75762 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

1Florida Fish and Wildlife Conservation 

Commission. 2010. The economic impact of 

freshwater fishing in Florida. http://

www.myfwc.com/CONSERVATION/Conservation

_ValueofConservation_EconFreshwaterImpact.htm. 

Accessed August 2010. 

2Florida Department of Environmental Protection 

(FDEP). 2008. Integrated Water Quality Assessment 

for Florida: 2008 305(b) Report and 303(d) List 

Update. 

3The estimated miles for estuaries were 

recalculated in 2010. FDEP used revised GIS 

techniques to calculate mileages and corrected 

estuary waterbody descriptions by removing land 

drainage areas that had been included in some 

descriptions, which reduced the estimates of total 

estuarine water area for Florida waters generally, as 

well as for some of the estuary classifications in the 

2010 report. 

4For the Integrated Water Quality Assessment for 

Florida: 2010 305(b) Report and 303(d) List Update, 

Florida assessed about 3,637 additional miles of 

streams, about 24,833 fewer acres of lakes, and 

about 1,065 fewer square miles of estuaries than the 

2008 Integrated Report. In addition, Florida 

reevaluated the WBID segment boundaries using 

‘‘improved GIS techniques’’ for mapping. The most 

significant result of the major change in mapping 

was the reduction of assessed estuarine area from 

3,726 to 2,661 square miles. The net result to the 

impaired waters for estuaries is that the percent of 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[EPA–HQ–OW–2009–0596; FRL–9228–7] 

RIN 2040–AF11 

Water Quality Standards for the State 

of Florida’s Lakes and Flowing Waters 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA or Agency) is 

promulgating numeric water quality 

criteria for nitrogen/phosphorus 

pollution to protect aquatic life in lakes, 

flowing waters, and springs within the 

State of Florida. These criteria apply to 

Florida waters that are designated as 

Class I or Class III waters in order to 

implement the State’s narrative nutrient 

provision at Subsection 62–302– 

530(47)(b), Florida Administrative Code 

(F.A.C.), which provides that ‘‘[i]n no 

case shall nutrient concentrations of a 

body of water be altered so as to cause 

an imbalance in natural populations of 

aquatic flora or fauna.’’ 

DATES: This final rule is effective March 

6, 2012, except for 40 CFR 131.43(e), 

which is effective February 4, 2011. 

ADDRESSES: An electronic version of the 

public docket is available through EPA’s 

electronic public docket and comment 

system, EPA Dockets. You may use EPA 

Dockets at http://www.regulations.gov to 

view public comments, access the index 

listing of the contents of the official 

public docket, and to access those 

documents in the public docket that are 

available electronically. For additional 

information about EPA’s public docket, 

visit the EPA Docket Center homepage 

at http://www.epa.gov/epahome/ 

dockets.htm. Although listed in the 

index, some information is not publicly 

available, i.e., Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as copyright 

material, is not placed on the Internet 

and will be publicly available only in 

hard copy form. Publicly available 

docket materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Docket Facility. The Office of Water 

(OW) Docket Center is open from 8:30 

a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The 

OW Docket Center telephone number is 

202–566–1744 and the Docket address is 

OW Docket, EPA West, Room 3334, 

1301 Constitution Ave., NW., 

Washington, DC 20004. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744. 

FOR FURTHER INFORMATION CONTACT: For 

information concerning this rulemaking, 

contact Danielle Salvaterra, U.S. EPA 

Headquarters, Office of Water, 

Mailcode: 4305T, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460; 

telephone number: 202–564–1649; fax 

number: 202–566–9981; e-mail address: 

salvaterra.danielle@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

supplementary information section is 

organized as follows: 

Table of Contents 

I. General Information 

A. Executive Summary 

B. Which water bodies are affected by this 

rule? 

C. What entities may be affected by this 

rule? 

D. How can I get copies of this document 

and other related information? 

II. Background 

A. Nitrogen/Phosphorus Pollution 

B. Statutory and Regulatory Background 

C. Water Quality Criteria 

D. EPA Determination Regarding Florida 

and EPA’s Rulemaking 

III. Numeric Criteria for Streams, Lakes, and 

Springs in the State of Florida 

A. General Information 

B. Numeric Criteria for the State of 

Florida’s Streams 

C. Numeric Criteria for the State of 

Florida’s Lakes 

D. Numeric Criterion for the State of 

Florida’s Springs 

E. Applicability of Criteria When Final 

IV. Under what conditions will federal 

standards be withdrawn? 

V. Alternative Regulatory Approaches and 

Implementation Mechanisms 

A. Designating Uses 

B. Variances 

C. Site-Specific Alternative Criteria 

D. Compliance Schedules 

E. Proposed Restoration Water Quality 

Standard 

VI. Economic Analysis 

VII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132 (Federalism) 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

G. Executive Order 13045 (Protection of 

Children From Environmental Health 

and Safety Risks) 

H. Executive Order 13211 (Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use) 

I. National Technology Transfer 

Advancement Act of 1995 

J. Executive Order 12898 (Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations) 

K. Congressional Review Act 

I. General Information 

A. Executive Summary 

Florida is known for its abundant and 

aesthetically beautiful natural resources, 

in particular its water resources. 

Florida’s water resources are very 

important to its economy, for example, 

its $6.5 billion fishing industry.1

However, nitrogen/phosphorus 

pollution has contributed to severe 

water quality degradation in the State of 

Florida. Based upon waters assessed 

and reported by the Florida Department 

of Environmental Protection (FDEP) in 

its 2008 Integrated Water Quality 

Assessment for Florida, approximately 

1,049 miles of rivers and streams (about 

5% of total assessed streams), 349,248 

acres of lakes (about 23% of total 

assessed lakes), and 902 square miles of 

estuaries (about 24% of total assessed 

estuaries) are known to be impaired for 

nutrients by the State.2

The information presented in FDEP’s 

latest water quality assessment report, 

the 2010 Integrated Water Quality 

Assessment for Florida, documents 

increased identification of assessed 

waters that are impaired due to 

nutrients. In the FDEP 2010 Integrated 

Water Quality Assessment for Florida, 

approximately 1,918 miles of rivers and 

streams (about 8% of assessed river and 

stream miles), 378,435 acres of lakes 

(about 26% of assessed lake acres), and 

569 square miles of estuaries 3 (about 

21% of assessed square miles of 

estuaries) 4 are identified as impaired by 


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assessed estuaries impaired remains about the same 

in 2008 (24%) as in 2010 (21%). 

5FDEP. 2010. Integrated Water Quality 

Assessment for Florida: 2010 305(b) Report and 

303(d) List Update. 

6FDEP. 2009. Florida Numeric Nutrient Criteria 

History and Status. http://www.dep.state.fl.us/

water/wqssp/nutrients/docs/fl-nnc-summary100109.pdf. Accessed September 2010. 

7U.S. Census Bureau, Population Division, 

Interim State Population Projections, 2005. http:// 

www.census.gov/population/projections/

SummaryTabA1.pdf. 

8For purposes of this rule, EPA has distinguished 

South Florida as those areas south of Lake 

Okeechobee and the Caloosahatchee River 

watershed to the west of Lake Okeechobee and the 

St. Lucie watershed to the east of Lake Okeechobee, 

hereinafter referred to as the South Florida Region. 

Numeric criteria applicable to flowing waters in the 

South Florida Region will be addressed in the 

second phase of EPA’s rulemaking regarding the 

establishment of estuarine and coastal numeric 

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

of the water bodies affected by this rule). 

9As provided by the terms of the June 7, 2010 

amended Consent Decree, downstream protection 

values for estuaries and coastal waters will be 

addressed in the context of the second phase of this 

rulemaking process. 

10Nuisance algae is best characterized by 

Subsection 62–302.200(17), F.A.C.: ‘‘Nuisance 

Species’’ shall mean species of flora or fauna whose 

noxious characteristics or presence in sufficient 

number, biomass, or areal extent may reasonably be 

expected to prevent, or unreasonably interfere with, 

a designated use of those waters. 

nutrients.5 The challenge of nitrogen/ 

phosphorus pollution has been an 

ongoing focus for FDEP. Over the past 

decade or more, FDEP reports that it has 

spent over 20 million dollars collecting 

and analyzing data related to 

concentrations and impacts of nitrogen/ 

phosphorus pollution in the State.6

Despite FDEP’s intensive efforts to 

diagnose and evaluate nitrogen/ 

phosphorus pollution, substantial and 

widespread water quality degradation 

from nitrogen/phosphorus overenrichment has continued and remains 

a significant problem. 

On January 14, 2009, EPA determined 

under Clean Water Act (CWA) section 

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

quality standards (WQS) in the form of 

numeric water quality criteria are 

necessary to protect the designated uses 

from nitrogen/phosphorus pollution 

that Florida has set for its Class I and 

Class III waters. The Agency considered 

(1) the State’s documented unique and 

threatened ecosystems, (2) the large 

number of impaired waters due to 

existing nitrogen/phosphorus pollution, 

and (3) the challenge associated with 

growing nitrogen/phosphorus pollution 

associated with expanding urbanization, 

continued agricultural development, 

and a significantly increasing 

population that the U.S. Census 

estimates is expected to grow over 75% 

between 2000 and 2030.7 EPA also 

reviewed the State’s regulatory 

accountability system, which represents 

a synthesis of both technology-based 

standards and point source control 

authority, as well as authority to 

establish enforceable controls for 

nonpoint source activities. 

A significant challenge faced by 

Florida’s water quality program is its 

dependence and current reliance upon 

an approach involving resourceintensive and time-consuming site-bysite data collection and analysis to 

interpret non-numeric narrative criteria. 

This approach is used to make water 

quality impairment determinations 

under CWA section 303(d), to set 

appropriately protective numeric 

nitrogen and phosphorus pollution 

targets to guide restoration of impaired 

waters, and to establish numeric 

nitrogen and phosphorus goals to ensure 

effective protection and maintenance of 

non-impaired waters. EPA determined 

that Florida’s reliance on a case-by-case 

interpretation of its narrative criterion 

in implementing an otherwise 

comprehensive water quality framework 

of enforceable accountability 

mechanisms was insufficient to ensure 

protection of applicable designated uses 

under Subsection 62–302.530(47)(b), 

F.A.C., which, as noted above, provides 

‘‘[i]n no case shall nutrient 

concentrations of a body of water be 

altered so as to cause an imbalance in 

natural populations of aquatic flora or 

fauna.’’ 

In accordance with the terms of EPA’s 

January 14, 2009 determination, an 

August 2009 Consent Decree, and June 

7, 2010 and October 27, 2010 revisions 

to that Consent Decree, which are 

discussed in more detail in Section II.D, 

EPA is promulgating and establishing 

final numeric criteria for lakes and 

springs throughout Florida, and flowing 

waters (e.g., rivers, streams, canals, etc.) 

located outside of the South Florida 

Region.8

Regarding numeric criteria for 

streams, the Agency conducted a 

detailed technical evaluation of the 

substantial amount of sampling, 

monitoring and associated water quality 

analytic data available on Florida 

streams together with a significant 

amount of related scientific analysis. 

EPA concluded that reliance on a 

reference-based methodology was a 

strong and scientifically sound 

approach for deriving numeric criteria, 

in the form of total nitrogen (TN) and 

total phosphorus (TP) concentration 

values for flowing waters including 

streams and rivers. This information is 

presented in more detail in Section III.B 

below. 

For lakes, EPA is promulgating a 

classification approach using color and 

alkalinity based upon substantial data 

that show that lake color and alkalinity 

are important predictors of the degree to 

which TN and TP concentrations result 

in a biological response such as elevated 

chlorophyll a levels. EPA found that 

correlations between nitrogen/ 

phosphorus and biological response 

parameters in the different types of 

lakes in Florida were specific, 

significant, and documentable, and 

when considered in combination with 

additional lines of evidence, support a 

stressor-response approach to criteria 

development for Florida’s lakes. EPA’s 

results show a significant relationship 

between concentrations of nitrogen and 

phosphorus in lakes and algal growth. 

The Agency is also promulgating an 

accompanying supplementary analytical 

approach that the State can use to adjust 

TN and TP criteria within a certain 

range for individual lakes where 

sufficient data on long-term ambient 

chlorophyll a, TN, and TP levels are 

available to demonstrate that protective 

chlorophyll a criterion for a specific 

lake will still be maintained and 

attainment of the designated use will be 

assured. This information is presented 

in more detail in Section III.C below. 

EPA also evaluated what downstream 

protection criteria for streams that flow 

into lakes is necessary for assuring the 

protection of downstream lake water 

quality pursuant to the provisions of 40 

CFR 130.10(b), which requires that 

water quality standards (WQS) must 

provide for the attainment and 

maintenance of the WQS of downstream 

waters. EPA examined a variety of lake 

modeling techniques and data to ensure 

protection of aquatic life in downstream 

lakes that have streams flowing into 

them. Accordingly, this final rule 

includes a tiered approach to adjust 

instream TP and TN criteria for flowing 

waters to ensure protection of 

downstream lakes. This approach is 

detailed in Section III.C(2)(f) below.9

Regarding numeric criteria for 

springs, EPA is promulgating a 

nitrate+nitrite criterion for springs 

based on stressor-response relationships 

that are based on laboratory data and 

field evaluations that document the 

response of nuisance 10 algae and 

periphyton growth to nitrate+nitrite 

concentrations in springs. This criterion 

is explained in more detail in Section 

III.D below. 

Finally, EPA is promulgating in this 

notice an approach to authorize and 

allow derivation of Federal site-specific 

alternative criteria (SSAC) based upon 

EPA review and approval of applicant 

submissions of scientifically defensible 


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11USEPA. 2000a. Nutrient Criteria Technical 

Guidance Manual: Lakes and Reserviors. EPA–822– 

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

Office of Water, Washington, DC. USEPA. 2000b. 

Nutrient Criteria Technical Guidance Manual: 

Rivers and Streams. EPA–822–B–00–002. U.S. 

Environmental Protection Agency, Office of Water, 

Washington, DC. 

12Class I waters also include an applicable nitrate 

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

protection of human health in drinking water 

supplies. The nitrate limit applies at the entry point 

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

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

recalculations that meet the 

requirements of CWA section 303(c) and 

EPA’s implementing regulations at 40 

CFR part 131. Total maximum daily 

load (TMDL) targets submitted to EPA 

for consideration as new or revised 

WQS would be reviewed under this 

SSAC process. This approach is 

discussed in more detail in Section V.C 

below. 

Throughout the development of this 

rulemaking, EPA has emphasized the 

importance of sound science and 

widespread input in developing 

numeric criteria. Stakeholders have 

reiterated that numeric criteria must be 

scientifically sound. As demonstrated 

by the extent and detail of scientific 

analysis explained below, EPA 

continues to strongly agree. Under the 

CWA and EPA’s implementing 

regulations, numeric criteria must 

protect the designated use of a 

waterbody (as well as ensure protection 

of downstream uses) and must be based 

on sound scientific rationale. (See CWA 

section 303(c); 40 CFR 131.11). In 

Florida, EPA relied upon its published 

criteria development methodologies 11

and a substantial body of scientific 

analysis, documentation, and 

evaluation, much of it provided to EPA 

by FDEP. As discussed in more detail 

below, EPA believes that the final 

criteria in this rule meet requirements 

for designated use and downstream 

WQS protection under the CWA and 

that they are clearly based on sound and 

substantial data and analyses. 

B. Which water bodies are affected by 

this rule? 

The criteria in this final rulemaking 

apply to a group of inland waters of the 

United States within Florida. 

Specifically, as defined below, these 

criteria apply to lakes and springs 

throughout Florida, and flowing waters 

(e.g., rivers, streams, canals, etc.) located 

outside of the South Florida Region. For 

purposes of this rule, EPA has 

distinguished South Florida as those 

areas south of Lake Okeechobee and the 

Caloosahatchee River watershed to the 

west of Lake Okeechobee and the St. 

Lucie watershed to the east of Lake 

Okeechobee, hereinafter referred to as 

the South Florida Region. In this 

section, EPA defines the water bodies 

affected by this rule with respect to the 

Clean Water Act, Florida Administrative 

Code, and geographic scope in Florida. 

Because this regulation applies to 

inland waters, EPA defines fresh water 

as it applies to the affected water bodies. 

The CWA requires adoption of WQS 

for ‘‘navigable waters.’’ CWA section 

303(c)(2)(A). The CWA defines 

‘‘navigable waters’’ to mean ‘‘the waters 

of the United States, including the 

territorial seas.’’ CWA section 502(7). 

Whether a particular waterbody is a 

water of the United States is a 

waterbody-specific determination. Every 

waterbody that is a water of the United 

States requires WQS under the CWA. 

EPA is not aware of any waters of the 

United States in Florida that are 

currently exempted from the State’s 

WQS. For any privately-owned water in 

Florida that is a water of the United 

States, the applicable numeric criteria 

for those types of waters would apply. 

This rule does not apply to waters for 

which the Miccosukee Tribe of Indians 

or Seminole Tribe of Indians has 

obtained Treatment in the Same Manner 

as a State status for Sections 303 and 

401 of the CWA, pursuant to Section 

518 of the CWA. 

EPA’s final rule defines ‘‘lakes and 

flowing waters’’ (a phrase that includes 

lakes, streams, and springs) to mean 

inland surface waters that have been 

classified as Class I (Potable Water 

Supplies) or Class III (Recreation, 

Propagation and Maintenance of a 

Healthy, Well-Balanced Population of 

Fish and Wildlife) water bodies 

pursuant to Section 62–302.400, F.A.C., 

which are predominantly fresh waters, 

excluding wetlands. Class I and Class III 

surface waters share water quality 

criteria established to ‘‘protect recreation 

and the propagation and maintenance of 

a healthy, well-balanced population of 

fish and wildlife’’ pursuant to 

Subsection 62–302.400(4), F.A.C.12

Geographically, the regulation applies 

to all lakes and springs throughout 

Florida. EPA is not finalizing numeric 

criteria for Florida’s streams or canals in 

south Florida at this time. As noted 

above, EPA has distinguished South 

Florida as those areas south of Lake 

Okeechobee and the Caloosahatchee 

River watershed to the west of Lake 

Okeechobee and the St. Lucie watershed 

to the east of Lake Okeechobee, 

hereinafter referred to as the South 

Florida Region. The Agency will 

propose criteria for south Florida 

flowing waters in conjunction with 

criteria for Florida’s estuarine and 

coastal waters by November 14, 2011. 

Consistent with Section 62–302.200, 

F.A.C., EPA’s final rule defines 

‘‘predominantly fresh waters’’ to mean 

surface waters in which the chloride 

concentration at the surface is less than 

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

Consistent with Section 62–302.200, 

F.A.C., EPA’s final rule defines ‘‘surface 

water’’ to mean ‘‘water upon the surface 

of the earth, whether contained in 

bounds created naturally, artificially, or 

diffused. Water from natural springs 

shall be classified as surface water when 

it exits from the spring onto the earth’s 

surface.’’ In this rulemaking, EPA is 

promulgating numeric criteria for the 

following waterbody types: lakes, 

streams, and springs. EPA’s final rule 

also includes definitions for each of 

these waters. ‘‘Lake’’ means a slowmoving or standing body of freshwater 

that occupies an inland basin that is not 

a stream, spring, or wetland. ‘‘Stream’’ 

means a free-flowing, predominantly 

fresh surface water in a defined channel, 

and includes rivers, creeks, branches, 

canals, freshwater sloughs, and other 

similar water bodies. ‘‘Spring’’ means a 

site at which ground water flows 

through a natural opening in the ground 

onto the land surface or into a body of 

surface water. Consistent with Section 

62–312.020, F.A.C., ‘‘canal’’ means a 

trench, the bottom of which is normally 

covered by water with the upper edges 

of its two sides normally above water. 

C. What entities may be affected by this 

rule? 

Citizens concerned with water quality 

in Florida may be interested in this 

rulemaking. Entities discharging 

nitrogen or phosphorus to lakes and 

flowing waters of Florida could be 

indirectly affected by this rulemaking 

because WQS are used in determining 

National Pollutant Discharge 

Elimination System (NPDES) permit 

limits. Categories and entities that may 

ultimately be affected include: 


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13To be used by living organisms, nitrogen gas 

must be fixed into its reactive forms; for plants, 

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

Quality in Warmwater Fish Ponds. Auburn 

University: Alabama Agricultural Experiment 

Station, Auburn, AL). Eutrophication is defined as 

the natural or artificial addition of nitrogen/ 

phosphorus to bodies of water and to the effects of 

added nitrogen/phosphorus (National Academy of 

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

Consequences, Correctives. National Academy of 

Sciences, Washington, DC.) 

14National Academy of Sciences (U.S.). 1969. 

Eutrophication: Causes, Consequences, Correctives. 

National Academy of Sciences, Washington, DC. 

15 Villanueva, C.M. et al., 2006. Bladder Cancer 

and Exposure to Water Disinfection By-Products 

through Ingestion, Bathing, Showering, and 

Swimming in Pools. American Journal of 

Epidemiology 165(2):148–156. 

16USEPA. 2009. What is in Our Drinking Water?. 

United States Environmental Protection Agency, 

Office of Research and Development. http://

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

drinkingwater.html. Accessed December 2009. 

17Florida Fish and Wildlife Conservation 

Commission. 2010. The economic impact of 

freshwater fishing in Florida. http://www.myfwc.

com/CONSERVATION/Conservation_Valueof

Conservation_EconFreshwaterImpact.htm. 

Accessed August 2010. 

Category Examples of potentially affected entities 

Industry ............................................ Industries discharging pollutants to lakes and flowing waters in the State of Florida. 

Municipalities ................................... Publicly-owned treatment works discharging pollutants to lakes and flowing waters in the State of Florida. 

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

This table is not intended to be 

exhaustive, but rather provides a guide 

for entities that may be directly or 

indirectly affected by this action. This 

table lists the types of entities of which 

EPA is now aware that potentially could 

be affected by this action. Other types of 

entities not listed in the table, such as 

nonpoint source contributors to 

nitrogen/phosphorus pollution in 

Florida’s waters may be affected through 

implementation of Florida’s water 

quality standards program (i.e., through 

Basin Management Action Plans 

(BMAPs)). Any parties or entities 

conducting activities within watersheds 

of the Florida waters covered by this 

rule, or who rely on, depend upon, 

influence, or contribute to the water 

quality of the lakes and flowing waters 

of Florida, may be affected by this rule. 

To determine whether your facility or 

activities may be affected by this action, 

you should carefully examine the 

language in 40 CFR 131.43, which is the 

final rule. If you have questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

D. How can I get copies of this 

document and other related 

information? 

1. Docket. EPA has established an 

official public docket for this action 

under Docket Id. No. EPA–HQ–OW– 

2009–0596. The official public docket 

consists of the document specifically 

referenced in this action, any public 

comments received, and other 

information related to this action. 

Although a part of the official docket, 

the public docket does not include CBI 

or other information whose disclosure is 

restricted by statute. The official public 

docket is the collection of materials that 

is available for public viewing at the 

OW Docket, EPA West, Room 3334, 

1301 Constitution Ave., NW., 

Washington, DC 20004. This Docket 

Facility is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The Docket telephone 

number is 202–566–2426. A reasonable 

fee will be charged for copies. 

2. Electronic Access. You may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.epa.gov/fedrgstr/. 

An electronic version of the public 

docket is available through EPA’s 

electronic public docket and comment 

system, EPA Dockets. You may use EPA 

Dockets at http://www.regulations.gov to 

view public comments, access the index 

listing of the contents of the official 

public docket, and to access those 

documents in the public docket that are 

available electronically. For additional 

information about EPA’s public docket, 

visit the EPA Docket Center homepage 

at http://www.epa.gov/epahome/

dockets.htm. Although not all docket 

materials may be available 

electronically, you may still access any 

of the publicly available docket 

materials through the Docket Facility 

identified in Section I.C(1). 

II. Background 

A. Nitrogen/Phosphorus Pollution 

1. What is nitrogen/phosphorus 

pollution? 

Excess loading of nitrogen and 

phosphorus compounds,13 is one of the 

most prevalent causes of water quality 

impairment in the United States. 

Nitrogen/phosphorus pollution 

problems have been recognized for some 

time in the U.S., for example a 1969 

report by the National Academy of 

Sciences 14 notes ‘‘[t]he pollution 

problem is critical because of increased 

population, industrial growth, 

intensification of agricultural 

production, river-basin development, 

recreational use of waters, and domestic 

and industrial exploitation of shore 

properties. Accelerated eutrophication 

causes changes in plant and animal 

life—changes that often interfere with 

use of water, detract from natural 

beauty, and reduce property values.’’ 

Inputs of nitrogen and phosphorus lead 

to over-enrichment in many of the 

Nation’s waters and constitute a 

widespread, persistent, and growing 

problem. Nitrogen/phosphorus 

pollution in fresh water systems can 

significantly impact aquatic life and 

long-term ecosystem health, diversity, 

and balance. More specifically, high 

nitrogen and phosphorus loadings result 

in harmful algal blooms (HABs), 

reduced spawning grounds and nursery 

habitats, fish kills, and oxygen-starved 

hypoxic or ‘‘dead’’ zones. Public health 

concerns related to nitrogen/phosphorus 

pollution include impaired surface and 

groundwater drinking water sources 

from high levels of nitrates, possible 

formation of disinfection byproducts in 

drinking water, and increased exposure 

to toxic microbes such as 

cyanobacteria.15 16 Degradation of water 

bodies from nitrogen/phosphorus 

pollution can result in economic 

consequences. For example, given that 

fresh and salt water fishing in Florida 

are significant recreational and tourist 

attractions generating over six billion 

dollars annually,17 changes in Florida’s 

waters that degrade water quality to the 

point that sport fishing populations are 

affected, will also affect this important 

part of Florida’s economy. Elevated 

nitrogen/phosphorus levels can occur 

locally in a stream or groundwater, or 

can accumulate much further 

downstream leading to degraded lakes, 

reservoirs, and estuaries where fish and 

aquatic life can no longer survive. 

Excess nitrogen/phosphorus in water 

bodies comes from many sources, which 

can be grouped into five major 

categories: (1) Urban stormwater 

runoff—sources associated with urban 

land use and development, (2) 

municipal and industrial waste water 

discharges, (3) row crop agriculture, (4) 

livestock production, and (5) 

atmospheric deposition from the 

production of nitrogen oxides in electric 


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75766 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

18National Research Council. 2000. Clean coastal 

waters: Understanding and reducing the effects of 

nutrient pollution. National Academies Press, 

Washington, DC; Howarth, R.W., A. Sharpley, and 

D. Walker. 2002. Sources of nutrient pollution to 

coastal waters in the United States: Implications for 

achieving coastal water quality goals. Estuaries 

25(4b):656–676; Smith, V.H. 2003. Eutrophication 

of freshwater and coastal marine ecosystems. 

Environmental Science and Pollution Research 

10(2):126–139; Dodds, W.K., W.W. Bouska, J.L. 

Eitzmann, T.J. Pilger, K.L. Pitts, A.J. Riley, J.T. 

Schloesser, and D.J. Thornbrugh. 2009. 

Eutrophication of U.S. freshwaters: Analysis of 

potential economic damages. Environmental 

Science and Technology 43(1):12–19. 

19State-EPA Nutrient Innovations Task Group. 

2009. An Urgent Call to Action: Report of the StateEPA Nutrient Innovations Task Group. 

20For Streams: 

Stockner, J.G., and K.R.S. Shortreed. 1976. 

Autotrophic production in Carnation Creek, a 

coastal rainforest stream on Vancouver Island, 

British Columbia. Journal of the Fisheries Research 

Board of Canada 33:1553–1563.; 

Stockner, J.G., and K.R.S. Shortreed. 1978. 

Enhancement of autotrophic production by nutrient 

addition in a coastal rainforest stream on Vancouver 

Island. Journal of the Fisheries Research Board of 

Canada 35:28–34.; 

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

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

in a woodland stream ecosystem: effects of P 

enrichment on leaf decomposition and primary 

producers. Ecology 62:146–158.; 

Horner, R.R., E.B. Welch, and R.B. Veenstra. 

1983. Development of nuisance periphytic algae in 

laboratory streams in relation to enrichment and 

velocity. Pages 121–134 in R.G. Wetzel (editor). 

Periphyton of freshwater ecosystems. Dr. W. Junk 

Publishers, The Hague, The Netherlands.; 

Bothwell, M.L. 1985. Phosphorus limitation of 

lotic periphyton growth rates: an intersite 

comparison using continuous-flow troughs 

(Thompson River system, British Columbia). 

Limnology and Oceanography 30:527–542.; 

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

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

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

1985. Transformation of a tundra river from 

heterotrophy to autotrophy by addition of 

phosphorus. Science 229:1383–1386.; 

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

1989. Phytoplankton distribution in a temperate 

floodplain lake and river system. I. Hydrology, 

nutrient sources and phytoplankton biomass. 

Journal of Plankton Research 11:813–835.; 

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

of Cladophora. Journal of Phycology 28:415–427.; 

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

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

stream periphyton: Effects of nutrients and 

herbivores. Ecology 74:1264–1280.; 

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

cyanobacterial bloom in the Barwon-Darling River, 

Australia, in 1991, and underlying limnological 

conditions. Marine and Freshwater Research 47: 

643–657.; 

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

periphyton biomass in Laurentian streams 

(Quebec). Journal of the North American 

Benthological Society 17:420–429.; 

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

nutrient amendment experiments: detecting and 

quantifying subtle responses. Journal of the North 

American Benthological Society 20:358–368.; 

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

rivers: dissolved nutrient-chlorophyll relationships 

for Benthic algae. Journal of the North American 

Benthological Society 19:17–31.; 

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

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

control in a detritus-based food web. Ecology 82: 

2279–2293.; 

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

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

phosphorus concentration and effects on detritusbased tropical streams. Limnology and 

Oceanography 47:278–289.; 

Slavik, K., B.J. Peterson, L.A. Deegan, W.B. 

Bowden, A.E. Hershey, and J.E. Hobbie. 2004. Longterm responses of the Kuparuk River ecosystem to 

phosphorus fertilization. Ecology 85:939—954.; 

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

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

enrichment Increases secondary production in a 

detritus-based ecoystem. Ecology 87:1556–1565.; 

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

dynamics in streams and the role of J–NABS. 

Journal of the North American Benthological 

Society 29:100–117.; 

For Lakes: 

Vollenweider, R.A. 1968. Scientific 

Fundamentals of the Eutrophication of Lakes and 

Flowing Waters, With Particular Reference to 

Nitrogen and Phosphorus as Factors in 

Eutrophication (Tech Rep DAS/CS/68.27, OECD, 

Paris).; 

National Academy of Science. 1969. 

Eutrophication: Causes, Consequences, Correctives. 

National Academy of Science, Washington, DC.; 

Schindler D.W., H. Kling, R.V. Schmidt, J. 

Prokopowich, V.E. Frost, R.A. Reid, and M. Capel. 

1973. Eutrophication of Lake 227 by addition of 

phosphate and nitrate: The second, third, and 

fourth years of enrichment 1970, 1971, and 1972. 

Journal of the Fishery Research Board of Canada 

30:1415–1440.; 

Schindler D.W. 1974. Eutrophication and 

recovery in experimental lakes: Implications for 

lake management. Science 184:897–899.; 

Vollenweider, R.A. 1976. Advances in Defining 

Critical Loading Levels for Phosphorus in Lake 

Eutrophication. Memorie dell’Istituto Italiano di 

Idrobiologia 33:53–83.; 

Carlson R.E. 1977. A trophic State index for lakes. 

Limnology and Oceanography 22:361–369.; 

Paerl, H.W. 1988. Nuisance phytoplankton 

blooms in coastal, estuarine, and inland waters. 

Limnology and Oceanography 33:823–847.; 

Elser, J.J., E.R. Marzolf, and C.R. Goldman. 1990. 

Phosphorus and nitrogen limitation of 

phytoplankton growth in the freshwaters of North 

America: a review and critique of experimental 

enrichments. Canadian Journal of Fisheries and 

Aquatic Science 47:1468–1477.; 

Smith, V.H., G.D. Tilman, and J.C. Nekola. 1999. 

Eutrophication: impacts of excess nutrient inputs 

on freshwater, marine, and terrestrial ecosystems. 

Environmental Pollution 100:179–196.; 

Downing, J.A., S.B. Watson, and E. McCauley. 

2001. Predicting cyanobacteria dominance in lakes. 

Canadian Journal of Fisheries and Aquatic Sciences 

58:1905–1908.; 

Smith, V.H., S.B. Joye, and R.W. Howarth. 2006. 

Eutrophication of freshwater and marine 

ecosystems. Limnology and Oceanography 51:351– 

355.; 

Elser, J.J., M.E.S. Bracken, E.E. Cleland, D.S. 

Gruner, W.S. Harpole, H. Hillebrand, J.T. Ngai, E.W. 

Seabloom, J.B. Shurin, and J.E. Smith. 2007. Global 

analysis of nitrogen and phosphorus limitation of 

primary production in freshwater, marine, and 

terrestrial ecosystems. Ecology Letters 10:1135– 

1142. 

21Hauxwell, J., C. Jacoby, T. Frazer, and J. 

Stevely. 2001. Nutrients and Florida’s Coastal 

Waters: Florida Sea Grant Report No. SGEB–55. 

Florida Sea Grant College Program, University of 

Florida, Gainesville, FL. 22NOAA. 2009. Harmful Algal Blooms: Current 

Programs Overview. National Oceanic and 

Atmospheric Administration. http://www.cop.noaa.

gov/stressors/extremeevents/hab/default.aspx. 

Accessed December 2009. 

power generation and internal 

combustion engines. These sources 

contribute significant loadings of 

nitrogen and phosphorus to surface 

waters, causing major impacts to aquatic 

ecosystems and significant imbalances 

in the natural populations of flora and 

fauna.18 19

2. Adverse Impacts of Nitrogen/ 

Phosphorus Pollution on Aquatic Life, 

Human Health, and the Economy 

Fish, shellfish, and wildlife require 

clean water for survival. Changes in the 

environment resulting from elevated 

nitrogen/phosphorus levels (such as 

algal blooms, toxins from harmful algal 

blooms, and hypoxia/anoxia) can cause 

a variety of effects. The causal pathways 

that lead from human activities to 

excess nutrients to impacts on 

designated uses in lakes and streams are 

well established in the scientific 

literature (e.g., Streams: Stockner and 

Shortreed 1976, Stockner and Shortreed 

1978, Elwood et al. 1981, Horner et al. 

1983, Bothwell 1985, Peterson et al. 

1985, Moss et al. 1989, Dodds and 

Gudder 1992, Rosemond et al. 1993, 

Bowling and Baker 1996, Bourassa and 

Cattaneo 1998, Francoeur 2001, Biggs 

2000, Rosemond et al. 2001, Rosemond 

et al. 2002, Slavik et al. 2004, Cross et 

al. 2006, Mulholland and Webster 2010; 

Lakes: Vollenweider 1968, NAS 1969, 

Schindler et al. 1973, Schindler 1974, 

Vollenweider 1976, Carlson 1977, Paerl 

1988, Elser et al. 1990, Smith et al. 

1999, Downing et al. 2001, Smith et al. 

2006, Elser et al. 2007).20

When excessive nitrogen/phosphorus 

loads change a waterbody’s algae and 

plant species, the change in habitat and 

available food resources can induce 

changes affecting an entire food chain. 

Algal blooms block sunlight that 

submerged grasses need to grow, leading 

to a decline of submerged aquatic 

vegetation beds and decreased habitat 

for juvenile organisms. Algal blooms 

can also increase turbidity and impair 

the ability of fish and other aquatic life 

to find food.21 Algae can also damage or 

clog the gills of fish and invertebrates.22

Excessive algal blooms (those that use 

oxygen for respiration during periods 

without sunlight) can lead to diurnal 

shifts in a waterbody’s production and 

consumption of dissolved oxygen (DO) 

resulting in reduced DO levels that are 

sufficiently low to harm or kill 

important recreational species such as 

largemouth bass. 

Excessive algal growth also 

contributes to increased oxygen 

consumption associated with 

decomposition (e.g. decaying vegetative 

matter), in many instances reducing 


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23NOAA. 2009. Harmful Algal Blooms: Current 

Programs Overview. National Oceanic and 

Atmospheric Administration. http:// 

www.cop.noaa.gov/stressors/extremeevents/hab/ 

default.aspx. Accessed December 2009. 

24USGS. 2009. Hypoxia. U.S. Geological Survey. 

http://toxics.usgs.gov/definitions/hypoxia.html. 

Accessed December 2009. 

25ESA. 2009. Hypoxia. Ecological Society of 

America. http://www.esa.org/education_diversity/ 

pdfDocs/hypoxia.pdf. Accessed December 2009. 

26USEPA. 1986. Ambient Water Quality Criteria 

for Dissolved Oxygen Freshwater Aquatic Life. 

EPA–800–R–80–906. Environmental Protection 

Agency, Office of Water, Washington DC. 

27CDC. 2010. Facts about cyanobacteria and 

cyanobacterial harmful algal blooms. Centers for 

Disease Control and Prevention. http:// 

www.cdc.gov/hab/cyanobacteria/facts.htm. 

Accessed August 2010. 

28 Ibelings, Bas W. and Karl E. Havens. 2008 

Chapter 32: Cyanobacterial toxins: a qualitative 

meta-analysis of concentrations, dosage and effects 

in freshwater, estuarine and marine biota. In 

Cyanobacterial Harmful Algal Blooms: State of the 

Science and Research Needs. From the Monograph 

of the September 6–10, 2005 International 

Symposium on Cyanobacterial Harmful Algal 

Blooms (ISOC–HAB) in Durham, NC. http:// 

www.epa.gov/cyano_habs_symposium/monograph/ 

Ch32.pdf. Accessed August 19, 2010. 

29WHOI. 2008. HAB Impacts on Wildlife. Woods 

Hole Oceanographic Institution. http:// 

www.whoi.edu/redtide/page.do?pid=9682. 

Accessed December 2009. 

30FDEP. 2010. Blue Green Algae Frequently 

Asked Questions. http://www.dep.state.fl.us/water/ 

bgalgae/faq.htm. Accessed August 2010. 

31Ohio DNR. 2010. News Release September 3, 

2010. http://www.epa.state.oh.us/portals/47/nr/ 

2010/september/9-3samplingresults.pdf. Accessed 

September 2010. 

32 Defined as: Cautionary advisory to avoid 

contact with any algae. Ohio DNR. 2010. News 

Release September 3, 2010. http:// 

www.epa.state.oh.us/portals/47/nr/2010/ 

september/9-3samplingresults.pdf. Accessed 

September 2010. 

33 Defined as: Avoid contact with any algae and 

direct contact with water. Ohio DNR. 2010. News 

Release September 3, 2010. http:// 

www.epa.state.oh.us/portals/47/nr/2010/ 

september/9-3samplingresults.pdf. Accessed 

September 2010. 

