CHAPTER 2 

Issue Category: Comparison Between EPA's 

and Florida DEP's Proposed Numeric 

Nutrient Criteria for Florida's Lakes and 

Flowing Waters 

Pages 4281 - 4296 

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 Comparison of EPA's and FDEP's Proposed Criteria for FL Inland Waters 

III.F - COMPARISON OF EPA'S AND FDEP'S PROPOSED CRITERIA 

FOR FL INLAND WATERS 

Comment ID 0487-1.001.002 

Author Name: Patashnik J. 

Organization: 

Nevertheless, EPA's decision to unilaterally set statewide standards in Florida, sidelining the Florida Department of 

Environmental Protection (FDEP), is troubling. FDEP, as the EPA itself recognizes, has spent more than $20 million 

collecting and analyzing data on the relationship between nutrient pollution and ecological health. 75 Fed. Reg. at 4175. 

Florida is also one of the few states that "has in place a comprehensive framework of accountability that applies to both 

point and nonpoint sources" capable of enforcing nutrient reduction in impaired waters based upon the total maximum 

daily loads (TMDLs) that the state has set under section 303 of the CWA. Id.; see also 33 U.S.C. § 1313(d)(1)(C) 

(directing states to set TMDLs). Moreover, FDEP had initiated its own state rulemaking process to set limits similar in 

many respects to those now contemplated by the EPA. 75 Fed. Reg. at 4215; see also FDEP, Development of Numeric 

Nutrient Criteria for Florida's Waters, http://www.dep.state.fl.us/water/wqssp/nutrients/index.htm (accessed Feb. 8, 

2010). FDEP decided not to move forward with its state rulemaking process only when it became clear that the federal 

EPA intended to promulgate its own standard. See Frank, supra. 

Comment ID 0487-1.001.003 

Author Name: Patashnik J. 

Organization: 

As the EPA itself recognizes, the rules it envisions are in most respects very similar to those proposed by FDEP. 75 

Fed. Reg. at 4214-16 (describing the similarities). Moreover, in the few instances in which FDEP's proposed rules differ 

from the EPA's, the approach taken by the state is eminently defensible. For instance, EPA is proposing nutrient 

limitations in South Florida canals, whereas FDEP exempted artificial canals from its rulemaking. Id. at 4216. But, 

particularly given that it is unclear whether the CWA even mandates that artificial canals be included in the regulatory 

scheme, EPA's notice completely fails to explain why FDEP's approach is unsatisfactory in this regard. Indeed, given 

the difficulty in disentangling the hydrological links between the various artificial waterways in South Florida, see South 

Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 110 (2004), FDEP could rationally have concluded 

that trying to set specific quantitative limits for each artificial waterway would be both unrealistic and unnecessary. 

Comment ID 0508-1.001.004 

Author Name: Wilson M. 

Organization: Florida Chamber of Commerce 

11/19/2010 02:48 PM EST 2-4281
 
Chapter 2 - Comment Documents Comparison of EPA's and FDEP's Proposed Criteria for FL Inland Waters 

There are significant issues that have yet to be adequately addressed by your agency. For example: 

• There are serious disagreements between your agency's experts and those at Florida's Department of Environmental 

Protection regarding the data and modeling used to develop the proposed standards; 

Comment ID 0542-1.001.002 

Author Name: Worthington R. 

Organization: City of Gulfport 

We are concerned with the possible ramifications of the Florida Department of Environmental Protection (FLDEP) 

response to EPA with regard to establishment of restoration standards for Impaired Waters; Section 303 (c) (4) (B) of 

the Clean Water Act of 1972 and FLDEP Proposed Revision of Florida Surface Water Quality Standards. 

The concerns and comments which follow are based upon long association with the degraded waters and wetlands of 

Gulfport, Florida, a small waterfront municipality downstream of a densely populated urban watershed. The discussion 

of proposed rule changes put forth by FLDEP at a January 7, 2010 workshop held at The Tampa Bay Regional 

Planning Council chamber resulted in numerous expressions of discontent by attendees. 

