EPA Responses to Public Comments

“Phosphorus Water Quality Standards for Everglades”

This document is a compilation of the public comments received by the Environmental 

Protection Agency (EPA) from its proposed rule entitled, “Phosphorus Water Quality Standards 

for Everglades”, which was published in the Federal Register (Volume 76, Number 127) on July 

1, 2011. The 30-day public comment period ended on August 1, 2011. The EPA’s responses 

have been inserted directly into each comment letter. The original comments letters and any 

supporting documentation submitted by the public can be found in the official docket for this 

rulemaking at http://www.regulations.gov/ under Docket ID EPA-HQ-OW-2011-0515.

Table of Contents

Miccosukee Tribe of Indians..........................................................................1

U.S. Sugar Corporation................................................................................11

South Florida Water Management District.........................................................28

Florida Department of Environmental Protection..................................................31

Sugar Cane Growers Cooperative of Florida.......................................................34

New Hope Sugar Company and Okeelanta Corporation..........................................42

Friends of the Everglades..............................................................................55

Anonymous public commenter.......................................................................55
Miccosukee Tribe of Indians

of Florida

Business Council Members

Colley Billie, Chairman

Jasper Nelson, Ass't. Chairman

Max Billie, Treasurer

Andrew Bert Sr., Secretary

William M. Osceola, Lawmaker

August 1, 2011

EPA Docket Center

EPA West

Room 3334

1301 Constitution Avenue, NW 

Washington, D.C. 20460

Attention: Docket ID No. EPA-HQ-OW-2011-0515

Re: Miccosukee Tribe of Indians of Florida Comments on the Environmental Protection 

Agency's Proposed Rule for Phosphorus Water Quality Standards for the Florida 

Everglades, 40 CFR Part 131.

I. INTRODUCTION AND SUMMARY OF GENERAL ISSUES

The Environmental Protection Agency ("EPA") is proposing a rule that would clarify the 

provisions of Florida's Water Quality Standards for Phosphorus in the Everglades Protection 

Area ("Phosphorus Rule") and Florida's Amended Everglades Forever Act ("EFA") that EPA has

disapproved and that therefore are not applicable water quality standards for purposes of the Clean

Water Act. EPA is proposing this rule because the State of Florida failed to timely comply with

specific directions to strike the provisions of the Phosphorus Rule and Amended EFA that were

disapproved by the EPA and found in violation of the Clean Water Act ("CWA") by the District Court

for the Southern District of Florida.

The Miccosukee Tribe of Indians of Florida (hereinafter, "the Tribe") agrees that, due to the

State of Florida's failure to timely act, this proposed rule is necessary to comply with the directives

of the EPA, the Court, and the CWA. The Tribe agrees with EPA that the proposed rulemaking 

addresses prior disapproval by EPA of certain provisions of the Phosphorus Rule and EFA, which

resulted from a July 29, 2008 Summary Judgment Order by the District Court. 1

1 As discussed herein, Judge Gold's July 29, 2008 Summary Judgment Order identified in the

Docket as EPA-HQ-OW-2011-0515-0006, is a final order that is no longer appealable. The EPA

P.O.Box 440021, Tamiami Station, Miami, Florida 33144, (305) 223-8380, fax (305) 223-1011

Constitution Approved by the Secretary of the Interior, January 11, 1962

EPA Response to Comments 1 Docket ID: EPA-HQ-OW-2011-0515-0020

Public comments received by the EPA and EPA’s responses inserted into the document
The Tribe generally supports the proposed rule, the purpose of which is to identify those 

provisions of Florida law that the EPA has disapproved and, therefore, are not applicable to water 

quality standards for the purposes of the CWA. Additionally, the Tribe seeks clarifications as to

certain aspects of the proposed rule, offers certain suggestions, and seeks assurances from the EPA

in the final rule that it fully complies with the CWA and the Court's Orders. Finally, as discussed

herein, some of the questions that the Tribe has about the proposed rule could have been clarified

if the EPA had consulted with the Tribe prior to its publication. The Tribe is hopeful that EPA will

conduct the requisite consultation prior to finalizing the rule. EPA Response: EPA thanks you 

for your comments and to the extent a response is necessary, will address the individual 

comments related to the proposed rule below.

II. BACKGROUND COMMENTS RELATED TO EPA'S PROPOSED RULE

A. The Miccosukee Tribe and Its Unique Interests

The Miccosukee Tribe of Indians of Florida is a federally-recognized Indian Tribe 

exercising powers of self-government under a Tribal constitution approved by the Secretary of the

Interior, pursuant to the Indian Reorganization Act of 1934, 25 U.S.C. § 476. The Tribe and its

members have lived in the Florida Everglades since time immemorial. The Tribe's members reside

and work within the Florida Everglades on Indian Lands in the Miccosukee Reserved Area, which

is on the border of Everglades National Park ("ENP"), and on perpetually- leased Indian lands in a

vast area of the Everglades known as Water Conservation Area 3A ("WCA 3A") and on Federal

Reservation lands. The Everglades has been the home of the Miccosukee people for centuries and 

is an integral part of their culture, subsistence, religion, historical identity, and way of life. As

such, the Tribe has traditional, aboriginal, and statutory rights to use and occupy Everglades

National Park and the Big Cypress National Preserve.

The Miccosukee people have a spiritual and historical connection to the Everglades and use

and enjoy the entire Everglades ecosystem. The Tribe's land interests include: (i) Federal Indian

reservations located within the Everglades; (ii) perpetual Indian Reservation rights to a · portion

along the border of Everglades National Park (designated by an Act of Congress as the Miccosukee

Reserved Area); (iii) a perpetual lease to substantial portions of a vast area of the Everglades known

as Water Conservation Area 3A ("WCA 3A") that the government promised to preserve in a

natural state in perpetuity for the use and enjoyment of the Tribe; (iv) aboriginal title of Tribal

members to portions of the Everglades; and (v) rights to traditional use and occupancy in

Everglades National Park and the Big Cypress National Preserve. In a natural state, the Tribe's land

interests in the Everglades sustain a unique balance of natural resources (i.e., flora and fauna) that

support the Miccosukee culture and way of life.

proposed rule merely clarifies the provisions of the Amended EFA and the Phosphorus Rule that 

were invalidated by the District Court as contrary to the CWA in the July 2008 Order, and were 

subsequently disapproved by the EPA in the 2009 Determination and the 2010 Amended 

Determination. See EPA-HQ-OW-2011-0515-0007 and EPA-HQ-OW-2011-0515-0013.

EPA Response to Comments 2 Docket ID: EPA-HQ-OW-2011-0515-0020

Public comments received by the EPA and EPA’s responses inserted into the document
The area of the Everglades known as WCA 3A is the largest expanse of sawgrass 

Everglades left in existence, with numerous tree islands, which contribute significantly to the 

biodiversity of the Everglades. WCA 3A is also the federally designated critical habitat for the 

endangered Snail Kite under the Endangered Species Act. The Tribe and the Miccosukee people rely

upon the Everglades in its natural state, including the perpetually leased lands in WCA 3A, to support

their religious, subsistence and commercial activities. The Tribe and the Miccosukee people use these 

lands for numerous cultural, religious, recreational, commercial, and other purposes, which are

recognized uses under the perpetual lease. Among the subsistence and recreational activities of the

Tribe and its members on the leased lands are hunting, fishing, fragging, commercial air-boating, 

subsistence agriculture (including, without limitation, the planting of com on tree islands in the

lease lands for religious and subsistence purposes), as well as the gathering of native plant materials in

the Everglades.

The Tribe established its own water quality standards for its Federal Reservation lands in the 

Everglades, which were approved by the EPA on May 23, 1999. S.ee EPA's 1999

Determination on the Everglades Forever Act, EPA-HQ-OW-2011-0515-0002 at 15 n. 30. Those 

water quality standards include a 10 ppb numeric criterion for phosphorus, which the EPA found was 

"scientifically defensible" and "protective." Id. Polluted water discharged into the 

Everglades, including onto the Tribe's Federal Reservation and leased lands in WCA 3A, 

degrades the natural conditions and results in the destruction of the Everglades. The Tribe's 

members depend upon a healthy Everglades for their entire culture and way of life, and use the 

Everglades, including without limitation the leased lands in WCA 3A, the lands in Everglades National

Park, and their Federal Reservation lands in the Everglades. The way of life of the Tribe and its

members, including their religious, cultural, economic, and historical identity, is based upon the

Everglades ecosystem and upon preservation of the Everglades in its natural state, including but

not limited, to the quantity and quality of Everglades waters.

Meeting water quality standards in the Everglades is also a pre-requisite to the 

Comprehensive Everglades Restoration Plan ("CERP") that was approved by Congress in the 

Water Resources Development Act of 2000 ("WRDA 2000"). See Pub. L. No. 106-541 602(a),

114 Stat. 2963. Congress assumed when adopting CERP that the State would meet water quality 

standards in the Everglades by December 31, 2006 as a base condition. EPA also approved this 

December 31, 2006, date as a "reasonable" compliance schedule in its 1999 Determination on the

assumption that the deadline would be met. EPA-HQ-OW-2011-0515-0002 at 9 n. 15. The State did

not meet the deadline. The Tribe strongly supports the restoration of its traditional Everglades

homeland. Not only the Tribe's interests, but also the nation's interests in Everglades restoration, are

harmed if the water being discharged to the Everglades is not clean. The EPA's proposed rule is 

necessary to help ensure that the provisions of the Amended EFA and the Phosphorus Rule,

which were found to be in violation of the CWA years ago, are no longer relied upon. Compliance 

with the CWA is necessary for Everglades restoration, and to protect

EPA Response to Comments 3 Docket ID: EPA-HQ-OW-2011-0515-0020

Public comments received by the EPA and EPA’s responses inserted into the document
the Everglades and the Miccosukee Tribe, whose members depend on the Everglades in its 

natural state for their entire culture and way of life.

B. Judge Gold's Ruling in Favor of the Miccosukee Tribe and the Everglades

1. The District Court's July 29, 2008 Summary Judgment Order

The Miccosukee Tribe has filed a number of Clean Water Act lawsuits in their decades long

struggle to protect their Everglades homeland from pollution. The lawsuit at issue here Miccosukee

Tribe of Indians of Florida; and Friends of the Everglades v. United States of America, eta!, v.

United States of America eta!., No. 04-21488-GOLD was filed by the Tribe more than seven 

years ago. This case involves the protection of the Florida Everglades, the Tribe's homeland, and the

failure of the EPA and State of Florida Department of Environmental Protection ("DEP") to enforce

the CWA, 33 U.S.C. 1251 et seq. On July 29, 2008, the District Court entered its Order Granting 

Summary Judgment in favor of the Tribe. See EPA-HQ-OW-2011-0515-0006 at 2. In its Order, the

Court found that the Florida legislature had "violated its fundamental commitment and promise to

protect the Everglades." Id. at 2. The Court also found that the EPA acted contrary to the CWA and

the Administrative Procedures Act ("APA") when it determined that the 2003 Amendments to 

Florida's Everglades Forever Act, and the accompanying Phosphorus Rule, did not change water 

quality standards in the Everglades Protection Area. Id. at 2, 98-101. The court remanded with

direction to the EPA to review the Amended EFA and sections of the Phosphorus Rule to ensure 

its actions complied with the CWA and the Court's Summary Judgment Order. Id. at 98-101. The

Court also enjoined DEP from issuing permits that relied on disapproved portions of the Phosphorus 

Rule. Id. at p. 100. The Court found that "irreparable injury to the Everglades and to the Plaintiff 

[Tribe] will be suffered unless this injunction issues..." Id. at 98.

2

2. The EPA's 2009 Determination

After well over a year had passed since the Court issued its July 2008 Order, and neither EPA

nor DEP had complied with its findings and directives, the Tribe filed a motion to compel compliance. 

Subsequently, sixteen months after the Court issued its Order, the EPA finally issued its

December 4, 2009 Determination that reviewed portions of the Amended EFA and Phosphorus Rule

as a change in water quality standards. While the EPA correctly states in the proposed rule that it

disapproved of certain provisions of the Phosphorus Rule and the Amended EFA (FR 38594), the

Tribe disagrees that it did so in a manner that was completely consistent with the Court's Order. 

Indeed, the Tribe argued that the Determination did not comply with the Order because, among 

other things, it created large loopholes that the State, and permittees, could use to avoid

compliance. Although the 2009 Determination did inform the State that "[t]he

2

The Summary Judgment Order is now a final, binding order.

EPA Response to Comments 4 Docket ID: EPA-HQ-OW-2011-0515-0020

Public comments received by the EPA and EPA’s responses inserted into the document
provisions that USEPA is disapproving today and the provisions that the Court declared invalid 

are no longer in effect for CWA purposes," it did not require further action pursuant to CWA 

section 303(c). See EPA-HQ-OW-2011-0515-0007 at 10. The Tribe submitted to the Court that the

EPA should more clearly identify the specific provisions of the Amended EFA and the Phosphorus

Rule that were disapproved and ensure that the State adopted the revisions.

3. The District Court's April14, 2010 Compliance Order

After extensive briefing and a hearing, the Court issued the April 14, 2010 Compliance 

Order. See EPA-HQ-OW-2011-0515-0008. The Compliance Order found that "...the State of 

Florida has violated the Summary Judgment Order and evidenced a consistent disregard for the 

requirements of the CWA in the Everglades Protection Area." Id at 28. It further found that, 

"although I unambiguously ordered the EPA to require the State of Florida to comply with the 

Clean Water Act in a manner consistent with the Order, the EPA's recent 2009 Determination has

failed to do so." Id. at 8. The Court observed that "... the 'established wrong' here is the failure of

the EPA and the State of Florida to comply with the CWA for more than two decades."

Id. at 44. The Order concluded: "the EPA and DEP are directed to take specific [action] set forth

below to immediately carry out the mandate I have already issued." Id. at 44. While the Court 

found it necessary to provide directives that EPA and DEP must follow to enforce compliance with

the mandate, it specifically noted that it would leave to the EPA the specific "substance and 

manner" of achieving such compliance. Id. at 39, 44. Among other things, the EPA was ordered to

issue an Amended Determination by September 3, 2010, and directed that: "[t]he Amended 

Determination shall specifically direct the State of Florida to correct the deficiencies in the 

Amended EFA and the Phosphorus Rule that have been invalidated..." Id. at 44. The Order also 

directed that, "[t]he EPA shall require the State of Florida to commence and complete 

rulemaking for the Phosphorus Rule within 120 days from the date of the Amended 

Determination and shall require amendments to the Amended EFA to be enacted by July 1,

2011." Id at 44-45. Finally, it provided that, "[i]n the event the State of Florida fails to timely act,

the EPA shall provide timely notice, and the EPA Administrator "shall promulgate such 

standard[s] pursuant to U.S.C.§1313 (c)." Id. at 45.

4. The EPA's 2010 Amended Determination

Pursuant to the Court's April14, 2010 Order, the EPA issued its Amended Determination 

on September 3, 2010. See EPA-HQ-OW-2011-0515-0013. In the Amended Determination, the 

EPA, among other things, notified the DEP that "the narrative and numeric criteria in the State's 

water quality standards are not being met for the Everglades Protection Area." Id. at i. In the 

Executive Summary the EPA advised: "In the event the State fails to timely correct the 

deficiencies in the Amended EFA and the Phosphorus Rule, USEPA will provide timely notice and 

promulgate revised standards pursuant to 33 U.S.C. §1313 (c)." Id. Section II of the 

Amended Determination contained directions for correcting the deficiencies in the Florida

EPA Response to Comments 5 Docket ID: EPA-HQ-OW-2011-0515-0020

Public comments received by the EPA and EPA’s responses inserted into the document
Phosphorus Rule and Amended EFA. Id. at 6. As required by the Court (Compliance Order at

44-45) and based on EPA's authority under CWA Section 303 (c)(3), EPA directed the DEP to 

revise § 62-302.540 of the Florida Administrative Code (F.A.C.) [Water. Quality Standards for 

Phosphorus Within the Everglades Protection Area] and to complete its rulemaking by July 1,

2011. !d. Additionally, the EPA directed the State of Florida to "enact amendments to the

Amended EFA by July 1, 2011." Id. The EPA advised: "[i]f the State of Florida fails to act in a 

timely manner, USEPA will initiate rulemaking to promulgate revised standards pursuant to CWA

section 303 (c) to be consistent with the Court's 2010 Order (at 44-45). Id.

5. The District Court's April 26, 2011 Omnibus Order

On April 26, 2011, the Court issued an Omnibus Order which included the Indicative 

Ruling on a Rule 60(b) motion filed by EPA, decided a number of pending motions, and also 

contained an Indicative Order. See EPA-HQ-OW-2011 0515-0010. The 2011 Omnibus Order 

emphasized that, "[t]he heart of this matter remains in enforcement under the Clean Water Act 

(CWA)." Id at 2 (emphasis added). While the Court found that, "[t]o its credit, the EPA now has

come forth - following a lengthy history of inaction - with an Amended Determination that 

serves to protect the Everglades resource," in contrast, it found that the State of Florida and the 

South Florida Water Management District "have not been true stewards of protecting the 

Everglades in recent years." Id. The Order further states: "I unequivocally ordered the EPA to 

direct the State to take specific action. The State's response was to assert that it cannot take the 

action as required and thus, to fail to fully comply with my prior orders. Accordingly, now I must

further use the equitable inherent powers as described infra and in my prior orders to put into

EPA's hands the steps to move forward." Id. at Pgs. 54-55. "The primary purpose of this latest

Order is to put into the hands of the EPA all the resources necessary to enforce its action plan and

to implement its full power under the Congressional Clean Water Act." Id. at 3.

III. GENERAL COMMENTS RELATED TO EPA'S PROPOSED RULE

As discussed above, EPA was required, by the District Court, and the Clean Water Act, to

promulgate revised standards concerning the provisions of the Phosphorus Rule and Amended 

EFA that had been disapproved by EPA, if the State failed to do so in a timely manner. To that 

end, the rulemaking notice states that "EPA is proposing Federal standards to address the 

portions of Florida's standards that EPA disapproved and that have not been revised by the State."

