAC that EPA approves
under section 303(c) of the Act, EPA would also have to complete
federal rulemaking to withdraw the Federal WQS for the affected water
body before the State SSAC would be the applicable WQS for the affected
water body for purposes of the Act. As discussed above, Florida WQS
regulations currently do not authorize the State to adopt nutrient SSAC
except where natural conditions are outside the limits of broadly
applicable criteria established by the State (Rule 62-302.800, F.A.C.).
This proposed SSAC process would also not limit EPA's authority to
promulgate SSAC in addition to those developed by the State under the
process described in this rule. The proposed rule recognizes that EPA
always has the authority to promulgate through rulemaking SSAC for
waters that are subject to federally-promulgated water quality
criteria.
D. Compliance Schedules
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.'' 40 CFR 122.2. 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). In addition, EPA regulations
provide that schedules of compliance are to require compliance ``as
soon as possible.''
Florida has adopted a regulation authorizing compliance schedules,
and that regulation is not affected by this proposed rule (Rule 62-
620.620(6), F.A.C.). The regulation provides, in part, for schedules
providing for compliance ``as soon as sound engineering practices
allow, but not later than any applicable statutes or rule deadline.''
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 under its rule for WQBELs based on federally-promulgated
criteria.
[[Page 4219]]
VI. Proposed Restoration Water Quality Standards (WQS) Provision
As described above, many of Florida's waters do not meet the water
quality goals established by the State and envisioned by the CWA
because of excess amounts of nutrients. In some cases, restoring these
waters could take many years to achieve, especially where there is a
large difference between current water quality conditions and the
nutrient criteria levels necessary to protect aquatic life. In such
cases, Florida may conclude that restoration programs will not result
in waters attaining their designated aquatic life use (and associated
numeric nutrient criteria) for a long period of time.
EPA's current regulations provide that a state may remove a
designated use if it meets certain requirements outlined at 40 CFR
131.10. Under this provision, if the State demonstrates that a
designated use is not attainable it may conduct a use attainability
analysis (UAA) to revise the designated use to reflect the highest
attainable aquatic life use, even though that use may not meet the CWA
section 101(a)(2) goal.\111\ Another option that states use to address
situations for an individual discharger is a discharger-specific
variance.\112\ Neither of these approaches may be optimal or
appropriate solutions if a state determines that certain waters cannot
attain aquatic life uses due to excess nutrient in the near term.
---------------------------------------------------------------------------
\111\ Clean Water Act section 101(a)(2) states that it is a
national goal for water quality, wherever attainable, to provide for
the protection and propagation of fish, shellfish, and wildlife and
provide for recreation in and on the water
\112\ A variance is a temporary modification to the designated
use and associated water quality criteria that would otherwise
apply. It is based on a use attainability demonstration and targets
achievement of the highest attainable use and associated criteria
during the variance period.
---------------------------------------------------------------------------
Based on numerous workshops, meetings, conversations and day-to-day
interactions with state environmental managers, EPA understands that
states interested in restoring impaired water may desire the ability to
express, in their WQS, successive time periods with incrementally more
stringent designated uses and criteria that ultimately result in a
designated use and criteria that reflect a CWA section 101(a)(2)
designated use. Such an approach would allow the state and stakeholders
necessary time to take incremental steps to achieve interim WQS as they
move forward to ultimately attain a CWA section 101(a)(2) designated
use. Some states have used variances to provide such time in their WQS.
However, variances are typically time limited (e.g., three years) and
discharger-specific and do not address the challenges of pursuing
reductions from a variety of sources across a watershed. In addition,
Federal regulations are not explicit in requiring that states pursue
feasible (i.e. attainable) progress toward achieving the highest
attainable use when implementing a variance. Variances also often lack
specific milestones and a transparent set of expectations for the
public, dischargers, and stakeholders.
EPA seeks comment on this approach to providing Florida with an
explicit regulatory mechanism for directing state efforts to achieve
incremental progress in a step-wise fashion, applicable to all sources,
as a part of its WQS. The proposed regulatory mechanism described in
this section applies only to WQS for nutrients in Florida waters
subject to this proposed rule.