34 Defined as: Avoid any and all contact with or 

ingestion of the lake water. This includes the 

launching of any watercraft on the lake. Ohio DNR. 

2010. News Release September 3, 2010. http:// 

www.epa.state.oh.us/portals/47/nr/2010/ 

september/9-3samplingresults.pdf. Accessed 

September 2010. 

35CDC. 2010. Facts about cyanobacteria and 

cyanobacterial harmful algal blooms, Centers for 

Disease Control and Prevention. http:// 

www.cdc.gov/hab/cyanobacteria/facts.htm. 

Accessed August 2010. 

36Falconer, I.R., and A.R. Humpage. 2005. Health 

Risk Assessment of Cyanobacterial (Blue-green 

Algal) Toxins in Drinking Water. International 

Journal of Research and Public Health 2(1): 43–50. 

37Carmichael, W.W. 2000. Assessment of BlueGreen Algal Toxins in Raw and Finished Drinking 

Water. AWWA Research Foundation, Denver, CO. 

38For more information, refer to Manassaram, 

Deana M., Lorraine C. Backer, and Deborah M. Moll. 

2006. A Review of Nitrates in Drinking Water: 

Maternal Exposure and Adverse Reproductive and 

Developmental Outcomes. Environmental Health 

Perspect. 114(3): 320–327. 

39USEPA. 2007. Nitrates and Nitrites: TEACH 

Chemical Summary. U.S. Environmental Protection 

Agency. http://www.epa.gov/teach/chem_summ/ 

Nitrates_summary.pdf. Accessed December 2009. 

40 Dubrovsky, N.M., Burow, K.R., Clark, G.M., 

Gronberg, J.M., Hamilton P.A., Hitt, K.J., Mueller, 

D.K., Munn, M.D., Nolan, B.T., Puckett, L.J., Rupert, 

M.G., Short, T.M., Spahr, N.E., Sprague, L.A., and 

Wilber, W.G. 2010. The quality of our Nation’s 

waters—Nutrients in the Nation’s streams and 

groundwater, 1992–2004: U.S. Geological Survey 

Circular 1350, 174p. Available electronically at: 

http://water.usgs.gov/nawqa/nutrients/pubs/ 

circ1350. 

41The serious illness in infants is caused because 

nitrate is converted to nitrite in the body. Nitrite 

interferes with the oxygen carrying capacity of the 

child’s blood. This is an acute disease in that 

symptoms can develop rapidly in infants. In most 

cases, health deteriorates over a period of days. 

Symptoms include shortness of breath and blueness 

of the skin. (source: FDEP. 2010. Drinking Water: 

Inorganic Contaminants. Florida Department of 

Environmental Protection. http:// 

www.dep.state.fl.us/water/drinkingwater/ 

inorg_con.htm. Accessed September 2010.) 

oxygen to levels below that needed for 

aquatic life to survive and flourish.23 24

Mobile species, such as adult fish, can 

sometimes survive by moving to areas 

with more oxygen. However, migration 

to avoid hypoxia depends on species 

mobility, availability of suitable habitat, 

and adequate environmental cues for 

migration. Less mobile or immobile 

species, such as mussels, cannot move 

to avoid low oxygen and are often killed 

during hypoxic events.25 While certain 

mature aquatic animals can tolerate a 

range of dissolved oxygen levels that 

occur in the water, younger life stages 

of species like fish and shellfish often 

require higher levels of oxygen to 

survive.26 Sustained low levels of 

dissolved oxygen cause a severe 

decrease in the amount of aquatic life in 

hypoxic zones and affect the ability of 

aquatic organisms to find necessary food 

and habitat. 

In freshwater, HABs including, for 

example, blue-green algae from the 

phylum of bacteria called 

cyanobacteria,27 can produce toxins that 

have been implicated as the cause of a 

number of fish and bird mortalities.28

These toxins have also been tied to the 

death of pets and livestock that may be 

exposed through drinking contaminated 

water or grooming themselves after 

bodily exposure.29 Many other States, 

and countries for that matter, are 

experiencing problems with algal 

blooms.30 Ohio on September 3, 2010,31

for example, listed eight water bodies as 

‘‘Bloom Advisory,’’ 32 six water bodies as 

‘‘Toxin Advisory,’’ 33 and two waters as 

‘‘No Contact Advisory.’’ 34 Species of 

cyanobacteria associated with 

freshwater algal blooms include: 

Microcystis aeruginosa, Anabaena 

circinalis, Anabaena flos-aquae, 

Aphanizomenon flos-aquae, and 

Cylindrospermopsis raciborskii. The 

toxins from cyanobacterial harmful algal 

blooms can produce neurotoxins (affect 

the nervous system), hepatotoxins 

(affect the liver), produce 

lipopolysaccharides that affect the 

gastrointestinal system, and some are 

tumor promoters.35 A recent study 

showed that at least one type of 

cyanobacteria has been linked to cancer 

and tumor growth in animals.36

Cyanobacteria toxins can also pass 

through normal drinking water 

treatment processes and pose an 

increased risk to humans or animals.37

Health and recreational use impacts to 

humans result directly from exposure to 

elevated nitrogen/phosphorus pollution 

levels and indirectly from the 

subsequent waterbody changes that 

occur from increased nitrogen/ 

phosphorus pollution (such as algal 

blooms and toxins). Direct impacts 

include effects to human health through 

potentially contaminated drinking 

water. Indirect impacts include 

restrictions on recreation (such as 

boating and swimming). Algal blooms 

can prevent opportunities to swim and 

engage in other types of recreation. In 

areas where recreation is determined to 

be unsafe because of algal blooms, 

warning signs are often posted to 

discourage human use of the waters. 

Nitrate in drinking water can cause 

serious health problems for humans,38

especially infants. EPA developed a 

Maximum Contaminant Level (MCL) of 

10 mg/L for nitrate in drinking water.39

In the 2010 USGS National WaterQuality Assessment Program report, 

nitrate was found to be the most 

frequently detected nutrient in streams 

at concentrations greater than 10 mg/L. 

The report also found that 

concentrations of nitrate greater than the 

MCL of 10 mg/L were more prevalent 

and widespread in groundwater used for 

drinking water than in streams.40

Florida has adopted EPA’s 

recommendations for the nitrate MCL in 

Florida’s regulated drinking water 

systems and a 10 mg/L criteria for 

nitrate in Class I waters. FDEP shares 

EPA’s concern regarding blue-baby 

syndrome as can be seen in information 

FDEP reports on its drinking water 

information for the public: ‘‘Nitrate is 

used in fertilizer and is found in sewage 

and wastes from human and/or farm 

animals and generally gets into drinking 

water from those activities. Excessive 

levels of nitrate in drinking water have 

caused serious illness and sometimes 

death in infants less than six months of 

age 41 * * * EPA has set the drinking 

water standard at 10 parts per million 

(ppm) [or 10 mg/L] for nitrate to protect 


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42EPA has also set a drinking water standard for 

nitrite at 1 mg/L. To allow for the fact that the 

toxicity of nitrate and nitrite are additive, EPA has 

also established a standard for the sum of nitrate 

and nitrite at 10 mg/L. (source: FDEP. 2010. 

Drinking Water: Inorganic Contaminants. Florida 

Department of Environmental Protection. http:// 

www.dep.state.fl.us/water/drinkingwater/ 

inorg_con.htm. Accessed September 2010.) 

43FDEP. 2010. Drinking Water: Inorganic 

Contaminants. Florida Department of 

Environmental Protection. http:// 

www.dep.state.fl.us/water/drinkingwater/ 

inorg_con.htm. Accessed September 2010. 

44USEPA. 2009. National Primary Drinking Water 

Regulations. Contaminants. U.S. Environmental 

Protection Agency. Accessed http://www.epa.gov/ 

safewater/hfacts.html. December 2009. 

45National Primary Drinking Water Regulations: 

Stage 2 Disinfectants and Disinfection Byproducts 

Rule, 40 CFR parts 9, 141, and 142. U.S. 

Environmental Protection Agency, FR 71:2 (January 

4, 2006). pp. 387–493. Available electronically at: 

http://www.epa.gov/fedrgstr/EPA-WATER/2006/ 

January/Day-04/w03.htm. Accessed December 

2009. 

46 Jones, C.S., D. Hill, and G. Brand. 2007. Use a 

multifaceted approach to manage high sourcewater 

nitrate. Opflow June pp. 20–22. 

47Taft, Jim, Association of State Drinking Water 

Administrators (ASDWA). 2009. Personal 

Communication. 

48Moershel, Philip, Oklahoma Water Resources 

Board (OWRB) and Mark Derischweiler, Oklahoma 

Department of Environmental Quality (ODEQ). 

2009. Personal Communication. 

49Perry, W. B. 2008. Everglades restoration and 

water quality challenges in south Florida. 

Ecotoxicology 17:569–578. 

50FDEP. 2008. Integrated Water Quality 

Assessment for Florida: 2008 305(b) Report and 

303(d) List Update. 

51 IWR Run 40. Updated through February 2010. 

52FDEP. 2008. Integrated Water Quality 

Assessment for Florida: 2008 305(b) Report and 

303(d) List Update. 

53Patterson, S. 2010, July 23. St John’s River 

Looks Sick. Florida Times Union. http:// 

jacksonville.com/news/metro/2010-07-23/story/stjohns-looks-sick-nelson-says. Accessed September 

2010. 

54Patterson, S. 2010, July 21. Foam on St. John’s 

River Churns Up Environmental Interest. Florida 

Times Union. http://jacksonville.com/news/metro/ 

2010-07-21/story/foam-st-johns-churnsenvironmental-questions. Accessed October 2010. 

55 Killer, E. 2010, June 10. Blue-green Algae 

Found Floating Near Palm City as Lake Okeechobee 

Releases Continue. Treasure Coast Times. http:// 

www.tcpalm.com/news/2010/jun/10/blue-greenalgae-found-floating-near-palm-city-o/. Accessed 

October 2010. 

against the risk of these adverse 

effects 42 * * * Drinking water that 

meets the EPA standard is associated 

with little to none of this risk and is 

considered safe with respect to 

nitrate.’’ 43

Human health can also be impacted 

by disinfection byproducts formed 

when disinfectants (such as chlorine) 

used to treat drinking water react with 

organic carbon (from the algae in source 

waters). Some disinfection byproducts 

have been linked to rectal, bladder, and 

colon cancers; reproductive health risks; 

and liver, kidney, and central nervous 

system problems.44 45

Economic losses from algal blooms 

and harmful algal blooms can include 

increased costs for drinking water 

treatment, reduced property values for 

streams and lakefront areas, commercial 

fishery losses, and lost revenue from 

recreational fishing, boating trips, and 

other tourism-related businesses. 

In terms of increased costs for 

drinking water treatment, for example, 

in 1991, Des Moines (Iowa) Water 

Works constructed a $4 million ion 

exchange facility to remove nitrate from 

its drinking water supply. This facility 

was designed to be used an average of 

35–40 days per year to remove excess 

nitrate levels at a cost of nearly $3000 

per day.46

Fremont, Ohio (a city of 

approximately 20,000) has experienced 

high levels of nitrate from its source, the 

Sandusky River, resulting in numerous 

drinking water use advisories. An 

estimated $15 million will be needed to 

build a reservoir (and associated piping) 

that will allow for selective withdrawal 

from the river to avoid elevated levels 

of nitrate, as well as to provide 

storage.47

In regulating allowable levels of 

chlorophyll a in Oklahoma drinking 

water reservoirs, the Oklahoma Water 

Resources Board estimated that the 

long-term cost savings in drinking water 

treatment for 86 systems would range 

between $106 million and $615 million 

if such regulations were implemented.48

3. Nitrogen/Phosphorus Pollution in 

Florida 

Florida’s flat topography causes water 

to move slowly over the landscape, 

allowing ample opportunity for nitrogen 

and phosphorus to dissolve and 

eutrophication responses to develop. 

Florida’s warm and wet, yet sunny, 

climate further contributes to increased 

run-off and ideal temperatures for 

subsequent eutrophication responses.49

As outlined in the EPA January 2009 

determination and the January 2010 

proposal, water quality degradation 

resulting from excess nitrogen and 

phosphorus loadings is a documented 

and significant environmental issue in 

Florida. FDEP notes in its 2008 

Integrated Water Quality Assessment 

that nutrient pollution poses several 

challenges in Florida. For example, the 

FDEP 2008 Integrated Water Quality 

Assessment notes: ‘‘the close connection 

between surface and ground water, in 

combination with the pressures of 

continued population growth, 

accompanying development, and 

extensive agricultural operations, 

present Florida with a unique set of 

challenges for managing both water 

quality and quantity in the future. After 

trending downward for 20 years, 

beginning in 2000 phosphorus levels 

again began moving upward, likely due 

to the cumulative impacts of nonpoint 

source pollution associated with 

increased population and development. 

Increasing pollution from urban 

stormwater and agricultural activities is 

having other significant effects. In many 

springs across the State, for example, 

nitrate levels have increased 

dramatically (twofold to threefold) over 

the past 20 years, reflecting the close 

link between surface and ground 

water.’’ 50 To clarify current nitrogen/ 

phosphorus pollution conditions in 

Florida, EPA analyzed recent STORET 

data pulled from Florida’s Impaired 

Waters Rule (IWR),51 (which are the 

data Florida uses to create its integrated 

reports) and found increasing levels of 

nitrogen and phosphorus compounds in 

Florida waters over the past 12 years 

(1996–2008). Florida’s IWR STORET 

data indicates that levels of total 

nitrogen have increased from a Statewide average of 1.06 mg/L in 1996 to 

1.27 mg/L in 2008 and total phosphorus 

levels have increased from an average of 

0.108 mg/L in 1996 to 0.151 mg/L in 

2008. 

The combination of the factors 

reported by FDEP and listed above 

(including population increase, climate, 

stormwater runoff, agriculture, and 

topography) has contributed to 

significant nitrogen/phosphorus effects 

to Florida’s waters.52 For example, 

newspapers in Florida regularly report 

about impacts associated with nitrogen/ 

phosphorus pollution; recent examples 

include reports of algal blooms and fish 

kills in the St Johns River 53 and reports 

of white foam associated with algal 

blooms lining parts of the St. Johns 

River.54 Spring releases of water from 

Lake Okeechobee into the St Lucie 

Canal, necessitated by high lake levels 

due to rainfall, resulted in reports of 

floating mats of toxic Microcystis 

aeruginosa that prompted Martin and St 

Lucie county health departments to 

issue warnings to the public.55

The 2008 Integrated Water Quality 

Assessment lists nutrients as the fourth 

major source of impairment for rivers 

and streams in Florida (after dissolved 

oxygen, mercury in fish, and fecal 

coliforms). For lakes and estuaries, 

nutrients are ranked first and second, 

respectively. These same rankings are 

also confirmed in FDEP’s latest 2010 

Integrated Water Quality Assessment. 


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Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 75769 

56FDEP. 2008. Integrated Water Quality 

Assessment for Florida: 2008 305(b) Report and 

303(d) List Update. 

57FDEP. 2008. Integrated Water Quality 

Assessment for Florida: 2008 305(b) Report and 

303(d) List Update. 

58FDEP. 2010. Integrated Water Quality 

Assessment for Florida: 2010 305(b) Report and 

303(d) List Update. 

59FDEP. 2010. Integrated Water Quality 

Assessment for Florida: 2010 305(b) Report and 

303(d) List Update. 

60 ‘‘While significant progress has been made in 

reducing nutrient loads from point sources and 

from new development, nutrient loading and the 

resulting harmful algal blooms continue to be an 

issue. The occurrence of blue-green algae is natural 

and has occurred throughout history; however, algal 

blooms caused by nutrient loading from fertilizer 

use, together with a growing population and the 

resulting increase in residential landscapes, are an 

ongoing concern.’’ FDEP. 2010. Integrated Water 

Quality Assessment for Florida: 2010 305(b) Report 

and 303(d) List Update. 

61 ‘‘Freshwater harmful algal blooms (HABs) are 

increasing in frequency, duration, and magnitude 

and therefore may be a significant threat to surface 

drinking water resources and recreational areas. 

Abundant populations of blue-green algae, some of 

them potentially toxigenic, have been found 

statewide in numerous lakes and rivers. In addition, 

measured concentrations of cyanotoxins—a few of 

them of above the suggested guideline levels—have 

been reported in finished water from some drinking 

water facilities.’’ FDEP. 2008. Integrated Water 

Quality Assessment for Florida: 2008 305(b) Report 

and 303(d) List Update. 

62Peltier, M. 2008. Group files suit to enforce EPA 

water standards. Naples News. http:// 

news.caloosahatchee.org/docs/ 

NaplesNews_080717.htm. Accessed August 2010. 

63Scott, T.M., G.H. Means, R.P. Meegan, R.C. 

Means, S.B. Upchurch, R.E. Copeland, J. Jones, T. 

Roberts, and A. Willet. 2004. Springs of Florida. 

Bulletin No. 66. Florida Geological Survey, 

Tallahassee, FL. 677 pp. 

64FL Geological Survey. 1992. Special 

Publication No. 34, Florida’s Ground Water Quality 

Monitoring Program, (nitrate-pp 36–6). 

65Maddox, G.L., J.M. Lloyd, T.M. Scott, S.B. 

Upchurch and R. Copeland. 1992. Florida’s 

Groundwater Quality Monitoring Program— 

Background Hydrochemistry. Florida Geological 

Survey Special Publication No. 34, Tallahassee, FL. 

66Scott, T.M., G.H. Means, R.P. Meegan, R.C. 

Means, S.B. Upchurch, R.E. Copeland, J. Jones, T. 

Roberts, and A. Willet. 2004. Springs of Florida. 

Bulletin No. 66. Florida Geological Survey, 

Tallahassee, FL. 677 pp. 

67 Katz, B.G., H.D. Hornsby, J.F. Bohlke and M.F. 

Mokray. 1999. Sources and chronology of nitrate 

contamination in spring water, Suwannee River 

Basin, Florida. Water-Resources Investigations 

Report 99–4252. U.S. Geological Survey, 

Tallahassee, FL. Available electronically at: http:// 

fl.water.usgs.gov/PDF_files/wri99_4252_katz.pdf. 

Scott, T.M., G.H. Means, R.P. Meegan, R.C. 

Means, S.B. Upchurch, R.E. Copeland, J. Jones, T. 

Roberts, and A. Willet. 2004. Springs of Florida. 

Bulletin No. 66. Florida Geological Survey, 

Tallahassee, FL. 677 pp. 

68FDEP. 2009. Chemical Data for 2004, 2005, 

2006, 2007 2008, and 2009. Florida Department of 

Environmental Protection. http:// 

www.dep.state.fl.us/water/drinkingwater/ 

chemdata.htm. Accessed January 2010. 

69Marella, R.L. 2009. Water Withdrawals, Use, 

and Trends in Florida, 2005. Scientific 

Investigations Report 2009–5125. U.S. Geological 

Survey, Reston, VA. 

70Southern Regional Water Program. 2010. 

Drinking Water and Human Health in Florida. 

http://srwqis.tamu.edu/florida/programinformation/florida-target-themes/drinking-waterand-human-health.aspx. Accessed January 2010. 

71T.A. Obreza and K.T. Morgan. 2008. Nutrition 

of Florida Citrus Trees 15 months after publication 

of the final rule, except for the Federal site-specific 

alternative criteria (SSAC) procedure in section 

131.43(e) of the rule which will go into effect 60 

days after publication. 2nd ed. SL 253. University 

of Florida, IFAS Extension. http://edis.ifas.ufl.edu/ 

pdffiles/SS/SS47800.pdf. Accessed September 

2010. 

According to FDEP’s 2008 Integrated 

Water Quality Assessment,56

approximately 1,049 miles of rivers and 

streams, 349,248 acres of lakes, and 902 

square miles of estuaries are impaired 

by nutrients in the State. To put this in 

context and as noted above, 

approximately 5% of the total assessed 

river and stream miles, 23% of the total 

assessed lake acres, and 24% of the total 

assessed square miles of estuaries are 

impaired for nutrients according to the 

2008 Integrated Report.57 In recent 

published listings of impairments for 

2010, Florida Department of 

Environmental Protection lists nutrient 

impairments in 1,918 stream miles 

(about 8% of the total assessed stream 

miles), 378,435 lake acres (about 26% of 

total assessed lake acres), and 569 

square miles of estuaries (about 21% of 

total assessed estuarine square miles).58

Compared to FDEP’s 2008 Integrated 

Water Quality Assessment, the 2010 

Integrated Water Quality Assessment 

shows an increase in nutrient 

impairments for rivers and streams 

(from approximately 1000 miles to 1918 

miles) and lakes (from approximately 

350,000 lake acres to 378,435 lake 

acres). While the square miles of 

estuaries identified as impaired by 

nutrients decreased from 2008 to 2010 

(from approximately 900 to 569 square 

miles), the 2010 Integrated Water 

Quality Assessment notes that all square 

miles of estuaries in the report were 

decreased based on improved GIS 

techniques and corrected waterbody 

descriptions.59 Consequently, the 

decrease in estuarine square miles 

identified as impaired by nutrients in 

2010 does not necessarily reflect a 

corresponding decrease in nitrogen/ 

phosphorus pollution affecting Florida’s 

estuarine water bodies. 

FDEP has expressed concern about 

nitrogen/phosphorus pollution in 

Florida surface waters,60 in addition to 

concerns about freshwater harmful algal 

blooms and the potential for adverse 

human health impacts as noted in 

FDEP’s 2008 Integrated Water Quality 

Assessment.61 This concern is 

underscored by a toxic blue-green algae 

bloom that occurred north of the 

Franklin Lock on the Caloosahatchee 

River in mid-June 2008. The Olga Water 

Treatment Plant, which obtains its 

source water from the Caloosahatchee 

and provides drinking water for 30,000 

people, was forced to temporarily shut 

down as a result of this bloom.62

There has also been an increase in the 

level of pollutants, especially nitrate, in 

groundwater over the past decades.63

The Florida Geological Survey 

concluded that ‘‘The presence of nitrate 

and the other nitrogenous compounds 

in ground water, is not considered in 

Florida to be a result of interaction of 

aquifer system water with surrounding 

rock materials. Nitrate in ground water 

is a result of specific land uses.’’ 64

Historically, nitrate+nitrite 

concentrations in Florida’s spring 

discharges were estimated to have been 

around 0.05 mg/L or less, which is 

sufficiently low to restrict growth of 

algae and vegetation under ‘‘natural’’ 

conditions.65 Of 125 spring vents 

sampled by the Florida Geological 

Survey in 2001–2002, 42% had 

nitrate+nitrite concentrations exceeding 

0.50 mg/L and 24% had concentrations 

greater than 1.0 mg/L.66 In the same 

study, mean nitrate+nitrite levels in 13 

first-order springs were observed to 

have increased from 0.05 mg/L to 0.9 

mg/L between 1970 and 2002. Overall, 

data suggest that nitrate+nitrite 

concentrations in many spring 

discharges have increased by an order of 

magnitude or a factor of 10 over the past 

50 years, with the level of increase 

closely correlated with anthropogenic 

activity and land use changes within the 

karst regions of Florida where springs 

most often occur.67

Nitrates are found in ground water 

and wells in Florida, ranging from the 

detection limit of 0.02 mg/L to over 20 

mg/L. Monitoring of Florida Public 

Water Supplies from 2004–2009 

indicates that exceedances of nitrate 

maximum contaminant levels (MCL) 

(which are measured at the entry point 

of the distribution system and represent 

treated drinking water from a supplier) 

reported by drinking water plants in 

Florida ranged from 34–40 annually, 

during this period.68

About 10% of Florida residents 

receive their drinking water from a 

private well or small public source not 

inventoried under public supply.69 A 

study in the late 1980s conducted by 

Florida Department of Agriculture and 

Consumer Services (FDACS) and FDEP, 

analyzed 3,949 shallow drinking water 

wells for nitrate.70 71 Nitrate was 

detected in 2,483 (63%) wells, with 584 

wells (15%) above the MCL of 10 mg/ 

L. Of the 584 wells that exceeded the 

MCL, 519 were located in Lake, Polk, 


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72T.A. Obreza and K.T. Morgan. 2008. Nutrition 

of Florida Citrus Trees. 2nd ed. SL 253. University 

of Florida, IFAS Extension. http://edis.ifas.ufl.edu/ 

pdffiles/SS/SS47800.pdf. Accessed September 

2010. 

73USGS. 2009, November. Overview of 

Agricultural Chemicals: Pesticides and Nitrate. 

http://fl.water.usgs.gov/Lake_Wales_Ridge/html/

overview_of_agrichemicals.html. Accessed 

September 2010. 

74FDEP. 1998. Ground Water Quality and 

Agricultural Land Use in the Polk County Very 

Intense Study Area (VISA). Florida Department of 

Environmental Protection, Division of Water 

Facilities. http://www.dep.state.fl.us/water/ 

monitoring/docs/facts/fs9802.pdf. Accessed 

September 2010. 

75USGS. 2010. Hydrogeology and Groundwater 

Quality of Highlands County, FL. Scientific 

Investigations Report 2010–5097. U.S. Geological 

Survey, Reston, VA. 

76Berndt, M.P., 1996. Ground-water quality 

assessment of the Georgia-Florida Coastal Plain 

study unit—Analysis of available information on 

nutrients, 1972–92. Water-Resources Investigations 

Report 95–4039. U.S. Geological Survey, 

Tallahassee, FL. 

77Berndt, Marian P., 1993. National WaterQuality Assessment Program-Preliminary 

assessment of nitrate distribution in ground water 

in the Georgia-Florida Coastal Plain Study Unit, 

1972–90. Open-File Report 93–478. U.S. Geological 

Survey. 

78National Research Council, Committee on 

Reducing Stormwater Discharge Contributions to 

Water Pollution. 2008. Urban Stormwater 

Management in the United States. National 

Academies Press, Washington, DC. 

79U.S. Census Bureau. 2009. 2008 Population 

Estimates Ranked by State. http:// 

factfinder.census.gov. Accessed January 2010. 

80U.S. Census Bureau. 2009. 2008 Population 

Estimates Ranked by State. http:// 

factfinder.census.gov. Accessed January 2010. 

81The criteria finalized in this rulemaking do not 

address or translate Florida’s narrative nutrient 

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

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

place as an applicable WQS for CWA purposes. 

82USEPA. 2000a. Nutrient Criteria Technical 

Guidance Manual: Lakes and Reservoirs. EPA–822– 

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

Office of Water, Washington, DC. 

83USEPA. 2000b. Nutrient Criteria Technical 

Guidance Manual: Rivers and Streams. EPA–822– 

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

Office of Water, Washington, DC. 

84USEPA. 2001. Nutrient Criteria Technical 

Manual: Estuarine and Coastal Marine Waters. 

and Highland counties located in 

Central Florida. Results of monitoring 

conducted between 1999 and 2003 in a 

network of wells in that area indicated 

that of the 31 monitoring wells, 90% 

exceeded the nitrate drinking-water 

standard of 10 mg/L one or more 

times.72 73 FDEP monitored this same 

area (the VISA monitoring network) in 

1990, 1993, and 1996, analyzing 

samples from 15–17 wells each cycle 

and reported median concentrations 

ranging from 17 to 20 mg/L nitrate, 

depending on the year.74 Some areas of 

Florida tend to be more susceptible to 

groundwater impacts from nitrogen 

pollution, especially those that have 

sandy soils, have high hydraulic 

conductivity, and have overlying land 

uses that are subject to applications of 

fertilizers and animal or human 

wastes.75 For example, USGS reports 

that in Highland county, highly 

developed suburban and agricultural 

areas tend to have levels of nitrates in 

the surficial groundwater that approach 

and can exceed the State primary 

drinking water standard of 10 mg/L for 

public water systems. Other areas in 

Highland county that are less developed 

tend to have much lower levels of 

nitrates in the surficial groundwater, 

often below detection levels. 

The Floridian aquifer system is one of 

the largest sources of ground water in 

the U.S., and serves as a primary source 

of drinking water in Northern Florida. 

The Upper Floridian aquifer is 

unconfined or semiconfined in areas in 

Northern Florida, but is also confined 

by the overlying surficial aquifer system 

which is used for water supply. Wells 

in unconfined areas of the Upper 

Floridian aquifer tested in northern 

Florida had nitrate levels higher than 1 

mg/L in 40% of wells; 17% of samples 

from the semiconfined area had nitrate 

levels above 1 mg/L. In both aquifer 

systems this indicates the widespread 

impact of nitrate on groundwater quality 

in this area.76 77 This baseline sampling 

indicates a pattern of widespread nitrate 

occurrence in the Upper Floridian 

aquifer from two decades ago. A portion 

of these early samples exceeded 10 mg/ 

L nitrate (25 of the 726 samples taken 

from this unconfined or semi-confined 

aquifer; 50 of the 421 water samples 

from the surficial aquifer). 

Growing population trends in Florida 

contribute to the significant challenge of 

addressing nitrogen/phosphorus 

pollution in Florida. Historically, the 

State has experienced a rapidly 

expanding population. Significantly 

growing demographics are considered to 

be a strong predictor of nitrogen/ 

phosphorus loading and associated 

effects because of increases in 

stormwater runoff from increased 

impervious surfaces and increased 

wastewater treatment flows both of 

which typically contain some level of 

nitrogen/phosphorus.78 Florida is 

currently the fourth most populous 

State in the nation, with an estimated 18 

million people.79 The U.S. Census 

bureau predicts the Florida population 

will exceed 28 million people by 2030, 

making Florida the third most populous 

State in the U.S.80

B. Statutory and Regulatory Background 

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

1313(c)) directs States to adopt WQS for 

their navigable waters. Section 

303(c)(2)(A) and EPA’s implementing 

regulations at 40 CFR part 131 require, 

among other things, that State WQS 

include the designated use or uses to be 

made of the waters and criteria that 

protect those uses. EPA regulations at 40 

CFR 131.11(a)(1) provide that States 

shall ‘‘adopt those water quality criteria 

that protect the designated use’’ and that 

such criteria ‘‘must be based on sound 

scientific rationale and must contain 

sufficient parameters or constituents to 

protect the designated use.’’ As noted 

above, 40 CFR 130.10(b) provides that 

‘‘[i]n designating uses of a waterbody 

and the appropriate criteria for those 

uses, the State shall take into 

consideration the water quality 

standards of downstream waters and 

ensure that its water quality standards 

provide for the attainment and 

maintenance of the water quality 

standards of downstream waters.’’ 

States are also required to review their 

WQS at least once every three years and, 

if appropriate, revise or adopt new 

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

Any new or revised WQS must be 

submitted to EPA for review and 

approval or disapproval. (See CWA 

section 303(c)(2)(A)). Finally, CWA 

section 303(c)(4)(B) authorizes the 

Administrator to determine, even in the 

absence of a State submission, that a 

new or revised standard is needed to 

meet CWA requirements. The criteria 

finalized in this rulemaking translate 

Florida’s narrative nutrient provision at 

Subsection 62–302–530(47)(b), F.A.C., 

into numeric values that apply to lakes 

and springs throughout Florida and 

flowing waters outside of the South 

Florida Region.81

C. Water Quality Criteria 

Under CWA section 304(a), EPA 

periodically publishes criteria 

recommendations (guidance) for use by 

States in setting water quality criteria 

for particular parameters to protect 

recreational and aquatic life uses of 

waters. Where EPA has published 

recommended criteria, States have the 

option of adopting water quality criteria 

based on EPA’s CWA section 304(a) 

criteria guidance, section 304(a) criteria 

guidance modified to reflect sitespecific conditions, or other 

scientifically defensible methods. (See 

40 CFR 131.11(b)(1)). For nitrogen/ 

phosphorus pollution, EPA has 

published under CWA section 304(a) a 

series of peer-reviewed, national 

technical approaches and methods 

regarding the development of numeric 

criteria for lakes and reservoirs,82 rivers 

and streams,83 and estuaries and coastal 

marine waters.84


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

Agency, Office of Water, Washington, DC. 85USEPA. 2000a. Nutrient Criteria Technical 

Guidance Manual: Lakes and Reservoirs. EPA–822– 

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

Office of Water, Washington, DC. 

USEPA. 2000b. Nutrient Criteria Technical 

Guidance Manual: Rivers and Streams. EPA–822– 

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

Office of Water, Washington, DC. 

USEPA. 2001. Nutrient Criteria Technical 

Guidance Manual: Estuarine and Coastal Marine 

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

Protection Agency, Office of Water, Washington, 

DC. 

USEPA. 2008. Nutrient Criteria Technical 

Guidance Manual: Wetlands. EPA–822–B–08–001. 

U.S. Environmental Protection Agency, Office of 

Water, Washington, DC. 

86USEPA. 2000a. Nutrient Criteria Technical 

Guidance Manual: Lakes and Reservoirs. EPA–822– 

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

Office of Water, Washington, DC. 

87USEPA. 2010. Using Stressor-Response 

Relationships to Derive Numeric Nutrient Criteria. 

EPA–820–S–10–001. U.S. Environmental Protection 

Agency, Office of Water, Washington, DC. 

EPA based the methodologies used to 

develop numeric criteria for Florida in 

this regulation on its published 

guidance on developing criteria that 

identifies three general approaches for 

criteria setting. The three types of 

empirical analyses provide distinctly 

different, independently and 

scientifically defensible, approaches for 

deriving nutrient criteria from field 

data: (1) Reference condition approach 

derives candidate criteria from 

observations collected in reference 

waterbodies, (2) mechanistic modeling 

approach represents ecological systems 

using equations that represent 

ecological processes and parameters for 

these equations that can be calibrated 

empirically from site-specific data, and 

(3) empirical nutrient stressor-response 

modeling is used when data are 

available to accurately estimate a 

relationship between nutrient 

concentrations and a response measure 

that is directly or indirectly related to a 

designated use of the waterbody (e.g., a 

biological index or recreational use 

measure). Then, nutrient concentrations 

that are protective of designated uses 

can be derived from the estimated 

relationship).85 Each of these three 

analytical approaches is appropriate for 

deriving scientifically defensible 

numeric nutrient criteria when applied 

with consideration of method-specific 

data needs and available data. In 

addition to these empirical approaches, 

consideration of established (e.g., 

published) nutrient response thresholds 

is also an acceptable approach for 

deriving criteria.86

For lakes, EPA used a stressorresponse approach to link nitrogen/ 

phosphorus concentrations to 

predictions of corresponding 

chlorophyll a concentrations. EPA used 

a reference-based approach for streams, 

relying on a comprehensive screening 

methodology to identify least-disturbed 

streams as reference streams. For 

springs, EPA used algal or nitrogen/ 

phosphorus thresholds developed under 

laboratory conditions and stressorresponse relationships from several field 

studies of algal growth in springs. For 

each type of waterbody, EPA carefully 

considered the available data and 

evaluated several lines of evidence to 

derive scientifically sound approaches 

(as noted above) for developing the final 

numeric criteria. 

Based on comments received from the 

Scientific Advisory Board (SAB), EPA 

has modified a draft methodology 

guidance document on using stressorresponse relationships for deriving 

numeric criteria, which is available as a 

final technical guidance document.87 In 

addition, the reference-based and algal 

or nitrogen/phosphorus threshold 

approaches have been peer reviewed 

and have been available for many years. 

As mentioned above, the criteria 

finalized in this rulemaking translate 

Florida’s narrative nutrient provision at 

Subsection 62–302.530(47)(b), F.A.C., 

(‘‘[i]n no case shall nutrient 

concentrations of a body of water be 

altered so as to cause an imbalance in 

natural populations of aquatic flora or 

fauna’’) into numeric values that apply 

to lakes and springs throughout the 

State and flowing waters outside of the 

South Florida Region. EPA believes that 

numeric criteria will expedite and 

facilitate the effective implementation of 

Florida’s existing point and non-point 

source water quality programs in terms 

of timely water quality assessments, 

TMDL development, NPDES permit 

issuance and, where needed, Basin 

Management Action Plans (BMAPs) to 

address nitrogen/phosphorus pollution. 

EPA notes that Subsection 62– 

302.530(47)(a), F.A.C. (‘‘[t]he discharge 

of nutrients shall continue to be limited 

as needed to prevent violations of other 

standards contained in this chapter. 

Man-induced nutrient enrichment (total 

nitrogen or total phosphorus) shall be 

considered degradation in relation to 

the provisions of Sections 62–302.300, 

62–302.700, and 62–4.242, F.A.C.’’) 

could result in more stringent nitrogen/ 

phosphorus limits, where necessary to 

protect other applicable WQS in 

Florida. 

D. EPA Determination Regarding 

Florida and EPA’s Rulemaking 

On January 14, 2009, EPA determined 

under CWA section 303(c)(4)(B) that 

new or revised WQS in the form of 

numeric water quality criteria for 

nitrogen/phosphorus pollution are 

necessary to meet the requirements of 

the CWA in the State of Florida. As 

noted above, the portion of Florida’s 

currently applicable narrative criterion 

translated by this final rule provides, in 

part, that ‘‘in no case shall nutrient 

concentrations of a body of water be 

altered so as to cause an imbalance in 

natural populations of aquatic flora or 

fauna.’’ (See Subsection 62– 

302.530(47)(b), F.A.C.). EPA determined 

that Florida’s narrative criterion alone 

was insufficient to ensure protection of 

applicable designated uses. The 

determination recognized that Florida 

has a comprehensive regulatory and 

non-regulatory administrative water 

quality program to address nitrogen/ 

phosphorus pollution through a water 

quality strategy of assessments, nonattainment listing and determinations, 

TMDL development, and National 

Pollutant Discharge Elimination System 

(NPDES) permit regulations; individual 

watershed management plans through 

the State’s BMAPs; advanced 

wastewater treatment technology-based 

requirements under the 1990 GrizzleFigg Act; together with rules to limit 

nitrogen/phosphorus pollution in 

geographically specific areas like the 

Indian River Lagoon System, the 

Everglades Protection Area, and Wekiva 

Springs. However, the determination 

noted that despite Florida’s existing 

regulatory and non-regulatory water 

quality framework and the State’s 

intensive efforts to diagnose nitrogen/ 

phosphorus pollution and address it on 

a time-consuming and resourceintensive case-by-case basis, substantial 

water quality degradation from 

nitrogen/phosphorus over-enrichment 

remains a significant challenge in the 

State and conditions are likely to 

worsen with continued population 

growth and land-use changes. 