See FR 38593. The notice provides that, "EPA is proposing today's rule following its disapproval

of these provisions and EPA's specific directions to the State of Florida to correct these

deficiencies in the Phosphorus Rule and EFA." Id. Since the State failed to timely act on the

directives that EPA issued in its Amended Determination, the EPA is now proposing a rule to 

"implement two orders by the U.S. District Court for the Southern District of Florida." See FR

38952. EPA is proposing to amend 40 CFR Part 131, Subpart D § 131.44 Florida related to: (a)

EPA Response to Comments 6 Docket ID: EPA-HQ-OW-2011-0515-0020

Public comments received by the EPA and EPA’s responses inserted into the document
the Phosphorus Rule and (b) the Amended Everglades Forever Act. See FR 38597. EPA has invited the

public to submit comments regarding EPA's approach of identifying, through incorporation by reference,

those provisions of the Phosphorus Rule and EFA that are not applicable water quality standards for

purposes of the CWA." See FR 38593.

The Tribe agrees that the State's recalcitrance has made it necessary for the EPA to promulgate

Federal standards to clarify the sections of the Phosphorus Rule and the Amended EFA that are not

applicable water quality standards for purposes of the CWA. However, the Tribe seeks certain clarifications

and assurances from EPA concerning its approach in the final rule, and offers some suggestions.

First, the Tribe is concerned that it could create uncertainty for the EPA to merely "incorporate by

reference" [to documents in the docket] those sections of the Phosphorus Rule and Amended EFA that have

been disapproved in 40 CFR Part 131. Executive Order 13563 requires that regulations be accessible and

that they "must promote predictability and reduce uncertainty." It is vital that the provisions of the 

Amended EFA and the Phosphorus Rule, which have been disapproved, be easily accessible and that there

is no uncertainty as to which water quality standards apply to the Everglades Protection Area. Requiring

permittees to access a separate docket, rather than the regulation itself, to find out which provisions have

been stricken could lead to uncertainty and a failure to abide by the CWA. Thus, if it is "not appropriate for

the agency to incorporate the complete Phosphorus Rule and EFA as Federal regulations," (FR

38595), the EPA should at least provide the full text of the provisions of the Amended EFA, and the

Phosphorus Rule that have been disapproved in a complete, clear, and simple manner both in the final rule

and in Part 131.44. See FR 38597. Moreover, the Tribe suggests that the Table 1 and Table 2 summaries, 

which are currently included in Section III of the rulemaking proposal, should be contained in 40 CFR

Part 131. The final rule should also clearly state that these Federal regulations supersede the State's water

quality standards that have been disapproved. EPA Response: EPA appreciates your comments and 

understands your concern. However, EPA is only promulgating a rule identifying and incorporating by

reference the stricken language since the rest of the State’s rule is unchanged. The CWA does not 

authorize EPA to promulgate water quality standards that would duplicate State standards that EPA has 

approved and that remain in effect under State law. EPA determined that publishing the approved 

sections of the Rule and EFAA might be equally confusing for readers who may conclude EPA has 

promulgated those portions of the Rule and EFAA also. The stricken language will be available in 

several forums including the court’s docket which EPA believes will provide adequate access. The 

documents to be incorporated by reference will be available on the docket at http://www.regulations.gov,

through EPA’s Office of Water Docket Center (EPA West, Room 3334, 1301 Constitution Avenue NW, 

Washington, D.C. 20004, telephone number 202-566-2426), through EPA’s website 

(http://water.epa.gov/lawsregs/rulesregs/floridaeverglades_index.cfm) for this rulemaking, and the 

National Archives and Records Administration by sending a request by email to fedreg.info@nara.gov, 

or by mail to the following address: Office of the Federal Register (NF), The National Archives and 

Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.

Second, the Tribe suggests that it would be prudent for the EPA not to make what it refers to as

"minor text changes" to the Phosphorus Rule and Amended EFA. See FR 38594. , These text changes are

unnecessary and could be misconstrued as amendments to state law by those who continue to seek to thwart

EPA Response to Comments 7 Docket ID: EPA-HQ-OW-2011-0515-0020

Public comments received by the EPA and EPA’s responses inserted into the document
the Court's final Summary Judgment Order. EPA itself says that it is making these changes, identified by

underline, merely for the convenience of the reader and to improve the readability of the document." Thus,

such changes are clearly unnecessary and making them could result in unintended consequences. For

instance, the Tribe contends that the EPA should not replace the term Long Term Plan in the title of Section

3 of the Amended EFA with Phosphorus Control Plan, since the Court and the EPA only disapproved

certain provisions of the Long Term Plan and not the entire Long Term Plan. The proposed rule itself

states that because the Phosphorus Rule and Amended EFA are Florida laws, EPA could not "amend" those 

state laws. See FR 38595. Thus, since the EPA "is not proposing to establish new or revised water quality

standards with these text changes," the Tribe believes that it would be prudent for the EPA to leave out

these proposed "minor text changes" to remove any possibility that such changes will be misconstrued as

amendments to state laws and open to challenge. EPA Response: EPA appreciates the Tribe’s concern 

but EPA continues to believe these changes are necessary to ensure that terms like “Long Term Plan” 

(which were invalidated by the District Court) were no longer perpetuated in the Phosphorus Rule or the 

EFAA. These clarifying changes do not affect the substance of the rulemaking.

Third, it is the Tribe's understanding that the "EPA is proposing federal standards to address the

portions of Florida's standards that EPA disapproved and that have not been revised by the State," (FR 

38593) but concluded that it was "not appropriate for the agency to incorporate the complete

Phosphorus Rule and EFA as Federal regulations." See FR 38595. Among other things, EPA reasoned that

because the Rule and Amended EFA are Florida laws, EPA could not "amend" those state laws. Id. The

Tribe seeks clarification in the final rule as to what the agency means by "not appropriate," since it is the

Tribe's understanding that the EPA would not be precluded from publishing the complete Phosphorus Rule

(Florida's Water Quality Standards for Phosphorus in the Everglades Protection Area), with approved and

disapproved portions, as a Federal standard. EPA should also explain if there may come a time in the

future that it might be necessary to do so if the State continues to prolong removing the disapproved 

provisions. EPA Response: EPA’s action is intended to reduce the potential for confusion and identify the 

provisions of State law that EPA has disapproved and that, therefore, are not in effect for federal Clean 

Water Act purposes. For example, a person interested in determining applicable provisions of State water

quality standards for phosphorus in the Everglades could be confused and left unaware that EPA had

disapproved certain provisions if such person were only to consult State laws and regulations since State 

laws and regulations continue to be re-published containing the revisions to State water quality standards 

that EPA had disapproved. However, EPA cannot publish the entire rule or EFA, as that would be the 

equivalent to promulgating an existing state law. In this case, the provisions of the revised State water 

quality standards that EPA disapproved remain applicable under State law. 

Finally, the Tribe would like the EPA to explain in its final rule the practical effect of promulgating

Federal standards for only the disapproved provisions of the Phosphorus Rule, which is entitled Water

Quality Standards for Phosphorus Within the Everglades Protection Area. Specifically, the Tribe seeks

assurances from the EPA that disassociating the disapproved portions of these Water Quality Standards

from the approved portions will not result in confusion that leads to non-compliance with the Clean Water

Act. The Tribe is very much aware that the District Court has repeatedly made it clear that that it would

EPA Response to Comments 8 Docket ID: EPA-HQ-OW-2011-0515-0020

Public comments received by the EPA and EPA’s responses inserted into the document
leave to the EPA, the specific substance and manner of achieving compliance with the CWA and its

Orders. See EPA-HQ- OW-2011-0515-0013. The Tribe is also aware that Executive Order 13563 instructs

agencies to tailor their regulations. Thus, the Tribe is generally supportive of the proposed rule but would 

like the EPA to provide additional assurances in the final rule that the manner in which it is adopting these

Federal standards will ensure compliance with the CWA and the Court's Orders. EPA Response: Thank 

you for your comment. In taking this action EPA is assuring that the CWA and the Court’s Orders will 

be fully complied with. 

IV. COMMENTS ON EPA'S STATUTORY AND REGULATORY REVIEWS

The Tribe agrees with the vast majority of conclusions in EPA's Statutory and Executive Order

Reviews contained at FR 38596. Since, as EPA explains, "this proposed action merely clarifies the water

quality standards concerning the Phosphorus Rule and the Amended EFA," the EPA is correct that this

action: 1) is not a "significant regulatory action" under Executive Order 12866; 2) does not impose any 

information collection burden on anyone and the Paperwork Reduction Act does not apply; 3) "does not

impose any burden on anyone" and the Unfunded Mandates Reform Act does not apply; 4) "does not have

Federalism implications" pursuant to Executive Order 1312; and 5) does not subject the EPA to Executive

Order 12898. See FR 38596. Furthermore, EPA correctly explains that while Florida's implementation of

the Rule might ultimately result in some new or revised permit conditions for some dischargers, "EPA's 

action today would not impose any· of these yet unknown requirements on small entities." See FR

38596.

3 EPA is also correct that this proposed action is not economically significant and does not propose

a disproportionate risk to children and, thus, is not subject to Executive Order 13211. EPA also correctly 

concludes that this action is not subject to Executive Order 13211, "because it is not likely to have a

significant adverse effect on the supply, distribution, or use of energy." Also, since as EPA explains, "[t]his

proposed rulemaking does not involve technical standards," EPA is correct not to use the voluntary

consensus standards contained in the National Technology Transfer and Advancement Act. Id

The Tribe, however, does not agree with EPA's determination that "because this is an action in

which the EPA has no discretion, i.e., EPA is mandated by the Court to take this action. Thus, Executive

Order 13175 does not apply to this action." See FR 38596. While the Tribe agrees with EPA's assessment

in relation to the other sections that "this proposed action merely clarifies the water quality standards

concerning the phosphorus rule and the Amended EFA statute that are not water quality standards for the

purposes of the CWA" that were invalidated by Judge Gold in his 2008 Summary Judgment Order and

disapproved by EPA in its 2009 Determination, this does not absolve the EPA of it general trust

responsibility to consult with the Tribe on issues that are important to Tribal interests. The Tribe believes

that the result of Judge Gold's invalidation of the provisions of the Amended EFA and Phosphorus Rule

that do not comply with the CWA are extremely positive for the Tribe and its Everglades homeland. The 

Tribe also agrees with the EPA that it was necessary for EPA to use Section 303(c)(3) of the Act to clarify 

those portions of the Amended EFA and the Phosphorus Rule that are not water quality standards for

purposes of the Clean Water Act when the State failed to do so. See FR 38593. However, contrary to EPA's 

assertion, the Tribe contends that the agency does have a duty to consult on the proposed rule pursuant 

EPA Response to Comments 9 Docket ID: EPA-HQ-OW-2011-0515-0020

Public comments received by the EPA and EPA’s responses inserted into the document
to Executive Order 13175 and its general trust responsibility and should conduct such consultation

prior to issuing the final rule. See FR 38596. EPA Response: Thank you for your comment. EPA 

conferred with the Tribe prior to promulgation of the regulations in response to this request and 

consistent with the spirit of EO 13175. As a party to the litigation that led to this promulgation action, 

the Tribe has participated in the court proceedings, including in development of the revisions that the 

Court directed EPA to direct to the State. 

V. CONCLUSION

In the words of Judge Gold: “It is now, and has been for a while, time to take concrete and

substantial progress toward preserving the Everglades before this national treasure is permanently

destroyed to the extent of irreparable destruction. See EPA-HQ-OW-2011-0515-0010 at 73. As discussed

herein, because the State has failed to timely comply with EPA's directives, it was necessary for the agency

to promulgate these proposed Federal standards to clarify the portions of the Amended EFA and the

Phosphorus Rule that were disapproved by the EPA as contrary to the Clean Water Act, as a result of

Judge's Gold's July 29, 2008 Summary Judgment Order and subsequent Compliance Order. While the Tribe

was forced to file a lawsuit to get EPA to comply with the Clean Water Act, it is hopeful that this proposed

rule and EPA's Amended Determination are positive steps toward ensuring that the State of Florida

complies with the Clean Water Act. Additionally, the Tribe is confident that its suggestions concerning 

reducing ambiguity and uncertainty in the proposed rule would help toward that end. Finally, as stated 

earlier, the Tribe believes that the EPA was required to consult pursuant to its solemn trust responsibility

and Executive Order 13175 prior to issuing the proposed rule, and hopes that EPA will still do so. There

exists some vagueness in the proposed rule that could have been clarified through appropriate consultation,

and the Tribe requests such consultation prior to finalization of the rule. In spite of this shortcoming, the

Tribe believes that EPA's clarification of the water quality standards concerning the Phosphorus Rule and

the Amended EFA that are not water quality standards for CWA purposes is necessary to help ensure

compliance that is necessary to protect the Tribe's Everglades homeland from pollution.

3

In any event, the Tribe contends that any new or revised permit conditions that might ultimately result

from EPA's, and the Court's prior disapproval of provisions that violate the Clean Water Act, are irrelevant

since small entities must comply with the law.

Colley Billie, Chairman

Miccosukee Tribe of Indians of Florida 

P.O. Box 440021, Tamiami Station Miami, FL

33144

Telephone: (305) 223-8380

EPA Response to Comments 10 Docket ID: EPA-HQ-OW-2011-0515-0020
.

GUNSTER

ATTORNEYS AT lAW

Our File Number: 00013776-00102

Writer's E Mail Address: lphillips@gunster.com

Writer's Phone Number: 954-712-1478

August 1, 2011

VIA ELECTRONIC MAIL ONLY 

Water Docket

U.S. Environmental Protection Agency

Mail code: 2822T

1200 Pennsylvania Avenue, NW

Washington, DC 20460

Administrator Lisa Jackson

Environmental Protection Agency

1200 Pennsylvania Avenue, NW 

Washington, DC 20460

Attention: Docket ID No. EPA-HQ-OW-2011-0515

Re: Public Comments on the Environmental Protection Agency's Phosphorus Water 

Quality Standards for Florida Everglades; Proposed Rule 40 C.F.R Part 131, Publicly 

Noticed on July 1, 2011- Docket ID No.EPA-HQ-OW-2011-0515

Dear Administrator Jackson:

On behalf of our client, United States Sugar Corporation ("USSC" or "U.S. Sugar"), we 

thank you for the opportunity to submit comments on the July 1, 2011, proposed rule for 

Phosphorus Water Quality Standards for Florida Everglades, 40 C.F.R. Part 131 ("Proposed 

Phosphorus Rule"). USSC incorporates by reference its Index of Supporting Documents 

attached as Exhibit A. The Supporting Documents in Exhibit A were submitted under separate 

cover, in electronic format. Please include this comment letter along with the Supporting 

Documents as part of the administrative rulemaking record for the Proposed Phosphorus Rule.

I. USSC's Substantial Interests in the Proposed Phosphorus Rule

USSC has a particular interest in the Proposed Phosphorus Rule because it directly 

impacts the Everglades Agricultural Area ("EAA"). A majority of USSC's land and farming

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Page 2

operations are located in the BAA. In addition, USSC holds various regulatory approvals which 

will be affected by the adoption of this Proposed Phosphorus Rule.

USSC produces sugar cane and refined cane sugar and is one of Florida's major 

producers of oranges and orange juice products. Dependent upon weather, growing conditions and

federal market allocations, USSC produces over six million tons of sugar cane each year, which

equates to approximately 700,000 tons of sugar each year, providing nearly eight percent of the

sugar produced in America. In total, USSC owns and operates approximately 130,000 acres of

agricultural lands in the EAA.

In order to manage its extensive farming operations, USSC implements numerous 

regulatory authorizations which address water quality, water quantity, natural resources and water

supply. These authorizations will be affected by the Proposed Phosphorus Rule. The 

authorizations allow USSC to use and manage surface waters and ultimately release these waters 

from its agricultural lands into EAA canals. The EAA canals eventually flow into Stormwater 

Treatment Areas ("STAs") operated by the South Florida Water Management District ("District"). 

These STAs, in turn, discharge into the Everglades and are operated and managed by the District,

with permits issued by the Florida Department of Environmental Protection. These permits

implement the Proposed Phosphorus Rule and would be impacted by the proposed revisions,

which in turn, directly impacts USSC's authorizations and farming operations.

The ability of USSC to meet its regulatory requirements and manage its agricultural 

operations will be adversely affected by the Proposed Phosphorus Rule in the following manner:

• U.S. Sugar operates under a collective compliance system pursuant to, inter alia, F.A.C.

Rules 40E-63.102(8) and 40E-63.11 0(1), that would be substantially affected by changes 

to the Proposed Phosphorous Rule or changes to the permitted discharge requirements 

imposed on the STAs;

• U.S. Sugar funds, through special purposes taxes, water projects that are designed to meet 

statutory and regulatory standards which would be substantially affected by the Proposed 

Phosphorus Rule;

• U.S. Sugar implements a set of on-farm controls required by state Law as part of a 

coordinated system of water quality measures that would be substantially affected by the 

change in standards set out in the Proposed Phosphorus Rule; and

• U.S. Sugar has participated in certain federal and state litigation and the state's 

administrative rulemaking proceedings for decades - including, specifically, the 2004 

rulemaking challenge filed against the State's (identical) Phosphorus Rule, which 

developed the current Everglades water quality standards and regulations.

Moreover, the Florida Legislature has specifically recognized the special interest of the 

agricultural industry in the EAA. See Fla. Stat. § 373.4592(1) and (3). EAA farm interests, such

as U.S. Sugar, have a clear, special and substantial interest in matters affecting the interpretation and

application of a numeric nutrient criteria in the Everglades; in matters affecting the District's

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Page 3

compliance with statutory and regulatory requirements affecting the EAA, and in matters 

affecting Lake Okeechobee and Everglades water storage, flows and deliveries, and flood 

control.

The standing of EAA farmers to participate in the development of nutrient requirements for

the STAs and Everglades was similarly recognized by the United States Eleventh Circuit Court of

Appeals in United States v. South Florida Water Management District, 922 F. 2d 704

(11'

11 Cir. 1991) ("U.S. v. SFWMD"). In U.S. v. SFWMD the United States Eleventh Circuit

Court of Appeals held that legal proceedings affecting water quality standards implicated EAA 

farmers' direct substantial and legally protectable interests. U.S. v SFWMD, 922 F. 2d at 706. The 

Eleventh Circuit also noted that EAA farmers had "a legally protectable right . . . to participate

and comment in the administrative development of the [regulation], and to pursue an administrative 

appeal." Thus, the Eleventh Circuit recognized both a legally protectable interest and one that was

direct and substantial in the setting of, and compliance with, Everglades water quality standards, as the

denial of a right to participate would cut off farmers' "only means of defending their interest in the

water [management] district's operations." Id.