A ``restoration water quality standard'' under EPA's proposed rule
would be a WQS that Florida could adopt for an impaired water. Under
EPA's proposal, the State would retain the current designated use as
the ultimate designated use (e.g. providing for eventual attainment of
a full CWA section 101(a)(2) designated use and the associated
criteria). However, under the restoration standard approach proposed in
this rule, the State would also adopt interim less stringent designated
uses and criteria that would be the basis for enforceable permit
requirements and other control strategies during the prescribed
timeframes. These interim uses could be no less stringent than an
existing use as defined in 40 CFR 131.3, and would have to meet the
requirements of 40 CFR 131.10(h)(2). The State would need to
demonstrate that the interim uses and criteria, as well as the
timeframe, are based on a UAA evaluation of what is attainable and by
when. These interim designated uses and criteria and the applicable
timeframes would all be incorporated into the State WQS on a site-
specific basis, as would be any other designated use change or adoption
of site-specific criteria.
For example, a restoration WQS for nutrients for an impaired Class
I or Class III colored lake in Florida may take the form of the
following for a lake whose current condition represents severely
impaired aquatic life with chlorophyll a = 40 mg/L, TN = 2.7 mg/L, and
TP = 0.15 mg/L:
----------------------------------------------------------------------------------------------------------------
Time Chl a TN TP Designated Use Description
----------------------------------------------------------------------------------------------------------------
Year 0-5........................................ 35 2.4 0.10 Moderately Impaired Aquatic Life.
Year 6-10....................................... 25 1.45 0.06 Slightly Impaired Aquatic Life.
Year 11......................................... 20 1.2 0.05 Full Aquatic Life Use.
----------------------------------------------------------------------------------------------------------------
Including such revised interim designated uses and criteria within
the regulations could support efforts by Florida to formally establish
enforceable long-term plans for different watersheds or stream reaches
to attain the ultimate designated use and the associated criteria. At
the same time, the State would be able to ensure that its WQS
explicitly reflect the attainable designated uses and water quality
criteria to be met at any given time, consistent with the CWA and
implementing regulations.
Restoration WQS would provide in the Federal regulations the
framework for authorizing the State of Florida to adopt restoration WQS
for nutrients, along with maintaining the availability of other tools
(e.g., variances and compliance schedule provisions), which provide
flexibility regarding permitting individual dischargers. Restoration
WQS would require a full public participation process to assure
transparency as well as the opportunity for different parties to work
together, exchange information and determine what is actually
attainable within a particular time frame. Going through this process
would provide Florida with a transparent set of expectations to push
its waters towards restoration in a realistic yet verifiable manner.
In this notice, EPA proposes restoration WQS as a clear regulatory
pathway for the State of Florida to adjust the Class I and Class III
designated uses (and associated nutrient criteria) of waters impaired
by nutrients that is intended to promote active restoration, maintain
progressive improvement, and ensure accountability. This approach would
provide the State of Florida with the flexibility to adopt revised
designated uses and criteria under a set of specific regulatory
requirements.
[[Page 4220]]
Under this proposal, the interim designated uses and criteria would
be the basis for NPDES permits during the applicable period reflecting
the fact that the restoration WQS introduces the critical element of
time as part of the complete WQS. This is intended to allow imposition
of the maximum feasible point source controls and nonpoint source
nutrient reduction strategies to be phased in within the overall
context of restoration activities within the watershed. By reflecting
how it expects the existing poor quality of its waters to incrementally
improve to achieve longer-term WQS goals, Florida could create the
flexibility to explore more innovative ways to reach the requirements
of the next phase, thus possibly reducing costs or allowing new
approaches to resolve complex technological issues, and maximizing
transparency with the public during each phase. These waters, however,
would still be considered impaired for CWA assessment and listing
purposes because the ultimate designated use and criteria would be part
of the restoration WQS and would not yet be met.
The restoration standards would be Florida WQS revisions that would
go through the process of first being adopted under State law and then
approved by EPA. This proposal would include eight requirements for the
development of a restoration WQS for nutrients:
1. It must be demonstrated that it is infeasible to attain the full
CWA section 101(a)(2) aquatic life designated use during the time
periods established for the restoration phases with a UAA based on one
of the factors at 40 CFR 131.10(g).
2. The highest attainable designated use and numeric criteria that
apply at the termination of the restoration WQS (i.e., the ultimate
long-term designated use and numeric criteria to be achieved) must be
specified and this use is to include, at a minimum, uses that are
consistent with the CWA section 101(a)(2) uses.
3. Interim restoration designated uses and numeric water quality
criteria, with each based on achieving the maximum feasible progress
during the applicable phase as determined in the UAA, must be
established.
4. Specific time periods for each restoration phase must be
established. The length of each phase must be based on the UAA
demonstration of when interim uses can be attained on a case-specific
basis. Interim restoration designated uses and numeric water quality
criteria must reflect the highest attainable use during the time period
of the restoration phase. The sum of these times periods may not exceed
twenty years.