Overall, the combined impacts of 

urban and agricultural activities, along 

with Florida’s physical features and 

important and unique aquatic 

ecosystems, made it clear that the 

current reliance on the narrative 

criterion alone and a resource-intensive, 

site-specific implementation approach, 

and the resulting delays that it entails, 

do not ensure protection of applicable 

designated uses for the many State 

waters that either have been listed as 

impaired and require loadings 

reductions or those that are high quality 

and require protection from future 

degradation. EPA concluded that 

numeric criteria for nitrogen/ 

phosphorus pollution will enable the 

State to take necessary action to protect 


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75772 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

the designated uses in a timely manner 

that will ensure protection of the 

designated use. The resource-intensive 

efforts to interpret the State’s narrative 

criterion contribute to substantial delays 

in implementing the criterion and, 

therefore, undercut the State’s ability to 

provide the needed protections for 

applicable designated uses. EPA, 

therefore, determined that numeric 

criteria for nitrogen/phosphorus 

pollution are necessary for the State of 

Florida to meet the CWA requirement to 

have criteria that protect applicable 

designated uses. EPA determined that 

numeric water quality criteria would 

strengthen the foundation for 

identifying impaired waters, 

establishing TMDLs, and deriving water 

quality-based effluent limits in NPDES 

permits, thus providing the necessary 

protection for the State’s designated 

uses in its waters. In addition, numeric 

criteria will support the State’s ability to 

effectively partner with point and 

nonpoint sources to control nitrogen/ 

phosphorus pollution, thus further 

providing the necessary protection for 

the designated uses of the State’s water 

bodies. EPA’s determination is available 

at the following Web site: http:// 

www.epa.gov/waterscience/standards/ 

rules/fl-determination.htm. 

While Florida continues to work to 

implement its watershed management 

program, the impairments for nutrient 

pollution are increasing as evidenced by 

the 2008 and 2010 Integrated Water 

Quality Assessment for Florida report 

results, and the tools to correct the 

impairments (TMDLs and BMAPs) are 

not being completed at a pace to keep 

up. Numeric criteria can be used as a 

definitive monitoring tool to identify 

impaired waters and as an endpoint for 

TMDLs to establish allowable loads 

necessary to correct impairments. When 

developing TMDLs, as it does when 

determining reasonable potential and 

deriving limits in the permitting 

context, Florida translates the narrative 

criterion into a numeric target that the 

State determines is necessary to meet its 

narrative criterion and protect 

applicable designated uses. This process 

involves a site-specific analysis to 

determine the nitrogen and phosphorus 

concentrations that would ‘‘cause an 

imbalance in natural populations of 

aquatic flora or fauna’’ in a particular 

water. 

When deriving NPDES water qualitybased permit limits, Florida initially 

conducts a site-specific analysis to 

determine whether a proposed 

discharge has the reasonable potential to 

cause or contribute to an exceedance of 

its narrative water quality criterion. The 

absence of numeric criteria make this 

‘‘reasonable potential’’ analysis more 

complex, data-intensive, and protracted. 

Following a reasonable potential 

analysis, the State then evaluates what 

levels of nitrogen and phosphorus 

would ‘‘cause an imbalance in natural 

populations of aquatic flora or fauna’’ 

and translates those levels into numeric 

‘‘targets’’ for the receiving water and any 

other affected waters. Determining on a 

State-wide, water-by-water basis the 

levels of nitrogen and phosphorus that 

would ‘‘cause an imbalance in natural 

populations of aquatic flora or fauna’’ is 

a difficult, lengthy, and data-intensive 

undertaking. This work involves 

performing detailed location-specific 

analyses of the receiving water. If the 

State has not already completed this 

analysis for a particular waterbody, it 

can be very difficult to accurately 

determine in the context and timeframe 

of the NPDES permitting process. For 

example, in some cases, site-specific 

data may take several years to collect 

and, therefore, may not be available for 

a particular waterbody at the time of 

permitting issuance or re-issuance. 

The January 14, 2009 determination 

stated EPA’s intent to propose numeric 

criteria for lakes and flowing waters in 

Florida within 12 months of the January 

14, 2009 determination, and for 

estuarine and coastal waters within 24 

months of the determination. On August 

19, 2009, EPA entered into a Consent 

Decree with Florida Wildlife Federation, 

Sierra Club, Conservancy of Southwest 

Florida, Environmental Confederation of 

Southwest Florida, and St. Johns 

Riverkeeper, committing to the schedule 

stated in EPA’s January 14, 2009 

determination to propose numeric 

criteria for lakes and flowing waters in 

Florida by January 14, 2010, and for 

Florida’s estuarine and coastal waters by 

January 14, 2011. The Consent Decree 

also required that final rules be issued 

by October 15, 2010 for lakes and 

flowing waters, and by October 15, 2011 

for estuarine and coastal waters. FDEP, 

independently from EPA, initiated its 

own State rulemaking process in the 

spring/summer of 2009 to adopt 

nutrient water quality standards 

protective of Florida’s lakes and flowing 

waters. FDEP held several public 

workshops on its draft numeric criteria 

for lakes and flowing waters. In October 

2009, however, FDEP decided not to 

bring the draft criteria before the Florida 

Environmental Regulation Commission, 

as had been previously scheduled. 

Pursuant to the Consent Decree, EPA’s 

Administrator signed the proposed 

numeric criteria for Florida’s lakes and 

flowing waters on January 14, 2010, 

which was published in the Federal 

Register on January 26, 2010. EPA 

conducted a 90-day public comment 

period for this rule that closed on April 

28, 2010. During this period, EPA also 

conducted 13 public hearing sessions in 

6 cities in Florida. EPA received over 

22,000 public comments from a variety 

of sources, including environmental 

groups, municipal wastewater 

associations, industry, State agencies, 

local governments, agricultural groups, 

and private citizens. The comments 

addressed a wide range of issues, 

including technical analyses, policy 

issues, economic costs, and 

implementation concerns. In this notice, 

EPA explains the inland waters final 

rule and provides a summary of major 

comments and the Agency’s response in 

the sections that describe each of the 

provisions of the final rule. EPA has 

prepared a detailed ‘‘Comment Response 

Document,’’ which includes responses 

to the comments contributed during the 

public hearing sessions, as well as those 

submitted in writing on the proposed 

rule, and is located in the docket for this 

rule. 

On June 7, 2010, EPA and Plaintiffs 

filed a joint notice with the Court 

extending the deadlines for 

promulgating numeric criteria for 

Florida’s estuaries and coastal waters, 

flowing waters in south Florida 

(including canals), and the downstream 

protection values for flowing waters into 

estuaries and coastal waters. The new 

deadlines are November 14, 2011 for 

proposing this second phase of criteria, 

and August 15, 2012 for publishing a 

final rule for these three categories. This 

will allow EPA time to hold a public 

peer review by EPA’s Scientific 

Advisory Board (SAB) of the scientific 

methodologies for estuarine and coastal 

criteria, flowing waters in south Florida, 

and downstream protection values for 

estuaries and coastal waters. 

Based upon comments and new data 

and information received during the 

public comment phase of the January 

2010 proposed rule, on August 3, 2010 

EPA published a supplemental notice of 

data availability and request for 

comment related to the Agency’s 

January 26, 2010 notice of proposed 

rulemaking. In its supplemental notice, 

EPA solicited comment on a revised 

regionalization approach for streams, 

additional information and analysis on 

least-disturbed sites as part of a 

modified benchmark distribution 

approach, and additional options for 

developing downstream protection 

values (DPVs) for lakes. EPA did not 

solicit additional comment on any other 

provisions of the January 2010 proposal. 

EPA received 71 public comments from 

a variety of sources, including local and 

State governments, industry, and 


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88For purposes of this rule, EPA has 

distinguished South Florida as those areas south of 

Lake Okeechobee and the Caloosahatchee River 

watershed to the west of Lake Okeechobee and the 

St. Lucie watershed to the east of Lake Okeechobee, 

hereinafter referred to as the South Florida Region. 

Numeric criteria applicable to flowing waters in the 

South Florida Region will be addressed in the 

second phase of EPA’s rulemaking regarding the 

establishment of estuarine and coastal numeric 

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

of the water bodies affected by this rule). 

89 In no case shall nutrient concentrations of a 

body of water be altered so as to cause an imbalance 

in natural populations of aquatic flora or fauna. 

90FDEP. 2009. Draft Technical Support 

Document: Development of Numeric Nutrient 

Criteria for Florida’s Lakes and Streams. Florida 

Department of Environmental Protection, Standards 

and Assessment Section. Available electronically at: 

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

docs/tsd_nutrient_crit.docx. Accessed October 

2010. 

environmental groups. As mentioned 

above, EPA provides a summary of 

major comments and the Agency’s 

response in the sections that describe 

each of the provisions of the final rule. 

Responses to comments submitted 

during the public comment period 

associated with the supplemental notice 

are also included in EPA’s detailed 

‘‘Comment Response Document,’’ 

located in the docket for this rule. 

On October 8, 2010, EPA filed an 

unopposed motion with the Court 

requesting that the deadline for signing 

the final rule be extended to November 

14, 2010. The Court granted EPA’s 

motion on October 27, 2010. EPA used 

this additional time to review and 

confirm that all comments were fully 

considered. 

In accordance with the January 14, 

2009 determination, the August 19, 

2009 Consent Decree, and the June 7, 

2010 and October 27, 2010 revisions to 

that Consent Decree, in this final notice 

EPA is promulgating final numeric 

criteria for streams, lakes, and springs in 

the State of Florida.88

III. Numeric Criteria for Streams, 

Lakes, and Springs in the State of 

Florida 

A. General Information 

For this final rule, EPA derived 

numeric criteria for streams, lakes and 

springs to implement Florida 

Subsection 62–302.530(47)(b), F.A.C.89

This final rule also includes 

downstream protection values (DPVs) to 

ensure the attainment and maintenance 

of the WQS for downstream lakes. 

Derivation of these criteria is based 

upon an extensive amount of Floridaspecific data. EPA has carefully 

considered numerous comments from a 

range of stakeholders and has worked in 

close collaboration with FDEP technical 

and scientific experts to analyze, 

evaluate, and interpret these Floridaspecific data in deriving scientifically 

sound numeric criteria for this final 

rulemaking. 

To support derivation of the final 

streams criteria, EPA screened and 

evaluated water chemistry data from 

more than 11,000 samples from over 

6,000 sites statewide. EPA also 

evaluated biological data consisting of 

more than 2,000 samples from over 

1,100 streams. To support derivation of 

the final lakes criteria, EPA screened 

and evaluated relevant lake data, which 

consisted of over 17,000 samples from 

more than 1,500 lakes statewide. 

Finally, for the final springs criterion, 

EPA evaluated and relied on scientific 

information and analyses from more 

than 40 studies including historical 

accounts, laboratory scale dosing 

studies and field surveys. 

In deriving these final numeric 

values, the EPA met and consulted with 

FDEP expert scientific and technical 

staff on numerous occasions as part of 

an ongoing collaborative process. EPA 

carefully considered and evaluated the 

technical approaches and scientific 

analysis that FDEP presented as part of 

its July 2009 draft numeric criteria,90 as 

well as its numerous comments on 

different aspects of this rule. The 

Agency also received and carefully 

considered substantial stakeholder 

input from 13 public hearings in 6 

Florida cities. Finally, EPA reviewed 

and evaluated further analysis and 

information included in more than 

22,000 comments on the January 2010 

proposal and an additional 71 

comments on the August 2010 

supplemental notice. 

EPA has created a technical support 

document that provides detailed 

information regarding the 

methodologies discussed herein and the 

derivation of the final criteria. This 

document is entitled ‘‘Technical 

Support Document for EPA’s Final Rule 

for Numeric Criteria for Nitrogen/ 

Phosphorus Pollution in Florida’s 

Inland Surface Fresh Waters’’ (‘‘EPA 

Final Rule TSD for Florida’s Inland 

Waters’’ or ‘‘TSD’’) and is part of the 

record and supporting documentation 

for this final rule. As part of its review 

of additional technical and scientific 

information, EPA has documented its 

consideration of key comments and 

issues received from a wide range of 

interested parties during the rulemaking 

process. This analysis and consideration 

is included as part of a comment 

response document entitled ‘‘Response 

to Comments—EPA’s Numeric Criteria 

for Nitrogen/Phosphorus Pollution in 

the State of Florida’s Lakes and Flowing 

Waters’’ that is also part of the record 

and supporting documentation for this 

final rule. 

This section of the preamble describes 

EPA’s final numeric criteria for Florida’s 

streams (III.B), lakes (III.C), and springs 

(III.D), with the associated 

methodologies EPA employed to derive 

them. Each subsection includes the final 

numeric criteria (magnitude, duration, 

and frequency) and background 

information and supporting analyses. 

Section III.E discusses the applicability 

and implementation of these final 

criteria. 

As discussed, the scientific basis for 

the derivation of the applicable criteria 

for streams, lakes and springs in this 

final rule is outlined below and 

explained in more detail in the 

Technical Support Document 

accompanying this rulemaking. The 

final criteria and related provisions in 

this rule reflect a detailed consideration 

and full utilization of the best available 

science, data, literature, and analysis 

related to the specific circumstances 

and contexts for deriving numeric 

criteria in the State of Florida. This 

includes, but is not limited to, the 

substantial quantity and quality of 

available data in Florida, Florida’s 

regional hydrologic, biological, and land 

use characteristics, and the biological 

responses in Florida’s surface water 

systems. 

B. Numeric Criteria for the State of 

Florida’s Streams 

(1) Final Rule 

EPA is promulgating numeric criteria 

for TN and TP in five geographically 

distinct watershed regions of Florida’s 

streams classified as Class I or III waters 

under Florida law (Section 62–302.400, 

F.A.C.). 

TABLE B–1—EPA’S NUMERIC

CRITERIA FOR FLORIDA STREAMS

Nutrient watershed 

region 

Instream protection 

value criteria 

TN 

(mg/L) * 

TP 

(mg/L) * 

Panhandle West a ..... 0.67 0.06 

Panhandle East b ...... 1.03 0.18 

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

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

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

Watersheds pertaining to each Nutrient Watershed Region (NWR) were based principally 

on the NOAA coastal, estuarine, and fluvial 

drainage areas with modifications to the 

NOAA drainage areas in the West Central and 

Peninsula Regions that account for unique watershed geologies. For more detailed information on regionalization and which WBIDs pertain to each NWR, see the Technical Support 

Document. 


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75774 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

91U.S. EPA. 2008. Handbook for Developing 

Watershed Plans to Restore and Protect Our Waters. 

EPA 841–B–08–002. U.S. Environmental Protection 

Agency, Office of Water, Washington, DC. 

aPanhandle West region includes: Perdido 

Bay Watershed, Pensacola Bay Watershed, 

Choctawhatchee Bay Watershed, St. Andrew 

Bay Watershed, Apalachicola Bay Watershed. bPanhandle East region includes: 

Apalachee Bay Watershed, and Econfina/ 

Steinhatchee Coastal Drainage Area. c North Central region includes the Suwannee River Watershed. dWest Central region includes: Peace, 

Myakka, Hillsborough, Alafia, Manatee, Little 

Manatee River Watersheds, and small, direct 

Tampa Bay tributary watersheds south of the 

Hillsborough River Watershed. ePeninsula region includes: Waccasassa 

Coastal Drainage Area, Withlacoochee Coastal Drainage Area, Crystal/Pithlachascotee 

Coastal Drainage Area, small, direct Tampa 

Bay tributary watersheds west of the 

Hillsborough River Watershed, Sarasota Bay 

Watershed, small, direct Charlotte Harbor tributary watersheds south of the Peace River 

Watershed, Caloosahatchee River Watershed, 

Estero Bay Watershed, Kissimmee River/Lake 

Okeechobee Drainage Area, Loxahatchee/St. 

Lucie Watershed, Indian River Watershed, 

Daytona/St. Augustine Coastal Drainage Area, 

St. John’s River Watershed, Nassau Coastal 

Drainage Area, and St. Mary’s River Watershed. 

* For a given waterbody, the annual geometric mean of TN or TP concentrations shall 

not exceed the applicable criterion concentration more than once in a three-year period. 

(2) Background and Analysis 

(a) Methodology for Stream 

Classification 

In January 2010, EPA proposed to 

classify Florida’s streams into four 

regions (referred to in the proposed rule 

as ‘‘Nutrient Watershed Regions’’) for 

application of TN and TP criteria. This 

proposal was based upon the premise 

that streams within each of these 

regions (Panhandle, Bone Valley, 

Peninsula and North Central) reflect 

similar geographical characteristics, 

including phosphorus-rich soils, 

nitrogen/phosphorus concentrations 

and nitrogen to phosphorus ratios. To 

classify these four regions, EPA began 

by considering the watershed 

boundaries of downstream estuaries and 

coastal waters in recognition of the 

hydrology of Florida’s flowing waters 

and the importance of protecting 

downstream water quality. This is 

consistent with a watershed approach to 

water quality management, which EPA 

encourages to integrate and coordinate 

efforts within a watershed in order to 

most effectively and efficiently protect 

our nation’s water resources.91 EPA then 

classified Florida’s streams based upon 

a consideration of the natural factors 

that contribute to variability in nutrient 

concentrations in streams (e.g., geology, 

soil composition). In the State of 

Florida, these natural factors are mainly 

associated with phosphorus. EPA’s 

proposal reflected a conclusion that 

these natural factors could best be 

represented by separating the 

watersheds in the State into four regions 

and then using the least-disturbed sites 

within those regions to differentiate 

between the expected natural 

concentrations of TN and TP. 

EPA received comments suggesting 

that the proposed stream regionalization 

be amended to more accurately account 

for naturally-high phosphorus soils in 

the northern Panhandle, west of the 

proposed North Central region. 

Specifically, EPA was asked to consider 

the westward extent of the Hawthorn 

Group, a phosphorus-rich geological 

formation that can influence stream 

phosphorus concentrations. At 

proposal, EPA had taken the Hawthorn 

Group into account when it proposed 

two distinct stream regions to the east 

and south of the panhandle region: the 

North Central and the West Central 

(formerly called the Bone Valley at 

proposal). Following proposal and in 

response to these comments, EPA 

revisited its review of underlying soils 

and geology in the Panhandle, itself, 

and the relationship of those geological 

characteristics to observed patterns in 

phosphorus concentrations in streams. 

EPA further considered how well such 

a revised regionalization explained 

observed variability in TP 

concentrations relative to the proposed 

regionalization. EPA concluded that a 

revised regional classification 

subdividing the proposed Panhandle 

region into a western and eastern 

section accurately reflected phosphate 

contributions from the underlying 

geologic formations that are reflected in 

the expected instream phosphorus 

concentrations. As discussed in the 

August 2010 supplemental notice, EPA 

has used the revised Panhandle regions 

for TN criteria to assure consistency and 

clarity in applicability decisions and 

implementation. This approach 

addresses the concerns of commenters 

that regionalization is an important 

consideration in developing stream 

criteria. EPA provided a supplemental 

notice and solicitation of comment in 

August 2010 on this potential change to 

the Panhandle region. In this final rule, 

EPA has thus taken into account the 

portion of the Hawthorn Group that lies 

in the eastern portion of the Panhandle 

region and has delineated the 

Panhandle region along watershed 

boundaries into East and West portions 

divided by the eastern edge of the 

Apalachicola River watershed (or 

alternatively, the western edge of the 

Suwannee River watershed). For more 

information regarding the EPA’s 

consideration of alternative approaches 

for classification, please see the TSD 

and response to comments. 

EPA also received comment that the 

original West Central region (referred to 

as the Bone Valley in the proposed rule) 

was too broad and incorporated 

watersheds that were not influenced by 

underlying Hawthorn Group geology, 

especially small, direct coastal drainage 

watersheds along the western and 

southern boundaries. EPA reexamined 

the watershed delineations of the West 

Central and Peninsula regions based on 

information in these comments and 

concluded that the comments were 

technically correct. EPA also provided a 

supplemental notice and solicitation of 

comment on this potential change to the 

West Central and Peninsula regions. In 

this final rule, EPA has refined the 

boundary delineations accordingly. The 

result for the West Central region was a 

modified boundary that shifts small, 

direct Tampa Bay tributary watersheds 

west of the Hillsborough River 

Watershed; small, direct Charlotte 

Harbor tributary watersheds south of the 

Peace River Watershed; and the entire 

Sarasota Bay Watershed from the West 

Central (Bone Valley) to the Peninsula 

region. EPA believes these adjustments 

to the West Central and Peninsula 

stream region boundaries more 

accurately reflect the watershed 

boundaries and better reflect natural 

differences in underlying geological 

formations and expected stream 

chemistry. 

In summary, EPA is finalizing 

numeric stream criteria for TN and TP 

for five separate Nutrient Watershed 

Regions (NWR): Panhandle West, 

Panhandle East, North Central, West 

Central and Peninsula (north of Lake 

Okeechobee, including the 

Caloosahatchee River Watershed to the 

west and the St. Lucie Watershed to the 

east). For a map of these regions, refer 

to ‘‘Technical Support Document for 

U.S. EPA’s Final Rule for Numeric 

Criteria for Nitrogen/Phosphorus 

Pollution in Florida’s Inland Surface 

Fresh Waters’’ (Chapter 1: Derivation of 

EPA’s Numeric Criteria for Streams) 

included in the docket as part of the 

record for this final rule. 

(b) Methodology for Calculating 

Instream Protective TN and TP Values 

In the January 2010 proposal, EPA 

used a reference condition approach to 

derive numeric criteria that relied on 

the identification of biologically healthy 

sites that were unimpaired by nitrogen 

or phosphorus. EPA identified these 

sites from FDEP’s streams data set, 

selecting sites where Stream Condition 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 75775 

92The SCI method was developed and calibrated 

by FDEP. See Fore et al. 2007. Development and 

Testing of Biomonitoring Tools for 

Macroinvertebrates in Florida Streams (Stream 

Condition Index and BioRecon). Final prepared for 

the Florida Department of Environmental 

Protection, Tallahassee, FL. 

93FL STORET can be found at: http:// 

www.dep.state.fl.us/WATER/STORET/INDEX.HTM. 

94Quality assurance review conducted by FDEP 

and detailed in EPA’s accompanying Technical 

Support Document. 

95Brown, M.T., and M.B. Vivas. 2005. Landscape 

Development Intensity Index. Environmental 

Monitoring and Assessment 101: 289–309. 

96Brown, M.T., and M.B. Vivas. 2005. Landscape 

Development Intensity Index. Environmental 

Monitoring and Assessment 101: 289–309. 

97See the springs criterion discussion below. 

Index (SCI) scores were 40 and higher. 

The SCI is a multi-metric index of 

benthic macroinvertebrate community 

composition and taxonomic data 

developed by FDEP to assess the 

biological health of Florida’s streams.92

An SCI score > 40 has been determined 

to be indicative of biologically healthy 

conditions based on an expert workshop 

and analyses performed by both FDEP 

and EPA. Please refer to the EPA’s 

January 2010 proposal and the final TSD 

accompanying this final rule for more 

information on the SCI and the selection 

of the SCI value of 40 as an appropriate 

threshold to identify biologically 

healthy sites. 

EPA further screened these sites by 

cross-referencing them with Florida’s 

2008 CWA section 303(d) list and 

excluded sites in waterbody 

identification numbers (WBIDs) with 

identified nutrient impairments or 

dissolved oxygen impairments. EPA 

grouped the remaining sites (hereinafter 

referred to as ‘‘SCI sites’’) according to 

the four proposed Nutrient Watershed 

Regions (Panhandle, North Central, 

West Central (referred to as Bone Valley 

at proposal), and Peninsula). For each 

NWR, EPA compiled data (TN and TP 

concentrations). EPA then calculated 

the average concentration at each site 

using all available samples. The 

resulting site average concentrations 

represent the distribution of nitrogen/ 

phosphorus concentrations for each 

region. EPA found that while these sites 

were determined to be biologically 

healthy, the proposed SCI approach 

does not include information that can be 

directly related to an evaluation of least 

anthropogenically-impacted conditions 

(e.g., a measure of land use surrounding 

a reference site), which can be used as 

a factor in identifying a minimallyimpacted reference population for 

criteria development. For these reasons, 

EPA concluded the 75th percentile of 

the distribution of site average values 

was an appropriate threshold to use in 

the SCI approach for criteria derivation. 

EPA requested comment on basing the 

TN and TP criteria for the Nutrient 

Watershed Regions on the SCI approach. 

The Agency also requested comment on 

an alternative approach that utilizes 

benchmark sites identified by FDEP. 

EPA received comments supporting the 

benchmark reference condition 

approach and the selection of the 90th 

percentile (generally) for deriving the 

TN and TP criteria. The criteria in this 

final rule are based on a further 

evaluation and more rigorous screening 

of the benchmark data set of reference 

sites using the population of leastdisturbed benchmark sites developed by 

FDEP and further refined by EPA as 

discussed in the August 2010 

supplemental notice. EPA concluded 

that the revised benchmark approach is 

an appropriate reference condition 

approach for deriving stream criteria 

because it utilizes a quantitative 

assessment of potential human 

disturbance through the use of 

surrounding land cover analysis of 

stream corridor and watershed land 

development indices that provide an 

added dimension to the benchmark 

approach not considered in EPA’s 

proposed SCI site approach. EPA is 

finalizing stream criteria for most NWRs 

based on the benchmark approach with 

the addition of supplemental data 

screening steps to ensure that an 

evaluation of benchmark sites utilizes 

best available information representing 

reference conditions related to leastdisturbed as well as and biologically 

healthy streams in the State. For this 

reason, EPA found the benchmark 

reference condition approach to be a 

compelling basis to support numeric 

criteria for Florida’s streams more 

closely associated with least-disturbed 

sites. For the West Central region only, 

EPA is finalizing stream criteria based 

on SCI sites because the benchmark 

approach resulted in the identification 

of only one WBID as being leastdisturbed. EPA found the SCI sites 

provide a more compelling basis to 

support numeric criteria in that region 

because more data are available at more 

sites that have been identified as 

biologically healthy, which provide a 

broader representation of nitrogen and 

phosphorus concentrations within this 

region. 

For this final rule, EPA is using the 

large amount of high-quality scientific 

data available on TN and TP 

concentrations with corresponding 

information on land use and human 

disturbance for a wide variety of stream 

types as part of a reference condition 

approach to derive numeric criteria for 

Florida’s streams. EPA used available 

data that are quantitative measures of 

land use, indicators of human 

disturbance, and site-specific 

evaluations of biological condition 

using a multi-metric biological index to 

identify a population of least-disturbed 

benchmark locations (benchmark sites). 

EPA used associated measurements of 

TN and TP concentrations from the 

benchmark sites and SCI sites (in the 

case of the West Central region) as the 

basis for deriving the final numeric 

criteria for streams. 

The reference condition approach 

used in this final rule for streams 

consist of three steps: (1) Defining the 

reference population, (2) calculating a 

distribution of values, and (3) 

determining appropriate thresholds. For 

the first step as discussed above, EPA 

used the least-disturbed benchmark 

reference condition approach initially 

developed by FDEP to define the 

reference condition population, this 

approach starts with a query of FDEP’s 

data in the STORET93 (STOrage and 

RETrieval) and GWIS (Generalized 

Water Information System) databases 

and identified sites with data that met 

quality assurance standards.94 Sites 

with data were then evaluated by FDEP 

to assess the level of human disturbance 

in the vicinity of the site using the 

Landscape Development Intensity Index 

(LDI) 95 to analyze a 100 meter distance 

of land on both sides of and 10 

kilometers upstream of each stream site 

(i.e., corridor LDI). Sites with stream 

corridor LDI scores less than or equal to 

two 96 were considered sites with 

relatively low potential human 

disturbance. The group of sites with LDI 

scores less than or equal to two were 

further reviewed and inspected by FDEP 

based on site visits and aerial 

photography to assess the degree of 

potential human impact. Based on this 

review, sites that FDEP determined had 

potential human impact were removed. 

Sites with mean nitrate concentrations 

greater than 0.35 mg/L, a concentration 

identified by several lines of evidence to 

result in the growth of excessive algae 

in laboratory studies and extensive field 

evaluations of spring and clear stream 

sites in Florida 97 were also removed. 

Following proposal and in response to 

additional comments and information, 

EPA further evaluated the benchmark 

sites and screened out additional sites 

with identified nutrient impairments or 

dissolved oxygen impairments 

according to Florida’s 2008 CWA 

section 303(d) list. EPA also removed 

sites that have available watershed LDI 

scores greater than three as this reflects 

a higher level of human disturbance on 


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98The threshold value for watershed LDI is higher 

than the threshold value for the corridor LDI 

because human disturbance in the watershed is 

known to more weakly influence in-stream 

nitrogen/phosphorus concentrations than human 

disturbance in the stream corridor (Peterjohn, W.T. 

and D. L. Correll. 1984. Nutrient dynamics in an 

agricultural watershed: Observations on the role of 

a riparian forest. Ecology 65: 1466–1475). 

99USEPA. 2008. Nutrient Criteria Technical 

Guidance Manual: Wetlands. EPA–822–B–08–001. 

U.S. Environmental Protection Agency, Office of 

Water, Washington, DC. 

100The 90th percentile is selected so that 

nitrogen/phosphorus concentrations that are above 

the criterion value have a low probability (< 10%) 

of being observed in sites that are similar to 

benchmark sites. 

101USEPA. 2000b. Nutrient Criteria Technical 

Guidance Manual: Rivers and Streams. EPA–822– 

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

Office of Water, Washington, DC. 

These percentages were initially proposed by 

FDEP. See FDEP. 2009. Draft Technical Support 

Document: Development of Numeric Nutrient 

Criteria for Florida’s Lakes and Streams. Florida 

Department of Environmental Protection, Standards 

and Assessment Section. Available electronically at: 

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

docs/tsd_nutrient_crit.docx. Accessed October 

2010. 

102EPA will propose and request comment on the 

comparable issue for deriving TN and TP values for 

streams to ensure the attainment and maintenance 

of WQS in downstream estuaries as part of the 

coastal and estuarine waters rule on November 14, 

2011. 

103USEPA. 1985. Guidelines for Deriving 

Numeric National Water Quality Criteria for the 

Protection of Aquatic Organisms and Their Uses. 

EPA PB85–227049. U.S. Environmental Protection 

Agency, Office of Research and Development, 

Environmental Research Laboratories. 

104Hutchens, J. J., K. Chung, and J. B. Wallace. 

1998. Temporal variability of stream 

macroinvertebrate abundance and biomass 

following pesticide disturbance. Journal of the 

North American Benthological Society 17:518–534. 

105Wallace, J.B. D. S.Vogel, and T.F. Cuffney. 

1986. Recovery of a headwater stream from an 

insecticide induced community disturbance. 

Journal of North American Benthological Society 5: 

115–l 26. 

a watershed basis.98 Finally, EPA 

removed benchmark sites that have 

available Stream Condition Index (SCI) 

scores less than 40. These additional 

screens provide greater confidence that 

the remaining sites are both leastdisturbed and biologically healthy. The 

benchmark approach resulted in the 

identification of only one WBID as leastdisturbed within the West Central 

region. For this reason, EPA is utilizing 

the SCI sites identified at proposal to 

define the reference population for the 

West Central region in this final rule. 

EPA grouped the remaining sites 

(hereinafter referred to as ‘‘reference 

sites’’) according to its Nutrient 

Watershed Regions (Panhandle West, 

Panhandle East, North Central, West 

Central, and Peninsula). For each NWR, 

EPA compiled data (TN and TP 

concentrations) from the reference sites. 

The second step in deriving instream 

protection values was to calculate the 

distribution of nitrogen/phosphorus 

values of benchmark sites within each 

region. EPA calculated the geometric 

mean of the annual geometric mean of 

nitrogen/phosphorus concentrations for 

each WBID within which reference sites 

occurred. EPA provided notice and 

solicited comment on calculating 

streams criteria on the basis of WBIDs 

in the August 2010 supplemental notice. 

All samples from reference sites within 

those WBIDs were used to calculate the 

annual geometric mean. The geometric 

mean of this annual geometric mean for 

each WBID is utilized so that each 

WBID represents one average 

concentration in the distribution of 

concentrations for each NWR. 

Geometric means were used for all 

averages because concentrations were 

log-normally distributed. 

The third step in deriving instream 

protection values was to determine 

appropriate thresholds from these 

distributions to support balanced 

natural populations of aquatic flora and 

fauna. The upper end of the distribution 

(the 90th percentile) is appropriate if 

there is confidence that the distribution 

reflects minimally-impacted reference 

conditions and can be shown to be 

supportive of designated uses (i.e., 

balanced natural populations of aquatic 

flora and fauna).99 EPA concluded that 

the benchmark data set and the resulting 

benchmark distributions of TN and TP 

were based on substantial evidence of 

least-disturbed reference conditions 

after the additional quality assurance 

screens applied by EPA. This analysis 

provides EPA with the confidence that 

the benchmark sites are least-disturbed 

sites and with the additional screens 

applied by the Agency provide a basis 

for the use of the 90th percentile of 

values from this population to establish 

the final rule criteria. It is appropriate 

to use the 90th percentile for the 

benchmark distribution because the 

least-disturbed sites identified in 

Florida that are used to derive the 

criteria more closely approximate 

minimally-impacted conditions.100 For 

the West Central region, where reference 

sites are identified using the SCI 

approach, there is less confidence that 

these sites are least-disturbed and 

represent minimally-impacted 

conditions. As mentioned above, this is 

because this approach does not rely on 

a quantitative assessment of potential 

human disturbance through the use of 

surrounding land cover analysis of 

stream corridor and watershed land 

development indices. Therefore, EPA is 

finalizing the stream criteria in the West 

Central region using the 75th percentile 

values of the distribution from the SCI 

sites.101

EPA’s approach in this final rule 

results in numeric criteria that are 

protective of a balanced natural 

population of aquatic flora and fauna in 

Florida’s streams. EPA has determined, 

however, that these instream values may 

not always ensure the attainment and 

maintenance of WQS in downstream 

lakes and that more stringent criteria 

may be necessary to assure compliance 

with 40 CFR 131.10(b). Therefore, EPA 

is finalizing an approach in this rule for 

deriving TN and TP values for streams 

to ensure the attainment and 

maintenance of WQS in downstream 

lakes.102 This approach is discussed in 

Section III.C(2)(f). 

(c) Duration and Frequency 

Aquatic life water quality criteria 

contain three components: Magnitude, 

duration, and frequency. For the 

numeric TN and TP criteria for streams, 

the derivation of the criterionmagnitude values is described above 

and these values are provided in the 

table in Section III.B(1). The duration 

component of these stream criteria is 

specified in footnote a of Table B–1 as 

an annual geometric mean. EPA is 

finalizing the proposed frequency 

component as a no-more-than-one-inthree-years excursion frequency for the 

annual geometric mean criteria for 

streams. These duration and frequency 

components of the criteria are consistent 

with the data set used to derive these 

criteria, which applied distributional 

statistics to measures of annual 

geometric mean values from multiple 

years of record. EPA has determined 

that this frequency of excursions will 

not result in unacceptable effects on 

aquatic life as it will allow the stream 

ecosystem enough time to recover from 

occasionally elevated levels of nitrogen/ 

phosphorus in the stream.103 104 105

These selected duration and frequency 

components recognize that hydrological 

variability (e.g., high and low flows) 

will produce variability in nitrogen and 

phosphorus concentrations, and that 

individual measurements may at times 

be greater than the criteria magnitude 

concentrations without causing 

unacceptable effects to aquatic 

organisms and their uses. Furthermore, 

the frequency and duration components 

balance the representation of underlying 

data and analyses based on the central 

tendency of many years of data with the 

need to exercise some caution to ensure 

that streams have sufficient time to 

process individual years of elevated 

nitrogen and phosphorus levels and 


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106USEPA. 2000a. Nutrient Criteria Technical 

Guidance Manual: Lakes and Reservoirs. EPA–822– 

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

Office of Water, Washington, DC. 

107USEPA. 2000b. Nutrient Criteria Technical 

Guidance Manual: Rivers and Streams. EPA–822– 

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

Office of Water, Washington, DC. 

108Stoddard, J. L., D. P. Larsen, C. P. Hawkins, 

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

expectations for the ecological condition of streams: 

the concept of reference condition. Ecological 

Applications 16:1267–1276. 

109Herlihy, A. T., S. G. Paulsen, J. Van Sickle, J. 

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

Striving for consistency in a national assessment: 

the challenges of applying a reference-condition 

approach at a continental scale. Journal of the North 

American Benthological Society 27:860–877. 

110U.S. EPA. 2001. Nutrient Criteria Technical 

Manual: Estuarine and Coastal Marine Waters. 

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

003. 

111 Davies, T.T., USEPA. 1997, November 5. 

Memorandum to Water Management Division 

Directors, Regions 1–10, and State and Tribal Water 

Quality Management Program Directors on 

Establishing Site Specific Aquatic Life Criteria 

Equal to Natural Background. 

112USEPA. 1998. National Strategy for the 

Development of Regional Nutrient Criteria. EPA 

822–R–98–002. U.S. Environmental Protection 

Agency, Office of Water, Washington, DC; Grubbs, 

G., USEPA. 2001, November 14. Memorandum to 

Directors of State Water Programs, Directors of 

Great Water Body Programs, Directors of 

Authorized Tribal Water Quality Standards 

Programs and State and Interstate Water Pollution 

Control Administrators on Development and 

Adoption of Nutrient Criteria into Water Quality 

Standards.; Grumbles, B.H., USEPA. 2007, May 

25.Memorandum to Directors of State Water 

Programs, Directors of Great Water Body Programs, 

Directors of Authorized Tribal Water Quality 

Standards Programs and State and Interstate Water 

Pollution Control Administrators on Nutrient 

Pollution and Numeric Water Quality Standards. 

113Biggs, B.J.F. 2000. Eutrophication of streams 

and rivers: dissolved nutrient–chlorophyll 

relationships for benthic algae. Journal of the North 

American Benthological Society 19:17–31 

114Bothwell, M.L. 1985. Phosphorus limitation of 

lotic periphyton growth rates: an intersite 

comparison using continuous-flow troughs 

(Thompson River system, British Columbia). 

Limnology and Oceanography 30:527–542 

115Bourassa, N., and A. Cattaneo. 1998. Control 

of periphyton biomass in Laurentian streams 

(Quebec). Journal of the North American 

Benthological Society 17:420–429 

116Bowling, L.C., and P.D. Baker. 1996. Major 

cyanobacterial bloom in the Barwon-Darling River, 

Australia, in 1991, and underlying limnological 

conditions. Marine and Freshwater Research 47: 

643–657 

117Cross, W. F., J. B. Wallace, A. D. Rosemond, 

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

enrichment increases secondary production in a 

detritus-based ecosystem. Ecology 87: 1556–1565 

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

ecology of Cladophora. Journal of Phycology 

28:415–427 

119Elwood, J.W., J.D. Newbold, A.F. Trimble, and 

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

in a woodland stream ecosystem: effects of P 

enrichment on leaf decomposition and primary 

producers. Ecology 62:146–158 

120Francoeur, S.N. 2001. Meta-analysis of lotic 

nutrient amendment experiments: detecting and 

quantifying subtle responses. Journal of the North 

American Benthological Society 20: 358–368 

121Moss, B., I. Hooker, H. Balls, and K. Manson. 

1989. Phytoplankton distribution in a temperate 

floodplain lake and river system. I. Hydrology, 

nutrient sources and phytoplankton biomass. 