Review of the FLDEP proposed rule change and the accompanying technical support documentation led to these 

conclusions which EPA may find useful: 

o The FLDEP proposal does not adequately address historic and traditional uses of water bodies. 

o FLDEP use of the words and phrases; "Attainable," "feasible," "present use," "existing use" and "best management 

practice" are subjective and detract from the credibility of the proposal as a "standard." Present and existing use as 

used by FLDEP are not sufficient to define a baseline for future assessment. The revision could be used as rationale to 

deny future protection and to excuse past and present failure to restore impaired and threatened waters. 

o Adoption of "current use" and "current condition" as a baseline is inappropriate and discounts both original condition 

and the condition as of 1975. 

o FLDEP assumption of "best management practices" as a means to protect Florida waters lacks credibility. As an 

example, direct observations of golf courses reveal them to be point sources of pollution and significant contributors to 

nutrient loading of watersheds, wetlands and water bodies. 

o The proposal does not adequately address the impact of storm water sediments on water quality. A credible water 

quality standard must include a sediment quality standard which is wholly lacking in Florida. 

o FLDEP and contract firms do not regularly field test waters and sediments of storm water permit holders to assess 

permit compliance prior to reissuance. The renewal process is a self reporting method with renewal as the default 

11/19/2010 02:48 PM EST 2-4282
 
Chapter 2 - Comment Documents Comparison of EPA's and FDEP's Proposed Criteria for FL Inland Waters 

conclusion. A Florida storm water permit can be interpreted as a license to pollute. Current practice detracts from the 

NPDES and MS4 programs and limits accumulation of historical numerical data needed to establish meaningful TMDL. 

o Concepts addressed in the Use Attainability Analysis, Chapter 3 of the FLDEP Technical Support Document are not 

stringently adhered to; 

Pollutants and toxins which enter the watershed, to include all tributaries, should be addressed from their points of 

origin on public and private land. 

Reduction of upstream runoff to include retro-fit of redeveloped properties, reduction of non-permeable surfaces and 

installation of passive and technical means to treat storm water is not addressed. 

Consideration of the public as an essential element of water issues is not adhered to by Florida governmental agencies 

with authority over public waters and land. Agencies tend to defer to in-house experts at the expense of directly affected 

public and their representatives with regard to obviously degraded habitat. 

o Altered salinity and fresh water shock which directly affect benthic communities, shell fish and fish populations are not 

addressed. 

o Modification of natural uplands and water bodies under the guise of improvement or mitigation in place of meaningful 

restoration is not addressed. 

The FLDEP proposal could be interpreted as a means to circumvent the letter and intent of the Clean Water Act of 1972 

by establishment of lowered standards of quality for Florida waters. Attendees at the January 7, work shop were 

particularly concerned with FLDEP proposals to reduce pollution standards for upstream waters on assumption that no 

harm would occur to downstream water resources from introduction of more pollutants, toxins and sediments up 

stream. 

Gulfport views the EPA stance on water quality, impaired waters and restoration as a matter of public health, quality of 

life and perpetuation of habitat. 

Comment ID 0597.001.003 

Author Name: Hecker J. 

Organization: Conservancy of Southwest Florida 

/ MANY OF THE SAME CRITICISMS THAT DEP IS RAISING ABOUT THE MODELS EPA USED, HAVE BEEN 

RAISED FOR MODELS THAT FDEP HAS AND IS CURRENTLY USING ITSELF RIGHT NOW. 

Comment ID 0597.001.004 

Author Name: Hecker J. 

11/19/2010 02:48 PM EST 2-4283
 
Chapter 2 - Comment Documents Comparison of EPA's and FDEP's Proposed Criteria for FL Inland Waters 

Organization: Conservancy of Southwest Florida 

FDEP RAISES CONCERNS THAT (SOME NATURAL PRISTINE REFERENCE SITES WOULD NOT MEET THESE 

CRITERIA, WHILE FDEP'S NATURAL PRISTINE REFERENCE SITES INCLUDE WATERWAYS LIKE THE CANAL 

ALONG INTERSTATE 75'S ALLIGATOR ALLEY. 

Comment ID 0597.001.005 

Author Name: Hecker J.
 

Organization: Conservancy of Southwest Florida
 

OVERALL THE CRITERIA PROPOSED BY EPA CLOSELY PARALLEL THOSE PROPOSED BY FDEP ITSELF IN 

2008 WITH LITTLE EXCEPTION. 

Comment ID 0611.001.003 

Author Name: Hecker J.
 

Organization: Conservancy of Southwest Florida
 

Many of the same criticisms that DEP is raising about the models EPA used, have been raised for models that DEP has 

- and is currently using. 

DEP raises concerns that natural pristine reference sites would not meet these criteria, but DEP's reference sites 

include waterways like the canal along interstate 75's Alligator Alley. The criteria proposed by EPA closely parallel those 

proposed by DEP itself in 2008 with little exception. 

Comment ID 0673.001.002 

Author Name: Fuller M.
 

Organization: Florida Wildlife Federation
 

We encourage there to be ongoing dialogue with DEP and the public regarding some refinement. We wonder why your 

numbers are higher in the Bone Valley than what DEP recommended, that sort of thing. 

Comment ID 0691.001.001 

Author Name: Tripp K. 