5. The spatial extent to which the restoration WQS will apply
(e.g., how far downstream the restoration WQS would apply) must be
specified. EPA notes the importance of continuing to meet the
requirements for protection of downstream WQS as expressed in section
40 CFR 131.10(b). Adopting restoration WQS upstream of another impaired
water may mean the State should also consider restoration WQS for the
downstream water.
6. The regulatory requirements for public participation and EPA
review and approval whenever revising its WQS must continue to be met.
Specifically, a restoration WQS may not include interim uses less
stringent than a use that is an ``existing use'' as defined in 40 CFR
131.3 or that do not meet the requirements of 40 CFR 131.10(h)(2).
7. The State must include in its restoration WQS that if the water
body does not attain the interim designated use and numeric water
quality criteria at the end of any phase, the restoration WQS will no
longer be in effect and the designated use and criteria that was to
become effective at the end of the final restoration phase will become
immediately effective unless Florida adopts and EPA approves a
different revised designated use and criteria.
8. The State must provide that waters for which a restoration WQS
is adopted will be recognized as impaired for the purposes of listing
impaired waters under section 303(d) of the CWA until the final use is
attained.
Under this proposal, EPA would require Florida to adopt the
ultimate highest attainable designated use and criteria along with
multiple phases reflecting the stepwise improvements in water quality
between the initial effective date and when they expect to meet the
ultimate highest attainable use as a single restoration WQS package. As
with any revision to an aquatic life use, Florida would be required to
demonstrate that the ultimate highest attainable designated use cannot
be attained during the restoration period, based on one of the factors
at 40 CFR 131.10(g)(1)-(6) (i.e., through a UAA). EPA would review the
WQS and all supporting documents before approving the restoration WQS.
At the beginning of the first restoration phase, the State would
identify current conditions and establish the principle that there can
be no further degradation. WQS for the first restoration phase should
reflect the outcomes of all controls that can be implemented within the
first restoration phase. Additionally, EPA expects that the interim
restoration designated use and numeric criteria that are attainable at
the end of the restoration phase apply at the beginning of each phase
as well as throughout the phase. For each phase, the State would adopt
interim designated uses and numeric water quality criteria that reflect
achieving the maximum feasible progress. At the end of the first phase,
EPA would expect the water body to be meeting the first interim
designated use and water quality criteria.
At the beginning of the second phase, the next (more stringent)
interim designated use and water quality criteria would go into effect
as the applicable WQS that the State would use to direct the next set
of control actions. At the conclusion of the second phase, the next
(more stringent) interim designated use and water quality criteria
would become the applicable WQS. This process would repeat with each
subsequent phase. Permit limits written during the restoration phases
would include effluent limits as stringent as necessary to meet the
applicable interim designated uses and numeric water quality criteria.
In constructing each restoration phase (i.e. duration and interim
designated use and numeric water quality criteria), EPA will require
the maximum feasible progress. This means that necessary control
actions that would improve water quality and can be implemented within
the first phase must be reflected in the interim targets for the first
restoration phase. This would include all technology-based requirements
for point sources, and cost-effective and reasonable BMPs for nonpoint
sources. For treatment upgrades to point sources, EPA expects careful
scrutiny of technology that has been successfully implemented in
comparable situations and presumes that this is feasible. EPA further
expects careful scrutiny of all existing and new technology that will
help achieve the ultimate highest attainable use.
EPA recognizes that circumstances may change as controls are
implemented and that new information may indicate that the timeframes
established in the restoration WQS are too lengthy or possibly
unrealistically short. If this is the case, the state has the
discretion under 40 CFR 131.10 to conduct a new UAA and revise the
interim targets in its restoration WQS after a full public process and
EPA approval. However, there is a significant burden on the state to
demonstrate what changed to alter the initial analysis and associated
expectations for what was attainable for that phase. EPA would expect
such a revision only if there was significant new information that
[[Page 4221]]
demonstrated that a different schedule and/or set of interim standards
represents the maximum feasible progress towards the final designated
use and criteria.
If at the end of a phase, the water body is not meeting interim
targets, then the restoration WQS would no longer be applicable. In
such a case, the applicable WQS would be the ultimate highest
attainable use and associated criteria unless the state adopted and
submitted for EPA approval a revised WQS. This would help ensure that
there would be no delay in implementing control measures.
