# CHAPTER 2 Issue Category: Amendment to 40CFR 131 Pages 4774 - 4779

Response to Public Comments Water Quality Standards for the State of Florida's Lakes and Flowing Waters

November 14, 2010

40 CFR Part 131 Docket #: EPA-HQ-OW-2009-0596

This document is part of a larger documentChapter 2 - Comment Documents Amendment to 40 CFR 131 

# 40CFR131 - AMENDMENT TO 40 CFR 131 Comment ID 1338-1.001.006
Author Name: Champion T. Organization: Georgia-Pacific Corporation, LLC Regulatory problems with mixing zones: Proposal: In 40 CFR 131.43(d)(2)(i), EPA assumes that mixing zones can be applied to meet the proposed water quality criteria. Comment: Florida rules (approved by EPA) do not currently allow mixing zones for nutrients. Additionally, even if mixing zones for nutrients were allowed, Florida rules do not allow mixing zones for the discharge of a pollutant for which the receiving water is impaired. Using EPA's proposed criteria, the vast majority of Florida's waters would be listed as impaired for nutrients, and under Florida rules, mixing zones would not be available for dischargers. Dischargers would be forced to meet water quality standards at the end of pipe, which, as set forth in more detail below, may not be feasible and does not appear to be contemplated by the proposed rule. This is an excellent example of why the State of Florida is much better suited to establish nutrient criteria which consider the details and nuances of Florida law and how it is applied. Georgia-Pacific does not believe that it was EPA's intent for the numeric nutrient criteria to be met at the effluent discharge. While we believe the TMDL process using mechanistic modeling is the best approach to resolving nutrient impairments, we respectfully submit that any numeric criteria that are ultimately intended for promulgation not be adopted until EPA and the Florida DEP develop a reasonable solution to establishing the availability of mixing zones for any such nutrient criteria. 

# Comment ID 1482-1.001.021
Author Name: Hecker J. Organization: Conservancy of Southwest Florida Design Flow Condition for Permits The draft rule at 131.43(d)(2)(ii) also directs the use of an "appropriate design flow condition, where necessary, for permit limit derivation or load and wasteload allocations (e.g. average annual flow for a criterion magnitude expressed as an average annual geometric mean)." We strongly suggest removal of this broad averaging approach, because it would result in allowing much higher concentrations during critical conditions such as low-flow periods. While it is true that the numeric criteria were generated using annual average data, the use of average flows to derive permit limits compounds the effects of averaging the concentrations.

11/19/2010 02:48 PM EST 2-4774Chapter 2 - Comment Documents Amendment to 40 CFR 131 Aquatic life can be wiped out with one extreme pollution event at low flow conditions. The record does not contain evidence showing that high concentrations of nitrogen or phosphorus are tolerable to many sensitive species in Florida waters long-term. For toxins, protective measures typically are based on low-flow conditions, because aquatic life killed by toxin concentrations when flows are low will not come back to life when flows are higher. Though nutrients themselves are not toxins, they should be regulated in a manner that prevents harmful algal blooms which produce toxins or generate conditions that are toxic to aquatic life. With long averaging periods for determining background flow conditions and permit compliance, such blooms will not be prevented. Beneficial aquatic life needs to be protected during critical periods of short-term high concentrations of nitrogen and phosphorus. 

# Comment ID 1530.001.053
Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority Going beyond the site-specific analysis supporting Florida's nutrient TMDLs, CCUA has addressed this new concept of Restoration Water Quality Standards in Section III.B. Again, in this regard, CCUA must note that the EPA praised Florida for its efforts in this area when EPA noted that Florida's BMAPs were the "blueprint' for restoring impaired waters by reducing pollutant loadings to meet the allowable loadings established in a Total Maximum Daily Load .. " To be sure, Florida's BMAPs, and reasonable assurance plans, are a blueprint, and, accordingly, CCUA has suggested that section 131.43(g) should be amended to include a subparagraph (9) which reads: (9) In cases where EPA has approved a Florida Basin Management Action Plan (BMAP) and/or reasonable assurance plan, such BMAP or reasonable assurance plan will be deemed to be equivalent of a Restoration Water Quality Standard under this section. The following is a list of waters already covered by BMAPS or reasonable assurance plans and therefore are approved as restoration WQS. Lower St. Johns River Tributaries - December 2009 Hillsborough River Basin October 2009 Lower St. Johns River - October 2008 Long Branch - May 2008 Orange Creek - May 2008 Upper Ocklawaha - August 2007 Lake Seminole - May 2007 Shell, Prairie, and Joshua Creeks - December 2004 CCUA also addressed EPA's comment on Restoration WQS, by suggesting that section 131.43(g) should be amended to include a subparagraph (10) which reads: (10) In cases where EPA has approved the initiation of the Restoration WQS process and the watershed includes discharges covered by the APRICOT Act, such APRICOT Act discharges will be deemed to be insignificant contributors of pollutants. There will be no further reductions required beyond those required to meet APRICOT Act requirements.