Organization: Save the Manatee Club 

11/19/2010 02:48 PM EST 2-4284
 
Chapter 2 - Comment Documents Comparison of EPA's and FDEP's Proposed Criteria for FL Inland Waters 

I know that there were differences between what DEP and EPA has proposed, but there's also a lot of overlap, and 

that's what I'm focusing on because that's encouraging. I'm hoping it's going to be possible for your two agencies to 

continue to work together and borrow from your expertise. We have a really great opportunity to create a better future 

for our state, but with each day the problem is getting harder to fix. I thank you for being here. I do agree there is much 

more work to be done, but I do think this is a step in right direction. Thank you very much. 

Comment ID 0713.001.005 

Author Name: Merriam C. 

Organization: Orlando Utilities Commission 

How did the boundaries that you all used or how do they relate to the DEP boundaries? Because I could not find a 

relationship between those two. 

Comment ID 0721.001.008 

Author Name: Johns F. 

Organization: Lykes Brothers, Inc. 

In closing, FDEP is currently in the process of developing a robust scientific-based numeric standard for all impaired 

water bodies that takes into account the biology and the economics and is arguably more technically and economically 

efficient than EPA's proposed numeric criteria. However, it takes time to develop such a dynamic criteria. 

Comment ID 0729.001.005 

Author Name: Wong E. 

Organization: City of Northport 

So I think you really have to take DEP's advice. I'm really surprised to see this document come up on DEP a couple of 

days ago, dated January 26, 2010, with their concerns on your rule. When I heard that DEP is going to work with EPA 

to come up with this numeric nutrient criteria, I said oh, good, they're going to jointly work. And here I see a document 

that tears your document apart. So I don't know how much working together you all did. 

Comment ID 0738.001.008 

Author Name: Stewart R. 

Organization: Florida Pulp and Paper Association 

11/19/2010 02:48 PM EST 2-4285
 
Chapter 2 - Comment Documents Comparison of EPA's and FDEP's Proposed Criteria for FL Inland Waters 

The one thing I would like to do is I would like to commend FDEP's effort on establishing numeric nutrient criteria. As 

was pointed out in this brochure, there is not a lot of difference between what EPA proposed and what DEP had 

proposed. The question I have for EPA is why didn't you let DEP propose it and make it an official rule? 

Comment ID 0757.001.006 

Author Name: Guest D. 

Organization: Earthjustice 

The DEP issue that people constantly raise with you-all, I think that should be reiterated that your role is very, very 

similar, almost the same in -- virtually the same, as what the DEP was proposing. So all this we want DEP to do it, I 

don't really understand it. It doesn't make any sense. And even you-all's methodology is almost exactly the same. And 

we looked at their comments and without going into a lot of detail, some of those are well taken and we agree with 

them. Some of them are just dribble and you ought to just ignore them. And we'll write some comments about that, too. 

But we would like you to work harder, if you can, on playing a more collaborative role with EPA because you can tell 

that from the screeching that their feelings were hurt and it probably would better to work closely with them. 

Comment ID 0849.001.005 

Author Name: Ryan J. 

Organization: Loxahatchee Groves Water Control District 

Other problems that I see with EPA's actions are EPA is not giving adequate recognition to Florida's numeric nutrient 

criteria approach, which gives site specific and with nutrient limits that are science-based, not arbitrary. 

Comment ID 0891.001.006 

Author Name: Hushon J. 

Organization: 

The benefits of the proposed additional stringency in the Federal standards outweigh the benefits from those proposed 

by the Florida Department of Environmental Protection (FDEP). 

Comment ID 1012.001.005 

Author Name: Grigsby W. 

Organization: Florida Cattleman's Association 

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Chapter 2 - Comment Documents Comparison of EPA's and FDEP's Proposed Criteria for FL Inland Waters 

The Florida Department of Environmental Protection is currently in the process of developing a robust science-based 

numeric standard for all impaired water bodies in Florida. This standard considers both biology and economics and is 

arguably far more technically and economically efficient than Environmental Protection Agency's Proposed Numeric 

Criteria. However, it takes time to develop such a dynamic criteria. 

Comment ID 1063.001.007 

Author Name: Hecker J. 

Organization: Conservancy of Southwest Florida 

In fact, the criteria proposed by EPA overall closely parallels that proposed by DEP itself in 2008 with very little 

exception. 

Comment ID 1214.001.003 

Author Name: D’Avanzo E. 

Organization: The 11 Florida Chapters, Surfrider Foundation 

Many other states have already established numeric standards. Florida had gathered a great deal of information and 

had made some tentative proposals but enthusiastically welcomed the EPA initiative. While EPA used a significantly 

different scientific method to establish the limits, EPA's proposed limits are very similar to those under consideration by 

the Florida Department of Environmental Protection. That fact that different approaches produce similar conclusions 

confirms the validity of EPA's approach. 