The Proposed Phosphorus Rule modifies the State of Florida's existing Phosphorus Rule in 

Chapter 62-302, F.A.C., to require unnecessarily stringent criteria. The criteria is unnecessarily

stringent because it far exceeds the mandates in the Court's Orders in Miccosukee Tribe of Indians of

Florida v. United States of America, et al., Case No. 04-21448 ("The Gold Case"). (See, Index of

Supporting Document Nos. 12 and 15). The Proposed Phosphorus Rule deletes two important 

provisions that will affect USSC. See Proposed Phosphorus Rule, p.38595, Table 1 (deleting

Sections (4)(d)(2)(c) and (5)(b)(2)). By deleting these two sections, the rule imposes the ambient 

10 ppb numeric criterion limitation at the point of discharge 1 and ignores the affects of reflux 

in the system. Explained in more detail below, these changes substantially and adversely affect the

regulatory burden to U.S. Sugar. EPA Response: EPA appreciates your comments but does not 

agree that the proposed changes “far exceed the mandates of the Court’s Orders.” An ambient 

criterion establishes the level of water quality (in this case, in terms of pollutant concentration) 

that is necessary to protect the designated uses of a water body. Criteria do not themselves apply 

directly as effluent limits on discharges, but instead provide the receiving water quality target 

from which single-point discharge effluent limitations must be derived. This is not relevant to 

consider “reflux” of phosphorus resulting from years of phosphorus discharges in determining

the criterion that would achieve the intended designated uses.

As farmers and stewards of the land, USSC is committed to ecosystem restoration and to 

continuing efforts to improve the environmental sensitivity of its farming operations. However, we

respectfully believe that the United States Environmental Protection Agency's (EPA) haste to 

complete the Proposed Phosphorus Rule has resulted in a rule that is contrary to federal law.

1 The point of discharge is where the District's STAs discharge water into the Everglades Protection Area.

2

See USSC's Index of Supporting Documents, No. 16.

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For the reasons discussed in this letter, the Proposed Phosphorus Rule constitutes an abuse of

EPA's discretion and is arbitrary and capricious. EPA should withdraw the Proposed Phosphorus 

Rule and allow the FDEP to continue its rulemaking efforts on the same rule, as discussed further

below2. Alternatively, serious consideration can be given to either abating this rule effort until all

appeals of the underlying lawsuit are finalized or inserting clarifying language to address the

concerns raised in this comment letter.

Should the EPA finalize the Proposed Phosphorus Rule as proposed, USSC believes it 

would not withstand an administrative challenge, pursuant to the requirements in the Federal 

Administrative Procedures Act, 5 U.S.C. 551-559, 701-706. The Proposed Phosphorus Rule 

violates the Federal Administrative Procedures Act and the Clean Water Act ("CWA").

II. Background on the Proposed Phosphorus Rule

On July I, 2011, the EPA published its proposed Phosphorus Water Quality Standards for 

Florida Everglades in the Federal Register ("Proposed Phosphorus Rule"). EPA stated that the 

purpose of the Proposed Phosphorus Rule was to identify provisions of Florida's Water Quality 

Standards for Phosphorus in the Everglades Protection Area ("Phosphorus Rule") and Florida's 

Amended Everglades Forever Act ("EFA") that were disapproved and not applicable water 

quality standards, per the CWA. EPA states that its disapproval and specific directions to Florida

are the sole result of orders entered by Judge Gold in the U.S. District Court for the Southern

District of Florida. Moreover, EPA admits that the sole reason it is embarking on this rulemaking

effort (instead of allowing the State of Florida to do so) is because of these Court Orders. EPA

alleges that because FDEP failed to rule, EPA must do so.

3

The two orders referred to by the EPA are from the Gold Case. That case sought 

Administrative Procedure Act ("APA") review of EPA's determinations on whether the 

Phosphorus Rule

4 and the 2003 amendments to the EFA5

changed water quality standards. EPA 

had previously approved these changes.

The Phosphorus Rule establishes a numeric water quality criterion for phosphorus of I 0 

ppb, as well as provisions on how to measure and achieve the criterion in the Everglades. As 

discussed below, EPA's previous determinations concluded that the Phosphorus Rule complied 

with the CWA requirements.

Florida's Phosphorus Rule was adopted in 2004 and is located in Rule 62-302.540, F.A.C. 

On January 24, 2005, the EPA issued a letter to the Florida Department of Environmental

Protection ("FDEP") regarding EPA's review of the State's Phosphorus Rule. (See, Index of

Supporting Documents No. 18). EPA stated that its "review of the submitted Phosphorus Rule,

and supporting information provided by FDEP...", led to the conclusion, that "with the exception

of Subparagraph (4)(c)(l), the requirements of the CWA and provisions of

3 USSC disagrees with the EPA's characterization that the State did not correct the alleged deficiencies in the

Phosphorus Rule, as discussed herein.

4 Rule 62-302.540, F.A.C.

5

§ 373.4592, Fla. Stat.

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Page5

40 CFR Part 131 have been met." EPA approved paragraph (4)(a) of the Phosphorus Rule as a

"change in state water quality standards," under the CWA and implementing regulations.

The only portion of the Phosphorus Rule the EPA did not approve in 2005 was 

Subparagraph (4)(c)(1) because it limited "applicability of the phosphorus criterion to certain 

portions of the Loxahatchee Wildlife Refuge and thus USEPA is not able to conclude that it is 

protective of the designated use of the entire Refuge." 6 Pursuant to the CWA, Florida's

Phosphorus Rule became the applicable water quality standard for phosphorus in the Everglades.

The EPA again reviewed portions of Florida's Phosphorus Rule in May 2006. (See, Index 

of Supporting Documents, No. 20). Specifically, the EPA reviewed subsections (1), (2), and 

(5)(a)-(d). EPA concluded that subsections (1), (2), and (5)(a)-(c) were not new or revised water 

quality standards. The EPA determined that subsection (5)(d) was a new or revised water quality 

standard, but approved the section as "consistent with the requirements" of the CWA, pursuant to 

Section 303(c) of the CWA. In these prior instances, EPA approved and disproved sections of the

Phosphorus Rule without promulgating its own federal rule, unlike now.

The Gold Case arose from challenges filed against EPA and the State of Florida 

regarding those 2005 and 2006 determinations. The Court, in a July 2008 order, upheld EPA's 

approval of the Phosphorus Rule's numeric phosphorus criterion and the "four-part" test for 

determining attainment of the criterion. The Court, however, invalidated the moderating 

provisions and the Long-Term Plan in the rule. Attached to the Court's Order was a "red-lined" 

version of the Phosphorus Rule. (See, Index of Supporting Document No. 15). The redlined 

version included rule deletions, unrelated to the moderating provisions or the Long-Term Plan, 

thus exceeding the scope of the Court's Orders, which only invalidated the moderating 

provisions and the Long Term Plan.

Furthering this disconnect, EPA included the entirety of this redlined version in this 

Proposed Phosphorus Rule. Without any analysis, discussion or justification for each deletion, 

EPA proposes the same deletions included in the redlined version, instead of deleting the rule 

sections disproved in the substance of the Court's Order. USSC objects to these additional 

deletions because they are outside the scope of the Court's 2008 Order and critically affect how 

the 10 ppb criterion is measured and achieved in the Everglades.

Regardless of the requirements in these judicial orders, EPA must adhere to the CWA and

the Federal Administrative Procedures Act to properly promulgate a rule. In its previous 

determinations, EPA discussed and analyzed each section of the Phosphorus Rule, stating its 

rationale for approval or disapproval. Here, EPA does not. Without any independent analysis or

"sound scientific rationale" for each proposed deletion, EPA's rulemaking IS arbitrary and 

capricious.

6 The FDEP later removed this paragraph, which the EPA disapproved.

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III. The Specific Deletions to the Proposed Phosphorus Rule

that are Arbitrary and Capricious

A. The Four-Part Test's Application in Impacted Areas

The Proposed Phosphorus Rule deletes the following language,

"If these limits are not met, no action shall be required, provided

that the net improvement or hydropattem restoration provisions of

subsection (6) below are met,"

Rule 62-302.540(4)(d)(2) (c), F.A.C.

This language addresses how the four part test will be measured and achieved in the 

impacted areas of the Everglades. The State's Phosphorus Rule presently measures for 

compliance using what is commonly called the "the four-part test". The four parts of the test, 

measured in the water column, require compliance with (i) a 5-year geometric mean of 10 ppb 

averaged across the water body; (ii) meeting an annual geometric mean of 10 ppb, averaged 

across the water body in 3 of every 5 years; (iii) meeting an annual geometric mean of 11 ppb, 

averaged across the water body in any given year; and (iv) meeting an annual geometric mean of

10 ppb in any given monitoring site. EPA Response: As discussed below, EPA disagrees that the 

language cited addresses how the four part test will be measured and achieved in impacted areas. 

The cited provision is a moderating or variance provision that would change the criterion if 

implemented through a permit.

It is s well established that the impacted areas of the Everglades do not meet the four part 

test (unlike the unimpacted areas). (SFERReport 2011, Amended Determination). Because of 

this, the Phosphorus Rule included alternative means for compliance in the impacted areas (net 

improvement and hydropattern restoration). This language recognized that while impacted areas 

may not meet the four-test, permit holders discharging into these areas can undertake these 

activities, remain in compliance and move towards restoring the Everglades.

By deleting the above language, EPA would require the impacted areas of the Everglades 

to comply with the four-part test, immediately. EPA knows this is unattainable. EPA's own 

research and documents, including the September 2010 Amended Determination filed with Judge 

Gold, acknowledge that restoration activities are needed in order for the impacted areas to be 

restored to water quality standards. EPA estimates in its Amended Determination that such 

restoration activities may take as long as 10 years before impacted areas are restored. (See, 

Index of Supporting Documents, No. 13, Amended Determination, page 28). In the face of its 

own science and statements, it is arbitrary and capricious for EPA to require immediate 

compliance with the criterion in impacted areas. EPA Response: As discussed in more detail 

below, whether a criterion is achieved in a water body reflects whether the water body is meeting 

its designated use. Attainment or non-attainment of criteria and uses in the water quality 

standards context are different from compliance or non-compliance in an enforcement context.

In addition, deleting the net improvement provision is inconsistent with the EFA statutory 

language. The underlined language below was not "redlined" by the Gold Order and is not deleted in

EPA's own rule notice.

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The language states,

The Department shall use the best available information to define 

the relationships between waters discharged to, and the resulting 

water quality in, the Everglades Protection Area. The department 

or the district shall use these relationships to establish discharge 

limits in permits for discharges into the EAA canals and the 

Everglades Protections Area necessary to prevent imbalance in the 

natural populations of aquatic flora and fauna in the Everglades 

Protection are and to provide net improvement in the areas already

impacted.

Compliance with the phosphorus criterion shall be based upon a 

long term geometric mean of concentration levels to be measured 

at sampling stations recognized from the research to be reasonably 

representative of receiving waters in the Everglades Protection 

Area, and so located as to assure that the Everglades Protection 

Area is not altered so as to cause an imbalance in natural 

populations of flora and fauna and to assure a net improvement in

the areas already impacted.

Section 373.4592(4)(e)3, Fla. Stat., (Emphasis added).

These provisions of the EFA mandate that compliance in impacted areas be accomplished 

through net improvement. The statute distinguishes unimpacted areas as preventing an 

imbalance of the natural flora and fauna. The impacted areas must assure a net improvement. 

Importantly, because these statutory provisions were not disproved by EPA or invalidated by 

Judge Gold, they remain part of the State's water quality standard. The resulting Proposed 

Phosphorus Rule would conflict with these provisions on how to measure compliance in 

impacted areas. EPA Response: The comment confuses the criterion’s attainment requirement to 

demonstrate an improvement, i.e., a net improvement in the water body, with the moderating 

provision or variance that also had been labeled “net improvement.” These are two different 

concepts and provisions of the EFA Amendments.

USSC recommends that EPA maintain the language regarding net improvement in impacted 

areas to remain consistent with the EFA. Alternatively, EPA could propose other options, such as

compliance with discharge permit conditions or other authorizations

7

aimed at achieving the criterion

in impacted areas. This is the more reasonable and scientifically supportable position. Some

alternatives have already been presented in the Gold Case through introduction of draft

7

The EPA has proposed a Consent Order to achieve compliance. The State of Florida has proposed an

Administrative Order to achieve compliance. USSC understands the parties may be engaged in discussions on this

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discharge permits and the Amended Determination. For EPA to ignore this obvious inconsistency

in the Proposed Phosphorus Rule is arbitrary and capricious. EPA Response: The provisions to 

which the comment refers were moderating provisions, which EPA considers to be provisions to 

authorize variances from the existing ambient criterion and although the term “net 

improvement” is used in the moderating provision language, there is no linkage between the 

term “net improvement” and this rulemaking. The Court’s orders are very specific in addressing 

the moderating provisions and this rulemaking is consistent with the Orders. “Net improvement”

has a specific meaning in the restoration context of the EFA, specifically to refer to the 

requirement for a demonstration of improvement in the (adversely) impacted area of the 

Everglades. Although the numeric criterion applies throughout the Everglades Protection Area, 

the State chose to incorporate a methodology for the demonstration of attainment of the criterion 

separately in areas defined as “impacted” (i.e., existing conditions of adverse effect) by levels of 

phosphorus in the soils, but the numeric criterion still applies in those impacted areas

regardless. That the State must demonstrate net improvement in those areas is not surprising 

given the restoration mandate of the Everglades Forever Act, but that demonstration 

requirement is not relevant to EPA’s action.

B. Reflux should not be deemed an exceedance of the Phosphorus criterion.

The Proposed Phosphorous Rule deletes the following underlined language,

(b) Discharges into the [Everglades] shall be deemed in compliance with state 

water quality standards upon a demonstration that:

I. Phosphorus levels in the discharges will be at or below the phosphorus 

criterion set forth in this rule; or

2. Discharges will not cause or contribute to exceedances of the phosphorus

criterion in the receiving waters, the determination of which will take into

account the phosphorus in the water column that is due to reflux; or

3. Discharges will comply with moderating provisions as provided in this

rule.

Fla. Admin.Code. R. 62-302.540(5)(b).

The resulting requirement for discharges into the Everglades, would be the single 

requirement that "discharges will be at or below the phosphorus criterion." EPA gives no 

explanation as to why it is deleting section 2 regarding reflux. The Court's Orders likewise do 

not discuss reflux nor invalidate reflux. There is simply no rationale given for deleting the reflux 

provision, in either the Court Order or EPA's Federal Register Notice.

Reflux is a well known and widely studied phenomenon in the Everglades, that is 

considered and accounted for when assessing compliance and restoration goals. Reflux is the 

topic. Whatever the final administrative vehicle for achieving compliance, it should be referenced in the Proposed

Phosphorus Rule, to avoid conflicting requirements.

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resuspension of phosphorus in the water column, when soil phosphorus bound in the soil is 

released. Soil phosphorus can be released for many reasons, not related to STA discharges. 

Reflux may occur due to droughts, storms, animal activity, and other natural occurring events. 

Even the Federal Government's own expert witness, Dr. William Walker, admits that reflux in the

Everglades is occurring and can take upwards of 50 years to address. See USSC's Index of

Supporting Documents Nos. 6, 7. In further support of the importance of accounting for reflux

in impacted areas, see "Enhancing Sediment Phosphorus Storage in Impacted Regions of the

Everglades Protection Area", Final Report, July 10, 2009, included in USSC's Index of Supporting 

Documents, No. 4. If the Phosphorus criterion is exceeded due to reflux, it is arbitrary and

capricious to consider this a violation of the criterion. EPA should not perpetuate this position by

deleting the reflux provision from the rule. EPA Response: The attainment of the criterion is 

measured in the water column. Non-attainment of an ambient criterion in the water column may 

be due to the addition of incoming flows or may be due to reflux from the soils or a combination 

of both, but non-attainment in the water column is nonetheless non-attainment of the criterion.

Non-attainment of the criterion in the water column is an indication that a water body is not 

meeting its designated use.

If EPA's proposed deletions are adopted, it would require the 10 ppb criterion to be

measured at the "end of pipe" instead of in the ambient waterbody. This is far beyond the Gold

Orders which simply invalidated the moderating provisions and the Long-Term Plan. Requiring

the criterion to be met at the end of pipe, significantly changes how a water quality standard and a 

discharge limit are applied. A 10 pbb end of pipe dismisses the law that a criterion is to be 

measured in the waterbody, and not at the end of pipe. This is a basic element of a water quality 

standard pursuant to the CWA, which this change ignores. EPA Response: This comment 

incorrectly assumes that the criterion, a long term geometric mean of 10 ppb, is directly applied 

to a discharge as an effluent limitation in the permit. Determining the need for a water qualitybased effluent limit is based on a projection of the probability that a discharge may cause or 

contribute to non-attainment of a criterion. If such a limit is determined to be necessary, then 

the limit is derived from the criterion in order to assure that the ambient criterion, which 

includes the measurement methodology, is met in the receiving water body. 

Moreover, if the permitted discharges are held to a 10 ppb criterion at end of pipe, then the

four-part test is rendered meaningless. The four part test was intended to address spatial and 

temporal variability in the Everglades. The EFA explains, that '[e]xceedances of the provisions of

the subsection shall not be considered deviations from the criterion if they are attributable to the 

full range of natural spatial and temporal variability, statistical variability inherent in 

sampling and testing procedures or higher natural background conditions." See Fla. Stat. §

373.4592(4)(e)2; Fla. Admin. Code. R. 62-302.540(4)(a), (emphasis added). Because the 

proposed revision results in a "10 ppb all times and places", EPA arbitrarily ignores the need to 

account for spatial and temporal variability in the Everglades. EPA Response: Attainment of the 

criterion continues to be measured using the four part test and nothing in the final rule affects 

that. The comment incorrectly assumes the criterion would be applied as permit limit strictly at 

the “end of pipe” without accounting for the translation of the criterion into a permit limitation. 