Alternatively, EPA considered an option of allowing the subsequent
restoration phases to become applicable on the schedule adopted in the
restoration WQS and as supported by the original UAA demonstration,
even if the interim use and criteria are not fully achieved on
schedule. This might have the advantage of encouraging the adoption of
ambitious interim goals in the initial restoration standards, and would
allow continued orderly progress towards achievement of the final use
and criterion even where an interim step was not fully attained. EPA
solicits comment on this alternative approach.
To develop restoration WQS for numeric nutrient criteria, EPA would
expect that the state identify waters in need of restoration, produce
an inventory of point and nonpoint sources within the watershed, and
evaluate current ambient conditions and the necessary reductions to
achieve the numeric criteria. The next part of the process would
involve determining the combinations of control strategies and
management practices available, how likely they are to produce results,
and the resources needed to implement them. At this point, the State
would be in a good position to determine how much pollution reduction
is likely to be attainable under what timeframes. The State could use
this information to establish the time periods for each restoration
phase consistent with the maximum feasible and attainable progress
toward meeting the numeric criteria, establish interim restoration
designated uses and water quality criteria, and make the necessary
demonstration that it is infeasible to attain the long-term designated
use during the time periods established and that the interim phases
reflect the highest attainable uses and associated criteria.
For excess nutrient pollution, the contributors to nutrient
pollution could include publicly-owned treatment works (POTWs),
industrial dischargers, urban and agricultural runoff, atmospheric
deposition, and septic systems. Restoration WQS might reflect in an
early phase, for example, all feasible short-term POTW treatment
upgrades and a schedule to select, fund, and implement longer term
nutrient reduction technologies, while aggressively pursuing reductions
in nonpoint source runoff. This might include specific plans and a
schedule to develop and implement innovative alternative approaches,
such as trading programs, where appropriate.
In Florida, many of the steps described above occur in the context
of Basin Management Action Plans (BMAPs). FDEP describes BMAPs as:
* * *the ``blueprint'' for restoring impaired waters by reducing
pollutant loadings to meet the allowable loadings established in a
Total Maximum Daily Load (TMDL). It represents a comprehensive set
of strategies--permit limits on wastewater facilities, urban and
agricultural best management practices, conservation programs,
financial assistance and revenue generating activities, etc.--
designed to implement the pollutant reductions established by the
TMDL. These broad-based plans are developed with local
stakeholders--they rely on local input and local commitment--and
they are adopted by Secretarial Order to be enforceable.
(http://www.dep.state.fl.us/Water/watersheds/bmap.htm) Florida has
adopted BMAPs for the Hillsborough River Basin, Lower St. John's River,
Log Branch, Orange Creek, and Upper Ocklawaha, and has plans for others
to follow. To the extent necessary, FDEP could potentially use aspects
of the BMAP process and plans such as these to help form the basis for
restoration WQS.
In summary, the WQS program is intended to protect and improve
water quality and WQS are meant to guide actions to address the effects
of pollution on the Nation's waters. The reality is that as more
assessments are being done and TMDLs are being contemplated, and as new
criteria are developed and considered, EPA and states face questions
about what pollution control measures will meet the WQS, how long it
might take, and whether it is feasible to attain the WQS established to
meet the goals of the Act. These questions are often difficult to
answer because of lack of data, lack of knowledge, and lack of
experience in attempting restoration of waters. Stakeholders and co-
regulators alike have expressed a desire for ways to pursue progressive
water quality improvement and evaluate those improvements to gain the
data, knowledge, and experience necessary to ultimately determine the
highest attainable use. In response, EPA has been investigating the
best ways to use UAAs and related tools to make progress in identifying
and achieving the most appropriate designated use.
EPA requests comments on the usefulness of the ``restoration WQS''
proposal for Florida. EPA requests comment on how restoration WQS will
operate in conjunction with listing impaired waters, and establishing
NPDES permit limitations, and nonpoint source control strategies, as
well as how these requirements should be reflected in regulatory
language. EPA also requests comment on the proposed 20-year limit on
the schedule to attain the final use and criteria. EPA also requests
comments on how a restoration WQS process would be coordinated with the
TMDL program and whether the transparency and review procedures for the
two approaches, including the conditions under which a State or EPA
would be required to develop a TMDL, are comparable. EPA also requests
comment on any unintended adverse consequences of this approach for any
of its water quality programs. Finally, EPA requests comment on
potential definitions of ``maximum feasible progress.''
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 proposed rule does not establish any requirements directly
applicable to regulated entities or other sources of nutrient
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.
[[Page 4222]]
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 proposed 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.