Comment ID 1246.001.010 

Author Name: Adams C. 

Organization: 

So it does take time to figure out criteria. But the states have had -- have had -- the state has had over a decade to 

gather data and analyze it. And we trust that E.P.A. wouldn't move forward if they didn't trust those numbers. Plus the 

numbers are almost identical. You are using D.E.P.'s data. 

And that's all I have to say. Thank you so much. 

Comment ID 1464-2.001.005 

Author Name: Ettinger A. 

11/19/2010 02:48 PM EST 2-4287
 
Chapter 2 - Comment Documents Comparison of EPA's and FDEP's Proposed Criteria for FL Inland Waters 

Organization: Mississippi River Collaborative et al. 

3. The proposed criteria for springs, spring runs, and clear streams 

U.S. EPA (2010a, p. 4183) defines a spring as "the point where underground water emerges onto the Earth's surface," 

including its spring run which is defined as a free-flowing water originating from a spring or group of springs and with 

flow dominated by the spring or spring group. Clear streams are defined as free-flowing waters with color less than 40 

platinum cobalt units (PCU), based on the instantaneous color of the sample. There are more than 700 springs and 

spring runs in Florida, the largest number of springs per unit area worldwide (Scott et al. 2004, U.S. EPA 2010a), and 

many of them have been affected by high nitrate concentration from anthropogenic sources (Bacchus and Barile 2005). 

U.S. EPA (2010a, pp. 4208-4209) proposed a nitrate+nitrite (NOx) criterion for springs and clear streams based on 

FDEP's (2009a) proposed standard. That proposed standard was based, in turn, on experimental laboratory and field 

data for responses of nuisance or noxious suspended algae and periphyton (benthic algae) to concentrations of these 

forms of inorganic nitrogen, and on TMDL reports of increasing nitrate+nitrite concentrations and "corresponding 

ecosystem level responses" within the past 50 years. Of approximately 50 studies, at least 12 were described as having 

been used to develop and support the proposed NOx criteria. 

FDEP (2009a) described experimental laboratory studies which suggested that nitrate concentrations ranging from 230­

261 ug/L stimulated the growth of nuisance algae; and that periphyton field surveys and supplemental information from 

periphytometers indicated that nitrate concentrations in excess of 441-454 ug/L were the lower range associated with 

increased nuisance algal abundance (notably, the potentially toxic cyanobacterium Plectonema wollei, formerly 

Lyngbya wollei, and the xanthophycean Vaucheria). FDEP therefore considered the latter values as the lower range of 

nitrate concentrations for sites with excessive algal growth. 

The agency derived a "margin of safety" by averaging the upper half-range and full range 95% confidence intervals, 

applied to the ~440 ug/L value to derive the proposed nitrate+nitrite criterion of 350 ug/L, as a monthly median. Rather 

than establishing a minimum sample size requirement, FDEP expressed the proposed criterion as not to be exceeded 

more than 10% of the time. This stipulation was based on the assertion (FDEP 2009a, p.6) that "algal species are not 

expected to respond to short-term increases in nutrient concentrations," although it should be noted that algae can 

respond significantly to short-term increases (pulses) in nutrient concentrations (e.g. Sommer 1985, Pringle 1990). 

U.S. EPA (2010a, p. 4209) instead proposed that the 350 ug/L criterion should be an annual geometric mean, not to be 

exceeded more than once in a three-year period; and that the longterm arithmetic average of annual geometric means 

should not exceed this criterion. Alternatively, U.S. EPA (2010a, p. 4210) proposed that the 350 ug/L criterion should be 

considered as a monthly median, not to be exceeded more than 10% of the time. 

U.S. EPA and FDEP have taken an important step in developing this inorganic N criterion for springs, spring runs, and 

clear streams. The following comments are offered toward strengthening the proposed criteria: 

Comment ID 1482-1.001.013 

Author Name: Hecker J. 

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Chapter 2 - Comment Documents Comparison of EPA's and FDEP's Proposed Criteria for FL Inland Waters 

Organization: Conservancy of Southwest Florida 

B Proposed Numeric Nutrient Criteria will be Undermined if Florida Implements 

New Statewide Stormwater Rule as it is Currentlv Proposed 

The Statewide Stormwater Rule being developed by the FDEP could potentially undermine EPA's proposed numeric 

nutrient criteria in creating an ineffective presumption of compliance in not causing or contributing nutrient pollution 

impairment, as well as vesting nutrient pollution rights throughout Florida. The vesting of nutrient pollution would occur 

by allowing new developments to pollute as much as the previous polluting land uses and counting natural wetlands as 

pollutant sources - inflating the natural loads and reducing the pollution load reductions new develooment would have to 

comply with in the 401 certification process. Due to the potential of this rule in undermining nutrient pollution control, the 

Conservancy is providing the following information to EPA in hopes that EPA will take a more active role in guiding 

Florida as to how to rectify this regulation to ensure it compliments EPA's proposed criteria. 