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# Comment ID 1530.001.062
Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority In the proposed regulatory language at 131.43(g), it states, "designated use is not currently attainable as a result of nutrient pollution but is attainable in the future." What data must the State provide in order to demonstrate the designated use is "attainable in the future"? 

# Comment ID 1830.001.027
Author Name: Blair S. Organization: Miami-Dade Department of Environmental Resources Management Comments regarding proposed Rule Language Pg. 4223FR PART 131-Water Quality Standards. 131.43(b)(3) R1. Clarification of definitions and applicability: Although the supplemental information explains that the proposed rule and criteria apply only to predominantly freshwater (Cl <1500 mg/L ) lakes and flowing waters, and it is implied that South Florida canals addressed by the rule are a component of lakes and flowing waters, the definitions in the rule do not clearly address this on a stand-alone basis. Reading the rule by itself, without referring to accompanying reports, it is not clear that the proposed criteria for south Florida canals apply only to the freshwater portions of canals. The definition of "Canal " [Subsection 131.143(b)(1)] does not address salinity or Cl level. It is recommended that the definition of "Lakes and Flowing Waters" [Subsection 131.43(b)(4)] be revised to include this sentence: For the purpose of this section, "lakes and flowing waters" shall include lakes, streams, springs, spring runs, and south Florida canals. An alternative approach could be to revise the definition of "canals" or add a definition of "south Florida canals" that describes them as "predominantly fresh" . Also, this should be addressed by revising Subsection 131.143(d)(1) to state: "The criteria in paragraphs (c)(1) through (4) of this section apply to predominantly fresh surface waters of the State of Florida..." 

# Comment ID 1830.001.028
Author Name: Blair S. Organization: Miami-Dade Department of Environmental Resources Management Pg4223 FR: Section 131.43(b) The following definitions should be added to the list of definition under this section:

- Long-Term Average; citing with specificity the length of the assessment period, how it is determined (e.g., rolling period, or ‘blocks' of time), and required method of calculation.

- Clear Lake, acidic

11/19/2010 02:48 PM EST 2-4776Chapter 2 - Comment Documents Amendment to 40 CFR 131

- Clear Lake, alkaline 

# Comment ID 1830.001.029
Author Name: Blair S. Organization: Miami-Dade Department of Environmental Resources Management Pg. 4225 FR; Section 131.43(c)(4) R2. Proposed Rule states "The applicable criterion for Chlorophyll a, total nitrogen (TN), and total phosphorus (TP) for canals within each respective canal geographic classification area is shown on the following table :... (emphasis added). This is followed by a table with a single criterion for TP, TN and Chl-a, without any specification of geographic classification. The table should be modified to include the criterion based on the geographical classifications in consideration of the need for greater resolution of the geographical regions as noted in comments 10 & 11 above. 

# Comment ID 1830.001.030
Author Name: Blair S. Organization: Miami-Dade Department of Environmental Resources Management Pg 4226 FR 75:16 p 4226; Section 131.43(d)(2)(i) R3. Proposed Rule states: "For all waters with mixing zone regulations or implementation procedures, the criteria apply at the appropriate locations within or at the boundary of the mixing zones; otherwise the criteria apply throughout the water body including at the point of discharge into the water body." This assessment required comparison of criteria based on aggregated, averaged data, to a single data point. This is not appropriate. It is recommended that the wording be modified to state either: a. Such comparisons be based on a "Not-to-Exceed" value, as proposed in comment 17 above or, b. The application of the criteria to the waters described in this section should be based on the aggregated data of the Waterbody assessment being assessed for compliance. 

