Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74985 

(vi) The State and EPA shall maintain 

a record of DPVs they derive based on 

the methods described in paragraphs 

(c)(6)(ii), (iii), (iv), and (v) of this 

section, as well as a record supporting 

their derivation, and make such records 

available to the public. The State and 

EPA shall notify one another and 

provide a supporting record within 30 

days of derivation of DPVs pursuant to 

paragraphs (c)(6)(i), (ii), (iii), (iv), or (v) 

of this section. DPVs derived pursuant 

to these paragraphs do not require EPA 

approval under Clean Water Act § 303(c) 

to take effect. 

(d) Applicability. (1) The criteria in 

paragraphs (c)(1) through (6) of this 

section apply to certain Class I, Class II, 

and Class III waters in Florida, and 

apply concurrently with other 

applicable water quality criteria, except 

when: 

(i) State water quality standards 

contain criteria that are more stringent 

for a particular parameter and use; 

(ii) The Regional Administrator 

determines that site-specific alternative 

criteria apply pursuant to the 

procedures in paragraph (e) of this 

section; or 

(iii) The State adopts and EPA 

approves a water quality standards 

variance to the Class I, Class II, or Class 

III designated use pursuant to § 131.13 

that meets the applicable provisions of 

State law and the applicable Federal 

regulations at § 131.10. 

(2) The criteria established in this 

section are subject to the State’s general 

rules of applicability in the same way 

and to the same extent as are the other 

Federally-adopted and State-adopted 

numeric criteria when applied to the 

same use classifications. 

(e) Site-specific Alternative Criteria. 

(1) The Regional Administrator may 

determine that site-specific alternative 

criteria shall apply to specific surface 

waters in lieu of the criteria established 

in paragraph (c) of this section. Any 

such determination shall be made 

consistent with § 131.11. 

(2) To receive consideration from the 

Regional Administrator for a 

determination of site-specific alternative 

criteria, an entity shall submit a request 

that includes proposed alternative 

numeric criteria and supporting 

rationale suitable to meet the needs for 

a technical support document pursuant 

to paragraph (e)(3) of this section. The 

entity shall provide the State a copy of 

all materials submitted to EPA, at the 

time of submittal to EPA, to facilitate 

the State providing comments to EPA. 

Site-specific alternative criteria may be 

based on one or more of the following 

approaches. 

(i) Replicate the process for 

developing the estuary criteria in 

paragraph (c)(1) of this section. 

(ii) Replicate the process for 

developing the tidal creek criteria in 

paragraph (c)(2) of this section. 

(iii) Replicate the process for 

developing the marine lake criteria in 

paragraph (c)(3) of this section. 

(iv) Replicate the process for 

developing the coastal criteria in 

paragraph (c)(4) of this section. 

(v) Replicate the process for 

developing the south Florida inland 

flowing water criteria in paragraph (c)(5) 

of this section. 

(vi) Conduct a biological, chemical, 

and physical assessment of water body 

conditions. 

(vii) Use another scientifically 

defensible approach protective of the 

designated use. 

(3) For any determination made under 

paragraph (e)(1) of this section, the 

Regional Administrator shall, prior to 

making such a determination, provide 

for public notice and comment on a 

proposed determination. For any such 

proposed determination, the Regional 

Administrator shall prepare and make 

available to the public a technical 

support document addressing the 

specific surface waters affected and the 

justification for each proposed 

determination. This document shall be 

made available to the public no later 

than the date of public notice issuance. 

(4) The Regional Administrator shall 

maintain and make available to the 

public an updated list of determinations 

made pursuant to paragraph (e)(1) of 

this section as well as the technical 

support documents for each 

determination. 

(5) Nothing in this paragraph (e) shall 

limit the Administrator’s authority to 

modify the criteria in paragraph (c) of 

this section through rulemaking. 

(f) Effective date. This section is 

effective [date 60 days after publication 

of final rule]. 

[FR Doc. 2012–30117 Filed 12–17–12; 8:45 am] 

BILLING CODE P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[EPA–HQ–OW–2009–0596; FRL#9678–6] 

RIN 2040–AF39 

Water Quality Standards for the State 

of Florida’s Streams and Downstream 

Protection Values for Lakes: 

Remanded Provisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA or Agency) is proposing a 

rule that addresses an order by the U.S. 

District Court for the Northern District 

of Florida from February 18, 2012, 

which remanded to EPA two portions of 

its numeric water quality standards for 

nutrients in Florida that were 

promulgated and published on 

December 6, 2010. For this proposal, 

EPA is re-proposing the same numeric 

nutrient criteria for total nitrogen (TN) 

and total phosphorus (TP) for Florida 

streams not covered by EPA-approved 

State rulemaking, as included in EPA’s 

final rule, with further explanation of 

how the proposed numeric streams 

criteria will ensure the protection of the 

Florida’s Class I and III designated uses. 

EPA is also proposing default 

approaches available for use when 

modeling cannot be performed to derive 

downstream protection values (DPVs) 

that will ensure the attainment and 

maintenance of the numeric nutrient 

criteria that protect Florida’s lakes. The 

default approaches would be applicable 

to streams that flow into unimpaired 

lakes, but could also be used for streams 

that flow into impaired lakes. 

DATES: EPA will accept public 

comments on this proposed rule until 

February 1, 2013. Because of EPA’s 

obligation to sign a notice of final 

rulemaking on or before August 31, 

2013 under Consent Decree, the Agency 

regrets that it will be unable to grant any 

requests to extend this deadline. 

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 

on-line instructions for submitting 

comments. 

2. Email: ow-docket@epa.gov. 

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 


tkelley on DSK3SPTVN1PROD with 
74986 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

1Florida Fish and Wildlife Conservation 

Commission. 2010. The economic impact of 

freshwater fishing in Florida. http:// 

www.myfwc.com/CONSERVATION/Conservation

_ValueofConservation_EconFreshwaterImpact.htm. 

Accessed August 2010. 

2FDEP. 2012. Integrated Water Quality 

Assessment for Florida: 2012 305(b) Report and 

303(d) List Update. (May 2012). Florida Department 

of Environmental Protection, Division of 

Environmental Assessment and Restoration, 

Tallahassee, FL. http://www.dep.state.fl.us/water/

docs/2012_integrated_report.pdf. Accessed August 

2012. 

3Class I is designated for potable water supplies. 

Class III is designated for recreation, propagation 

and maintenance of a healthy, well-balanced 

population of fish and wildlife. F.A.C. Section 62– 

302.400. 

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 email. 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 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 

a.m. 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. 

FOR FURTHER INFORMATION CONTACT: For 

information concerning this rulemaking, 

contact Mario Sengco, U.S. EPA 

Headquarters, Office of Water, 

Mailcode: 4305T, 1200 Pennsylvania 

Avenue NW., Washington, DC 20460; 

telephone numbers: 202–566–2676 or 

202–564–1649; fax number: 202–566– 

9981; email address: 

sengco.mario@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

supplementary information section is 

organized as follows: 

Table of Contents 

I. General Information 

A. Executive Summary 

B. Which water bodies are affected by this 

rule? 

C. What entities may be affected by this 

rule? 

D. How can I get copies of this document 

and other related information? 

II. Background 

A. Nitrogen and Phosphorus Pollution in 

the United States and the State of Florida 

B. Statutory and Regulatory Background 

C. Water Quality Criteria 

D. EPA Determination Regarding Florida 

and EPA’s Rulemaking 

E. EPA Promulgation of the Final Rule and 

Subsequent Litigation 

F. Florida Adoption of Numeric Nutrient 

Criteria and EPA Approval 

III. Numeric Criteria for Flowing Waters and 

Downstream Protection of Lakes in the 

State of Florida 

A. Introduction 

B. EPA Derivation of Numeric Nutrient 

Criteria for Streams 

C. Reference Condition Approach for 

Developing Numeric Nutrient Criteria for 

Streams 

D. Proposed Numeric Criteria for the State 

of Florida’s Streams 

E. Proposed Numeric Criteria To Ensure 

the Downstream Protection of the State 

of Florida’s Lakes 

F. Applicability of Criteria When Final 

IV. Under what conditions will Federal 

standards be either not finalized or 

withdrawn? 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory 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 

Florida is known for its abundant and 

aesthetically beautiful natural resources, 

in particular its water resources. 

Florida’s water resources are very 

important to its economy, for example, 

its $6.5 billion freshwater fishing 

industry.1 However, nitrogen and 

phosphorus pollution has contributed to 

severe water quality degradation in the 

State of Florida. In the most recent 

Florida Department of Environmental 

Protection (FDEP) water quality 

assessment report, the Integrated Water 

Quality Assessment for Florida: 2012 

305(b) Report and 303(d) List Update,2

FDEP describes widespread water 

quality impairment in Florida due to 

nitrogen and phosphorus pollution. 

FDEP’s 2012 report identifies 

approximately 1,918 miles of rivers and 

streams (about 14 percent of assessed 

river and stream miles), 378,435 acres of 

lakes (about 31 percent of assessed lake 

acres), 754 square miles (482,560 acres) 

of estuaries (about 14 percent of 

assessed estuarine area) and 102 square 

miles (65,280 acres) of coastal waters 

(about 1.6 percent of assessed coastal 

waters) as impaired by nutrients. 

Despite FDEP’s intensive efforts to 

diagnose, evaluate and address nitrogen 

and phosphorus pollution, substantial 

and widespread water quality 

degradation from nitrogen and 

phosphorus pollution has continued 

and remains a significant problem. 

On January 14, 2009, EPA determined 

under Clean Water Act (CWA) section 

303(c)(4)(B) that new or revised water 

quality standards (WQS) in the form of 

numeric water quality criteria are 

necessary to protect the designated uses 

from nitrogen and phosphorus pollution 

that Florida has set for its Class I and 

Class III waters.3 The Agency 

considered (1) the State’s documented 

unique and threatened ecosystems, (2) 

the large number of impaired waters due 

to existing nitrogen and phosphorus 

pollution, and (3) the challenge 

associated with growing nitrogen and 

phosphorus pollution associated with 

expanding urbanization, continued 

agricultural development, and a 

significantly increasing population that 

the U.S. Census estimates is expected to 

grow over 75% between 2000 and 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74987 

4U.S. Census Bureau, Population Division, 

Interim State Population Projections, 2005. http:// 

www.census.gov/population/projections/Summary

TabA1.pdf. 

5Federal Register, Vol. 75, No. 233, 75762, 

December 6, 2010. Water Quality Standards for the 

State of Florida’s Lakes and Flowing Waters. 

6 Florida Wildlife Federation, Inc., et. al. v. 

Jackson, Case 4:08–cv–00324–RH–WCS, Doc. 351 

(N.D.Fla. February 18, 2012). 

2030.4 EPA also reviewed the State’s 

regulatory accountability system, which 

represents a synthesis of both 

technology-based standards and point 

source control authority, as well as 

authority to establish enforceable 

controls for nonpoint source activities. 

In December 2009, EPA entered into 

a Consent Decree with Florida Wildlife 

Federation, Sierra Club, Conservancy of 

Southwest Florida, Environmental 

Confederation of Southwest Florida, and 

St. Johns Riverkeeper, which 

established a schedule for EPA to 

propose and promulgate numeric 

nutrient criteria for Florida’s lakes, 

springs, flowing waters, estuaries, and 

coastal waters, as well as downstream 

protection values (DPVs) to protect 

downstream lakes and estuaries. The 

Consent Decree provided that if Florida 

submitted and EPA approved numeric 

nutrient criteria for the relevant water 

bodies before the dates outlined in the 

schedule, EPA would no longer be 

obligated to propose or promulgate 

criteria for those water bodies. 

On December 6, 2010 (75 FR 75762), 

EPA’s final rule 5 was published in the 

Federal Register and codified at 40 CFR 

131.43. The final rule established 

numeric nutrient criteria, or numeric 

limits on the amount of nitrogen and 

phosphorus allowed in Florida’s waters 

(i.e., lakes, streams and springs) while 

still protecting applicable designated 

uses. 

Following the rule’s publication, EPA 

soon received 12 challenges from a 

range of plaintiffs that included 

environmental groups, the State 

Department of Agriculture, the South 

Florida Water Management District and 

several industry/discharger groups. The 

challenges alleged that EPA’s 

determination and final rule were 

arbitrary, capricious, an abuse of 

discretion, and not in accordance with 

the law. The U.S. District Court for the 

Northern District of Florida 

consolidated the suits and held oral 

argument on January 9, 2012. 

On February 18, 2012, the court 

issued its ruling.6 While upholding 

EPA’s determination and much of its 

rule, the court invalidated EPA’s 

numeric nutrient criteria for Florida’s 

streams because it found that EPA had 

either ‘‘aimed for the wrong target’’ or 

not sufficiently explained what it did in 

aiming for the right target. The court 

observed that Florida’s existing 

narrative criterion states, in relevant 

part, that ‘‘nutrient concentrations of a 

body of water [must not] be altered so 

as to cause an imbalance in natural 

populations of aquatic flora or fauna.’’ 

Fla. Admin. Code r. 62–302.530(47)(b). 

Based on that narrative criterion, as 

implemented by FDEP, the court found 

that the correct target would be to avoid 

any harmful increase in nutrient levels, 

as opposed to any increase in nutrient 

levels. The court found that EPA had 

apparently derived stream numeric 

nutrient criteria to prevent any increase 

in nutrient levels, and had thus aimed 

at the wrong target. If EPA had derived 

stream numeric nutrient criteria to 

prevent any harmful increase, the court 

found that EPA had not provided a 

sufficient explanation for its action. For 

similar reasons, the court also 

invalidated EPA’s default DPV for 

streams where the downstream lake is 

attaining its lake numeric nutrient 

criteria. Hence, the court ordered EPA to 

either ‘‘sign for publication a proposed 

rule, or sign for publication a final rule, 

that sets numeric nutrient criteria for 

Florida streams’’ by May 21, 2012. As to 

the DPV where a lake is attaining its 

lake numeric criteria, the same order 

applies unless EPA files a notice by May 

21, 2012 that it has decided not to 

propose or adopt such DPV, with an 

explanation of that decision. 

On May 30, 2012, the court granted 

EPA’s request to extend the deadline for 

signing a proposed rule to November 30, 

2012. The court also ordered that the 

final rule must be signed for publication 

by August 31, 2013. 

For this proposal, EPA is re-proposing 

the same numeric nutrient criteria for 

TN and TP published in EPA’s final rule 

on December 6, 2010 (75 FR 75762), 

with further explanation on how the 

proposed streams criteria will ensure 

the protection of Florida’s Class I and III 

designated uses and how the criteria are 

an appropriate translation of Florida’s 

narrative nutrient criterion. This 

proposal also is consistent with the 

objective and requirements of the CWA 

and EPA’s implementing regulations at 

40 CFR part 131. EPA is also proposing 

default approaches available for use 

when modeling cannot be performed to 

derive DPVs that will ensure the 

attainment and maintenance of the 

numeric nutrient criteria that protect the 

designated uses of Florida’s downstream 

lakes. These default approaches are 

applicable to streams that flow 

downstream into unimpaired lakes, but 

could also be used for streams that flow 

downstream into impaired lakes. 

On June 13, 2012, FDEP submitted 

new and revised water quality standards 

for review by the EPA pursuant to 

section 303(c) of the CWA. These new 

and revised water quality standards are 

set out primarily in Rule 62–302 of the 

Florida Administrative Code (F.A.C.) 

[Surface Water Quality Standards]. 

FDEP also submitted amendments to 

Rule 62–303, F.A.C. [Identification of 

Impaired Surface Waters], which sets 

out Florida’s methodology for assessing 

whether waters are attaining State water 

quality standards. On November 30, 

2012, EPA approved the provisions of 

these rules submitted for review that 

constitute new or revised water quality 

standards (hereafter referred to as the 

‘‘newly-approved state water quality 

standards’’). 

Among the newly-approved state 

water quality standards are numeric 

criteria for nutrients that apply to a set 

of streams, as that term is specifically 

defined in the newly-approved state 

water quality standards. Under the 

Consent Decree, EPA is relieved of its 

obligation to propose numeric criteria 

for nutrients for any waters for which 

FDEP submits and EPA approves new or 

revised water quality standards before 

EPA proposes. Thus, under normal 

circumstances, EPA would be clearly 

relieved of its obligation to propose 

numeric criteria for nutrients in streams 

Florida covered in its newly-approved 

state water quality standards. 

However, another provision included 

in Florida’s Rule, specifically subsection 

62–302.531(9), F.A.C., casts some doubt 

as to whether the newly approved state 

water quality standards will go into 

effect if EPA proposes and promulgates 

numeric nutrient criteria for streams not 

covered by the newly-approved State 

water quality standards. Therefore, it is 

unclear whether an EPA proposal to 

‘‘gap fill’’, or establish numeric criteria 

for nutrients for Florida streams that 

FDEP does not cover in its Rule, would 

trigger 62–302.531(9), F.A.C. and result 

in Florida’s streams criteria not taking 

effect. 