EPA has prepared an analysis of potential costs associated with
meeting these standards.\113\ EPA's analysis uses the criteria proposed
by FDEP in July 2009 as a baseline against which to estimate the
incremental costs of meeting the standards in this proposal. The
baseline costs of meeting Florida's proposed standards are estimated to
be $102 to $130 million per year. The incremental costs, over and above
these baseline costs, of meeting the standards in this NPRM are
estimated to be $4.7 to $10.1 million per year. This analysis assumes
that most of these costs would fall on non-point sources and the
categories of point sources that would be primarily affected are
municipal wastewater treatment plants and industrial and general
dischargers.\114\ EPA estimates the incremental costs for these two
categories of dischargers, including small entities, at about $1
million per year.
---------------------------------------------------------------------------
\113\ Refer to Docket ID EPA-HQ-OW-2009-0596.
\114\ EPA was not able to estimate costs for municipal
stormwater systems because the need for incremental controls is
uncertain.
---------------------------------------------------------------------------
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 proposed 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 programs. This proposed 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 proposed rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Moreover, WQS, including those proposed here, apply
broadly to dischargers and are not uniquely applicable to small
governments. Thus, this proposed 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 proposed rule would 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 proposed rule would not
alter Florida's considerable discretion in implementing these WQS.
Further, this proposed rule would not
[[Page 4223]]
preclude Florida from adopting WQS that meet the requirements of the
CWA, either before or after promulgation of the final rule, thus
eliminating the need for Federal standards. Thus, Executive Order 13132
does not apply to this proposed 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 nutrient water quality criteria
and the Federal rulemaking process. In the spirit of Executive Order
13132, and consistent with EPA policy to promote communications between
EPA and state and local governments, EPA specifically solicits comment
on this proposed rule from State and local officials.
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 proposed rule. However, this rule
may impact the tribes because the numeric nutrient criteria for Florida
will apply to waters adjacent to the tribal waters.
EPA has contacted the tribes to inform them of the potential future
impact this proposal could have on tribal waters. A meeting with tribal
officials has been requested to discuss the draft proposed rule and
potential impacts on the tribes. EPA specifically solicits additional
comment on this proposed rule from tribal officials.
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 does not believe the environmental health
or safety risks addressed by this action 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 proposed 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 (59 FR 7629 (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 proposed rule does not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it would afford a
greater level of protection to both human health and the environment if
these numeric nutrient criteria are promulgated for Class I and Class
III waters in the State of Florida.
List of Subjects in 40 CFR Part 131
Environmental protection, water quality standards, nutrients,
Florida.
Dated: January 14, 2010.
Lisa P. Jackson,
Administrator.
For the reasons set out in the preamble, EPA proposes to amend 40
CFR part 131 as follows:
PART 131--WATER QUALITY STANDARDS
1. The authority citation for part 131 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
Subpart D--[Amended]
2. Section 131.43 is added as follows:
Sec. 131.43 Florida.
(a) Scope. This section promulgates numeric nutrient criteria for
lakes, streams, springs, canals, estuaries, and coastal waters in the
State of Florida. This section also contains provisions for site-
specific 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,
excluding all secondary and tertiary canals, classified as Class IV
waters, wholly within Florida's agricultural areas.
(2) Clear stream means a free-flowing water whose color is less
than 40 platinum cobalt units (PCU).
(3) Lake means a freshwater water body that is not a stream or
other watercourse with some open contiguous water free from emergent
vegetation.
(4) 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.
(5) Nutrient watershed region means an area of the State,
corresponding to coastal/estuarine drainage basin and differing
geographical conditions
[[Page 4224]]
affecting nutrient levels, as delineated in the Technical Support
Document for EPA's Proposed Rule for Numeric Nutrient Criteria for
Florida's Inland Surface Fresh Waters.
(6) Predominantly fresh waters means surface waters in which the
chloride concentration at the surface is less than 1,500 milligrams per
liter.
(7) Spring means the point where underground water emerges onto the
Earth's surface, including its spring run.
(8) Spring run means a free-flowing water that originates from a
spring or spring group whose primary (>50%) source of water is from a
spring or spring group.
(9) State shall mean the State of Florida, whose transactions with
the U.S. EPA in matters related to this regulation are administered by
the Secretary, or officials delegated such responsibility, of the
Florida Department of Environmental Protection (FDEP), or successor
agencies.
(10) Stream means a free-flowing, predominantly fresh surface water
in a defined channel, and includes rivers, creeks, branches, canals
(outside south Florida), freshwater sloughs, and other similar water
bodies.