Permit limits do typically recognize and account for temporal variability. Historically, in the 

permits for the Stormwater Treatment Areas (STAs), permit limits have been expressed based on 

annual averages derived from monthly values measured over the previous water year.

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To add to this perplexing result, a 10 ppb end of pipe requirement, is contrary to EPA's own

Amended Determination and its recently produced NPDES Permits, both filed with the Gold

Court. EPA has proposed its own discharge permits before the Gold Court. These discharge

permits include discharge limits (WQBELS) that are not 10 ppb at all times8. In proposing a twopart discharge limit, EPA presumably recognizes the need to account for variability in the

Everglades' natural environment. Yet, this proposed rule stands in stark contrast to EPA's 

proposed permits. It is not clear how EPA expects the Proposed Phosphorus Rule to result in a 10

ppb end of pipe, while approving or issuing discharge permits with different limits. This will only

lead to regulatory uncertainty and confusion. EPA Response: The comment is premised on the 

incorrect assumption that the criterion in the water quality standard is applied directly as a 

permit limit at the end of pipe without the technical translation necessary in order to describe 

the concentrations that can occur from a single location consistent with the concentrations that 

can exist over a much larger space without causing or contributing to non-attainment of the 

latter. The comment itself notes that EPA identified a water quality based effluent limit that 

accounts for variability. This rule does not affect that outcome.

In light of EPA's own statements and research, a rule which results in a 10 ppb end of pipe

requirement and removes the ability to account for reflux is arbitrary and capricious. It is evident

that EPA has simply adopted the redlined rule attached to Judge Gold's July 2008 Order without a

"hard look" at whether such revisions are necessary, proper, or even consistent with other

positions taken by EPA. USSC recommends that EPA maintain the reflux language in the 

Proposed Phosphorus Rule. In addition, EPA should consider alternative language to prevent the I

0 ppb end of pipe result. At a minimum, EPA may consider references to the Amended 

Determination, compliance with discharge permits or a restoration plan to prevent the results 

discussed above. To do anything less, is arbitrary and capricious.

8 EPA's discharge limits included in the September 20 I 0 Amended Determination are a 2-part limit of 18 ppb 

annually, and I 0 ppb one out of every three years, not I 0 ppb at all times.

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IV. Proposed Phosphorus Rule Exceeds EPA's Authority Under the CWA

On September 3, 2010, the EPA issued its Amended Determination that directed Florida to

address the alleged deficiencies in the Phosphorus Rule. The Amended Determination stated that

if the FDEP had not finalized revisions to the Phosphorus Rule by January 1, 2011, among other

requirements, the EPA would initiate rulemaking to promulgate standards consistent with the

Court's Orders. The EPA stated that the FDEP initiated rulemaking, but did not complete the 

process by January 1, 2011. Later in the Proposed Phosphorus Rule, the EPA makes the 

admission that, "FDEP initiated a rulemaking to adopt the necessary revisions to the Phosphorus 

Rule consistent with EPA's [Amended Determination]. However, FDEP did not complete that 

process by January I, 2011. Nor has FDEP completed its rulemaking process since that date." As a

result, the EPA stated that it initiated rulemaking to adopt the necessary revisions to Florida's 

Phosphorus Rule. The EPA cited to Section 303 of the CWA as the basis for its authority to do 

so.

Section 303 of the CWA states the following:

If the Administrator determines that any such revised or new standard is not 

consistent with the applicable requirements of this chapter, he shall not later than 

the ninetieth day after the date of submission of such standard notify the State and

specify the changes to meet such requirements. If such changes are not adopted

by the State within ninety days after the date of notification, the Administrator

shall promulgate such standard pursuant to paragraph (4) of this subsection.

33 U.S.C. § 1313(c)(3)(emphasis added). Accordingly, the EPA's duty and authority to 

promulgate water quality standards does not arise unless Florida fails to adopt the changes 

suggested by the EPA. EPA Response: Florida began a process to adopt but has not completed 

that process, i.e., Florida has not adopted the changes suggested by EPA. As discussed below,

Florida did adopt the requisite revised water quality standards as required by the CWA.

On September 17, 2010, the FDEP published notice of its Proposed Rule Amendments in 

the Florida Administrative Weekly, Volume 36/37. (See, Index of Supporting Document No.9). 

As admitted by the EPA in its notice of publication, these Proposed Phosphorus Rule 

amendments are the necessary revisions that Florida was required to adopt pursuant to the CWA. 

Under this rationale, Florida has also fulfilled its requirements pursuant to the CWA to promptly 

propose and notice a revised standard as directed by the EPA. However, any rule adopted by the 

FDEP is subject to the constraints of the Florida Administrative Procedures Act. See Chapter 120, 

Fla. Stat. Thus, prior to adopting any rule, the FDEP is required to give notice of its intended action 

and it did so. § 120.54(3)(a), Fla. Stat. After notice is given, any party that would be substantially 

affected by the proposed rule revisions is allowed to seek an administrative determination of the

invalidity of the rule. § 120.56(l)(a), Fla. Stat. On October 8, 2010, several interested parties filed

petitions seeking such an administrative determination.9 Such hearings are held under the auspices of

Sections 120.569 and 120.57, Fla. Stat., and allow for the presentation of evidence including direct

EPA Response to Comments 21 Docket ID: EPA-HQ-OW-2011-0515-0021

Public comments received by the EPA and EPA’s responses inserted into the document
Water Docket, U.S. Environmental Protection Agency

August 1, 2011

Page II

and cross-examination of witnesses. These steps are to ensure that a substantially affected party's 

interests are not foreclosed without being allowed to participate in the process. Any proposed state 

rule must adhere to the state's administrative process. EPA must, at a minimum, recognize this 

process and allow it to be finalized. EPA Response: Clean Water Act section 303(c) specifies 

statutory timeframes for state and federal actions related to action on disapproved water quality 

standards. Ideally, states complete state processes related to action on disapproved water quality 

standards within CWA 303(c)’s statutory time period. In the matter of phosphorus water quality 

standards for the Everglades, should the State of Florida adopt the changes to either the 

Everglades Forever Act or the Phosphorus Rule that address EPA’s previous disapproval and that 

carry legal force under Florida law, EPA would withdraw this federal rule.

The deadline that the EPA set for completion of Florida's administrative process, July I,

2011, is not a requirement of the CWA. The July 1st deadline is a self-imposed deadline that is 

directly related to the Gold Case. The CWA only requires that the EPA promulgate the necessary 

revisions with ninety days after the date of notification, if a state fails to adopt the necessary changes. 

See 33 U.S.C. § 1313(c)(3). However, the ninety days is inapplicable if the state has adopted the

requisite revisions. See American Wildlands v. Browner, 94 F. Supp. 2d 1150, 1164 (D. Colo. 2000). 

EPA Response: The July 1st date was more than 90 days from the EPA notification. The State 

has not yet adopted the requisite revisions.

Similar to Florida's requirement to comply with its administrative procedures act, EPA

must adhere to the CWA and the Federal Administrative Procedures Act. In this case, the EPA only

has authority to act if Florida had not adopted the required revisions to its water quality standards. 

Florida published its revisions to the Phosphorus Rule. It is disingenuous for EPA to claim that

Florida has not completed its rule adoption and fail to mention that the administrative process is still

ongoing. EPA Response: If and when Florida satisfactorily completes the processes it has begun, 

EPA would intend to initiate rulemaking to withdraw the federal regulations. Ironically, EPA

admits in its Federal Register notice that its Proposed Phosphorus Rule is subject to an administrative

challenge that could last up to 18 months. EPA Response: Federal regulations identifying 

applicable water quality standards are not subject to administrative challenges, but rather only to 

direct judicial challenges.

Based on the plain language of the CWA, once Florida adopted the required revised water

quality standards thorough its publication in the Florida Administrative Weekly, the EPA's oversight 

role required the EPA to allow the administrative process to be completed. EPA Response: Florida 

has not yet “adopted” the required revised water quality standards, but rather only proposed to do 

so, at least for changes to the Phosphorus Rule. Florida has not yet proposed conforming 

amendments to the Everglades Forever Act amendments. 

Thus, EPA's Proposed Rule is premature and invalid because it violates the mandates and 

process set out in the CWA. EPA Response: Although Florida proposed changes to its 

phosphorus rule and informed the legislature of the Court’s Orders, it has not adopted 

changes to either. Should the State of Florida adopt the changes to either the Everglades Forever 

Act or the Phosphorus Rule that address EPA’s previous disapproval and that carry legal force 

under Florida law, EPA would withdraw this federal rule.

9 USSC is one of the parties that filed a petition challenging the validity of Florida's revisions to the Phosphorus

Rule.

EPA Response to Comments 22 Docket ID: EPA-HQ-OW-2011-0515-0021

Public comments received by the EPA and EPA’s responses inserted into the document
Water Docket, U.S. Environmental Protection Agency

August I, 2011

Page 13

V. Conclusion

USSC appreciates the opportunity to provide comments on the Proposed Phosphorus Rule. 

USSC requests that EPA include these comments and the documents on the attached Index of

Supporting Documents into the formal rulemaking record, as required by the Federal Administrative

Procedures Act. USSC reserves its right to challenge any final rule based upon the objections

contained above, objections raised by any other interested parties, or based upon any of the materials

contained in the administrative record.

While USSC understands that EPA is following the perceived mandates in the Gold Orders,

the rule changes described above far exceed simply deleting the "Long-Term Plan" and "moderating

provisions". EPA Response: Judge Gold’s injunctive orders are legally in effect and have not been 

stayed pending appeal, so mandates within the Judge’s orders are not merely “perceived.” The

proposed rule revisions will result in inconsistencies between the rule, the EFA, discharge permits

and the Amended Determination. If these conflicts are not corrected by EPA, the proposed rule will

result in uncertain and conflicting requirements for Everglades restoration. Because EPA is in a

position to correct these inconsistencies, USSC encourages EPA to consider these comments prior to

finalizing the Proposed Phosphorus Rule.

EPA can correct the Proposed Phosphorus Rule in a variety of ways, and not run afoul of the

Gold Orders. First, EPA can allow the DEP to continue its state rulemaking process, instead of EPA

undertaking the same effort. EPA Response: EPA has not taken any action to disallow the State 

rulemaking process and should the State resume and satisfactorily conclude those processes, EPA 

is prepared to initiate rulemaking to withdraw the federal regulation. DEP has started the process

and is currently in an administrative proceeding, under Chapter 120, F.S., as required by law. EPA 

Response: To EPA’s knowledge, the State has suspended and has not scheduled action to resume 

those proceedings. Because EPA is also required to follow the Federal Administrative Procedure

Act which may delay implementation for up to 18 months, this is a reasonable outcome.

Alternatively, EPA could abate this rule effort until all appeals of the Gold Case are finalized.

This rule effort is premature in the face of all pending appeals and an abatement would prevent

adopting provisions that may ultimately be overturned. EPA Response: If this federal action is

overturned and vacated, or if the State takes action to remove the disapproved revisions to 

applicable water quality standards from State publications, then EPA is prepared to act consistent

with any such action.

Lastly, EPA can consider amending the language in the Proposed Phosphorus Rule to address

the inconsistencies and conflicts highlighted in this comment letter. The current rule requires

immediate compliance in the impacted areas of the Everglades. [Section (4)(d)(2)(c)]. As evidenced

by EPA's own Amended Determination, EPA knows this requirement is unattainable, and, therefore, 

it is arbitrary and clearly erroneous. This rule section can be corrected by referencing either the

discharge permits, compliance with a regulatory order, or compliance with a plan of restoration

projects, such as outlined in the Amended Determination. These changes are reasonable, 

acknowledge the steps needed for Everglades restoration, and eliminate adopting a rule that mandates

the impossible.

EPA Response to Comments 23 Docket ID: EPA-HQ-OW-2011-0515-0021

Public comments received by the EPA and EPA’s responses inserted into the document
Water Docket, U.S. Environmental Protection Agency

August I, 2011

Page 13

EPA should likewise, reinstate the provision that reflux will not be deemed a violation of the

criterion. [Section (5)(b)(2)]. Reflux has been widely studied in the Everglades. It is not part of

the "moderating provisions" or the "Long-Term Plan," as invalidated by Judge Gold.

Deleting the reflux section effectively requires discharges to meet a 10 ppb "end of pipe" 

requirement. This is a glaring conflict with EPA's own limits as contained in its Amended 

Determination. As such, it is unclear to USSC why this rule provision is being deleted, other than

a failure by EPA to critically analyze each deletion included in the Gold Orders. As Dr. Walker's

research concludes, it is undisputed that reflux exists and exceedances due to reflux must be

accounted for properly. To do otherwise, is arbitrary and capricious.

Based on these comments and the documents contained in Exhibit A, the Proposed Phosphorus 

Rule should not be finalized. USSC believes that this rule will be invalidated under the provisions 

of the Federal Administrative Procedure Act, because it is arbitrary and capricious, clearly 

erroneous, an abuse of discretion, and is not supported by substantial evidence.

Sincerely,

Rick J. Burgess

Attorneys for United States Sugar Corporation

FTL_ACTIVE 4157982.1

EPA Response to Comments 24 Docket ID: EPA-HQ-OW-2011-0515-0021

Public comments received by the EPA and EPA’s responses inserted into the document
Index of the United States Sugar Corporation's("U.S. Sugar") Submittal to

The Environmental Protection Agency's ("EPA") Administrative Record

EPA DOCKET ID NO.: EPA-HQ-OW-2011-0515

Regarding the Public Comments on the Phosphorus Water Quality Standards for Florida

Everglades, Publicly Noticed on July 1, 2011

EXHIBIT A

THE FOLLOWING DOCUMENTS HAVE BEEN PROVIDED VIA CD ONLY

L. Laws and Rules

I. 20II South Florida Environmental Report, March I, 20II

2. Chapter 62-302, F.A.C., Surface Water Quality Standards

3. §373.4592, Fla. Stat., Everglades Forever Act

II. United States Sugar Corporation's Supporting Documents

4. Community Watershed Fund and DB Environmental, Inc., 2009, Enhancing Sediment 

Phosphorous Storage in Impacted Regions of the Everglades Protection Area, Prepared 

for Florida Department of Environmental Protection, Everglades Agricultural Area 

Environmental Protection District, and South Florida Water Management District, July I

0, 2009 (DEP Agreement No. 00097)

5. Grunwald, S., Osborne, T.Z. and Reddy, K.R., Temporal trajectories of phosphorous and 

pedo-pattems mapped in Water Conservation Area 2, Everglades, Florida, USA, Vol.

146, 1-13 (2008) Geoderma

6. Walker, William W., Ph.D., Initial Remedies Report of William W. Walker, Ph.D., 

United States of America v. SFWMD, et al., Case No. 88-1886-CIV-MORENO, US. 

Exhibit 2248 of the February 2011 Remedies Hearings with Special Master Barkett, 

January 26, 2011

7. Walker, William W., Jr and Kadlec, Robert H., Modeling Phosphorous Dynamics in 

Everglades Wetlands and Stormwater Treatment Areas, Vol. 401(SI): 1-17, 2010, United 

States of America v. SFWMD, et al., Case No. 88-1886-CIV-MORENO, U.S. Exhibit

2254 of the February 2011 Remedies Hearings with Special MasterBarkett

8. U.S. Sugar's Petition for Administrative Determination of Invalidity of Proposed Rule 

Revisions, U.S. Sugar Corporation v. Depart of Environmental Protection, DOAH Case 

No. 10-9519RP, filed with the State of Florida Division of Administrative Hearings, 

October 8, 2010

FTL_ACTIVE 4157306. I

EPA Response to Comments 25 Docket ID: EPA-HQ-OW-2011-0515-0021

Public comments received by the EPA and EPA’s responses inserted into the document
9. Exhibit B of U.S. Sugar's Petition of Administrative Determination of Invalidity of 

Proposed Rule Revisions: Copy of the FAW Notice published by Department of 

Environmental Protection on September 17, 2010, U,S. Sugar Corporation v. Depart of 

Environmental Protection, DOAH Case No. I 0-9519RP, filed with the State of Florida 

Division of Administrative Hearings, October 8, 20I 0

10. Exhibit D of U.S. Sugar's Petition of Administrative Determination of Invalidity of 

Proposed Rule Revisions: Proposal for Lower Cost Regulatory Alternatives to Proposed 

Amendments to Rule 62-302.540, F.A.C. (In re Rulemaking to Amend Water Quality 

Standards for Phosphorous Within the Everglades Protection Area 62-302.540, F.A.C.) 

(OGC No. 10-2103), U.S. Sugar Corporation v. Depart of Environmental Protection, 

DOAH Case No. 10-9519RP, filed with the State of Florida Division of Administrative 

Hearings, October 8, 2010

11. Order Granting Summary Judgment; Closing Case [DE 323], Miccosukee Tribe of 

Indians of Florida, et al. v. United States of America, et al., Case No. 04-21448-

GOLD/MCALILEY, U.S. District Court of the Southern District of Florida, July 29,

2008

12. Order Granting Plaintiffs' Motions (DE 357); (DE 364) In Part; Granting Equitable 

Relief; Requiring Parties to Take Action by Dates Certain [DE 404]; Miccosukee Tribe 

of Indians of Florida, et al. v. United States of America, et al., Case No. 04-21448-

GOLD/MCALILEY, U.S. District Court of the Southern District of Florida, April 14,

2010

13. Notice of Filing Amended Determination [DE 458], Miccosukee Tribe of Indians of 

Florida, et al. v. United States of America, et al., Case No. 04-21448-

GOLD/MCALILEY, U.S. District Court of the Southern District of Florida, September 3,

2010

14. The State of Florida Department of Environmental Protection's Notice of Filing 

Conformed Permit Documents [DE 512], Miccosukee Tribe of Indians of Florida, et al. v. 