In addition, due to a recent 

administrative challenge filed in the 

State of Florida Department of 

Administrative Hearings, there is 

uncertainty as to whether FDEP will be 

able to implement its newly approved 

state water quality standards consistent 

with FDEP’s ‘‘Implementation of 

Florida’s Numeric Nutrient Standards’’ 

(Implementation Document). Thus, EPA 

approved portions of Florida’s new or 

revised water quality standards subject 

to the State being able to implement 

them as provided in its Implementation 

Document. If, as a result of legal 

challenge, FDEP is unable to implement 


tkelley on DSK3SPTVN1PROD with 
74988 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

7For purposes of this rule, EPA has distinguished 

South Florida as those areas south of Lake 

Okeechobee and the Caloosahatchee River 

watershed to the west of Lake Okeechobee and the 

St. Lucie watershed to the east of Lake Okeechobee, 

hereinafter referred to as the South Florida Region. 

8Class I waters also include an applicable nitrate 

limit of 10 mg/L and nitrite limit of 1 mg/L for the 

protection of human health in drinking water 

supplies. The nitrate limit applies at the entry point 

to the distribution system (i.e., after any treatment); 

see Chapter 62–550, F.A.C., for additional details. 

its Rule as provided in its 

Implementation Document, EPA would 

intend to revisit its November 30, 2012 

approval of Florida’s new or revised 

water quality standards. EPA has 

therefore reserved its authority to 

withdraw or modify that approval. 

In light of the above, EPA seeks 

comment on finalizing a rule that 

applies EPA’s streams criteria to streams 

meeting EPA’s definition of ‘‘stream’’ 

that are not covered under Florida’s 

numeric interpretation of narrative 

nutrient criteria at 62–302.531(2)(c), 

F.A.C. This would serve to fill gaps in 

coverage if Florida’s streams criteria are 

in effect, or apply to all streams if 

Florida’s streams criteria are not in 

effect for any reason, including those 

mentioned above. 

Finally, as described in EPA’s 

November 30, 2012 approval of 

Florida’s new or revised water quality 

standards, while EPA believes that the 

provisions addressing downstream 

protection will provide for quantitative 

approaches to ensure the attainment and 

maintenance of downstream waters 

consistent with 40 CFR 131.10(b), the 

provisions themselves, however, do not 

consist of numeric values. Because EPA 

is currently subject to a Consent Decree 

deadline to sign a rule proposing 

numeric downstream protection values 

(DPVs) for Florida by November 30, 

2012, EPA is proposing numeric DPVs 

to comply with the Consent Decree. 

However, EPA has amended its January 

2009 determination to specify that 

numeric criteria for downstream 

protection are not necessary and that 

quantitative approaches designed to 

ensure the attainment and maintenance 

of downstream water quality standards, 

such as those established by Florida, are 

sufficient to meet CWA requirements. 

As such, EPA will ask the court to 

modify the Consent Decree consistent 

with the Agency’s amended 

determination, i.e., to not require EPA to 

promulgate numeric DPVs for Florida. 

Accordingly, EPA approved the State’s 

downstream protection provisions 

subject to the district court modifying 

the Consent Decree to not require EPA 

to promulgate numeric DPVs for 

Florida. If the district court agrees to so 

modify the Consent Decree, EPA will 

not promulgate numeric DPVs for 

Florida. However, if the district court 

declines to so modify the Consent 

Decree, EPA would intend to 

promulgate numeric DPVs for Florida 

and would also expect to revisit its 

November 30, 2012 approval of the State 

Rule’s downstream protection 

provisions to modify or withdraw its 

approval. Therefore, EPA has also 

reserved its authority to do so in its 

approval document. 

A full description of all of EPA’s 

recent actions on Florida numeric 

nutrient criteria and related 

implications for EPA’s own rules can be 

found at http://water.epa.gov/lawsregs/ 

rulesregs/florida_index.cfm. 

B. Which water bodies are affected by 

this rule? 

The criteria in this proposed 

rulemaking apply to a group of inland 

waters of the United States within 

Florida. Specifically, these criteria 

apply to flowing waters (i.e., streams) 

located outside of the South Florida 

Region that are designated as either 

Class I or Class III not covered by the 

State of Florida’s Rule.7 EPA notes if 

Florida’s Rule will not take effect due to 

subsection 62–302.531(9), F.A.C., EPA 

would expect to finalize the criteria in 

this proposed rulemaking for all flowing 

waters (i.e., streams) located outside of 

the South Florida Region that are 

designated as either Class I or Class III. 

EPA solicits comment on this potential 

outcome. 

Class I and Class III streams share 

water quality criteria established to 

‘‘protect recreation and the propagation 

and maintenance of a healthy, wellbalanced population of fish and 

wildlife’’ pursuant to Subsection 62– 

302.400(4), F.A.C.8 ‘‘Stream’’, as defined 

at 40 CFR 131.43(b)(12) means a freeflowing, predominantly fresh surface 

water in a defined channel, and 

includes rivers, creeks, branches, canals, 

freshwater sloughs, and other similar 

water bodies. EPA notes that as defined 

at 40 CFR 131.43(b)(8) and consistent 

with Section 62–302.200, F.A.C., 

‘‘predominantly fresh waters’’ means 

surface waters in which the chloride 

concentration at the surface is less than 

1,500 milligrams per liter (mg/L). 

The definition of stream in the 

approved water quality standards for 

purposes of applying the numeric 

interpretation of the narrative nutrient 

criterion to streams is less inclusive 

than as defined at 40 CFR 131.43(b)(12). 

Florida’s stream definition for purposes 

of applying the numeric interpretation 

of the narrative nutrient criterion (see 

Subsection 62–302.200(36), F.A.C.) 

specifically excludes non-perennial 

water segments; tidally influenced 

segments; and ditches, canals and other 

conveyances that are man-made or 

predominantly channelized or 

physically altered, are used primarily 

for water management purposes, and 

have marginal or poor stream habitat 

components. Inland flowing waters that 

meet EPA’s definition of stream yet do 

not meet Florida’s definition of stream 

for purposes of applying the numeric 

interpretation of the narrative nutrient 

criterion are designated Class I or Class 

III waters in Florida water quality 

standards. If they are not Class I or Class 

III waters, then this proposed rule 

would not apply. Additionally, this rule 

does not apply to wetlands, including 

non-perennial stream segments that 

function as wetlands because of 

fluctuating hydrologic conditions that 

typically result in the dominance of 

wetland taxa. 

C. What entities may be affected by this 

rule? 

Citizens concerned with water quality 

in Florida may be interested in this 

rulemaking. Entities discharging 

nitrogen or phosphorus to flowing 

waters of Florida could be indirectly 

affected by this rulemaking because 

WQS are used in determining National 

Pollutant Discharge Elimination System 

(NPDES) permit limits. Categories and 

entities that may ultimately be affected 

include: 

Category Examples of potentially affected entities 

Industry ................................................................ Industries discharging nitrogen and phosphorus to flowing waters in the State of Florida. 

Municipalities ....................................................... Publicly-owned treatment works discharging nitrogen and phosphorus to flowing waters in the 

State of Florida. 

Stormwater Management Districts ...................... Entities responsible for managing stormwater runoff in Florida. 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74989 

9To be used by living organisms, nitrogen gas 

must be fixed into its reactive forms; for plants, 

either nitrate or ammonia (Boyd, C.E. 1979. Water 

Quality in Warmwater Fish Ponds. Auburn 

University: Alabama Agricultural Experiment 

Station, Auburn, AL). Eutrophication is defined as 

the natural or artificial addition of nitrogen and 

phosphorus to bodies of water and to the effects of 

added nitrogen and phosphorus (National Academy 

of Sciences (U.S). 1969. Eutrophication: Causes, 

Consequences, Correctives. National Academy of 

Sciences, Washington, DC.) 

10National Academy of Sciences (U.S). 1969. 

Eutrophication: Causes, Consequences, Correctives. 

National Academy of Sciences, Washington, DC. 

11 GulfBase. 2009. Bays and Estuaries. http:// 

www.gulfbase.org/bay/. Accessed April 2009.; 

NSTC. 2003. An Assessment of Coastal Hypoxia 

and Eutrophication in U.S. Waters. National 

Science and Technology Council, Committee on 

Environment and Natural Resources, Washington, 

DC. http://coastalscience.noaa.gov/documents/

hypoxia.pdf. Accessed July 2009; USEPA, 2009. 

National Summary of State Information. U.S. 

Environmental Protection Agency, Washington, DC, 

http://iaspub.epa.gov/waters10/attains_nation

_cy.control. Accessed June 2009. 

12USEPA, 2006. USEPA. 2006b. Wadeable 

Streams Assessment. EPA 841–B–06–002. U.S. 

Environmental Protection Agency, Washington, DC; 

Chesapeake Bay Program, 2009. Underwater Bay 

Grasses. http://www.chesapeakebay.net/baygrasses.

aspx?menuitem=14621. Accessed July 2009. 

13NOAA, 2009. Harmful Algal Blooms. National 

Oceanic and Atmospheric Administration, Silver 

Spring, MD. http://oceanservice.noaa.gov/topics/ 

coasts/hab/. Accessed April 2009; Tomasko et al., 

2005. Spatial and temporal variation in seagrass 

coverage in Southwest Florida: assessing the 

relative effects of anthropogenic nutrient load 

reductions and rainfall in four contiguous estuaries. 

Marine Pollution Bulletin 50: 797–805.; Selman et 

al., 2008. Eutrophication and Hypoxia in Coastal 

Areas: A Global Assessment of the State of 

Knowledge. WRI Policy Note No. 1 World Resources 

Institute, Washington, DC; Mississippi River/Gulf of 

Mexico Watershed Nutrient Task Force, 2008. Gulf 

Hypoxia Action Plan 2008 for Reducing, Mitigating 

and Controlling Hypoxia in the Northern Gulf of 

Mexico and Improving Water Quality in the 

Mississippi River Basin. Washington, DC. 

14 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. 

15USEPA. 2009. What is in Our Drinking Water? 

United States Environmental Protection Agency, 

Office of Research and Development. < http:// 

www.epa.gov/extrmurl/research/process/drinking

water.html>. Accessed December 2009. 

16Florida Fish and Wildlife Conservation 

Commission. 2010. The economic impact of 

freshwater fishing in Florida. <http:// 

www.myfwc.com/CONSERVATION/Conservation

_ValueofConservation_EconFreshwaterImpact.

htm>. Accessed August 2010. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for entities that may be directly or 

indirectly affected by this action. This 

table lists the types of entities of which 

EPA is now aware that potentially could 

be affected by this action. Other types of 

entities not listed in the table, such as 

nonpoint source contributors to nitrogen 

and phosphorus pollution in Florida’s 

waters may be affected through 

implementation of Florida’s water 

quality standards program (i.e., through 

Basin Management Action Plans 

(BMAPs)). Any parties or entities 

conducting activities within watersheds 

of the Florida waters covered by this 

rule, or who rely on, depend upon, 

influence, or contribute to the water 

quality of flowing waters of Florida, 

may be affected by this rule. To 

determine whether your facility or 

activities may be affected by this action, 

you should carefully examine the 

language in this proposal. If you have 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

D. How can I get copies of this 

document and other related 

information? 

1. Docket. EPA has established an 

official public docket for this action 

under Docket Id. No. EPA–HQ–OW– 

2009–0596. The official public docket 

consists of the document specifically 

referenced in this action, any public 

comments received, and other 

information related to this action. 

Although a part of the official docket, 

the public docket does not include 

Confidential Business Information (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 OW Docket 

telephone number is 202–566–2426. A 

reasonable fee will be charged for 

copies. 

2. Electronic Access. You may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.regulations.gov. 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 earlier. 

II. Background 

A. Nitrogen and Phosphorus Pollution 

in the United States and the State of 

Florida 

Excess loading of nitrogen and 

phosphorus compounds 9 is one of the 

most prevalent causes of water quality 

impairment in the United States. 

Nitrogen and phosphorus pollution 

problems have been recognized for 

decades in the U.S. For example, a 1969 

report by the National Academy of 

Sciences noted that ‘‘[t]he pollution 

problem is critical because of increased 

population, industrial growth, 

intensification of agricultural 

production, river-basin development, 

recreational use of waters, and domestic 

and industrial exploitation of shore 

properties. Accelerated eutrophication 

causes negative changes in plant and 

animal life—harmful, adverse changes 

that often interfere with use of water, 

detract from natural beauty, and reduce 

property values.’’ 10 Inputs of nitrogen 

and phosphorus lead to overenrichment in many of the Nation’s 

waters and constitute a widespread, 

persistent, and growing problem.11

Nitrogen and phosphorus pollution in 

fresh water systems can significantly 

negatively impact aquatic life and longterm ecosystem health, diversity, and 

balance.12 More specifically, high 

nitrogen and phosphorus loadings can 

result in harmful algal blooms (HABs), 

reduced spawning grounds and nursery 

habitats, fish kills, and oxygen-starved 

hypoxic or ‘‘dead’’ zones.13 Public 

health concerns related to nitrogen and 

phosphorus pollution include 

methanoglobanemia due to impaired 

drinking water sources from high levels 

of nitrates, increase in bladder cancer 

due to possible formation of disinfection 

byproducts in drinking water, and 

neurotoxicity and kidney damage due to 

increased exposure to cyanotoxins 

produced by harmful algae and 

cyanobacteria.14 15 Degradation of water 

bodies from nitrogen and phosphorus 

pollution can result in economic costs. 

For example, given that freshwater 

fishing in Florida is a significant 

recreational and tourist attraction 

generating over six billion dollars 

annually,16 degradation of water quality 

in Florida to the point that sport fishing 

populations are negatively affected will 

also negatively affect this important part 

of Florida’s economy. Elevated nitrogen 

and phosphorus levels can occur locally 

in a stream or ground water, or can 

accumulate downstream leading to 

degraded lakes, reservoirs, and estuaries 

where fish and aquatic life can no 

longer survive or spawn and the 


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17 75 FR 75762, December 6, 2010. Water Quality 

Standards for the State of Florida’s Lakes and 

Flowing Waters. 

18Perry, W.B. 2008. Everglades restoration and 

water quality challenges in south Florida. 

Ecotoxicology 17:569–578. 

19FDEP. 2008. Integrated Water Quality 

Assessment for Florida: 2008 305(b) Report and 

303(d) List Update. 

20 IWR Run 40. Updated through February 2010. 

21FDEP. 2008. Integrated Water Quality 

Assessment for Florida: 2008 305(b) Report and 

303(d) List Update. 

22FDEP. 2012. Integrated Water Quality 

Assessment for Florida: 2012 305(b) Report and 

303(d) List Update. (May 2012). Florida Department 

of Environmental Protection, Division of 

Environmental Assessment and Restoration, 

Tallahassee, FL. <http://www.dep.state.fl.us/water/

docs/2012_integrated_report.pdf>. Accessed August 

2012. 

23 75 FR 75762, December 6, 2010. Water Quality 

Standards for the State of Florida’s Lakes and 

Flowing Waters. 

24The criteria finalized in this rulemaking do not 

address or implement Florida’s narrative nutrient 

provision at Subsection 62–302.530(47)(a), F.A.C. 

Subsection 62–302.530(47)(a), F.A.C., remains in 

place as an applicable WQS for CWA purposes. 

designated use is no longer supported. 

For additional information on the 

sources, impacts (e.g., human health, 

aquatic life, environmental) and 

economic implications of nitrogen and 

phosphorus pollution, please refer to 

the December 6, 2010 final rule.17

Florida’s flat topography causes water 

to move slowly over the landscape, 

allowing ample opportunity for nitrogen 

and phosphorus to be transported offsite 

and result in eutrophication. Florida’s 

warm and wet, yet sunny, climate 

further contributes to increased run-off 

and ideal temperatures for subsequent 

eutrophication responses.18 As outlined 

in EPA’s January 2009 determination, 

water quality degradation resulting from 

excess nitrogen and phosphorus 

loadings is a documented and 

significant environmental issue in 

Florida. For example, the Florida 

Department of Environmental Protection 

(FDEP) 2008 Integrated Water Quality 

Assessment notes: ‘‘the close connection 

between surface and ground water, in 

combination with the pressures of 

continued population growth, 

accompanying development, and 

extensive agricultural operations, 

present Florida with a unique set of 

challenges for managing both water 

quality and quantity in the future. After 

trending downward for 20 years, 

phosphorus levels again began moving 

upward in 2000, likely due to the 

cumulative impacts of nonpoint source 

pollution associated with increased 

population and development. Increasing 

pollution from urban stormwater and 

agricultural activities is having other 

significant effects. In many springs 

across the State, for example, nitrate 

levels have increased dramatically (twofold to three-fold) over the past 20 years, 

reflecting the close link between surface 

and ground water.’’ 19 To clarify current 

nitrogen and phosphorus pollution 

conditions in Florida, EPA analyzed 

recent STORET (Storage and Retrieval) 

data pulled from Florida’s Impaired 

Waters Rule (IWR),20 which are the data 

Florida uses to create its integrated 

reports, and found increasing levels of 

nitrogen and phosphorus compounds in 

Florida waters over 12 years (1996– 

2008). Florida’s IWR STORET data 

indicates that levels of total nitrogen 

(i.e., State-wide average) have increased 

by 20% from 1996 to 2008, and total 

phosphorus levels (i.e., State-wide 

average) have increased by 40% over the 

same time period. 