The current Statewide Stormwater Rule being proposed by the Florida Department of Environmental Protection is 

presumptive in assuming if new developments post-development do not increase loads over pre-development (defined 

as existing conditions, with natural wetlands as polluters), then they have met their pollutant source control 

responsibility. Since this rule is presumptive, once the applicant provides what is required in the rule, they are legally 

shielded from further requirements - even if it is demonstrated that their system did not meet the target removal 

efficiency. There is no required monitoring associated with the rule. 

As evidence the pre-development is not natural background loading rates but existing conditions, the Post v. Pre 

methodology (known as the "Harper" methodology) has and is currently already being applied as predevelopment 

equating to existing conditions. Furthermore, agricultural load rates are included in the draft rule, which would not be 

needed if Pre is natural (as agriculture is not natural) or in the Post conditions (because no one converting from natural 

to agriculture as the post-developed conditions would be subject to the provisions in this rule). 

Moreover, to apply existing conditions as the pre-development benchmark would threaten the rule's ability to provide 

more effective and protective stormwater treatment standards and to meet EPA's proposed numeric nutrient criteria. 

Not only would be vesting pollution rights, but would also incentivize the premature conversion of natural areas into 

agricultural and pasture lands - in order to gain the lesser stormwater treatment standard when later converting to 

development land uses. 

Another fatal flaw to the proposed stormwater regulation is that is assigns faulty positive load rates to wetlands in the 

proposed rule as a result of utilizing loading rates coming out of wetlands (i.e. what they "export") without doing a mass 

balance analysis and subtracting the inflow pollutant loads to the wetlands from adjacent upland areas (see diagram 

below). 

Original comment letter contains additional data or information for wetlands from The Conservancy of Southwest 

Florida. See original comment letter. 

For instance, if 100 lbs of TN were coming into a wetland from adjacent upland areas and the wetland took up 20 lbs 

and then exported 80 lbs through the discharge exiting from it, one would not ascribe the 80 lbs of TN to the wetlands 

but rather the upland land uses it originated from. Unfortunately, this is exactly what the current methodology does.­

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Chapter 2 - Comment Documents Comparison of EPA's and FDEP's Proposed Criteria for FL Inland Waters 

Furthermore, the rule even describes a load to isolated wetlands. which is ridiculous because. isolated wetlands by their 

very definition do not typically discharge stormwater 

All natural wetlands that are healthy are known as nutrient "sinks" - meaning they absorb more nutrients than they 

generate. That is why the stormwater treatment areas in Everglades restoration are so effective at reducing 

phosphorus. It is illogical how this rule can recognize that concept in proposing to award credit to wetlands for treatment 

purposes, while also assigning them a positive pollutant load value in pollutant load calculations. 

Overall, this erroneous assumption threatens to seriously undermine the effectiveness of the rule in providing sufficient 

stormwater management - as it overestimates the loads coming from sites in their predevelopment state; thus, requiring 

less load reduction in the post-development levels do not exceed predevelopment levels approach. It also is 

incentivizing wetland destruction, with the faulty notion that developments with stormwater systems are less polluting 

than natural wetlands. The Conservancy has repeatedly raised this issue, as well as independent scientific peer 

reviewers convened by FDEP, EPA, and the Center for Watershed Protection - yet still the FDEP has refused to rectify 

the rule's inclusion of positive loading rates for natural wetland land uses. 

A third troubling issue is that the proposed rule incentivizes partially or untreated stormwater to be disposed in natural 

wetlands. At the July 2008 FDEP TAC meeting, FDEP staff presented a presentation called the "Use of Wetlands for 

Stormwater Treatment". In this presentation, they proposed that wetlands that were isolated and wholly-owned, were 

not waters of the State and thus, were ripe for use as stormwater treatment areas (see Appendix 14). This is 

unacceptable as it will not only result in degraded wetlands, but also deficient stormwater management. 

Wetlands are effective pollutant filters, as evidenced by the Stormwater Treatment Areas utilized in Everglades 

restoration efforts. Thus, despite their seasonally exporting nutrients in instances where they are not isolated; they 

typically absorb more nutrients than they produce and therefore, should not be assigned a positive average annual 

pollutant load value as they are in the proposed rule. They instead are recognized sinks with a removal efficiency 

equivalent to constructed wetlands when their assimilative capacity is maintained. 

