## Form for Compliance with E.O. 12866 Docket Requirements

Title of Regulation: Water Quality Standards for the State of Florida’s Estuaries, Coastal Waters, and South Florida Inland Flowing Waters Contact person: Erica Fleisig Phone number: 202

- 566

- 1057

Was this regulation reviewed by OMB under Executive Order 12866
- Regulatory Planning and Review ?
X Yes No If you checked “no”, you are done with this form. Simply place it in the docket for your regulation. If you checked “yes”, please fill out the remainder of the form before placing it in the docket. Also docket any relevant documents referenced in the form.

For regulations th at are checked “Yes” above: This regulation was reviewed by OMB under Executive Order 12866

- Regulatory Planning and Review

. Attached is the draft regulation and any other documents sent to OMB for review, such as analyses and assessments. E.O. 12866 requires agencies to make these publicly available. E.O. 12866 also requires agencies to identify the substantive changes between the draft regulation sent to OMB for review and the reg ulation subsequently announced [ Please check the appropria te box below: ]

X EPA made substantive changes to this regulation (includes changes initiated by EPA or OMB). Attached is a document which: (1) identifies all the substantive changes made, and (2) notes those changes OMB suggested or recommended. No substantive changes were made to this regulation Therefore, no f urther attachments are required

. If you have questions about this regulation, please call the EPA contact person listed above.*** E.O. 12866 Review

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- Do Not Cite, Quote, or Release During Review ***

Page 1 of 191 EO12866_WQS Part 131 2040 AF21 NPRM FRN_201201 10 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 131 [EPA
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- AF 21 Water Quality Standards for the State of Florida’s Estuaries, Coastal Waters, and South Florida Inland Flowing Waters AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed r ule. SUMMARY: The U.S. Environmental Protection Agency (EPA or Agency) is proposing numeric water quali ty criteria to protect ecological systems and aquatic life from nitrogen and phosphorus pollution in estuaries and coastal waters within the State of Florida, and flowing waters in south Florida

. 1 These proposed criteria apply to the above Florida
waters that are designated as Class I , Class II or Class III waters and they 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 : Comments must be received on or before [ INSERT DATE 60 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER ]

. ADDRESSES : Submit your comments, ide ntified by Docket ID No. EPA

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1 With the exception of the Florida Everglades Agricultural Area (EAA) and the Everglades Protection Area (EvPA), as defined in Florida Statute 373.45 92 (1994), which are not covered in this rulemaking.*** E.O. 12866 Review

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Page 2 of 191 1. www.regulations.gov : Follow the on

- line instructions for submitting comments.
2. Email: ow

- docket@epa.gov
3. Mail to: Water Docket, U.S. Environmental Protection Agency, Mail code: 2822T, 1200 Pennsylvania Avenue, NW, Washington, DC 20460 , Attention: Docket ID No. EPA

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. 4. Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301 Constitution Avenue, NW, Washington, DC 20004, A ttention Docket ID No. EPA

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. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. E PA

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. EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov , including any personal information provide d, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e - mail. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide i t in the body of your comment. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD

- ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for*** E.O. 12866 Review

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Page 3 of 191 clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information abo ut EPA’s public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm

.

Docket: All documents in the docket are listed in the www .regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available onl y in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at a docket facilit y . The Office of Water (OW) Docket Center is open from 8:30

a.m. until 4:30 p.m., Monday through Friday, excluding legal holidays. The OW Docket Center telephone number is (202) 566

- 2426, and the Docket address is OW Docket, EPA West, Room 3334, 1301 Constitution Avenue, NW, Washington, DC 20004. The Public Reading Roo m 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 : Erica Fleisig , U.S. EPA Headquarters, Office of Water, Mailcode: 4 305T, 1200 Pennsylvania Avenue, NW, Washington, DC 20460 ; telephone number: ( 202 ) 566

- 1057 ; email address: fleisig.erica @epa. gov. SUPPLEMENTARY INFORMATION : This supplementary information section is organized as follows: Table of Contents*** E.O. 12866 Review

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Page 4 of 191 I. General Informa tion
A. Executive Summary
B. Which Water Bodies Are Affected By This Rule?
C. What Entities May Be Affected By This Rule?
D. What Should I Consider as I Prepare My Comments for EPA?
E. How Can I Get Copies of This Document and Other Related Information?
II. Background
A. Nitrogen and Phosphorus Pollution
B. Statutory and Regulatory Background
C. Water Quality Criteria
D. EPA Determination Regarding Florida and EPA’s Rulemaking
III. Proposed Num eric Criteria for Florida’s Estuaries, Coastal Waters , and South Florida Inland Flowing Waters
A. General Information and Approaches
B. Proposed Numeric Criteria for Estuaries
C. Proposed Numeric Criteria for Coastal Waters
D. Proposed Numeric Criteria for South Florida Marine Waters
E. Proposed Numeric Criteria for South Florida Inland Flowing Waters
F. Applicabili ty of Criteria When Final
IV. Under What Conditions Will Federal Standards Be Either Not Finalized or Withdrawn?
V. Alternative Regulatory Approaches and Implementation Mechanisms
A. Designating Uses*** E.O. 12866 Review

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Page 5 of 191 B. Variances
C. Site

- S pecific Alternative Criteria
D. Compliance Schedules
VI. Economic Analysis
A. Incrementally Impaired Waters
B. Point Source Costs
C. Non

- point Source Costs
D. Governmental Costs
E. Summary of Costs
F. Benefits
VII. Statutory and Executive Order Reviews
A. Executive Order s 12866 ( Regulatory Planning and Review ) and 13563 (Improving Regulation and Regulatory 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)*** E.O. 12866 Review

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Page 6 of 191 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)

I. General Information A. Executive Summary Florida is known for its abundant and aesthetically beautiful natural resources, particularly its aquatic resources , which are very important to Florida’s economy . For example, Florida’s saltwater sport fishing industry contributes over $ 5 billion to the State’s economy and more than 54,000 jobs annually ; the State's commercial saltwater fishing industry contributes over $1 billion and more than 10 ,000 jobs annually

. 2 In 2007, nearly 11.3 million residents and 46.3 million visitors participated in recreational saltwater beach activities in Florida. Nearly 3.5 million residents and approximately 1.4 million visitors u sed saltwater boat ramps, over 4.2 million residents and about 3 million visitors participated in saltwater non

- boat fishing, and over 2.6 million residents and almost 1 million visitors participated in canoeing and kayaking. 3 However, nitrogen and phospho rus pollution has contributed to serious water quality degradation affecting these aquatic resources in the State of Florida

. M any people throughout Florida , whose livelihood depends on these recreational water activities , lose income when recreation, tour ism, or fishing activities are adversely affected by nitrogen

2 Florida Fish and Wildlife Conservation Commission. 2011. The economic impact of saltwater fishing in Florida . < http://myfwc.com/conservation/value/saltwater

- fishing >. Accessed December 2011. 3 FDEP. 2008. Chapter 5

– Outdoor Recreation Demand and Need. In Outdoor Recreation in Florida, 2008: Florida’s Comprehensive Outdoor Recreation Plan, Final Draft . Florida Depa rtment of Environmental Protection, Division of Recreation and Parks, Tallahassee, FL. < http://www.dep.state.fl.us/parks/planning/forms/SCORP5.pdf > . Accessed December 2011.*** E.O. 12866 Review

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Page 7 of 191 and phosphorus pollution

. In the most recent Florida Department of Environmental Protection (FDEP) water quality assessment report, the Integrated Water Quality Assessment for Florida : 2010 305( b) Report and 303(d) List Update , FDEP describes widespread water quality impairment in Florida due to nitrogen and phosphorus pollution. FDEP’s 2010 report identifies approximately 1 , 918 miles of rivers and streams ( about 14 percent of assessed river and stream miles ), 378,435 acres of lakes ( about 31 percent of assessed lake acres ), 569 square miles ( 364,160 acres ) of estuaries ( about 23 percent of assessed estuarine area ) and 102 square miles (65,280 acres) of coastal waters (about 1.5 percent of assessed coastal waters ) as impaired by nutrients. These numbers may underestimate the extent of nutrient pollution in Florida as only 58 percent of Florida’s rivers and streams, 82 percent of Florida’s lakes, and 93 percent of Florida’s

es tuaries were assessed. The challenge of nitrogen and phosphorus pollution has been an ongoing focus for FDEP. However , des pite FDEP ’ s efforts to evaluate and address nitrogen and phosphorus pollution, it continues to cause substantial and widespread water quality degradation. 4 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 nutrient water quality criteria are necessary to protect the designated uses that Florida has set for its Class I, Class II and Class III waters. The Agency considered (1) the State’ s documented unique and threatened ecosystems, ( 2) the large number of waters that are impaired due to nitrogen and phosphorus pollution, and ( 3) the challenge associated with increas ing nitrogen and phosphorus pollution due to expanding urbanization, agricultural

4 FDEP

. 20 10 . Integrated Water Quality Assessment for Florida: 2010 305(b) Report and 303(d) List Update. September 2010.*** E.O. 12866 Review

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Page 8 of 191 development, and a growing population. 5 The 2009 determination also included EPA’s evaluation of the State’ s regulatory accountability sy stem, which includes a combination of technology

- based standards and point source control authority, as well as authority to establish enforceable controls for non

- point sources. In its determination, EPA concluded that Florida’s water quality program fac es a significant challenge because its current approach to water quality assessment, listing, total maximum daily load (TMDL) development, and permitting depends upon resource intensive and time