Journal of Plankton Research 11: 813–835 

122Mulholland, P.J. and J.R. Webster. 2010. 

Nutrient dynamics in streams and the role of J– 

NABS. Journal of the North American Benthological 

Society 29: 100–117 

123Peterson, B.J., J.E. Hobbie, A.E. Hershey, M.A. 

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

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

1985. Transformation of a tundra river from 

heterotrophy to autotrophy by addition of 

phosphorus. Science 229:1383–1386 

124Rosemond, A. D., P. J. Mulholland, and J. W. 

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

stream periphyton: Effects of nutrients and 

herbivores. Ecology 74: 1264–1280 

125Rosemond, A. D., C. M. Pringle, A. Ramirez, 

and M.J. Paul. 2001. A test of top-down and bottomup control in a detritus-based food web. Ecology 82: 

2279–2293 

126Rosemond, A. D., C. M. Pringle, A. Ramirez, 

M.J. Paul, and J. L. Meyer. 2002. Landscape 

variation in phosphorus concentration and effects 

on detritus-based tropical streams. Limnology and 

Oceanography 47: 278–289. 

127Slavik, K., B. J. Peterson, L. A. Deegan, W. B. 

Bowden, A. E. Hershey, J. E. Hobbie. 2004. Longterm responses of the Kuparuk River ecosystem to 

phosphorus fertilization. Ecology 85: 939–954. 

avoid the possibility of cumulative and 

chronic effects (i.e., the no-more-thanone-in-three-year component). More 

information on this specific topic is 

provided in EPA’s Final Rule TSD for 

Florida’s Inland Waters, Chapter 1: 

Methodology for Deriving U.S. EPA’s 

Criteria for Streams located in the 

record for this final rule. 

d. Reference Condition Approach 

In deriving the final criteria for 

streams, EPA has relied on a reference 

condition approach, which has been 

well documented, peer reviewed, and 

developed in a number of different 

contexts.106 107 108 109 110 In the case of 

Florida, this approach is supported by a 

substantial Florida-specific database of 

high quality information, sound 

scientific analysis and extensive 

technical evaluation. 

EPA received comments regarding the 

scientific defensibility of the reference 

condition approach, using either the 

benchmark sites or the SCI sites. Many 

commenters observed that such 

approaches do not mechanistically link 

biological effects to nitrogen/ 

phosphorus levels and therefore assert 

that EPA cannot scientifically justify 

numeric criteria without an observed 

biological effect. EPA views the 

reference condition approach as 

scientifically appropriate to derive the 

necessary numeric criteria in Florida 

streams. Reference conditions provide 

the appropriate benchmark against 

which to determine the nitrogen and 

phosphorus concentrations present 

when the designated use is being met. 

When the natural background 

concentrations of specific parameters 

can be defined by identifying reference 

conditions at anthropogenicallyundisturbed sites, then the 

concentrations at these sites can be 

considered as sufficient to support the 

aquatic life expected to occur naturally 

at that site.111 Also, setting criteria 

based on the conditions observed in 

reference condition sites reflects both 

the stated goal of the Clean Water Act 

and EPA’s National Nutrient Strategy 

that calls for States, including Florida, 

to take protective and preventative steps 

in managing nitrogen/phosphorus 

pollution to maintain the chemical, 

physical and biological integrity of the 

Nation’s waters before adverse 

biological and/or ecological effects are 

observed.112

The effects of TN and TP on an 

aquatic ecosystem are well understood 

and documented. There is a substantial 

and compelling scientific basis for the 

conclusion that excess TN and TP will 

have adverse effects on streams113 114

115 116 117 118 119 120 121 122 123 124 125 126 127. 

As discussed in Section II above, excess 

nitrogen/phosphorus in streams, like 

other aquatic ecosystems, increase 

vegetative growth (plants and algae), 

and change the assemblage of plant and 

algal species present in the system. 

These changes can affect the organisms 

that are consumers of algae and plants 

by altering the balance of food resources 

available to different trophic levels. For 

example, excess nitrogen/phosphorus 

promotes the growth of opportunistic 

and short-lived plant species that die 

quickly leaving more dead vegetative 

material available for consumption by 

lower tropic levels. Additionally, excess 

nitrogen/phosphorus can promote the 

growth of less palatable nuisance algae 

species that results in less food available 

for filter feeders. These changes can also 

alter the habitat structure by covering 

the stream or river bed with periphyton 

(attached algae) rather than submerged 

aquatic plants, or clogging the water 

column with phytoplankton (floating 

algae). In addition, excess nitrogen/ 

phosphorus can lead to the production 

of algal toxins that can be toxic to fish, 

invertebrates, and humans. Chemical 

characteristics of the water, such as pH 

and concentrations of dissolved oxygen 

(DO), can also be affected by excess 

nitrogen/phosphorus leading to low DO 

conditions and hypoxia. Each of these 

changes can, in turn, lead to other 

changes in the stream community and, 

ultimately, to changes in the stream 

ecology that supports the overall 

function of the linked aquatic 

ecosystem. 


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128The previous three years of data are required 

as a basis for modifying TN and TP criteria and 

must meet FDEP’s data quality assurance objectives. 

Additional historical data may be used to augment 

the three years of data characterizing the lake’s 

annual and inter-annual variability. Only historical 

data containing data for all three parameters can be 

used and the data must meet FDEP’s data quality 

assurance objectives. 

129As noted above, if more than three years of 

data are available for each parameter, then more 

data can be used. 

130Approximately 30% of Florida lakes are fed by 

streams to which this DPV analysis would apply 

(Schiffer, Donna M. 1998. Hydrology of Central 

Florida Lakes—A Primer. U.S. Geological Survey in 

cooperation with SJWMD and SFWMD: Circular 

1137). 

131 Kennedy, R.H. 1995. Application of the 

BATHTUB model to Selected Southeastern 

Reservoirs. Technical Report EL–95–14. U.S. Army 

Engineer Waterways Experiment Station, Vicksburg, 

MS.; Walker, W.W., 1985. Empirical Methods for 

Predicting Eutrophication in Impoundments; Report 

3, Phase II: Model Refinements. Technical Report 

E–81–9. U.S. Army Engineer Waterways 

Experiment Station, Vicksburg, MS.; Walker, W.W., 

1987. Empirical Methods for Predicting 

Eutrophication in Impoundments; Report 4, Phase 

III: Applications Manual. Technical Report E–81–9. 

U.S. Army Engineer Waterways Experiment Station, 

Vicksburg, MS. 

C. Numeric Criteria for the State of 

Florida’s Lakes 

(1) Final Rule 

EPA is promulgating numeric criteria 

for chlorophyll a, TN and TP in three 

classes of Florida’s lakes, classified as 

Class I or III waters under Florida law 

(Section 62–302.400, F.A.C.): 

TABLE C–17—EPA’S NUMERIC CRITERIA FOR FLORIDA LAKES

Lake color a and alkalinity Chl-a 

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

Colored Lakes c ................................................................................................................ 0.020 1.27 

[1.27–2.23] 

0.05 

[0.05–0.16] 

Clear Lakes, High Alkalinity d .......................................................................................... 0.020 1.05 

[1.05–1.91] 

0.03 

[0.03–0.09] 

Clear Lakes, Low Alkalinity e ........................................................................................... 0.006 0.51 

[0.51–0.93] 

0.01 

[0.01–0.03] 

aPlatinum Cobalt Units (PCU) assessed as true color free from turbidity. 

b Chlorophyll a is defined as corrected chlorophyll, or the concentration of chlorophyll a remaining after the chlorophyll degradation product, 

phaeophytin a, has been subtracted from the uncorrected chlorophyll a measurement. c Long-term Color > 40 Platinum Cobalt Units (PCU). 

d Long-term Color ≤ 40 PCU and Alkalinity > 20 mg/L CaCO3. e Long-term Color ≤ 40 PCU and Alkalinity ≤ 20 mg/L CaCO3. 

* For a given waterbody, the annual geometric mean of chlorophyll a, TN or TP concentrations shall not exceed the applicable criterion concentration more than once in a three-year period. 

For each class of water defined by 

color and alkalinity, the applicable 

criteria are the values in bold for 

chlorophyll a, TN and TP. The criteria 

framework provides flexibility for FDEP 

to derive lake-specific, modified TN and 

TP criteria if the annual geometric mean 

chlorophyll a concentration is less than 

the criterion for an individual lake in 

each of the three immediately preceding 

years. In such a case, the corresponding 

criteria for TN and/or TP may be 

modified to reflect maintenance of 

ambient conditions within the range 

specified in the parenthetical below 

each baseline TN and TP criteria printed 

in bold in Table C–1 above. Modified 

criteria for TN and/or TP must be based 

on data from at least the immediately 

preceding three years 128 in a particular 

lake. Modified TN and/or TP criteria 

may not be greater than the higher value 

specified in the range. Modified TN 

and/or TP criteria for a lake also may 

not be above criteria applicable to 

streams to which a lake discharges in 

order to ensure the attainment and 

maintenance of downstream water 

quality standards. 

Utilization of the range flexibility in 

the numeric lake criteria in this final 

rule requires that the ambient 

calculation for modified TN and TP 

criteria be based on: (1) The 

immediately preceding three-year 

record of observation for each 

parameter,129 (2) representative 

sampling during each year (at least one 

sample in May–September and at least 

one sample in October–April), and (3) a 

minimum of 4 samples from each year. 

Requiring at least three years of data 

accounts for year-to-year hydrological 

variability, ensures longer-term stable 

conditions, and appropriately accounts 

for anomalous conditions in any given 

year that could lead to erroneous 

conclusions regarding the true 

relationship between nitrogen/ 

phosphorus and chlorophyll a levels in 

a lake. Representative samples from 

each year minimize the effects of 

seasonal variations in nitrogen/ 

phosphorus and chlorophyll a 

concentrations. Finally, the minimum 

sample size of 4 samples per year allows 

estimates of reliable geometric means 

while still maintaining a representative 

sample of lakes. The State shall notify 

EPA Region 4 and provide the 

supporting record within 30 days of 

determination of modified lake criteria. 

To ensure attainment of applicable 

downstream lake criteria, this final rule 

provides a tiered approach for adjusting 

instream criteria presented in section 

III.B.(1) above for those streams that 

flow into lakes.130 Where site-specific 

data on lake characteristics are 

available, the final rule provides a 

modeling approach for the calculation 

of downstream lake protection values 

that relies upon the use of the 

BATHTUB model.131 In circumstances 

where sufficient site-specific lake data 

are readily available and either EPA or 

FDEP determine that another 

scientifically defensible model is more 

appropriate (e.g., the Water Quality 

Analysis Simulation Program, or 

WASP), the modeling approach 

accommodates use of a scientifically 

defensible alternative. In the absence of 

models, other approaches for ensuring 

protection of downstream lakes are 

provided and described further below. 

(2) Background and Analysis 

(a) Methodology for Lake Classification 

In the January 2010 proposal, EPA 

used color and alkalinity to classify 

Florida’s lakes based on substantial data 

demonstrating that these characteristics 

influence the response of lakes to 

increased nitrogen/phosphorus and the 

expected background chlorophyll a 

concentration. Many of Florida’s lakes 

contain dissolved organic matter 

leached from surface vegetation that 


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132Shannon, E.E., and P.L. Brezonik. 1972. 

Limnological characteristics of north and central 

Florida lakes. Limnology and Oceanography 17(1): 

97–110. 

133 Guildford, S. J. and R. E. Hecky. 2000. Total 

nitrogen, total phosphorus, and nutrient limitation 

in lakes and oceans: Is there a common 

relationship? Limnology and Oceanography 45: 

1213–1223. 

134Technical Support Document for EPA’s Final 

Rule for Numeric Nutrient Criteria for Nitrogen/ 

Phosphorus Pollution in Florida’s Inland Surface 

Fresh Waters. 

135OECD. 1982. Eutrophication of Waters. 

Monitoring, Assessment and Control. Organisation 

Continued 

colors the water. More color in a lake 

limits light penetration within the water 

column, which in turn limits algal 

growth. Thus, in lakes with colored 

water, higher levels of nitrogen/ 

phosphorus may occur without 

exceeding the chlorophyll a criteria 

concentrations. EPA evaluated 

relationships among TN, TP, and 

chlorophyll a concentration data, and 

found that lake color influenced these 

relationships. More specifically, EPA 

found the correlations between 

nitrogen/phosphorus and chlorophyll a 

concentrations to be stronger and less 

variable when lakes were categorized 

into two distinct groups based on a 

color threshold of 40 PCU, with clear 

lakes demonstrating more algal growth 

with increased nitrogen/phosphorus, as 

would be predicted by the increased 

light penetration. This threshold is 

consistent with the distinction between 

clear and colored lakes long observed in 

Florida.132

Within the clear lakes category, color 

is not the dominant controlling factor in 

algal growth. For these clear lakes, EPA 

proposed the use of alkalinity as an 

additional distinguishing characteristic. 

Alkalinity and pH increase when water 

is in contact with carbonate rocks, such 

as limestone, or limestone-derived soil 

in the State of Florida. Limestone is also 

a natural source of phosphorus, and 

thus, in Florida, lakes that are higher in 

alkalinity are often associated with 

naturally elevated TP levels. The 

alkalinity (measured as CaCO3

concentration) of Florida clear lakes 

ranges from zero to over 200 mg/L. EPA 

proposed classifying clear Florida lakes 

into acidic and alkaline classes based on 

an alkalinity threshold of 50 mg/L 

CaCO3, and solicited comment on 

whether a 20 mg/L CaCO3 threshold 

would be more appropriate. EPA 

received comments noting that that the 

lower alkalinity classification threshold 

would be more representative of 

naturally oligotrophic conditions by 

creating a class of lakes with very low 

alkalinity and correspondingly low 

chlorophyll a concentrations. After 

reviewing available lake data, EPA 

found that clear lakes below 20 mg/L 

CaCO3 were more similar to one another 

in terms of naturally expected 

chlorophyll a, TN, and TP 

concentrations than clear lakes below 50 

mg/L CaCO3. Thus, EPA concluded that 

an alkalinity threshold of 20 mg/L 

CaCO3 was an appropriate threshold for 

classifying clear lakes and EPA is 

finalizing the lower alkalinity threshold 

in this rule. More information on this 

specific topic is provided in EPA’s 

Finals TSD for Florida’s Inland Waters, 

Chapter 2: Methodology for Deriving 

U.S. EPA’s Criteria for Lakes located in 

the record for this final rule. 

EPA also proposed the use of specific 

conductance as a surrogate for 

alkalinity. EPA received comments that 

conductivity was not an accurate 

surrogate measure for alkalinity. EPA 

evaluated the association between 

specific conductivity and alkalinity and 

concluded that alkalinity is a preferred 

parameter for lake classification because 

it is a more direct measure of the 

presence of carbonate rocks, such as 

limestone that are associated with 

natural elevated phosphorus levels. 

Changes in specific conductivity can be 

attributed to changes in alkalinity, but 

in many cases may be caused by 

increases in the concentrations of other 

compounds that originate from human 

activities. Thus, EPA has concluded that 

alkalinity is a more reliable indicator for 

characterizing natural background 

conditions for Florida lakes. 

A number of comments suggested 

EPA consider a system that delineates 

47 lake regions and a system that 

classifies lakes as a continuous function 

of both alkalinity and color. As 

discussed in more detail in the TSD 

supporting this final rule, EPA 

evaluated each of these alternative 

classification approaches, and found 

that they did not improve the predictive 

accuracy of biological responses to 

nitrogen/phosphorus over EPA’s 

classification, nor result in a practical 

system that can be implemented by 

FDEP. For example, in the case of the 47 

lake region approach, insufficient data 

are available to derive numeric criteria 

across all of the 47 regions and in the 

case of the continuous function 

approach there is a reliance on an 

assumption that TN and TP are always 

co-limiting that is not always true.133

A number of commenters suggested 

that lake-specific criteria would be more 

appropriate than the three broad classes 

that EPA proposed. The substantial data 

available in the record for this final rule 

supports the conclusion that many of 

Florida’s lakes share similar physical, 

chemical, and geological characteristics, 

which in turn justifies, based on sound 

scientific evidence, broad classification 

of Florida lakes. EPA concluded, based 

on the substantial data and associated 

analysis explained above, that color and 

alkalinity are primary distinguishing 

factors in Florida lakes with respect to 

nitrogen/phosphorus dynamics and the 

associated biological response. With 

respect to consideration of site-specific 

information that goes beyond the 

detailed site-specific sampling and 

monitoring analysis already 

discussed,134 the numeric lake criteria 

in this final rule are established within 

a flexible regulatory framework that 

allows adjustment of TN, TP, and/or 

chlorophyll a criteria based on 

additional lake-specific data. This 

framework provides an opportunity to 

derive lake-specific criteria similar to 

the manner suggested in public 

comment, where lake-specific data and 

information are available, while 

ensuring that numeric criteria are in 

place to protect all of Florida’s lakes. 

Further site-specific flexibility is 

provided in this final rule through the 

derivation of alternative criteria by a 

Federal Site Specific Adjusted Criteria 

(SSAC) process discussed in more detail 

below in Section V.C. 

In this final rule, EPA is dividing 

Florida’s lakes into three classes: (1) 

Colored Lakes >40 Platinum Cobalt 

Units (PCU), (2) Clear, High Alkalinity 

Lakes (≤40 PCU with alkalinity >20 mg/ 

L calcium carbonate (CaCO3)), and (3) 

Clear, Low Alkalinity Lakes (≤40 PCU 

with alkalinity ≤20 mg/L CaCO3). These 

two parameters, color and alkalinity, 

both affect lake productivity and plant 

biomass, as measured by chlorophyll a. 

For more information regarding these 

classes, please refer to EPA’s Final Rule 

TSD for Florida’s Inland Waters, 

Chapter 2: Methodology for Deriving 

U.S. EPA’s Criteria for Lakes. 

(b) Methodology for Chlorophyll a 

Criteria 

EPA proposed the use of chlorophyll 

a concentration as an indicator of a 

healthy biological condition, supportive 

of natural balanced populations of 

aquatic flora and fauna in each of the 

classes of Florida’s lakes. Excess algal 

growth is associated with degradation in 

aquatic life, and chlorophyll a levels are 

a measure of algal growth. To derive the 

proposed chlorophyll a concentrations 

that would be protective of natural 

balanced populations of aquatic flora 

and fauna in Florida’s lakes, EPA 

utilized the expected trophic status of 

the lake, based on internationally 

accepted lake use classifications.135


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for Economic Development and Co-Operation, 

Paris, France. 

136Trophic state describes the nitrogen/ 

phosphorus levels and algal state of an aquatic 

system: Oligotrophic (low nitrogen/phosphorus and 

algal productivity), mesotrophic (moderate 

nitrogen/phosphorus and algal productivity), and 

eutrophic (high nitrogen/phosphorus and algal 

productivity). 

As discussed in more detail at 

proposal, lakes can be classified into 

one of three trophic State categories (i.e., 

oligotrophic, mesotrophic, 

eutrophic).136 EPA concluded at 

proposal that healthy colored lakes and 

clear, high alkalinity lakes should 

maintain a mesotrophic status, because 

they receive significant natural 

nitrogen/phosphorus input and still 

support a healthy diversity of aquatic 

life in warm, productive climates such 

as Florida. For these two categories of 

lakes, EPA proposed a chlorophyll a 

criterion of 0.020 mg/L to support 

balanced natural populations of aquatic 

life flora and fauna. At concentrations 

above 0.020 mg/L chlorophyll a, the 

trophic status of the lake is more likely 

to become eutrophic and the additional 

chlorophyll a will reduce water clarity, 

negatively affecting native submerged 

macrophytes, and the invertebrate and 

fish communities that depend on them. 

Commenters suggested that this 

threshold is overly protective of 

naturally eutrophic lakes in the State. 

For those lakes that may currently be 

naturally eutrophic, this final rule 

contains a formal SSAC process to 

revise these criteria for this unique type 

of lake. For more information on the 

SSAC process, please refer to Section 

V.C of this final rule. 

In contrast, clear, low alkalinity lakes 

in Florida do not receive natural 

nitrogen/phosphorus input from 

underlying geological formations in the 

watershed and thus, they support less 

algal growth and have lower chlorophyll 

a levels than colored or clear, high 

alkalinity lakes. EPA concluded at 

proposal that these lakes should 

maintain an oligotrophic status to 

support balanced natural populations of 

aquatic flora and fauna. EPA proposed 

a chlorophyll a criterion of 0.006 mg/L 

in clear, low alkalinity lakes to support 

balanced natural populations of aquatic 

life flora and fauna. At concentrations 

above 0.006 mg/L chlorophyll a, the 

trophic status of the lake is more likely 

to become mesotrophic and the 

additional chlorophyll a will reduce 

water clarity, negatively affecting native 

submerged macrophytes, and the 

invertebrate and fish communities that 

depend on them. Commenters suggested 

that this chlorophyll a concentration 

may not be appropriate for clear lakes 

with alkalinity less than 50 mg/L. As 

explained in more detail above, in this 

final rule EPA concluded that 20 mg/L 

is an appropriate threshold between low 

and high alkalinity lakes. Thus, lakes 

with alkalinity greater than 20 mg/L will 

have a chlorophyll a criterion that is 

applicable to clear, high alkalinity lakes. 

Based on the revision of the alkalinity 

threshold to 20 mg/L, EPA reviewed the 

available chlorophyll a data for clear, 

low alkalinity lakes and found that the 

majority of lakes have chlorophyll a 

concentrations less than 0.006 mg/L 

reflective of oligotrophic conditions 

which leads EPA to conclude that this 

chlorophyll a concentration will serve 

to maintain the trophic status of these 

lakes. 

In this final rule, EPA is promulgating 

chlorophyll a criteria of 0.020 mg/L in 

colored lakes and clear, high alkalinity 

lakes and a chlorophyll a criterion of 

0.006 mg/L in clear, low alkalinity lakes 

as an indicator of a healthy biological 

condition, supportive of natural 

balanced populations of aquatic flora 

and fauna in these classes of Florida’s 

lakes. For more information regarding 

these chlorophyll a criteria, please refer 

to EPA’s Final Rule TSD for Florida’s 

Inland Waters, Chapter 2: Methodology 

for Deriving U.S. EPA’s Criteria for 

Lakes. 

(c) Methodology for Total Nitrogen (TN) 

and Total Phosphorus (TP) Criteria in 

Lakes 

EPA proposed TN and TP criteria for 

each of the classes of lakes described in 

Section III.C(2)(a) based on the response 

of chlorophyll a to increases in TN and 

TP for clear and colored lakes in 

Florida. These responses were 

quantitatively estimated with linear 

regressions. Each data point used in 

estimating the statistical relationships 

was the geometric mean of samples 

taken over the course of a year in a 

particular Florida lake. Statistical 

analyses of these relationships showed 

that the chlorophyll a responses to 

changes in TN and TP differed for 

colored versus clear lakes, as would be 

expected, because color blocks light 

penetration in the water column and 

limits algal growth. These analyses also 

showed that chlorophyll a responds to 

changes in TN and TP in high and low 

alkalinity clear lakes similarly, as would 

be expected, because alkalinity does not 

affect light penetration. These 

relationships were used to derive TN 

and TP criteria that would maintain 

chlorophyll a concentrations at desired 

levels known to be supportive of 

balanced natural populations of aquatic 

flora and fauna as discussed above. 

These analyses are explained in more 

detail in EPA’s Final Rule TSD for 

Florida’s Inland Waters, Chapter 2: 

Methodology for Deriving U.S. EPA’s 

Criteria for Lakes included in the record 

for this final rule. 

EPA proposed baseline TN and TP 

criteria based on the 75th percentile of 

the predicted distribution of chlorophyll 

a concentrations, given a TN or TP 

concentration. Commenters suggested 

alternative approaches for deriving TN 

and TP criteria, including using either 

the mean predicted chlorophyll a 

concentration, using the 25th percentile 

of the predicted distribution of 

chlorophyll a concentrations, and using 

an additional criterion based on a higher 

percentile that is associated with a 

different exceedance frequency. EPA 

considered these alternative approaches 

and concluded that calculating the TN 

and TP criteria as a baseline 

concentration with an associated 

concentration range was a more flexible 

approach than a single value approach 

manifested as the TN and TP 

concentration associated with a specific 

chlorophyll a concentration. Thus, the 

approach included in this final rule 

takes into account the natural variability 

observed in different classes of lakes 

(i.e., colored or clear) in a way that a 

single value approach based on the 

regression line or the lower value of the 

50th percentile prediction interval does 

not. 

In this final rule, the TN and TP 

criteria are based on linear regressions 

(i.e., best-fit lines) predicting the annual 

geometric mean chlorophyll a 

concentration as a function of the 

annual geometric mean TN or TP. 

Baseline TN and TP criteria are 

calculated as the point at which the 

75th percentile of the predicted 

distribution of chlorophyll a 

concentrations from the regression 

relationship is equivalent to the 

chlorophyll a criterion for the 

appropriate lake class. The range of 

values in the predicted distribution of 

chlorophyll a concentrations arises from 

small differences in the nitrogen/ 

phosphorus–chlorophyll a relationships 

across different lakes and variability in 

these relationships between years in the 

same lake. Hence, TN and TP criteria 

are based on the 75th percentile that 

will be protective at the majority of 

lakes and in the majority of years. 

The predicted distribution of 

chlorophyll a concentrations for lakes 

differs inherently from the distribution 

of TN and TP concentrations calculated 

from reference sites for criteria for 

Florida streams (Section III.B(2)(b)). In 

the case of the criteria for Florida 

streams for most NWRs, benchmark 

sites represent a population of leastVerDate Mar<15>2010 17:17 Dec 03, 2010 Jkt 223001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\06DER2.SGM 06DER2

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137EPA will assess the effectiveness of final 

stream criteria for assuring the protection of 

Continued 

disturbed sites and the criteria based on 

the 90th percentile of nitrogen and 

phosphorus concentrations from these 

sites are selected to characterize the 

upper bound of nitrogen/phosphorus 

concentrations that one would expect 

from such sites. Criteria for Florida 

lakes rely on a predictive relationship 

between nitrogen/phosphorus and 

chlorophyll a concentrations, and the 

75th percentile is selected from the 

distribution of chlorophyll a 

concentrations predicted for specific 

concentrations of TN and TP. As 

discussed above, basing criteria on this 

percentile provides a means of 

accounting for variability in chlorophyll 

a concentrations predicted for a given 

TN and TP concentration. In short, the 

percentile for the streams criteria is 

selected to ensure that nitrogen/ 

phosphorus concentrations in all 

streams are at least as low as those 

observed in reference streams, whereas 

the percentile for the lakes criteria is 

selected such that concentrations 

appropriately account for variability in 

the relationships between nitrogen/ 

phosphorus and chlorophyll a 

concentrations. 

(d) Duration and Frequency 

Aquatic life water quality criteria 

include magnitude, duration, and 

frequency components. For the 

chlorophyll a, TN, and TP criteria for 

lakes, the criterion-magnitude values, 

expressed as a concentration, are 

provided in Table C–1 in bold. The 

criterion-duration of this magnitude is 

specified in a footnote to this Table as 

an annual geometric mean. EPA is 

finalizing the criterion-frequency as a 

no-more-than-once-in-three-years 

excursion frequency of the annual 

geometric mean criteria for lakes. The 

duration component of the criteria is 

based on annual geometric means to be 

consistent with the data set used to 

derive these criteria, which applied 

stressor-response relationships based on 

annual geometric means for individual 

years at individual lakes. These selected 

duration and frequency components 

recognize that hydrological variability 

(e.g., high and low flows) will produce 

variability in nitrogen and phosphorus 

concentrations, and that individual 

measurements may at times be greater 

than the criterion-magnitude 

concentrations without causing 

unacceptable effects to aquatic 

organisms and their uses. Furthermore, 

they balance the representation of the 

central tendency of the predicted 

relationship between TN or TP and 

chlorophyll a based from many years of 

data with the need to exercise some 

caution to ensure that lakes have 

sufficient time to process individual 

years of elevated nitrogen and 

phosphorus concentrations and avoid 

the possibility of cumulative and 

chronic effects (i.e., the no-more-thanone-in-three-year component). 

Additionally, because nitrogen/ 

phosphorus pollution is best managed 

on a watershed basis, this is the same 

frequency and duration used in the final 

streams criteria. More information on 

this specific topic is provided in EPA’s 

Final Rule TSD for Florida’s Inland 

Waters, Chapter 2: Methodology for 

Deriving U.S. EPA’s Criteria for Lakes 

located in the record for this final rule. 

(e) Application of Lake-Specific, 

Ambient Condition-Based Modified TN 

and TP Criteria 

EPA proposed an accompanying 

approach that the State could use to 

adjust TN and TP criteria for a 

particular lake within a certain range 

where sufficient data on long-term 

ambient chlorophyll a, TN and TP 

levels are available to demonstrate that 

protective chlorophyll a criterion for a 

specific lake will still be maintained 

and a balance of natural populations of 

aquatic flora and fauna will be 

supported. This approach allows for 

readily available site-specific data to be 

taken into account in the expression of 

TN and TP criteria, while still ensuring 

support of balanced natural populations 

of aquatic flora and fauna by 

maintaining the associated chlorophyll 

a level at or below the chlorophyll a 

criterion level. The scientific premise 

for the lake-specific ambient calculation 

provision for modified TN and/or TP 

criteria is that if ambient lake data show 

that a lake’s chlorophyll a levels are at 

or below the established criteria (i.e., 

magnitude) for at least the last three 

years and its TN and/or TP levels are 

within the lower and upper bounds, 

then those ambient levels of TN and TP 

represent conditions that will continue 

to support the specified chlorophyll a 

response level. The lower bound of the 

range is based on the TN/TP values that 

correspond to the 75th percentile of the 

predicted chlorophyll a distribution and 

the upper bound of the range is based 

on the TN/TP values that correspond to 

the 25th percentile of the same 

predicted distribution. The use of the 

25th and 75th percentiles accounts for 

the majority of variability that may 

occur around the central tendency of the 

predicted relationship between TN or 

TP and chlorophyll a. 

This final rule provides that FDEP 

must establish and document these 

modified criteria in a manner that 

clearly recognizes their status as the 

applicable criteria for a particular lake. 

To this end, FDEP must submit a letter 

to EPA Region 4 formally documenting 

the use of modified criteria as the 

applicable criteria for particular lakes. 

This final rule allows for a one-time 

adjustment without a requirement that 

FDEP go through a formal SSAC 

process. EPA believes that such 

modified TN and TP criteria do not 

need to go through the SSAC process 

because the conditions under which 

they are applicable are clearly stated in 

this final rule and data requirements are 

clearly laid out so that the outcome is 

clear, consistent, transparent, and 

reproducible. By providing a specific 

process for deriving modified criteria 

within the WQS rule itself, each 

individual outcome of this process is an 

effective WQS for CWA purposes and 

does not need separate adoption by 

FDEP or approval by EPA. For more 

information on the SSAC process, 

please refer to Section V.C of this final 

rule. 

Application of the ambient 

calculation provision has implications 

for assessment and permitting because 

the outcome of applying this provision 

is to establish alternate numeric TN 

and/or TP values as the applicable lake 

criteria. For accountability and tracking 

purposes, the State must document the 

result of the ambient calculation for any 

given lake. Once modified criteria are 

established under this approach, they 

remain the applicable criteria for the 

long-term for purposes of implementing 

the State’s water quality program until 

they are subsequently modified either 

through the Federal SSAC process or 

State revision to the applicable WQS, 

which has been approved by EPA 

pursuant to CWA section 303(c). 

This site-specific lake criteria 

adjustment provision is subject to the 

downstream protection requirements 

more broadly discussed below. Thus in 

a comparable manner this final rule 

provides that calculated TN and/or TP 

values in a lake that discharges to a 

stream may not exceed criteria 

applicable to the stream to which a lake 

discharges. 

(f) Downstream Protection of Lakes 

In developing the proposed stream 

criteria, EPA also evaluated their 

effectiveness for assuring the protection 

of downstream lake water quality 

standards pursuant to the provisions of 

40 CFR 130.10(b), which requires that 

WQS must provide for the attainment 

and maintenance of the WQS of 

downstream waters.137 EPA’s criteria for 


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75782 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

downstream estuaries in a separate rulemaking that 

focuses on estuarine and coastal waters to be 

proposed by November 14, 2011 and finalized by 

August 15, 2012. 

lakes are, in some cases, more stringent 

than the final criteria for streams that 

flow into the lakes, and thus the 

instream criteria may not be stringent 

enough to ensure protection of WQS in 

certain downstream lakes. As a result, 

EPA proposed application of the 

Vollenweider equation to ensure that 

the TP criteria in streams are protective 

of downstream lakes, and requested 

comment on alternative approaches 

such as the BATHTUB model and 

whether there should be an allowance 

for use of other models that are 

demonstrated to be protective and 

scientifically defensible. 

The proposed use of the Vollenweider 

model equation to ensure the protection 

of downstream lakes requires input of 

two lake-specific characteristics: the 

fraction of inflow due to stream flow 

and the hydraulic retention time. EPA 

provided alternative preset values for 

percent contribution from stream flow 

and hydraulic retention time that could 

be used in those instances where lakespecific input values are not readily 

available. EPA’s January 2010 proposed 

rule discussed the flexibility for the 

State to use site-specific inputs to the 

Vollenweider equation for these two 

parameters, as long as the State 

determines that such inputs are 

appropriate and documents the sitespecific values. Some commenters 

stated that the Vollenweider equation is 

overly simplistic and does not include 

the necessary factors to account for 

physical, hydrologic, chemical, and 

biological processes necessary to 

determine protective criteria. Several 

commenters also suggested the need for 

TN values to protect downstream lakes 

that are nitrogen-limited (such as many 

of the lakes in the phosphorus-rich areas 

of the State). Comments included a 

recommendation to use models that can 

better represent site-specific conditions, 

such as BATHTUB. 

EPA’s August 2010 Supplemental 

Notice of Data Availability and Request 

for Comment requested additional 

comment on using the BATHTUB model 

in place of the Vollenweider equation 

for deriving both TP and TN criteria to 

protect downstream lakes, allowing the 

use of alternative models under certain 

circumstances, and providing for an 

alternative approach to protect 

downstream lakes when limited data are 

available that would use the lake criteria 

themselves as criteria for upstream 

waters flowing into the lake. 

In the final rule, protection of 

downstream lakes is accomplished 

through establishment of a downstream 

protection value (DPV). The applicable 

criteria for streams that flow into 

downstream lakes include both the 

instream criteria for TN and TP and the 

DPV, which is a concentration or 

loading value at the point of entry into 

a lake that results in attainment of the 

lake criteria. EPA selected the point of 

entry into the lake, also referred to as 

the ‘‘pour point,’’ as the location to 

measure water quality because the lake 

responds to the input from the pour 

point and all contributions from the 

stream network above this point in a 

watershed affect the water quality at the 

pour point. When a DPV is exceeded at 

the pour point, the waters that 

collectively comprise the network of 

streams in the watershed above that 

pour point are considered to not attain 

the DPV for purposes of section 303(d) 

of the Clean Water Act. The State may 

identify these impaired waters as a 

group rather than individually. 

It is appropriate to express the DPV as 

either a load or concentration (load 

divided by flow) because both are 

expressions of the amount of TN and TP 

that are delivered to the downstream 

water. In an expression of load, the 

amount is expressed directly as mass 

per time (e.g., pounds per year), whereas 

a concentration expresses the amount in 

terms of the mass contained in a 

particular volume of water (e.g., 

milligrams per liter). Either expression 

may be used for assessment and source 

control allocation purposes. Calculating 

a DPV as a load will require modeling 

or other technical information, such as 

a TMDL, that accounts for both the 

volume of the receiving water and the 

flow contributed through the pour 

point. A DPV expressed as a 

concentration may be based on a model 

or TMDL or may reflect a TN or TP level 

that corresponds to a TN, TP, or 

chlorophyll a concentration that 

protects the lake. 

Contributions of TN and/or TP from 

sources in stream tributaries upstream 

of the point of entry are accountable to 

the DPV because the water quality in the 

stream tributaries must result in 

attainment of the DPV at the pour point 

into the lake. The spatial allocation of 

load within the watershed is an 

important accounting step to ensure that 

the DPV is achieved at the point of entry 

into the lake. How the watershed load 

is allocated may differ based on 

watershed characteristics and existing 

sources (e.g., areas that are more 

susceptible to physical loss of nitrogen; 

location of towns, farms, and 

dischargers), so long as the DPV is met 

at the point of entry into the 

downstream lake. Where additional 

information is available, watershed 

modeling could be used to develop 

allocations that reflect hydrologic 

variability and other water quality 

considerations. For protection of the 

downstream lake, what is important is 

an accounting for nutrient loadings on 

a watershed scale that results in meeting 

the DPV at the point of entry into the 

downstream lake. 

The final rule provides that additional 

DPVs may be established in upstream 

locations to represent sub-allocations of 

the total allowable loading or 

concentration. Such sub-allocations may 

be useful where there are differences in 

hydrological conditions and/or sources 

of TN and/or TP in different parts of the 

watershed. The rule specifies that DPVs 

apply to stream tributaries up to the 

point of reaching a waterbody that is not 

a stream as defined in the rule (e.g., up 

to reaching another lake in a ‘‘nested’’ or 

chain of lakes situation). The rule also 

includes an option, however, to 

establish a DPV to account for a larger 

watershed area in a modeling context. 

Establishing DPVs that apply to a larger 

watershed may be useful to address a 

situation where the water that is furthest 

downstream in a watershed is also the 

water that is most sensitive to nitrogen/ 

phosphorus pollution. That situation 

may require a more equitable 

distribution, across the larger 

watershed, of the load that protects the 

most sensitive waterbody. 

Where multiple tributaries enter a 

lake, the total allowable loading to the 

lake may be distributed among the 

tributaries for purposes of DPV 

calculation in any manner that results in 

meeting the total allowable loading for 

the lake, remembering that those 

tributaries are also subject to the 

instream protection value established 

for the tributaries. 

Where sufficient data and information 

are available, DPVs may be established 

through application of the BATHTUB 

model. BATHTUB applies empirical 

models to morphometrically complex 

lakes and reservoirs. The model 

performs steady-state water and nutrient 

balance calculations, uses spatially 

segmented hydraulic networks, and 

accounts for advective and diffusive 

transport of nutrients. When properly 

calibrated and applied, BATHTUB 

predicts nutrient-related water quality 

conditions such as TP, TN, and 

chlorophyll a concentrations, 

transparency, and hypolimnetic oxygen 

depletion rates. The model can apply to 

a variety of lake sizes, shapes and 

transport characteristics. A high degree 

of flexibility is available for specifying 


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138Walker, W.W., 1981. Empirical Methods for 

Predicting Eutrophication in Impoundments; Report 

1, Phase I: Data Base Development. Technical 

Report E–81–9. U.S. Army Engineer Waterways 

Experiment Station, Vicksburg, MS. 