If they are no longer absorbing nutrients such that they are creating a positive pollutant load, it is because their 

assimilative capacity has been surpassed due to inflow nutrient levels exceeding their rate of removal. This is caused 

by too much nutrient pollution flowing into the wetlands; in which case, it passes through unreduced. Therefore, using 

natural wetlands for stormwater treatment would result in lost pollutant removal efficiency over time, eventually leading 

to an ineffective and insufficient stormwater treatment system. 

Constructed wetlands however, such as STAs, are useful stormwater BMPs as they are maintained to ensure that their 

assimilative capacity is not surwassed and therefore, their removal efficiencv is maintained. However. who is going to 

monitor to ensure the natural wetlands' assimilative capacity is' not being exceeded? Who is going to bulldoze, scrape, 

and replant a natural cypress swamp if it is? When natural wetlands are used for stormwater treatment, they will not 

only become degraded -they will no longer provide the stormwater treatment that they were anticipated to. 

In response to this issue, EPA has created "Protecting Natural Wetlands: A Guide to Stormwater Best Management 

Practices."[17] This 181-page publication details the deleterious effects of stormwater on natural wetlands and outlines 

how non-structural and structural stormwater BMPs should be used to not impact to wetlands. In using wetlands for 

"polishing' (i.e. treatment beyond regulatory standards), it also stresses that discharges to natural wetlands "can 

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Chapter 2 - Comment Documents Comparison of EPA's and FDEP's Proposed Criteria for FL Inland Waters 

adversely affect wetland functions and values" - so that even when BMPs are used, monitoring and maintenance should 

be incorporated, 

Overall, these three issues define whether the proposed stormwater regulation will allow for water quality improvement 

and hold projects responsible for requiring sufficient stormwater retention and treatment on-site for their own runoff in 

order to meet the proposed numeric nutrient standards, of whether it will simply require new projects to not worsen what 

is already a severely degraded water quality condition and give them credit for past polluting practices. 

We urge EPA to encourage FDEP to revise the proposed stormwater rule to distinguish between "natural" and 

"constructed" wetlands, making it explicit that natural wetlands should not be used in meeting the regulatory 

requirements of the rule. Additionally, we request EPA to set numeric nutrient criteria for wetlands as well in order to 

ensure that the proposed Florida statewide stormwater rule does not undermine the objectives for enacting more 

stringent nutrient regulation. 

[17] Environmental Protection Agency. October 1996. Protecting Natural Wetlands: A Guide to Stormwater Best 

Management Practices, www.epa.qov/OWOW/wetlands/PDF/protecti.pdf Office of Water, Washington, DC. 

Comment ID 1647-1.001.015 

Author Name: Kates K. 

Organization: Florida Fruit and Vegetable Association 

Biological Confirmation - FDEP's Draft Nutrient Rule 

The FDEP's draft nutrient criteria rule differs substantially from the EPA's proposed rule when it comes to certain 

methodologies and approaches to numeric criteria development. Of major significance was FDEP's proposed two-tier 

assessment approach, where the first tier would be numeric nutrient criteria and the second tier would be a follow-up 

consisting of a biological assessment of the water body to confirm impairment. This assessment would function as a 

check and provide confirmation that nutrient concentrations above the numeric standard would, in fact, result in 

biological impairment of the water body (Obreza et al. 2010). Similar to the FDEP draft rule, the EPA should consider 

revising their proposed criteria to include a biological assessment to confirm water quality impairment. 

Comment ID 1724-1.001.003 

Author Name: Busha M. 

Organization: Treasure Coast Regional Planning Council 

2. Council encourages EPA to work with FDEP to establish numeric nutrient water quality standards for Florida waters 

that are mutually agreed upon by both agencies and includes diverse standards that recognize differences in the state. 

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Chapter 2 - Comment Documents Comparison of EPA's and FDEP's Proposed Criteria for FL Inland Waters 

Comment ID 1761-3.001.027 

Author Name: Merrill M. 

Organization: Hillsborough County 

8. Another example of the EPA/FDEP disagreement includes: "In the meantime, it must be acknowledged that the 

differences between DEP and EPA over the listing process will confuse the public and regulated entities because of its 

occasional, but not insignificant, inconsistency." (EPA-HQ-OW-2009-0596-0105) 

Comment ID 1805-3.001.028 

Author Name: Gallagher J. 

Organization: Pasco County 

8. Another example of the EPA/FDEP disagreement includes: "In the meantime, it must be acknowledged that the 

differences between DEP and EPA over the listing process will confuse the public and regulated entities because of its 

occasional, but not insignificant, inconsistency." (EPA-HQ-OW-2009-0596-0105) 

Comment ID 1919-1.001.016 

Author Name: Standridge K. 

Organization: Earthjustice on behalf of Florida Wildlife Federation et al. 

D. FDEP's Assertion That Eighty-Five Percent Of Pristine Waterbodies Will Be In Violation Under EPA's Proposed Rule, 

Could Not Possibly Be Accurate. 

