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 document 
Chapter 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. 

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Chapter 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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Chapter 2 - Comment Documents Amendment to 40 CFR 131 

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 

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Chapter 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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Chapter 2 - Comment Documents Amendment to 40 CFR 131 

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 

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Chapter 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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