- consuming site

- by

- site data collection and analysis to interp ret the existing State narrative criteri on under Subsection 62

- 302.530(47)(b), F.A.C. 6 Florida uses this approach to (1) make water quality impairment determinations under CWA section 303(d), (2) set protective numeric nitrogen and phosphorus TMDL targets to guide restoration of impaired waters, (3) establish numeric nitrogen and phosphorus goals to ensure protection and maintenance of non

- impaired waters , and (4) support development of water quality

- based effluent limitations (WQBELs) in permits

. Based on the scope and magnitude of impaired waters to be addressed, EPA determined that Florida’s narrative

- based approach was insufficient to ensure protection of applicable designated uses

. In accordance with the terms of EPA’s January 14, 2009 determination, a December 2009 Consent Decree responding to Florida stakeholder litigation focusing on the need for numeric nutrient criteria , and subsequent June 7, 2010 and September 30,

5 The U.S. Census estimates that Florida’s population is expected to grow nearly 80% between 2000 and 2030. U.S. Census Bureau, Population Divis ion, Interim State Population Projections, 2005. <http://www.census.gov/population/projections/SummaryTabA1.pdf>. 6 “[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 flor a or fauna”*** E.O. 12866 Review

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Page 9 of 191 2011 revisions to that Consent Decree (discussed in more detail in Section II.D), EPA is proposing criteria for estuaries and coastal waters within the State of Florida and inland flowing waters (e.g., rivers, streams, canals) in the South Florida Region 7 with the exception of waters in the Everglades Agricultural Area (EAA) 8 and the Ev erglades Protection Area (EvPA)

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T o develop these proposed numeric criteria for Florida’s estuaries, coastal waters, and south Florida inland flowing waters, t he Agency conducted a detailed scientific analysis of the substantial amount of water quality d ata available f rom Florida ’s extensive monitoring data set

. EPA concluded that an approach using relevant biological endpoints and multiple lines of evidence including stressor

- response analyses , mechanistic model ing , and reference conditions was a strong and scientifically sound approach for deriving numeric criteria for estuaries , in the form of total nitrogen ( TN ), total phosphorus ( TP ) and chlorophyll a concentrations

. EPA’s Science Advisory Board (SAB) supported this strategy of considerin g all available and relevant science and data

. EPA’s methodology and the resulting proposed estuarine numeric nutrient criteria are presented in more detail in Section III .B of this notice of proposed rulemaking

. For coastal waters on the Atlantic and Gul f coasts of Florida , EPA is proposing to

use a combination of (1) a reference

- based approach using chlorophyll a observations

7 F or purposes of this rule, EPA has distinguished s outh 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, hereinaft er referred to as the South Florida Region

. 8 FL Statute Section 373.4592 (1994) subsection (2) Definitions: (e) "Everglades Agricultural Area" or "EAA" means the Everglades Agricultural Area, which are those lands described in FL Statute Section 373.4592 (1994) subsection (15). 9 FL Statute Section 373.4592 (1994) subsection (2) Definitions: (h) "Everglades Protection Area" means Water Conservation Areas 1 (which includes the Arthur R. Marshall Loxahatchee National Wildlife Refuge) , 2A, 2B, 3A, and 3B, and the Everglades National Park.*** E.O. 12866 Review

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Page 10 of 191 developed from satellite remote sensing imagery and field data to calibrate the satellite remote sensing imagery and (2) a mechanistic modeling approach to determine chlorophyll a criteria

. EPA chose the satellite remote sensing methodology to apply to all coastal areas of Florida except the Big Bend region and south Florida marine waters. In the Big Bend area of Florida, wher e satellite remote sensing predictions of chlorophyll a

were not possible due to reflectance that interferes with the remote sensing imagery in that area , EPA used mechanistic models to determine chlorophyll a criteria for these coastal waters

. EPA is prop osing separate criteria for south Florida marine waters (which include both south Florida estuarine and coastal waters) because extensive monitoring data are available and significant bottom reflectance in the region confounds derivation of chlorophyll a from satellite remote sensing. EPA’s methodology and results for its proposed coastal criteria are presented in more detail in Section I II. C

. For s outh Florida marine waters EPA is proposing a reference

- based approach utilizing extensive data from the So uth Florida Region to derive chlorophyll a , TN and TP criteria. EPA’s methodology and results for its proposed criteria for south Florida marine waters are presented in more detail in Section III.D.
EPA is proposing numeric criteria to ensure the attainmen t and maintenance of the water quality standards in downstream estuaries pursuant to the provisions of 40 CFR 131.10(b). EPA examined a variety of modeling techniques and data to assess whether waters entering an estuar y protect the water quality standards within the estuar y . Accordingly , EPA is proposing an approach to derive TN and TP criteria expressed as downstream protection values (DPVs) at the points where inland flowing waters flow into estuaries, or marine waters in south Florida (hereinafter referred to as ‘pour points’)

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Page 11 of 191 These proposed DPVs apply to all flowing waters that flow directly into estuaries or marine waters, including inland flowing waters in the South Florida Region. EPA’s proposed approach for deriving DPVs at the pour points involves an evaluation of the downstream estuary, water quality conditions at the pour point, and available mechanistic models

. Th e proposed approach es for deriving DPVs in flowing waters are presented in more detail in Section s III.B., III.D., and III.E. Finally, EPA is proposing to extend the approach finalized in 40 CFR 131.43(e) 10

to allow development of Site

- Specific Alternative Criteria (SSAC) for estuaries, coastal waters, and south Florida inland flowing waters. EPA’s rationale for extending these
S SAC provisions is discussed in more detail in Section V.C

. EPA has incorporated sound science , local expertise , and substantial Florida

specific data throughout the development of these proposed numeric criteria for nitrogen , phosphorus , and chlorophyll a . Under the CWA and EPA's implementing regulations, numeric criteria must protect the designated use of a water body, ensure attainment and maintenance of downstream water quality standards , and must be based on sound scientific rationale ( See CWA section 303(c) , 40 CFR 131.10 , and 40 CFR 131.11). In Florida, EPA relied upon peer - reviewed criteria development methodologies , 11 relevant biological endpoints, and a substantial body of scientific analysis provided to EPA by

10 40 CFR 131.43(e) authorize s the derivation of Federal Site

- Specific Alternative Criteria (SSAC) after EPA review and approval of applicant submissions of scientifically defensible criteria that meet the requirements of CWA section 303(c) and EPA’s implementing regulations at 40 CFR 131

. 11 USEPA. 2000a. Nutrient Criteria Technical Guidance Manual: Lakes and Reservoirs. EPA

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- 001. U.S. Environmental Protection Agency, Office of Water, Washington, DC. USEPA. 2000b. Nutrient Criteria Technical Guidance Manual: Rivers and Streams. EPA

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- 002. U.S. Environmental Protection Agency, Office of Water, Washington, DC. USEPA. 2001. Nutrient Criteria Technical Guidance Manual: Estuarine and Coastal Marine Waters. EPA

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- 003. U.S. Environmental Protection Agency, Office of Water, Washington, DC. USEPA. 2010. Using Stressor

- Response Relationships to Derive Numeric Nutrient Criteria. EPA

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- 001. U.S. Environmental Protection Agency, Office of Water, Washington, D C.*** E.O. 12866 Review

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Page 12 of 191 FDEP , as well as other federal , State and local partners such as the National Park Service ; National Oceanic and Atmospheric Administration; U.S. Geological Survey; Tampa Bay, Indian River Lagoon, Sarasota Bay and Charlotte Harbor National Estuary Programs; St. Johns River and South Florida Water Management Districts; and Florida International University.
EPA sought feedback on the scientific defensibility of the approaches outlined in this proposed rule through a Science Advisory Board (SAB) review. 12 The SAB assembled a g roup of eighteen expert panelists to review EPA’s Methods and Approaches for Deriving Numeric Criteria for Nitrogen /

P hosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters

. 13 The SAB recommendations 14 strengthen ed the scientific basis of these proposed numeric criteria. A number of key interest groups presented their comments and views on the underlying science as part of the SAB review process. In addition, EPA met with several groups of stakeholders with local te chnical expertise to discuss potential approaches for deriving scientifically defensible numeric criteria. As discussed in more detail in the following sections , EPA believes that the proposed criteria in this rule will assure attainment of Florida’s exist ing designated uses and are based on sound and substantial scientific data and analyses.
B. Which Water Bodies Are Affected By This Rule?

12 USEPA

- SAB. 2011. Review of Methods and Approaches for Deriving Numeric Criteria for Nitrogen / Phosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters . U.S. Environmental Protection Agency, Science Advisory Board, Washington, DC. 13 USEPA. 2010. Methods and Approaches for Deriving Numeric Criteria for Nitrogen /P hosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters

. U.S. Environmental Protection Agency, Office of Water, Washin gton, DC. 14 USEPA

- SAB. 2011. Review of Methods and Approaches for Deriving Numeric Criteria for Nitrogen /P hosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters. U.S. Environmental Protection Agency, Science Advisory Board, Washington, DC.*** E.O. 12866 Review

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Page 13 of 191 EPA’s proposed rule applies to estuaries and coastal marine waters that have been classified by Florida as Class I I ( Shellfish Propagation or Harvesting ) or Class III (Recreation, Prop a gation and Maintenance of a Healthy, Well

- Balanced Population of Fish and Wildlife) , including tidal creeks and marine lakes. This proposed rule also applies to fresh flowing waters in t he South Florida Region that have been classified by Florida as Class I (Potable Water Supplies) or Class III water bodies pursuant to Section
62

- 302.400, F.A.C

. , excluding wetlands and flowing waters within the EvPA or the EAA. Pursuant to Subsection 62

- 3 02.400(4), F.A.C. , 15 “ Class I, II , and III surface waters share water quality criteria established to protect fish consumption, recreation and the propagation and maintenance of a healthy, well

- balanced population of fish and wildlife

. ” Florida currently has a narrative nutrient criterion 16 established to protect these three uses and EPA is numerically interpreting Florida’s narrative criterion in this proposed rulemaking. Florida has classified their water bodies, and EPA is not proposing to change any of Florida’s water body classifications with this regulation

. The proposed criteria in this regulation would only apply to water bodies that are currently classified by Florida as Class I, II , or III and not to water bodies with other classifications such as Class III limited waters 17 for which use attainability analys e s (UAA s ) and SSAC s for nutrients ha ve been established, or Class IV canals in Florida’s agricultural areas.