United States of America, et al., Case No. 04-21448-GOLD/MCALILEY, U.S. District 

Court of the Southern District of Florida, November 2, 2010

15. Omnibus Order; Indicative Ruling Granting Defendant EPA's Rule 60(b) Motion for 

Modification of Injunction (ECF No. 446); Denying Friends' Motion for Order Declaring 

Permits Null and Void (ECF No. 533); Granting FDEP's Motion for Clarification of 

Compliance Order (ECF No. 573); Denying Friends' Motion to Add SFWMD as a party 

(ECF No. 477); Denying New Hope's Motions to Strike (ECF Nos. 536, 537) [DE 585], 

Miccosukee Tribe of Indians of Florida, et al. v. United States of America, et al., Case 

No. 04-21448-GOLD/MCALJLEY, U.S. District Court of the Southern District of Florida,

April 26, 2011

16. Final Order, Miccosukee Tribe of Indians, et al. v. Dept. of Environmental Protection, et 

al., DOAH Case No. 03-2872RP, 03-2873RP and 03-2884RP, State of Florida Division 

of Administrative Hearings, June 17, 2004

EPA Response to Comments 26 Docket ID: EPA-HQ-OW-2011-0515-0021

Public comments received by the EPA and EPA’s responses inserted into the document
17. United States Environmental Protection Agency Letter to Ms. Mimi Drew, Director of the

Division of Water Resource Management of the Florida Department of 

Environmental Protection, November 5, 2003

18. United States Environmental Protection Agency Letter to Ms. Mimi Drew, Director of the

Division of Water Resource Management of the Florida Department of 

Environmental Protection, January 24, 2005

19. United States Environmental Protection Agency Determination Review of F.A.C. 62-

302.504(5)(d), Water Quality Standards for Phosphorous, Within the Everglades Protection 

Area Under Section 303(c) of the Clean Water Act [DE No. 255-2], Miccosukee Tribe of

Indians of Florida, et al. v. United States of America, et al., Case No. 04-21448-

GOLD/MCALILEY, U.S. District Court of the Southern District of Florida, September 13, 2007

20. Defendants' Notice of Filing Determination Regarding Phosphorous Rule Sections 1, 2, and 5

[DE 137], Miccosukee Tribe of Indians of Florida, et al. v. United States of America, et al., 

Case No. 04-21448-GOLD/MCALILEY, U.S. District Court of the Southern District of Florida,

May 8, 2006

21. Defendants' Notice of Filing Determination Regarding Phosphorous Rule Section 5(d), [DE 141],

Miccosukee Tribe of Indians of Florida, et al. v. United States of America, et al., Case No. 04-

21448-GOLD/MCALILEY, U.S. District Court of the Southern District of Florida, June 1, 2006

22. Defendants' Response to Order to Show Cause [DE 360]; Miccosukee Tribe of Indians of Florida, et 

al. v. United States of America, et al., Case No. 04-21448- GOLD/MCALILEY, 

U.S. District Court of the Southern District of Florida, December 4,

2009

EPA Response to Comments 27 Docket ID: EPA-HQ-OW-2011-0515-0021

Public comments received by the EPA and EPA’s responses inserted into the document
SOUTH FLORIDA WATER MANAGEMENT DISTRICT

August 1, 2011

U.S. Environmental Protection Agency

EPA Docket Center

Water Docket, Mail Code

1200 Pennsylvania Avenue, NW 

Washington, DC 20460

Administrator Lisa P. Jackson 

Environmental Protection Agency 

Ariel Rios Building

1200 Pennsylvania Avenue, NW

Washington, DC 20460

Re: Docket ID No. EPA-HQ-OW-2011-0515

Phosphorus Water Quality Standards for Florida Everglades

Request for Extension of Time to File Public Comments

Dear Administrator Jackson:

On July 1, 2011, the U.S. Environmental Protection Agency ("EPA") published a proposed rule 

in the Federal Register that would strike certain provisions of Florida's Everglades Forever 

Act ("EFA") and the Phosphorus Rule ("The Phosphorus Rule"). On behalf of the South 

Florida Water Management District ("District"), we respectfully request that you decline 

to delete subparagraph (5)(b)2 of the Phosphorus Rule relating to "cause and contribute"

determinations and phosphorus reflux.

During the original, State of Florida hearings on the Phosphorus Rule, there was consider- able

testimony documenting the process by which legacy phosphorus may be released back into the

water column. Recent studies have further confirmed this process, reflecting that in impacted 

areas of the Everglades, (where soils contain phosphorus levels greater than 500 mg/kg), reflux 

will cause water column phosphorus levels to remain elevated even after significant 

reductions in phosphorus concentrations in discharges entering the Everglades. See, Walker, 

W., Modeling Phosphorus Dynamics in Everglades Wetlands and Stormwater Treatment Areas,

(201 0); Enhancing Sediment Phosphorus Storage in Impacted Regions of the Everglades

Protection Area, (July 10, 2009). Subparagraph (5)(b)2 serves to acknowledge this physical 

process and ensure that dischargers, such as the District, will not be unjustly held in 

violation of permit discharge limits in cases where legacy phosphorus

3301Gw1 Club Road, West Palm Beach, Florida 33406 • (561) 686-8800 • FL WATS1-800-432-2045

Mailing Address: P.O. Box 24680, West Palm Beach, FL 33416-4680 • www.sfwmd .gov

EPA Response to Comments 28 Docket ID: EPA-HQ-OW-2011-0515-0022

Public comments received by the EPA and EPA’s responses inserted into the document
(stemming from historical-and lawful-untreated discharges) contribute to the exceedance of the

criterion. EPA Response: Non-attainment of an ambient criterion is not a “violation” of law 

applicable to any person because a water quality criterion does not directly apply to any person; a 

water quality criterion describes the intended ambient state of a water body in order to attain its 

designated uses. Exceedance of a criterion is an indication that a water body is not meeting its 

designated use. Water quality based effluent limits in a permit are derived from the criterion in 

order to assure that the ambient criterion, the attainment of which is determined through 

application of the measurement methodology, is met in the receiving water body. The effluent 

limit in the permit, not the criterion, establishes and articulates the obligation that must be met by 

the discharger.

 We understand that EPA is proposing to delete subparagraph (5)(b)2 as a result of the April

14, 2010, order entered in Miccosukee Tribe of Indians v. United States of America, et al, Case

No. 04-21448-CIV-Gold (S.D. Fla.). That order, and the Court's earlier order dated July 29,

2008, sought to invalidate the 2003 amendments to the Everglades Forever Act relating to

"moderating provisions" and similar language in the Phosphorus Rule. A careful reading of

both decisions, however, as well as EPA's subsequent Court-ordered review of the provision,

reflect that the Court never intended to unconditionally invalidate subparagraph (5)(b)2.

Rather, it was subparagraph (5)(b)3, and its text authorizing discharges in conformance

with the EFA and Rule's moderating provisions, that the Court sought to prevent.

As the Court said in its Order dated April 14, 2010:

I further enjoined FDEP [in 2008] "from enforcing the 'no action' 

provision in subsection 4 of the Phosphorus Rule, and from utilizing 

subsection 4 and 5(b)(3) of the Phosphorus Rule to avoid the 10 ppb 

phosphorus numeric criterion as otherwise established by the Phosphorus 

Rule." Id. I also "enjoined [FDEP] from granting permits for discharges in,

or within, the Everglades Protection Area under subsections 5(b)((3),

5(d) and 6 of the Phosphorus Rule, or the 'no action' provision of 

subsection 4(d)(2)(2)(c)." !d. at 100.

Order, dated April 14, 2010, at pp. 17-18 (quoting, in part, the Court's Order dated July 29,

2008). As indicated, the Court did not enjoin the Department in 2008 from issuing permits under

subparagraph (5)(b)3.

In its July 2008 order, however, the Court did direct EPA to review subparagraph (5)(b)2 to 

determine if it was a change in water quality standards. (EPA had previously declined to 

review subparagraph (5)(b)2 and dozens of other provisions in the Phosphorus Rule to 

determine if they were changes in water quality standards.) By letter dated December 3,

2009, EPA notified the Department that it was conditionally disapproving subparagraph

(5)(b)2:

Subparagraph (b)(2) provides that the effect from phosphorus being 

released from sediments be considered in determining whether discharges 

cause or contribute to exceedances of the phosphorus criterion. This

EPA Response to Comments 29 Docket ID: EPA-HQ-OW-2011-0515-0022

Public comments received by the EPA and EPA’s responses inserted into the document
provision does not directly modify the protectiveness of the underlying 

criterion. However, the Court specifically linked this provision to the 

disapproved moderating provisions. Order at 90. Our understanding of the 

Court's opinion is that to the extent it is linked to the moderating

provision it is a change in water quality standards and USEPA is

disapproving it.

Letter from S. Meiburg to M. Sole, dated December 3, 2009, at p. 10 (emphasis supplied).

In its April 2010 order, however, the Court, without explanation, included subparagraph 

(5)(b)2 along with (5)(b)3 in the list of provisions in the Rule to be stricken. Order at 

Attachment C at p. 5. Given the clear expression by the Court to strike only subsection 

(5)(b)3 and other provisions linked to moderating provisions, and the limited nature of 

EPA 's disapproval of the subparagraph, the inclusion of subsection (5)(b)2 should be 

viewed as a mistake and disregarded- especially if the existing moderating provisions are

deleted or modified. As explained by EPA, the "provision does not directly modify the

protectiveness of the underlying criterion." EPA Response: EPA is 

promulgating this final rule in order to comply with the Court’s 

Orders, which required action to correct deficiencies in the water 

quality standards, either by the State or by EPA.

Having to address the effect of legacy phosphorus has the potential of increasing the 

District 's cost in achieving compliance with the phosphorus criterion as well as EPA 's 

Amended Determination.

Thank you for your consideration.

Office of Counsel

EPA Response to Comments 30 Docket ID: EPA-HQ-OW-2011-0515-0022

Public comments received by the EPA and EPA’s responses inserted into the document
Florida Department of Environmental

Protection 

Marjory Stoneman Douglas Building

3900 Commonwealth Boulevard

Tallahassee. Florida 32399-3000

August 1, 2011

Lisa Jackson, Administrator

U.S. Environmental Protection Agency

Ariel Rios Building

1200 Pennsylvania 

Avenue, NW Washington, 

DC 20460

Re: Comments to EPA's Proposed Ru1e Entitled, "Phosphorus Water Quality Standards for

Florida Everglades" Docket ID No.: EPA-HQ-OW-2011-0515, 76 FR 38592 (July 1, 

2011) 

Dear Administrator Jackson:

The State of Florida Department of Environmental Protection (“Department”) files comments on 

EPA's proposed rule "Phosphorus Water Quality Standards for Florida Everglades," proposed for 

codification at 40 C.F.R. § 131.44 ("proposed rule" or "ru1e"). 76 Fed. Reg. 38592 (July 1, 2011). 

The proposed ru1e seeks to codify EPA's disapproval of proposed changes to state water quality 

standards. However, EPA has no legal authority to undertake such a rulemaking.

33 U.S.C. § 1313(c)(3)-(4) only authorizes EPA to promulgate water quality standards for 

States when EPA's disapproval of a proposed change to standards leaves the pre-existing 

standards deficient under the Clean Water Act ("CWA"). EPA Response: The statutory text 

for approval and disapproval of revised water quality standards is whether such standards 

meet the requirements of the CWA. The CWA does not directly address the precise 

question of whether and how EPA should act based on comparison of the disapproved 

revision to pre-existing approved standards. For instance, if EPA disapproved a proposed 

water quality criterion for a toxic pollutant where no criterion previously existed, the State's 

failure to address the basis for the disapproval could result in EPA setting an appropriate 

water quality criterion for the State. EPA Response: EPA agrees that CWA section 

303(c)(4)(A) authorizes EPA to a promulgate a water quality criterion under the 

circumstances described, i.e., to promulgate a new water quality criterion after EPA 

disapproval of a new water quality criterion where none existed before.

That is not the case here. After EPA's disapproval of the Florida laws at issue, no deficiency 

remained in Florida's water quality standards. EPA had already approved Florida's preexisting phosphorus criterion for the Everglades and EPA's subsequent disapproval of 

EPA Response to Comments 31 Docket ID: EPA-HQ-OW-2011-0515-0023

Public comments received by the EPA and EPA’s responses inserted into the document
proposed changes to state water quality standards, in no way diminished the previously 

approved standards or created a need for further EPA action. As acknowledged in EPA's 

2009 303(c) determination, there was nothing further for the State of Florida or EPA to do. 

EPA Response: After EPA’s 2009 disapproval of Florida’s revised water quality standards, 

the U.S. District Court ordered that EPA require Florida to complete rulemaking and 

adopt amendments by dates certain and, in the event the State failed to timely act, to 

promulgate standards under CWA section 303(c). EPA’s rulemaking is taken consistent 

with the Court’s order. In September 2010, EPA amended its 2009 determination to require 

the State to either repeal the disapproved provisions of Florida law, or EPA would act for the 

State. EPA has no legal authority to promulgate a rule to codify disapproved provisions of 

state law, when pre-existing state law fully meets Clean Water Act requirements.1 EPA 

Response: EPA disagrees that it has no authority to promulgate water quality standards 

following disapproval of state standards even when pre-existing state law (absent the 

disapproved provisions)fully meet CWA requirements. The Act does not specifically 

address that scenario. EPA reasonably concluded in this case that the State should revise 

its existing standards to remove the disapproved provisions. Similarly, in the absence of 

State action, it was reasonable and entirely consistent with the CWA for EPA to 

promulgate appropriate federal standards because, in this case, the provisions of the 

revised State water quality standards that EPA disapproved remain applicable under State 

law. EPA’s action will remove any potential for confusion and identify the provisions of 

State law that EPA has disapproved and that, therefore, are not in effect for federal Clean 

Water Act purposes.

 

The CWA only authorizes EPA to undertake rulemaking pursuant to the authority in 33 U.S.C. §

1313(c)(3)-(4) under limited circumstances that are not present here. EPA Responses: CWA 

section 303(c) authorizes EPA to undertake rulemaking after disapproval of new or revised 

water quality standards. As a condition precedent to EPA utilizing its rulemaking authority under 

33 U.S.C. § 1313(c)(4)(a),

2 EPA must first identify specific modifications to the disapproved 

changes that, if the State adopts, would remedy the proclaimed shortcomings and, thus, allow 

EPA to ultimately approve the proposed changes to water quality standards. 33 U.S.C. § 

1313(c)(3). EPA Response: In the September 2010 Amended Determination, EPA identified 

the changes, specifically text deletions, to the revised State water quality standards necessary to 

met CWA requirements. In EPA's 2010 determination, EPA specifies no "fixes" to repair the 

disapproved provisions of State law and regulation. Rather, EPA simplistically orders the State to 

repeal the disapproved provisions. EPA Response: The repeal of disapproved provisions noted 

by the commenter is the “fix” necessary to meet CWA requirements as required by CWA 

section 303(c)(3). EPA's mandate is indisputably inadequate to fulfill the condition precedent 

necessary for EPA's rulemaking.

Even if EPA met this condition precedent, EPA is not authorized to promulgate a revised or new 

water quality standard unless EPA's failure to act leaves the remaining, approved water quality 

standards somehow inadequate for CWA purposes. EPA Response: The interpretation of CWA 

303(c) suggested by the commenter is not compelled or even addressed by the text of CWA 

section 303(c). EPA has not made, and cannot make, such a finding in association with the 

proposed rule, because EPA has already approved other provisions of State law and regulation as 

being fully consistent with the CWA.

Further, if EPA disapproves a proposed change to standards, the CWA only authorizes EPA to 

EPA Response to Comments 32 Docket ID: EPA-HQ-OW-2011-0515-0023

Public comments received by the EPA and EPA’s responses inserted into the document
propose "regulations setting forth a revised or new water quality standard." 33 U.S.C. §

1313(c)(4)(A). EPA's proposed rule does not set forth a revised or new water quality 

standard. EPA Response: EPA’s rule identifies and publicizes the provisions of the revised 

State water quality standards that EPA has disapproved and, even though the State 

continues to include the text of those disapproved provisions in State publications, the 

disapproved provisions are not applicable water quality standards for the purposes of the 

Clean Water Act. To the contrary, EPA's rule merely describes State statutory and regulatory 

sections that EPA has explicitly found "are not applicable water quality standards." 76 Fed. 

Reg. at 38593 and 94.

If you have any questions concerning these comments, please contact me at (850) 245-2242.

Sincerely,

Thomas M. Beason

General Counsel

1 Likewise, as acknowledged in its preamble to the proposed rule, EPA has no ability to promulgate 

as federal regulation provisions of state water quality standards that EPA has already approved. 76 

Fed. Reg. at 38595.

2 While § 1313(c)(4)(B) also authorizes EPA to propose a standard through rulemaking when 

EPA's Administrator determines it is "necessary to meet the requirements of this chapter," EPA has 

not referenced this provision as a basis for its proposed rule. Regardless, EPA is precluded from 

utilizing subparagraph (B) as it has made the opposite determination here. 76 Fed. Reg. at 8594.

EPA Response to Comments 33 Docket ID: EPA-HQ-OW-2011-0515-0023

Public comments received by the EPA and EPA’s responses inserted into the document
August 1, 2011

Via E-mail and U.S. Mail

Water Docket

U.S. Environmental Protection Agency, 

Mail Code: 2822T

1200 Pennsylvania Avenue, NW 

Washington, DC 20460

Administrator Lisa P. Jackson 

Environmental Protection Agency 

Ariel Rios Building

1200 Pennsylvania Avenue, NW 

Washington, DC 20460

RE: Docket ID No. EPA-HQ-OW-2011-0515

Phosphorus Water Quality Standards for Florida Everglades

Dear Administrator Jackson:

On behalf of Sugar Cane Growers Cooperative of Florida (the "Cooperative"), whose

members farm lands within the Everglades Agricultural Area ("EAA") of South Florida, we

respectfully submit the following comments and request withdrawal of EPA's proposed rule that

purports to identify provisions of Florida's water quality standards for phosphorus in the

Everglades and disapproves portions of Florida's Everglades Forever Act ("EPA") deeming

them not applicable water quality standards under the Clean Water Act ("CWA"). See 76 Fed.