The combination of the factors 

reported by FDEP and listed earlier 

(including population increase, climate, 

stormwater runoff, agriculture, and 

topography) has contributed to 

significant harmful, adverse effects from 

nitrogen and phosphorus pollution 

(nutrient pollution) to Florida’s 

waters.21 In the most recent Florida 

Department of Environmental Protection 

(FDEP) water quality assessment report, 

the Integrated Water Quality 

Assessment for Florida: 2012 305(b) 

Report and 303(d) List Update, FDEP 

describes widespread water quality 

impairment in Florida due to nitrogen 

and phosphorus pollution. FDEP’s 2012 

report 22 identifies approximately 1,918 

miles of rivers and streams (about 14 

percent of assessed river and stream 

miles), 378,435 acres of lakes (about 31 

percent of assessed lake acres), 754 

square miles (482,560 acres) of estuaries 

(about 14 percent of assessed estuarine 

area) and 102 square miles (65,280 

acres) of coastal waters (about 1.6 

percent of assessed coastal waters) as 

impaired by nutrients. In addition, the 

same report indicates that 1,108 miles of 

rivers and streams (about 8 percent of 

assessed river and stream miles) and 

107 square miles (68,480 acres) of lakes 

(about 5 percent of assessed lake square 

miles) are impaired due to nutrient 

pollution. 

For additional information regarding 

the prevalence of nutrient pollution in 

various water bodies in Florida and 

negative implications of nutrient 

pollution in State waters, please refer to 

the December 6, 2010 final rule.23

B. Statutory and Regulatory Background 

Section 303(c) of the CWA (33 U.S.C. 

1313(c)) directs states to adopt WQS for 

their navigable waters. Section 

303(c)(2)(A) and EPA’s implementing 

regulations at 40 CFR part 131 require, 

among other things, that state WQS 

include the designated use or uses to be 

made of the waters and criteria that 

protect those uses. EPA regulations at 40 

CFR 131.11(a)(1) provide that states 

shall ‘‘adopt those water quality criteria 

that protect the designated use’’ and that 

such criteria ‘‘must be based on sound 

scientific rationale and must contain 

sufficient parameters or constituents to 

protect the designated use.’’ In addition, 

40 CFR 131.10(b) provides that ‘‘[i]n 

designating uses of a waterbody and the 

appropriate criteria for those uses, the 

state shall take into consideration the 

water quality standards of downstream 

waters and ensure that its water quality 

standards provide for the attainment 

and maintenance of the water quality 

standards of downstream waters.’’ 

States are required to review their 

WQS at least once every three years and, 

if appropriate, revise or adopt new 

standards. (See CWA section 303(c)(1)). 

Any new or revised WQS must be 

submitted to EPA for review and 

approval or disapproval. (See CWA 

section 303(c)(2)(A) and (c)(3)). In 

addition, 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 EPA approved the 

State of Florida’s rules on November 30, 

2012. The criteria proposed in this 

rulemaking protect the uses designated 

by the State of Florida and implement 

Florida’s narrative nutrient provision at 

Subsection 62–302–530(47)(b), F.A.C. 

for the purposes of the CWA, into 

numeric values that apply to flowing 

waters not covered by the State’s Rule 

outside of the South Florida Region and 

DPVs to ensure the attainment and 

maintenance of the water quality 

standards of downstream lakes.24 For a 

thorough review of the statutory and 

regulatory background for this proposed 

rule, refer to the December 6, 2010 final 

rule. 

C. Water Quality Criteria 

Under CWA section 304(a), EPA 

periodically publishes criteria 

recommendations (guidance) for use by 

states in setting water quality criteria for 

particular parameters to protect 

recreational and aquatic life uses of 

waters. Where EPA has published 

recommended criteria, states have the 

option of adopting water quality criteria 

based on EPA’s CWA section 304(a) 

criteria guidance, section 304(a) criteria 

guidance modified to reflect sitespecific conditions, or other 

scientifically defensible methods. (See 

40 CFR 131.11(b)(1)). For nutrient 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74991 

25USEPA. 2000a. Nutrient Criteria Technical 

Guidance Manual: Lakes and Reservoirs. EPA–822– 

B–00–001. U.S. Environmental Protection Agency, 

Office of Water, Washington, DC. 

26USEPA. 2000b. Nutrient Criteria Technical 

Guidance Manual:Rivers and Streams. EPA–822–B– 

00–002. U.S. Environmental Protection Agency, 

Office of Water, Washington, DC. 

27USEPA. 2001. Nutrient Criteria Technical 

Manual: Estuarine and Coastal Marine Waters. 

EPA–822–B–01–003. U.S. Environmental Protection 

Agency, Office of Water, Washington, DC. 

28 75 FR, 75762, December 6, 2010. Water Quality 

Standards for the State of Florida’s Lakes and 

Flowing Waters. 

29 Florida Wildlife Federation, Inc., et. al. v. 

Jackson, Case 4:08-cv-00324–RH–WCS, Doc. 90–2 

(N.D.Fla. August 25, 2009). 

30For purposes of this rule, EPA has 

distinguished South Florida as those areas south of 

Lake Okeechobee and the Caloosahatchee River 

watershed to the west of Lake Okeechobee and the 

St. Lucie watershed to the east of Lake Okeechobee, 

hereinafter referred to as the South Florida Region. 

Numeric criteria applicable to flowing waters in the 

South Florida Region will be addressed in the 

second phase of EPA’s rulemaking regarding the 

establishment of estuarine and coastal numeric 

criteria. (Please refer to Section I.B for a discussion 

of the water bodies affected by this rule). 

pollution, EPA has published under 

CWA section 304(a) a series of peerreviewed, national technical approaches 

and methods regarding the development 

of numeric nutrient criteria for lakes 

and reservoirs,25 rivers and streams,26

and estuarine and coastal marine 

waters.27 For an overview of EPA’s 

recommended approaches for deriving 

numeric nutrient criteria in Florida 

lakes and flowing waters, please refer to 

the December 6, 2010 final rule.28 EPA 

believes that numeric nutrient criteria 

will expedite and facilitate the effective 

implementation of Florida’s existing 

point and non-point source water 

quality programs under the CWA in 

terms of timely water quality 

assessments, TMDL development, 

NPDES permit issuance and, where 

needed, Basin Management Action 

Plans (BMAPs) to address nitrogen and 

phosphorus pollution. 

D. EPA Determination Regarding 

Florida and EPA’s Rulemaking 

On January 14, 2009, EPA determined 

under Clean Water Act (CWA) section 

303(c)(4)(B) that new or revised water 

quality standards (WQS) in the form of 

numeric water quality criteria are 

necessary to protect the designated uses 

from nitrogen and phosphorus pollution 

that Florida has set for its Class I and 

Class III waters. EPA’s determination is 

available at the following Web site: 

http://www.epa.gov/waterscience/ 

standards/rules/fl-determination.htm. 

On August 19, 2009, EPA entered into 

a Consent Decree with Florida Wildlife 

Federation, Sierra Club, Conservancy of 

Southwest Florida, Environmental 

Confederation of Southwest Florida, and 

St. Johns Riverkeeper, committing to the 

schedule stated in EPA’s January 14, 

2009 determination to propose numeric 

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 the 

State submits and EPA approves new or 

revised water quality standards 

pursuant to section 303(c)(3).29 The 

Consent Decree also required that EPA 

sign a notice of final rulemaking for the 

respective proposals by October 15, 

2010, for lakes and flowing waters, and 

by October 15, 2011, for estuarine and 

coastal waters, unless the State submits 

and EPA approves new or revised water 

quality standards pursuant to section 

303(c)(3). The Consent Decree, which 

became effective on December 30, 2009, 

also included a commitment to develop 

numeric DPVs to protect downstream 

lakes and estuaries. To review the bases 

for EPA’s determination, and the 

information it considered in making its 

determination, please see the December 

6, 2010 final rule. 

E. EPA Promulgation of the Final Rule 

and Subsequent Litigation 

In accordance with the January 14, 

2009 determination, the August 19, 

2009 Consent Decree, and subsequent 

revisions to that Consent Decree, EPA 

signed a notice of final rulemaking 

establishing numeric nutrient criteria 

for streams, lakes, and springs in the 

State of Florida 30 on November 14, 

2010. As stated in the final rule at 40 

CFR § 131.43(f), the rule was scheduled 

to take effect on March 6, 2012, except 

for the site-specific alternative criteria 

(SSAC) provision at 40 CFR 131.43(e), 

which took effect on February 4, 2011. 

EPA selected the March 6, 2012 

effective date for the criteria part of the 

rule to allow time for EPA to work with 

stakeholders and the Florida 

Department of Environmental Protection 

(FDEP) on important implementation 

issues, to help the public and all 

affected parties better understand the 

final numeric nutrient criteria and the 

basis for those criteria, and for EPA to 

engage and support, in full partnership 

with FDEP, the general public, 

stakeholders, local governments, and 

sectors of the regulated community 

across the State in a process of public 

outreach education, discussion, and 

constructive planning. 75 FR 75787. The 

effective date was subsequently 

extended (77 FR 13497 and 77 FR 

39949) such that the current effective 

date of the rule is January 6, 2013. In 

addition to this proposal, EPA has 

proposed to stay the December 6, 2010 

Final Rule (75 FR 75762) to November 

15, 2013 (See http://water.epa.gov/ 

lawsregs/rulesregs/florida_inland.cfm). 

Following the publication of the rule 

in the Federal Register on December 6, 

2010, 12 cases were filed in the U.S. 

District Court for the Northern District 

of Florida challenging the rule. The 

cases, consolidated before Judge Robert 

Hinkle in the Tallahassee Division of 

the Northern District, were filed by 

environmental groups, Florida’s State 

Department of Agriculture, the South 

Florida Water Management District, and 

various industry/discharger groups. The 

challenges alleged that EPA’s 

determination and final rule were 

arbitrary, capricious, an abuse of 

discretion, and not in accordance with 

the law for a variety of reasons. Oral 

argument in the case was held on 

January 9, 2012 before Judge Hinkle. 

On February 18, 2012, the Court 

upheld EPA’s January 2009 

determination and the final numeric 

nutrient criteria for Florida’s lakes and 

springs, as well as the site-specific 

alternative criteria (SSAC) provisions 

and the provisions for calculating DPVs 

using either modeling or a default 

option for an impaired lake that is not 

attaining its numeric nutrient criteria. 

See February 18, 2012 Court Order. For 

EPA’s numeric nutrient criteria for 

flowing waters (i.e., streams) and the 

default option to calculate DPVs for 

unimpaired lakes based on ambient 

stream nutrient concentrations at the 

point of entry to the lake, the Court 

found that EPA had not provided 

sufficient information in its final rule 

explaining why or how the criteria or 

DPV protect against harmful increases, 

as opposed to any increase, in nutrients. 

The Court observed that EPA’s scientific 

approach to deriving streams criteria 

(i.e., the reference condition approach), 

including the criteria’s duration and 

frequency components, ‘‘are matters of 

scientific judgment on which the rule 

would survive arbitrary-or-capricious 

review.’’ Order at 63. The Court also 

found, however, that EPA had not 

explained in sufficient detail how the 

streams criteria would prevent a 

‘‘harmful increase in a nutrient level’’. 

Order at 63. In addition, the Court found 

that EPA had not explained in sufficient 

detail how exceedances of the default 

DPV for unimpaired lakes would lead to 

‘‘harmful effects’’ in the downstream 

lake. Order at 63. Thus, the Court 

invalidated these two aspects of EPA’s 

final rule and remanded them to the 

Agency for further action. 

The Court ordered that the upheld 

portions of EPA’s final rule be codified 

at 40 CFR 131.43 with the exceptions of 

the streams criteria and the default DPV 

for unimpaired lakes. Order at 85. For 


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74992 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

31As set out more fully in a subsequent section, 

EPA set criteria concentrations at the 90th 

percentile of the reference condition distribution in 

four of the five nutrient watershed regions defined 

in Florida. In the fifth region, known as the West 

Central region, EPA set criteria concentrations at 

the 75th percentile of the reference distribution. For 

ease of reference, where EPA refers to the ‘‘upper 

percentile’’ or the ‘‘90th percentile’’ in this 

preamble, unless the reference relates specifically to 

the basis for the criteria in the four nutrient 

watershed regions where EPA selected the 90th 

percentile, EPA is referring to both the 90th 

percentile that was applied in four regions and the 

75th percentile that was applied in the West Central 

region. 

32 In the West Central Region, EPA selected a 

criterion-magnitude that was exceeded only 25% of 

the time on an annual average basis across all sites. 

the exceptions, the Court ordered: ‘‘By 

May 21, 2012, the Administrator must 

sign for publication a proposed rule, or 

sign for publication a final rule, that sets 

numeric nutrient criteria for Florida 

streams that are not in the South Florida 

region. By May 21, 2012, the 

Administrator must sign for publication 

a proposed rule, or sign for publication 

a final rule, that sets default 

downstream-protection criteria for 

unimpaired lakes, unless by that date 

the Administrator has filed a notice that 

she has decided not to propose or adopt 

such criteria, together with an 

explanation of the decision.’’ Order at 

85. After the May 21, 2012 deadline was 

jointly extended by the parties to June 

4, 2012, on May 30, 2012, the court 

granted EPA’s request to further extend 

the deadline for signing a proposed rule 

to November 30, 2012. The court also 

ordered that EPA must sign a notice of 

final rulemaking by August 31, 2013. In 

accordance with the Court’s Order, EPA 

is proposing numeric nutrient criteria 

for Florida’s streams and three default 

approaches for deriving DPVs for 

unimpaired lakes (and impaired lakes) 

with this proposed rule. 

F. Florida Adoption of Numeric Nutrient 

Criteria and EPA Approval 

On June 13, 2012, the Florida 

Department of Environmental Protection 

(FDEP) submitted new and revised 

water quality standards for review by 

the EPA pursuant to section 303(c) of 

the CWA. These new and revised water 

quality standards are set out primarily 

in Rule 62–302 of the Florida 

Administrative Code (F.A.C.) [Surface 

Water Quality Standards]. FDEP also 

submitted amendments to Rule 62–303, 

F.A.C. [Identification of Impaired 

Surface Waters], which sets out 

Florida’s methodology for assessing 

whether waters are attaining State water 

quality standards. On November 30, 

2012, EPA approved the provisions of 

these rules submitted for review that 

constitute new or revised water quality 

standards (referred to in this preamble 

as the ‘‘newly approved state water 

quality standards’’). These newlyapproved state water quality standards 

include provisions that set forth 

numeric interpretations of the narrative 

nutrient criterion in paragraph 62– 

302.530(47)(b), F.A.C. for streams 

(Subsection 62–302.531(2)(c), F.A.C) 

that meet a specific definition (Section 

62–302.200(36), F.A.C.). 

The numeric interpretation for stream 

protection in Florida’s newly approved 

water quality standards uses biological 

information in combination with 

nutrient thresholds. Stream protection is 

achieved if (1) various measures of 

aquatic plant growth (e.g., ‘‘floral 

metrics’’) indicate ‘‘no imbalances’’ and 

EITHER (2) a measure of the faunal 

stream community health called the 

Stream Condition Index (SCI) is above a 

certain threshold OR (3) the nutrient 

thresholds for total phosphorus (TP) and 

total nitrogen (TN) for the relevant 

region are met. The nutrient thresholds 

in Florida’s newly approved water 

quality standards are identical to the 

‘‘stand-alone’’ streams criteria in this 

proposed rule. EPA’s approval 

document is included in the set of 

materials provided in the docket for this 

proposed rule (Docket number EPA– 

HQ–OW–2009–0596, 

www.regulations.gov). 