It should also be noted that FDEP's proposed numeric nutrient rule is very similar to EPA's proposed rule, with the 

exception of FDEP's nitrogen standards which are quite lenient. To demonstrate the similarity in the two rules, 

Earthjustice analyzed an assessment of Florida waterbodies compiled by FDEP.[42] In the assessment, FDEP 

identified waterbodies which may potentially violate EPA's proposed rule (meaning the long-term average of annual 

geometric means or more than one annual geometric mean during the entire period of record of that waterbody was 

equal to or greater than the limits proposed in EPA's proposed rule). Relying on FDEP's calculations in the assessment, 

Earthjustice evaluated these putative violations to ensure that either the long-term average of annual geometric means 

or more than one annual geometric mean during the last three years exceeded the limits proposed in EPA's proposed 

rule, as instructed by the proposed rule. These instances were than compared against the numeric nutrient limits 

proposed in FDEP's proposed rule. Canals and estuaries were not evaluated. 

After compiling the data, thirty-three percent of waterbodies in the assessment putatively violated both EPA and FDEP's 

proposed limits. One percent putatively violated FDEP's proposed limits but not EPA's proposed limit. Six percent of 

waterbodies putatively violated EPA's proposed limit only.[43] This analysis demonstrates the great overlap in the two 

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Chapter 2 - Comment Documents Comparison of EPA's and FDEP's Proposed Criteria for FL Inland Waters 

rules. The analysis also conclusively proves that FDEP's assertion - that eighty-five percent of pristine waterbodies will 

be in violation under EPA's proposed rule - could not possibly be accurate. 

[42] FDEP's assessment is available at http://www.dep.state.fl.us/water/wqssp/nutrients/docs/federal/allassessmentsfinal- 030510.xls. 

[43] See Appendix 27 for analysis and pie chart of conclusions. 

Response 

Comment ID: 0487-1.001.002 

Response: EPA notes that the Agency and Florida Department of Environmental Protection (FDEP) share a commitment to 

establish numeric nutrient criteria for Florida. Florida established the designated uses that are applicable to Florida's waters, are 

consistent with the Clean Water Act, and are set to manage clean water program objectives for Florida’s waters affected by this 

final rule. The numeric nutrient criteria finalized in this rule establish levels necessary to support these uses. 

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 nutrient 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. EPA recognizes there will be complex issues involved in implementation of numeric nutrient criteria and 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 ID: 0487-1.001.003 

Response: EPA clarifies to the commenter that FDEP’s draft regulations to establish numeric nutrient water quality standards 

included a placeholder for canals criteria in south Florida. FDEP opted to hold off on finalizing its draft regulations before EPA’s 

proposed rule was published in January 2010. EPA also 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 for peer review of the methodologies for developing the criteria included in EPA's November 2011 rulemaking 

by EPA’s Science Advisory Board. 

Comment IDs: 0508-1.001.004, 0597.001.005, 0673.001.002, 0691.001.001, 0721.001.008, 0729.001.005, 0757.001.006, 

0891.001.006, 1012.001.005, 1063.001.007, 1214.001.003, 1246.001.010, 1724-1.001.003 

Response: EPA notes that the Agency and Florida Department of Environmental Protection (FDEP) share a commitment to 

establish numeric nutrient criteria for Florida. Florida established the designated uses that are applicable to Florida's waters, are 

consistent with the Clean Water Act, and are set to manage clean water program objectives for Florida’s waters affected by this 

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final rule. The numeric nutrient criteria finalized in this rule establish levels necessary to support these uses. Among the benefits 

that may otherwise be at risk are the natural beauty of Florida waters, ecology that supports natural populations of fish and wildlife, 

health and welfare of Florida residents, recreational value for Florida citizens and visitors, waterfront property values, and tourism 

business and revenue. Please refer to the preamble of the final rule, in particular section III. Numeric Criteria for Streams, Lakes, 

and Springs in the State of Florida, which discusses the derivation of EPA’s numeric nutrient criteria, derived to account for the 

natural variability exhibited in Florida's lakes and flowing waters. EPA relied on an extensive amount of Florida-specific data and 

technical analyses to derive scientifically defensible numeric nutrient criteria. 