139Walker, W.W., 1982. Empirical Methods for 

Predicting Eutrophication in Impoundments; Report 

2, Phase II: Model Testing. Technical Report E–81– 

9. U.S. Army Engineer Waterways Experiment 

Station, Vicksburg, MS. 

140Walker, W.W., 1999. Simplified Procedures for 

Eutrophication Assessment and Prediction: User 

Manual; Instruction Report W–96–2. U.S. Army 

Corps of Engineers Waterways Experiment Station, 

Vicksburg, MS. 

141USEPA. 2000a. Nutrient Criteria Technical 

Guidance Manual: Lakes and Reservoirs. EPA–822– 

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

Office of Water, Washington, DC. 

142USEPA. 2000b. Nutrient Criteria Technical 

Guidance Manual: Rivers and Streams. EPA–822– 

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

Office of Water, Washington, DC. 

143USEPA. 2008. Nutrient Criteria Technical 

Guidance Manual: Wetlands. EPA–822–B–08–001. 

U.S. Environmental Protection Agency, Office of 

Water, Washington, DC. 

model segments as well as multiple 

influent streams. Because water quality 

conditions are calculated using 

relationships derived from data specific 

to each lake, BATHTUB accounts for 

differences between lakes, such as the 

rate of internal loading of phosphorus 

from bottom sediments. The above 

descriptive information is summarized 

from available technical references that 

also describe the model and its 

applications in greater detail.138 139 140

EPA believes BATHTUB is appropriate 

for DPV calculations because BATHTUB 

can represent a number of site-specific 

variables that may influence nutrient 

responses and can estimate both TN and 

TP concentrations at the pour points to 

protect the receiving lake. BATHTUB 

has been previously used for lake water 

quality management purposes, such as 

the development of TMDLs in States, 

including Florida. This model was 

selected because it does not have 

extensive data requirements, yet it 

provides for the capability to be 

calibrated based on observed sitespecific lake data and it provides for 

reliable estimates that will ensure the 

protection of downstream lakes. 

EPA’s final rule also specifically 

authorizes FDEP or EPA to use a model 

other than BATHTUB when either FDEP 

or EPA determines that it would be 

appropriate to use another scientifically 

defensible modeling approach that 

results in the protection of downstream 

lakes. While BATHTUB is a peerreviewed and versatile model, there are 

other models that, when appropriately 

calibrated and applied, can offer 

additional capability to address 

complex situations with an even greater 

degree of site-specificity. Adopted and 

approved TMDLs may contain sufficient 

information to support derivation of a 

DPV when the TMDL is based on 

relevant data, defensible science, and 

accurate analysis. 

As discussed in more detail in the 

Agency’s August 2010 Supplemental 

Notice of Data Availability and Request 

for Comment on this issue, one example 

of an alternative model that FDEP or 

EPA might consider using for 

particularly complex site-specific 

conditions is the Water Quality Analysis 

Simulation Program (WASP) model. 

This model allows users to conduct 

detailed simulations of water quality 

responses to natural and manmade 

pollutant inputs. WASP is a dynamic 

compartment-modeling program for 

aquatic systems, including both the 

water column and the underlying 

benthos. WASP allows the user to 

simulate systems in 1, 2, or 3 

dimensions, and a variety of pollutant 

types. The model can represent time 

varying processes of advection, 

dispersion, point and diffuse mass 

loading, and boundary exchange. WASP 

also can be linked with hydrodynamic 

and sediment transport models that can 

provide flows, depths, velocities, 

temperature, salinity and sediment 

fluxes. The above summary information 

as well as additional technical 

information may be found at http://

www.epa.gov/athens/wwqtsc/html/

wasp.html. Like BATHTUB, WASP has 

also been previously used for lake water 

quality management purposes, such as 

TMDLs, nationally and in the State of 

Florida. This model is different from 

BATHTUB because it does have 

extensive data requirements that allow 

for the capability to be finely calibrated 

based on observed site-specific lake 

data, but is similar to BATHTUB in that 

it also provides for reliable estimates 

that will ensure the protection of 

downstream lakes. 

EPA is finalizing a provision in this 

section of the rule for situations where 

data are not readily available to derive 

TN and/or TP DPVs using BATHTUB or 

another scientifically defensible model. 

In that situation, the rule describes how 

DPVs are determined where the 

downstream lake is attaining the lake 

criteria and where the downstream lake 

is either not assessed or is impaired. 

Where sufficient information is not 

available to derive TN and/or TP DPVs 

using BATHTUB or another 

scientifically defensible technical model 

and the lake attains the applicable 

criteria, the DPVs would be the 

associated ambient instream levels of 

TN and/or TP at the point of entry into 

the lake. As long as the TN and TP 

concentrations necessary to support a 

balanced natural population of aquatic 

flora and fauna in the downstream lake 

are maintained in the inflow from 

streams, this approach will provide 

adequate protection of downstream 

lakes and would be used as the 

applicable DPVs in the absence of 

readily available data to support 

derivation of TN and TP DPVs using 

BATHTUB or another scientifically 

defensible technical model such as 

WASP. 

EPA’s final rule provides that when 

the DPV is based on the ambient 

condition associated with attainment of 

criteria in the downstream lake, 

degradation in water quality from those 

established levels would be considered 

impairment, unless the State or EPA 

revises the DPV using a modeling 

approach or TMDL to show that higher 

levels of nutrient contribution from the 

tributaries would still result in 

attainment of applicable lake criteria. 

This provision is not intended to limit 

growth and/or development in the 

watershed, nor intended to maintain 

current conditions regardless of further 

analysis. Rather this provision is 

intended to ensure that WQS are not 

only restored when found to be 

impaired, but are in fact maintained 

when found to be attained, consistent 

with the goals of the Clean Water Act. 

Higher levels of TN and/or TP may be 

allowed in such watersheds where it is 

demonstrated that such higher levels 

will fully protect the lake’s WQS. 

Where sufficient information is not 

available to derive TN and/or TP DPVs 

using BATHTUB or another 

scientifically defensible technical model 

and the lake does not attain the 

applicable TN, TP, and/or chlorophyll a 

criteria or is un-assessed, lake criteria 

values for TN and/or TP are to be used 

as the DPVs. EPA believes that this 

approach is protective because the TN 

and TP concentrations entering the lake 

are unlikely to need to be lower than the 

criterion concentration necessary to be 

protective of the lake itself. 

(g) Stressor-Response Approach 

In deriving the final criteria for lakes, 

EPA has relied on a stressor-response 

approach which has been well 

documented and developed in a number 

of different contexts.141 142 143 Stressorresponse approaches estimate the 

relationship between nitrogen/ 

phosphorus concentrations and a 

response measure that is either directly 

or indirectly related to the designated 

use (in this case, chlorophyll a as a 

measure of attaining a balanced natural 

population of aquatic flora and fauna). 

Then, concentrations that support the 


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Eutrophication of water bodies: Insights for an ageold problem. Environmental Science and 

Technology 12: 900–908. 

145Carlson R.E. 1977. A trophic state index for 

lakes. Limnology and Oceanography 22:361–369. 

146Smith, V.H., G.D. Tilman, and J.C. Nekola. 

1999. Eutrophication: impacts of excess nutrient 

inputs on freshwater, marine, and terrestrial 

ecosystems. Environmental Pollution 100: 179–196. 

147Smith, V.H., S.B. Joye, and R.W. Howarth. 

2006. Eutrophication of freshwater and marine 

ecosystems. Limnology and Oceanography 51:351– 

355. 

148Schiffer, Donna M. 1998. Hydrology of Central 

Florida Lakes—A Primer. U.S. Geological Survey in 

cooperation with SJWMD and SFWMD: Circular 

1137. 

149 Katz, B.G., H.D. Hornsby, J.F. Bohlke and M.F. 

Mokray. 1999. Sources and chronology of nitrate 

contamination in spring water, Suwannee River 

Basin, Florida. Water-Resources Investigations 

Report 99–4252. U.S. Geological Survey, 

Tallahassee, FL. Available electronically at: http:// 

fl.water.usgs.gov/PDF_files/wri99_4252_katz.pdf. 

150Brown M.T., K. Chinners Reiss, M.J. Cohen, 

J.M. Evans, P.W. Inglett, K. Sharma Inglett, K. 

Ramesh Reddy, T.K. Fraze, C.A. Jacoby, E.J. Phlips, 

R.L. Knight, S.K. Notestein, R.G. Hamann, and K.A. 

McKee. 2008. Summary and Synthesis of the 

Available Literature on the Effects of Nutrients on 

Spring Organisms and Systems. University of 

Florida, Gainesville, Florida. Available 

electronically at: http://www.dep.state.fl.us/springs/ 

reports/files/UF_SpringsNutrients_Report.pdf. 

Accessed October 2010. 

151Pinowska, A., R.J. Stevenson, J.O. Sickman, A. 

Albertin, and M. Anderson. 2007a. Integrated 

interpretation of survey for determining nutrient 

thresholds for macroalgae in Florida Springs: 

Macroalgal relationships to water, sediment and 

macroalgae nutrients, diatom indicators and land 

use. Florida Department of Environmental 

Protection, Tallahassee, FL. 

152Stevenson, R.J., A. Pinowska, and Y.K. Wang. 

2004. Ecological Condition of Algae and Nutrients 

in Florida Springs. Florida Department of 

Environmental Protection, Tallahassee, FL. 

153Pinowska, A., R.J. Stevenson, J.O. Sickman, A. 

Albertin, and M. Anderson. 2007b. Integrated 

interpretation of survey and experimental 

approaches for determining nutrient thresholds for 

macroalgae in Florida Springs: Laboratory 

experiments and disturbance study. Florida 

Department of Environmental Protection, 

Tallahassee, FL. 

154 Gao, X. 2008. Nutrient TMDLs for the Wekiva 

River (WBIDs 2956, 2956A, and 2956C) and Rock 

Springs Run (WBID 2967). Florida Department of 

Environmental Protection, Division of Water 

Resource Management, Tallahassee, FL. 

155Hallas, J.F. and W. Magley. 2008. Nutrient and 

Dissolved Oxygen TMDL for the Suwannee River, 

Santa Fe River, Manatee Springs (3422R), Fanning 

Springs (3422S), Branford Spring (3422J), Ruth 

Spring (3422L), Troy Spring (3422T), Royal Spring 

(3422U), and Falmouth Spring (3422Z). Florida 

Department of Environmental Protection, Bureau of 

Watershed Management, Tallahassee, FL. 

156Niu, X.-F. 2007. Appendix B. Change Point 

Analysis of the Suwannee River Algal Data. In Gao, 

X. 2008. Nutrient TMDLs for the Wekiva River 

(WBIDs 2956, 2956A, and 2956C) and Rock Springs 

Run (WBID 2967). Florida Department of 

Environmental Protection, Division of Water 

Resource Management, Tallahassee, FL. 

designated use can be derived from the 

estimated relationship. In the case of 

Florida, the use of this approach is 

supported by a substantial Floridaspecific database of high quality 

information, sound scientific analysis 

and technical evaluation. 

The effects of nitrogen/phosphorus 

pollution are manifested in lakes in a 

variety of ways and are welldocumented.144 145 146 147 A common 

effect of nitrogen/phosphorus pollution 

in lakes is the over-stimulation of algal 

growth resulting in algal blooms, which 

can cause changes in algal and animal 

assemblages due to adverse changes in 

important water quality parameters 

necessary to support aquatic life. Algal 

blooms can decrease water clarity and 

aesthetics, which in turn can affect the 

suitability of a lake for primary (e.g., 

swimming) and secondary (e.g., boating) 

contact recreation. Algal blooms can 

adversely affect drinking water supplies 

by releasing toxins, interfering with 

disinfection processes, or requiring 

additional treatment. Algal blooms can 

adversely affect biological process by 

decreasing light availability to 

submerged aquatic vegetation (which 

serves as habitat for aquatic life), 

degrading food quality and quantity for 

other aquatic life, and increasing the 

rate of oxygen consumption. 

D. Numeric Criterion for the State of 

Florida’s Springs 

(1) Final Rule 

EPA defines ‘‘spring’’ as a site at 

which ground water flows through a 

natural opening in the ground onto the 

land surface or into a body of surface 

water. This definition is drawn from the 

U.S. Geological Survey, Circular 

1137.148 This definition is not intended 

to include streams that flow in a defined 

channel that have some groundwater 

baseflow component. EPA recognized 

that groundwater-surface water 

interactions in Florida are complex and 

that FDEP will need to make sitespecific determinations about whether 

water is subject to the stream criteria or 

the springs criterion. EPA is 

promulgating the numeric criterion for 

nitrate+nitrite for Florida’s springs 

classified as Class I or III waters under 

Florida law (Section 62–302.400, 

F.A.C.): 

The applicable nitrate (NO3

¥) + Nitrite 

(NO2

¥) is 0.35 mg/L as an annual 

geometric mean, not to be exceeded 

more than once in a three-year period 

(2) Background and Analysis 

(a) Derivation of Nitrate + Nitrite 

Criterion 

In its January proposal, EPA proposed 

a nitrate+nitrite criterion of 0.35 mg/L 

for springs and clear streams that would 

support balanced natural populations of 

aquatic flora and fauna in springs. EPA 

proposed criteria for nitrate+nitrite 

because one of most significant factors 

causing adverse changes in spring 

ecosystems is the pollution of 

groundwater, principally with 

nitrate+nitrite, resulting from human 

land use changes, cultural practices, and 

significant population growth.149 150

EPA based its proposed criterion on 

multiple lines of stressor-response 

evidence, which included controlled, 

laboratory-scale experimental data and 

analysis of field-based data. EPA’s first 

line of evidence is stressor-response 

data from controlled laboratory 

experiments, which studied the growth 

response of algae in springs to different 

concentrations of nitrate+nitrite. EPA 

found in its review of comprehensive 

surveys 151 152 and a study 153 of 29 

Florida springs at over 150 sampling 

sites, conducted on behalf of FDEP over 

three years, that two nuisance algal taxa, 

the cyanobacterium Lyngbya wollei and 

the macroalgae Vaucheria sp., were the 

most commonly occurring taxa. The 

authors of the study conducted 

controlled laboratory experiments, 

which tested the growth response of 

Lyngbya wollei and Vaucheria sp. to 

different doses of nitrate+nitrite. They 

found that Lyngbya wollei and 

Vaucheria sp. growth rates increased in 

response to increased doses of 

nitrate+nitrite and that most of their 

highest growth rates were reached at 

and above 0.23 mg/L nitrate+nitrite. 

EPA interpreted the results from these 

studies as strong empirical evidence of 

a stressor-response relationship between 

nuisance algae and nitrate+nitrite and 

further indicated specific concentrations 

above which undesirable growth of 

nuisance algal may be likely to occur. 

In addition to the laboratory-based 

experimental evidence, EPA reviewed 

information compiled by FDEP in its 

assessment of limits to restore springs 

and protect them from excess algal 

growth.154 155 The second line of 

evidence was based on data collected 

from in-situ algal monitoring and longterm field surveys in rivers FDEP 

considered to exhibit similar aquatic 

conditions to springs (e.g., algal 

communities, water clarity, and 

proportion of flow coming from a 

spring). EPA found additional stressorresponse evidence in an analysis 156

based on over 200 algal samples 

collected from 13 different algal 

monitoring stations along the 

Suwannee, Santa Fe, and Withlacoochee 

Rivers from 1990 to 1998. The analysis 

examined algal growth response over a 

range of nitrate+nitrite concentration. 

Results indicated a sharp increase in 


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157Stevenson, R.J., A. Pinowska, and Y.K. Wang. 

2004. Ecological Condition of Algae and Nutrients 

in Florida Springs. Florida Department of 

Environmental Protection, Tallahassee, FL. 

158 Duarte, C.M. 1995. Submerged aquatic 

vegetation in relation to different nutrient regimes. 

Ophelia: International Journal of Marine Biology 41: 

87–112. 

159Because FL classifications are cumulative, 

Class I waters include protections for aquatic life 

and recreation, in addition to protecting drinking 

water supply use. 

algal abundance and biomass above 0.4 

mg/L nitrate + nitrite. 

EPA concluded the two different lines 

of stressor-response evidence point to a 

nitrate+nitrite concentration of 0.35 mg/ 

L that would prevent excess algal 

growth and be supportive of balanced 

natural populations of aquatic flora and 

fauna in Florida springs. This 

concentration is higher than that 

observed in laboratory-scale 

experiments that may not be closely 

representative of reference spring sites 

in Florida, but lower than the 

concentration that was associated with 

changes in the balance of natural 

populations of aquatic flora and fauna 

observed in an analysis of field data. 

EPA believes a nitrate+nitrite criterion 

set at 0.35 mg/L represents an 

appropriate and reasonable balance of 

the scientific evidence. 

EPA received a number of comments 

regarding EPA’s proposed criterion for 

springs, including concerns that the 

biological responses observed in the 

field were not representative of all 

springs in Florida. EPA disagrees with 

these commenters who suggested that 

the observed effects in the field are not 

sufficient evidence to support numeric 

criteria derivation in springs. The algal 

taxa, Lyngbya sp. and Vaucheria sp., are 

representative taxa found in Florida 

springs. In fact, Lyngbya and Vaucheria 

are the most commonly observed 

macroalgae in Florida springs.157 Thus, 

the Agency considers the biological 

responses of these representative taxa 

observed in the field and in laboratory 

experiments to be ecologically 

meaningful and indicative of an adverse 

biological response to elevated 

nitrate+nitrite concentrations above 0.35 

mg/L. 

EPA also received comment that the 

proposed nitrate+nitrite criterion was 

inappropriately applied to all clear 

streams within the State. After 

considering these comments, EPA 

concluded that clear streams are more 

appropriately addressed as part of the 

regionalized reference approach that is 

supported by a broader range of stream 

monitoring data as discussed above. 

Therefore, EPA has decided not to 

finalize the springs nitrate+nitrite 

criterion in clear streams because EPA 

considers the numeric criteria it is 

finalizing in this rule for streams in the 

five NWRs, which includes clear 

streams, to be adequately protective and 

scientifically defensible. These systems 

will also be protected from excess 

nitrogen from groundwater by the 

nitrate+nitrite criteria applicable in the 

springs that flow into them; thus, 

additional nitrate+nitrite criteria are not 

needed. 

In this final rule, EPA is finalizing 

nitrate+nitrite criterion for springs with 

a magnitude of 0.35 mg/L. For more 

information regarding the springs 

criterion, please refer to EPA’s Final 

Rule TSD for Florida’s Inland Waters, 

Chapter 3: Methodology for Deriving 

U.S. EPA’s Criteria for Springs located 

in the record for this final rule. 

(b) Duration and Frequency 

EPA proposed a nitrate+nitrite 

criterion duration as an annual 

geometric mean with a criterion 

frequency of not to be exceeded more 

than once in three years. EPA also took 

comment on alternative durations, such 

as a monthly geometric mean, and 

alternative frequencies, such as a not to 

be exceeded more than 10% of the time. 

EPA considered that the timescales of 

the algal responses in the laboratory 

experiments (i.e., 21 to 28 days) might 

support a shorter duration over which 

biological response to nitrate+nitrite 

could occur. However, EPA found in its 

review of springs data and information 

that nitrate concentrations can be 

variable from month to month, and this 

intra-annual variability was not 

necessarily associated with impairment 

of the designated use. Therefore, to 

account for intra-annual variability, EPA 

chose to express the nitrate+nitrite 

criterion for springs on an annual basis. 

Comments included a suggestion to 

express the frequency component of the 

criterion as ‘‘not to be exceeded during 

a three year period as a three year 

average.’’ However, EPA is concerned 

that cumulative effects of exposure may 

manifest themselves in shorter periods 

of time than three years. This is because 

springs tend to be clear which provides 

the opportunity for fast growing 

nuisance algal species to quickly utilize 

the excess nitrogen. When nuisance 

algae species grow prolifically, they 

outcompete and replace native 

submerged aquatic vegetation. Thus, 

more frequent exceedances of the 

criterion-magnitude will not support a 

balanced natural population of aquatic 

flora and fauna in springs because 

submerged aquatic vegetation can be 

lost quickly from the effects of 

nitrate+nitrite pollution, but can take 

many years, if not decades, to 

recover.158 For these reasons, EPA is 

finalizing the proposed duration and 

frequency of an annual geometric mean 

not to be exceeded more than once in 

three years. 

E. Applicability of Criteria When Final 

(1) Final Rule 

This final rule is effective 15 months 

after publication in the Federal 

Register, except for the Federal sitespecific alternative criteria (SSAC) 

provision of section 131.43(e), which is 

effective 60 days after publication in the 

Federal Register. This rule will apply in 

addition to any other existing CWAeffective criteria for Class I or Class III 

waters already adopted and submitted 

to EPA by the State (and for those 

adopted and submitted to EPA after May 

30, 2000, approved by EPA). FDEP 

establishes its designated uses through a 

system of classes and Florida waters are 

designated into one of several different 

classes. Class III waters provide for 

healthy aquatic life and safe recreational 

use. Class I waters include all the 

protection of designated uses provided 

for Class III waters, and also include 

protection for designated uses related to 

drinking water supply. See Section 62– 

302.400, F.A.C. Class I and III waters, 

together with Class II waters that are 

designated for shellfish propagation or 

harvesting, comprise the set of Florida 

waters that are assigned designated uses 

that include the goals articulated in 

Section 101(a)(2) of the CWA (i.e. 

protection and propagation of fish, 

shellfish, and wildlife and recreation in 

and on the water).159 Class II waters will 

be covered under EPA’s forthcoming 

rulemaking efforts for estuarine and 

coastal waters. EPA is promulgating 

numeric criteria for lakes and flowing 

waters, consistent with the terms of the 

Agency’s Consent Decree, that Florida 

has designated as Class I or Class III. 

In terms of final rule language, EPA 

has removed regulatory provisions at 40 

CFR 131.43(c)(2)(iii) and 131.43(c)(4)– 

(6) because these criteria (criteria for 

protection of downstream estuarine 

waters, flowing waters in the South 

Florida Region, and estuaries and 

coastal waters) will be included with 

the Agency’s 2011 proposed rulemaking 

for estuarine and coastal waters. For 

water bodies designated as Class I and 

Class III predominately fresh waters, 

EPA’s final numeric criteria will be 

applicable CWA water quality criteria 

for purposes of implementing CWA 

programs, including permitting under 

the NPDES program, as well as 


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160See 40 CFR 131.41(d)(2). 

161FDEP. 2005, January 5. ‘‘Petition to Withdraw 

Florida’s NPDES Authority of March 19, 2004 

Response to EPA Letter of December 8, 2004.’’ Letter 

from George Munson, General Counsel. 

monitoring, assessments, and listing of 

impaired waters based on applicable 

CWA WQS and establishment of 

TMDLs. 

In this final rule, the Agency has also 

deleted proposed regulatory provisions 

at 40 CFR 131.43(d)(2)(i)–(iii) on mixing 

zones, design flow, and listing impaired 

waters. EPA notes that the final criteria 

in this rule are subject to Florida’s 

general rules of applicability in the 

same way and to the same extent as are 

other State-adopted and/or Federallypromulgated criteria for Florida waters. 

(See 40 CFR 131.43(d)(2)). States have 

discretion to adopt policies generally 

affecting the application and 

implementation of WQS. (See 40 CFR 

131.13). There are many applications of 

criteria in Florida’s water quality 

programs. Therefore, EPA believes that 

it is not necessary for purposes of this 

final rule to enumerate each of them, 

nor is it necessary to restate any 

otherwise applicable requirements. This 

broad reference to general rules of 

applicability provides sufficient 

coverage and has been used without 

further elaboration in EPA’s most recent 

criteria promulgation applicable to State 

waters.160 The Agency is also concerned 

that addressing some applications in 

this final regulations and not others may 

create unnecessary and unintended 

questions, confusion, and uncertainty 

about the overall application of 

Florida’s general rules. 

(2) Summary of Major Comments 

Regarding application of criteria, 

several commenters asked EPA to 

provide more detail on how waters 

would be monitored, whether EPA 

would use the rotating basin approach 

that FDEP uses, how EPA would enforce 

the criteria, and how specific entities 

would be affected. In response, EPA 

points out that WQS generally, and 

EPA’s rule specifically, do not specify 

how to achieve those WQS. As 

discussed above, the State of Florida 

will determine how best to meet these 

Federal numeric criteria in a way that 

most effectively meets the needs of its 

citizens and environment. FDEP is the 

primary agency responsible for 

implementing CWA programs in the 

State of Florida. As such, EPA defers to 

FDEP in administering applicable CWA 

programs consistent with the CWA and 

EPA’s implementing regulations. EPA 

has worked closely with the State to 

address nitrogen/phosphorus pollution 

problems in Florida. EPA will continue 

to collaborate with FDEP as the State 

implements EPA’s Federallypromulgated numeric criteria. 

Several commenters asserted that 

Florida would not be able to implement 

EPA’s Federally-promulgated numeric 

criteria without first adopting the 

criteria into State law. EPA does not 

believe that, in order to implement 

EPA’s Federally-promulgated numeric 

criteria, FDEP is required to adopt EPA’s 

rule into State law. EPA’s numeric 

criteria for Florida’s lakes and flowing 

waters will be effective for CWA 

purposes 15 months after publication of 

the final criteria in the Federal Register 

and will apply in addition to any other 

existing CWA-effective criteria for Class 

I or Class III waters already adopted by 

the State and submitted to EPA (and for 

those adopted after May 30, 2000, 

adopted and submitted by FDEP and 

approved by EPA). FDEP retains the 

authority to move forward with its own 

rulemaking process at any time to 

establish State numeric criteria and to 

submit such criteria to EPA for review 

and approval under section 303(c) of the 

CWA. If FDEP does not adopt State 

numeric criteria, the Department retains 

its current authority to implement 

Federally promulgated criteria through 

the State’s narrative or ‘‘free from’’ 

criteria. FDEP’s General Counsel has 

confirmed, in a 2005 letter to EPA that 

the State’s water quality criteria 

regulations for surface waters, set out at 

Section 62–302.500, F.A.C., provide 

authority for the Department to address 

and implement EPA promulgated 

criteria in CWA programs.161

Several commenters suggested that 

EPA incorporate water quality targets 

from adopted and approved TMDLs as 

site-specific criteria (SSAC) for specific 

waters in lieu of the more broadly 

applicable criteria promulgated by EPA. 

These commenters asserted that the 

TMDL values better reflect site-specific 

needs and were already serving as the 

basis for many pollutant reduction 

actions, including Basin Management 

Action Plans (BMAPs). Commenters 

expressed concern that actions to 

implement the TMDLs would be 

curtailed or delayed because of the 

uncertainty whether additional 

reductions might be required, and that 

both the Federal SSAC process 

(described in Section V.C of this notice) 

and use attainability analysis (UAA)/ 

variance process would be too 

burdensome and time-consuming to be 

effective alternatives. Similarly, some 

commenters requested that specific 

restoration projects be exempted from 

EPA’s criteria or that EPA employ a 

process for delaying application of the 

criteria where a water is under study. 

EPA’s position is that EPA-established 

or approved TMDLs may provide 

sufficient information to support a sitespecific alternative criterion, but that 

such a demonstration should be made 

after considering and taking into 

account any new relevant information 

available, including but not limited to 

the substantial analysis and data 

considered and made a part of the 

record for this final rule. For this reason, 

EPA considers the Federal SSAC 

procedure to be the appropriate 

mechanism for determining whether 

any specific TMDL target should be 

adopted as a SSAC. For restoration 

projects or waters under study, a Stateissued variance may also be an 

appropriate vehicle for regulatory 

flexibility. 

Several commenters requested 

clarification regarding the effect of 

EPA’s Federally-promulgated numeric 

criteria on existing TMDLs. A TMDL is 

established at levels necessary to attain 

and maintain ‘‘applicable narrative and 

numerical water quality standards.’’ (See 

40 CFR 130.7(c)(1)). A TMDL addressing 

a narrative WQS requires translating the 

narrative WQC into a numeric water 

quality target (e.g., a concentration). 

TMDLs are not implemented directly 

but through other programs such as 

NPDES permitting and non-point source 

programs. For example, a NPDES 

permitting authority must ensure at the 

time of permit issuance that WQBELs 

are consistent with the assumptions and 

requirements of any available wasteload 

allocation (WLA) for that discharge 

contained in a TMDL, as well as derive 

from and comply with all applicable 

WQS. (See 40 CFR 122.44(d)(1)(vii)(A) 

and (B)). 

Some existing TMDLs translate the 

same portion of Florida’s narrative 

criterion, Subsection 62–302.530(47)(b), 

F.A.C., as EPA has translated to derive 

its numeric criteria, e.g. no imbalance in 

natural populations of aquatic flora and 

fauna. The permitting authority must 

ensure that any permit issuance or reissuance include WQBELs that are as 

stringent as necessary to meet the 

promulgated numeric criteria, pursuant 

to CWA section 301(b)(1)(C) and 40 CFR 

122.44(d)(1). These existing TMDLs will 

likely include information that is 

relevant and helpful in evaluating 

necessary discharge limitations, such as 

consideration of other sources of the 

pollutant and hydrodynamics of the 

waterbody. EPA recommends that 

existing TMDLs that are based on 

translation of Subsection 62– 

302.520(47)(b), F.A.C. (‘‘no imbalance in 

natural population of aquatic flora and 


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fauna’’), undergo a two-part evaluation. 

The first step is to assess whether the 

waterbody is still, in fact, water qualitylimited (impaired) using the new 

numeric WQC. If the waterbody is still 

water quality-limited, then a second 

evaluation should be conducted to 

determine whether the existing TMDL 

based on the narrative is sufficient to 

meet the new numeric criterion, and in 

turn, whether or not it may be 

appropriate to revise the TMDL. The 

State may also wish to pursue 

submitting the TMDL water quality 

target derived by translating the 

narrative for determination as a Federal 

SSAC. 

Other existing TMDLs translate 

another part of Florida’s narrative 

nutrient criterion, Subsection 62– 

302.530(47)(a) F.A.C. This provision 

provides that nitrogen/phosphorus 

pollution shall be limited so as to 

prevent violation of another Florida 

WQS. Where a TMDL water quality 

target was developed as a translation of 

this part of Florida’s narrative nutrient 

criterion (for example, that amount of 

nitrogen/phosphorus that would not 

cause excursions of Florida’s dissolved 

oxygen WQS), the appropriate WQBEL 

is the more stringent result of applying 

the TMDL WLA or the promulgated 

numeric criteria. 

It is important to keep in mind that no 

TMDL will be rescinded or invalidated 

as a result of this final rule, nor does 

this final rule have the effect of 

withdrawing any prior EPA approval of 

a TMDL in Florida. Neither the CWA 

nor EPA regulations require TMDLs to 

be completed or revised within any 

specific time period after a change in 

water quality standards occurs. TMDLs 

are typically reviewed as part of States’ 

ongoing water quality assessment 

programs. Florida may review TMDLs at 

its discretion based on the State’s 

priorities, resources, and most recent 

assessments. NPDES permits are subject 

to five-year permit cycles, and in certain 

circumstances are administratively 

continued beyond five years. In 

practice, States often prioritize their 

administrative workload in permits. 

This prioritization could be coordinated 

with TMDL review. 

EPA-established or approved TMDLs 

may provide sufficient information to 

support a site-specific alternative 

criterion (SSAC). The SSAC path is one 

that local governments or businesses 

may want to pursue where they desire 

assurance that the TMDL will become 

the applicable numeric criteria in 

advance of the State’s review of the 

TMDL or where substantial investments 

in pollution controls are predicated on 

water quality based effluent limits, and 

local governments or businesses need 

long-term planning certainty before 

making these investments. The 

demonstrations supporting SSAC 

requests for TMDLs should reflect any 

new relevant information that has 

become available since the TMDL was 

developed, including but not limited to 

the substantial analysis and data 

considered and made a part of the 

record for this final rule. For this reason, 

EPA considers the Federal SSAC 

procedure to be the appropriate 

mechanism for determining whether 

any specific TMDL target should replace 

the otherwise applicable numeric 

criteria in this final rule. EPA will work 

cooperatively with entities requesting 

SSAC to expedite consideration of 

TMDL targets and associated TN and/or 

TP levels as Federal SSAC for purposes 

of this final rule. As explained in the 

preamble to the final rule, EPA has 

delayed the effective date of its numeric 

criteria for 15 months. EPA encourages 

any entity wishing to have EPA adopt a 

particular TMDL target as a SSAC to 

submit such TMDL to EPA for 

consideration as a SSAC as soon as 

possible during these 15 months. When 

submitting such requests to EPA, such 

entity must copy FDEP so that FDEP 

may provide any comments it has to 

EPA. EPA would then review the SSAC 

application and prepare the SSAC for 

public notice once this final rule takes 

effect. Following this process, the TMDL 

target, if scientifically and technically 

justified, could replace the otherwise 

applicable numeric criteria within a 

very short period of time after this final 

rule takes effect. Following any such 

establishment of site-specific numeric 

criteria, the State of Florida may review 

and/or revise the TMDL at its discretion 

based on the changed criteria and the 

State’s priorities, resources, and most 

recent assessments. EPA is still required 

to approve any changes to a previously 

approved TMDL. 

EPA is extending the effective date of 

this rule, with the exception of the sitespecific alternative criteria provision for 

reasons discussed below, for 15 months 

to allow time for the Agency to work 

with stakeholders and FDEP on 

important implementation issues and to 

help the public and all affected parties 

better understand the final criteria and 

the bases for those criteria. EPA 

solicited comment on the rule’s 

proposed effective date in the preamble 

to the proposed rule (75 FR 4216 

(January 26, 2010)) and received many 

comments requesting that EPA delay the 

effective date of the final criteria. A 

range of commenters suggested delayed 

effective dates from several months to 

several years, including linking the 

effective date of this rule with the 

forthcoming estuaries and coastal waters 

rule to allow closer coordination of the 

related parts of the two rulemakings. 

EPA does not agree with some 

commenters that such an extensive 

delay is necessary. However, EPA does 

believe, as discussed below, that these 

criteria present a unique opportunity for 

substantial nitrogen and phosphorus 

loadings reductions in the State that 

would be greatly facilitated and 

expedited by strongly coordinated and 

well-informed stakeholder engagement, 

planning, and support before a rule of 

this significance and broad scope begins 

to take effect and be implemented 

through the State’s regulatory programs. 

EPA believes that it is critical, before 

the rule becomes effective, to engage 

and support, in full partnership with 

FDEP, the general public, stakeholders, 

local governments, and sectors of the 

regulated community across the State in 

a process of public outreach, education, 

discussion, and constructive planning. 

EPA solicited comment on the proposed 

rule in January 2010 and has carefully 

considered those comments, which 

numbered more than 22,000, in 

developing the final rule. However, the 

nature of rule development has kept 

EPA from publicly discussing the 

contents of the final rule until the rule 

development process, itself, was 

complete. An investment in outreach, 

information, coordination, technical 

assistance and planning following this 

action may result in far more effective, 

expeditious, and ultimately effective 

implementation of appropriate and 

badly needed nutrient pollution 

reduction measures leading to public 

health and environmental 

improvements, the goals of this rule. 

EPA recognizes that in order for FDEP 

to effectively implement the final 

criteria for nutrients, it needs to plan 

how to best address the criteria in State 

programs such as the permits, 

waterbody assessment and listing, and 

TMDL programs. The State may need to 

develop implementation plans and 

guidance for affected State regulatory 

programs, train employees, and educate 

the public and regulated communities. 

EPA will work with FDEP as a partner 

over the next 15 months as FDEP takes 

the steps necessary to implement the 

new standards in an orderly manner. 

Moreover, EPA believes it would be 

useful and beneficial to have 

discussions with State and local 

officials, organizations of interested 

parties, and with the general public to 

explain the final rule, the bases for that 


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162NASS. 2009a. 2007 Census of agriculture 

Florida State and county data, Volume 1, 

Geographic Area Series, Part 9, AC–07–A–9, 

Updated December 2009, National Agricultural 

Statistics Service, U.S. Department of Agriculture, 

Washington, DC. http://www.agcensus.usda.gov/ 

Publications/2007/Full_Report/ 

Volume_1,_Chapter_1_State_Level/Florida/flv1.pdf 

(retrieved July 15, 2010). 

NASS. 2009. 2009 State agriculture overview— 

Florida. U.S. Department of Agriculture, National 

Agricultural Statistics Service, Washington, DC, 

http://www.nass.usda.gov/Statistics_by_State/ 

Ag_Overview/AgOverview_FL.pdf (retrieved June 

17, 2010). 

rule, and respond to implementation 

questions and concerns. 

Several stakeholder groups have 

provided comments about particular 

implementation issues that will require 

time to address before effective 

implementation of the final rule can be 

achieved. Florida has a unique local 

government administration structure 

that includes county, municipal, and 

special districts, all which have 

overlapping authorities with respect to 

managing water resources. The special 

districts provide water resource 

management oversight of flood control 

and water supply services. These 

multiple layers of government 

authorities will require time to 

coordinate responsibilities. An 

additional concern for local 

governments is their budgeting process. 

Most local governments operate on a 

fiscal year cycle of October to 

September; thus they have recently 

begun a new fiscal year. These local 

governments engage in multi-year 

budget planning and have already begun 

laying the budget foundations for up to 

five successive years. EPA recognizes 

that Florida’s agricultural community 

has implemented a variety of best 

management practices (BMPs) that are 

effective at reducing nitrogen and 

phosphorus pollution from farms. 

However, Florida’s agriculture industry 

is composed of a large number of small 

farms (about 17,000) that have average 

annual sales of less than $10,000 each, 

and most do not receive any form of 

government assistance.162 EPA 

anticipates that the Natural Resource 

Conservation Service and the University 

of Florida/Institute of Food and 

Agricultural Sciences Extension will 

need time to educate those not currently 

enrolled in nutrient management and 

BMP programs to control nutrient 

runoff. 

A delayed effective date of 15 months 

for the criteria will also provide time for 

interested parties to pursue site-specific 

alternative criteria (SSAC) for a given 

waterbody. EPA’s final rule and 

associated preamble describe the 

process by which any entity may seek 

a SSAC. A decision to seek a SSAC 

could not be made, however, until 

interested parties know what the 

applicable criteria would be. The 

Federal SSAC portion of the rule, 

§ 131.43(e), goes into effect 60 days after 

publication of this rule to allow this 

important work to proceed in advance 

of the effective date for the remaining 

provisions of the rule. During the 15 

months before the criteria become 

effective, parties may evaluate the final 

criteria, decide whether they want to 

seek a SSAC, and, if so, submit their 

SSAC application materials to EPA, 

copying FDEP. EPA could then review 

the application, and if complete, public 

notice the application and technical 

support document pursuant to the SSAC 

provision in the final rule. If, after 

reviewing public comment, EPA 

believes that the SSAC application 

meets the requirements of this rule, EPA 

could determine that such SSAC apply 

to the specific waterbody in lieu of the 

criteria in the final rule, even before the 

criteria in the final rule become effective 

due to the earlier effective date of the 

SSAC provision. 