III. Numeric Criteria for Flowing 

Waters and Downstream Protection of 

Lakes in the State of Florida 

A. Introduction 

In the December 2010 final rule, using 

the reference condition approach, EPA 

promulgated numeric nutrient criteria 

for Florida’s streams based on the 

concentrations of total nitrogen (TN) 

and total phosphorus (TP) observed in 

a sample of least-disturbed streams. EPA 

set the numeric nutrient criteria so that 

the annual average concentrations of TN 

and TP most often observed in reference 

sites that are known to support the 

designated uses would not exceed the 

criteria. The court, however, found that 

EPA failed to explain ‘‘how the 90% 

mark correlates with a harmful increase 

in nutrients’’ (as opposed to any 

increase in nutrients). Order at 65. The 

court noted that it ‘‘may well be that 

there is a sufficient correlation’’ that 

above the criteria concentrations 

‘‘harmful change is likely.’’ Order at 66. 

However, the court found that EPA had 

not adequately explained its decision 

and remanded to EPA for further 

action.31

In response to the court’s remand, 

EPA has conducted a comprehensive 

review of available scientific data and 

information to more fully document the 

likelihood of harmful change occurring 

in the natural populations of aquatic 

flora and fauna of Florida streams at TN 

and TP concentrations above the 

proposed numeric nutrient criteria in 

today’s proposal. EPA conducted this 

review to confirm whether its proposed 

numeric nutrient criteria are established 

at TN and TP concentrations sufficient 

(i.e., necessary) to protect against 

‘‘harmful’’ change in the biota. 

EPA’s review confirmed its original 

decision that the criteria the Agency 

published in December 2010 were set at 

the appropriate levels to protect the 

applicable designated uses and translate 

Florida’s narrative nutrient criterion for 

the purposes of the CWA. EPA has reselected the upper percentile of annual 

average TN and TP concentrations from 

its sample of reference sites as the level 

that the Agency is confident will avoid 

‘‘harmful’’ increases in TN and TP, and 

thus a level at which designated uses 

are protected in Florida’s streams. The 

reference sites (described more fully in 

the following sections) are leastdisturbed and more closely represent 

minimally-impacted conditions 

associated with a natural population of 

flora and fauna. By selecting a criterionmagnitude that was exceeded only 10% 

of the time 32 on an annual average basis 

in the reference sites that were 

determined to support designated uses, 

EPA is confident that other streams 

attaining and maintaining those levels 

of TN and TP would also support 

applicable designated uses and not 

experience harmful change in the biota. 

EPA is, therefore, proposing TN and TP 

criteria at the same levels as EPA 

promulgated in the December 2010 final 

rule. 

In its decision, the court, in 

discussing numeric criteria translating 

Florida’s narrative criterion, stated that 

‘‘the right target was a criterion that 

would identify a harmful increase in a 

nutrient level—an increase that, in the 

language of Florida’s narrative criterion, 

would create an ‘imbalance’ in flora and 

fauna.’’ Order at 63. That language 

could be read as requiring identification 

of the exact point where harmful 

change, or imbalance of flora or fauna, 

occurs as the appropriate level for 

numeric nutrient criteria. EPA evaluated 

whether available data allow derivation 

of criteria with such precision to set the 

criteria at a level where any increase at 

all would result in an imbalance of flora 

and fauna, and therefore impairment of 

Florida’s designated uses. As set out 

more fully in subsequent sections, EPA 

concluded the data did not allow 

derivation of criteria with such 


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33See FDEP’s Rule 62–302.531, F.A.C. at: 

http://www.dep.state.fl.us/water/wqssp/nutrients/ 

docs/meetings/62_302_final.pdf, accessed on April 

27, 2012. 

34State of Florida Numeric Nutrient Criteria 

Development Plan, Prepared by: Bureau of 

Assessment and Restoration Support, Division of 

Environmental Assessment and Restoration, Florida 

Department of Environmental Protection 

Tallahassee, FL, March 2009; Technical Support 

Document: Development of Numeric Nutrient 

Criteria for Florida Lakes and Streams. Florida 

Department of Environmental Protection, Standards 

and Assessment Section, June 2009; Technical 

Support Document: Development of Numeric 

Nutrient Criteria for Florida Lakes, Spring Vents 

and Streams. Florida Department of Environmental 

Protection, Standards and Assessment Section, 

2012. 

35 ‘‘Technical Support Document for EPA’s 

Proposed Rule for Numeric Nutrient Criteria to 

Protect Florida’s Streams and the Downstream 

Protection of Unimpaired Lakes’’ (‘‘EPA Proposed 

Rule TSD for Florida’s Streams and DPV for 

Unimpaired Lakes’’). 

36Water Quality Standards Handbook: Second 

Edition, Chapter 3—Water Quality Criteria. EPA– 

823–B–94–005a. USEPA. 1994; Technical Support 

Document for Water Quality-based Toxics Control. 

Appendix D—Duration and Frequency. EPA/505/2– 

90–001. USEPA 1991. 

precision. In order to derive criteria 

with such precision, it would be 

necessary to have sufficient data to 

precisely model (either statistically or 

mechanistically) the stressor-response 

relationship in each stream reach within 

the State, due to the various 

confounding factors that introduce 

variability into that relationship within 

a given stream reach. Because EPA did 

not have such data available, EPA was 

not able to pinpoint the exact level at 

which any increase in nitrogen and 

phosphorus concentrations at all would 

result in such imbalance and designated 

use impairment. 

In determining appropriately 

protective criteria, EPA must ensure that 

such criteria comply with the CWA. The 

CWA envisions that water quality 

standards will be developed, based on 

available scientific knowledge and 

information, at levels that are sufficient 

to protect designated uses. See CWA 

section 303(c)(2)(A). 40 CFR 

131.11(a)(1). The record supports EPA’s 

conclusion that its proposed numeric 

streams criteria are based on sound 

scientific rationale and will protect 

Florida’s designated uses. If commenters 

are aware of available data and/or 

information demonstrating that setting 

criteria at less stringent levels than 

those in this proposed rule would be 

protective of designated uses and 

protect against harmful increases of TN 

and TP, or that criteria must be set at 

more stringent levels in order to protect 

designated uses and protect against 

harmful increases of TN and TP, 

commenters should submit such 

scientific information and analyses to 

EPA during the comment period for 

EPA’s consideration. 

Finally, EPA’s approach to deriving 

numeric nutrient criteria is consistent 

with FDEP’s approach to interpreting its 

narrative nutrient criterion and deriving 

numeric thresholds at the State level. 

FDEP recently established numeric 

interpretations of the State’s narrative 

nutrient criterion.33 FDEP has 

approached the derivation of numeric 

TN and TP threshold values for streams 

in much the same way as EPA by aiming 

to prevent adverse effects to natural 

populations of aquatic flora and fauna.34

To set protective numeric threshold 

values for streams for TN and TP where 

the data were not available to ascertain 

an accurate quantifiable stressorresponse relationship for streams, FDEP 

utilized a reference condition approach 

similar to the reference condition 

approach that EPA utilized in the 

December 2010 final rule. In the absence 

of a positive showing that some higher 

level of nutrients still protects 

designated uses and against harmful 

change in the biota in a particular 

stream, or a showing that some lower 

level of nutrients is needed to protect 

designated uses and natural populations 

of biota in a particular stream, both 

FDEP and EPA have determined that the 

upper percentile of reference streams is 

an appropriate and protective level of 

nutrients to properly protect designated 

uses and avoid any adverse change in 

natural populations of aquatic flora or 

fauna. In addition, EPA included a Site 

Specific Alternative Criteria (‘‘SSAC’’) 

provision in its December 2010 final 

rule for adoption of alternative criteria 

if a demonstration could be made that 

more or less stringent criteria are 

warranted for individual waters. 

Similarly, FDEP included a provision in 

its rule for adoption of SSAC, as well as 

a provision for adoption of other sitespecific interpretations for individual 

waters. 

Along with this proposed rule, EPA is 

providing a technical support document 

that discusses in more detail the 

scientific basis for the proposed criteria 

for streams and the default options to 

determine DPVs for unimpaired lakes. 

The technical support document helps 

explain how EPA’s proposed numeric 

streams criteria would prevent harmful 

increases in TN and TP concentrations, 

which was specifically discussed by the 

Court in its decision invalidating EPA’s 

numeric streams criteria and default 

DPV for unimpaired lakes.35

B. EPA Derivation of Numeric Nutrient 

Criteria for Streams 

1. Components of Water Quality Criteria 

Water quality criteria include three 

components. The first component is 

‘‘magnitude,’’ the concentration of a 

pollutant that can be maintained over 

time in the ambient receiving water 

without adversely affecting the 

designated use that the criteria is 

intended to support. The second 

component is ‘‘duration,’’ or the time 

period over which exposure is averaged 

(i.e., the averaging period) to limit the 

duration of exposure to elevated 

concentrations. This accounts for the 

variability in the quality of the ambient 

water due to variations of constituent 

inputs, stream flow, and other factors. 

The third component is ‘‘frequency’’, or 

how often the magnitude/duration 

condition may be exceeded, and still 

protect the designated use. Combining 

the criterion-magnitude with the 

duration and frequency prevents the 

allowance of harmful effects by ensuring 

compensating periods of time during 

which the concentration is below the 

criterion-magnitude. Where criterionmagnitudes are exceeded for short 

periods of time or infrequently, water 

bodies can typically recover; that is, 

designated uses are typically protected. 

Designated uses are typically not 

protected when criteria-magnitudes are 

exceeded for longer periods of time (i.e., 

for longer than the specified duration) 

or more frequently (i.e., more often than 

the allowed frequency).36

Use of this magnitude-durationfrequency format allows for some 

exceedances of the criteria-magnitude 

concentrations while still protecting 

applicable designated uses, which is 

important for pollutants such as 

nitrogen and phosphorus because their 

concentrations can vary naturally in the 

environment. The duration and 

frequency values associated with the 

numeric streams criteria EPA is 

proposing today are the same as those 

associated with the numeric criteria in 

EPA’s December 2010 rule. For more 

information on the basis for these 

duration and frequency components, see 

75 Fed. Reg. 75776–77. 

2. Selection of Target for Numeric 

Nutrient Criteria 

In evaluating the appropriate 

endpoint for deriving numeric nutrient 

criteria, EPA first looked at Florida’s 

applicable designated uses since, as 

mentioned in the previous sections, 

water quality criteria must be sufficient 

to protect the designated uses. CWA 

303(c)(2)(A); 40 CFR 131.11(a)(1). The 

designated uses established by Florida 

for its streams include Class I (for 

potable water supply) and Class III 


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37Florida’s narrative nutrient criterion also serves 

to protect their Class II waters for propagation and 

harvesting of shellfish, which will be covered under 

EPA’s forthcoming rulemaking efforts for estuarine 

and coastal waters. 38Tropic state describes the nitrogen and 

phosphorus levels and algal state of an aquatic 

system: Oligotrophic (low nitrogen/phosphorus and 

algal productivity), mesotrophic (moderate 

nitrogen/phosphorus and algal productivity), and 

eutrophic (high nitrogen/phosphorus and algal 

productivity). 39Additionally, the SSAC provision at § 131.43(e) 

is also available if it determined that concentrations 

outside of the range are necessary to protect the 

designated uses in a particular lake. 

40USEPA. 2000. Nutrient Criteria Technical 

Guidance Manual: Rivers and Streams. EPA–822– 

B–00–002. U.S. Environmental Protection Agency, 

Office of Water, Washington, DC.; USEPA–SAB. 

2011. Review of EPA’s draft Approaches for 

Deriving Numeric Nutrient Criteria for Florida’s 

Estuaries, Coastal Waters, and Southern Inland 

Flowing Waters. U.S. Environmental Protection 

Agency, Science Advisory Board, Washington, DC. 

41USEPA. 2000a. Nutrient Criteria Technical 

Guidance Manual: Lakes and Reservoirs. EPA–822– 

B–00–001. U.S. Environmental Protection Agency, 

Office of Water, Washington, DC. 

42USEPA. 2000b. Nutrient Criteria Technical 

Guidance Manual: Rivers and Streams. EPA–822– 

B–00–002. U.S. Environmental Protection Agency, 

Office of Water, Washington, DC. 

43Stoddard, J. L., D. P. Larsen, C. P. Hawkins, R. 

K. Johnson, and R. H. Norris. 2006. Setting 

expectations for the ecological condition of streams: 

the concept of reference condition. Ecological 

Applications 16:1267—1276. 

44Herlihy, A. T., S. G. Paulsen, J. Van Sickle, J. 

L. Stoddard, C. P. Hawkins, L. L. Yuan. 2008. 

Striving for consistency in a national assessment: 

the challenges of applying a reference-condition 

approach at a continental scale. Journal of the North 

American Benthological Society 27:860—877. 

45U.S. EPA. 2001. Nutrient Criteria Technical 

Manual: Estuarine and Coastal Marine Waters. 

Office of Water, Washington, DC. EPA–822–B–01– 

003. 

46USEPA–SAB. 2011. Review of EPA’s draft 

Approaches for Deriving Numeric Nutrient Criteria 

for Florida’s Estuaries, Coastal Waters, and 

Southern Inland Flowing Waters. U.S. 

Environmental Protection Agency, Science 

Advisory Board, Washington, DC. 

47Final rule can be found at: http:// 

edocket.access.gpo.gov/2010/pdf/2010–29943.pdf 

or 75 Federal Register 75762 (December 6, 2010). 

48Final rule TSD can be found at: 

www.regulations.gov, Docket # EPA–HQ–OW– 

2009–0596. 

49FDEP. 2009. Draft Technical Support 

Document: Development of Numeric Nutrient 

Criteria for Florida’s Lakes and Streams. Florida 

Department of Environmental Protection, Standards 

and Assessment Section. Available electronically at: 

http://www.dep.state.fl.us/water/wqssp/nutrients/ 

(recreation, propagation and 

maintenance of a healthy, well-balanced 

population of fish and wildlife). Fla. 

Admin. Code 62–302.400. EPA next 

looked to Florida’s narrative nutrient 

criterion, which represents Florida’s 

determination of what is protective of 

the Class I and III designated uses.37

That criterion provides that ‘‘in no case 

shall nutrient concentrations of a body 

of water be altered so as to cause an 

imbalance of natural populations of 

aquatic flora and fauna.’’ Fla. Admin. 

Code 62–302.530(47)(b). As set out more 

fully in subsequent sections, in deriving 

the numeric nutrient criteria to protect 

against concentrations of TN and TP 

that will create an imbalance of natural 

populations of aquatic flora and fauna 

and, thus, ensure the protection of the 

designated uses in Florida’s streams, 

EPA used the reference condition 

approach. 

Unlike for streams, for Florida’s lakes 

the Agency was able to accurately 

quantify a stressor-response relationship 

between TN and TP concentrations and 

harmful, adverse effects in those waters. 

EPA used that stressor-response 

information to derive numeric nutrient 

criteria, promulgated in the December 

2010 final rule, to protect designated 

uses for Florida’s lakes. EPA did not 

establish the numeric lake criteria 

exactly at the point where nutrient 

pollution is demonstrated to adversely 

affect all lakes at all times, as that would 

not be protective of all lakes. Rather, 

EPA established the numeric lake 

criteria at concentrations that were 

known to protect against harmful, 

adverse effects by protecting and 

maintaining the expected trophic 

state 38 (by meeting protective 

chlorophyll-a concentrations for either 

oligotrophic or mesotrophic conditions) 

for the majority of lakes. At the same 

time, EPA allows higher concentrations 

within a given range if there is a 

positive showing that some higher 

concentrations of TN and TP still 

maintain the protective chlorophyll-a 

concentrations, and thus still protect the 

designated uses in a particular lake.39

The court upheld EPA’s numeric 

nutrient criteria for Florida’s lakes in its 

February 18, 2012 Order. 

For Florida’s streams, as stated in the 

previous section, EPA determined that 

the scientific data and information 

available were insufficient to establish 

accurate quantifiable relationships 

between TN and TP concentrations and 

harmful, adverse effects in streams due 

to confounding factors that affect the 

chemical and biological responses to 

nutrient pollution in streams, such as 

shading from canopy and stream 

velocity. Thus, in spite of the 

substantial data collected over many 

years, EPA could not use the stressorresponse approach to establish the 

numeric streams criteria at 

concentrations that protect against 

harmful adverse effects by protecting 

and maintaining a given biological 

response at a protective level measured 

in streams. Therefore, EPA relied upon 

the reference condition approach as 

described in more detail in Section III.C 

of this preamble to identify TN and TP 

concentrations that protect the 

designated uses, and above which 

harmful, adverse effects are likely to 

occur in the majority of Florida streams. 