15 Class 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. 16 “[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” 17 Class III limited w aters include waters that support fish consumption; recreation or limited recreation; and/or propagation and maintenance of a limited population of fish and wildlife ; see Chapter 62

- 302.400(1) F.A.C, for more details.*** E.O. 12866 Review

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Page 14 of 191 EPA is defining estuary to be consistent with Florida’s definition of estuary. As defined in Section 62

- 303.200, F.A.C., “e stuary” shall mean “ predominantly marine regions of interaction between rivers and nearshore ocean waters, where tidal action and river flow mix fresh and salt water. ” Such areas include bays, mouths of rivers, a nd lagoons. EPA is defining coastal waters based on Florida’s definitions of open coastal waters and open ocean waters, taking into account that CWA jurisdiction extends to three nautical miles from shore

. 18 EPA’s definition of “ coastal waters ” is all mari ne waters extending to three nautical miles from shore that are not classified as estuaries

. Consistent with Section 62

- 302.200, F.A.C., EPA’s proposed rule defines “marine waters” to mean surface waters in which the chloride concentration at the surface i s greater than or equal to 1,500 milligrams per liter (mg/L)

. EPA is defining tidal creeks as portions of streams that are affected by the ebb and flow of ocean tides. For another subset of marine waters, marine lakes, EPA is proposing to use the definition of “marine waters” and amend the definition of lakes include d previously in Water Quality Standards for the State of Florida’s Lakes and Flowing Waters (40 CFR 131.43) to define a lake as a slow

- moving or standing body of freshwater or marine water that occupies an inland basin that is not a stream, spring, or wetl and.

18 While CWA jurisdiction and therefore EPA’s proposed criteria extend only to three nautical miles from shore, Florida State jurisdiction extend s beyond three nautical miles. Florida defines open coastal waters as “all gulf or ocean waters that are not classified as estuaries or open ocean wat ers.” Open ocean waters consist of “all surface waters extending seaward from the most seaward natural 90

- foot (15

- fathom) isobath” (Subsection 62

- 303.200, F.A.C.).*** E.O. 12866 Review

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Page 15 of 191 EPA’s definition for “flowing waters” is consistent with Florida’s definition for
streams. Stream, as defined previously in Water Quality Standards for the State of Florida’s Lakes and Flowing Waters ( 40 CFR 131.43 ), is defined as “ a free

- flowing,
pre dominantly fresh surface water in a defined channel, and includes rivers, creeks, branches, canals, freshwater sloughs, and other similar water bodies. ” Consistent with
EPA ’s definition in 40 CFR 131.43 , EPA defines “canal” for this proposed rule to mean a trench, the bottom of which is normally covered by water with the upper edges of its two sides normally above water. A lso a s defined in 40 CFR 131.43 , “predominantly fresh waters” mean surface waters in which the chloride concentration at the surface is less than 1,500 mg/L

.

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 estuaries, coastal waters and flowing waters in Fl orida could be indirectly affected by this rulemaking because water quality standards are used in determining National Pollutant Discharge Elimination System (NPDES) permit limits. Examples of c ategories and entities that may ultimately be affected are lis ted in the following table. Category Examples of potentially affected entities Industry Industries discharging pollutants to estuaries, coastal waters and flowing waters in the State of Florida. Municipalities Publicly

- owned treatment works discharging pollutants to estuaries, coastal waters and flowing waters in the State of Florida. Stormwater Management Districts Entities responsible for managing stormwater runoff in the State of Florida.

This table is not intended to be exhaustive, but rather pr ovides a guide for entities that may be affected by this action. Other types of entities not listed in the table ,*** E.O. 12866 Review

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Page 16 of 191 such as non

- point source contributors to nitrogen and phosphorus pollution in Florida’s waters, may be affected through implementation of Florida’s water quality standards
program ( e.g ., through Basin Management Action Plans (BMAPs)). Any parties or entities conducting activities within Florida watersheds covered by this proposed rule, or wh o depend upon or contribute to the water quality of the estuaries, coastal waters 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 examine this proposed 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. What Should I Consider as I Prepare My Comments for EPA?

1

. Submitting CBI . Do not submit confidential business information to EPA through http://www.regulations.gov or e - mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD

- ROM that you mail to EPA, mark the outside of the disk or CD

- ROM as CBI and then identify electronically within the disk or CD

- ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that include s information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments . When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date , and page number).*** E.O. 12866 Review

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Page 17 of 191 • Follow directions

-- The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

• Describe a ny assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustr ate your concerns, and suggest alternatives.

• Make sure to submit your comments by the comment period deadline identified.
E. 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

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. 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 d ocket, 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, 1 301 Constit ution Ave., NW, Washington, DC
20004. Th is Docket Facilit y is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is 202

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- 2426

. A reasonable fee will be charged for copies.*** E.O. 12866 Review

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Page 18 of 191 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 availa ble 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 pub lic 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 Facilit y identified in Section I. E( 1 )

. II. Background A. Nitrogen and Phosphorus Pollution
1. What is Nitrogen and Phosphorus Pollution?

a . Overview of Nitrogen and Phosphorus Pollution
E xcess loading of nitrogen and phosphorus to surface water bodies and groundwater is one of the leading causes of water quality impairment s in the United
States. 19 The problem extends to both fresh and marine water s, 20 leading to over 15,000

19 Dubrovsky et al. 2010. The Quality of Our Nation’s Water

— Nutrients in the Nation’s Stream s and Groundwater, 1992

– 2004. Circular 1350. U.S. Geological Survey National Water Quality Assessment Program, Reston, VA. 20 Smith et al. 2006. Eutrophication of freshwater and coastal marine ecosystems

. Limnol. Oceanogr ., 51(1, part 2) : 351

- 355

. Schindler, D.W. 2006. Recent advances in the understanding and management of eutrophication. Limnology and Oceanography 51:356

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Page 19 of 191 nutrient

- related impairments in 49 states across the country

— a figure that substantially understates the problem as many waters have yet to be assessed. 21 Estuaries and coastal waters are especially vulnerable to nutrient pollution because they are the ultimate receiving waters for most major watersheds transporting nitrogen and phosphorus loadings from multiple upstream sources. 22 The problem of nutrient po llution is not new. Over forty years ago, a 1969 report by the National Academy of Sciences 23 noted that “[t]he pollution problem is critical because of increased population, industrial growth, intensification of agricultural production, river

- basin develop ment, 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 recreational and domestic uses of the water, detract from its natural beauty, and reduce nearby property values.” A 2000 report by the National Research Council 24 concluded that “...scientists, coastal managers, and public decisionmakers have come to recognize that coastal ecosystems suffer a number of environmenta l problems that can, at times, be attributed to the introduction of excess nutrients from upstream watersheds. The problems are caused by a complex chain of events and vary from site to site, but the fundamental driving force is the accumulation of nitroge n and phosphorus in fresh water on its way to the sea.”

21 Nationally, only 27% of rivers and streams and less than 50% of lakes, reservoirs, and ponds have been assessed for impairment (USE PA 2011). USEPA. 2011. Watershed Assessment, Tracking & Environmental Results. < http://iaspub.epa.gov/waters10/attains_nation_cy.control >. Accessed December 2011. 22 Bricker et al. 2007. Effects of Nutrient Enrichment in the Nation’s Estuaries: A Decade of Change

. National Estuarine Eutrophication Assessment . Silver Spring, MD.; NRC 2000 23 National Academy of Sciences. 1969. Eutrophication: Causes, Consequences, Correctives

. National Acade my of Sciences, Washington, DC. 24 NRC. 2000. Clean Coastal Waters: Understanding and Reducing the Effects of Nutrient Pollution

. National Research Council , National Academy of Sciences.*** E.O. 12866 Review

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Page 20 of 191 Florida has long struggled with nutrient impacts to its surface and ground waters and these impacts are provided in detail in the following sections

. Florida's flat topography makes Florida particularly susceptible to this pollution because water move s

more slowly over the landscape, allowing time for nitrogen and phosphorus pollution to accumulate in waterbodies and cause eutrophication. Florida’ s climate also contributes to
i ncreased run

- off , due to high rainfall and provides ideal conditions for eutrophication , when excess nutrients are available, with moderate to high annual temperature and ample sunlight