# Comment ID 2233-1.001.029
Author Name: Kovach C. Organization: CF Industries 5. Applicability - Proposed 40 C.F.R. § 131.43(d) CF has no comments specific to proposed 40 C.F.R. § 131.43(d) 

# Response

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Comment ID: 1338-1.001.006 Response: EPA appreciates the comment regarding availability of mixing zones for numeric nutrient criteria under Florida’s current regulations. Where the receiving water is attaining the criteria, FDEP allows for mixing zones for numeric nutrient criteria which will not significantly impair any of the designated uses of the receiving body of water. FDEP is the primary agency responsible for determining how to implement Clean Water Act (CWA) programs delegated by EPA. As such, EPA defers to FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. Water quality standards, and EPA’s rule specifically, do not specify how to achieve the protective levels that they represent. The State of Florida will determine how best to meet the standards in a way that best meets the needs of its citizens and environment The Agency has deleted proposed regulatory provisions at 40 CFR 131.43(d)(2)(i)-(iii) on mixing zones, design flow, and listing impaired waters. EPA notes that the final criteria in this rule are subject to Florida’s general rules of applicability in the same way and to the same extent as are other state-adopted and/or federally-promulgated criteria for Florida waters. (See 40 CFR 131.43(d)(2)). States have discretion to adopt policies (including mixing zone policies) generally affecting the application and implementation of WQS. (See 40 CFR 131.13). The State may use its existing (or propose in the future) authorized regulatory relief mechanisms that allow implementation flexibility where demonstrated to be appropriate. See the preamble to the final rule, in particular section V. Alternative Regulatory Approaches and Implementation Mechanisms, which describes the tools the State has at its disposal to exercise flexibility such that the rule is not a one-size-fits-all rule. EPA has worked closely with the State providing technical assistance along with funding to the State to support sampling and analysis of existing data, to address nitrogen/phosphorus pollution problems in Florida. EPA will continue to collaborate with FDEP as the State implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for purposes of the Clean Water Act. FDEP retains the authority to move forward with its own rulemaking process and EPA looks forward to working with Florida as the State implements these federal criteria while it moves to adopt its own criteria in the future.

Comment IDs: 1830.001.030, 1482-1.001.021 Response: The Agency has deleted proposed regulatory provisions at 40 CFR 131.43(d)(2)(i)-(iii) on mixing zones, design flow, and listing impaired waters. EPA notes that the final criteria in this rule are subject to Florida’s general rules of applicability in the same way and to the same extent as are other state-adopted and/or federally-promulgated criteria for Florida waters. (See 40 CFR 131.43(d)(2)). States have discretion to adopt policies generally affecting the application and implementation of WQS. (See 40 CFR 131.13). There are many applications of criteria in Florida’s water quality programs. Therefore, EPA believes that it is not necessary for purposes of this final rule to enumerate each of them, nor is it necessary to restate any otherwise applicable requirements. Please refer to the final preamble of this rule, in particular section III.E Applicability of Criteria When Final, for further information.

Comment IDs: 1530.001.053, 1530.001.062 Response: EPA appreciates comments received on EPA’s proposed restoration water quality standards. Please refer to the preamble

11/19/2010 02:48 PM EST 2-4778Chapter 2 - Comment Documents Amendment to 40 CFR 131 of this final rule, in particular section V.E Proposed Restoration Water Quality Standard, for a discussion as to why EPA is not finalizing restoration water quality standards in this final rule.

Comment IDs: 1830.001.027, 1830.001.029 Response: EPA appreciates comments received regarding EPA’s proposed criteria for south Florida canals. EPA notes that on June 7, 2010, EPA and Plaintiffs filed a joint notice with the Court extending the deadlines for promulgating numeric nutrient criteria for Florida's estuaries and coastal waters, flowing waters in south Florida (including canals), and the downstream protection values for flowing waters into estuaries and coastal waters. The new deadlines are November 14, 2011 for proposal and August 15, 2012 for publishing a final rule for these three categories. This will allow EPA time to have the methodologies for developing the criteria included in EPA’s November 2011 rulemaking peer-reviewed by EPA’s Science Advisory Board.

Comment ID: 1830.001.028 Response: Please refer to the final rule language regarding the addition of clear lake, acidic and clear lake, alkaline to the list of definitions. EPA refrains from adding long-tem average to the list of definitions because this definition is addressed in the duration component of the separate waterbody criteria. Long-term average has a variable definition and should be defined in the proper context.

Comment ID: 2233-1.001.029 Response: The comment does not provide a comment on EPA’s proposed rule.

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