At the same time, EPA allows 

alternative criteria be set at higher or 

lower concentrations through the use of 

the SSAC provision, if there is a positive 

showing that higher or lower 

concentrations of TN and TP are 

sufficient or necessary to protect the 

designated uses in a particular stream. 

The following sections set forth how 

EPA determined that the numeric 

streams criteria in today’s proposal are 

set at the appropriate level to protect 

against a harmful, adverse effects due to 

increased TN and TP concentrations. 

C. Reference Condition Approach for 

Developing Numeric Nutrient Criteria 

for Streams 

The reference condition approach, a 

long-standing peer-reviewed 

methodology published by EPA, was 

designed to develop protective numeric 

nutrient criteria where reference 

conditions can be confidently defined.40

The reference condition approach, 

which has been well documented, peer 

reviewed, and developed in a number of 

different contexts,41 42 43 44 45 46 is used to 

derive numeric nutrient criteria that are 

protective of applicable designated uses 

by identifying TN and TP 

concentrations occurring in leastdisturbed, healthy streams that are 

supporting designated uses. The core 

scientific basis for EPA’s use of the 

reference condition approach to derive 

the proposed numeric nutrient criteria 

for Florida’s streams is outlined in 

EPA’s December 2010 final rule 47 and 

final December 2010 rule TSD.48 Briefly, 

EPA screened and evaluated water 

chemistry data from more than 11,000 

samples from over 6,000 sites Statewide. 

EPA also evaluated biological data 

consisting of more than 2,000 samples 

from over 1,100 Florida streams. EPA 

then selected a reference set of streams 

where the Agency was confident that 

designated uses are protected. Finally, 

EPA selected an upper percentile of the 

data distribution associated with those 

reference streams as the stream 

criterion-magnitude. While developing 

the December 2010 final rule, EPA met 

and consulted with FDEP expert 

scientific and technical staff on 

numerous occasions as part of an 

ongoing collaborative process. EPA 

carefully considered and evaluated the 

technical approaches and scientific 

analysis that FDEP presented as part of 

its July 2009 draft numeric nutrient 

criteria,49 as well as FDEP’s numerous 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74995 

docs/tsd_nutrient_crit.docx. Accessed October 

2010. 

50State of Florida Numeric Nutrient Criteria 

Development Plan, Prepared by: Bureau of 

Assessment and Restoration Support, Division of 

Environmental Assessment and Restoration, Florida 

Department of Environmental Protection 

Tallahassee, FL, March 2009; Technical Support 

Document: Development of Numeric Nutrient 

Criteria for Florida Lakes, Spring Vents and 

Streams. Florida Department of Environmental 

Protection, Standards and Assessment Section, 

2012. 

51For the West Central region, where reference 

sites were identified using only the SCI approach, 

there is less confidence that these sites are leastdisturbed and represent minimally-impacted 

conditions. Unlike in the other NWRs, this 

approach does not rely on a quantitative assessment 

of potential human disturbance through the use of 

surrounding land cover analysis of stream corridor 

and watershed land development indices, among 

other things. Therefore, because of the lower 

confidence level, EPA is proposing the streams 

criteria in the West Central region using a more 

conservative percentile of 75% rather than the 

upper end percentile of 90% of the distribution 

from the SCI sites. 

comments on different aspects of EPA’s 

proposed January 2010 final rule. 

In addition, the Agency also received 

and carefully considered substantial 

stakeholder input from 13 public 

hearings in six Florida cities during the 

2010 comment period. EPA reviewed 

and evaluated further analysis and 

information included in the more than 

22,000 comments on the January 2010 

proposal and an additional 71 

comments on the August 2010 

supplemental notice and request for 

comment. Finally, in reviewing its 2010 

application of the reference condition 

approach for purposes of this proposal, 

EPA also considered FDEP’s current 

rule, along with the technical 

approaches and scientific analysis 

supporting that rule, submitted to EPA 

on June 13, 2012.50

1. Selection of Reference Sites 

This section summarizes how EPA 

applied the reference condition 

approach in developing the December 

2010 rule, including how EPA selected 

the set of reference sites and how it 

aggregated data associated with those 

stream segments. EPA classified Florida 

streams into five stream regions based 

on similar geographical and watershed 

characteristics. The proposed numeric 

streams criteria would apply to five 

separate stream Nutrient Watershed 

Regions (NWRs): Panhandle West, 

Panhandle East, North Central, West 

Central and Peninsula (north of Lake 

Okeechobee, including the 

Caloosahatchee River Watershed to the 

west and the St. Lucie Watershed to the 

east). 

To derive numeric nutrient criteria for 

streams, EPA first identified biologically 

healthy sites that exhibited the least 

amount of human disturbance and that 

were known to support designated uses, 

i.e., support natural populations of 

aquatic flora and fauna. EPA applied 

several screening factors to ensure these 

sites reflected least-disturbed, 

biologically healthy conditions. The 

screening factors included landscape 

development intensity index (LDI) 

scores less than 2.0 (an indicator of 

lower impact surrounding land use), 

average nitrate concentrations less than 

0.35 mg/L (an indicator of lower 

anthropogenic nitrogen concentrations), 

exclusion of waters that are identified as 

water quality-limited for nutrients and/ 

or dissolved oxygen on Florida’s EPAapproved CWA section 303(d) list, and 

an FDEP-derived index of the stream 

macroinvertebrate community (stream 

condition index, or SCI) where average 

scores are greater than 40 (an indicator 

of a healthy macroinvertebrate 

community). The result of this rigorous 

analysis was a set of reference sites that, 

although not pristine, reflected healthy 

conditions that were supporting 

designated uses, and thus free from 

harmful, adverse effects on natural 

populations of aquatic flora and fauna 

due to nutrient pollution. EPA has 

confidence that these reference sites are 

supporting designated uses and natural 

populations of flora and fauna, and, as 

set out more fully in Section III.C.2, has 

confidence that if the TN and TP 

concentrations are attained or 

maintained at the concentrations that 

are among the highest observed at these 

sites, then designated uses and natural 

populations of aquatic flora and fauna 

will be protected in other streams. 

Additionally, as discussed further in 

Section III.C.3, additional lines of 

evidence from the available scientific 

data and information support EPA’s 

conclusion in that they indicate that 

harmful, adverse effects are likely to 

occur to natural populations of aquatic 

flora and fauna at levels higher than 

these concentrations. 

In remanding EPA’s streams criteria, 

the Court preliminarily concluded that 

EPA’s technical and scientific 

approaches in deriving streams criteria 

based on the reference condition 

approach were defensible. Specifically, 

the Court reasoned: ‘‘Each side criticizes 

the Administrator’s implementation of 

this approach. Thus, for example, each 

side criticizes the Administrator’s 

selection of sample streams. The 

environmental parties criticize the 

duration and frequency components. 

These are matters of scientific judgment 

on which the rule would survive 

arbitrary-or-capricious review.’’ Order at 

63. 

2. Selection of Stream CriterionMagnitude 

After selecting the reference set of 

streams, EPA then examined the 

statistical distributions of the data 

associated with stream sites that passed 

all of the screening factors in order to 

identify an appropriate criterionmagnitude to protect designated uses 

and natural populations of aquatic flora 

and fauna. EPA organized the data (TN 

and TP values) and calculated the 

geometric mean of the annual geometric 

mean of TN and TP concentrations for 

each stream segment that contained 

reference sites. EPA used all samples 

from reference sites within a given 

stream segment in a given year to 

calculate the annual geometric mean for 

that stream segment. EPA used the 

geometric mean of these annual 

geometric means for each stream 

segment so that each stream segment 

represents one average concentration in 

the distribution of concentrations for 

each NWR. EPA used geometric means 

for all averages because concentrations 

were log-normally distributed. EPA then 

identified specific statistics, or 

percentiles, associated with each stream 

NWR reference condition data 

distribution as the stream criterionmagnitude for that region.51 Based on 

the effectiveness of the data quality 

screens in four of five NWRs, EPA has 

concluded that the 90th percentile of 

annual average concentrations would be 

protective. EPA could not use all of the 

screening factors outlined in Section 

III.C.1. in order to identify reference 

sites in the remaining region, the West 

Central Region, because the use of those 

screens resulted in the identification of 

only one stream segment as a reference 

site. For this reason, EPA utilized only 

the SCI and 303(d) listed screens to 

identify reference conditions in the 

West Central NWR, and this approach 

does not rely on a quantitative 

assessment of potential human 

disturbance through the use of 

surrounding land cover analysis of 

stream corridor and watershed land 

development indices. Because of the use 

of fewer data screens to identify 

reference conditions in that NWR and 

EPA’s attendant lower confidence that 

these sites are least-disturbed conditions 

that support designated uses and natural 

populations of aquatic flora and fauna, 

EPA has determined the 75th percentile 

of annual average concentrations, rather 

than the 90th percentile, is the 

protective criterion-magnitude for that 

region. For the remaining stream 

regions, EPA considers the 90th 

percentile of the annual average 


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52U.S. EPA. 2000b. Nutrient Criteria Technical 

Guidance Manual: Rivers and Streams. EPA–822– 

B–00–002. U.S. Environmental Protection Agency, 

Office of Water, Washington, DC. 

53U.S. EPA. 2007. Nutrient Criteria Technical 

Guidance Manual: Wetlands. EPA–822–R–07–004. 

U.S. Environmental Protection Agency, Office of 

Water, Washington, DC. 

54U.S. EPA. 2000. Nutrient Criteria Technical 

Guidance Manual: Rivers and Streams. EPA–822– 

B–00–002. U.S. Environmental Protection Agency, 

Office of Water, Washington, DC. 

55Technical Support Document for EPA’s 

Proposed Rule for Numeric Nutrient Criteria to 

Protect Florida’s Streams and Downstream Lakes. 

U.S. EPA, 2012. 

56Technical Support Document: Development of 

Numeric Nutrient Criteria for Florida Lakes and 

Streams. Florida Department of Environmental 

Protection, Standards and Assessment Section, June 

2009; Proposed Methods and Approaches for 

Developing Numeric Nutrient Criteria for Florida’s 

concentrations observed in the reference 

condition distribution as an appropriate 

concentration to specify the criterionmagnitude because the Agency is 

confident that theses least-disturbed 

sites more closely represent minimallyimpacted, biologically healthy reference 

conditions, which support the State’s 

Class I and III designated uses. 

However, the Court found that EPA 

did not provide sufficient rationale 

explaining why it chose the 90th 

percentile (75th percentile in the West 

Central) of the reference site data 

distribution as the stream criterionmagnitude. That is, EPA did not explain 

why increasing nutrient levels above the 

upper percentile of annual average 

concentrations measured in reference 

condition streams would result in 

harmful, adverse effects on natural 

populations of aquatic flora and fauna 

in Florida’s streams. The Court 

reasoned: ‘‘The Administrator 

apparently concluded only that an 

increase above this level ordinarily 

causes a change in flora and fauna—not 

that it causes a harmful change. If there 

is a basis in sound science for 

disapproving a nutrient increase that 

causes any increase in flora and fauna, 

not just a harmful increase, the 

Administrator did not cite it. And even 

if the Administrator’s conclusion was 

that an increase in nutrients to a level 

above the 90th percentile ordinarily 

causes a harmful change in flora and 

fauna, the Administrator again did not 

cite a sound science basis for the 

conclusion.’’ Order at 7. 

For all stream regions, EPA could 

have selected a criterion-magnitude at 

the 75th percentile of the frequency 

distribution of concentrations at 

reference sites, or any lower percentile 

of the frequency distribution of the 

general population of a stream class 

(i.e., ‘‘all-streams’’ population from 

impaired to least-impacted), to derive 

the numeric criteria as recommended by 

EPA’s published streams criteria 

guidance.52 EPA selected the 90th 

percentile. EPA found support in an 

EPA nutrient criteria guidance manual 

that recommends percentiles from the 

75th to the 95th percentile of the 

frequency distribution of the reference 

population, where the higher percentile 

values are ‘‘best used to define the 

criteria when there is great confidence 

that the group of reference waters truly 

reflects reference conditions as opposed, 

for example, to best available 

condition.’’ 53

The selection of the 90th percentile 

reflects EPA’s level of confidence that 

these least-disturbed sites more closely 

represent minimally-impacted 

conditions, while not set at the extreme 

upper end of the distribution (95th or 

100th percentile). This is because these 

highest observed annual average 

concentrations (i.e., 95th or 100th 

percentile) have rarely been observed at 

any reference site and are most likely to 

be heavily influenced by extreme event 

factors (e.g., hurricanes, droughts). Thus 

these highest observed concentrations 

could be outliers that are not 

representative of conditions that would 

typically support designated uses and 

natural populations of aquatic flora and 

fauna. Therefore, EPA has less 

confidence that such highest observed 

concentrations would continue to be 

supportive of designated uses and 

natural populations of aquatic flora and 

fauna if maintained in all streams at all 

times. 

Alternatively, the selection of a much 

lower percentile, such as a 

representation of the central tendency of 

the distribution (i.e., 50th percentile), 

would not be appropriate because it 

would imply that half of the conditions 

observed at reference sites would not 

support designated uses and natural 

populations of aquatic flora and fauna, 

when EPA’s analysis indicates that they 

do. For the West Central Region, EPA 

relied on the75th percentile due to the 

Agency’s lower level of confidence as 

discussed in more detail in the previous 

section. By setting the criteria at these 

concentrations, EPA believes the 

designated uses, i.e., natural 

populations of aquatic flora and fauna, 

will be protected when these 

concentrations are attained in the 

majority of the streams in the regions. 

For those streams that are shown to 

accommodate or require higher or lower 

concentrations, the SSAC provision is 

provided in EPA’s rule as discussed in 

Section III.C.5. 

EPA has concluded, after its 

reevaluation of the reference condition 

data set and the resulting reference site 

data distributions of annual average TN 

and TP concentrations that EPA 

continues to have confidence that the 

upper percentile of annual average 

nutrient concentrations observed in the 

reference sites will support designated 

uses and natural populations of aquatic 

flora and fauna. As explained in the 

prior section, based on its evaluation of 

available scientific data and 

information, EPA used its best 

professional judgment and published 

guidance to conclude that TN and TP 

concentrations in excess of these values 

are not likely to protect designated uses 

and natural populations of aquatic flora 

and fauna. Additionally, as discussed in 

a subsequent section, EPA’s review of 

additional lines of evidence from the 

available scientific data and 

information, including past scientific 

analyses, new analyses, and the peerreviewed scientific literature, all 

support the conclusion that harmful, 

adverse effects on natural populations of 

aquatic flora and fauna from excess 

nitrogen and phosphorus are more 

likely to occur if concentrations increase 

above the proposed streams criteria set 

at these upper percentiles of reference 

conditions. 

3. Harmful, Adverse Effects Due to 

Exceedence of EPA’s Proposed Streams 

Criteria 

Additional lines of evidence from 

empirical stressor-response analyses 

and the peer-reviewed scientific 

literature, which indicate that harmful, 

adverse effects are likely to occur to 

natural populations of aquatic flora and 

fauna due to exceedances of the 

proposed streams criteria,54 support 

EPA’s conclusion that the upper 

percentile of the reference condition 

data distribution is the appropriate 

nutrient criterion-magnitude for 

Florida’s streams. 

In developing this proposal, EPA 

reviewed the empirical, stressorresponse analyses between nutrients 

and different biological response 

indicators (e.g., algal biomass, SCI) 

conducted prior to promulgation of the 

December 2010 final rule, and also 

reviewed any new analyses. The results 

of these analyses support the Agency’s 

conclusion that harmful, adverse effects 

to natural populations of aquatic flora 

and fauna are likely to occur if TN and 

TP concentrations increase above the 

proposed streams criteria.55

Three technical support documents 56

in the Agency’s original rulemaking 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74997 

Inland Waters. U.S. EPA 2009; Technical Support 

Document for U.S. EPA’s Proposed Rule for 

Numeric Nutrient Criteria for Florida’s Inland 

Surface Fresh Waters. U.S. EPA 2010. 

57Biggs, B.J.F. 2000. Eutrophication of streams 

and rivers: Dissolved nutrient-chlorophyll 

relationships for benthic algae. Journal of the North 

American Benthological Society 19:17–31. 

58Bothwell, M.L. 1985. Phosphorus limitation of 

lotic periphyton growth rates: An intersite 

comparison using continuous-flow troughs 

(Thompson River system, British Columbia). 

Limnology and Oceanography 30:527–542. 

59Bourassa, N., and A. Cattaneo. 1998. Control of 

periphyton biomass in Laurentian streams 

(Quebec). Journal of the North American 

Benthological Society 17:420–429. 

60Bowling, L.C., and P.D. Baker. 1996. Major 

cyanobacterial bloom in the Barwon-Darling River, 

Australia, in 1991, and underlying limnological 

conditions. Marine and Freshwater Research 

47:643–657. 