EPA has worked closely with the State, providing technical assistance along with funds to the State to support sampling and 

analysis of existing data, to address nutrient 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. EPA recognizes there will be complex issues involved in implementation of numeric nutrient criteria and 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: 0597.001.003, 0597.001.004, 0597.001.005, 0611.001.003, 1063.001.007 

Response: EPA appreciates clarifications provided by the commenter on the similarities and differences exhibited in EPA’s rule and 

FDEP’s draft regulations to establish numeric nutrient water quality standards. Please refer to the preamble of the final rule which 

discusses the derivation of EPA’s numeric nutrient criteria, in particular section III. Numeric Criteria for Streams, Lakes, and 

Springs in the State of Florida, derived to account for the natural variability exhibited in Florida's lakes and flowing waters. EPA 

relied on an extensive amount of Florida-specific data and technical analyses to derive scientifically defensible numeric nutrient 

criteria. 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. EPA recognizes there will be complex issues 

involved in implementation of numeric nutrient criteria and 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 ID: 0713.001.005 

Response: Please refer to the preamble of the final rule, in particular section III. Numeric Criteria for Streams, Lakes, and Springs 

in the State of Florida, which discusses the derivation of EPA’s numeric nutrient criteria for streams and the associated Nutrient 

Watershed Regions. In addition please refer to the preamble associated with the proposed rule for a discussion of FDEP’s draft 

approach for numeric nutrient criteria for streams and watershed boundaries, in addition to the Technical Support Documents 

associated with EPA’s proposed and final rulemakings. 

Comment ID: 0738.001.008 

Response: EPA reminds the commenter that FDEP, independently from EPA, initiated its own State rulemaking process in the 

spring/summer of 2009 to adopt numeric nutrient water quality standards for Florida’s waters. FDEP held several public workshops 

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on its draft numeric nutrient standards for lakes and flowing waters. In October 2009, FDEP decided not to bring its draft 

regulations before the Florida Environmental Regulatory Commission, as had been previously scheduled. 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 at any 

time 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 ID: 0849.001.005 

Response: EPA notes that the preamble to the final rule discusses the derivation of EPA’s numeric nutrient criteria, derived to 

account for the natural variability exhibited in Florida's lakes and flowing waters. EPA also wrote in the preamble to its proposed 

rule that the Agency initially relied on an extensive amount of Florida-specific data, collected and analyzed, in large part, by FDEP 

and then reviewed by EPA. EPA worked extensively with FDEP scientists on data interpretation and technical analyses for 

deriving scientifically sound numeric nutrient criteria. 

Comment ID: 1464-2.001.005 

Response: Please refer to section III.D Numeric Criterion for the State of Florida’s Springs for a discussion regarding the scientific 

methodology and justification for deriving EPA’s final numeric nutrient criterion for springs. 

Comment IDs: 0542-1.001.002, 1482-1.001.013 

Response: EPA appreciates the comment, however, this comment is outside the scope of EPA’s rule. 

Comment IDs: 1647-1.001.015, 1761-3.001.027, 1805-3.001.028 

Response: EPA disagrees that the Agency should include in its final rule biological assessment to confirm water quality impairment 

consistent with FDEP’s draft regulations. According to this final rule, when an applicable causal criterion of total nitrogen (TN) or 

total phosphorus (TP) is exceeded, the affected water segment is considered impaired and should be listed consistent with Clean 

Water Act (CWA) section 303(d). Section 303(d)(1)(A) of the CWA requires that states identify waters for which effluent limits 

required by sections 303(b)(1)(A) and 303(b)(1)(B) are not stringent enough to implement any water quality standard applicable to 

such waters. For numeric nutrient criteria for TN or TP applicable to Florida’s waters, CWA section 303(d)(1)(A) requires the State 

to identify any waters not meeting those criteria. 

Relying heavily or solely on nutrient response parameters (e.g., chlorophyll a) or biological information to determine nitrogen (N) 

and phosphorus (P) impairment is not considered a proactive approach to protecting designated uses. There is overwhelming 

evidence linking N and P loading to algal growth. Waiting until there is a response from N and P loading to trigger pollution 

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controls is not protective. Additionally, some waters may not exhibit a local response to N and P loading due to site-specific 

characteristics (e.g., turbidity limits light availability and therefore primary production) or the natural lag-time between N and P 

loading and algal growth. Further, these waters may be discharging high concentrations of N and P to downstream waters that may 

exhibit a response. Therefore, when the water quality standards include N and P criteria, the Agency believes that impairment 

listing should be based on an independent assessment of each applicable parameter, including N, P, and any response parameter 

exceedances. This approach can best protect instream and downstream waters and their designated uses. 

Comment ID: 1919-1.001.016 

Response: EPA appreciates the comment which provides a rebuttal to figures quoted by Florida DEP. Please refer to the preamble 

of the final rule which discusses the derivation of EPA’s numeric nutrient criteria, in particular section III. Numeric Criteria for 

Streams, Lakes, and Springs in the State of Florida, derived to account for the natural variability exhibited in Florida's lakes and 

flowing waters. Please also refer to section III.E Applicability of Criteria When Final for a discussion of implementation associated 

with the numeric criteria finalized in this rule. 

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