Reg. 38,592 July 1, 2011). As further discussed below, the proposed rule would directly affect 

the Cooperative, its members, and other EAA farmers since EPA's proposal would effectively 

amend the State's water quality standards for the Everglades by selectively striking moderating

provisions and other rule provisions intended to ensure that the standards are attainable given

the complex nature of the Everglades eco-system. Such a piecemeal rulemaking approach would 

render the standards unattainable, a result never intended by the Florida's Legislature or its

standard-setting regulatory body. EPA's proposed actions exceed its authority under the CWA

and lack record support. We therefore respectfully request that EPA withdraw the proposed rule. 

EPA Response: EPA previously disapproved the moderating provisions in its December 

2009 determination. This final rule codifies that determination and does not have any 

additional legal effect on the applicable water quality standards beyond the effect of the 

December 2009 disapproval.

In support of these comments, the Cooperative submits the documents listed in the 

referenced appendices, which have been posted directly to EPA's electronic rulemaking docket, 

and adopts by reference the record submittals of the State of Florida, Department of 

Environmental Protection, South Florida Water Management District, United States Sugar 

Corporation, and New Hope Sugar Company/Okeelanta Corporation.

EPA Response to Comments 34 Docket ID: EPA-HQ-OW-2011-0515-0077

Public comments received by the EPA and EPA’s responses inserted into the document
I. THIS RULEMAKING WOULD DIRECTLY AFFECT THE 

COOPERATIVE AND ITS MEMBERS.

As EPA has acknowledged, this proposed rulemaking would affect non-point sources of

agricultural runoff upstream from the Everglades. Such non-point sources include farms operated 

by the Cooperative and its 47 members who cultivate sugar cane and other crops on approximately 

65,000 acres within the EAA upstream from the Everglades Protection Area ("Everglades"). In

order to farm within the EAA, the Cooperative and its members rely on canals maintained by the

South Florida Water Management District ("SFWMD") to provide water for irrigation purposes.

The canals also convey agricultural runoff and Lake Okeechobee water to large man-made wetland 

treatment areas called Stormwater Treatment Areas ("STAs"). The emergent and submerged

vegetation in the STAs takes up excess nutrients thus improving water quality prior to its release

into the Everglades. Based on EPA's interpretation of the CWA, SFWMD was required to and

has obtained NPDES permits to release water from the STAs into the Everglades.

NPDES permits are not required for water released from farmlands owned by the 

Cooperative and its members because the CWA expressly excludes agricultural stormwater 

discharges and return flows from irrigated agricultural from the NPDES permitting program. 

See 33 U.S.C. §§ 1342(1)(1) and 1362(14). The EFA and the SFWMD's implementing

regulations, however, require that EAA farmers, including the Cooperative and its members,

obtain permits that require regulatory best management practices ("BMPs") to reduce the

amount of phosphorus released from the farming region into the STAs. See §

373.4592(4)(f)(2)(c), Fla. Stat.; Rule 40E-63.091, Fla. Admin. Code. Pursuant to other state law

requirements, EAA farmers, including the Cooperative and its members, also have provided 

approximately $10 million to fund BMP research and approximately $200 million to fund 

construction and operation of the STAs. See generally, § 373.4592(4)(f)(2)(a), Fla. Stat.

(requiring landowners to sponsor BMP research) and§ 373.4592(6)(establishing an 

"Everglades Agricultural Privilege Tax" to help fund STAs).

As further discussed below, EPA's proposed rulemaking would result in an entirely new

regulatory scheme that the policymakers for the State of Florida never intended. This new

regulatory scheme would retain provisions that specifically and pervasively regulate non- point 

sources, including agricultural stormwater and return flows from irrigated agriculture released

from EAA farms, but eliminate other provisions that were based on the recognition that

compliance with Florida's ambitious 10 ppb phosphorus criterion for the Everglades is a 

daunting task that, if achievable at all, will take decades or more to realize. Accordingly, EPA's 

proposed rulemaking directly affects the Cooperative and its members) See generally

1

The United States Circuit Court for the Eleventh Circuit Court has previously recognized the standing

of EAA farmers to participate in the development of nutrient requirements for the STAs and

Everglades in United States v South Florida Water Management District, 922 F. 2d 704 (11th Cit.

1991). There, the Court held that legal proceedings affecting such standards implicated EAA

EPA Response to Comments 35 Docket ID: EPA-HQ-OW-2011-0515-0077

Public comments received by the EPA and EPA’s responses inserted into the document
American Bottom Conservancy tJ. U.S. Army Corps of Engineers,_ F.3d _, 2011 WL 2314757 

(7th Cir. Jun. 14, 2011) (Posner, J.) (discussing the "solidest grounds" for the standing doctrine 

and the circumstances in which a plaintiff suffers a cognizable injury in fact). EPA Response: 

The final rule neither creates a new regulatory scheme nor affects how farmers are treated 

under the CWA. The primary provision of the Everglades Forever Act that affects farmers is 

subsection 4(f), which EPA approved previously and thus is not affected by the final rule.

II. EPA'S PROPOSAL IGNORES AN EXTENSIVE RULEMAKING RECORD 

THAT CLEARLY DEMONSTRATES THAT THE WATER QUALITY 

STANDARDS FOR THE EVERGLADES WOULD BE UNATTAINABLE 

WITHOUT THE PROVISIONS EPA PROPOSES TO STRIKE.

A. Moderating provisions have always been vital to the attainment of

Florida's water quality standards.

Attainable water quality standards are at the heart of the CWA's water quality standards

program. Congress declared in the CWA a national goal, "wherever attainable," of achieving

"water quality which provides for the protection and propagation of fish, shellfish, and wildlife and

provides for recreation in and on the water." 33 U.S.C. § 1251(a)(2). Such designated uses "are 

deemed attainable if they can be achieved by the imposition of effluent limits required under 

sections 301(b) and 306 of the Act and cost-effective and reasonable best management practices 

for non-point source control." 40 C.F.R. § 131.10(d). Unattainable water quality standards are

inconsistent with the CWA. See id; 33 U.S.C. §1251(a)(2), § 1313.

Without moderating provisions, Florida's generally applicable water quality standards 

would be unattainable and thus inconsistent with the CWA.

2 Florida foresaw the need for 

moderating provisions in 1978 when it recognized that water quality standards were only 

presumed to be appropriate and might not be attainable for specific waters. See Appendix 1 

(transcripts and other relevant materials from 1978 and 1979 adoption of Florida's water quality

standards). Since adopting its water quality standards in 1979, Florida has made clear that

"continued availability of the moderating provisions is a vital factor providing a basis for 

[Florida's] determination that the water quality standards ... are attainable." Rule 62-

302.300(10)(c), Fla. Admin. Code. Indeed, Florida's definition of the phrase "water quality 

standards" specifically includes "moderating provisions." Id. Rule 62-302.200(31). And 

Florida has long declared that, "[w]ithout the moderating provisions," it would not have

farmers' direct substantial and legally protectable interests. Id. at 706. More specifically, the Eleventh

Circuit noted that EAA farmers had "a legally protectable right ... to participate and comment in the

administrative development of the [regulation], and to pursue an administrative appeal." Denial of a 

right to participate, according to the Eleventh Circuit, would cut off the farmers' "only means of

defending their interest in the water [management] district's services." Id at

709.

2 Under Florida law, moderating provisions include mixing zones, zones of discharge, site specific 

alternative criteria, exemptions and equitable allocation provisions. Rule 62-302.300(10)(b)(2), Fla. 

Admin. Code.

EPA Response to Comments 36 Docket ID: EPA-HQ-OW-2011-0515-0077

Public comments received by the EPA and EPA’s responses inserted into the document
adopted its water quality standards "nor determined that they are attainable as generally 

applicable water quality standards." Id. Rule 62-302.300(10)(d). Water quality standards for the

Everglades are no different.

B. The moderating provisions and other general policies that EPA proposes 

to strike from the EFA and Phosphorus Rule are necessary to ensure that 

water quality standards for the Everglades are attainable.

Water quality standards for the Everglades emanate from the EFA. See § 373.4592, Fla.

Stat. As originally enacted in 1994, the EFA directed SFWMD to construct STAs, required a

permitting system for EAA farmers, and imposed an agricultural privilege tax on EAA farmers to

help fund STA construction and operation. Id. Recognizing that conditions in the Everglades

cannot be improved overnight, 2003 amendments to the EFA established an even more 

ambitious Long-Term Plan for the Everglades. Id. at § 373.4592(3). The Long-Term Plan

creates two phases for Everglades restoration with the initial phase running through 2016 and

the second phase running through 2026. Id. During the initial phase of the Long-Term Plan, the

EFA required the Florida Department of Environmental Protection ("FDEP") to adopt, by rule,

a phosphorus criterion for the Everglades. Id. at§ 373.4592(4)(e)(2). Consistent with

Florida's long-standing practice of including moderating provisions as part of its water quality

standards, the EFA allows FDEP's rule to "include moderating provisions during

implementation of the initial phase of the Long-Term Plan." Id. The EFA further states that,

"during the implementation of the initial phase of the Long-Term Plan," permits issued by

FDEP to the SFWMD "shall include technology-based effluent limitations consistent with the

Long-Term Plan." Id. at§§ 373.4592(4)(e)(2), (10)(a). The Florida Legislature made it clear in

the EPA that the Long-Term Plan allowing for moderating provisions until 2016 is "the most 

reliable means of optimizing the performance of STAs and achieving reasonable further progress 

in reducing phosphorus entering the Everglades." Id. at§ 373.4592(4)(e)(2).

As adopted by the Environmental Regulation Commission ("ERC''), the standard-setting arm

of FDEP, the Phosphorus Rule establishes an ambitious phosphorus criterion of 10 ppb for

the Everglades. See Rule 62-302.540, Fla. Admin. Code. However, based on an extensive record 

developed during the rulemaking process, the ERC specifically recognized that

Even as water quality continues to improve, restoration will be a 

long-term process because of historic phosphorus accumulations

found in sediments within impacted areas. This phosphorus can

diffuse back into the water column, a phenomenon the Department

recognizes as reflux.

Id. at Rule 62-302.540(2)(d). Based on that recognition, as well as other factual findings 

supported by the rulemaking record, the ERC specifically found that Phosphorus Rule "must

EPA Response to Comments 37 Docket ID: EPA-HQ-OW-2011-0515-0077

Public comments received by the EPA and EPA’s responses inserted into the document
Incorporate a flexible approach towards application of the numeric phosphorus criterion." Id.

at Rule 62-302.540(2)(1) (emphasis added). The ERC further explained that it exercised its

authority under state law and federal regulations "to include general policies that authorize such

flexibility by including in this rule both a numeric interpretation of the phosphorus criterion 

and the various other standard setting provisions of this rule, including the permitting and

moderating provisions." Id. Among these provisions was a determination that

Discharges into the [Everglades Protection Area] shall be deemed

in compliance with state water quality standards upon a

demonstration that:

* * *

2. Discharges will not cause or contribute to exceedences of

the phosphorus criterion in the receiving waters, the 

determination of which will take into account the 

phosphorus in the water column that is due to reflux; or

3. Discharges will comply with moderating provisions as 

provided in this rule.

Id. at Rule 62-302.540(5)(b). In addition to adopting a new moderating provision specific to 

discharges to the Everglades, the ERC also made Florida's generally applicable moderating 

provisions available under the rule. Id. at Rule 62-302.540(6).

Read in pari materia with the rest of Chapter 62-302 of Florida's Administrative Code, it is

clear that the 10 ppb phosphorus criterion established for the Everglades would be unattainable 

without the general policies and moderating provisions discussed above. As noted above, the

ERC specifically found that the flexibility provided by these provisions was necessary. Similarly,

Rule 62-302.300(10)(c), Fla. Admin. Code, states that "continued availability of the moderating

provisions is a vital factor providing a basis for [Florida's] determination that the water quality

standards ... are attainable."

Without explanation, EPA proposes to strike all of the factual findings and other provisions 

discussed above. In doing so, EPA ignores the extensive rulemaking record that directly supports

these provisions. For EPA's review, we are providing that record as Appendix 2 to this letter. See

also Sugar Cane Growers Coop. z1. Dep't of Envtl. Prot., Case No. 03- 02884 (Final Order, Jun. 17,

2004), ajj'd, Miccosukee Tribe of Indiam v. New Hope Sugar Co., 906 So.2d 1064 (Table) (Fla. 1st

DCA 2005).

3 In addition, as Appendix 3 to this letter, we are providing a paper by EPA's own 

consultant, Dr. William Walker, which specifically recognizes that, due to legacy phosphorus in

Everglades soils, it would take decades for water column and soils system to reach equilibrium

even if water column concentrations were reduced to 10 ppb. Appendix 4 includes a

compilation of additional reports that,

3

The Cooperative includes the administrative law judge's final order as the last volume of Appendix

2. Paragraphs 94 through 96, 319 and 510 include a discussion of the reflux problem.

EPA Response to Comments 38 Docket ID: EPA-HQ-OW-2011-0515-0077

Public comments received by the EPA and EPA’s responses inserted into the document
among other things, discuss the reflux problem. In light of this extensive record, EPA's proposal to

strike the above-quoted provisions is arbitrary and capricious. By rendering water quality

standards for the Everglades unattainable, EPA's proposal also would contravene the CWA and

long-standing policy of the State of Florida. EPA Response: An exceedance of an ambient water 

quality criterion is not a “violation” of law by any person because the criterion is a descriptor of 

desired or intended ambient conditions rather than any sort of obligation that can be enforced 

against any person. Non-attainment of a criterion indicates that a water body is not meeting its 

designated uses. Non-attainment does not itself render a criterion unattainable but merely

indicates the water body is not attaining its uses. In order to demonstrate that a use is 

unattainable, a state (subject to EPA review and approval or disapprove) conducts a “use 

attainability analysis” to demonstrate that attaining the designated use is not feasible based on 

the factors listed in federal regulations at 40 C.F.R. 131.10(g). To date, the State has not 

prepared (or indicated it intends to prepare) a use attainability analysis for the Everglades. 

III. THE CWA DOES NOT GIVE EPA THE AUTHORITY TO STRIKE OR 

AMEND STATE WATER QUALITY STANDARDS.

Should EPA strike any provision of the EFA and Phosphorus Rule, the EFA and 

Phosphorus Rule would no longer be state water quality standards. As the Florida Supreme 

Court observed, "[i]t is an elementary principle of statutory construction that significance and

effect must be given to every word, phrase, sentence, and part of the statute if possible,

and words in a statute should not be construed as mere surplusage." Hechtman v. Nations Title

Ins. of N.Y., 840 So. 2d 993, 996 (Fla. 2003) (emphasis added). Because every word has meaning,

the U.S. Supreme Court has held that striking or changing specific words, phrases or sections

alters the statute as a whole. See Clinton v. City of New York, 524 U.S. 417, 435-41 (1998).

4 

Fidelity to the language in a rule is just as important as fidelity to the language in a statute. Id.

Thus, striking provisions of the EFA and Phosphorus Rule would fundamentally alter Florida's

water quality standards.

The CWA does not empower EPA to strike or alter state water quality standards. An 

overarching goal of the CWA is to recognize, preserve, and protect "the primary responsibilities

and rights" of the states "to restore and main the chemical, physical, and biological integrity of the

Nation's waters." 33 U.S.C. § 1251(a), (b). Consistent with this goal, EPA has only a limited role

in the establishment of water quality standards. City of Albuquerque v. Browner, 97 F.3d 415, 425

(10th Cir. 1996). EPA reviews new or revised state water quality standards to ensure such standards

are consistent with the CWA. 33 U.S.C. § 1313(c)(3). If EPA determines that state water quality

standards are inconsistent with the CWA, EPA notifies states of the needed revisions. Id. EPA 

may issue water quality standards of its own in only two circumstances:

4

In City of New York, the Court held that the Line Item Veto Act of 1996 was unconstitutional. According

to the Court, the Act allowed the President to prevent one provision of a duly enacted statute "from

having legal force or effect" while leaving the rest of the statute intact. This, the Court explained, 

permitted the President "[i]n both legal and practical effect" to "amend ... Acts of Congress by

repealing ... portion[s]," and was unconstitutional.

EPA Response to Comments 39 Docket ID: EPA-HQ-OW-2011-0515-0077

Public comments received by the EPA and EPA’s responses inserted into the document
It may act only where (1) it determines that a state's proposed new

or revised standard does not measure up to CWA requirements

and the state refuses to accept EPA-proposed revisions to the

standard or (2) a state does not act to promulgate or update a

standard but, in the EPA's view, a new or revised standard is

necessary to meet CWA muster.

Am. Paper Intl. v. EPA, 996 F.2d 346, 349 (D.C. Cir. 1993) (emphasis in original). No provision of

the CWA allows EPA to cherry-pick parts of a state water quality standard. Furthermore, when

EPA issues water quality standards, the Agency is "subject to the same policies, procedures,

analyses, and public participation requirements established for States in [EPA's implementing]

regulations," i.e., EPA's water quality standards must be attainable and protective of designated

uses. 40 C.F.R. § 131.22(c).

Here, however, EPA proposes to do in this proposed rule that which it is not empowered

to do under the CWA. EPA explains that the "intended effect" of this proposed rule "is to

identify only those provisions of Florida law that EPA has disapproved and that therefore are not

applicable water quality standards for purposes of the [CWA]." 76 Fed. Reg. 38592, 38592. EPA 

notably stops short of calling the amended EFA and Phosphorus Rule federal water quality

standards. EPA instead notes: "There are many provisions of the Phosphorus Rule that EPA

approved. EPA did not believe it would be appropriate to promulgate these provisions as Federal 

regulations." Id. at 38595. So, it follows, EPA proposes to merely strike parts of the EFA and

Phosphorus Rule without adopting the amended EFA and Phosphorus Rule as federal water

quality standards. But this approach would fundamentally alter the state water quality standards. 

See City of NewYork, 524 U.S. at 435-41. And such an approach would fall outside the bounds of

EPA's limited authority under the CWA's water quality standards program. See Am. Paper Inst.,

996 F.2d at 349. EPA should therefore refrain from striking provisions of the EFA and

Phosphorus Rule. EPA Response: Under CWA section 303(c), if EPA disapproves a state’s new or 

revised water quality standards, EPA is directed to promulgate the necessary standard if the state does 

not adopt changes to its standard to address EPA’s disapproval. In carrying out the requirement in CWA 

section 303(c), EPA believes it has the discretion to adopt federal standards addressing only those 

disapproved provisions of the state’s standards. 