61Cross, W.F., J.B. Wallace, A.D. Rosemond, and 

S.L. Eggert. 2006. Whole-system nutrient 

enrichment increases secondary production in a 

detritus-based ecosystem. Ecology 87:1556–1565. 

62 Dodds, W.K., and D.A. Gudder. 1992. The 

ecology of Cladophora. Journal of Phycology 

28:415–427. 

63Elwood, J.W., J.D. Newbold, A.F. Trimble, and 

R.W. Stark. 1981. The limiting role of phosphorus 

in a woodland stream ecosystem: Effects of P 

enrichment on leaf decomposition and primary 

producers. Ecology 62:146–158. 

64Francoeur, S.N. 2001. Meta-analysis of lotic 

nutrient amendment experiments: Detecting and 

quantifying subtle responses. Journal of the North 

American Benthological Society 20:358–368. 

65Moss, B., I. Hooker, H. Balls, and K. Manson. 

1989. Phytoplankton distribution in a temperate 

floodplain lake and river system. I. Hydrology, 

nutrient sources and phytoplankton biomass. 

Journal of Plankton Research 11:813–835. 

66Mulholland, P.J. and J.R. Webster. 2010. 

Nutrient dynamics in streams and the role of J– 

NABS. Journal of the North American Benthological 

Society 29: 100–117. 

67Peterson, B.J., J.E. Hobbie, A.E. Hershey, M.A. 

Lock, T.E. Ford, J.R. Vestal, V.L. McKinley, M.A.J. 

Hullar, M.C. Miller, R.M. Ventullo, and G.S. Volk. 

1985. Transformation of a tundra river from 

heterotrophy to autotrophy by addition of 

phosphorus. Science 229:1383–1386. 

68Rosemond, A.D., P.J. Mulholland, and J.W. 

Elwood. 1993. Top-down and bottom-up control of 

stream periphyton: Effects of nutrients and 

herbivores. Ecology 74:1264–1280. 

69Rosemond, A.D., C.M. Pringle, A. Ramirez, and 

M.J. Paul. 2001. A test of top-down and bottom-up 

control in a detritus-based food web. Ecology 

82:2279–2293. 

70Rosemond, A.D., C.M. Pringle, A. Ramirez, M.J. 

Paul, and J.L. Meyer. 2002. Landscape variation in 

phosphorus concentration and effects on detritusbased tropical streams. Limnology and 

Oceanography 47:278–289. 71Slavik, K., B.J. Peterson, L.A. Deegan, W.B. 

Bowden, A.E. Hershey, J.E. Hobbie. 2004. Long-term 

responses of the Kuparuk River ecosystem to 

phosphorus fertilization. Ecology 85:939–954. 

72 Dodds, W.K. 2006. Eutrophication and trophic 

state in rivers and streams. Limnol. Oceanogr. 

51(1):671–680. 

73Robertson, D.M., B.M. Weigel, and D.J. 

Graczyk. 2008. Nutrient concentrations and their 

relations to the biotic integrity of nonwadeable 

rivers in Wisconsin. U.S. Geological Survey and 

U.S. Department of the Interior professional paper 

1754; Robertson, D.M., D.J. Graczyk, P.J. Garrison, 

L. Wang, G. LaLiberte, and R. Bannerman. 2006. 

Nutrient concentrations ant their relations to the 

biotic integrity of wadeable streams in Wisconsin. 

U.S. Geological Survey and U.S. Department of the 

Interior professional paper 1722. 

record and the technical support 

document associated with this proposed 

rule include scientific analyses 

demonstrating that harmful changes or 

adverse effects are more likely to 

happen as TN and TP concentrations 

increase above EPA’s proposed streams 

criteria. 

The effects of TN and TP on an 

aquatic ecosystem are well understood 

and documented. There is a substantial 

and compelling scientific basis for the 

conclusion that excess TN and TP will 

have adverse effects on 

streams.57 58 59 60 61 62 63 64 65 66 67 68 69 70 71

As discussed in Section II, excess 

nitrogen and phosphorus in streams, 

like other aquatic ecosystems, increase 

vegetative growth (plants and algae), 

and change the assemblage of plant and 

algal species present in the system. 

Notwithstanding the difficulty 

associated with identifying the TN and 

TP concentrations that are known to 

protect against harmful effects by 

protecting and maintaining a given 

biological response at a protective level 

measured in Florida’s streams, the 

available science clearly indicates that 

adverse responses to nutrient pollution 

occur. 

For example, excess nitrogen and 

phosphorus promote the increased 

growth of opportunistic and short-lived 

plant species that die quickly, leaving 

more dead vegetative material available 

for consumption by lower tropic levels. 

Excess nitrogen and phosphorus can 

promote the increased growth of less 

palatable nuisance algae species that 

result in less food available for filter 

feeders. These negative changes can 

alter the habitat structure by covering 

the stream or river bed with periphyton 

(attached algae), and/or clogging the 

water column with phytoplankton 

(floating algae), both of which can 

adversely affect natural or desirable 

aquatic life. Excess nitrogen and 

phosphorus can also lead to the 

increased growth of algae that produce 

toxins that can be toxic to fish, 

invertebrates, and humans. Chemical 

characteristics of the water, such as pH 

and concentrations of dissolved oxygen 

(DO), can be affected by excess nitrogen 

and phosphorus, leading to low DO 

conditions and hypoxia that cannot 

support aquatic life. All of these adverse 

effects change the balance of the natural 

populations of aquatic flora and fauna 

expected to occur. In turn, each of these 

negative changes can lead to other 

negative changes in the stream 

community and ecology and, ultimately, 

to harmful, adverse effects to the overall 

function of the linked aquatic ecosystem 

and subsequent failure to support 

designated uses. 

In light of this well-established 

paradigm, EPA reviewed the latest peerreviewed scientific literature and found 

many nutrient thresholds where 

harmful, adverse effects in streams are 

coincident with or occur above EPA’s 

proposed streams criteria. In these 

examples, there are regional and sitespecific factors (e.g., precipitation, 

temperature, flow) that may account for 

the differences in the nutrient threshold 

concentrations, but, in general, EPA’s 

proposed streams criteria are consistent 

with the range of thresholds of harmful, 

adverse effects documented in the peerreviewed scientific literature. For 

example, TN and TP concentrations 

ranging between 0.659–0.714 mg/L and 

0.048–0.071 mg/L, respectively, have 

been associated with moderate levels of 

productivity, or mesotrophy, in rivers 

and streams.72 Higher concentrations of 

nutrients lead to eutrophy, which is 

what numeric nutrient criteria, in 

general, are intended to prevent. As 

another example, increases in 

suspended chlorophyll-a, decreases in 

water clarity, and decreases in 

macroinvertebrate and fish abundance 

in Wisconsin rivers and streams were 

observed over a TN and TP range of 0.5– 

2.0 mg/L and 0.035–0.150 mg/L, 

respectively.73 Adverse increases in 

productivity (i.e., organic matter 

supply), also known as eutrophication, 

can negatively alter the metabolism of 

aquatic systems and lead to adverse 

environmental conditions such as 

depressed dissolved oxygen 

concentrations that cannot support 

aquatic life. These conditions, in turn, 

can harm macroinvertebrate and fish 

communities, creating changes to the 

balance of the natural populations of 

these aquatic fauna. The TN and TP 

concentrations above which these 

adverse effects are more likely to occur 

are coincident with EPA’s proposed 

streams criteria TN and TP 

concentrations. 

Many of the thresholds reported in 

the latest peer-reviewed scientific 

literature vary in comparison to the 

proposed criteria for Florida’s streams 

due to site- and regional-specific factors 

such as climate and stream flow. 

However, the nutrient concentrations 

reported in the literature demonstrate 

and confirm that harmful, adverse 

effects occur as TN and TP 

concentrations increase in streams and 

are likely to occur as concentrations 

increase above the criteria 

concentrations that EPA has selected for 

Florida streams. EPA considers the 


tkelley on DSK3SPTVN1PROD with 
74998 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

74Technical Support Document: Development of 

Numeric Nutrient Criteria for Florida Lakes, Spring 

Vents and Streams. Florida Department of 

Environmental Protection, Standards and 

Assessment Section, 2012, p. 110–111. 

75Technical Support Document for EPA’s 

Proposed Rule for Numeric Nutrient Criteria to 

Protect Florida’s Streams and Downstream Lakes. 

USEPA, 2012. 

76Technical Support Document for U.S. EPA’s 

Final Rule for Numeric Criteria for Nitrogen/ 

Phosphorus Pollution in Florida’s Inland Surface 

Fresh Waters. U.S. EPA 2010, pp. 49–51. 

77Technical Support Document for U.S. EPA’s 

Final Rule for Numeric Criteria for Nitrogen/ 

Phosphorus Pollution in Florida’s Inland Surface 

Fresh Waters. U.S. EPA 2010. 

78Technical Support Document: Development of 

Numeric Nutrient Criteria for Florida Lakes and 

Streams. Florida Department of Environmental 

Protection, Standards and Assessment Section, June 

2009, p. 96. 

association of the TN and TP 

concentrations with documented 

harmful, adverse effects to be 

compelling and supportive of this 

proposed rule. For a complete list of 

comparable nutrient thresholds reported 

in the scientific literature, see ‘‘EPA 

Proposed Rule TSD for Florida’s 

Streams and DPVs for Unimpaired 

Lakes’’ (Chapter 1, Scientific Literature). 

4. Additional Evidence of Harmful 

Effects in Florida Streams Above EPA’s 

Proposed Criteria 

In addition to reviewing the peerreviewed scientific literature mentioned 

in the prior section, EPA reviewed 

analyses conducted by FDEP that 

demonstrated that excess nitrogen and 

phosphorus adversely affect streams. In 

its technical support document for 

deriving numeric nutrient criteria, FDEP 

stated: ‘‘The results of the analyses 

generally indicate that many of the 

biological measures evaluated exhibit a 

statistically significant adverse response 

to nutrient pollution; however, the 

relationships between the biological 

response variables and nutrient levels 

were confounded by numerous other 

factors such as color, pH, conductivity, 

and canopy cover. While DEP believes 

the effect of nutrients on the biological 

communities is not clear enough to be 

used as the sole basis for establishing 

numeric nutrient criteria, the observed 

relationships between nutrients and the 

various biological measures demonstrate 

the need for nutrient criteria to prevent 

adverse biological effects in Florida 

streams. While the analysis in this 

chapter did not produce numeric 

thresholds that could be used as water 

quality criteria, the relationships that 

were determined, while relatively weak, 

do support the values derived using the 

Nutrient Benchmark Approach. Both the 

analysis of the Rapid Periphyton Survey 

(regarding probability of increased algal 

thickness) and the analysis of the 

second change point in the stream 

periphyton response to nutrients 

indicate that the biological response to 

nutrient enrichment will generally 

occur at levels higher than the values 

generated using the Benchmark 

Distribution Approach’’.74

EPA has reviewed the available 

periphyton data in Florida streams and 

has verified that a harmful, adverse 

increase in the amount of algal coverage 

(> 6 mm thick over more than 25% of 

the stream bottom) will be substantially 

more likely as concentrations of TN and 

TP increase above EPA’s proposed 

numeric streams criteria. This adverse 

biological response represents harmful, 

adverse changes to the natural 

populations of aquatic flora that occur 

as concentrations increase above the 

protective values in EPA’s proposed 

numeric streams criteria. For more 

information on the likelihood of 

increases in the amount of algal 

coverage at varying concentrations of 

TN and TP, see ‘‘EPA Proposed Rule 

TSD for Florida’s Streams and DPVs for 

Unimpaired Lakes’’ (Chapter 1, StressorResponse Relationships). 

EPA also reviewed the available 

stream fauna data, specifically FDEP’s 

multi-metric index of stream 

macroinvertebrates (e.g., insect larvae, 

worms), which FDEP developed as an 

indicator of stream health.75 The index, 

called the stream condition index (SCI), 

is a generic index, indicating the 

aggregate impact of human disturbance 

on stream macroinvertebrates. It 

measures the number and diversity of 

various invertebrate taxa (i.e., 

individuals sharing the same general 

identity) and was not designed to be 

uniquely responsive to nutrients, but 

nutrients may contribute to adverse 

impacts. The SCI score for a given 

sample can range between 0 and 100, 

where 0 represents a highly degraded 

community and 100 represents the 

highest quality community. EPA reanalyzed Florida-specific stream data 

and found that stream 

macroinvertebrate community index 

scores predictably decrease below a 

level EPA and FDEP consider 

biologically healthy as a function of 

increasing TN and TP concentrations. 

Furthermore, when ambient TN or TP 

concentrations were greater than EPA’s 

proposed criteria, SCI scores indicated 

that, on average, faunal populations 

were imbalanced. For example, SCI 

scores ranged from 30 to 50 when 

ambient TP concentrations were 

equivalent to EPA’s proposed TP criteria 

for each of the five stream NWRs. A SCI 

score of 50 has been identified by 

scientific experts to be associated with 

the loss of rare native taxa and with the 

replacement of some sensitive or 

ubiquitous taxa by more pollutant 

tolerant taxa—this is a level where there 

is some negative change in the natural 

populations of aquatic fauna, but is still 

considered a score that represents a 

biologically healthy condition; whereas 

a SCI score of 30 has been associated 

with unbalanced distribution of major 

groups from what is expected—this is a 

level where there is a profound harmful 

change in the natural populations of 

aquatic fauna.76

EPA applied the average SCI of 40 as 

one of many screening factors in 

selecting reference sites that were 

considered to be biologically healthy. 

EPA believes an average SCI of 40 is a 

level where there is some negative 

change in the natural populations of 

aquatic fauna, but before profound 

harmful change has occurred.77

Following the court’s remand of the 

streams criteria, EPA evaluated data in 

Florida streams and found that when 

the nutrient concentrations exceed 

EPA’s proposed numeric streams 

criteria, the SCI score is 45–70% more 

likely to be less than 50, meaning that 

it is more likely that there will be some 

negative change as TN and TP 

concentrations increase above EPA’s 

proposed streams criteria. In addition, 

when the nutrient concentrations 

exceed EPA’s proposed numeric streams 

criteria, the SCI score is 17–34% more 

likely to be less than 30, meaning that 

it is more likely that there will be 

profound harmful change. Thus, the 

concentrations of EPA’s proposed 

numeric streams criteria represent levels 

above which harmful change begins to 

be more likely. This adverse biological 

response represents harmful, adverse 

changes to the natural populations of 

aquatic fauna that occur at 

concentrations above the protective 

values in EPA’s proposed numeric 

streams criteria. For more information 

on the likelihood of SCI scores at 

varying concentrations of TN and TP, 

see ‘‘EPA Proposed Rule TSD for 

Florida’s Streams and DPVs for 

Unimpaired Lakes’’ (Chapter 1, StressorResponse Relationships). 

When considered together and in light 

of the conclusions drawn by FDEP,78 the 

previous and new analyses all indicate 

that a predictable harmful, adverse 

change (i.e., increase in TN and TP 

concentrations causing imbalance in 

natural populations of aquatic flora or 

fauna) would likely occur if levels of TN 

and TP exceed the proposed streams 

criteria. 


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5. EPA’s Rule Includes the SSAC 

Provision and Process To Address Any 

Uncertainties Associated With the 

Reference Condition Approach 

EPA recognizes the uncertainties 

associated with setting numeric nutrient 

criteria based on the reference condition 

approach. The case law is clear, 

however, that in protecting human 

health and the environment, EPA can 

act in light of scientific uncertainty and 

choose to act proactively. American Iron 

& Steel Institute, 115 F.3d 979, (D.C. Cir. 

1997) (‘‘[I]t is within EPA’s discretion to 

decide that in the wake of uncertainty, 

it would be better to give the values a 

conservative bent rather than err on the 

other side.’’). While it was appropriate 

for EPA to act to adopt numeric nutrient 

criteria for streams based on the 

reference condition approach even in 

the face of some scientific uncertainty, 

EPA also recognized that site-specific 

water quality conditions may make it 

appropriate to adopt either more or less 

stringent numeric nutrient criteria for a 

specific water body or set of water 

bodies. To address those situations, and 

as discussed previously in this proposal, 

EPA’s December 2010 final rule 

authorized and established a specific 

administrative process for adopting, 

site-specific alternative criteria 

(‘‘SSAC’’). 