. 25 In FDEP’s 2010 Integrated Water Quality Assessment for Florida: 2010 305(b) Report and 303(d) List Update , nutrients are ranked as the third major cause of estuary impairments by impaired square miles 26 and the fifth major cause of impairments in coastal waters. 27 In 2010, Florida assessed all of its coastal waters, and 93 p ercent of its estuarine waters for at least one parameter. 28 FDEP documents nutrient impairments in 569 square miles (364,160 acres) of estuaries (about 23 percent of the estuarine area assessed by Florida) and 102 square miles (65,280 acres) of coastal wa ters (about 1.5 percent of the assessed coastal waters). Together, the total acres of impaired estuaries and coastal waters (429,940 acres) are greater than the total acres of impaired lakes (378,435 acres). 29

25 Perry, W. B. 2008. Everglades restoration and water q uality challenges in south Florida. Ecotoxicology 17:569

- 578. 26 First, second, and fourth major causes of estuary impairments by impaired square miles are mercury in fish, bacteria in shellfish, and fecal coliform, respectively. 27 FDEP. 2010. Integrated W ater Quality Assessment for Florida: 2010 305(b) Report and 303(d) List Update . Florida Department of Environmental Protection. <http://www.dep.state.fl.us/water/docs/2010_Integrated_Report.pdf>. Accessed July 2011. 28 FDEP. 2010. Integrated Water Quality A ssessment for Florida: 2010 305(b) Report and 303(d) List Update . Florida Department of Environmental Protection. <http://www.dep.state.fl.us/water/docs/2010_Integrated_Report.pdf>. Accessed July 2011. 29 FDEP. 2010. Integrated Water Quality Assessment for Florida: 2010 305(b) Report and 303(d) List Update . Florida Department of Environmental Protection. <http://www.dep.state.fl.us/water/docs/2010_Integrated_Report.pdf>. Accessed July 2011.*** E.O. 12866 Review

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Page 21 of 191 FDEP noted in its 2008 Integrated Water Qualit y Assessment for Florida: 2008 305(b) Report and 303(d) List Update that nutrient pollution poses several challenges in Florida. FDEP stated that “The close conn ection between surface and groundwater , in combination with the pressures of continued populati on 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 level s again began moving upward, likely due to the cumulative impacts of non - point source pollution associated with increased population and development. Increasing pollution from urban stormwater and agricultural activities is having other significant effects .” 30 To better understand the nitrogen and phosphorus pollution problem in Florida,
EPA looked at trends in the data Florida uses to create its Integrated Water Quality Reports , 31 and found increasing concentrations of nitrogen and phosphorus compounds in Florida waters over the 12 year period from 1996

- 2008. Florida’s Impaired Waters Rule (IWR) data indicate that levels of total nitrogen have increased approximately 20 percent fro m a state

- wide average of 1.06 mg/L in 1996 to 1.27 mg/L in 2008 and average state

wide total phosphorus levels have increased approximately 40 percent from an average of 0.108 mg/L in 1996 to 0.151 mg/L in 2008. On a national scale, the primary sources of nitrogen and phosphorus pollution can be grouped into five major categories: (1) urban and suburban stormwater runoff

— sources associated with residential and commercial land use and development; (2)

30 FDEP. 2008. Integrated Water Quality Assessment for Florida: 2008 305(b) Report and 303(d) List Update . Florida Department of Environmental Protection. <http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf>. Accessed July 2011. 31 IWR Run 40. Updated through February 2010.*** E.O. 12866 Review

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Page 22 of 191 municipal and industrial waste water discharges; (3) row crop agriculture and fertilizer use; (4) livestock production and manure management practices; and (5) atmospheric deposition resulting from nitrogen oxide emissions from fossil fuel combustion and ammonia emissions from row crop agriculture and livestock production. Land use and land cover in watersheds across much of the nation has been altered such that now a higher fraction of nitrogen and phosphorus applied to the landscape reaches surface and groundwater resources. These sources contribute loadings o f anthropogenic nitrogen and phosphorus to surface and groundwaters, causing far

- reaching impacts to aquatic ecosystems and imbalances in the natural populations of aquatic flora and fauna. 32 In general, the major sources of nitrogen and phosphorus polluti on in Florida are the same as those found at the national scale: urban and suburban stormwater runoff, wastewater discharges, row crop agricultur e , livestock production , and atmospheric deposition. In nearly half of the estuaries examined for this rulemaki ng, urban or stormwater runoff is a major contributor of nitrogen and phosphorus pollution. A s is the case with much of the southern United States, Florida’s population continues to grow, with Florida among the top ten fastest growing states. Florida’s po pulation growth is concentrated in major cities and along the coast. As populations grow, increased stress is put on all ecosystems, with particularly harmful impacts to coastal areas and wetlands. As of 2005, Florida’s highest population density was along its eastern coast, and there has been significant population expansion along the western coast from Tampa to the south.
In 2005 , one study estimated that 7 percent of Florida’s area had total impervious area greater than 20 percent, and of that, a quarter of that land had total impervious area

32 State

- EPA Nutrient Innovations Task Group. 2009. An Urgent Call to Action: Report of the State

- EPA Nutrient Innovations Task Group.*** E.O. 12866 Review

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Page 23 of 191 greater than 40 percent. Increased impervious cover can impact water quality, including coastal areas, wetlands, and other water ecosystems. 33 As an example of the impact of stormwater on coastal waters, a recent repo rt issued in 2010 by the Sarasota Bay Estuary Program indicates that in Sarasota Bay nutrients are primarily transported to the estuary by stormwater runoff and contaminated groundwater. An examination of 2008 loads to the estuary showed that the relative source contributions of key sources varied within the estuary. In all five segments of the estuary, runoff was the largest contributor to the nutrient load. For instance, in Sarasota Bay, runoff accounted for about 42 percent. In Blackburn Bay, runoff acco unted for nearly 60 percent of the nutrient load. 34 According to the Tampa Bay Estuary Program, the largest source of nitrogen to Tampa Bay is runoff (63 percent of total nitrogen loadings to Tampa Bay, 1999

– 2003). 35 Wastewater is also a significant contributor of nitrogen and phosphorus pollution. In Florida, there are 443 domestic (not including septic systems) and industrial
wastewater dischargers with individual NPDES permits

. 36 O f those facilities , 198 are classif ied as domestic (municipal) wastewater facilities, which treat sanitary wastewater or sewage from homes, business buildings, and institutions. The other 245 facilities are

33 Exum, L.R., S.L. Bird, J. Harrison, C.A. Perkins. 2005. Estimating and Projecting Impervious Cover in the Southeastern United States . U.S. Environmental Protection Agency. EPA/600/R

- 05/061. Washington, DC. 34 SBEP. 2010. Numeric Nutrient Criteria for Sarasota Bay . Sarasota Bay Estuary Program. <http://www.sarasotabay.org/documents/SBEP

- NNC

- Final

- Report.pdf>. Accessed August 2011. 35 TBEP. No date. State of the Bay: Water and Sediment Quality. Tampa Bay Estuary Program. < http://www.tbep.org/tbep/stateofthebay/waterquality.html >. Accessed January 2012. 36 United States Environmental Protect ion Agency (U.S. EPA). 2011. Permit Compliance System Database. http://www.epa.gov/enviro/facts/pcs/customized.html . Accessed June 2011. There are also 34,508 dischargers covered under gener ic or general permits, which FDEP regulates based on categories of wastewater facilities or activities that involve the same or similar types of operations or wastes.*** E.O. 12866 Review

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Page 24 of 191 classified as industrial wastewater facilities. About one third of Florida’s popul ation uses

on - site sewage treatment and disposal (septic tanks) t o treat wastewater

. 37 Facilities with NPDES permits either discharge to surface waters or ground waters, including land application, beneficial reuse of reclaimed water, and deep well injecti on. In Florida, less than a quarter of individually permitted domestic and industrial facilities are allowed to discharge to surface waters. Domestic wastewater treatment facilities permitted by the Florida DEP produce over 1.5 billion gallons of treated effluent and reclaimed water per day, with a total treatment capacity of over 2.5 billion gallons per day. Eighteen percent of domestic wastewater treatment facilities have treatment capacities greater than 500,000 gallons per day, whereas 73 percent of domestic wastewater treatment facilities have capacities less than 100,000 gallons per day. 38 In some areas, wastewater has been cited as impacting water quality. A 2003 analysis of nitrogen loads from septic systems Sarasota County found that 45,000 septi c systems contribute four times as much nitrogen to Sarasota Bay as the city of Sarasota’s wastewater treatment plant. On the east coast of Florida, septic systems contribute an estimated 1.5 million pounds of nitrogen per year to Florida’s Indian River La goon. 39 There have been some successes in reducing the impact of wastewater on coastal waters. In Tampa Bay, wastewater treatment plants were one of the major source s of nitrogen

37 FDEP. 2011. General Facts and Statistics about Wastewater in Florida. < http://www.dep.state.fl.us/water/wastewater/facts.htm >. Accessed January 2012. 38 FDEP. 2011. Wastewater Program . Florida Department of Environmental Protection. < http://www.dep.state.fl.us/water/wastewater/index.htm> Accessed January 2012. 39 U.S. Environmental Protection Agency (USEPA). 2003. EPA Voluntary National Guidelines for Management of Onsite and Clustered (Decentralized) Wastewater Treatment Systems . EPA

- 8 32

- B

- 03

- 001. U.S. Environmental Protection Agency, Office of Wastewater Management, Washington, DC. <http://www.epa.gov/owm/septic/pubs/septic_guidelines.pdf>. Accessed August 2011.*** E.O. 12866 Review

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Page 25 of 191 prior to the institution of tertiary nitrogen removal, and this treatment has partially contributed to an improvement in Tampa Bay’s water quality