EPA believes that the 15-month 

period of time between publication in 

the Federal Register and the effective 

date of the criteria will ultimately result 

in attainment of the criteria in an overall 

shorter period of time. As EPA 

frequently points out in its guidance 

and training materials, criteria are not 

‘‘self-implementing’’, that is, it takes 

knowledgeable and experienced 

professionals to effectively and properly 

employ the criteria in monitoring and 

assessment programs, permit limit 

derivation and expression, nonpoint 

source (NPS) control strategies, and 

other program applications. Without 

time to develop procedures, there is the 

risk of ineffective implementation that 

will not meet the underlying objective 

of this action—to restore and protect 

Florida’s waters from harm caused by 

nitrogen and phosphorus pollution. 

Well designed and mapped out NPS 

control strategies, in particular, will be 

critical to gain stakeholder trust and 

participation. 

EPA wishes to actively engage in 

partnership with FDEP to support 

FDEPs implementation of these new 

standards, for example by considering 

applications for site-specific alternative 

criteria. After careful consideration of 

time requirements for critical steps, 

along with recognition of important 

planning and accounting mechanisms 

such as fiscal years, and local and 

county meeting and planning cycles, 

EPA has determined that a 15-month 

time period is both reasonable and will 

allow time for important 

implementation activities to take place. 

This 15-month period will allow for a 

four-month education and outreach 

rollout to cover the major interest 

sectors and geographic locations 

throughout the State of Florida; a threemonth period of training and guidance 

concurrent with data synthesis and 

analysis to support potential SSAC 

development; a two-month public 

comment and response period to allow 

development of effective guidance, 

training and possible workshops to run 

concurrent with SSAC submittals; a 

three-month period for finalizing 

guidance materials along with 

development of rollout strategies (e.g., 

for NPS control) concurrent with notice 

and comment of SSAC; and finally a 3- 

month period for statewide education 

and training on guidance and 

contingency planning. In short, the 15 

months before the criteria become 

effective will ensure application of 

programs to achieve criteria in a manner 

that makes the most efficient use of 

limited resources and gains the broadest 

possible support for timely and effective 

action upon reaching the effective date 

of the criteria. 

IV. Under what conditions will Federal 

standards be withdrawn? 

Under the CWA, Congress gave States 

primary responsibility for developing 

and adopting WQS for their navigable 

waters. (See CWA section 303(a)-(c)). 

Although EPA is promulgating numeric 

criteria for lakes and springs throughout 

Florida and flowing waters outside the 

South Florida Region, Florida continues 

to have the option to adopt and submit 

to EPA numeric criteria for the State’s 

Class I and Class III waters consistent 

with CWA section 303(c) and 

implementing regulations at 40 CFR part 

131. 

Pursuant to 40 CFR 131.21(c), EPA’s 

promulgated WQS are applicable WQS 

for purposes of the CWA until EPA 

withdraws those Federally-promulgated 

WQS. Withdrawing the Federal 

standards for the State of Florida would 

require rulemaking by EPA pursuant to 

the requirements of the Administrative 

Procedure Act (5 U.S.C.551 et seq.). EPA 

would undertake such a rulemaking to 

withdraw the Federal criteria if and 

when Florida adopts and EPA approves 

numeric criteria that fully meet the 

requirements of section 303(c) of the 

CWA and EPA’s implementing 

regulations at 40 CFR part 131. 


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Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 75789 

163Water Quality Standards Regulation, 40 CFR 

part 131: Advance notice of proposed rulemaking. 

USEPA FR 63:129 (July 7, 1998). p. 36741–36806. 

164 In re Bethlehem Steel Corporation, General 

Counsel Opinion No. 58. March 29, 1977 (1977 WL 

28245 (E.P.A. G.C.)). 

165USEPA. 1994. Water Quality Standards 

Handbook: Second Edition. EPA–823–B–94–005a. 

U.S. Environmental Protection Agency, Office of 

Water, Washington, DC. 

V. Alternative Regulatory Approaches 

and Implementation Mechanisms 

A. Designating Uses 

(1) Background and Analysis 

Under CWA section 303(c), States 

shall adopt designated uses after taking 

‘‘into consideration the use and value of 

water for public water supplies, 

protection and propagation of fish, 

shellfish, and wildlife, recreation in and 

on the water, agricultural, industrial and 

other purposes including navigation.’’ 

Designated uses ‘‘shall be such as to 

protect the public health or welfare, 

enhance the quality of water and serve 

the purposes of [the CWA].’’ (See CWA 

section 303(c)(2)(A)). EPA’s regulation 

at 40 CFR 131.3(f) defines ‘‘designated 

uses’’ as ‘‘those uses specified in water 

quality standards for each waterbody or 

segment whether or not they are being 

attained.’’ A ‘‘use’’ is a particular 

function of, or activity in, waters of the 

United States that requires a specific 

level of water quality to support it. In 

other words, designated uses are a 

State’s concise statements of its 

management objectives and 

expectations for each of the individual 

surface waters under its jurisdiction. 

In the context of designating uses, 

States often work with stakeholders to 

identify a collective goal for their waters 

that the State intends to strive for as it 

manages water quality. States may 

evaluate the attainability of these goals 

and expectations to ensure they have 

designated appropriate uses. (See 40 

CFR 131.10(g)). Consistent with CWA 

sections 101(a)(2) and 303(c)(2)(A), 

EPA’s implementing regulations specify 

that States adopt designated uses that 

provide water quality for the protection 

and propagation of fish, shellfish, and 

wildlife and for recreation in and on the 

water, wherever attainable. (See 40 CFR 

131.10). Where States do not designate 

those uses, or remove those uses, they 

must demonstrate that such uses are not 

attainable consistent with the use 

attainability analysis (UAA) provisions 

of 40 CFR 131.10, specifically 131.10(g). 

States may determine, based on a UAA, 

that attaining a designated use is not 

feasible and propose to EPA to change 

the use to something that is attainable. 

This action to change a designated use 

must be completed in accordance with 

EPA regulations. (See 40 CFR 131.10(g) 

and (h)). In implementing these 

regulations, EPA allows grouping waters 

together in a watershed in a single UAA, 

provided that there is site-specific 

information to show how each 

individual water fits into the group in 

the context of any single UAA and how 

each individual water meets the 

applicable requirements of 40 CFR 

131.10(g). 

EPA’s final numeric criteria for lakes 

and flowing waters apply to those 

waters designated by FDEP as Class I 

(Potable Water Supplies) or Class III 

(Recreation, Propagation and 

Maintenance of a Healthy, WellBalanced Population of Fish and 

Wildlife). If Florida removes either the 

Class I and/or Class III designated use 

for any particular waterbody ultimately 

affected by this rule, and EPA finds that 

removal to be consistent with CWA 

section 303(c) and regulations at 40 CFR 

part 131, then the Federallypromulgated numeric criteria would not 

apply to that waterbody because it 

would no longer be designated Class I 

or III. Instead, any criteria associated 

with the newly designated use would 

apply to that waterbody. 

(2) Summary of Major Comments 

Many commenters took the 

opportunity to emphasize the need to 

adhere to the regulations governing the 

process of modifying or removing a 

designated use. Some commenters 

suggested that the process to change a 

designated use is extremely difficult. 

EPA’s experience is that UAAs may 

range from simple to complex, 

depending on a variety of factors, such 

as the type of waterbody involved, the 

size of the segment, the use being 

changed, the relative degree of change 

proposed for the designated use, the 

presence of unique ecological habitats, 

and the level of public interest/ 

involvement in the designated use 

decision. EPA agrees that, while a UAA 

is being conducted, the current 

designated use and corresponding 

criteria remain in place. In the case of 

Florida’s Class I and Class III flowing 

waters and lakes, EPA’s promulgated 

numeric criteria will remain the 

applicable WQS for CWA purposes, 

including assessments, listings, TMDL 

development and the issuance of 

NPDES permits, unless and until the 

State adopts revised designated uses 

(with different associated criteria) that 

are submitted to and approved by EPA 

under CWA section 303(c). 

B. Variances 

(1) Final Rule 

For purposes of this rule, EPA is 

promulgating criteria that apply to use 

designations that Florida has already 

established. EPA believes that the State 

has sufficient authority to use its 

currently EPA-approved variance 

procedures with respect to a temporary 

modification of its Class I or Class III 

uses as it pertains to any Federallypromulgated criteria. For this reason, 

EPA did not propose and is not 

promulgating an alternative Federal 

variance procedure. 

(2) Background and Analysis 

A variance is a temporary 

modification to the designated use and 

associated water quality criteria that 

would otherwise apply to the receiving 

water.163 Variances constitute new or 

revised WQS subject to the substantive 

requirements applicable to removing a 

designated use.164 Thus, a variance is 

based on the same factors, set out at 40 

CFR 131.10(g), that are required to 

revise a designated use through a UAA. 

Typically, variances are time-limited 

(e.g., three to five years), but renewable. 

Temporarily modifying the designated 

use for a particular waterbody through 

a variance process allows a State to limit 

the applicability of a specific criterion 

to that water and to identify an 

alternative designated use and 

associated criteria to be met during the 

term of the variance. A variance should 

be used instead of removal of a use 

where the State believes the standard 

can be attained at some point in the 

future. By maintaining the designated 

use for all other criteria and dischargers, 

and by specifying a point in the future 

when the designated use will be fully 

applicable in all respects, the State 

ensures that further progress will be 

made in improving water quality and 

attaining the standard. A variance may 

be written to address a specified 

geographic area, a specified pollutant or 

pollutants, and/or a specified pollutant 

source. All other applicable WQS not 

specifically modified by the variance 

would remain applicable (e.g., any other 

criteria adopted to protect the 

designated use). State variance 

procedures, as part of State WQS, must 

be consistent with the substantive 

requirements of 40 CFR part 131. Each 

variance, as a revised WQS, must be 

submitted to EPA for review pursuant to 

CWA section 303(c). A variance allows, 

among other things, NPDES permits to 

be written such that reasonable progress 

is made 165 toward attaining the 

underlying standards for affected waters 

without violating section 402(a)(l) of the 

Act, which requires that NPDES permits 


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75790 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

166See 40 CFR 131.33(a)(3), 40 CFR 131.34(c), 40 

CFR 131.36(c)(3)(iii), 40 CFR 131.38(c)(2)(v), 40 

CFR 131.40(c). 

must meet the applicable WQS. (See 

CWA section 301(b)(1)(C)). 

(3) Summary of Major Comments 

In response to comments, EPA agrees 

that variances could be adopted on a 

multiple-discharger basis and can be 

renewed so long as the State and EPA 

conclude that such variances are 

consistent with the CWA and 

implementing regulations. In this 

regard, EPA allows grouping waters 

together in a watershed in a single 

variance application, provided that 

there is site-specific information to 

show how each individual water fits 

into the group in the context of any 

single variance and how each individual 

water meets the applicable requirements 

of 40 CFR 131.10(g). EPA disagrees that 

Florida law, at 403.201(2), F.S., 

prohibits the State from issuing 

variances for waters affected by the 

Federally-promulgated numeric criteria. 

Florida law at 403.201(2), F.S., provides 

that a variance may not be granted that 

would result in State requirements that 

are less stringent than a comparable 

Federal provision or requirement. As 

discussed above, a variance is a 

temporary modification to the 

designated use and thus to the 

associated water quality criteria that 

would otherwise apply to the receiving 

water. EPA’s Federal rule, however, 

does not promulgate or revise any 

Florida designated uses. EPA’s criteria 

are intended to protect the Class I and 

Class III designated uses that Florida 

already has in place. EPA’s criteria do 

not apply where and when the use is 

something other than Class I or Class III, 

as would be the case for a variance. 

Rather, Florida would establish 

alternative criteria associated with the 

variance. Any variance would constitute 

a new or revised WQS subject to EPA 

review and approval pursuant to section 

303(c) of the CWA. 

C. Site-Specific Alternative Criteria 

(1) Final Rule 

EPA believes that there is benefit in 

establishing a specific procedure in the 

Federal rule for EPA adoption of Federal 

site-specific alternative criteria (SSAC) 

for the numeric chlorophyll a, TN, TP, 

and nitrate+nitrite criteria in this rule. 

In this rulemaking, EPA is promulgating 

a procedure whereby the Regional 

Administrator, Region 4, may establish 

a SSAC after providing for public 

comment on the proposed SSAC and the 

supporting documentation. (See 40 CFR 

131.43(e)). This procedure allows any 

entity, including the State, to submit a 

proposed Federal SSAC directly to EPA 

for the Agency’s review and assessment 

as to whether an adjustment to the 

applicable Federal numeric criteria is 

appropriate and warranted. The Federal 

SSAC process is separate and distinct 

from the State’s SSAC processes in its 

WQS. 

The Federal SSAC procedure allows 

EPA to determine that a revised sitespecific chlorophyll a, TN, TP, or nitrate 

+ nitrite numeric criterion should apply 

in lieu of the generally applicable 

criteria promulgated in this final rule 

where that SSAC is demonstrated to be 

protective of the applicable designated 

use(s). The promulgated procedure 

provides that EPA will solicit public 

comment on its determination. Because 

EPA’s rule establishes this procedure, 

implementation of this procedure does 

not require withdrawal of Federallypromulgated criteria for affected water 

bodies for the Federal SSAC to be 

effective for purposes of the CWA. EPA 

has promulgated similar procedures for 

EPA granting of variances and SSACs in 

other Federally-promulgated WQS.166

EPA is aware of concerns expressed 

by some commenters that a waterbody 

may exceed the numeric criteria in this 

rule and still meet Florida’s designated 

uses related to recreation, public health, 

and the propagation and maintenance of 

a healthy, well-balanced population of 

fish and wildlife. EPA recognizes that 

there may be certain situations where 

additional, new, or more specific data 

related to the local conditions or biology 

of a particular waterbody may well 

support an alternate site-specific 

numeric criteria which may 

appropriately be more (or less) stringent 

than the criteria in this final rule in 

order to ensure maintenance of instream 

designated uses and protection of 

downstream waters. EPA believes that 

the SSAC process is an appropriate 

mechanism to address such situations 

and is committed to acting on Federal 

SSAC applications intended to address 

such situations as expeditiously as 

possible. 

The process for obtaining a Federal 

SSAC includes the following steps. 

First, an entity seeking a SSAC compiles 

the supporting data, conducts the 

analyses, develops the expression of the 

criterion, and prepares the supporting 

documentation demonstrating that 

alternative numeric criteria are 

protective of the applicable designated 

use. The ‘‘entity’’ may be the State, a city 

or county, a municipal or industrial 

discharger, a consulting firm acting on 

a behalf of a client, or any other 

individual or organization. The entity 

requesting the SSAC bears the burden of 

demonstrating that any proposed SSAC 

meets the requirements of the CWA and 

EPA’s implementing regulations, 

specifically 40 CFR 131.11. Second, if 

the entity is not the State, the entity 

must provide notice of the proposed 

SSAC to the State, including all 

supporting documentation so that the 

State may provide comments on the 

proposal to EPA. Third, the Regional 

Administrator will evaluate the 

technical basis and protectiveness of the 

proposed SSAC and decide whether to 

publish a public notice and take 

comment on the proposed SSAC. The 

Regional Administrator may decide not 

to publish a public notice and instead 

return the proposal to the entity 

submitting the proposal, with an 

explanation as to why the proposed 

SSAC application did not provide 

sufficient information for EPA to 

determine whether it meets CWA 

requirements or not. If EPA solicits 

public comment on a proposed SSAC, 

upon review of comments, the Regional 

Administrator may determine that the 

Federal SSAC is appropriate to account 

for site-specific conditions and make 

that determination publicly available 

together with an explanation of the basis 

for the decision. The Regional 

Administrator may also determine that 

the Federal SSAC is not appropriate and 

make that determination publicly 

available together with an explanation 

of the basis for the decision. 

To successfully develop a Federal 

SSAC for a given lake, stream, or spring, 

a thorough analysis is necessary that 

indicates how designated uses are being 

supported both in the waterbody itself 

and in downstream water bodies at 

concentrations of either TN, TP, 

chlorophyll a, or nitrate+nitrite that are 

either higher or lower than the 

Federally-promulgated applicable 

criteria. This analysis should have 

supporting documentation that consists 

of examining both indicators of longerterm response to multiple stressors, 

such as benthic macroinvertebrate 

health as determined by Florida’s 

Stream Condition Index (SCI), and 

indicators of shorter-term response 

specific to nitrogen/phosphorus 

pollution, such as periphyton algal 

thickness or water column chlorophyll 

a concentrations. To pursue a Federal 

SSAC on a watershed-wide basis, the 

same types of procedures that EPA used 

to develop the Federally promulgated 

applicable criteria can be used with 

further refinements to the categorization 

of water bodies. For example, an entity 

could derive alternative instream 

protective TP and/or TN values using 


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Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 75791 

167USEPA. 2000b. Nutrient Criteria Technical 

Guidance Manual: Rivers and Streams. EPA–822– 

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

Office of Water, Washington, DC. 

168EPA’s criteria allow for one-time site-specific 

modifications to the promulgated lake criteria, 

without requiring those modifications to be 

submitted as SSAC. See 40 CFR 131.43(c)(1)(ii) and 

Section III.C(2)(e). 

EPA’s approach by further subdelineating the Nutrient Watershed 

Regions and providing the 

corresponding data, analysis and 

documentation to support derivation of 

an alternative criteria that is protective 

of the designated use that applies both 

to the smaller watershed regions as well 

as to downstream waters. This type of 

refined reference condition approach is 

described in EPA guidance manuals 167

and would be consistent with methods 

used to develop the Federallypromulgated criteria for Florida. In 

developing either a site-specific or 

watershed-wide Federal SSAC, it is 

necessary to ensure that values allowed 

in an upstream segment as a result of a 

SSAC provide for the attainment and 

maintenance of the WQS of downstream 

waters. It will be important to examine 

a stream system on a broader basis to 

ensure that a SSAC established for one 

segment does not result in adverse 

effects in nearby segments or 

downstream waters, such as a 

downstream lake. 

This rule specifically identifies four 

approaches for developing SSAC. The 

first two approaches are replicating the 

approaches EPA used to develop stream 

and lake criteria, respectively, and 

applying these methods to a smaller 

subset of waters. The third approach for 

developing SSAC is to conduct a 

biological, chemical, and physical 

assessment of waterbody conditions. 

The fourth approach for developing 

SSAC is a general provision for using 

another scientifically defensible 

approach that is protective of the 

designated use. The first two 

approaches for developing SSAC 

replicate EPA’s methods in deriving the 

stream and lake criteria set out in this 

final rule. To understand the necessary 

steps in this analysis, interested parties 

should refer to the complete 

documentation of these methods in the 

materials included in the rule docket. 

The third approach for developing 

SSAC is to conduct a biological, 

chemical, and physical assessment of 

waterbody conditions. This is a more 

general approach than the replication 

approaches and would need additional 

detail and description of supporting 

rationale in the documentation 

submitted to EPA. The components of 

this approach could include, but not be 

limited to, evaluation of benthic 

macroinvertebrate health using the 

Stream Condition Index (SCI), presence 

or absence of native flora and fauna, 

chlorophyll a concentrations or 

periphyton density, average daily 

dissolved oxygen fluctuation, organic 

versus inorganic components of total 

nitrogen, habitat assessment, and 

hydrologic disturbance. This approach 

could apply to any waterbody type, with 

specific components of analysis tailored 

for the situation. The fourth approach 

for developing SSAC is a general 

provision for using another 

scientifically defensible approach that is 

protective of the designated use. This 

provision allows applicants to make a 

complete demonstration to EPA using 

methods not otherwise described in the 

rule or its statement of basis, consistent 

with 40 CFR 131.11(b)(1)(iii). This 

approach could potentially include use 

of mechanistic models or other data and 

information. 

(2) Background and Analysis 

A SSAC is an alternative value to 

criteria set forth in this final rule that 

would be applied on a watershed, areawide, or water-body specific basis that 

meets the regulatory test of protecting 

the instream designated use, having a 

basis in sound science, and ensuring the 

protection and maintenance of 

downstream WQS. SSAC may be more 

or less stringent than the otherwise 

applicable Federal numeric criteria. In 

either case, because the SSAC must 

protect the same designated use and 

must be based on sound science (i.e., 

meet the requirements of 40 CFR 

131.11(a)), there is no need to modify 

the designated use or conduct a UAA. 

A SSAC may be appropriate when 

further scientific data and analyses can 

bring added precision or accuracy to 

express the necessary level or 

concentration of chlorophyll a, TN, TP, 

and/or nitrate+nitrite that protects the 

designated use for a particular 

waterbody. 

(3) Summary of Major Comments 

Many commenters expressed support 

for the concept of EPA’s proposed SSAC 

procedure, although many also 

expressed concerns about the viability, 

requirements, expense, and time 

associated with the process. In EPA’s 

proposed rule, the SSAC process was to 

be initiated by the State submitting a 

request to EPA. Many commenters were 

confused about the relationship between 

the Federal SSAC process and the 

State’s Type 1 and Type 2 SSAC 

processes, and how the processes relate 

for purposes of the Federal rule. The 

Federal SSAC process is separate and 

independent from the State SSAC 

processes. A Federal SSAC is 

established by the Regional 

Administrator of EPA Region 4 after due 

notice and comment from the public. To 

resolve this confusion, and to provide a 

more direct means for entities other 

than the State to initiate the SSAC 

process, EPA’s final rule provides that 

any entity may submit a request for a 

SSAC directly to the Regional 

Administrator. The final rule adds a 

requirement that entities submit 

proposed SSAC and supporting 

materials to the State at the same time 

those materials are submitted to EPA to 

ensure the State has the opportunity to 

submit comments to EPA. 

As several commenters have pointed 

out, Florida WQS regulations currently 

do not authorize the State to adopt a 

SSAC as State WQS except where 

natural conditions are outside the limits 

of broadly applicable criteria 

established by the State (Section 62– 

302.800, F.A.C.). However, the State 

may choose to be the entity that submits 

a SSAC request to EPA under the 

Federal process described above and set 

forth at 40 CFR 131.43(e). There is no 

requirement that the State go through its 

own State-level Type 1 or Type 2 SSAC 

process before submitting a proposed 

SSAC to EPA for consideration under 

this rule. 

Commenters included suggestions for 

specific approaches for developing 

SSAC as well as an ‘‘expedited’’ process 

for determination as a Federal SSAC. 

EPA agrees that many of the suggested 

approaches have merit for purposes of 

developing SSAC, and has adapted 

many of the suggestions to provide more 

information on approaches that would 

meet the general requirements for 

protective criteria. Many of the 

comments regarding an ‘‘expedited’’ 

process suggested a process where 

SSAC become effective automatically, 

without need for EPA review and 

approval. With the exception of State 

adjustment of lake criteria within a very 

specific and limited range accompanied 

by a specified data set and calculation 

as discussed in Section III.C(2)(e) above, 

the Agency does not agree with the view 

that criteria established in this rule can 

be revised without documentation and 

public notice and comment process as 

outlined above.168 Another commenter 

asked about the potential to develop a 

SSAC on a ‘‘watershed-scale.’’ EPA does 

not see any barrier to conducting such 

an analysis, where it can be 

demonstrated that the watershed-scale 

SSAC is protective for all waters in a 

particular grouping and meets the 

requirements of 40 CFR 131.11 and 40 


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75792 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

169Hanlon, Jim, USEPA Office of Wastewater 

Management. 2007, May 10. Memorandum to 

Alexis Stauss, Director of Water Division EPA 

Region 9, on ‘‘Compliance Schedules for Water 

Quality-Based Effluent Limitations on NPDES 

Permits.’’ 

CFR 131.10(b). Many commenters 

expressed the desire to defer the 

applicability of promulgated criteria 

prior to developing a SSAC. The Federal 

SSAC portion of the rule, § 131.43(e), 

goes into effect 60 days after publication 

of this rule to allow this important work 

to proceed in advance of the effective 

date of 15 months after publication for 

the remaining provisions of the rule. 

The SSAC review process will depend 

in substantial part on the nature of the 

SSAC proposal itself: Its clarity, 

substance, documentation, and 

scientific rigor. Some commenters stated 

that EPA’s requirement that Federal 

SSAC be scientifically defensible and 

protective of designated uses is too 

vague; however, it is the same 

requirement for criteria in the Federal 

WQS regulation. (See 40 CFR 131.11). 

EPA will consider the need for further 

developing supporting technical 

guidance in the future if it appears at 

that time that such guidance would help 

support the process. 

D. Compliance Schedules 

(1) Final Rule 

Florida has adopted a regulation 

authorizing compliance schedules. That 

regulation, Subsection 62–620.620(6), 

F.A.C., is not affected by this final rule. 

The complete text of the Florida rules 

concerning compliance schedules is 

available at https://www.flrules.org/ 

gateway/RuleNo.asp?ID=62–620.620. 

Florida is, therefore, authorized to grant 

compliance schedules, as appropriate, 

under its rule for WQBELs based on 

EPA’s numeric criteria. 

(2) Background and Analysis 

A compliance schedule, or schedule 

of compliance, refers to ‘‘a schedule of 

remedial measures included in a 

‘permit,’ including an enforceable 

sequence of interim requirements * * * 

leading to compliance with the CWA 

and regulations.’’ (See 40 CFR 122.2, 

CWA section 502(17)). In an NPDES 

permit, WQBELs are effluent limits 

based on applicable WQS for a given 

pollutant in a specific receiving water 

(See NPDES Permit Writers Manual, 

EPA–833–B–96–003, December, 1996). 

EPA regulations provide that schedules 

of compliance may only be included in 

permits if they are determined to be 

‘‘appropriate’’ given the circumstances of 

the discharge and are to require 

compliance ‘‘as soon as possible’’ (See 

40 CFR 122.47).169

(3) Summary of Major Comments 

EPA generally received favorable 

comment on its description of 

compliance schedules. Some 

commenters asked EPA to consider 

promulgating its own compliance 

schedule provisions as part of the final 

rule. Florida’s regulations, however, 

already include an authorizing 

provision that allows NPDES permit 

writers to include compliance schedules 

in permits, where appropriate. Florida’s 

regulations do not limit the criteria 

which may be subject to compliance 

schedules. Therefore, Florida may 

choose to issue permit compliance 

schedules for nitrogen/phosphorus 

pollution, as appropriate. As a result, 

there is no need for EPA to provide an 

additional compliance schedule 

authorizing provision in this final rule. 

EPA disagrees with commenters who 

assert that Florida’s regulation at 

Subsection 62–620.620(6), F.A.C., 

authorizing compliance schedules 

applies only to industrial and domestic 

wastewater facilities. Chapter 62–620, 

F.A.C., sets out permit procedures for 

wastewater facilities or activities that 

discharge wastes into waters of the State 

or which will reasonably be expected to 

be a source of water pollution. (See 

Subsection 62–620.100(1), F.A.C.). 

Subsection 62–620.620(6), F.A.C., 

applies, therefore, more broadly than to 

just industrial and domestic wastewater 

facilities. In addition, Chapter 62–4, 

F.A.C., which sets out procedures on 

how to obtain a permit from FDEP, 

provides that permits may include a 

reasonable time for compliance with 

new or revised WQS. Subsection 62– 

4.160(10), F.A.C., does not limit the type 

of permits that may include such 

compliance schedules. 

E. Proposed Restoration Water Quality 

Standard 

(1) Final Rule 

In EPA’s January 2010 proposal, the 

Agency proposed a new WQS regulatory 

tool for Florida, referred to as 

‘‘restoration WQS’’ for impaired waters. 

This provision was intended to allow 

Florida to retain full aquatic life 

protection (uses and criteria) for its 

water bodies while establishing a 

transparent phased WQS process that 

would result in implementation of 

enforceable measures and requirements 

to improve water quality over a 

specified time period to ultimately meet 

the long-term designated aquatic life 

use. For reasons discussed below and in 

EPA’s response to comment document, 

EPA has decided not to promulgate a 

restoration WQS tool specifically for 

Florida, as proposed. 

(2) Summary of Major Comments 

EPA received a significant number of 

comments on its proposal that provided 

constructive and useful information for 

EPA to consider regarding the proposed 

restoration WQS provision. Such 

comments ranged from identifying 

additional needed requirements to 

concerns that the restoration WQS tool 

was so burdensome it would not be 

helpful. EPA evaluated the current, 

existing flexibility available to Florida 

to implement this final rule through 

variances, compliance schedules, permit 

reissuance cycles, permit reopener 

provisions, TMDL scheduling, and 

workload and administrative 

prioritization. These are all 

considerations that FDEP presently 

brings to the administration of its water 

quality program. EPA also considered 

the flexibility that this final rule offers 

through lake criteria adjustment 

provisions, alternative approaches to 

deriving downstream lake protection 

values and the SSAC process discussed 

above. The Agency concluded that the 

range of implementation tools available 

to the State in combination with a 

number of the provisions contained in 

this final rule provide adequate 

flexibility to implement EPA’s numeric 

criteria finalized in this rule. Florida 

may use any of these existing tools or 

exercise its authority to propose 

additional tools in the future that allow 

implementation flexibility where 

demonstrated to be appropriate and 

consistent with the CWA and 

implementing regulations. Therefore, 

EPA believes that its decision not to 

finalize restoration WQS will not 

adversely affect Florida’s ability to 

implement the Federal numeric criteria. 

VI. Economic Analysis 

State implementation of this rule may 

result in new or revised National 

Pollutant Discharge Elimination System 

(NPDES) permit conditions for point 

source dischargers, and requirements for 

nitrogen/phosphorus pollution 

treatment controls on other sources (e.g., 

agriculture, urban runoff, and/or septic 

systems) through the development of 

additional Total Maximum Daily Loads 

(TMDLs) and Basin Management Action 

Plans (BMAPs). To provide information 

on the potential incremental costs 

associated with these related State 

actions, EPA conducted an analysis to 

estimate both the additional impaired 

waters that may be identified as a result 

of this final rule and the potential State 

of Florida requirements that may be 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 75793 

170Florida Department of Environmental 

Protection, 2009, ‘‘Draft Technical Support 

Document: Development of Numeric Nutrient 

Criteria for Florida Lakes and Streams,’’ available 

electronically at: http://www.dep.state.fl.us/water/ 

wqssp/nutrients/docs/tsd_nutrient_crit.docx. 

necessary to assure attainment of 

applicable State water quality 

designated uses. EPA’s analysis is fully 

described in the document entitled: 

‘‘Economic Analysis of Final Water 

Quality Standards for Nutrients for 

Lakes and Flowing Waters in Florida,’’ 

which can be found in the docket and 

record for this final rule. 

An economic analysis of a regulation 

compares a likely scenario absent the 

regulation (the baseline) to a likely 

scenario with the regulation. The 

impacts of the regulation are measured 

by the resulting differences between 

these two scenarios (incremental 

impacts). However, the regulatory effect 

of this final rule can be interpreted in 

several ways, which can significantly 

influence the conditions considered 

appropriate for representing the 

baseline. On January 14, 2009 EPA 

made a determination that numeric 

nutrient water quality criteria were 

necessary to meet the requirements of 

the CWA in the State of Florida. In July 

2009 the State of Florida released draft 

numeric nutrient criteria for lakes and 

streams.170 Therefore, when the Agency 

proposed this rule for lakes and flowing 

waters in January 2010, EPA evaluated 

the incremental impacts of the proposed 

rule in comparison with the provisions 

of the Florida July 2009 draft criteria. 

Although the State subsequently did not 

proceed forward with those numeric 

criteria provisions, EPA has conducted 

the same evaluation as part of the 

economic analysis accompanying this 

final rule to illustrate the difference 

between Florida’s draft approach and 

the provisions of this rule. Using this 

same baseline approach and the refined 

analysis methodology described below, 

EPA estimates the potential incremental 

costs associated with this rule as 

ranging between $16.4 million/year and 

$25.3 million/year. 

An alternative interpretation of the 

impact of this final rule is that EPA is 

promulgating numeric criteria to 

address deficiencies in the State of 

Florida’s current narrative nutrient 

criteria (current conditions approach), 

and the incremental impacts of this rule 

are those associated with the difference 

between EPA’s numeric criteria and 

Florida’s narrative criteria. Under this 

scenario, the baseline incorporates 

requirements associated with current 

water quality, impaired waters, and 

TMDLs that exist at the time of the 

analysis. The incremental impacts of 

this rule are the costs and benefits 

associated with additional pollution 

controls beyond those currently in place 

or required as a result of Florida’s 

existing narrative criteria. This analysis 

is principally designed to gain an 

understanding of the potential costs and 

benefits associated with implementation 

of EPA’s numeric criteria for lakes and 

flowing waters above and beyond the 

costs associated with State 

implementation of its current narrative 

nutrient criteria for those waters. For 

waters that the State of Florida has 

already identified as impaired, EPA 

expects that the effect of this final rule 

will be to shorten the time and reduce 

the resources necessary for the State of 

Florida to implement its existing 

regulatory and nonregulatory framework 

of tools, limits, measures and BMP 

guidance to initiate a broader, 

expedited, more comprehensive, and 

more effective approach to reducing 

nutrient loadings necessary to meet the 

numeric criteria that support current 

State designated uses. The further effect 

of this final rule will likely be the 

assessment and identification of 

additional waters that are impaired and 

not meeting the designated use set forth 

at Section I.B, and new or revised water 

quality-based effluent limits in NPDES 

permits. EPA’s economic analysis 

quantifies the costs and cost savings 

associated with the identification of 

newly impaired waters and new or 

revised water quality-based effluent 

limits, but does not attempt to measure 

the costs and cost savings associated 

with addressing waters that are 

currently listed as impaired under 

Florida’s existing narrative nutrient 

criteria (these costs are considered part 

of the baseline). 

Although using the State of Florida’s 

draft numeric criteria as a baseline 

provides one possible measure of the 

incremental impact associated with this 

final rule, the current conditions 

approach can provide valuable 

information to the State of Florida and 

the public about other potential costs 

and benefits that may be realized as a 

result of this final rule. To provide this 

additional information, and in part to 

respond to public comments on the 

economic analysis at proposal, this 

economic analysis also measures the 

incremental costs and benefits of this 

final rule using current conditions in 

the State of Florida as the baseline. 

Using this interpretation of the baseline, 

EPA estimates the potential incremental 

costs associated with this final rule as 

ranging between $135.5 million per year 

and $206.1 million per year. Although 

analyses using both baselines are 

described in EPA’s economic analysis 

document entitled: ‘‘Economic Analysis 

of Final Water Quality Standards for 

Nutrients for Lakes and Flowing Waters 

in Florida,’’ the analytical methods and 

results described below highlight the 

current conditions baseline in detail. 

To develop this analysis, EPA first 

assessed State control requirements 

associated with current water quality, 

impaired waters, and total maximum 

daily loads (the baseline). EPA then 

assessed the costs and benefits 

associated with additional pollution 

controls beyond those currently in place 

or required to meet EPA’s numeric 

criteria that support Florida designated 

uses. To estimate incremental point 

source costs, EPA gathered publicly 

available information and data on 

control technologies currently in place 

at wastewater treatment plants and 

other industrial facilities, and used 

Florida Department of Environmental 

Protection (FDEP) point source 

implementation procedures to project 

the potential additional treatment that 

the State may require as a result of 

applying the criteria in this final rule. 

EPA assessed potential non-point source 

control costs by using publicly available 

information and data to determine land 

uses near waters that would likely be 

identified as impaired under this rule, 

and using FDEP and the Florida 

Department of Agriculture and 

Consumer Services (FDACS) nonpoint 

source control procedures, estimated 

costs to implement agricultural best 

management practices (BMPs) the State 

may require in order to attain the new 

numeric criteria. EPA also estimated the 

potential costs of additional State 

control requirements for storm water 

runoff, and potential costs associated 

with upgrades of homeowner septic 

systems. EPA also assessed additional 

potential government regulatory costs of 

developing additional total maximum 

daily loads (TMDLs) for waters 

identified as impaired under this rule. 

Finally, EPA qualitatively and 

quantitatively described and estimated 

some of the potential benefits of 

complying with the new water quality 

standards. Because of the inherent 

uncertainties associated with the 

benefits analysis, potential benefits are 

likely underestimated compared to 

costs. Although it is difficult to predict 

with certainty how the State of Florida 

will implement these new water quality 

standards, the results of these analyses 

represent EPA’s estimates of costs and 

benefits of this final rule. 

A. Point Source Costs 

Point sources of wastewater must 

have a National Pollution Discharge 


jlentini on DSKJ8SOYB1PROD with RULES2
75794 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

171U.S. EPA, 2008, ‘‘Municipal Nutrient Removal 

Technologies Reference Document. Volume 1— 

Technical Report,’’ EPA 832–R–08–006. 

172Treatment using reverse osmosis also requires 

substantial amounts of energy and creates disposal 

issues as a result of the large volume of concentrate 

that is generated. 

Elimination System (NPDES) permit to 

discharge into surface waters. EPA 

identified point sources potentially 

discharging nitrogen or phosphorus to 

lakes and flowing waters by evaluating 

EPA’s NPDES Permit Compliance 

System (PCS) database. EPA identified 

all the industry codes associated with 

any permitted discharger with an 

existing numeric effluent limit or 

monitoring requirement for nitrogen or 

phosphorus. This analysis identified 

193 point sources as having the 

potential to discharge nitrogen and/or 

phosphorus. The following table 

summarizes the number of point sources 

with the potential to discharge nitrogen 

and/or phosphorus. 

TABLE VI(A)—POINT-SOURCES POTENTIALLY DISCHARGING NITROGEN AND/OR PHOSPHORUS TO FLORIDA LAKES AND

FLOWING WATERS

Discharger category Major 

dischargers a

Minor 

dischargers b Total 

Municipal Wastewater ...................................................................................................... 43 42 85 

Industrial Wastewater ...................................................................................................... 57 51 108 

Total .......................................................................................................................... 100 93 193 

aFacilities discharging greater than one million gallons per day and likely to discharge toxic pollutants in toxic amounts. 

bFacilities discharging less than one million gallons per day and not likely to discharge toxic pollutants in toxic amounts. 

1. Municipal Waste Water Treatment 

Plant (WWTP) Costs 

EPA considered the costs of known 

nitrogen and phosphorus treatment 

options for municipal WWTPs. Nitrogen 

and phosphorus removal technologies 

that are available can reliably attain an 

annual average total nitrogen (TN) 

concentration of approximately 3.0 mg/ 

L or less and an annual average total 

phosphorus (TP) concentration of 

approximately 0.1 mg/L or less.171

Wastewater treatment to these 

concentrations was considered target 

levels for the purpose of this analysis. 