D. Proposed Numeric Criteria for the 

State of Florida’s Streams 

EPA is proposing numeric nutrient 

criteria for TN and TP in five 

geographically distinct watershed 

regions of Florida’s streams not covered 

by the State of Florida’s Rule classified 

as Class I or III waters under Florida law 

(Section 62–302.400, F.A.C.). The 

proposed TN and TP criteria are listed 

in Table B–1. The proposed criteria are 

the same criteria published in EPA’s 

final rule signed on November 14, 2010 

and published at 75 FR 75762 

(December 6, 2010). For purposes of this 

proposed rule and in response to the 

Court’s February 18, 2012 order, EPA is 

proposing these criteria values and 

explaining how the proposed criteria 

will ensure the protection of the 

Florida’s Class I and III designated uses 

by avoiding harmful changes in TN and 

TP concentrations that would result in 

an imbalance of natural populations of 

aquatic flora or fauna. EPA requests 

comment on its proposed numeric 

nutrient criteria for Florida’s streams 

and supporting rationale. 

TABLE B–1—EPA’S PROPOSED NUMERIC CRITERIA FOR FLORIDA STREAMS NOT COVERED BY THE STATE OF FLORIDA’S

RULE

Nutrient watershed region 

Instream protection value criteria 

TN (mg/L) * TP (mg/L) * 

Panhandle West a .................................................................................................................................... 0.67 0.06 

Panhandle East b ..................................................................................................................................... 1.03 0.18 

North Central c ......................................................................................................................................... 1.87 0.30 

West Central d .......................................................................................................................................... 1.65 0.49 

Peninsula e ............................................................................................................................................... 1.54 0.12 

Watersheds pertaining to each Nutrient Watershed Region (NWR) were based principally on the NOAA coastal, estuarine, and fluvial drainage 

areas with modifications to the NOAA drainage areas in the West Central and Peninsula Regions that account for unique watershed geologies. 

For more detailed information on regionalization and which WBIDs pertain to each NWR, see the Technical Support Document. aPanhandle West region includes: Perdido Bay Watershed, Pensacola Bay Watershed, Choctawhatchee Bay Watershed, St. Andrew Bay Watershed, Apalachicola Bay Watershed. bPanhandle East region includes: Apalachee Bay Watershed, and Econfina/Steinhatchee Coastal Drainage Area. 

c North Central region includes the Suwannee River Watershed. 

dWest Central region includes: Peace, Myakka, Hillsborough, Alafia, Manatee, Little Manatee River Watersheds, and small, direct Tampa Bay 

tributary watersheds south of the Hillsborough River Watershed. ePeninsula region includes: Waccasassa Coastal Drainage Area, Withlacoochee Coastal Drainage Area, Crystal/Pithlachascotee Coastal 

Drainage Area, small, direct Tampa Bay tributary watersheds west of the Hillsborough River Watershed, Sarasota Bay Watershed, small, direct 

Charlotte Harbor tributary watersheds south of the Peace River Watershed, Caloosahatchee River Watershed, Estero Bay Watershed, Kissimmee River/Lake Okeechobee Drainage Area, Loxahatchee/St. Lucie Watershed, Indian River Watershed, Daytona/St. Augustine Coastal 

Drainage Area, St. John’s River Watershed, Nassau Coastal Drainage Area, and St. Mary’s River Watershed. 

* For a given waterbody, the annual geometric mean of TN or TP concentrations shall not exceed the applicable criterion concentration more 

than once in a three-year period. 

E. Proposed Numeric Criteria To Ensure 

the Downstream Protection of the State 

of Florida’s Unimpaired Lakes 

Similar to the Court’s opinion 

regarding EPA’s streams criteria, the 

Court found that EPA had not explained 

in sufficient detail how exceedances of 

the default DPV for unimpaired lakes 

would lead to ‘‘harmful effects’’ in the 

downstream lake. Order at 70. Thus, the 

Court invalidated the option for 

establishing default DPVs to protect 

unimpaired lakes in EPA’s final rule 

and remanded it to the Agency for 

further action. Order at 85. This 

proposed rule provides three options for 

establishing a default DPV for 

unimpaired lakes and clarifies that the 

proposed options would ensure the 

attainment and maintenance of the 

numeric lake criteria so as to prevent 

harmful effects from occurring in a 

downstream lake. 

EPA is proposing default DPV 

approaches for TN and TP that would 

provide for the attainment and 

maintenance of downstream water 

quality standards for Florida’s 

unimpaired lakes pursuant to 40 CFR 

131.10(b) when modeling approaches 

are unavailable. For this proposed rule, 

EPA is providing for public comment 

three default approaches available for 

use when modeling cannot be 

performed to derive DPVs that ensure 

the attainment and maintenance of the 

numeric lake criteria that, in turn, 

protect the designated uses in Florida’s 

lakes. The default approaches would be 

applicable to streams that flow into 

unimpaired lakes, but could also be 

used for streams that flow into impaired 

lakes. The default approaches would 

supplement EPA’s promulgated DPVs 

for the protection of downstream lakes, 

which are codified at 40 CFR 

131.43(c)(2)(ii), consistent with the 

February 18, 2012 Court order. Order at 

85. 

Briefly, EPA’s final rule provided that 

DPVs apply to tributary streams at the 

point of entry to the lake, also referred 

to as the pour point. The final rule 

specified that where sufficient data and 

information are available, DPVs may be 

established through application of the 

BATHTUB model. See 40 CFR 

131.43(c)(2)(ii)(B). EPA’s final rule also 

specifically authorizes FDEP or EPA to 


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79 IWR Run 40. 

use a model other than BATHTUB when 

either FDEP or EPA determines that it 

would be appropriate to use another 

scientifically defensible modeling 

approach that results in the protection 

of downstream lakes. 40 CFR 

131.43(c)(2)(ii)(B). A lake-specific DPV 

derived through such modeling 

provides the most refined DPV for a 

stream at the pour point. Where 

sufficient information is not available to 

derive TN and/or TP DPVs using water 

quality modeling and the lake does not 

attain the applicable TN, TP, and/or 

chlorophyll-a criteria or is un-assessed, 

criteria values for TN and/or TP that 

apply to that lake are to be used as the 

default DPVs. 40 CFR 131.43(c)(2)(ii)(D). 

See id. EPA believes that this approach, 

which the Court upheld, is protective 

because the TN and TP concentrations 

entering the lake are unlikely to need to 

be lower than the criterion 

concentration necessary to be protective 

of the lake itself. 

In the final rule, water quality 

modeling was EPA’s preferred approach 

for the derivation of DPVs. Water 

quality modeling is the most rigorous 

and most data-demanding method and 

results in the most refined DPVs. The 

default methods were intended only for 

use where there is insufficient data to 

use a model. While using a default 

option to develop DPVs requires less 

data, it also generally leads to more 

stringent criteria to account for the 

uncertainties associated with these less 

refined approaches. 

The rule proposed today provides 

three options for a default DPV that 

would apply in cases when there are 

insufficient data to use a water quality 

model for any unimpaired lake for 

which EPA has promulgated numeric 

nutrient criteria. The three default 

options EPA is proposing are not 

intended to supersede or limit the two 

approaches EPA provided in the final 

rule, codified at 40 CFR 131.43(c)(2)(ii), 

which were upheld by the Court. Order 

at pp. 69–70, 85. Rather, the default 

options are intended to provide 

flexibility in deriving a DPV in the 

situation where there is not sufficient 

information to develop a DPV using a 

water quality model. Thus, EPA views 

the proposed DPV options as 

supplemental to EPA’s other established 

approaches for deriving DPVs. All three 

options for default DPVs are designed to 

ensure that the unimpaired lake criteria 

would be attained and maintained when 

the inflowing stream’s TN and TP 

concentrations meet the DPV at the pour 

point. 

The first proposed default option 

simply utilizes the downstream lake 

criteria as the DPV applicable at the 

pour point to the lake. EPA refers 

readers to 40 CFR § 131.43(c)(1) for the 

applicable TN and TP lake criteria, 

which would serve as the DPV. EPA 

believes that this proposed option is 

protective because it is unlikely that the 

TN and TP concentrations entering the 

lake need to be lower than the criterion 

concentration necessary to be protective 

of the lake itself. 

The second proposed default option 

uses Florida-specific stream and lake 

data to empirically link the DPV to the 

attainment and maintenance of Florida’s 

lake criteria in each of the three lake 

classes. This option utilizes Florida’s 

extensive stream and lake data to 

compute a linear regression model, 

which relates the inflowing stream TN 

and TP concentrations to the TN and TP 

concentrations in the downstream lake. 

EPA developed a linear regression 

model for each of the three lake classes 

based on EPA’s lake dataset provided in 

the final rule and Florida’s stream data 

from its statewide water quality 

database.79

The linear regression equation is used 

to predict what the inflowing stream’s 

TN and TP concentrations need to be in 

order for the lake concentrations to meet 

the lake criteria EPA established in the 

December 6, 2010 final rule. EPA’s 

calculated TN and TP DPVs for each 

lake class using this approach are 

provided in Table C–1. The approach is 

described in further detail in the EPA 

Proposed Rule TSD for Florida’s 

Streams and DPVs for Unimpaired 

Lakes. 

For this proposed option, in 

circumstances where additional lake 

and stream data are available, the linear 

regression equation could be updated 

using this new data and used to 

calculate default DPVs that are reflective 

of newer, more site-specific information. 

TABLE C–1—EPA’S PROPOSED DPVS

FOR EACH LAKE CLASS USING THE

SECOND DEFAULT APPROACH

Lake class 

Default option 2 

TN DPV 

(mg/L) 

TP DPV 

(mg/L) 

Colored Lakes .............. 1.59 0.11 

Clear, High Alkaline 

Lakes ......................... 1.40 0.09 

Clear, Low Alkaline 

Lakes ......................... 0.87 0.06 

The third proposed default option 

utilizes stream data that is spatially 

linked to and temporally coincident 

with the downstream lake when it is 

attaining the applicable lake criteria. 

This proposed option is a reference 

condition-based DPV approach that is 

conditioned upon the downstream lake 

attaining all applicable numeric nutrient 

criteria, TN, TP, and chlorophyll-a, 

including the duration and frequency 

components of the applicable lake 

criteria. To compute a reference 

condition-based DPV, the period of 

record during which the downstream 

lake was attaining all applicable criteria 

must be determined. At a minimum, 

and pursuant to 40 CFR 131.43(c)(1), the 

lake must not exceed any applicable 

numeric nutrient criteria, which are 

expressed as annual geometric means, 

more than once in a three-year period. 

If this condition is met, then a DPV for 

that lake can be computed using TN and 

TP data from the stream discharging 

into the lake coincident in time with the 

period of record when the lake was 

attaining all applicable numeric nutrient 

criteria. Because of the hydrologic link 

between streams and lakes, it follows 

that nitrogen and phosphorus 

concentrations in the stream would be 

sufficient to meet the lake criteria 

provided that the lake was meeting all 

applicable numeric nutrient criteria. In 

general, this approach is less refined 

compared to the modeling approach 

EPA promulgated at 40 CFR 

131.43(c)(1)(ii)(B) because it does not 

incorporate the water quality parameters 

and data that would be necessary to 

derive a site-specific DPV, for either TN 

or TP, using a water quality model such 

as BATHTUB. Nonetheless, EPA 

believes that the data and information 

that would support this third approach, 

in the absence of additional data that 

would support modeling, is still 

sufficient to ensure the protection of the 

downstream lake because of the 

hydrologic linkage between the stream 

and downstream lake. A DPV calculated 

under this option may be more stringent 

than a DPV calculated using a water 

quality model. This default approach is 

intended to ensure that water quality 

standards are not only restored when 

found to be impaired, but are 

maintained when found to be attained, 

consistent with the Clean Water Act. 

Higher levels of TN and/or TP may be 

allowed in watersheds where it is 

demonstrated that such higher levels 

will fully protect the lake’s water 

quality standard. To the extent that it is 

determined that the default DPV for a 

given lake tributary is over protective, 

applying a water quality model as set 

out in EPA’s preferred approach will 

result in a more refined definition of the 

DPV for that tributary. 

As discussed earlier, the calculation 

of the DPV using the three default 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 75001 

80Federal Register, Vol. 75, No. 233, 75762, 

December 6, 2010. Water Quality Standards for the 

State of Florida’s Lakes and Flowing Waters. 

options requires that the lake criteria be 

explicitly considered. The applicable 

numeric lake criteria can be found at 40 

CFR 131.43(c)(1). EPA recognizes that 

lake criteria may be modified pursuant 

to the modified lake criteria provision at 

40 CFR 131.43(c)(1)(ii). Where lake 

criteria are modified in accordance with 

this provision, the modified criteria 

would be the applicable criteria in any 

of the three default DPV approaches. 

The duration and frequency 

components of DPV magnitudes 

computed using the proposed default 

approaches would be an annual 

geometric mean not to be exceeded 

more than once over a three-year period. 

These components of the proposed 

approaches align with the duration and 

frequency of both the numeric lake 

criteria, codified at 40 CFR 131.43(c)(1), 

and the streams criteria which are 

proposed to be codified at 40 CFR 

131.43(c)(2). 

As in the final rule, protection of 

downstream lakes using the options 

described in this proposed rule is 

accomplished through establishment of 

a DPV. The applicable criteria for 

streams that flow into downstream lakes 

include both the instream criteria for TN 

and TP and the DPV, which is a 

concentration or loading value at the 

point of entry of a stream into a 

downstream lake that ensures the 

attainment and maintenance of the 

numeric lake criteria. EPA selected the 

point of entry into the lake as the 

location to measure water quality 

because the lake responds to the input 

from the pour point, and all 

contributions from the stream network 

above this point in a watershed affect 

the water quality at the pour point. 

When a DPV is exceeded at the pour 

point, the waters that collectively 

comprise the network of streams in the 

watershed above that pour point are 

considered to not attain the DPV for 

purposes of CWA section 303(d). The 

State may identify these impaired 

waters as a group rather than 

individually. 

Contributions of TN and/or TP from 

sources in stream tributaries upstream 

of the pour point are accountable to the 

DPV because the water quality in the 

stream tributaries must result in 

attainment of the DPV at the pour point 

into the lake. The spatial allocation of 

load within the watershed is an 

important accounting step to ensure that 

the DPV is achieved at the point of entry 

into the lake. How the watershed load 

is allocated may differ based on 

watershed characteristics and existing 

sources (e.g., areas that are more 

susceptible to physical loss of nitrogen; 

location of towns, farms, and 

dischargers), so long as the DPV is met 

at the point of entry into the 

downstream lake. Where additional 

information is available, watershed 

modeling could be used to develop 

allocations that reflect hydrologic 

variability and other water quality 

considerations. For protection of the 

downstream lake, what is important is 

an accounting for nutrient pollution 

loadings on a watershed scale that 

results in meeting the DPV at the point 

of entry into the downstream lake. 

As in the December 6, 2010 final rule, 

this proposal provides that additional 

DPVs may be established in upstream 

locations to represent sub-allocations of 

the total allowable loading or 

concentration. Such sub-allocations may 

be useful where there are differences in 

hydrological conditions and/or sources 

of TN and/or TP in different parts of the 

watershed. In addition to the 

explanations provided earlier, EPA 

refers the reader to its technical support 

document associated with the December 

6, 2010 final rule for specific 

information supporting how harmful, 

adverse effects are more likely to occur 

in lakes at TN and TP concentrations 

above the established numeric lake 

criteria (Chapter 2, Derivation of EPA’s 

Numeric Nutrient Criteria for Lakes). 

EPA requests comment on the three 

proposed default approaches, including 

whether implementation of DPVs 

calculated using the default approaches 

would ensure the attainment and 

maintenance of the downstream 

numeric lake criteria in Florida’s 

unimpaired lakes. The proposed default 

DPV approaches and DPVs are aimed at 

the protection of unimpaired lakes. 

However, EPA recognizes that the 

second and third options may also be 

appropriate for the protection of 

impaired lakes and offer additional 

flexibility to the default DPV approach 

for impaired lakes, which is codified at 

40 CFR 131.43(c)(2)(ii)(D). EPA requests 

comment on applying the second and 

third default DPV options to impaired 

lakes as well as unimpaired lakes. In 

addition, EPA requests comments on 

whether the Agency should promulgate 

default DPV values in addition to 

default DPV approaches to be used in 

situations when modeling is 

unavailable. 

F. Applicability of Criteria When Final 

EPA proposes that the numeric 

nutrient criteria for Florida’s streams 

not covered by Florida’s Rule and the 

DPVs for unimpaired lakes described in 

this rule be effective for CWA purposes 

60 days after EPA publishes final 

criteria, and apply in addition to any 

other 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. 

In addition to this proposal, EPA has 

proposed to stay the December 6, 2010 

final rule 80 (75 FR 75762) to November 

15, 2013 (See http://water.epa.gov/ 

lawsregs/rulesregs/florida_inland.cfm). 