. 40 Agricultural runoff is also a significant contributor of nitrogen and phosphorus pollution. Nationally, Florida is ranked 19 th for the number of farms and tied at 30 th for the amount o f total farm land. Florida ranks 19 th for the total number of cattle produced (1.63 million dairy and beef cattle as of January 1, 2001) and ranks 13 th among states for the number of chickens raised (10.1 million layers, and 57 million broilers as of
Decem ber 2010). In January 2010, 15,000 hogs were raised on Florida farms. The top cattle producing counties are Okeechobee, Osceola, Highlands, Polk, and Hardee counties. 41 Florida is also a major producer of citrus and field crops (including cotton, hay, peanu ts, wheat, vegetables, melons, berries, and sugarcane). In 2009

– 2010, 65 percent of U.S. citrus production came from Florida (predominantly in Polk, Hendry, DeSoto, and Highlands counties), and in 2010 the total harvested planted acreage of field
crops was 599,000 and 654,000, respectively (with top production of corn, peanuts, and cotton concentrated in the panhandle and northern regions of Florida and other vegetables, melons, and berries grown in the throughout the state).
A 2007 report by NOAA cited a griculture as a major contributor of nutrients influencing eutrophication in the South Atlantic and Gulf of Mexico regions (both of which include Florida’s coastal waters). NOAA reported that Gulf of Mexico waters were impacted by both livestock and crop a griculture, and the report specified that waters on

40 Johansson and Greening 2000 41 FDACS. 2011. Florida Agriculture by the N umbers . Florida Department of Agriculture and Consumer Services

. < http://www.florida

agriculture.com/pubs/pubform/pdf/Florida_Agricultural_Statistical_Directory.pdf > Accessed Jan uary 2012.*** E.O. 12866 Review

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Page 26 of 191 Florida’s east coast were receiving nutrient inputs from both row crops (e.g., citrus, sugar cane, cotton) and livestock agriculture (e.g., cattle and poultry farms). 42 Other sources also note that agricu ltural activities can be a contributor of nitrogen and phosphorus pollution in Florida’s coastal waters. According to the Tampa Bay Estuary Program, approximately 12 percent of the nitrogen load to Tampa Bay is from agriculture. 43
There have been a number o f studies examining impacts to water quality in locations across Florida. This includes Biscayne Bay, located on the southeast coast of Florida, adjacent to Miami. Nutrient enrichment in the B ay comes from a number of key sources: stormwater runoff from u rban areas, discharges from the Black Point Landfill and Sewage Treatment Plant, agricultural runoff from canals in the South Dade agricultural basin, and contaminated groundwater. 44 In the area surrounding the B ay, the sources of nitrogen and phosphorus po llution vary geographically. In the northern section of the B ay, there are inputs from five canals, a landfill, and urban runoff. The southern section of the bay has a greater contribution from agricultural sources. 45 In one study, researchers found that ca nals conveying waters from agricultural and urban areas

42 Bricker, S., B. Longstaff, W. Dennison, A. Jones, K. Boicourt, C . Wicks, and J. Woerner. 2007. Effects of Nutrient Enrichment In the Nation’s Estuaries: A Decade of Change . NOAA Coastal Ocean Program Decision Analysis Series No. 26. National Centers for Coastal Ocean Science, Silver Spring, MD. 328 pp. < http://ccma.nos.noaa.gov/publications/eutroupdate/ > Accessed January 2012. 43 TBEP. 2006. Water and sediment quality. In Charting the Course for Tampa Bay . Tampa Bay Estuary Program. < http://www.tbep.org/pdfs/ctc/Water%20and%20Sediment%20Quality.pdf > Accessed January 2012. 44 Caccia, V.G. and J.N. Boyer. 2007. A nutrient loading budget for Biscayne Bay, Florida. Marine Pollution Bulletin 54 (2007) 994

– 1008. Caccia, V.G. and J.N. Boyer. 2005. Spatial patterning of water quality in Biscayne Bay, Florida as a function of land use and water management. Marine Pollution Bulletin 50 (2005) 1416

– 1429

. 45 Caccia, V.G. and J.N. Boyer. 2005. Spatial patterning of water quality in Biscayne Bay, Florida as a function of land use and water management. Marine Pollution Bulletin 50 (2005) 1416

– 1429.*** E.O. 12866 Review

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Page 27 of 191 contributed 88 percent and 66 percent of the B ay’s total dissolved inorganic nitrogen and total phosphorus loads, respectively. 46 b. Adverse Impacts of Nitrogen and Phosphorus Pollution on Aquatic Life High nitrogen and phosphorus loadings (or nutrient pollution) to surface and groundwaters degrade water quality and negatively impact aquatic life through processes associated with eutrophicatio n. 47 Eutrophication is a predictable, well understood, and widely

- documented biological process by which anthropogenic nitrogen and phosphorus pollution result in increased growth of harmful algae (plankton and periphyton). 48

46 Caccia, V.G. and J.N. Boyer. 2007. A nutrient loading budget for Biscayne Bay, Florida. Marine Po llution Bulletin 54 (2007) 994

– 1008. 47 Eutrophication is the process by which a water body becomes enriched with organic material, which is formed by primary productivity (i.e., photosynthetic activity) and can be stimulated to harmful levels by the anthro pogenic introduction of high concentrations of nutrients

— particularly nitrogen and phosphorus ( NRC. 2000. Clean Coastal Waters: Understanding and Reducing the Effects of Nutrient Pollution

. National Research Council , National Academy of Sciences. See also Nixon 1995. Coastal marine eutrophication

— A definition, social causes, and future concerns. Ophelia 41:199

- 219.) 48 Cambridge, M.L., J.R. How, P.S. Lavery, and M.A. Vanderklift. 2007. Retrospective analysis of epiphyte assemblages in relation to seagrass lo ss in a eutrophic coastal embayment. Marine Ecology

- Progress Series 346:97

- 107. Frankovich, T.A., and J.W. Fourqurean. 1997. Seagrass epiphyte loads along a nutrient availability gradient, Florida Bay, USA. Marine Ecology Progress Series 159:37

- 50. Peterson , B.J., T.A. Frankovich, and J.C. Zieman. 2007. Response of seagrass epiphyte loading to field manipulations of fertilization, gastropod grazing and leaf turnover rates. Journal of Experimental Marine Biology and Ecology 349(1):61

- 72. Howarth, R. D. Anders on, J. Cloern, C. Elfring, C. Hopkinson, B. Lapointe, T. Malone, N. Marcus, K.J. McGlathery, A. Sharpley, and D. Walker. 2000. Nutrient pollution of coastal rivers, bays, and seas. Issues in Ecology 7:1

- 15. Cloern, J.E. 2001. Our evolving conceptual model of the coastal eutrophication problem. Marine Ecology Progress Series . 210:223

- 253. 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 nitro gen and phosphorus limitation of primary production in freshwater, marine, and terrestrial ecosystems. Ecology Letters . 10:1135

- 1142. Smith, V.H. 2006. Responses of estuarine and coastal marine phytoplankton to nitrogen and phosphorus enrichment. 51(1, par t 2): 377

– 384 Vitousek, P.M., J.D. Aber, R.W. Howarth, G.E. Likens, P.A. Matson, D.W. Schindler, W.H. Schlesinger, and D.G. Tilman. 1997. Human alteration of the global nitrogen cycle: Sources and consequences. Ecological Applications 7(3):737

- 750. Bricke r, S.B., J.G. Ferreira, and T. Simas. 2003. An integrated methodology for assessment of estuarine trophic status. Ecological Modelling 169(1):39

- 60. Bricker, S.B., B. Longstaff, W. Dennison, A. Jones, K. Boicourt, C. Wicks, and J. Woerner. 2008. Effects of nutrient enrichment in the nation's estuaries: A decade of change. Harmful Algae 8(1):21

- 32. Boyer, J.N., C.R. Kelble, P.B. Ortner, and D.T. Rudnick. 2009. Phytoplankton bloom status: Chlorophyll a*** E.O. 12866 Review

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Page 28 of 191 Increases in algal growth impact ma ny aspects of estuary and coastal communities. I ncreased nutrient loads and excess algal growth create increased oxygen demand and may reduce dissolved oxygen concentrations. Increased nutrient concentrations also affect algal species composition and compe tition among species , which may lead to increased growth or dominance of toxic or otherwise harmful algal species. 49 These harmful algal blooms (HABs) can contain undesirable species including diatoms, cyanobacteria, and dinoflagellates, which are known to generate toxins that are a threat to both aquatic life and recreational activities. 50 Many nuisance taxa of algae are

biomass as an indicator of water quality condition in the southern estuaries of Florida, USA. Ecological Indicators 9(6, Supplement 1):S56

- S67. Hutchin son, G.E. 1961. The paradox of plankton. American Naturalist 95:137

- 145. Piehler, M.F., L.J. Twomey, N.S. Hall, and H.W. Paerl. 2004. Impacts of inorganic nutrient enrichment on phytoplankton community structure and function in Pamlico Sound, NC, USA. Estu arine Coastal and Shelf Science 61(2):197

- 209. Sanders, J.G., S.J. Cibik, C.F. D'Elia, and W.R. Boynton. 1987. Nutrient enrichment studies in a coastal plain estuary: changes in phytoplankton species composition. Canadian Journal of Fisheries & Aquatic Sci ences 44:83

- 90. Parsons, T.R., P.J. Harrison, and R. Waters. 1978. An experimental simulation of changes in diatom and flagellate blooms. Journal of Experimental Marine Biology and Ecology 32:285