The NPDES permitting authority 

determines the need for water quality 

based effluent limits for point sources 

on the basis of analysis of reasonable 

potential to exceed water quality 

criteria. To estimate the potential 

incremental costs for WWTPs, the 

likelihood that WWTPs discharging to 

Florida lakes and flowing waters have 

reasonable potential to exceed the 

numeric criteria in this final rule should 

be evaluated. However, the site-specific 

data and information required to 

precisely determine reasonable potential 

for each facility was not available. Thus, 

on the basis that most WWTPs are likely 

to discharge nitrogen and phosphorus at 

concentrations above applicable criteria, 

EPA made the conservative assumption 

that all WWTPs have reasonable 

potential to exceed the numeric criteria. 

For municipal wastewater, EPA 

estimated costs to reduce effluent 

concentrations to 3 mg/L or less for TN 

and 0.1 mg/L or less for TP using 

advanced biological nutrient removal 

(BNR). Although reverse osmosis and 

other treatment technologies may have 

the potential to reduce nitrogen and 

phosphorus concentrations even further, 

EPA believes that implementation of 

reverse osmosis applied on such a large 

scale has not been demonstrated as 

practical or necessary.172 Such 

treatment has not been required for 

WWTPs by the State of Florida in the 

past, even those WWTPs under TMDLs 

with nutrient targets comparable to the 

criteria in this final rule. EPA believes 

that should state-of-the-art BNR 

technology together with other readily 

available physical and chemical 

treatment demonstrated to be effective 

in municipal WWTP operations not 

result in compliance with permit limits 

associated with meeting the new 

numeric nutrient criteria, then it is 

reasonable to assume that entities would 

first seek out other available means of 

attaining water quality standards such 

as reuse, nonpoint source reductions, 

site-specific alternative criteria, 

variances, and designated use 

modifications. 

To estimate compliance costs for 

WWTPs, EPA identified current WWTP 

treatment performance using 

information obtained from NPDES 

permits and/or water quality monitoring 

reports. EPA assumed that WWTPs 

under existing TMDLs are currently 

meeting their wasteload allocation 

requirements and would not incur 

additional treatment costs. EPA further 

assumed that costs to WWTPs 

discharging to currently impaired 

waters are not attributable to this final 

rule because those costs would be 

incurred absent the rule (under the 

baseline). However, sufficient location 

information was not available to insure 

that all WWTPs discharging to impaired 

waters were identified. Thus, costs may 

be overstated to the extent that some 

WWTPs discharging to currently 

impaired waters are included in EPA’s 

estimate. The following table 

summarizes EPA’s best estimate of the 

number of potentially affected 

municipal WWTPs that may require 

additional treatment to meet the 

numeric criteria supporting State 

designated uses. 

TABLE VI(A)(1)(a)—POTENTIAL ADDITIONAL NUTRIENT CONTROLS FOR MUNICIPAL WASTEWATER TREATMENT PLANTS

Discharge type 

Number of dischargers 

Additional 

reduction in TN 

and TPa

Additional 

reduction in TN 

only b

Additional 

reduction in TP 

only c

No incremental 

controls needed d Total 

Major ................................................................ 11 2 9 21 43 

Minor ................................................................ 19 1 3 19 42 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 75795 

173U.S. EPA, 2008. 

174Florida Water Environment Association Utility 

Council, 2009, ‘‘Numeric Nutrient Criteria Cost 

Implications for Florida POTWs,’’ available 

electronically at: http://www.fweauc.org/PDFs/ 

FWEAUC%20letter%20to%20Crist%

20re%20NNC%20Cost%20Implications%

20for%20Fla%20POTWs%

20with%20attachment.pdf. 

TABLE VI(A)(1)(a)—POTENTIAL ADDITIONAL NUTRIENT CONTROLS FOR MUNICIPAL WASTEWATER TREATMENT PLANTS— 

Continued 

Discharge type 

Number of dischargers 

Additional 

reduction in TN 

and TPa

Additional 

reduction in TN 

only b

Additional 

reduction in TP 

only c

No incremental 

controls needed d Total 

Total .......................................................... 30 3 12 40 85 

a Includes dischargers without treatment processes capable of achieving the target levels or existing WLA for TN and TP, or for which the 

treatment train description is missing or unclear. b Includes dischargers with chemical precipitation only and those with a wasteload allocations under a TMDL for TP only. 

c Includes dischargers with MLE, four-stage Bardenpho, and BNR specified to achieve less than 3 mg/L and those with WLA under a TMDL for 

TN only. d Includes dischargers with A2 /O, modified Bardenpho, modified UCT, oxidation ditches, or other BNR coupled with chemical precipitation and 

those with WLAs under a TMDL for both TN and TP. 

An EPA study provides unit cost 

estimates for biological nutrient removal 

controls for various TN and TP 

performance levels.173 To estimate costs 

for WWTPs, EPA used the average 

capital and average operation and 

maintenance (O&M) unit costs for 

technologies that achieve an annual 

average of 3 mg/L or less for TN and/ 

or 0.1 mg/L or less for TP. EPA also 

estimated a maximum cost for TN and 

TP reduction by using the highest cost 

TN and TP removal technology 

(estimated by finding the maximum of 

annualized costs for each technology 

option). Using average and maximum 

unit costs and multiplying unit costs by 

flow reported in EPA’s PCS database, 

EPA estimated total capital costs could 

be approximately $108 million to $219 

million and operation and maintenance 

(O&M) costs could be approximately 

$12 million per year to $18 million per 

year. Total annual costs would be 

approximately $22.3 million per year to 

$38.1 million per year (capital costs 

annualized at 7% over 20 years). The 

following table summarizes estimated 

costs for municipal WWTPs. 

TABLE VI(A)(1)(b)—POTENTIAL INCREMENTAL COSTS FOR MUNICIPAL WASTE WATER TREATMENT PLANTS

Cost component Capital costs 

(millions) a

O&M costs 

(millions per 

year) 

Annual costs 

(millions per 

year) 

Advanced BNR ................................................................................................................ $108–$219 $12–$18 $22.3–$38.1 

a Low estimate represents average of unit costs; high estimate represents costs for treatment processes that results in the highest annualized 

costs (annualized capital at 7% over 20 years plus O&M). 

Using Florida’s 2009 draft criteria as 

the baseline, municipal WWTP costs 

associated with this final rule are zero 

because treatment technologies needed 

to achieve Florida’s 2009 draft criteria 

are the same as those needed to achieve 

the criteria in this final rule, even 

though the criteria themselves are 

somewhat different. 

After EPA published its proposed 

criteria for Florida (75 FR 4173), several 

organizations in Florida developed 

alternative estimates of compliance 

costs for WWTPs that were substantially 

higher than EPA’s estimated costs. EPA 

disagrees with these cost estimates 

because they included costs for nutrient 

controls that are beyond what would be 

required by Florida to meet the new 

numeric criteria. For example, the 

Florida Water Environment Association 

Utility Council (FWEAUC) estimated 

annual costs for WWTPs would be 

approximately $2.0 billion per year to 

$4.4 billion per year.174 However, 

FWEAUC included in their analysis 

facilities that discharge to estuaries or 

coastal waters, and facilities that utilize 

deep well injection or generate reuse 

water which are not covered by this 

rule. FWEAUC also estimated costs to 

upgrade WWTPs regardless of the 

treatment that already exists at the 

facilities. Finally, FWEAUC assumed 

that all WWTPs will require expensive 

microfiltration and reverse osmosis 

control technology to comply with the 

new standard. EPA is not aware of any 

WWTPs in Florida that utilize 

microfiltration or reverse osmosis, even 

those discharging to currently impaired 

waters with TMDLs that have nutrient 

targets comparable to the criteria in this 

final rule. Thus, as noted above, EPA 

does not believe that this type of 

treatment technology for WWTPs in 

Florida has been demonstrated as 

practical or necessary. These differences 

appear to explain the discrepancy 

between FWEAUC and EPA estimates. 

2. Industrial Point Source Costs 

Incremental costs for industrial 

dischargers are likely to be facilityspecific and depend on process 

operations, existing treatment trains, 

and composition of waste streams. EPA 

previously estimated that 108 industrial 

dischargers may potentially be affected 

by this rule (Table VI(A)). Of those 108 

dischargers, EPA identified 38 of them 

as under an existing TMDL for nitrogen 

and/or phosphorus and 14 of them as 

discharging to waters listed as impaired 

for nutrients and/or dissolved oxygen. 

As with WWTPs, EPA assumed that 

industrial dischargers under an existing 

TMDL are currently meeting their 

wasteload allocation requirements and 

would not incur additional treatment 

costs, and costs at facilities discharging 

to currently impaired waters are not 

attributable to this final rule because 

those costs would be incurred absent 

the rule (under the baseline). To 

estimate the potential costs to the 

remaining 56 potentially affected 


jlentini on DSKJ8SOYB1PROD with RULES2
75796 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

175Florida Department of Environmental 

Protection, 2010, ‘‘FDEP Review of EPA’s 

‘Preliminary Estimate of Potential Compliance Costs and Benefits Associated with EPA’s Proposed 

Numeric Nutrient Criteria for Florida’,’’ p. 3. 

industrial facilities, EPA took a random 

sample of those facilities from each 

industry. EPA then analyzed their 

effluent data obtained from EPA’s PCS 

database and other information in 

NPDES permits to determine whether or 

not they have reasonable potential to 

cause or contribute to an exceedance of 

the numeric nutrient criteria in this 

final rule. For those facilities with 

reasonable potential, EPA further 

analyzed their effluent data and 

estimated potential revised water 

quality based effluent limits (WQBEL) 

for TN and TP. If the data indicated that 

the facility would not be in compliance 

with the revised WQBEL, EPA estimated 

the additional nutrient controls those 

facilities would likely implement to 

allow receiving waters to meet State 

designated uses and the costs of those 

controls. EPA then calculated the 

average flow-based cost of compliance 

for the sampled facilities in each 

industrial category, and used the 

average cost to extrapolate to the 

potential cost for the total flow 

associated with all facilities in each 

category (see economic analysis support 

document for more information). Using 

this method, EPA estimated the 

potential costs for industrial dischargers 

could be approximately $25.4 million 

per year. 

TABLE VI(A)(2)—POTENTIAL INCREMENTAL COSTS FOR INDUSTRIAL DISCHARGERS

Industrial category Total number of 

facilities 

Number of 

facilities sampled 

Average sample 

cost 

($/mgd/yr) a

Total annual 

costs b

Chemicals and Allied Products ........................ 9 2 $14,100 $1,116,800 ............................

Electric Services .............................................. 9 2 0 ............................ $0 

Food ................................................................. 7 2 123,300 ............................ 1,390,000 

Mining ............................................................... 10 2 160,600 16,442,300 ............................

Other ................................................................ 17 3 0 0 ............................

Pulp and Paper ................................................ 4 1 117,300 6,466,800 ............................

Total .......................................................... 56 12 ............................ 25,415,900 ............................

a Calculated by dividing total annual sample discharger costs by total sample discharger flow. Note that where flow for a sample discharger is 

not available, EPA used the average flow for dischargers in that category and discharger type (major or minor). b Represents average sample discharger unit cost multiplied by total flow of dischargers affected by the rule in each industrial category. 

Using Florida’s 2009 draft criteria as 

the baseline, industrial discharger costs 

associated with this final rule is zero 

because treatment technologies needed 

to achieve the Florida’s 2009 draft 

criteria are the same as those needed to 

achieve the criteria in this final rule, 

even though the criteria themselves are 

somewhat different. 

Several organizations in Florida 

developed alternative estimates of 

compliance costs for EPA’s proposed 

rule that were substantially higher than 

EPA’s estimated costs for industrial 

dischargers. EPA disagrees with these 

cost estimates because they assumed 

that facilities will need to install 

treatment technologies that are much 

more expensive than those that would 

likely be required by Florida to meet the 

numeric criteria. For example, FDEP 

estimated that the costs for industrial 

dischargers would be approximately 

$2.1 billion per year.175 However, FDEP 

assumed that every industrial facility 

would treat their total discharge volume 

using reverse osmosis which EPA 

believes is impractical and unnecessary. 

In addition, FDEP estimated costs for 

reverse osmosis on the basis of each 

facility’s maximum daily discharge flow 

instead of its reported design capacity 

(in some cases the maximum daily flow 

was more than double the design 

capacity). Installing treatment 

technology to handle maximum daily 

flows would be unnecessary because 

equalization basins or storage tanks 

(used to temporarily hold effluent 

during peak flows) would be a less 

expensive compliance strategy. Finally, 

EPA found no indication that industrial 

facilities in Florida have installed 

reverse osmosis for the purpose of 

complying with a nutrient-related 

TMDL, even those TMDLs with nutrient 

targets comparable to the criteria in this 

final rule. These differences appear to 

explain the discrepancy between FDEP 

and EPA estimates. 

B. Incrementally Impaired Waters 

To estimate nonpoint source 

incremental costs associated with State 

control requirements that may be 

necessary to assure attainment of 

designated uses, EPA first removed from 

further consideration any waters the 

State of Florida has already determined 

to be impaired or has established a 

TMDL and/or BMAP because these 

waters were considered part of the 

baseline for this analysis. EPA next 

identified Florida waters that may be 

identified as incrementally impaired 

using the criteria of this final rule, and 

then identified the watersheds 

surrounding those incrementally 

impaired waters. EPA analyzed FDEP’s 

database of ambient water quality 

monitoring data and compared 

monitoring data for each waterbody 

with EPA’s new criteria for TN and TP 

in lakes and flowing waters, and 

nitrate+nitrite concentrations in springs. 

To account for streams that may have 

downstream protection values (DPVs) as 

applicable criteria, streams intersecting 

lakes were assigned the applicable lake 

criteria. Costs may be overestimated 

because the method does not 

distinguish between upstream and 

downstream intersecting streams. Thus 

DPVs and additional controls may have 

been attributed to streams downstream 

of an impaired lake. EPA compiled the 

most recent five years of monitoring 

data, calculated the annual geometric 

mean for each waterbody identified by 

a waterbody identification number 

(WBID), and identified waters as 

incrementally impaired if they exceeded 

the applicable criteria in this final rule. 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 75797 

176Florida Geological Data Library, 2009, ‘‘GIS 

Data: WBIDs,’’ available electronically at: http:// 

www.fgdl.org/download/index.html. 

177Florida Department of Environmental 

Protection, 2010, ‘‘FDEP Review of EPA’s 

‘Preliminary Estimate of Potential Compliance Costs 

and Benefits Associated with EPA’s Proposed 

Numeric Nutrient Criteria for Florida’,’’ p. 9. 

178Florida Geological Data Library, 2009. 

179Florida Department of Environmental 

Protection, 2010, appendix 3. 

TABLE VI(B)—SUMMARY OF POTENTIAL INCREMENTALLY IMPAIRED WATERS

Category 

Number of water bodies 

Total 

Lake Stream a Spring 

Total in State ................................................................................... 1,310 3,901 126 5,337 

Not Listed/Covered by TMDL b ........................................................ 1,099 3,608 119 4,826 

Water Quality Monitoring Data for Nutrients c ................................. 878 1,273 72 2,223 

Sufficient Data Available d ................................................................ 655 930 72 1,657 

Potentially Exceeding Criteria (incrementally impaired) e ................ 148 153 24 325 

a Includes blackwater. 

bAs reported in TMDL documents and FDEP. 

c Data within last 5 years meeting data quality requirements. 

dAnnual geometric means based on at least 4 samples with one sample from May to September and one sample from October to April in a 

given year. eAnnual geometric mean exceeding the applicable criteria more than once in a three year period. 

C. Non-Point Source Costs 

To estimate the potential incremental 

costs associated with controlling 

nitrogen/phosphorus pollution from 

non-point sources, EPA identified land 

areas near incrementally impaired 

waters using GIS analysis. EPA first 

identified all the 10-digit hydrologic 

units (HUCs) in Florida that contain at 

least a de minimus area of an 

incrementally impaired WBID (WBIDs 

were GIS polygons), and excluding 

those HUCs that contain at least a de 

minimus area of a currently impaired 

WBID. EPA then identified land uses 

using GIS analysis of data obtained from 

the State of Florida.176

1. Costs for Urban Runoff 

EPA’s GIS analysis indicates that 

urban land (excluding land for 

industrial uses covered under point 

sources) accounts for approximately 

seven percent of the land near 

incrementally impaired waters. EPA’s 

analysis also indicates that urban runoff 

is already regulated on approximately 

one half of this land under EPA’s storm 

water program requiring municipal 

storm sewer system (MS4) NPDES 

permits. Florida has a total of 28 large 

(Phase I) permitted MS4s serving greater 

than 100,000 people and 131 small 

(Phase II) permitted MS4s serving less 

than 100,000 people. MS4 permits 

generally do not have numeric nutrient 

limits, but instead rely on 

implementation of BMPs to control 

pollutants in storm water to the 

maximum extent practicable. Even those 

MS4s in Florida discharging to impaired 

waters or under a TMDL currently do 

not have numeric limits for any 

pollutant. 

In addition to EPA’s storm water 

program, several existing State rules are 

intended to reduce pollution from urban 

runoff. Florida’s Urban Turf Fertilizer 

rule (administered by FDACS) requires 

a reduction in the amount of nitrogen 

and phosphorus that can be applied to 

lawns and recreational areas. Florida’s 

1982 storm water rule (Chapter 403 of 

Florida statues) requires storm water 

from new development and 

redevelopment to be treated prior to 

discharge through the implementation 

of BMPs. The rule also requires that 

older systems be managed as needed to 

restore or maintain the beneficial uses of 

waters, and that water management 

districts establish and implement other 

storm water pollutant load reduction 

goals. In addition, Chapter 62–40, 

F.A.C., ‘‘Water Resource Implementation 

Rule,’’ establishes that storm water 

design criteria adopted by FDEP and the 

water management districts shall 

achieve at least 80% reduction of the 

average annual load of pollutants that 

cause or contribute to violations of WQS 

(95% reduction for outstanding natural 

resource waters). The rule also states 

that the pollutant loading from older 

storm water management systems shall 

be reduced as necessary to restore or 

maintain the designated uses of waters. 

Although urban runoff is currently 

regulated under the statutes and rules 

described above, this final rule may 

indirectly result in changes to MS4 

NPDES permit requirements for urban 

runoff so that Florida waters meet State 

designated uses. However, the 

combination of additional pollution 

controls required will likely depend on 

the specific nutrient reduction targets, 

the controls already in place, and the 

relative amounts of nitrogen/ 

phosphorus pollution contained in 

urban runoff at each particular location. 

Because storm water programs are 

usually implemented using an iterative 

approach, with the installation of 

controls followed by monitoring and reevaluation to determine the need for 

additional controls, estimating the 

complete set of pollution controls 

required to meet a particular water 

quality target would require site-specific 

analysis. 

Although it is difficult to predict the 

complete set of potential additional 

storm water controls that may be 

required to meet the numeric criteria 

that supports State designated uses in 

incrementally impaired waters, EPA 

estimated potential costs for additional 

treatment by assessing the amount of 

urban land that may require additional 

pollution controls for storm water. FDEP 

has previously assumed that all urban 

land developed after adoption of 

Florida’s 1982 storm water rule would 

be in compliance with this final rule.177

Using this same assumption, EPA used 

GIS analysis of land use data obtained 

from the State of Florida 178 to identify 

the amount of remaining urban land 

located near incrementally impaired 

waters. Using this procedure, EPA 

estimated that up to 48,100 acres of 

Phase I MS4 urban land, 30,700 acres of 

Phase II MS4 urban land, and 30,600 

acres of non-MS4 urban land may 

require additional storm water controls. 

EPA estimated costs of implementing 

controls for Phase I MS4 urban land 

based on a range of acres with 48,100 

acres as the upper bound and zero acres 

as the lower bound because Phase I MS4 

urban land already must implement 

controls to the ‘‘maximum extent 

practicable’’ and may not require 

additional controls if existing 

requirements are already fully 

implemented. 

The cost of storm water pollution 

controls can vary widely. FDEP has 

assessed the cost of completed storm 

water projects throughout the State in 

dollars per acre treated.179 Capital costs 


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75798 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

180Florida Department of Environmental 

Protection, 2010, p. 3. 

181Soil and Water Engineering Technology, 2008, 

‘‘Nutrient Loading Rates, Reduction Factors and 

Implementation Costs Associated with BMPs and 

Technologies,’’ (report prepared for South Florida 

Water Management District). 

182Soil and Water Engineering Technology, 2008. 

range from $62 to $60,300 per acre 

treated, with a median cost of $6,800 

per acre. EPA multiplied FDEP’s median 

capital cost per acre by the number of 

acres identified as requiring controls to 

estimate the potential additional storm 

water control costs that may be needed 

to meet the numeric criteria in this rule. 

EPA also used FDEP’s estimate of 

operating and maintenance (O&M) costs 

as 5% of capital costs, and annualized 

capital costs using FDEP’s discount rate 

of 7% over 20 years. EPA estimates the 

total annual cost for additional storm 

water controls could range between 

approximately $60.5 and $108.0 million 

per year. The following table 

summarizes these estimates. 

TABLE VI(C)(1)—POTENTIAL INCREMENTAL URBAN STORM WATER COST SCENARIOS

Land type Acres needing 

controls a

Capital cost 

(millions $) b

O&M cost 

(millions $) c

Annual cost 

(millions $) d

MS4 Phase I Urban ............................................................................. 0–48,100 .......... $0–$329.1 ........ $0–$16.4 .......... $0–$47.5 

MS4 Phase II Urban ............................................................................ 30,700 .............. $210.0 .............. $10.5 ................ $30.3 

Non-MS4 Urban ................................................................................... 30,600 .............. $208.8 .............. $10.4 ................ $30.2 

Total .............................................................................................. 61,300–109,400 $418.8–$747.0 $20.9–$37.4 ..... $60.5–$108.0 

aPhase I MS4s range represents implementation of BMPs to the MEP resulting in compliance with EPA’s rule or controls needed on all pre1982 developed land; Phase II MS4s and urban land outside of MS4s represent controls needed on all pre-1982 developed land that is not low 

density residential. b Represents acres needing controls multiplied by median unit costs of storm water retrofit costs obtained from FDEP. 

c Represents 5% of capital costs. 

d Capital costs annualized at 7% over 20 years plus annual O&M costs. 

Using Florida’s 2009 draft criteria as 

the baseline, potential incremental costs 

for urban storm water are estimated to 

range from $13.7 million per year to 

$27.2 million per year. 

Several organizations in Florida 

developed alternative estimates of 

compliance costs for EPA’s proposed 

rule that were substantially higher than 

EPA’s estimated costs for urban storm 

water. EPA disagrees with these cost 

estimates because they utilized incorrect 

assumptions about the areas that would 

have to implement controls. For 

example, FDEP estimated costs for 

urban storm water controls at $1.97 

billion per year.180 However, FDEP 

estimated costs for pollution controls on 

urban land in watersheds that may not 

be listed as impaired, have already been 

listed as impaired, or will require 

controls under existing rules (e.g. land 

currently permitted under EPA’s MS4 

storm water program). In contrast, EPA 

estimated costs for urban storm water 

controls only for urban land with storm 

water flows to waters that may be listed 

as impaired as a result of this rule. This 

difference appears to explain the 

discrepancy between FDEP and EPA 

estimates. 

2. Agricultural Costs 

EPA’s GIS analysis of land use 

indicates that agriculture accounts for 

about 19 percent of the land near 

incrementally impaired waters. 

Agricultural runoff can be a source of 

phosphorus and nitrogen to lakes and 

streams through the application of 

fertilizer to crops and pastures and from 

animal wastes. Some agricultural 

practices may also contribute nitrogen 

and phosphorus to groundwater aquifers 

that supply springs. For waters impaired 

by nitrogen/phosphorus pollution, the 

1999 Florida Watershed Restoration Act 

established that agricultural BMPs 

should be the primary instrument to 

implement TMDLs. Thus, additional 

waters identified by the State as 

impaired under this rule may result in 

State requirements or provisions to 

reduce the discharge of nitrogen and/or 

phosphorus to incrementally impaired 

waters through the implementation of 

BMPs. 

EPA estimated the potential costs of 

additional agricultural BMPs by 

evaluating land use data obtained from 

Florida’s five water management 

districts. BMP programs designed for 

each type of agricultural operation and 

their costs were taken from a study of 

agricultural BMPs to help meet TMDL 

targets in the Caloosahatchee River, St. 

Lucie River, and Lake Okeechobee 

watersheds.181 Three types of BMP 

programs were identified in this study. 

The first program, called the ‘‘Owner 

Implemented BMP Program,’’ consists of 

a set of BMPs that land owners might 

implement without additional 

incentives. The second program, called 

the ‘‘Typical BMP Program,’’ is the set of 

BMPs that land owners might 

implement under a reasonably funded 

cost share program or a modest BMP 

strategy approach. The third program, 

called the ‘‘Alternative Program,’’ is a 

more expensive program designed to 

supplement the ‘‘Owner Implemented 

Program’’ and ‘‘Typical Program’’ if 

additional reductions are necessary. 

The BMPs in the ‘‘Owner 

Implemented Program’’ and ‘‘Typical 

Program’’ are similar to the BMPs 

adopted by FDACS. EPA has found no 

indication that the ‘‘Alternative BMP 

Program,’’ which includes storm water 

chemical treatment, has been required 

in historically nutrient impaired 

watersheds with significant 

contributions from agriculture for which 

TMDLs have been developed (e.g. Lake 

Okeechobee). Therefore, for purposes of 

this analysis, EPA believes it is 

reasonable to assume that nutrient 

controls for agricultural sources are best 

represented by the ‘‘Owner Implemented 

Program’’ and ’’Typical Program’’ 

described in the study used here.182

EPA estimated potential incremental 

costs of BMPs by multiplying the 

number of acres in each agricultural 

category by the sum of unit costs for the 

‘‘Owner Implemented Program’’ and 

‘‘Typical Program.’’ The following table 

summarizes the potential incremental 

costs of BMPs on agricultural lands near 

incrementally impaired lakes and 

streams for each agricultural category. 


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183Cropland and pastureland, cow calf 

production (improved pastures), cropland and 

pastureland (general), dairies, horse farms, and field 

crop (hayland) production. 

184Citrus, row crops, sod/turf grass, and 

ornamental nursery. 

185Florida Geological Data Library, 2009. 

186Florida Environmental Quality Incentive 

Program, 2009, ‘‘FY 2009 Statewide Payment 

Schedules,’’ available electronically at: ftp://ftpfc.sc.egov.usda.gov/FL/eqip/ 

EQIP_FY2009PaySched_STATEWIDE_FINAL.pdf. 

TABLE VI(C)(2)(a)—POTENTIAL INCREMENTAL BMP COSTS FOR LAKES AND STREAMS

Agricultural category Area 

(acres)a

‘‘Owner implemented program’’ plus ’’typical program’’ unit costs 

($/ac/yr)e

Total ‘‘owner implemented program’’ and 

’’typical program’’ costs 

($/yr) 

Animal Feeding ............................................................................. 1,814–1,846 18.56 33,671–34,260 

Citrus ............................................................................................. 15,482–27,343 156.80 2,427,652–4,287,343 

Cow Calf Production (Improved Pastures) ................................... 153,978–168,665 15.84 2,439,007–2,671,656 

Cow Calf Production (Unimproved Pastures) ............................... 49,054–51,057 4.22 207,203–215,663 

Cow Calf Production (Rangeland and Wooded) ........................... 74,449–75,790 4.22 314,474–320,136 

Row Crop ...................................................................................... 7,846–9,808 70.40 552,352–690,453

Cropland and Pastureland (general). b .......................................... 152,976–160,814 27.26 4,169,512–4,383,135 

Sod/Turf Grass .............................................................................. 2,007 35.20 70,631 

Ornamental Nursery ...................................................................... 840 70.00 58,783 

Dairies ........................................................................................... 583–621 334.40 194,803–207,777 

Horse Farms .................................................................................. 1,632 15.84 25,857 

Field Crop (Hayland) Production ................................................... 194,181–215,168 18.56 3,603,996–3,993,521 

Other Areas c ................................................................................. 54,499–67,364 18.56 1,011,500–1,250,281 

Total d ..................................................................................... 709,340–782,954 15,109,436–18,209,496 

aBased on GIS analysis of land use data from five water management districts (for entire State) and FDACS BMP program NOI GIS data 

layer. Low end reflects acres in incrementally impaired HUCs (that are not included in HUCs for baseline impairment) that are not enrolled in 

BMPs under FDACS; high end reflects all acres in incrementally impaired HUCs, regardless of FDACS BMP enrollment. b ‘‘Owner program’’ and ‘‘Typical Program’’ BMP unit costs based on average costs for improved pastures, unimproved/wooded pasture, row 

crops, and field crops. c Includes FLUCCS Level 3 codes 2160, 2200, 2230, 2400, 2410, 2500, 2540, and 2550. 

dExcludes land not in production. 

eSoil and Water Engineering Technology, 2008, Nutrient Loading Rates, Reduction Factors and Implementation Costs Associated with BMPs 

and Technologies, Report prepared for South Florida Water Management District. 

In addition to estimating potential 

costs associated with agricultural BMPs 

to reduce nitrogen/phosphorus 

pollution to lakes and streams as 

described above, EPA estimated 

potential costs associated with BMPs to 

protect groundwater aquifers that 

supply water to springs. Fertilizer 

application and other agricultural 

practices can significantly increase 

nutrient loadings to springs, especially 

those springs supplied by relatively 

large groundwater aquifers. EPA 

evaluated the potential incremental 

costs to meet the numeric criteria in this 

final rule for springs by assuming that 

all applicable agricultural operations 

may be identified for implementation of 

nutrient management. Nutrient 

management reduces over application of 

fertilizers by determining realistic yield 

expectations, the nitrogen requirements 

necessary to obtain those yields, and 

adjusting application methods and 

timing to minimize nitrogen pollution. 

Nutrient management is a costeffective way to reduce groundwater 

nitrogen, and may even result in cost 

savings to some farmers by reducing 

unnecessary fertilizer application. 

Therefore, for the purpose of this 

analysis, EPA assumed that all 

agricultural operations applying 

fertilizer to land would implement a 

nutrient management program, even 

those operations that are not associated 

with incrementally impaired waters. To 

estimate the potential costs of nutrient 

management, EPA estimated the amount 

of agricultural land where nutrient 

management could be applicable. EPA 

identified general agriculture 183 and 

specialty crops 184 as agricultural 

categories appropriate for nutrient 

management. EPA then used GIS 

analysis of land use data obtained from 

the State of Florida 185 to identify the 

land areas categorized as general 

agriculture or specialty crops. 

Approximately 4.9 million acres of 

agricultural land was identified as 

general agriculture and 1 million acres 

was identified as specialty crops. EPA 

further analyzed this agricultural land to 

identify the land near waters already 

listed as impaired for nutrients or under 

a TMDL. Similar to point sources, EPA 

assumed that nonpoint sources under an 

existing TMDL are currently meeting 

their load allocation requirements and 

would not incur additional costs, and 

costs to nonpoint sources associated 

with waters that are currently listed as 

impaired for nutrients are not 

attributable to this final rule because 

those costs would be incurred absent 

the rule (under the baseline). EPA also 

removed from this analysis land 

associated with incrementally impaired 

waters to avoid double counting the 

costs of BMPs that were already 

estimated to protect lakes and streams 

as described above. As a result of this 

analysis, approximately 1 million acres 

of general agriculture and 0.12 million 

acres of specialty crops was identified 

as land that may need to implement a 

nutrient management program to meet 

the numeric criteria for Florida springs 

in this final rule. Using unit costs of $10 

per acre for general agriculture and $20 

per acre for specialty crops obtained 

from Florida’s Environmental Quality 

Incentive Program,186 EPA estimated the 

annual cost of nutrient management 

could be approximately $4.7 million per 

year. The following table summarizes 

the estimated potential incremental 

costs of BMPs on agricultural lands to 

protect State designated uses of springs 

on the basis of the criteria in this final 

rule. 


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187Florida Department of Agriculture and 

Consumer Services, 2010, ‘‘Consolidated Comments 

on Proposed EPA Numeric Nutrient Criteria for 

Florida’s Lakes and Flowing Waters,’’ p. 1, available 

electronically at: http://www.florida

agwaterpolicy.com/PDF/FINAL_

FDACS_Consolidated_Comments_on_Docket_

ID_No_EPA_HQ_OW_2009_0596.pdf. 

188Florida Division of Forestry, Department of 

Agriculture and Consumer Services, 2010, 

‘‘Silviculture Best Management Practices: 2009 

Implementation Survey Report,’’ available 

electronically at: http://www.fl-dof.com/

publications/2009_BMP_survey_report.pdf. 

189Petrus, K., 2003, ‘‘Total Maximum Daily Load 

for the Palatlakaha River to Address Dissolved 

Oxygen Impairment, Lake County, Florida,’’ (Florida 

Department of Environmental Protection), available 

electronically at: http://www.dep.state.fl.us/water/ 

tmdl/docs/tmdls/final/gp1/palatlakaha_

river_do_tmdl.pdf. 

190Florida Department of Environmental 

Protection, 2006, ‘‘TMDL Report. Nutrient and 

Unionized Ammonia TMDLs for Lake Jesup, WBIDs 

2981 and 2981A,’’ available electronically at: http:// 

www.dep.state.fl.us/water/tmdl/docs/tmdls/final/

gp2/lake-jessup-nutr_ammonia-tmdl.pdf. 

TABLE VI(C)(2)(b)—POTENTIAL INCREMENTAL BMP COSTS FOR SPRINGS

Nutrient management program type Total acres in 

Florida a

Acres identified 

for nutrient management b

Unit cost 

($/acre) Total cost Annual cost ($/year) c

General Agriculture .......................................... 4,885,643 1,003,973 $10 $10,039,729 $3,825,656 

Specialty Crop .................................................. 1,057,107 120,558 20 2,411,163 918,778 

Total .......................................................... 5,942,750 1,124,531 ............................ 12,450,892 4,744,433 

aExcludes unimproved and woodland pastures, abandoned groves, aquaculture, tropical fish farms, open rural lands, and fallow cropland. b Calculated by subtracting agricultural land near incrementally impaired waters needing controls and agricultural land types participating in 

FDACS BMP program (assuming all Tri-county agricultural area land is regular nutrient management land) from total land use area in Florida. c Costs annualized at 7% over 3 years on basis of 3 year useful life. 

The following table summarizes the 

total estimated potential incremental 

costs of BMPs on agricultural lands to 

meet the numeric criteria. 

TABLE VI(C)(2)(C)—POTENTIAL ANNUAL INCREMENTAL COMPLIANCE COSTS FOR AGRICULTURE

Waterbody type Applicable acres Annual costs 

Lakes and Streams .............................................................................................. 709,340–782,954 $15,109,400–$18,209,500 

Springs ................................................................................................................. 1,124,531 $4,744,400 

Total .............................................................................................................. 1,833,871–1,907,485 $19,853,900–$22,953,900 

Using Florida’s 2009 draft criteria as 

the baseline, potential incremental costs 

to agriculture are estimated to range 

from ¥ $2.4 million per year (a negative 

cost represents a cost savings) to $2.1 

million per year. 

Several organizations in Florida 

developed alternative estimates of 

compliance costs for EPA’s proposed 

rule that were substantially higher than 

EPA’s estimated costs for agriculture. 

EPA disagrees with these cost estimates 

because they use incorrect assumptions 

that overestimate costs. For example, 

the FDACS estimated that costs for 

agriculture would be approximately 

$0.9 billion to $1.6 billion per year.187

However, FDACS estimated BMP costs 

for all 13.6 million acres of agricultural 

land in the State of Florida. This land 

includes watersheds where waters are 

not expected to become listed as 

impaired due to this final rule 

(including coastal and estuarine 

watersheds), have already been listed as 

impaired, or will require controls under 

existing rules (e.g. animal feeding 

operations) and thus are not potentially 

affected by the rule. A portion of the 

agricultural land used by FDACS to 

estimate costs includes 4.8 million acres 

of forest, 98.1% of which the State of 

Florida has claimed current BMPs 

effectively protect surface waters 188 and 

thus EPA assumes will not require 

further controls. FDACS also estimated 

costs using the highest cost Alternative 

BMP program. The Alternative BMP 

Program, which includes storm water 

chemical treatment, is not yet required 

in historically nutrient-impaired 

watersheds with significant 

contributions from agriculture. Thus, it 

is uncertain whether such controls 

would be necessary or required to meet 

the new numeric criteria which are 

intended to implement Florida’s 

existing narrative criteria. In contrast, 

EPA estimated costs for BMPs that are 

likely to be necessary, and only on the 

agricultural land identified as 

incrementally impaired under this final 

rule (although costs could be higher in 

some cases if further reductions are 

found to be necessary). These 

differences appear to explain the 

discrepancy between FDACS and EPA 

estimates. 

The alternative BMP program, which 

includes storm water chemical 

treatment, is not yet required in the 

study basins which have significant 

contributions from agriculture. Thus, for 

this analysis, EPA assumed that nutrient 

controls for agricultural sources are best 

represented by the owner/typical 

programs. 

3. Septic System Costs 

Some nutrient reductions from septic 

systems may be necessary for 

incrementally impaired waters to meet 

the numeric nutrient criteria in this 

final rule. Several nutrient-related 

TMDLs in Florida identify septic 

systems as a significant source of 

nitrogen/phosphorus pollution. 

Although properly operated and 

maintained systems can provide 

treatment equivalent to secondary 

wastewater treatment,189 even properly 

functioning septic systems can be 

expected to contribute to nitrogen/ 

phosphorus pollution at some 

locations.190 Some of the ways to 

address pollution from septic systems 

may include greater use of inspection 

programs and repair of failing systems, 

upgrading existing systems to advanced 

nutrient removal, installation of 

decentralized cluster systems where 

responsible management entities would 

ensure reliable operation and 

maintenance, and connecting 

households and businesses to 

wastewater treatment plants. On the 

basis of current practice in the State of 


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191 In this analysis EPA considered septic systems 

within 500 feet of any lake or stream in an 

incrementally impaired watershed rather than only 

within 500 feet of an incrementally impaired lake 

or stream to account for the possibility of some 

downstream transport of nutrients from nearby 

streams that may not themselves be classified as 

incrementally impaired. 

192Florida Department of Health, 2010, ‘‘Bureau 

of Onsite Sewage GIS Data Files,’’ available 

electronically at: http://www.doh.state.fl.us/ 

Environment/programs/EhGis/EhGisDownload.htm. 

193Chang, N., M. Wanielista, A. Daranpob, F. 

Hossain, Z. Xuan, J. Miao, S. Liu, Z. Marimon, and 

S. Debusk, 2010, ‘‘Onsite Sewage Treatment and 

Disposal Systems Evaluation for Nutrient Removal,’’ 

(Stormwater Management Academy, University of 

Central Florida). 

194Florida Department of Environmental 

Protection, 2010, p. 3. 