(11) 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. The applicable criterion for chlorophyll a,
total nitrogen (TN), and total phosphorus (TP) for lakes within each
respective lake class is shown on the following table:
----------------------------------------------------------------------------------------------------------------
Baseline criteria \b\ Modified criteria (within
Long-term average lake color and Chlorophyll a -------------------------------- these bounds) \c\
alkalinity \f\ ([mu]g/L) -------------------------------
\a\ TP (mg/L) \a\ TN (mg/L) \a\ TP (mg/L) \a\ TN (mg/L) \a\
----------------------------------------------------------------------------------------------------------------
A B C D E F
----------------------------------------------------------------------------------------------------------------
Colored Lakes > 40 PCU.......... 20 0.050 1.23 0.050-0.157 1.23-2.25
Clear Lakes, Alkaline <= 40 PCU 20 0.030 1.00 0.030-0.087 1.00-1.81
\d\ and > 50 mg/L CaCO3 \e\....
Clear Lakes, Acidic <= 40 PCU 6 0.010 0.500 0.010-0.030 0.500-0.900
\d\ and <= 50 mg/L CaCO3 \e\...
----------------------------------------------------------------------------------------------------------------
\a\ Concentration values are based on annual geometric mean not to be surpassed more than once in a three-year
period. In addition, the long-term average of annual geometric mean values shall not surpass the listed
concentration values. (Duration = annual; Frequency = not to be surpassed more than once in a three-year
period or as a long-term average).
\b\ Baseline criteria apply unless data are readily available to calculate and apply lake-specific, modified
criteria as described below in footnote c and the Florida Department of Environmental Protection issues a
determination that a lake-specific modified criterion is the applicable criterion for an individual lake. Any
such determination must be made consistent with the provisions in footnote c below. Such determination must
also be documented in an easily accessible and publicly available location, such as an official State Web
site.
\c\ If chlorophyll a is below the criterion in column B and there are representative data to calculate ambient-
based, lake-specific, modified TP and TN criteria, then FDEP may calculate such criteria within these bounds
from ambient measurements to determine lake-specific, modified criteria pursuant to CWA section 303(c).
Modified TN and TP criteria must be based on at least three years of ambient monitoring data with (a) at least
four measurements per year and (b) at least one measurement between May and September and one measurement
between October and April each year. These same data requirements apply to chlorophyll a when determining
whether the chlorophyll a criterion is met for purposes of developing modified TN and TP criteria. If the
calculated TN and/or TP value is below the lower value, then the lower value is the lake-specific, modified
criterion. If the calculated TN and TP value is above the upper value, then the upper value is the lake-
specific, modified criterion. Modified TP and TN criteria may not exceed criteria applicable to streams to
which a lake discharges. If chlorophyll a is below the criterion in column B and representative data to
calculate modified TN and TP criteria are not available, then the baseline TN and TP criteria apply. Once
established, modified criteria are in place as the applicable WQS for all CWA purposes.
\d\ Platinum Cobalt Units (PCU) assessed as true color free from turbidity. Long-term average color based on a
rolling average of up to seven years using all available lake color data.
\e\ If alkalinity data are unavailable, a specific conductance of 250 micromhos/cm may be substituted.
\f\ 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.
(2) Criteria for streams.
(i) The applicable instream protection value (IPV) criterion for
total nitrogen (TN) and total phosphorus (TP) for streams within each
respective nutrient watershed region is shown in the following table:
------------------------------------------------------------------------
Instream protection value
criteria
Nutrient watershed region -------------------------------
TN (mg/L) \a\ TP (mg/L) \a\
------------------------------------------------------------------------
Panhandle \b\........................... 0.824 0.043
Bone Valley \c\......................... 1.798 0.739
Peninsula \d\........................... 1.205 0.107
North Central \e\....................... 1.479 0.359
------------------------------------------------------------------------
\a\ Concentration values are based on annual geometric mean not to be
surpassed more than once in a three-year period. In addition, the long-
term average of annual geometric mean values shall not surpass the
listed concentration values. (Duration = annual; Frequency = not to be
exceeded more than once in a three-year period or as a long-term
average).
\b\ Panhandle region includes the following watersheds: Perdido Bay
Watershed, Pensacola Bay Watershed, Choctawhatchee Bay Watershed, St.
Andrew Bay Watershed, Apalachicola Bay Watershed, Apalachee Bay
Watershed, and Econfina/Steinhatchee Coastal Drainage Area.
\c\ Bone Valley region includes the following watersheds: Tampa Bay
Watershed, Sarasota Bay Watershed, and Charlotte Harbor Watershed.