- 294. Paerl, H.W. 1988. Nuisance phytoplankton blooms in coas tal, estuarine, and inland waters. Limnology and Oceanography 33(4):823

- 847. Harding, J., L.W. 1994. Long

- term trends in the distribution of phytoplankton in Chesapeake Bay: roles of light, nutrients, and streamflow. Marine Ecology Progress Series 104:267

- 291. Richardson, K. 1997. Harmful or Exceptional Phytoplankton Blooms in the Marine Ecosystem . Vol. 31, Advances in Marine Biology

. Hagy, J.D., J.C. Kurtz, and R.M. Greene. 2008. An Approach for Developing Numeric Nutrient Criteria for a Gulf Coast Estuary . U.S. Environmental Protection Agency, Office of Research and Development, National Health and Environmental Effects Research Laboratory, Research Triangle Park, NC., EPA 600R

08/004, 44 pp. 49 Paerl 1988. Paerl, H.W. 1988. Nuisance phytoplankton blooms in coastal, estuarine, and inland waters. Limnology and Oceanography 33(4):823

- 847. Anderson, D.M., P.M. Glibert, and J.M. Burkholder. 2002. Harmful algal blooms and eutrophication: Nutrient sources, composition, and consequences. Estuaries 25(4):704

- 726. An derson, D.M., J.M. Burkholder, W.P. Cochlan, P.M. Glibert, C.J. Gobler, C.A. Heil, R.M. Kudela, M.L. Parsons, J.E.J. Rensel, D.W. Townsend, V.L. Trainer, and G.A. Vargo. 2008. Harmful algal blooms and eutrophication: Examining linkages from selected coasta l regions of the United States. Harmful Algae 8(1):39

- 53. 50 Anderson et al. 2002 Anderson, D.M., P.M. Glibert, and J.M. Burkholder. 2002. Harmful algal blooms and eutrophication: Nutrient sources, composition, and consequences. Estuaries 25(4):704

- 726. Pa erl, H.W. 2002. Connecting atmospheric nitrogen deposition to coastal eutrophication. Environmental Science & Technology 36(15):323A

- 326A. Anderson, D.M., J.M. Burkholder, W.P. Cochlan, P.M. Glibert, C.J. Gobler, C.A. Heil, R.M. Kudela, M.L.*** E.O. 12866 Review

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Page 29 of 191 also less palatable to aquatic organisms that consume phytoplankton , which creates a food supply impact if prolonged blooms of HABs occur

.
M arine and fresh waters of the United States are increasingly being impacted by
HABs. 51 More than 100 HAB species have been identified in the United States

. 52 HAB toxins have been linked to illnesses and deaths of marine animals, including sea lions, turtle s, fish, seabirds, dolphins, and manatees. 53 Diatoms species in HABs, such as Pseudo

- nitzschia , produce domoic acid

. 54 Domoic acid has been shown to accumulate in the tissue of mussels, crabs, and fish, causing their predators to become ill or die. 55 Such toxins occur throughout the United States and cause a variety of impacts to aquatic life, including neurological damage and death. For example, domoic acid poisoning has been reported as the cause of death of humpback whales in the Gulf of Maine in 2003 and sea lions in California's Monterey Bay during May and June of 1998. 56 Other toxin

- producing algal species that have been

Parsons, J.E.J . Rensel, D.W. Townsend, V.L. Trainer, and G.A. Vargo. 2008. Harmful algal blooms and eutrophication: Examining linkages from selected coastal regions of the United States. Harmful Algae 8(1):39

- 53. 51 Dortch, Q. P. Glibert, E. Jewett, and C. Lopez. 2008. I ntroduction. in HAB RDDTT 2008. National Workshop Report. Dortch et al., eds. , Woods Hole, MA. 52 Abbott,G. M., J. H. Landsberg, A. R. Reich, K. A. Steidinger, S.Ketchen, and C. Blackmore. 2009. Resource Guide for Public Health Response to Harmful Algal Bl ooms in Florida. Fish and Wildlife Research Institute Technical Report TR

- 14. viii + 132 p. <http://myfwc.com/research/redtide/task

force/reports

- presentations/resource

- guide

- for

- public

- health

- response - to

- harmful

- algal

- blooms

- in

- florida/> Accessed June 201 1. 53 WHOI. 2008. Marine Mammals . Woods Hole Oceanographic Institution. < http://www.whoi.edu/redtide/page.do?pid=14215 >. Accessed June 2011. WHOI. 2008. HAB Impacts on Wildlife . Woods Hole Oceanographic Institution. < http://www.whoi.edu/redtide/page.do?pid=9682 >. Accessed June 2011. NOAA. 2011. Overview of Harmful Algal Blooms. National Oceanic and Atmospheric Administration. <http://www.cop.noaa.gov/stressors/extremeevents/hab/default.aspx>. Accessed June 2011. 54 Thes sen, A.E. and D.K. Stoecker. 2008. Distribution, abundance and domoic acid analysis of the toxic diatom genus Pseudo

- nitzschia from the Chesapeake Bay. Estuaries and Coasts 31:664

- 672. 55 Bushaw

- Newton, K.L. and K.G. Sellner. 1999. Harmful Algal Blooms. In : NOAA's State of the Coast Report . Silver Spring, MD: National Oceanic and Atmospheric Administration. <http://oceanservice.noaa.gov/websites/retiredsites/sotc_pdf/hab.pdf>. Accessed June 2011. 56 MBARI. 2000. Molecular Probes Link Sea Lion Deaths to Toxic Algal Bloom . MBARI News. Monterey*** E.O. 12866 Review

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Page 30 of 191 linked to aquatic life impacts include Pfisteria piscicida , which produces several toxins that impact fish and humans 57 and the flagellate Heterosigma akashiwo which produce s

an ichthyotoxin that kills fish

. 58 Secondly, excessive algal growth reduc es water clarity, resulting in reduced light availability for benthic algae, macrophytes, and seagrasses. 59 A substantial body of scienti fic research shows that nitrogen and phosphorus pollution play s a significant role in the decline of seagrass by reducing light availability. Enhanced n utrient input s increase the phytoplankton biomass and thereby increase water column light attenuation , w hich limits the light available for seagrass photosynthesis. This results in reduced growth and increased mortality of seagrasses

. In addition, nutrient pollution can lead to e xcess growth of epiphytic alga e on seagrasses that blocks the light available to seagrasses and affects seagrass growth. 60 This reduction of seagrass communities, in turn, results in

Bay Aquarium Research Institute. <http://www.mbari.org/news/news_releases/2000/jan06_scholin.html>. Accessed June 2011. 57 Waring G.T., E. Josephson, K. Maze

- Foley, and P.E. Rosel, eds. 2011. Humpback Whale (Megaptera no vaeangliae): Gulf of Maine Stock. In U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments

– 2010, NOAA Technical Memorandum NMFS

- NE

- 219. National Oceanic and Atmospheric Administration, National Marine Fisheries Service. < http://www.nefsc.noaa .gov/publications/tm/tm219/>. Accessed January 2012. 58 Rensel, J.E.J. 2007. Fish kills from the harmful alga Heterosigma akashiwo in Puget Sound: Recent blooms and review. Prepared for National Oceanic and Atmospheric Administration, Center for Sponsored Coastal Ocean Research, by Rensel Associates Aquatic Sciences, Arlington, Washington. <http://www.whoi.edu/fileserver.do?id=39383&pt=2&p=29109>. Accessed January 2012. 59 Vitousek, P.M., J.D. Aber, R.W. Howarth, G.E. Likens, P.A. Matson, D.W. Schindler, W. H. Schlesinger, and D.G. Tilman. 1997. Human alteration of the global nitrogen cycle: Sources and consequences. Ecological Applications 7(3):737

- 750. Bricker, S.B., J.G. Ferreira, and T. Simas. 2003. An integrated methodology for assessment of estuarine trophic status. Ecological Modelling 169(1):39

- 60. Bricker, S.B., B. Longstaff, W. Dennison, A. Jones, K. Boicourt, C. Wicks, and J. Woerner. 2008. Effe cts of nutrient enrichment in the nation's estuaries: A decade of change. Harmful Algae 8(1):21

- 32. Boyer, J.N., C.R. Kelble, P.B. Ortner, and D.T. Rudnick. 2009. Phytoplankton bloom status: Chlorophyll a biomass as an indicator of water quality condition in the southern estuaries of Florida, USA. Ecological Indicators 9(6, Supplement 1):S56

- S67. 60 Duarte, C.M. 1991. Seagrass depth limits. Aquatic Botany 40(4):363

- 377.*** E.O. 12866 Review

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Page 31 of 191 impacts such as destabilization of sediments , which causes the release of more nutrient s into the water column. 61
The ro le that nitrogen and phosphorus pollution plays in the decline of seagrass has been studied extensively in Florida. 62 In a report published by USGS in 2001, s ix of nine Florida estuaries located along the Gulf Coast show ed declines in seagrass coverage, the predominant causes of which we re nitrogen and phosphorus pollution , dredging, propeller scarring, hydrologic alterations, increased turbidity, and chronic light reduction. 63 Florida Fish & Wildlife Conservation Commission has noted several areas of signifi cant seagrass decline between 1950 and 2000 , including 72 percent loss in St Joseph Sound, 43 percent loss in the northern section of Biscayne Bay near Miami, 40 percent loss in Tampa Bay, 30 percent loss in the Indian River Lagoon, and 29 percent loss in Charlotte Harbor. These losses were associated with population growth in these watersheds that occurred during the same time period, indicating impacts from human activities such as runoff from residential and agricultural areas containing fertilizers and