195U.S. EPA, 2001, ‘‘The National Costs of the 

Total Maximum Daily Load Program (Draft Report),’’ 

(EPA–841–D–01–003). 196EPA did not adjust these estimates to account 

for potential reductions in resources required to 

develop TMDLs as a result of this final rule. 

Florida, EPA assumed that the most 

likely strategy to reduce nutrients loads 

from septic systems would be to 

upgrade existing conventional septic 

systems to advanced nutrient removal 

systems. 

Septic systems in close proximity to 

surface waters are more likely to 

contribute nutrient loads to waters than 

distant septic systems. Florida 

Administrative Code provides that in 

most cases septic systems should be 

located at least 75 feet from surface 

waters (F.A.C. 64E–6.005(3)). In 

addition, many of Florida’s existing 

nutrient-related TMDLs identify nearby 

failing septic systems as contributing to 

nutrient impairments in surface waters. 

For this economic analysis, EPA 

assumed that some septic systems 

located near incrementally impaired 

lakes and streams may be required to 

upgrade to advance nutrient removal 

systems. However, the distance that 

septic systems can be safely located 

relative to these surface waters depends 

on a variety of site-specific factors. 

Because of this uncertainty, EPA 

conservatively assumed that septic 

systems located within 500 feet of any 

lake or stream in watersheds associated 

with incrementally impaired lakes or 

streams 191 may be identified for 

upgrade from conventional to advanced 

nutrient removal systems. 

EPA identified the number of septic 

systems within 500 feet of any lake or 

stream in watersheds associated with 

incrementally impaired lakes and 

streams using GIS analysis on data 

obtained from the Florida Department of 

Health 192 that provides the location of 

active septic systems in the State. This 

analysis yielded 8,224 active septic 

systems that may potentially need to be 

upgraded from conventional to 

advanced nutrient removal systems to 

meet the numeric nutrient criteria in 

this final rule. 

EPA evaluated the cost of upgrading 

existing septic systems to advanced 

nutrient removal systems. Upgrade costs 

range from $2,000 to $6,500 per system. 

For O&M costs, EPA relied on a study 

that compared the annual costs 

associated with various septic system 

treatment technologies including 

conventional onsite sewage treatment 

and disposal system and fixed film 

activated sludge systems.193 This study 

estimated the incremental O&M costs 

for an advanced system to be $650 per 

year. Thus, based on annual O&M costs 

of $650 and annualizing capital costs at 

7% over 20 years, annual costs could 

range from approximately $800 to 

$1,300 for each upgrade. EPA estimated 

the total annual costs of upgrading 

septic systems by multiplying this range 

of unit costs with the number of systems 

identified for upgrade. Using this 

method, total annual costs for upgrading 

septic systems to meet State designated 

uses could range from $6.6 million per 

year to $10.7 million per year. 

Using Florida’s 2009 draft criteria as 

the baseline, potential incremental costs 

to upgrade septic systems are estimated 

to range from $1.3 million per year to 

2.2 million per year. 

Several organizations in Florida 

developed alternative estimates of 

compliance costs for septic systems in 

EPA’s proposed rule that were 

substantially higher than EPA’s 

estimated costs. EPA disagrees with 

these cost estimates because they used 

incorrect assumptions that overestimate 

costs. For example, FDEP estimated that 

the costs related to septic systems 

would be approximately $0.9 billion per 

year to 2.9 billion per year.194 However, 

FDEP assumed that 1,687,500 septic 

systems would require complete 

replacement (calculated as the 

proportion of all septic systems in the 

State of Florida on lots less than 3 acres 

assumed to discharge to fresh waters 

because all urban storm water 

discharges to freshwaters in that 

proportion). In contrast, EPA estimated 

costs to upgrade 8,224 septic systems to 

advanced nutrient removal systems that 

GIS analysis identified as located within 

500 feet of any water within an 

incrementally impaired watershed. 

D. Governmental Costs 

This final rule may result in the 

identification of additional impaired 

waters that would require the 

development of additional TMDLs. As 

the principal State regulatory agency 

implementing water quality standard, 

the State of Florida may incur costs 

related to developing additional TMDLs. 

EPA’s analysis identified 325 

incrementally impaired waters 

potentially associated with this final 

rule. Because current TMDLs in Florida 

include an average of approximately 

two water bodies each, EPA estimates 

that the State of Florida may need to 

develop and adopt approximately 163 

additional TMDLs. A 2001 EPA study 

found that the cost of developing a 

TMDL could range between $6,000 and 

$154,000, with an average cost of 

approximately $28,000.195 196 The low 

end of the range reflects the typical cost 

associated with TMDLs that are the 

easiest to develop and/or have the 

benefit of previous TMDL development 

for other pollutants. Because most of the 

incrementally impaired waters in EPA’s 

analysis exceeded the criteria for both 

nitrogen and phosphorus, EPA assumed 

that TMDLs would need to be 

developed for both nitrogen and 

phosphorus. Under this assumption, 

EPA estimated the average TMDL cost to 

be approximately $47,000 ($28,000 on 

average for one pollutant, plus $6,000 

on average for the other pollutant, and 

adjusting for inflation). For 163 TMDLs, 

total costs could be approximately $7.7 

million. FDEP currently operates its 

TMDL schedule on a five-phase cycle 

that rotates through the five basins over 

five years. Under this schedule, 

completion of TMDLs for high priority 

waters will take 9 years; it will take an 

additional 5 years to complete the 

process for medium priority waters. 

Thus, assuming all the incremental 

impairments are high priority and FDEP 

develops the new TMDLs over a 9-year 

period, annual costs could be 

approximately $851,000 per year. Using 

Florida’s 2009 draft criteria as the 

baseline, potential incremental costs to 

develop additional TMDLs could be 

approximately $261,000 per year. 

Should the State of Florida submit 

current TMDL targets as Federal site 

specific alternative criteria (SSAC) for 

EPA review and approval, EPA believes 

it is reasonable to assume that 

information used in the development of 

the TMDLs will substantially reduce the 

time and effort needed to provide a 

scientifically defensible justification for 

such applications. Thus, EPA assumed 

that incremental costs associated with 

SSAC, if any, would be minimal. 

Similarly, State and local agencies 

regularly monitor TN and TP in ambient 

waters. These data are the basis for the 

extensive IWR database the State of 

Florida maintains and which provided 

baseline water quality data for EPA’s 

analyses. Because Florida is currently 


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75802 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

197Florida Department of Environment, 2008, 

‘‘State Comprehensive Outdoor Recreation Plan 

(SCORP),’’ available electronically at: http:// 

www.dep.state.fl.us/parks/planning/default.htm. 

198 VISIT Florida, 2010, available electronically 

at: http://media.visitflorida.org/research.php. 

199 VISIT Florida, 2010. 

200Bonn, Mark A. and Frederick W. Bell., 2003, 

Economic Impact of Selected Florida Springs on 

Surrounding Local Areas. For Florida Department 

of Environmental Protection. Available 

electronically at: http://www.dep.state.fl.us/springs/ 

reports/files/EconomicImpactStudy.doc. 

201 2006 National Survey of Fishing, Hunting, and 

Wildlife-Associated Recreation. Florida. U.S. 

Department of the Interior, Fish and Wildlife 

Service, and U.S. Department of Commerce, U.S. 

Census Bureau. Available electronically at: 

http://myfwc.com/docs/Freshwater/ 

2006_Florida_NationalSurvey.pdf. 

202Florida Department of Environmental 

Protection, 2008. 

203Florida Department of Environmental 

Protection, 2010, ‘‘Integrated Water Quality 

Assessment for Florida: 2010 305(b) and 303(d) List 

Update,’’ available electronically at: http:// 

www.dep.state.fl.us/water/docs/ 

2010_Integrated_Report.pdf. 

204Zheng, Lei and Michael J. Paul., 2006, Effects 

of Eutrophication on Stream Ecosystems. Available 

electronically at: http://n-steps.tetratech-ffx.com/ 

PDF&otherFiles/literature_review/ 

Eutrophication%20effects%20on%20streams.pdf. 

205Florida Department of Environment, ‘‘Deep 

Trouble: Getting to the Source of Threats to 

Springs,’’ accessed on October 1, 2010 at: http:// 

www.floridasprings.org/protection/threats/. 

206Munch, D.A., D.J. Toth, C. Huang, J.B. Davis, 

C.M. Fortich, W.L. Osburn, E.J. Phlips, E.L. 

Quinlan, M.S. Allen, M.J. Woods, P. Cooney, R.L. 

Knight, R.A. Clarke and S.L. Knight., 2006, ‘‘Fiftyyear retrospective study of the ecology of Silver 

Springs, Florida,’’ (SJ2007–SP4). 

207Florida Department of Environment, 2008, 

Summary and Synthesis of the Available Literature 

on the Effects of Nutrients on Spring Organisms and 

Systems,’’ available at: http://www.dep.state.fl.us/ 

springs/reports/files/ 

UF_SpringsNutrients_Report.pdf. 

monitoring TN, TP, and chlorophyll a 

concentrations in many waters, EPA 

assumed that this final rule is unlikely 

to have a significant impact on costs 

related to water quality monitoring 

activities. 

E. Benefits 

Elevated concentrations of nutrients 

in surface waters can result in adverse 

ecological effects and negative economic 

impacts. Excess nutrients in water can 

cause eutrophication, which can lead to 

harmful (sometimes toxic) algal blooms, 

loss of rooted plants, and decreased 

dissolved oxygen, which can lead to 

adverse impacts on aquatic life, fishing, 

swimming, wildlife watching, camping, 

and drinking water. Excess nutrients 

can also cause nuisance surface scum, 

reduced food for herbivorous wildlife, 

fish kills, alterations in fish 

communities, and unsightly shorelines 

that can decrease property values. This 

final rule will help reduce nitrogen and 

phosphorus concentrations in lakes and 

flowing waters in Florida, and help 

improve ecological function and prevent 

further degradation that can result in 

substantial economic benefits to Florida 

citizens. EPA’s economic analysis 

document entitled: Economic Analysis 

of Final Water Quality Standards for 

Nutrients for Lakes and Flowing Waters 

in Florida describes many of the 

potential benefits associated with 

meeting the water quality standards for 

nitrogen/phosphorus pollution in this 

rule. 

Florida waters have historically 

provided an abundance of recreational 

opportunities that are a vital part of the 

State’s economy. In 2007, over 4.3 

million residents and over 5.8 million 

visitors participated in recreational 

activities related to freshwater beaches 

in Florida.197 Of these residents and 

visitors, over 2.7 million residents and 

approximately 1 million visitors used 

freshwater boat ramps, over 3 million 

residents and over 900,000 visitors 

participated in freshwater non-boat 

fishing, and over 2.6 million residents 

and almost 1 million visitors 

participated in canoeing and kayaking. 

Florida also ranks first in the nation in 

boat registrations with 973,859 

recreational boats registered across the 

State. 

Tourism comprises one of the largest 

sectors of the Florida economy. In 2000, 

there were over 80.9 million visitors to 

the State of Florida, accounting for an 

estimated $65 billion in tourism 

spending.198 In 2008, tourism spending 

resulted in approximately $3.9 billion in 

State sales tax revenues and contributed 

to the direct employment of more than 

1 million Florida residents.199 Florida 

has ranked first in the nation for the 

number of in-State anglers, angler 

expenditures, angler-supported jobs, 

and State and local tax revenues derived 

from freshwater fishing.200 In 2006, total 

fishing-related expenditures by 

residents and nonresidents were more 

than $4.3 billion.201 In addition, 

Florida’s freshwater springs are an 

important inter- and intra-State tourist 

attraction.202 In 2002, Blue Springs State 

Park estimated over 300,000 visitors per 

year. 

Nitrogen/phosphorus pollution has 

contributed to severe water quality 

degradation of Florida waters. In 2010, 

the State of Florida reported 

approximately 1,918 miles of rivers and 

streams, and 378,435 acres of lakes that 

were known to be impaired by nitrogen/ 

phosphorus pollution (the actual 

number of waters impaired for nutrients 

may be higher because many waters 

were not assessed).203 As water quality 

declines, water resources have less 

recreational value. Waters impaired by 

nitrogen/phosphorus pollution may 

become unsuitable for swimming and 

fishing, and in some cases even 

unsuitable for boating. Nutrientimpaired waters also are less likely to 

support native plant and animal species, 

further lowering their value as tourist 

destinations.204 Drinking water supplies 

may also be more expensive to treat as 

a result of nutrient impairments. Also, 

Florida citizens that depend on 

individual wells for their drinking water 

may need to consider whether on-site 

treatment is necessary to reduce 

elevated nitrate+nitrite levels. 

Freshwater springs are particularly at 

risk due to nitrate+nitrite.205 206 Silver 

Springs, the largest of Florida’s springs, 

has experienced reduced ecosystem 

health and productivity over the past 

half century, due largely to 

nitrate+nitrite.207 Nutrient impairment, 

characterized by algal blooms, reduced 

numbers of native species, and lower 

water quality, in turn leads to reduced 

demand and lower values for these 

resources. 

Some of the benefits of reducing 

nitrogen and phosphorus concentrations 

can be monetized, at least in part, by 

translating these changes into an 

indicator of overall water quality (water 

quality index) and valuing these 

improvements in terms of willingness to 

pay (WTP) for the types of uses that are 

supported by different water quality 

levels. For this analysis, EPA used a 

Water Quality Index (WQI) approach to 

link specific pollutant levels with 

suitability for particular recreational 

uses. Using Florida water quality data, 

available information on WTP, and an 

analytical approach described in EPA’s 

accompanying economic assessment 

report and supporting references, EPA 

estimated potential changes that would 

result from implementation of this final 

rule and their value to a distribution of 

full-time and part-time Florida 

residents. This approach recognizes that 

there are differences in WTP among a 

population and values for households. 

Using the mid-point WTP and current 

conditions as the baseline, total 

monetized benefits are estimated to be 

approximately $21.7 million per year for 

improvements to flowing waters and 

$6.6 million per year for improvements 

to lakes for a total of $28.2 million per 

year. Although these monetized benefits 

estimates do not account for all 

potential economic benefits, they help 

to partially demonstrate the economic 

importance of restoring and protecting 

Florida waters from the impacts of 

nitrogen/phosphorus pollution. 


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F. Summary 

The following table summarizes 

EPA’s estimates of potential incremental 

costs and benefits associated with 

additional State requirements to meet 

the numeric criteria that supports State 

designated uses. Because of 

uncertainties in the pollution controls 

ultimately implemented by the State of 

Florida, actual costs may vary 

depending on the procedures for 

assessing waters for compliance and the 

site-specific source reductions needed 

to meet the new numeric criteria. 

TABLE VI(F)(a)—SUMMARY OF

POTENTIAL ANNUAL COSTS

[millions of 2010 dollars per year] 

Source sector Annual costs 

Municipal Waste Water 

Treatment Plants.

$22.3–$38.1 

Industrial Dischargers .......... $25.4 

Urban Storm Water ............. $60.5–$108.0 

Agriculture ........................... $19.9–$23.0 

Septic Systems .................... $6.6–$10.7 

Government/Program Implementation.$0.9 

Total ............................. $135.5–$206.1 

VII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

(58 FR 51735, October 4, 1993), this 

action is a ‘‘significant regulatory 

action.’’ Accordingly, EPA submitted 

this action to the Office of Management 

and Budget (OMB) for review under EO 

12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. This final rule does not 

establish any requirements directly 

applicable to regulated entities or other 

sources of nitrogen/phosphorus 

pollution. Moreover, existing narrative 

water quality criteria in State law 

already require that nutrients not be 

present in waters in concentrations that 

cause an imbalance in natural 

populations of flora and fauna in lakes 

and flowing waters in Florida. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

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

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

include any information collection, 

reporting, or record-keeping 

requirements. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this action on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise that is independently owned 

and operated and is not dominant in its 

field. 

Under the CWA WQS program, States 

must adopt WQS for their waters and 

must submit those WQS to EPA for 

approval; if the Agency disapproves a 

State standard and the State does not 

adopt appropriate revisions to address 

EPA’s disapproval, EPA must 

promulgate standards consistent with 

the statutory requirements. EPA also has 

the authority to promulgate WQS in any 

case where the Administrator 

determines that a new or revised 

standard is necessary to meet the 

requirements of the Act. These State 

standards (or EPA-promulgated 

standards) are implemented through 

various water quality control programs 

including the NPDES program, which 

limits discharges to navigable waters 

except in compliance with an NPDES 

permit. The CWA requires that all 

NPDES permits include any limits on 

discharges that are necessary to meet 

applicable WQS. 

Thus, under the CWA, EPA’s 

promulgation of WQS establishes 

standards that the State implements 

through the NPDES permit process. The 

State has discretion in developing 

discharge limits, as needed to meet the 

standards. This final rule, as explained 

earlier, does not itself establish any 

requirements that are applicable to 

small entities. As a result of this action, 

the State of Florida will need to ensure 

that permits it issues include any 

limitations on discharges necessary to 

comply with the standards established 

in the final rule. In doing so, the State 

will have a number of choices 

associated with permit writing. While 

Florida’s implementation of the rule 

may ultimately result in new or revised 

permit conditions for some dischargers, 

including small entities, EPA’s action, 

by itself, does not impose any of these 

requirements on small entities; that is, 

these requirements are not selfimplementing. Thus, I certify that this 

rule will not have a significant 

economic impact on a substantial 

number of small entities. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and Tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may result 

in expenditures to State, local, and 

Tribal governments, in the aggregate, or 

to the private sector, of $100 million or 

more in any one year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective or least burdensome alternative 

that achieves the objectives of the rule. 

The provisions of section 205 do not 

apply when they are inconsistent with 

applicable law. Moreover, section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost-effective 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation of why that 

alternative was not adopted. Before EPA 

establishes any regulatory requirements 

that may significantly or uniquely affect 

small governments, including Tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

This final rule contains no Federal 

mandates (under the regulatory 

provisions of Title II of the UMRA) for 

State, local, or Tribal governments or 

the private sector. The State may use 

these resulting water quality criteria in 

implementing its water quality control 


jlentini on DSKJ8SOYB1PROD with RULES2
75804 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

programs. This final rule does not 

regulate or affect any entity and, 

therefore, is not subject to the 

requirements of sections 202 and 205 of 

UMRA. 

EPA determined that this final rule 

contains no regulatory requirements that 

might significantly or uniquely affect 

small governments. Moreover, WQS, 

including those promulgated here, 

apply broadly to dischargers and are not 

uniquely applicable to small 

governments. Thus, this final rule is not 

subject to the requirements of section 

203 of UMRA. 

E. Executive Order 13132 (Federalism) 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. EPA’s authority 

and responsibility to promulgate 

Federal WQS when State standards do 

not meet the requirements of the CWA 

is well established and has been used on 

various occasions in the past. The final 

rule will not substantially affect the 

relationship between EPA and the States 

and territories, or the distribution of 

power or responsibilities between EPA 

and the various levels of government. 

The final rule will not alter Florida’s 

considerable discretion in implementing 

these WQS. Further, this final rule will 

not preclude Florida from adopting 

WQS that EPA concludes meet the 

requirements of the CWA, after 

promulgation of the final rule, which 

would eliminate the need for these 

Federal standards and lead EPA to 

withdraw them. Thus, Executive Order 

13132 does not apply to this final rule. 

Although section 6 of Executive Order 

13132 does not apply to this action, EPA 

had extensive communication with the 

State of Florida to discuss EPA’s 

concerns with the State’s water quality 

criteria and the Federal rulemaking 

process. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

Subject to the Executive Order 13175 

(65 FR 67249, November 9, 2000) EPA 

may not issue a regulation that has 

Tribal implications, that imposes 

substantial direct compliance costs, and 

that is not required by statute, unless 

the Federal government provides the 

funds necessary to pay the direct 

compliance costs incurred by Tribal 

governments, or EPA consults with 

Tribal officials early in the process of 

developing the proposed regulation and 

develops a Tribal summary impact 

statement. EPA has concluded that this 

action may have Tribal implications. 

However, the rule will neither impose 

substantial direct compliance costs on 

Tribal governments, nor preempt Tribal 

law. 

In the State of Florida, there are two 

Indian Tribes, the Seminole Tribe of 

Florida and the Miccosukee Tribe of 

Indians of Florida, with lakes and 

flowing waters. Both Tribes have been 

approved for treatment in the same 

manner as a State (TAS) status for CWA 

sections 303 and 401 and have 

Federally-approved WQS in their 

respective jurisdictions. These Tribes 

are not subject to this final rule. 

However, this rule may impact the 

Tribes because the numeric criteria for 

Florida will apply to waters adjacent to 

the Tribal waters. EPA met with the 

Seminole Tribe on January 19, 2010 and 

requested an opportunity to meet with 

the Miccosukee Tribe to discuss EPA’s 

proposed rule, although a meeting was 

never requested by the Tribe. 

G. Executive Order 13045 (Protection of 

Children From Environmental Health 

and Safety Risks) 

This action is not subject to EO 13045 

(62 FR 19885, April 23, 1997) because 

it is not economically significant as 

defined in EO 12866, and because the 

Agency’s promulgation of this rule will 

result in the reduction of environmental 

health and safety risks that could 

present a disproportionate risk to 

children. 

H. Executive Order 13211 (Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use) 

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

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

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

have a significant adverse effect on the 

supply, distribution, or use of energy. 

I. National Technology Transfer 

Advancement Act of 1995 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

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

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This final rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

J. Executive Order 12898 (Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations) 

Executive Order (EO) 12898 (Feb. 16, 

1994) establishes Federal executive 

policy on environmental justice. Its 

main provision directs Federal agencies, 

to the greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

rule does not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it will 

afford a greater level of protection to 

both human health and the environment 

if these numeric criteria are 

promulgated for Class I and Class III 

waters in the State of Florida. 

K. Congressional Review Act 

The Congressional Review Act 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A ‘‘major rule’’ 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule is 

effective March 6, 2012, except for 40 

CFR 131.43(e), which is effective 

February 4, 2011. 

List of Subjects in 40 CFR Part 131 

Environmental protection, Water 

quality standards, Nitrogen/phosphorus 

pollution, Nutrients, Florida. 


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Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 75805 

Dated: November 14, 2010. 

Lisa P. Jackson, 

Administrator. 

■ For the reasons set out in the 

preamble, 40 CFR part 131 is amended 

as follows: 

PART 131—WATER QUALITY 

STANDARDS 

■ 1. The authority citation for part 131 

continues to read as follows: 

Authority: 33 U.S.C. 1251 et seq. 

Subpart D—[Amended] 

■ 2. Section 131.43 is added effective 

February 4, 2011 to read as follows: 

§ 131.43 Florida. 

(a)–(d) [Reserved] 

(e) Site-specific alternative criteria. (1) 

The Regional Administrator may 

determine that site-specific alternative 

criteria shall apply to specific surface 

waters in lieu of the criteria established 

for Florida waters in this section, 

including criteria for lakes, criteria for 

streams, and criteria for springs. Any 

such determination shall be made 

consistent with § 131.11. 

(2) To receive consideration from the 

Regional Administrator for a 

determination of site-specific alternative 

criteria, an entity shall submit a request 

that includes proposed alternative 

numeric criteria and supporting 

rationale suitable to meet the needs for 

a technical support document pursuant 

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

entity shall provide the State a copy of 

all materials submitted to EPA, at the 

time of submittal to EPA, to facilitate 

the State providing comments to EPA. 

Site-specific alternative criteria may be 

based on one or more of the following 

approaches. 

(i) Replicate the process for 

developing the stream criteria in this 

section. 

(ii) Replicate the process for 

developing the lake criteria in this 

section. 

(iii) Conduct a biological, chemical, 

and physical assessment of waterbody 

conditions. 

(iv) Use another scientifically 

defensible approach protective of the 

designated use. 

(3) For any determination made under 

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

Regional Administrator shall, prior to 

making such a determination, provide 

for public notice and comment on a 

proposed determination. For any such 

proposed determination, the Regional 

Administrator shall prepare and make 

available to the public a technical 

support document addressing the 

specific surface waters affected and the 

justification for each proposed 

determination. This document shall be 

made available to the public no later 

than the date of public notice issuance. 

(4) The Regional Administrator shall 

maintain and make available to the 

public an updated list of determinations 

made pursuant to paragraph (e)(1) of 

this section as well as the technical 

support documents for each 

determination. 

(5) Nothing in this paragraph (e) shall 

limit the Administrator’s authority to 

modify the criteria established for 

Florida waters in this section, including 

criteria for lakes, criteria for streams, 

and criteria for springs. 

■ 3. Section 131.43 is revised effective 

March 6, 2012 to read as follows: 

§ 131.43 Florida. 

(a) Scope. This section promulgates 

numeric criteria for nitrogen/ 

phosphorus pollution for Class I and 

Class III waters in the State of Florida. 

This section also contains provisions for 

site-specific alternative criteria. 

(b) Definitions.—(1) Canal means a 

trench, the bottom of which is normally 

covered by water with the upper edges 

of its two sides normally above water. 

(2) Clear, high-alkalinity lake means a 

lake with long-term color less than or 

equal to 40 Platinum Cobalt Units (PCU) 

and Alkalinity greater than 20 mg/L 

CaCO3.

(3) Clear, low-alkalinity lake means a 

lake with long-term color less than or 

equal to 40 PCU and alkalinity less than 

or equal to 20 mg/L CaCO3.

(4) Colored lake means a lake with 

long-term color greater than 40 PCU. 

(5) Lake means a slow-moving or 

standing body of freshwater that 

occupies an inland basin that is not a 

stream, spring, or wetland. 

(6) Lakes and flowing waters means 

inland surface waters that have been 

classified as Class I (Potable Water 

Supplies) or Class III (Recreation, 

Propagation and Maintenance of a 

Healthy, Well-Balanced Population of 

Fish and Wildlife) water bodies 

pursuant to Rule 62–302.400, F.A.C., 

excluding wetlands, and are 

predominantly fresh waters. 

(7) Nutrient watershed region means 

an area of the State, corresponding to 

drainage basins and differing geological 

conditions affecting nutrient levels, as 

delineated in Table 2. 

(8) Predominantly fresh waters means 

surface waters in which the chloride 

concentration at the surface is less than 

1,500 milligrams per liter. 

(9) South Florida Region means those 

areas south of Lake Okeechobee and the 

Caloosahatchee River watershed to the 

west of Lake Okeechobee and the St. 

Lucie watershed to the east of Lake 

Okeechobee. 

(10) Spring means a site at which 

ground water flows through a natural 

opening in the ground onto the land 

surface or into a body of surface water. 

(11) State means the State of Florida, 

whose transactions with the U.S. EPA in 

matters related to 40 CFR 131.43 are 

administered by the Secretary, or 

officials delegated such responsibility, 

of the Florida Department of 

Environmental Protection (FDEP), or 

successor agencies. 

(12) Stream means a free-flowing, 

predominantly fresh surface water in a 

defined channel, and includes rivers, 

creeks, branches, canals, freshwater 

sloughs, and other similar water bodies. 

(13) Surface water means water upon 

the surface of the earth, whether 

contained in bounds created naturally 

or artificially or diffused. Water from 

natural springs shall be classified as 

surface water when it exits from the 

spring onto the Earth’s surface. 

(c) Criteria for Florida waters—(1) 

Criteria for lakes. (i) The applicable 

criteria for chlorophyll a, total nitrogen 

(TN), and total phosphorus (TP) for 

lakes within each respective lake class 

are shown on Table 1. 

TABLE 1 

A B C 

Lake Color a

and Alkalinity 

Chl-a 

(mg/L) b,* 

TN 

(mg/L) 

TP 

(mg/L) 

Colored Lakes c ................................................................................................................ 0.020 1.27 

[1.27–2.23] 

0.05 

[0.05–0.16] 


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75806 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

TABLE 1—Continued 

A B C 

Lake Color a

and Alkalinity 

Chl-a 

(mg/L) b,* 

TN 

(mg/L) 

TP 

(mg/L) 

Clear Lakes, .....................................................................................................................

High Alkalinity d ................................................................................................................ 0.020 1.05 

[1.05–1.91] 

0.03 

[0.03–0.09] 

Clear Lakes, .....................................................................................................................

Low Alkalinity e ................................................................................................................. 0.006 0.51 

[0.51–0.93] 

0.01 

[0.01–0.03] 

aPlatinum Cobalt Units (PCU) assessed as true color free from turbidity. 

b Chlorophyll a is defined as corrected chlorophyll, or the concentration of chlorophyll a remaining after the chlorophyll degradation product, 

phaeophytin a, has been subtracted from the uncorrected chlorophyll a measurement. cLong-term Color > 40 Platinum Cobalt Units (PCU) 

dLong-term Color ≤ 40 PCU and Alkalinity > 20 mg/L CaCO3 e Long-term Color ≤ 40 PCU and Alkalinity ≤ 20 mg/L CaCO3

* For a given waterbody, the annual geometric mean of chlorophyll a, TN or TP concentrations shall not exceed the applicable criterion concentration more than once in a three-year period. 

(ii) Baseline criteria apply unless the 

State determines that modified criteria 

within the range indicated in Table 1 

apply to a specific lake. Once 

established, modified criteria are the 

applicable criteria for all CWA 

purposes. The State may use this 

procedure one time for a specific lake in 

lieu of the site-specific alternative 

criteria procedure described in 

paragraph (e) of this section. 

(A) The State may calculate modified 

criteria for TN and/or TP where the 

chlorophyll a criterion-magnitude as an 

annual geometric mean has not been 

exceeded and sufficient ambient 

monitoring data exist for chlorophyll a 

and TN and/or TP for at least the three 

immediately preceding years. Sufficient 

data include at least four measurements 

per year, with at least one measurement 

between May and September and one 

measurement between October and 

April each year. 

(B) Modified criteria are calculated 

using data from years in which 

sufficient data are available to reflect 

maintenance of ambient conditions. 

Modified TN and/or TP criteria may not 

be greater than the higher value 

specified in the range of values in 

column C of Table 1 in paragraph 

(c)(1)(i) of this section. Modified TP and 

TN criteria may not exceed criteria 

applicable to streams to which a lake 

discharges. 

(C) The State shall notify the public 

and maintain a record of these modified 

lake criteria, as well as a record 

supporting their derivation. The State 

shall notify EPA Region 4 and provide 

the supporting record within 30 days of 

determination of modified lake criteria. 

(2) Criteria for streams. (i) The 

applicable instream protection value 

(IPV) criteria for total nitrogen (TN) and 

total phosphorus (TP) for streams within 

each respective nutrient watershed 

region are shown on Table 2. 

TABLE 2 

Nutrient watershed region 

Instream protection value criteria 

TN 

(mg/L)*

TP 

(mg/L)*

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

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

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

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

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

Watersheds pertaining to each Nutrient Watershed Region (NWR) were based principally 

on the NOAA coastal, estuarine, and fluvial 

drainage areas with modifications to the 

NOAA drainage areas in the West Central and 

Peninsula Regions that account for unique watershed geologies. For more detailed information on regionalization and which WBIDs pertain to each NWR, see the Technical Support 

Document. aPanhandle West region includes: Perdido 

Bay Watershed, Pensacola Bay Watershed, 

Choctawhatchee Bay Watershed, St. Andrew 

Bay Watershed, and Apalachicola Bay Watershed. bPanhandle East region includes: 

Apalachee Bay Watershed, and Econfina/ 

Steinhatchee Coastal Drainage Area. c North Central region includes the Suwannee River Watershed. dWest Central region includes: Peace, 

Myakka, Hillsborough, Alafia, Manatee, Little 

Manatee River Watersheds, and small, direct 

Tampa Bay tributary watersheds south of the 

Hillsborough River Watershed. ePeninsula region includes: Waccasassa 

Coastal Drainage Area, Withlacoochee Coastal Drainage Area, Crystal/Pithlachascotee 

Coastal Drainage Area, small, direct Tampa 

Bay tributary watersheds west of the 

Hillsborough River Watershed, Sarasota Bay 

Watershed, small, direct Charlotte Harbor tributary watersheds south of the Peace River 

Watershed, Caloosahatchee River Watershed, 

Estero Bay Watershed, Kissimmee River/Lake 

Okeechobee Drainage Area, Loxahatchee/St. 

Lucie Watershed, Indian River Watershed, 

Daytona/St. Augustine Coastal Drainage Area, 

St. John’s River Watershed, Nassau Coastal 

Drainage Area, and St. Mary’s River Watershed. 

* For a given waterbody, the annual geometric mean of TN or TP concentrations shall 

not exceed the applicable criterion concentration more than once in a three-year period. 

(ii) Criteria for protection of 

downstream lakes. (A) The applicable 

criteria for streams that flow into 

downstream lakes include both the 

instream criteria for total phosphorus 

(TP) and total nitrogen (TN) in Table 2 

in paragraph (c)(2)(i) and the 

downstream protection value (DPV) for 

TP and TN derived pursuant to the 

provisions of this paragraph. A DPV for 

stream tributaries (up to the point of 

reaching water bodies that are not 

streams as defined by this rule) that 

flow into a downstream lake is either 

the allowable concentration or the 

allowable loading of TN and/or TP 

applied at the point of entry into the 

lake. The applicable DPV for any stream 

shall be determined pursuant to 

paragraphs (c)(2)(ii)(B), (C), or (D) of this 

section. Contributions from stream 

tributaries upstream of the point of 

entry location must result in attainment 

of the DPV at the point of entry into the 

lake. If the DPV is not attained at the 

point of entry into the lake, then the 

collective set of streams in the upstream 

watershed does not attain the DPV, 

which is an applicable water quality 

criterion for the water segments in the 

upstream watershed. The State or EPA 

may establish additional DPVs at 

upstream tributary locations that are 

consistent with attaining the DPV at the 

point of entry into the lake. The State 

or EPA also have discretion to establish 

DPVs to account for a larger watershed 

area (i.e., include waters beyond the 

point of reaching water bodies that are 

not streams as defined by this rule). 

(B) In instances where available data 

and/or resources provide for use of a 

scientifically defensible and protective 

lake-specific application of the 


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Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 75807 

BATHTUB model, the State or EPA may 

derive the DPV for TN and/or TP from 

use of a lake-specific application of 

BATHTUB. The State and EPA are 

authorized to use a scientifically 

defensible technical model other than 

BATHTUB upon demonstration that use 

of another scientifically defensible 

technical model would protect the 

lake’s designated uses and meet all 

applicable criteria for the lake. The State 

or EPA may designate the wasteload 

and/or load allocations from a TMDL 

established or approved by EPA as 

DPV(s) if the allocations from the TMDL 

will protect the lake’s designated uses 

and meet all applicable criteria for the 

lake. 

(C) When the State or EPA has not 

derived a DPV for a stream pursuant to 

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

and where the downstream lake attains 

the applicable chlorophyll a criterion 

and the applicable TP and/or TN 

criteria, then the DPV for TN and/or TP 

is the associated ambient instream 

levels of TN and/or TP at the point of 

entry to the lake. Degradation in water 

quality from the DPV pursuant to this 

paragraph is to be considered 

nonattainment of the DPV, unless the 

DPV is adjusted pursuant to paragraph 

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

(D) When the State or EPA has not 

derived a DPV pursuant to paragraph 

(c)(2)(ii)(B) of this section, and where 

the downstream lake does not attain 

applicable chlorophyll a criterion or the 

applicable TN and/or TP criteria, or has 

not been assessed, then the DPV for TN 

and/or TP is the applicable TN and/or 

TP criteria for the downstream lake. 

(E) The State and EPA shall maintain 

a record of DPVs they derive based on 

the methods described in paragraphs 

(c)(2)(ii)(B) and (C) of this section, as 

well as a record supporting their 

derivation, and make such records 

available to the public. The State and 

EPA shall notify one another and 

provide a supporting record within 30 

days of derivation of DPVs pursuant to 

paragraphs (c)(2)(ii)(B) or (C) of this 

section. 

(3) Criteria for springs. The applicable 

nitrate+nitrite criterion is 0.35 mg/L as 

an annual geometric mean, not to be 

exceeded more than once in a three-year 

period. 

(d) Applicability. (1) The criteria in 

paragraphs (c)(1) through (3) of this 

section apply to lakes and flowing 

waters, excluding flowing waters in the 

South Florida Region, and apply 

concurrently with other applicable 

water quality criteria, except when: 

(i) State water quality standards 

contain criteria that are more stringent 

for a particular parameter and use; 

(ii) The Regional Administrator 

determines that site-specific alternative 

criteria apply pursuant to the 

procedures in paragraph (e) of this 

section; or 

(iii) The State adopts and EPA 

approves a water quality standards 

variance to the Class I or Class III 

designated use pursuant to § 131.13 that 

meets the applicable provisions of State 

law and the applicable Federal 

regulations at § 131.10. 

(2) The criteria established in this 

section are subject to the State’s general 

rules of applicability in the same way 

and to the same extent as are the other 

Federally-adopted and State-adopted 

numeric criteria when applied to the 

same use classifications. 

(e) Site-specific alternative criteria. (1) 

The Regional Administrator may 

determine that site-specific alternative 

criteria shall apply to specific surface 

waters in lieu of the criteria established 

in paragraph (c) of this section. Any 

such determination shall be made 

consistent with § 131.11. 

(2) To receive consideration from the 

Regional Administrator for a 

determination of site-specific alternative 

criteria, an entity shall submit a request 

that includes proposed alternative 

numeric criteria and supporting 

rationale suitable to meet the needs for 

a technical support document pursuant 

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

entity shall provide the State a copy of 

all materials submitted to EPA, at the 

time of submittal to EPA, to facilitate 

the State providing comments to EPA. 

Site-specific alternative criteria may be 

based on one or more of the following 

approaches. 

(i) Replicate the process for 

developing the stream criteria in 

paragraph (c)(2)(i) of this section. 

(ii) Replicate the process for 

developing the lake criteria in paragraph 

(c)(1) of this section. 

(iii) Conduct a biological, chemical, 

and physical assessment of waterbody 

conditions. 

(iv) Use another scientifically 

defensible approach protective of the 

designated use. 

(3) For any determination made under 

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

Regional Administrator shall, prior to 

making such a determination, provide 

for public notice and comment on a 

proposed determination. For any such 

proposed determination, the Regional 

Administrator shall prepare and make 

available to the public a technical 

support document addressing the 

specific surface waters affected and the 

justification for each proposed 

determination. This document shall be 

made available to the public no later 

than the date of public notice issuance. 

(4) The Regional Administrator shall 

maintain and make available to the 

public an updated list of determinations 

made pursuant to paragraph (e)(1) of 

this section as well as the technical 

support documents for each 

determination. 

(5) Nothing in this paragraph (e) shall 

limit the Administrator’s authority to 

modify the criteria in paragraph (c) of 

this section through rulemaking. 

(f) Effective date. This section is 

effective March 6, 2012, except for 

§ 131.43(e), which is effective February 

4, 2011. 

[FR Doc. 2010–29943 Filed 12–3–10; 8:45 am] 

BILLING CODE 6560–50–P 


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