\d\ Peninsula region includes the following watersheds: Waccasassa
Coastal Drainage Area, Withlacoochee Coastal Drainage Area, Crystal/
Pithlachascotee Coastal Drainage Area, Indian River Watershed,
Caloosahatchee River Watershed, St. Lucie Watershed, Kissimmee River
Watershed, St. John's River Watershed, Daytona/St. Augustine Coastal
Drainage Area, Nassau Coastal Drainage Area, and St. Mary's River
Watershed.
\e\ North Central region includes the Suwannee River Watershed.
[[Page 4225]]
(ii) Criteria for protection of downstream lakes.
(A) The applicable total phosphorus criterion-magnitude for a
stream that flows into downstream lakes is the more stringent of the
value from the preceding table in paragraph (c)(2)(i) of this section
or a downstream lake protection value derived from the following
equation to protect the downstream lake:
[GRAPHIC] [TIFF OMITTED] TP26JA10.003
where:
[TP]S is the total phosphorus (TP) downstream lake
protection value, mg/L
[TP]L is applicable TP lake criterion, mg/L
cf is the fraction of inflow due to all streamflow, 0 <=
cf <= 1
[tau]w is lake's hydraulic retention time (water volume
divided by annual flow rate)
The term
[GRAPHIC] [TIFF OMITTED] TP26JA10.006
expresses the net phosphorus loss from the water column (e.g., via
settling of sediment-sorbed phosphorus) as a function of the lake's
retention time.
(B) The preset values for cf and [tau]w,
respectively, are 0.5 and 0.2. The State may substitute site-specific
values for these preset values where the State determines that they are
appropriate and documents the site-specific values in an easily
accessible and publicly available location, such as an official State
Web site.
(iii) Criteria for protection of downstream estuarine waters.
(A) The applicable criteria for a stream that flows into downstream
estuary is the more stringent of the values from the preceding table in
paragraph (c)(2)(i) of this section or downstream protection values
derived from the following equation to protect the downstream estuary.
EPA's preset DPVs are listed in the Technical Support Document (TSD)
for Florida's Inland Waters located at www.regulations.gov, Docket ID
No. EPA-HQ-OW-2009-0569, and calculated for each stream reach as the
average reach-specific concentration (Ci) equal to the average reach-
specific annual loading rate (Li) divided by the average
reach-specific flow (Qi) where:
[GRAPHIC] [TIFF OMITTED] TP26JA10.004
and where the terms are defined as follows for a specific or
(ith) stream reach:
Ci maximum flow-averaged nutrient concentration for a specific (the
ith) stream reach consistent with downstream use
protection (i.e., the DPV)
k fraction of all loading to the estuary that comes from the stream
network resolved by SPARROW
Lest protective loading rate for the estuary, from all sources
Qw combined average freshwater discharged into the estuary from the
portion of the watershed resolved by the SPARROW stream network
Fi fraction of the flux at the downstream node of the specific
(ith) reach that is transported through the stream
network and ultimately delivered to estuarine eceiving waters (i.e.
Fraction Delivered).
DPVs may not exceed other criteria established for designated use
protection in this section, nor result in an exceedance of other
criteria for other water quality parameters established pursuant to
Rule 62-302, F.A.C.
(B) The State may calculate alternative DPVs as above for Ci except
that Li is determined as a series of values for each reach in the
upstream drainage area such that the sum of reach-specific incremental
loading rates equals the target loading rate to the downstream water
protective of downstream uses, taking into account that downstream
reaches must reflect loads established for upstream reaches.
Alternative DPVs may factor in additional nutrient attenuation provided
by already existing landscape modifications or treatment systems, such
as constructed wetlands or stormwater treatment areas. For alternative
DPVs to become effective for Clean Water Act purposes, the State must
provide public notice and opportunity for comment.
(C) To use an alternative technical approach of comparable
scientific rigor to quantitatively determine the protective load to the
estuary and associated protective stream concentrations, the State must
go through the process for a Federal site-specific alternative
criterion pursuant to paragraph (e) of this section.
(3) Criteria for springs, spring runs, and clear streams. The
applicable nitrate-nitrite criterion is 0.35 mg/L as an annual
geometric mean not to be surpassed more than once in a three year
period, nor surpassed as a long-term average of annual geometric mean
values. In addition to this nitrate-nitrite criterion, criteria
identified in paragraph (c)(2) of this section are applicable to clear
streams.