61 Boyer, J.N., C.R. Kelble, P.B. Ortn er, and D.T. Rudnick. 2009. Phytoplankton bloom status: Chlorophyll a biomass as an indicator of water quality condition in the southern estuaries of Florida, USA. Ecological Indicators 9(6, Supplement 1):S56

- S67. 62 For more information refer to: (1) Dawes , C.J., R.C. Phillips, and G. Morrison. 2004. Seagrass Communities of the Gulf Coast of Florida: Status and Ecology . Florida Fish and Wildlife Conservation Commission Fish and Wildlife Research Institute and the Tampa Bay Estuary Program. St. Petersburg, F L. iv + 74 pp.; (2) Tomasko, D.A., C.A. Corbett, H.S. Greening, and G.E. Raulerson. 2005. Spatial and temporal variation in seagrass coverage in Southwest Florida: assessing the relative effects of anthropogenic nutrient load reductions and rainfall in fou r contiguous estuaries. Marine Pollution Bulletin 50: 797

– 805.; (3) Orth, R.J., T.J.B. Carruthers, W.C. Dennison, C.M. Duarte, J.W. Fourqurean, K.L. Heck Jr., A.R. Hughes, G.A. Kendrick, W.J. Kenworthy, S. Olyarnik, F.T. Short, M. Waycott, and S.L. William s. 2006. A global crisis for seagrass ecosystems. Bioscience 56:987

- 996.; (4) Burkholder, J.M., D.A. Tomasko, and B.W. Touchette. 2007. Seagrasses and eutrophication. Journal of Experimental Marine Biology and Ecology 350:46

- 72.; (5) Collado

- Vides, L., V.G ., Caccia, J.N. Boyer, and J.W. Fourqurean. 2007. Tropical seagrass

- associated macroalgae distributions and trends relative to water quality. Estuarine, Coastal and Shelf Science 73:680

- 694. 63 USGS. 2001. Seagrass Habitat In the Northern Gulf of Mexico: De gradation, Conservation, and Restoration of a Valuable Resource . USGS Gulf of Mexico Habitat Program Team, 855

- R

- 04

- 001. < http://gulfsci.usgs.gov/gom_ims/pdf/pubs_gom.pdf >. Accessed July 2011.*** E.O. 12866 Review

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- Do Not Cite, Quote, or Release During Review ***

Page 32 of 191 construction projects which contribute high levels of suspended sediments. 64 Several studies have attributed declines in seagrass to excess chlorophyll a and phytoplankton in the water column which can increase light attenuation. One study conducted from 1989

- 1991 found that excess chlorophyll a caused light attenuation of 16 to 28 percent across Charlotte Harbor and Tampa Bay . However, the authors did note an overall improvement in seagrass recolonization and areal cover in Hillsborough Bay and other parts of Tampa Bay starting in the late 1980s coinciding with increased water clarity. 65 A later study , which conducted sampling monthly between June 1998 and July 1999, estimated that phytoplankton biomass contribute d approximately 29 percent of total water column light attenuation in Lemon Bay , Florida

. The authors predicted a continuation in the potential decline of seagrasses with increased urbanization. 66 Lastly, excessive algal growth also leads to low dissolved oxygen (DO) potentially cre ating hypoxic and anoxic conditions

. 67 The cause and effect relationship between nitrogen and phosphorus pollution and marine hypoxia is clear and well documented in the scientific literature

. 68 Increase d nitrogen and phosphorus inputs lead to

64 FWCC. 2002. Florida’s Seagrass Meadows: Benefitting Everyone

. Florida Fish & Wildlife Conservation Commission. < http://www.sarasotabay.org/documents/seagrassbrochure.pdf >. Accessed July 2011. 65 McPherson, B.F., and R.L. Miller. 1994. Causes of Light Attenuation in Tampa Bay and Charlotte Harbor, Southwestern Florida . Water Resources Bulletin 30(1):43

- 53. 66 Tomasko, D.A., D.L. Bristol, and J.A. Ott. 2001. Assessment of present and future nitrogen loads, water quality, and seagrass ( Thalassia testudinum ) depth distribution in Lemon Bay, Florida. Estuaries 24(6A):926

- 93 8. 67 Vitousek, P.M., J.D. Aber, R.W. Howarth, G.E. Likens, P.A. Matson, D.W. Schindler, W.H. Schlesinger, and D.G. Tilman. 1997. Human alteration of the global nitrogen cycle: Sources and consequences. Ecological Applications 7(3):737

- 750. 68 Conley, D., J. Carstensen, R. Vaquer

- Sunyer, and C. Duarte. 2009. Ecosystem thresholds with hypoxia. Hydrobiologia 629(1):21

- 29. Conley, D.J., H.W. Paerl, R.W. Howarth, D.F. Boesch, S.P. Seitzinger, K.E. Havens, C. Lancelot, and G.E. Likens. 2009. ECOLOGY Controlling E utrophication: Nitrogen and Phosphorus. Science 323(5917):1014

- 1015. Conley, D.J., H.W. Paerl, R.W. Howarth, D.F. Boesch, S.P. Seitzinger, K.E. Havens, C. Lancelot, and G.E. Likens. 2009. Eutrophication: Time to Adjust Expectations Response. Science 324(5 928):724

- 725.*** E.O. 12866 Review

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Page 33 of 191 excessive algal growth and organic matter loading to bottom waters

. Bacterial decomposition of the organic matter consumes oxygen and depletes the water column of
DO. 69 In estuaries and coastal waters, low DO is one of the most widely reported consequences of nitro gen and phosphorus pollution and one of the best predictors of a range of biotic impairments. 70 Low DO causes impacts to aquatic life ranging from mortality to chronic impairment of growth and reproduction. 71 Hypoxia is typically defined as DO < 2 mg/L, and anoxia as DO < 0.1 mg/L. 72 When nutrient pollution creates conditions that result in large hypoxic zone s , substantial changes in fish, benthic, and plankton communities may occur. 73 This include s avoidance behaviors by fish , mobile benthic invertebrates mi grating from the hypoxic area , and fish kills in some systems when fish and other mobile aquatic organisms have nowhere to migrate away from the areas with low DO

. 74 This can result in changes to the benthic invertebrate community

Diaz, R.J. 2001. Overview of hypoxia around the world. Journal of Environmental Quality 30(2):275

- 281. Diaz, R.J. and R. Rosenberg. 2008. Spreading dead zones and consequences for marine ecosystems. Science 321(5891):926

- 929. 69 Clement, C

. ,, S. B. Bricker and D.E. Pirhalla. 2001 (on

- line). Eutrophic Conditions in Estuarine Waters. In: NOAA's State of the Coast Report. Silver Spring, MD: National Oceanic and Atmospheric Administration. URL: http://state

- of

- coast.noaa.gov/bulletins/html/eut_1 8/eut.html . Accessed December 2011. 70 Bricker, S.B., J.G. Ferreira, and T. Simas. 2003. An integrated methodology for assessment of estuarine trophic status. Ecological Modelling 169(1):39

- 60. Bricker, S.B., C.G. Clement, D.E. Pirhalla, S.P. Orlando, and D .R.G. Farrow. 1999. National Estuarine Eutrophication Assessment, Effects of Nutrient Enrichment in the Nation's Estuaries . NOAA, National Ocean Service, Special Projects Office and the National Centers for Coastal Ocean Science. Silver Spring, MD. 71 USEP A. 2001. Nutrient Criteria Technical Guidance Manual, Estuarine and Coastal Marine Waters

. EPA

- 822

- B

- 01

- 003. USEPA, Office of Water, Office of Science and Technology. 72 USEPA. 1999. Ecological Conditions of Estuaries in the Gulf of Mexico. EPA 620

- R

- 98

- 00 4. U.S. Environmental Protection Agency, Office of Research and Development, National Health and Environmental Effects Research Laboratory, Gulf Ecology Division, Gulf Breeze, Florida. 73 Howell, P. and D. Simpson. 1994. Abundance of marine resources in rel ation to dissolved oxygen in Long Island Sound. Estuaries 17(2):394

- 402. Kidwell, D.M., A.J. Lewitus, S. Brandt, E.B. Jewett, and D.M. Mason. 2009. Ecological impacts of hypoxia on living resources. Journal of Experimental Marine Biology and Ecology 381(S upplement 1):S1

- S3. 74 Howell, P. and D. Simpson. 1994. Abundance of marine resources in relation to dissolved oxygen in Long Island Sound. Estuaries 17(2):394

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Page 34 of 191 structure of estuaries an d coastal areas, with increases of organisms more tolerant of low
DO

. 75 E ven intermittent hypoxia can cause shifts in the benthic assemblage to favor resistant o r tolerant organisms, which are less desirable food sources, creating unbalanced benthic communi ties in the hypoxic zone because fish avoid the area. 76 When hypoxia extends into shallow waters, it affect s spawning and nursery areas for many important fish species by reducing the habitat available that protects smaller fish and aquatic organisms , espec ially juveniles, from predation. 77 Hypoxia has been implicated in a recent increase and late

- summer dominance of hypoxia

- tolerant gelatinous zooplankton (jellyfish and ctenophores) in the Chesapeake Bay and other eastern estuaries. 78 R educed fishery production in hypoxic zones has been documented in the United States and worldwide. 79 Hypoxia and anoxia in bottom waters result in anoxia in the surface sediments, which has geochemical consequences including acidification, release of toxic hydrogen