CONCLUSION

Thank you for the opportunity to comment on EPA's proposed rule. As responsible 

stewards of the land, we recognize that although water quality in the Everglades continues to 

improve, restoration of the Everglades is a long-term process that requires a cooperative approach. 

We respectfully submit that this proposed rulemaking is a step in the wrong direction.

EPA Response to Comments 40 Docket ID: EPA-HQ-OW-2011-0515-0077

Public comments received by the EPA and EPA’s responses inserted into the document
Sincerely,

HOPPING GREEN & SAMS, P.A.

By:

Mohammed 0.Jazil

Attorneys for SUGAR CANE GROWERS 

COOPERATIVE OF FLORIDA

Enclosures (by electronic submission)

EPA Response to Comments 41 Docket ID: EPA-HQ-OW-2011-0515-0077

Public comments received by the EPA and EPA’s responses inserted into the document
RASCO KLOCK

REININGER PEREZ ESQUENAZI VIGIL NIETO

August 1, 2011

VIA EMAIL AND FEDERAL EXPRESS

Water Docket

U.S. Environmental Protection Agency, 

Mail Code: 2822T

1200 Pennsylvania Avenue, NW 

Washington, DC 20460

Administrator Lisa P. Jackson 

Environmental Protection Agency 

Ariel Rios Building

1200 Pennsylvania Avenue, NW 

Washington, DC 20460

Re: Public Comments on the Environmental Protection Agency's Phosphorus 

Water Quality Standards for Florida Everglades; Proposed Rule 40 CFR Part

131.44, Publically Noticed on July 1, 2011, Docket ID No. EPA-HQ-OW2011-0515 (the "Proposed Rule")

Dear Administrator Jackson:

On behalf New Hope Sugar Company and Okeelanta Corporation (together "New

Hope") we submit the following comments on the Proposed Rule referenced above. In 

addition, New Hope submits the documents listed on the attached index,

1 and adopts by

reference the record submittals of the State of Florida, Department of Environmental 

Protection ("DEP") and South Florida Water Management District, the Sugar Cane 

Growers Cooperative of Florida and United States Sugar Corporation. 

A. New Hope's Interest in the Rulemaking

New Hope has a particular interest in the Proposed Rule because it directly impacts the 

Everglades Agricultural Area ("EAA"), in which tens of thousands of acres of New Hope 

land, its sugar mills, and its farming operations are located. New Hope's farms in the EAA 

are upstream of storm-water treatment areas ("STAs") operated by the South Florida

Water Management District ("District") and, in turn, the Everglades. The STAs flow into the

Everglades and are subject to discharge permits issued by the DEP that

1 The documents listed have been posted directly to EPA's electronic rulemaking docket.

283 CATALONIAAVENUE, SUITE 200, CORAL GABLES, FLORIDA 33134 PH:305.476.7100 FAX:305.476.7102

WWW.RASCOKLOCK.COM

EPA Response to Comments 42 Docket ID: EPA-HQ-OW-2011-0515-0089

Public comments received by the EPA and EPA’s responses inserted into the document
Implement the Phosphorus Rule,

2

as well as generally applicable statutes and DEP 

regulations. Water flows from Lake Okeechobee either directly, or via EAA farms and 

canals, into the STAs and, in turn the Everglades. Water in the Lake, upstream of EAA 

farms, has phosphorus levels that are an order of magnitude higher than that required under

the current Phosphorus Rule, and yet the compliance burden is laid solely at the feet of the

EAA farmers, in seeming disregard for the reality of phosphorous loads and their origin

3

New Hope owns and farms land in the EAA, and also owns and operates sugar mills in the 

area. These mills depend on a supply of sugar cane from the EAA for their 

operational viability. EAA farmers also have substantial interests in the management of 

water levels within the EAA, the nutrient requirements imposed on STA discharges and in

turn upstream waters, and the water supply and flood control services that are the District's

principal function. The operation of EAA farms, and in turn the delivery of feedstocks to

EAA mills, is directly dependent on the District's ability to deliver the water supply and flood

control services to the EAA consistent with the regulatory requirements applicable to the

District The District's ability to perform these functions is substantially affected by changes

to downstream water quality requirements.

Additionally, New Hope and other EAA farmers implement Best Management Practices 

(BMPs) on their farms. The BMPs that comprise one portion of a coordinated system to

meet water quality standards. Changes to downstream standards could also be used to 

seek further upstream controls, adversely affecting Petitioners' regulatory compliance. In

fact, such an approach was recently attempted by EPA in its objections to Florida NPDES

permits,

4 transmitted by EPA on June 27, 2011. EPA's objections attempt to dictate to the

state changes in the purely state law BMP program premised on EPA's view of necessary

discharge limitations.

The Proposed Rule changes downstream environmental standards and permit 

requirements to impose unattainable discharge limits that are far in excess of the level

2 Fla. Admin. Code. R. 62-302.540 (the "Phosphorus Rule").

3

The standing of EAA farmers to participate in the development of nutrient requirements for the STAs and

Everglades was similarly recognized by the United States Eleventh Circuit Court of Appeals in United 

States v South Florida Water Management District, 922 F. 2d 704 (11th Cir. 1991) ("US v SFWMD"). In US

v SFWMD the United States Eleventh Circuit Court of Appeals held that legal proceedings affecting such 

standards implicated EAA farmers' direct substantial and legally protectable interests. US v SFWMD, 922

F. 2d at 706. The Eleventh Circuit also noted that EAA farmers had "a legally protectable right ... to

participate and comment in the administrative development of the [regulation], and to pursue an

administrative appeal." This recognized both a legally protectable interest and one that was direct and

substantial in the setting and compliance with Everglades water quality standards, as denial of a right to

participate would cut off farmers' "only means of defending their interest in the water [management]

district's services." fd at 709.

4 While the state did not submit draft permits for EPA review as required under the Clean Water Act 

(CWA), 33 USC § 1342, the district court upon EPA's urging deemed working drafts to be submitted for 

the purpose of creating EPA jurisdiction where the CWA afforded none.

EPA Response to Comments 43 Docket ID: EPA-HQ-OW-2011-0515-0089

Public comments received by the EPA and EPA’s responses inserted into the document
needed to protect the Everglades. Under the present Phosphorus Rule, waters in the 

Everglades must meet an ambient requirement of 10 ppb phosphorous measured as a 

long-term geometric mean across the water body. Under the rule, discharges would not 

violate the regulation as long as they do not cause or contribute to exceedance. See 

Fla. Admin. Code R. 62-302.540(5)(b). EPA's Proposed Rule would make this 

requirement more stringent by eliminating the provision allowing such discharges and 

only leaving in a requirement that discharges "will be at or below the phosphorus 

criterion." Fla. Admin. Code R. 62-302.540(5)(b)1. This increases the compliance 

burden on the District and the EAA. The Proposed Rule would substantially change the 

water quality standard and compliance test for achievement of the ambient phosphorus 

criterion in the Everglades, implementing de facto discharge requirements far below the 

level previously found by EPA to be protective of the Everglades. Consequently, the 

Proposed Rule would impose draconian requirements far in excess of what the State of 

Florida found was a conservative, fully protective standard in 2003, and what EPA 

approved (without objection in the district court's 2008 Order) as consistent with federal 

requirements in 2005. 

B. Comments

(i) Rulemaking is premature as court action remains ongoing.

EPA's Proposed Rule purports to "implement two orders by the U.S. District Court for the 

Southern District of Florida," referring to the July 29, 2008 and April 14, 2010 Orders of 

United States District Judge Alan S. Gold.5 76 Fed. Reg. 38592. Yet, the district court 

orders themselves are on appeal to the Eleventh Circuit Court of Appeals on the basis that 

they exceed the district court's jurisdiction under the Administrative Procedures Act, 5 U.S.C. 

§ 701, et. seq.

Additionally, the 2010 Order was the subject of an EPA motion for modification under 

Federal Rule of Civil Procedure 60(b).

6 This led the district court to enter an indicative order 

modifying the 2010 order, but that order cannot be effective unless leave is granted from the 

appellate court. See Fed. R. App. P. 12.1. The appellate court has yet to take action so it is 

unclear whether the original 2010 Order, or the Order as

5 These Orders are the July 29, 2008 Order Granting Summary Judgment (DE 323; the "2008 Order") and 

April 14, 2010 Order Granting Plaintiffs Motions In Part; Granting Equitable Relief; Requiring Parties to 

Take Action by Dates Certain (DE 404; the "2010 Order"), New Hope Exs. 1 and 2, respectively. The latter 

of these orders is subject to pending, but as yet non-issued "indicative order". See, Omnibus Order; 

Indicative Ruling Granting Defendant EPA's Rule 60(b) Motion for Modification of Injunction (DE 585; the 

"2011 Order"), New Hope Ex. 3. This indicative order would, if entered, modify the 2010 Order, but at 

present has no legal effect unless and until remand for entry of that order is granted by the Eleventh Circuit 

Court of Appeals. Thus the final language of the 2010 order is still uncertain. The question of whether to 

remand for entry of the Indicative Order is presently pending before that court and any EPA action to 

implement the 2010 Order would be premature as EPA does not yet know whether it will be modified.

6 New Hope Ex. 4.

EPA Response to Comments 44 Docket ID: EPA-HQ-OW-2011-0515-0089

Public comments received by the EPA and EPA’s responses inserted into the document
modified by the Indicative Order, will apply. Thus, given this state of affairs, it is premature

to undertake rulemaking to implement either order. EPA Response: The U.S. District 

Court order dated July 29, 2008 is not on appeal to the Eleventh Circuit. Opportunities 

for appeal of that order have been exhausted. While the order dated April 14, 2010 

does remain the subject of a pending appeal, the Eleventh Circuit denied motions to 

stay specified injunctions in that order. As such, EPA remains subject to the District 

Court’s orders. As relevant to the provisions of the District Court order applicable to 

the text of the Phosphorus Rule and Everglades Forever Act Amendments, no party in 

the opening briefs filed in the Eleventh Circuit suggested error on the part of the 

District Court. In the subsequent District Court motions practice regarding EPA’s 

motion for an indicative ruling under FRCP 60(b), no responding party objected to 

EPA’s proposed revised order as it applied to text to be deleted based on EPA’s 

earlier disapproval of the revised water quality standards. For these reasons, it is 

timely and appropriate for EPA to undertake rulemaking to implement the District 

Court’s April 2010 order, as well as the indicative order that was subject to EPA’s 

motion for remand for the purposes of entry. EPA promulgated the rule after the 11th 

Circuit remanded the matter consistent with the District Court's indicative ruling. 

Further, EPA's attempts to implement such orders via rulemaking create additional 

tangential proceedings prior to the appellate court having the opportunity to review the 

underlying basis for the district court's action. EPA Response: EPA assumes the 

tangential proceeding referenced by the commenter is the current rulemaking. This 

rulemaking is reasonable and timely in response to the District Court’s order. EPA 

recognizes that action by the State to delete the disapproved provisions of the 

Phosphorus Rule and/or Everglades Forever Act amendments would negate the need 

for EPA to promulgate, or provide a basis for EPA to withdraw its final rule from the 

Code of Federal Regulations. Moreover, the primary objection of the district court was

the inclusion of "moderating provisions" in section (6) of the Phosphorus Rule, which

applies to NPDES permitting. However, these provisions h ave never been implemented 

by the state and there is no pending proposal to use the section (6) provision in any

federal permit.

(ii) Editing a state regulation so as to create a meaning never ascribed by the 

state is inappropriate.

EPA has exceeded its powers under the Clean Water Act (the "Act" or "CWA") in the

proposed rulemaking. It has improperly strayed beyond its statutorily defined review of 

standards, to rewriting of state law, something neither contemplated nor authorized by the 

Act. EPA Response: EPA disagrees that this rulemaking constitutes a “rewriting of

state law.” EPA’s final rule identifies the provisions of State water quality standards 

that it earlier disapproved and that therefore are not applicable for the purposes of the 

Clean Water Act notwithstanding the continuing publication of those disapproved 

provisions in official documents within the State’s control. CWA section 303(c) 

contemplates and authorizes EPA to take this action based on EPA’s earlier 

disapproval of revised State water quality standards.

EPA Response to Comments 45 Docket ID: EPA-HQ-OW-2011-0515-0089

Public comments received by the EPA and EPA’s responses inserted into the document
A key characteristic and distinguishing feature of the CWA is its recognition and commitment 

to federalism, which is apparent in the structure of the CWA and its placing of the states, not 

federal administrative agencies, in the role of primary policy makers for setting water quality 

standards.7Through the enactment of the CWA, Congress had determined that setting a 

general national policy for addressing pollution was a subject for federal legislation. "At the 

same time, however, Congress respected the power of the states and territories not only to 

assist but preferably to lead the effort to control water pollution.''8 Consistent with this goal, 

EPA has only a limited role in the establishment of water quality standards. EPA 

Response: The CWA establishes a primary role for states, including a leadership role, 

in the development and implementation of water quality standards. CWA section 

303(c) empowers EPA to take specified action after disapproval of new or revised 

state quality standards in the event a state does not take action consistent with the 

CWA.

No provision of the CWA allows EPA to selectively edit a state water quality standard in 

order to change the meaning of the state's standard. EPA Response: Under CWA section 

303(c), if EPA disapproves a state’s new or revised water quality standards, EPA is 

directed to take action so that the water quality standards meet CWA requirements. 

The section does not directly address the precise issue of whether EPA may do so 

selectively or in a wholesale fashion. Furthermore, when EPA issues water quality 

standards, it is "subject to the same policies, procedures, analyses, and public participation 

requirements established for States in [EPA's implementing] regulations,"; i.e., EPA's water 

quality standards must be attainable and protective of designated uses as set forth in the 

federal regulations that implement the CWA. 40 C.F.R. § 131.22(c).) The Proposed Rule 

modifies the state regulation to impose arbitrary and unattainable requirements that go 

beyond what EPA has already found to be protective of designated uses. EPA Response: 

The final rule identifies the provisions of revised State water quality standards that 

EPA has disapproved, i.e., revisions that would render existing water quality 

standards that EPA has already found to be protective of designated uses to be less 

protective.

In its Proposed Rule, EPA proposes an action that it is not empowered to do under the CWA. 

It attempts to craft what is effectively a federal regulation by selectively editing a state rule. It 

also does so in a manner to make the state regulation unattainable by rendering ineffective 

measurement provisions (including the four-part test of section (4) of the state rule) that EPA 

has already approved, and that were affirmed by the district court. EPA Response: EPA 

disagrees that it proposed or that it has rendered ineffective the four part test in 

section (4) of the Everglades Forever Act. The final rule identifies disapproved 

provisions using text strikeouts; the final rule does not affect State water quality 

standards that it previously approved. In its very notification, EPA recognized that it

7 American Paper, 890 F. 2d at 874; Mun. Auth. of Borough of St. Marys v. E.P.A., 945 F.2d 67, 71 (3d 

Cir. 1991) ("[t]he 1987 amendments to the Clean Water Act further evince Congress' intent to make the 

states, where possible, the primary regulators of the national pollution permit system.").

8 Robin Kundis Craig, The Clean Water Act and the Constitution 9 (Environmental Law Institute 2009) 

(2004)

EPA Response to Comments 46 Docket ID: EPA-HQ-OW-2011-0515-0089

Public comments received by the EPA and EPA’s responses inserted into the document
cannot adopt a federal standard for a regulation that has been approved by the agency.9 76 

Fed. Reg. 38592, 38595. Yet, EPA would use the approach of selective editing of a state 

regulation to accomplish the same result.

The rule modifies provisions of the regulation that were approved by EPA and not disturbed

by the courts, in essence creating a more stringent federal standard in the place of approved 

components of state standards. EPA Response: EPA disagrees. The commenter does 

not identify the previously-approved provisions allegedly modified or the provisions 

that create a more stringent federal standard. EPA cannot call this a federal standard as 

it admits that "it would not be appropriate to promulgate the provisions as Federal 

regulations." Id. at 38595. As EPA's proposed approach would fundamentally and 

impermissibly alter the state water quality standards,10 it would fall outside the bounds of 

EPA's limited authority under the CWA's water quality standards program, no matter how 

EPA labels its intended action. See Am. Paper Inst., 996 F.2d at 349. EPA Response: The 

commenter fails to specify or explain what about EPA’s “approach” fundamentally or 

impermissibly alters state water quality standards, therefore EPA cannot respond with 

specificity about the claims of EPA error. 

(iii) EPA makes deletions that are technically inappropriate and not based on

Judge Gold's orders

Not satisfied with going beyond its jurisdictional boundaries, EPA has gone even further and 

extended beyond even the cover of the jurisdictionally unfounded requirements of the court 

orders it purports to implement. For example, it deletes sections of the Phosphorus Rule 

that authorize discharges so long as they do not cause or contribute to an exceedance of 

ambient criteria. See 76 Fed. Reg. 38595 (purporting to delete for federal purposes Fla. 

Admin. Code § 62-302.540(5)(b)2.). The edits crafted by EPA improperly modify the 

application of the criterion in a manner inconsistent with both EPA's and the district 

court's approval of the measurements provisions of the Phosphorus Rule.

The four-part test in section (4) of the Phosphorus Rule was previously approved by both 

EPA and the district court.11 The test measures compliance via a series of long and shortterm spatial and temporal averages. This test by definition is measured at stations in the

marsh, and not at the point of discharge. Accordingly, section (5) of the Phosphorus Rule

deems discharges in compliance if they are either at or below the criterion or do not cause 

or contribute to an exceedance. Fla. Admin. Code R. 62- 302.540(5)(b)1 and (5)(b)2. 

EPA's selective editing of section 5 would change this meaning by deleting the "cause

9 EPA nonetheless attempts to adopt a federal standard by proxy through the mechanism of selective 

edits to the state regulation. Such action is often inconsistent with EPA's own prior determinations on the 

phosphorus rule. For example, EPA has approved the four-part test and related provisions of the rule; yet 

it makes changes that are inconsistent with that approval, such as the deletion of section (5)(b)2.