(4) Criteria for south Florida canals. The applicable criterion for
chlorophyll a, total nitrogen (TN), and total phosphorus (TP) for
canals within each respective canal geographic classification area is
shown on the following table:
----------------------------------------------------------------------------------------------------------------
Total
Chlorophyll a phosphorus Total nitrogen
([mu]g/L) \a\ (TP) (mg/L) (TN) (mg/L)
\a\ \b\ \a\
----------------------------------------------------------------------------------------------------------------
Canals.......................................................... 4.0 0.042 1.6
----------------------------------------------------------------------------------------------------------------
\a\ Concentration values are based on annual geometric mean not to be surpassed more than once in a three-year
period. In addition, the long-term average of annual geometric mean values shall not surpass the listed
concentration values. (Duration = annual; Frequency = not to be surpassed more than once in a three-year
period or as a long-term average).
\b\ Applies to all canals within the Florida Department of Environmental Protection's South Florida bioregion,
with the exception of canals within the Everglades Protection Area (EvPA) where the TP criterion of 0.010 mg/L
currently applies.
(5) Criteria for estuaries. [Reserved]
(6) Criteria for coastal waters. [Reserved]
(d) Applicability.
(1) The criteria in paragraphs (c)(1) through (4) of this section
apply to surface waters of the State of Florida designated 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 apply concurrently with other applicable water quality
criteria, except when:
(i) State regulations contain criteria which 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;
(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; or
[[Page 4226]]
(iv) The State adopts and EPA approves restoration standards
pursuant to paragraph (g) of this section.
(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.
(i) For all waters with mixing zone regulations or implementation
procedures, the criteria apply at the appropriate locations within or
at the boundary of the mixing zones; otherwise the criteria apply
throughout the water body including at the point of discharge into the
water body.
(ii) The State shall use an appropriate design flow condition,
where necessary, for purposes of permit limit derivation or load and
wasteload allocations that is consistent with the criteria duration and
frequency established in this section (e.g., average annual flow for a
criterion magnitude expressed as an average annual geometric mean
value).
(iii) The criteria established in this section apply for purposes
of determining the list of impaired waters pursuant to section 303(d)
of the Clean Water Act, subject to the procedures adopted pursuant to
Rule 62-303, F.A.C., where such procedures are consistent with the
level of protection provided by the criteria established in this
section.
(e) Site-specific alternative criteria.
(1) Upon request from the State, 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, the State must
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.
(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. All criteria will be in effect [date 60 days
after publication of final rule].
(g) Restoration Water Quality Standards (WQS). The State may, at
its discretion, adopt restoration WQS to allow attainment of a
designated use over phased time periods where the designated use is not
currently attainable as a result of nutrient pollution but is
attainable in the future. In establishing restoration WQS, the State
must:
(1) Demonstrate that the designated use is not attainable during
the time periods established for the restoration phases based on one of
the factors identified in Sec. 131.10(g)(1) through (6);
(2) Specify the designated use to be attained at the termination of
the restoration period, as well as the criteria necessary to protect
such use, provided that the final designated use and corresponding
criteria shall include, at a minimum, uses and criteria that are
consistent with CWA section 101(a)(2) ;
(3) Establish interim restoration designated uses and water quality
criteria, that apply during each phase that will result in maximum
feasible progress toward the highest attainable designated use and the
use identified in paragraph (g)(2) of this section. Such interim uses
and criteria may not provide for further degradation of a water body
and may be revised prior to the end of each phase in accordance with
Sec. Sec. 131.10 and 131.20 and submitted to EPA for approval;
(4) Establish the time periods for each restoration phase that will
result in maximum feasible progress toward the highest attainable use
and the designated use identified in paragraph (g)(2) of this section,
except that the sum of such time periods shall not exceed twenty years
from the initial date of establishment of the restoration WQS under
this section;
(5) Specify the spatial extent of applicability for all affected
waters;
(6) Meet the requirements of Sec. Sec. 131.10 and 131.20; and
(7) Include, in its State water quality standards, a specific
provision that if the interim restoration designated uses and criteria
established under paragraph (g)(3) of this section are not met during
any phased time period established under paragraph (g)(4) of this
section, the restoration WQS will no longer be applicable and the
designated use and criteria identified in paragraph (g)(2) of this
section will become applicable immediately.
(8) Provide that waters for which a restoration water quality
standard is adopted will be recognized as impaired for the purposes of
listing impaired waters under section 303(d) of the CWA until the use
designated identified in paragraph (g)(2) of this section is attained.
[FR Doc. 2010-1220 Filed 1-25-10; 8:45 am]
BILLING CODE 6560-50-P