This date should closely coincide with 

the effective date of this proposed rule, 

which is approximately 60 days 

following the publication of the final 

rule (i.e., shortly after August 31, 2013). 

For water bodies that Florida has 

designated as Class I and III, 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, and 

establishment of TMDLs. The proposed 

criteria in this rule, when finalized, 

would be subject to Florida’s general 

rules of applicability to the same extent 

as are other State-adopted and/or 

federally-promulgated criteria for 

Florida waters. Furthermore, states have 

discretion to adopt general policies that 

affect the application and 

implementation of WQS (40 CFR 

131.13). There are many applications of 

criteria in Florida’s water quality 

programs. Therefore, EPA believes that 

it is not necessary for purposes of this 

proposed rule to enumerate each of 

them, nor is it necessary to restate any 

otherwise generally applicable 

requirements. 

It is important to note that no existing 

TMDL for waters in Florida will be 

rescinded or invalidated as a result of 

finalizing this proposed rule, nor will 

this proposed rule when finalized have 

the effect of withdrawing any prior EPA 

approval of a TMDL in Florida. Neither 

the CWA nor EPA regulations require 

TMDLs to be completed or revised 

within any specific time period after a 

change in water quality standards 

occurs. TMDLs are typically reviewed as 

part of states’ ongoing water quality 

assessment programs. Florida may 

review TMDLs at its discretion based on 

the State’s priorities, resources, and 

most recent assessments. NPDES 

permits are subject to five-year permit 

cycles, and in certain circumstances are 

administratively continued beyond five 

years. In practice, States often prioritize 

their administrative workload in 

permits. This prioritization could be 

coordinated with TMDL review. 


tkelley on DSK3SPTVN1PROD with 
75002 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

Because current nutrient TMDLs were 

established to protect Florida’s waters 

from the effects of nitrogen and 

phosphorus pollution, the same goal as 

EPA’s numeric nutrient criteria, the 

Agency believes that, absent specific 

new information to the contrary, it is 

reasonable to presume that basing 

NPDES permit limits on those TMDLs 

will result in effluent limitations as 

stringent as necessary to meet the 

federal numeric nutrient 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)). 

EPA is proposing numeric nutrient 

criteria for flowing waters outside the 

South Florida Region not covered by the 

State of Florida’s Rule and DPVs for 

unimpaired lakes to meet the Agency’s 

obligations under the Consent Decree. 

EPA notes if Florida’s Rule will not take 

effect due to subsection 62–302.531(9), 

F.A.C., EPA would expect to finalize the 

criteria in this proposed rulemaking for 

all flowing waters (i.e., streams) located 

outside of the South Florida Region that 

are designated as either Class I or Class 

III. EPA solicits comment on this 

potential outcome. EPA recognizes that 

Florida has exercised the option to 

adopt and submit to EPA numeric 

nutrient criteria for some of the State’s 

Class I and many of the State’s Class III 

waters and EPA has approved those 

criteria as consistent with CWA section 

303(c) and implementing regulations at 

40 CFR part 131. Consistent with CWA 

section 303(c)(4), EPA does not intend 

to proceed with the final rulemaking for 

those waters for which EPA has 

approved Florida’s criteria, provided 

that the newly approved State water 

quality standards will be allowed to go 

into effect, FDEP will be allowed to 

implement them consistent with their 

Implementation Document, and, with 

respect to numeric DPVs, that the 

district court modifies the Consent 

Decree consistent with EPA’s amended 

Determination that numeric DPVs are 

not necessary to meet CWA 

requirements in Florida. 

EPA is not obligated under the 

Consent Decree to promulgate 

regulations setting forth numeric 

nutrient criteria in all Class I and III 

lakes and flowing waters if the State of 

Florida submits and EPA approves new 

or revised WQS for these waterbodies. 

EPA approved revisions on November 

30, 2012 and is in discussions with 

Florida regarding waters not covered by 

the State’s numeric nutrient 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 when EPA 

is assured that 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 are in effect. 

Among the newly-approved state 

water quality standards are numeric 

criteria for nutrients that apply to a set 

of streams, as that term is specifically 

defined in the newly-approved state 

water quality standards. Under the 

Consent Decree, EPA is relieved of its 

obligation to propose numeric criteria 

for nutrients after FDEP submits and 

EPA approves new or revised water 

quality standards. Thus, under normal 

circumstances, EPA would be clearly 

relieved of its obligation to propose 

numeric criteria for nutrients Florida 

covered in its newly-approved state 

water quality standards. EPA notes that 

a provision included in Florida’s Rule, 

specifically subsection 62–302.531(9), 

F.A.C., casts some doubt as to whether 

the newly approved state water quality 

standards will go into effect if EPA 

proposes and promulgates numeric 

nutrient criteria for streams not covered 

by the newly approved State water 

quality standards. Therefore, it is 

unclear whether an EPA’s proposal to 

‘‘gap fill’’, or establish numeric criteria 

for nutrients for Florida streams that 

FDEP does not cover in its Rule, would 

trigger 62–302.531(9), F.A.C. and result 

in Florida’s streams criteria not taking 

effect. 

In addition, due to a recent 

administrative challenge filed in the 

State of Florida Department of 

Administrative Hearings, there is 

uncertainty as to whether FDEP will be 

able to implement its newly approved 

state water quality standards consistent 

with FDEP’s ‘‘Implementation of 

Florida’s Numeric Nutrient Standards’’ 

(Implementation Document). Thus, EPA 

approved portions of Florida’s new or 

revised water quality standards subject 

to the State being able to implement 

them as provided in its Implementation 

Document. If, as a result of legal 

challenge, FDEP is unable to implement 

its Rule as provided in its 

Implementation Document, EPA would 

intend to revisit its November 30, 2012 

approval of Florida’s new or revised 

water quality standards. EPA has 

therefore reserved its authority to 

withdraw or modify that approval. 

In light of the above, EPA seeks 

comment on finalizing a rule that 

applies EPA’s streams criteria to streams 

meeting EPA’s definition of ‘‘stream’’ 

that are not covered under Florida’s 

numeric interpretation of narrative 

nutrient criteria at 62–302.531(2)(c), 

F.A.C. This would serve to fill gaps in 

coverage if Florida’s streams criteria are 

in effect, or apply to all streams if 

Florida’s streams criteria are not in 

effect for any reason, including those 

mentioned above. EPA’s understanding 

is that it is obligated to propose numeric 

criteria in streams not covered by 62– 

302.531(2)(c) F.A.C. under the consent 

decree. EPA acknowledges that it is 

possible that there may be approaches 

that are similarly protective of 

designated uses in a subset of the 

uncovered Class III waters and seeks 

comment on alternatives. 

Finally, as described in EPA’s 

November 30, 2012 approval of 

Florida’s new or revised water quality 

standards, while EPA believes that the 

provisions addressing downstream 

protection will provide for quantitative 

approaches to ensure the attainment and 

maintenance of downstream waters 

consistent with 40 CFR 131.10(b), the 

provisions themselves, however, do not 

consist of numeric values. Because EPA 

is currently subject to a Consent Decree 

deadline to sign a rule proposing 

numeric downstream protection values 

(DPVs) for Florida by November 30, 

2012, EPA is proposing numeric DPVs 

to comply with the Consent Decree. 

However, EPA has amended its January 

2009 determination to specify that 

numeric criteria for downstream 

protection are not necessary and that 

quantitative approaches designed to 

ensure the attainment and maintenance 

of downstream water quality standards, 

such as those established by Florida, are 

sufficient to meet CWA requirements. 

As such, EPA will ask the court to 

modify the Consent Decree consistent 

with the Agency’s amended 

determination, i.e., to not require EPA to 

promulgate numeric DPVs for Florida. 

Accordingly, EPA approved the State’s 

downstream protection provisions 

subject to the district court modifying 

the Consent Decree to not require EPA 

to promulgate numeric DPVs for 

Florida. If the district court agrees to so 

modify the Consent Decree, EPA will 

not promulgate numeric DPVs for 

Florida. However, if the district court 

declines to so modify the Consent 

Decree, EPA would intend to 

promulgate numeric DPVs for Florida 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 75003 

and would also expect to revisit its 

November 30, 2012 approval of the State 

Rule’s downstream protection 

provisions to modify or withdraw its 

approval. Therefore, EPA has also 

reserved its authority to do so in its 

approval document. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory 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 

Executive Orders 12866 and 13563 (76 

FR 3821, January 21, 2011) and any 

changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). It does not 

include any information collection, 

reporting, or record-keeping 

requirements. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this action on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise that is independently owned 

and operated and is not dominant in its 

field. 

Under the CWA WQS program, states 

must adopt WQS for their waters and 

must submit those WQS to EPA for 

approval; if the Agency disapproves a 

state standard and the state does not 

adopt appropriate revisions to address 

EPA’s disapproval, EPA must 

promulgate standards consistent with 

the statutory requirements. EPA also has 

the authority to promulgate WQS in any 

case where the Administrator 

determines that a new or revised 

standard is necessary to meet the 

requirements of the Act. These state 

standards (or EPA-promulgated 

standards) are implemented through 

various water quality control programs 

including the NPDES program, which 

limits discharges to navigable waters 

except in compliance with an NPDES 

permit. The CWA requires that all 

NPDES permits include any limits on 

discharges that are necessary to meet 

applicable WQS. 

Thus, under the CWA, EPA’s 

promulgation of WQS establishes 

standards that the State implements 

through the NPDES permit process. The 

State has discretion in developing 

discharge limits, as needed to meet the 

standards. This proposed rule 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 proposed rule. In 

doing so, the State will have a number 

of choices associated with permit 

writing. While Florida’s implementation 

of the rule may ultimately result in new 

or revised permit conditions for some 

dischargers, including small entities, 

EPA’s action, by itself, does not impose 

any of these requirements on small 

entities; that is, these requirements are 

not self-implementing. Thus, I certify 

that this rule will not have a significant 

economic impact on a substantial 

number of small entities. 

D. Unfunded Mandates Reform Act 

This proposed rule contains no 

Federal mandates under the regulatory 

provisions of Title II of the Unfunded 

Mandates Reform Act 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 

promulgated 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 will not substantially 

affect the relationship between EPA and 

the states and territories, or the 

distribution of power or responsibilities 

between EPA and the various levels of 

government. The proposed rule will not 

alter Florida’s considerable discretion in 

implementing these WQS. Further, this 

proposed rule will not preclude Florida 

from adopting WQS that EPA concludes 

meet the requirements of the CWA, after 

promulgation of the final rule, which 

would eliminate the need for these 

Federal standards and lead EPA to 

withdraw them. Thus, Executive Order 

13132 does not apply to this 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 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. 

During its previous rulemaking and 

development of water quality standards 

for Florida’s lakes and flowing waters, 


tkelley on DSK3SPTVN1PROD with 
75004 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

81 75 FR 75762, December 6, 2010. Water Quality 

Standards for the State of Florida’s Lakes and 

Flowing Waters. 

EPA concluded that the rule 81 may have 

tribal implications. Ultimately, 

however, EPA felt that the rule would 

neither impose substantial direct 

compliance costs on tribal governments, 

nor preempt Tribal law. Therefore, EPA 

met with the Seminole Tribe on January 

19, 2010 and requested an opportunity 

to meet with the Miccosukee Tribe to 

discuss EPA’s rule, although a meeting 

was never requested by the Tribe. 

Because this current proposal reproposes the same numeric nutrient 

criteria with further explanation on how 

the criteria will ensure the protection of 

the Florida’s designated uses by 

avoiding harmful changes in nutrient 

levels, and provides for the same 

approaches for determining DPVs as in 

the final rule with some additional 

flexibility, EPA determined that tribal 

consultation will not be needed. 

However, EPA will specifically solicit 

additional comment on this proposed 

rule from tribal officials during the 

public comment period. 

G. Executive Order 13045 (Protection of 

Children From Environmental Health 

and Safety Risks) 

This action is not subject to EO 13045 

(62 FR 19885, April 23, 1997) because 

it is not economically significant as 

defined in EO 12866, and because the 

Agency’s promulgation of this rule will 

result in the reduction of environmental 

health and safety risks that could 

present a disproportionate risk to 

children. 

H. Executive Order 13211 (Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use) 

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)), because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

I. National Technology Transfer 

Advancement Act of 1995 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This 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 will 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, Florida, 

Nitrogen and phosphorus pollution, 

Nutrients, Water quality standards. 

Dated: November 30, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, 40 CFR part 131 is proposed 

to be amended 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 amended by: 

a. Revising (c)(2)(i). 

b. Revising paragraph (c)(2)(ii)(C). 

The revisions read as follows: 

§ 131.43 Florida. 

* * * * * 

(c) * * * 

(2) Criteria for streams. 

(i) The applicable instream protection 

value (IPV) criteria for total nitrogen 

(TN) and total phosphorus (TP) for 

streams within each respective nutrient 

watershed region are shown on Table 2. 

TABLE 2 

Nutrient watershed region 

Instream protection value criteria 

TN (mg/L) *

 TP (mg/L) *

Panhandle West a .................................................................................................................................... 0.67 0.06 

Panhandle East b ..................................................................................................................................... 1.03 0.18 

North Central c ......................................................................................................................................... 1.87 0.30 

West Central d .......................................................................................................................................... 1.65 0.49 

Peninsula e ............................................................................................................................................... 1.54 0.12 

Watersheds pertaining to each Nutrient Watershed Region (NWR) were based principally on the NOAA coastal, estuarine, and fluvial drainage 

areas with modifications to the NOAA drainage areas in the West Central and Peninsula Regions that account for unique watershed geologies. 

For more detailed information on regionalization and which WBIDs pertain to each NWR, see the Technical Support Document. aPanhandle West region includes: Perdido Bay Watershed, Pensacola Bay Watershed, Choctawhatchee Bay Watershed, St. Andrew Bay Watershed, Apalachicola Bay Watershed. bPanhandle East region includes: Apalachee Bay Watershed, and Econfina/Steinhatchee Coastal Drainage Area. 

c North Central region includes the Suwannee River Watershed. 


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Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 75005 

dWest Central region includes: Peace, Myakka, Hillsborough, Alafia, Manatee, Little Manatee River Watersheds, and small, direct Tampa Bay 

tributary watersheds south of the Hillsborough River Watershed. ePeninsula region includes: Waccasassa Coastal Drainage Area, Withlacoochee Coastal Drainage Area, Crystal/Pithlachascotee Coastal 

Drainage Area, small, direct Tampa Bay tributary watersheds west of the Hillsborough River Watershed, Sarasota Bay Watershed, small, direct 

Charlotte Harbor tributary watersheds south of the Peace River Watershed, Caloosahatchee River Watershed, Estero Bay Watershed, Kissimmee River/Lake Okeechobee Drainage Area, Loxahatchee/St. Lucie Watershed, Indian River Watershed, Daytona/St. Augustine Coastal 

Drainage Area, St. John’s River Watershed, Nassau Coastal Drainage Area, and St. Mary’s River Watershed. 

* For a given water body, the annual geometric mean of TN or TP concentrations shall not exceed the applicable criterion concentration more 

than once in a three-year period. 

(ii) Criteria for protection of 

downstream lakes. 

(A) * * * 

(B) * * * 

(C) When the State or EPA has not 

derived a DPV for a stream pursuant to 

paragraph (c)(2)(ii)(B) of this section, 

and where the downstream lake attains 

the applicable chlorophyll-a criterion 

and the applicable TP and/or TN 

criteria, then the DPV for TN and/or TP 

will be determined using any of the 

following options: For the first option, 

the DPV for TN and/or TP applicable at 

the pour point to the lake is the 

applicable TN and/or TP criteria for the 

downstream lake codified in 40 CFR 

131.43(c)(1), similar to paragraph 

(c)(2)(ii)(D) of this section. For the 

second option, the DPV for TN and/or 

TP applicable at the pour point of the 

receiving lake is found in Table 3. 

TABLE 3 

Lake class 

Default option 2 

TN DPV 

(mg/L) 

TP DPV 

(mg/L) 

Colored Lakes .............. 1.59 0.11 

Clear, High Alkaline 

Lakes ......................... 1.40 0.09 

Clear, Low Alkaline 

Lakes ......................... 0.87 0.06 

For the third option, the DPV for TN 

and/or TP applicable at the pour point 

to the lake is computed using TN and 

TP data from the stream discharging 

into the lake coincident in time with the 

period of record when the lake was 

attaining all applicable nutrient criteria 

pursuant to 40 CFR 131.43(c)(1). These 

default approaches supplement EPA’s 

promulgated DPVs for the protection of 

downstream lakes in paragraphs 

(c)(2)(ii)(B) and (D) of this section. 

[FR Doc. 2012–30114 Filed 12–17–12; 8:45 am] 

BILLING CODE 6560–50–P 


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