10 It is clear that editing specific words, phrases or sections of a regulation alters its meaning as a whole.

See Clinton v. City of New York, 524 U.S. 417,435-41 (1998).

11 2008 Order at 79-81.

EPA Response to Comments 47 Docket ID: EPA-HQ-OW-2011-0515-0089

Public comments received by the EPA and EPA’s responses inserted into the document
or contribute" language and by rewriting section (5) to apply the criterion at the point of

discharge, a standard never adopted by Florida and never submitted for review by the EPA. 

This approach is inconsistent both with EPA's prior approval of the four part test, and with

Judge Gold's approval of that EPA determination in his 2008 Order. EPA Response: 

EPA disagrees that final rule applies the criterion directly at the point of discharge. 

As explained in the September 3, 2010 Amended Determination, water quality 

criteria are translated into effluent limits in permitting proceedings based on a 

determination of the need for a limit (i.e., if the discharge is projected to cause or 

contribute to non-attainment of the criteria) and, if determined necessary, based on 

technical analysis and derivation applicable to single-point discharges. 

Determining the need for and deriving water quality based effluent limitations is the 

task of the NPDES permitting program under state and federal law.

The selective edits to section (5) of the Phosphorus Rule implemented by EPA would thus 

take a criterion meant to apply as a long-term, large-area spatial and temporal average, and

require that it be met at the point of discharge. Discharging at or below the criterion was

meant to be only one of several means of compliance.12 EPA's edited rule would make 

that the only mechanism, and create non-compliance in situations where discharges 

might be above the criterion, but do not cause or contribute to ambient exceedance. 

This is, for all practical purposes, a new federal water quality standard that replaces the

approved portions of the state regulation, something EPA readily admits is beyond its

delegated powers. 76 Fed. Reg. 38592, 38595.

Furthermore, there is no basis to conclude that the Florida Environmental Regulation 

Commission would ever have adopted a rule that applied the criterion at the point of 

discharge.

13 Had the state intended to apply a criterion at the point of discharge it would

not have included section (4) of the rule and would likely have used a far higher number as

its criterion. EPA has no power under the CWA to step into the shoes of the state's

rulemaking authority to fundamentally change the substance of a state regulation and 

thereby avoid the administrative burden and jurisdictional limitations associated with

creation of federal water quality standards.

12 This editing of a state regulation has no basis in the delegation of power to review state standards under

33 U.S.C. § 1313(c). Additionally, recent studies have shown that STAs cannot treat water to levels as

low as 10 ppb. It is therefore arbitrary and capricious to require unattainable discharge levels even where

such discharges do not cause or contribute to an exceedance of an ambient criterion and measurement

test found by EPA to be fully protective. See Evidence and implications of the background phosphorus

concentration of submerged aquatic vegetation wetlands in Stormwater Treatment Areas for Everglades

restoration (January 27, 2011) (New Hope Ex. 8; see also, 2011 testimony and Goforth testimony and

exhibits in S.D. Fla. Case No. 88-1886 New Hope Ex. 13.)

13 See July 8, 2003, ERC Hearing Transcript, Hope Ex. 12 (extended discussion of important of spatial 

and temporal averaging in the rule just prior to its adoption); July 8, 2004, Final Order of Florida Division 

of Administrative Hearings, New Hope Ex. 14 (discussing how four-part test is integral to the Phosphorus 

Rule); see generally, ERC Hearing Transcripts, New Hope Ex. 12 (18 months of rulemaking hearings with 

extended discussions of spatial and temporal variability and various measurement and compliance 

methods).

EPA Response to Comments 48 Docket ID: EPA-HQ-OW-2011-0515-0089

Public comments received by the EPA and EPA’s responses inserted into the document
In addition, EPA has arbitrarily failed to consider well-recognized physical processes in its

deletion of Section (5)(b)2. That provision serves to acknowledge the process of reflux 

whereby exceedances of ambient criteria can be caused by phosphorus in receiving

areas as opposed to discharges. Reflux is a well-documented phenomenon, and its

effects increase at lower levels of phosphorus in water deliveries from the STAs.

14 

Studies confirm that in impacted areas of the Everglades, reflux will cause water column

phosphorus levels to remain elevated even after significant reductions in phosphorus 

concentrations in discharges entering the Everglades. Several provisions of the

Phosphorus Rule, including section (5)(b)2 recognize and address this fact, which EPA

arbitrarily and capriciously ignores in the Proposed Rule. EPA Response: See EPA 

response to the South Florida Water Management District comment about reflux.

Section (5)(b)2 was disapproved in EPA's 2009 determination only "to the extent it is 

linked to the moderating provision" of the rule. 2009 EPA Determination

15 at 10. EPA did

not take issue with section (5)(b)2 standing on its own, but was concerned it could tie into 

other provisions that EPA disapproved. As EPA has disapproved the "moderating 

provisions" of the rule, EPA's concerns, as it acknowledged, were unfounded

because §5(b)(2) standing on its own does not "modify the protectiveness of the underlying

criterion." Id.

Section (5)(b)2 has independent effect for the reasons discussed above. In an attempt to

remove all reference to the moderating provisions EPA would also arbitrarily change the

meaning of other aspects of the rule that apply regardless of whether the section (6) 

moderating provisions are implemented. In effect, EPA's proposed rule turns what was 

guidance on the application of section (5)(b)2 in its December 3, 2009, determination into 

a categorical deletion of the provisions and disapproval for all purposes. No support

for this is found in either EPA's determination or the reasoning in the district court's orders. 

Indeed, the 2008 Order, which sets forth the substantive rulings on the

Phosphorus Rule, makes no mention of section (5)(b)2.

16 Thus, in addition to modifying

the approved provisions of the rule and disregarding the well-established concept of 

reflux, the very foundation for deleting section (5)(b)2 - that this action is somehow 

mandated by the district court - is lacking.

14 See Enhancing Sediment Phosphorus Storage in Impacted Regions of the Everglades Protection Area,

(July 10, 2009). New Hope Ex. 7.

15 New Hope Ex. 6; Doc. No. EPA-HQ-OW-2011-0515-0007 (the "2009 EPA Determination").

16 The 2008 Order determines that EPA acted arbitrarily in generally finding that section (5) was not a 

change in standards, thus requiring EPA to review that section. 2008 Order at 63. It also took specific 

issue with section (5)(b)3. Id. at 68, n. 51. However, nothing in that order requires EPA to edit section (5) 

so as to require discharges at or below the criterion in conflict with the four-part test approved by the 

Court. Id. at 79-81.

EPA Response to Comments 49 Docket ID: EPA-HQ-OW-2011-0515-0089

Public comments received by the EPA and EPA’s responses inserted into the document
Conclusion

New Hope requests that EPA include these comments and the documents on the 

attached index into the formal rulemaking record as required by the Federal 

Administrative Procedures Act. New Hope reserves its right to challenge any final rule 

based upon the objections contained above, objections raised by any other interested 

parties, or based upon the materials contained in the administrative record. In addition, 

New Hope incorporates by reference the comments and record submissions by State of 

Florida, Department of Environmental Protection, South Florida Water Management 

District, the Sugar Cane Growers Cooperative of Florida and United States Sugar 

Corporation.

Based on the totality of these comments, the Proposed Rule should not be finalized. 

Rulemaking is premature given the pending appeals and possible changes to the district 

court's orders. Additionally, the proposal arbitrarily and capriciously ignores well- · 

documented real world phenomena such as reflux. New Hope, therefore, believes that this 

rule will be invalidated under the provisions of the Federal Administrative 

Procedures Act, because it is arbitrary and capricious, an abuse of discretion, and is not 

supported by substantial evidence.

Sincerely,

4824-2767-7962,v. 3

EPA Response to Comments 50 Docket ID: EPA-HQ-OW-2011-0515-0089

Public comments received by the EPA and EPA’s responses inserted into the document
Index of New Hope Sugar Company's and Okeelanta Corporation's Submittal to

The Environmental Protection Agency Administrative Record

EPA DOCKET ID NO.: EPA-HQ-OW-2011-0515

Regarding the Public Comments on the Phosphorus Water Quality Standards for Florida

Everglades, Publicly Noticed on July l, 2011

EXIDBITNO. NEW HOPE'S SUPPORTING DOCUMENTS

Order Granting Summary Judgment; Closing Case [DE 323], 

Miccosukee Tribe of Indians of Florida, et al. v. United States of 

America, et al., Case No. 04-21448-GOLD/MCAULEY, U.S. District 

Court of the Southern District of Florida, July 29, 2008

2 Order Granting Plaintiffs' Motions (DE 357); (DE 364) In Part; Granting

Equitable Relief; Requiring Parties to Take Action by Dates Certain [DE

404]; Miccosukee Tribe of Indians of Florida, et al. v. United States of 

America, et al., Case No. 04-21448-GOLD/MCAULEY, U.S. District 

Court of the Southern District of Florida, April14, 2010

3 Omnibus Order; Indicative Ruling Granting Defendant EPA's Rule 60(b) 

Motion for Modification of Injunction (ECF No. 446); Denying Friends' 

Motion for Order Declaring Permits Null and Void (ECF No. 533); 

Granting FDEP's Motion for Clarification of Compliance Order (ECF 

No. 573); Denying Friends' Motion to Add SFWMD as a party (ECF No.

477); Denying New Hope's Motions to Strike (ECF Nos. 536, 537) [DE

585], Miccosukee Tribe of Indians of Florida, et al. v. United States of 

America, et al., Case No. 04-21448-GOLD/MCAULEY, U.S. District 

Court of the Southern District of Florida, April26, 2011

4 Defendant, EPA's Rule 60(B) Motion For Modification of Injunction 

And Incorporated Memorandum of Law [DE 446], Miccosukee Tribe of 

Indians of Florida, et al. v. United States of America, et al., Case No. 04-

21448-GOLD/MCAULEY, U.S. District Court of the Southern District 

of Florida, July 29, 2010

EXHIBIT A

Pagel

EPA Response to Comments 51 Docket ID: EPA-HQ-OW-2011-0515-0089

Public comments received by the EPA and EPA’s responses inserted into the document
5 (a) Federal Defendants-Appellants' Notice of District Court Indicative 

Ruling Pursuant to FRAP 12.1(A) and lith CIR. R. 12.1-l(E), 

Motion for Remand to Permit Entry of the District Court's Indicative 

Ruling, and Opposition to Motion of the Florida Department of 

Environmental Protection to Lift the Abeyance [6294633-1], April

29, 2011;

(b) FDEP's Objection to Federal Defendants' Mtn forRemand, May 9,

2011;

(c) Tribe's Response in Opposition to Federal Defendants' Mtn for

Remand, May 9, 2011;

(d) New Hope and Okeelanta's Objection to Federal Defendants' Mtn for

Remand, May I 0, 2011

(e) EPA's Reply to Responses to EPA's Mtn for Remand, May 17, 2011

Miccosukee Tribe of Indians of Florida, et al. v. United States of America,

et al., Case Nos. 10-12750, United States Court of Appeals for the

Eleventh Circuit

6 EPA Determinations on Phosphorus Rule

(a) EPA Determination under CWA Section 303(c)(3) Section 4(f) of 

the EFA - September 15, 1999;

(b) EPA Determination Regarding Amended EFA- November 5, 2003; 

(c) EPA Determination under CWA Section 303 Regarding FAC 62-

302.540- January 24, 2005;

(d) EPA Determination Regarding FAC 62-302.540- July 27, 2005; 

(e) EPA Determination Regarding FAC 62-302.540 -May 8, 2006;

(f) EPA Determination Regarding Review of FAC 62-302.540(5)(d) -

May 31, 2006;

(g) By reference: EPA Determination Regarding FAC 62-302.540 and 

the 2003 amendments to the EFA, Florida Statute 373.4592, 

December 3, 2009, [Doc. No. EPA-HQ-OW-2011-D515-0007]

(h) By reference: EPA Amended Determination, September 3, 2010 [Doc.

No. EPA-HQ-OW-2011-0515-0009[1]

7 Enhancing Sediment Phosphorus Storage in impacted Regions of the

Everglades Protection Area, Final Report, DEP Agreement No. 00097, 

Prepared by Community Watershed Fund and DB Environmental, Inc., 

July I 0, 2009

EPA Response to Comments 52 Docket ID: EPA-HQ-OW-2011-0515-0089

Public comments received by the EPA and EPA’s responses inserted into the document
8 Juston, John M. and Debusk, Thomas A., Evidence and implications of

the background phosphorus, concentration of submerged aquatic 

vegetation wetlands in Stormwater Treatment Areas for Everglades 

restoration, Water Resources Research, Vol. 47, W01511,

doi:1 0.1029/2010WR009294, January 27, 2011

9 New Hope's Petition for Administrative Determination of Invalidity of 

Proposed Rule Amendment directed to proposed changes to Florida 

Department of Environmental Protection ("DEP") Fla. Admin. Code R.

62-302.540, State Of Florida Division Of Administrative Hearings, 

October 8, 2008

10 South Florida Water Management District's Letter to Environmental

Regulation Commission, December I, 2010

II Final Order on Miccosukee Tribe's Petition for an Administrative

Determination of the Invalidity of Proposed Rules 62-302.530 and 62-

302.540, Sugar Cane Growers Cooperative Of Florida v. Department of 

Environmental Protection and South Florida Water Management District, 

et al., State of Florida Division of Administrative Hearings, Case No. 03-

2884RP, Case No. 03-2872RP, Case No. 03-2873RP, July 8, 2004

12 Environmental Regulation Commission Transcripts 1n Re: Chapter 62-

302, Florida Administrative Code, Surface Water Quality Standards:

(a) January 31, 2002 

(b) February 28, 2002 

(c) March 21, 2002

(d) May 30, 2002, Vols. 1 and ll

(e) June 27,2002, Vols. I and ll

(f) August 28, 2002, Vols. 1, ll, and Ill 

(g) September 26, 2002, Vols. I and ll 

(h) September 27,2002, Vols. I and II 

(i) October 23, 2002, Vol. I

(j) October 24, 2002, Vol. ll

(k) December 3, 2002, Vol. I 

(I) December 4, 2002, Vol. II 

(m) January 23, 2003, Vol. I 

(n) January 24, 2003, Vol. IV 

(o) February 27, 2003, Vol. I

(p) February 28, 2003, Vol. IV 

(q) March 27, 2003, Vol. 1

(r) May 28, 2003 

(s) June 26, 2003 

(t) July 8, 2003

EPA Response to Comments 53 Docket ID: EPA-HQ-OW-2011-0515-0089

Public comments received by the EPA and EPA’s responses inserted into the document
13 Revised Declaration of Gary Goforth, dated January 20, 2011, State

Parties Exhibit 2037; Expert Report of Gary Goforth, dated August 5,

2005, State Parties Exhibit 2054; Rebuttal Report of Gary Goforth, dated January 

20, 2011, State Parties Exhibit 2057; Rebuttal Report of Gary Goforth dated 

August 15, 2005, State Parties Exhibit 2072, and Testimony (March 7,

2011, March 8, 2011) of Gary Goforth, Hearings before Special Master John M.

Barkett, United States of America, et al. v. South Florida Water Management

District, et a!., Case No 88-1886- MORENO, U.S. District Court of the Southern

District of Florida

EPA Response to Comments 54 Docket ID: EPA-HQ-OW-2011-0515-0089

Public comments received by the EPA and EPA’s responses inserted into the document
Document: EPA-HQ-OW-2011-0515-0014

Anonymous public comment

General Comment

I support this rule. Phosphorus is a leading contributor to increased nutrient loads in a water body. 

Increased nutrients leads to excessive algae growth that leads to compromised water bodies. In order 

to preserve existing water body uses strict nutrient standards need to be implemented. 

Without these protections we will lose national treasures like the Everglades. The importance of 

water quality standards cannot be underestimated in my book and I applauded all efforts to create 

real protective measures to this precious resource. EPA Response: EPA appreciates the comments 

in support of this rule.

Document: EPA-HQ-OW-2011-0515-0019

Comment submitted by Albert J. Slap, General Counsel, Friends of the Everglades

General Comment

To Whom It May Concern:

Friends of the Everglades is a Florida non-profit corporation that was founded in 1969 by Marjory 

Stoneman Douglas to protect and preserve the Everglades. Friends is a co-plaintiff in the federal 

litigation before Judge Gold that resulted in this proposed rule being issued. Friends supports EPA 

in this proposed rule and in EPA’s June 27, 2011 objection letter to FDEP on the draft NPDES 

permits for all of the SFWMD’s STAs. Friends hereby resubmits its comments on EPA’s Amended 

Determination, which were filed with the federal court on October 4, 2010. Friends’ comments 

include additional objections to the FDEP STA permits not included in EPA’s objection letter of 

June 27, 2011. Also, Friends’ comments to the Amended Determination and this public comment 

hereby alerts EPA to Friends’ serious concerns about methyl-mercury contamination of the 

Everglades and the role of sulfate pollution from the EAA coming through the SFWMD’s STAs. 

The SFWMD STAs comprise a large “agricultural waste” collection and treatment systems, which 

are owned and operated by an arm of the State of Florida, the SFWMD. As such, this agricultural 

waste collection and treatment system is subject to state or federal industrial NPDES permits. The 

existing NPDES permits do not contain a permit limit for the discharge of sulfates, and, as a legal 

consequence, no discharges of sulfates are allowed under the CWA and its regulations. 

Notwithstanding this prohibition, neither EPA nor FDEP have taken any measures to control or 

limit the amount or concentration of sulfates discharged into the Everglades at the discharge pipes 

of the STAs. The discharge of sulfates by the STAs exacerbates the methylation of inorganic 

mercury in the Everglades and the creation of methyl-mercury. Methyl-mercury is highly toxic to 

fish, animals and humans and is bio-magnified up through the food-web in the Everglades, harming 

the ecology and presenting a danger to people and wildlife. EPA Response: EPA appreciates 

comments in support of this rule, but notes that this comment addresses matters that may arise in 

subsequent NPDES permit proceedings and that the comment is not germane to the final rule, 

which addresses deficiencies in the State’s water quality standards for phosphorus in the 

Everglades.

EPA Response to Comments 55 Docket ID: EPA-HQ-OW-2011-0515-0014/19

Public comments received by the EPA and EPA’s responses inserted into the document