Kidwell, D.M., A.J. Lewitus, S. Brandt, E.B. Jewett, and D.M. Mason. 2009. Ecological impact s of hypoxia on living resources. Journal of Experimental Marine Biology and Ecology 381(Supplement 1):S1

- S3

. ) 75 Baker, S. and R. Mann. 1992. Effects of hypoxia and anoxia on larval settlement, juvenile growth, and juvenile survival of the oyster Crassostr ea virginica

. Biological Bulletin 182(2):265

- 269. Baker, S. and R. Mann. 1994. Feeding ability during settlement and metamorphosis in the oyster Crassostrea virginica (Gmelin, 1791) and the effects of hypoxia on post

- settlement ingestion rates. Journal of Experimental Marine Biology and Ecology 181(2):239

- 253. Baker, S.M. and R. Mann. 1994. Description of metamorphic phases in the oyster Crassostrea virginica and effects of hypoxia on metamorphosis. Marine Ecology Progress Series 104:91

- 99. Baustian, M. and N. Rabalais. 2009. Seasonal composition of Benthic Macroinfauna exposed to hypoxia in the northern Gulf of Mexico. Estuaries and Coasts 32(5):975

- 983. Breitburg, D. 2002. Effects of hypoxia, and the balance between hypoxia and enrichment, on coastal fishes and fisheries. Estuaries 25(4):767

- 781. 76 Kidwell, D.M., A.J. Lewitus, S. Brandt, E.B. Jewett, and D.M. Mason. 2009. Ecological impacts of hypoxia on living resources. Journal of Experimental Marine Biology and Ecology 381(Supplement 1) :S1

- S3. 77 Breitburg, D. 2002. Effects of hypoxia, and the balance between hypoxia and enrichment, on coastal fishes and fisheries. Estuaries 25(4):767

- 781. 78 Grove, M. and D.L. Breitburg. 2005. Growth and reproduction of gelatinous zooplankton exposed to l ow dissolved oxygen. MARINE ECOLOGY PROGRESS SERIES 301 185

– 198. 79 Diaz, R.J. and R. Rosenberg. 2008. Spreading dead zones and consequences for marine ecosystems. Science 321(5891):926

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Page 35 of 191 sulfide , soluble reactive phosphorus, and ammonia. 80 The sediment of hypoxic zones then becomes a potential source of nutrients that can increase the degree of eutrophication. Systems that have had persistent and chronic hypoxia often fail to reco ver quickly even after pollution l oadings have been reduced. 81 Reduced oxygen also affects a variety of other biogeochemical processes that can impact water quality, such as the chemical form of metals in the water column. 82 Florida has been impacted by al gal blooms for many years. Red algae, Laurencia
intricata and Spyridia filamentosa ; brown algae, Dictyota sp. and Sargassum filipendula ; and green algae, Enteromorpha sp ., Codium isthmocladum , and Halimeda sp. grow in the Florida Bay area. 83 That growth has threatened the commercial ly important fish, lobster, and shrimp nurseries in the area. 84 Southern Palm Beach and northern Broward counties have been impacted by algal mats made up of Caulerpa species since the 1990s. 85

80 Diaz, R.J. and R. Rosenberg. 2008. Spreading dead zones and cons equences for marine ecosystems. Science 321(5891):926

- 929. Kemp, W.M., W.R. Boynton, J.E. Adolf, D.F. Boesch, W.C. Boicourt, G. Brush, J.C. Cornwell, T.R. Fisher, P.M. Glibert, J.D. Hagy, L.W. Harding, E.D. Houde, D.G. Kimmel, W.D. Miller, R.I.E. Newell, M .R. Roman, E.M. Smith, and J.C. Stevenson. 2005. Eutrophication of Chesapeake Bay: Historical trends and ecological interactions. Marine Ecology Progress Series 303:1

- 29. McCarthy, M., K. McNeal, J. Morse, and W. Gardner. 2008. Bottom

- water hypoxia effects on sediment

– water interface nitrogen transformations in a seasonally hypoxic, shallow bay (Corpus Christi Bay, TX, USA). Estuaries and Coasts 31(3):521

- 531. Cai et al. 2011 Acidification of subsurface coastal waters enhanced by eutrophication. Nature Geos cience 4: 766

– 770. 81 Conley, D.J., J. Carstensen, G. Ærtebjerg, P.B. Christensen, T. Dalsgaard, J.L.S. Hansen, and A.B. Josefson. 2007. Long

- term changes and impacts of hypoxia in Danish coastal water. Ecological Applications 17(sp5):S165

- S184. Diaz, R.J. a nd R. Rosenberg. 2008. Spreading dead zones and consequences for marine ecosystems. Science 321(5891):926

- 929. 82 Snoeyink, V.L. and D. Jenkins. 1980. Water Chemistry . John Wiley and Sons, New York. 83 Anderson, D.M., ed. 1995. ECOHAB, The Ecology and Oceanography of Harmful Algal Blooms: A National Research Agenda. Woods Hole Oceanographic Institution, Woods Hole, MA. 84 Anderson, D.M., ed. 1995. ECOHAB, The Ecology and Oceanography of Harmful Algal Blooms: A National Research Agenda. Woods Hole Oceanog raphic Institution, Woods Hole, MA. 85 Jacoby, C., B. Lapointe, and L. Creswell. No date. Are alternative and nonindigenous seaweeds overgrowing Florida’s east coast reefs? SGEF

– 156. Florida Sea Grant College Program. <http://nsgl.gso.uri.edu/flsgp/flsgpg01 015.pdf>. Accessed January 2012.*** E.O. 12866 Review

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Page 36 of 191 Gambierdiscus toxicus (a ciguatoxin producer) is found from Palm Beach to the Dry Tortugas and Florida Bay and is suspected to have cause d fish kills and disease events

. 86
L arge floating mats of Lyngbya majuscula were common across Charlotte Harbor, Cedar Key, Sebastian Inlet, S arasota Bay, Tampa Bay, Terra Ceia Bay, Palma Sola, Manatee River, and northwest Bradenton in 1999, 2000, and 2002. 87 Aureoumbra lagunensis (Texas brown tide) was found in low abundance (< 200 cells/mL) at stations in Florida Bay from November 1996 to June 1997. 88 In 1991, widespread and persistent blooms of cyanobacteria in Florida Bay coincided with massive sponge die

- offs, which impacted the behavior and abundance of populations of juvenile Caribbean spiny lobsters. 89 Two Pseudo

- nitzschia species found in Florida are P. calliantha, which was observed at bloom levels in the northern Indian River Lagoon, and P. pseudodelicatissima

. 90 Pseudo

nitzschia spp. has been observed in Tampa Bay since the 1960s. 91

86 FFWCC. No date. Gambierdiscus toxicus. Florida Fish and Wildlife Conservation Commission. <http://myfwc.com/media/202186/g_toxicus_1054.pdf>. Accessed January 2012. 87 FFWCC. No date. Blue

- Green Algal Blooms in Coastal Fl orida; 1999, 2000, and 2002. Florida Fish and Wildlife Conservation Commission. < http://myfwc.com/research/redtide/archive/historical

- events/blue

green - algal

- blooms

- coastal

- fl/>. Accessed January 2012. 88 Muhlstein, H.I., and T.A. Villareal. 2007. Organic and inorganic nutrient effects on growth rate irradiance relationships in the Texas brown

- tide alga Aureoumbra lagunensis (Pelagophyceae). Journal of Phycology 43(6):1223

- 1226. Villareal, T.A., Chirichella, T., Buskey, E.J. 2004. Regional Distribution of t he Texas Brown Tide (Aureoumbra lagunensis) in the Gulf of Mexico. In Harmful Algae 2002, ed. K.A. Steidinger, J.H. Landsberg, C.R. Tomas, and G.A. Vargo, pp. 374

- 376. Florida Fish and Wildlife Conservation Commission, Florida Institute of Oceanography, an d Intergovernmental Oceanographic Commission of UNESCO, St. Petersburg, Florida. <http://myfwc.com/research/redtide/information/links/x

- international

conference/>. Accessed January 2012. 89 Butler, M.J,, J.H. Hunt, W.F. Herrnking, M.J. Childress, R. Bertels en, W. Sharp, T. Matthews, J.M. Field, and H.G. Marshall. 1995. Cascading disturbances in Florida Bay, USA: cyanobacteria blooms, sponge mortality, and implications for juvenile spiny lobsters Panulirus argus. Marine Ecology Progress Series 129:119

- 125. 90 Phlips et al. 2011. Scales of temporal and spatial variability in the distribution of harmful algae species in the Indian River Lagoon, Florida, USA. Harmful Algae 10:277

- 290. Phlips, E.J., S. Badylak, S. Youn, and K. Kelley. 2004. The occurrence of potent ially toxic dinoflagellates and diatoms in a subtropical lagoon, the Indian River Lagoon, Florida, USA. Harmful Algae 3(1):39

- 49. 91 Badylak, S., E.J. Phlips, P. Baker, J.Fajans, and R. Boler. 2007. Distributions of phytoplankton in Tampa Bay estuary, U.S.A . 2002

- 2003. Bulletin of Marine Science 80(2):295

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Page 37 of 191 In addition to being impacted by algal toxins and decli ne of seagrass , aquatic life in Florida is directly impacted by hypoxia. In June 2011, a fish kill in Marco Islands , Florida was attributed to low dissolved oxygen, resulting from a “mixed” bloom of non

toxic algae and diatoms. 92 Scientists at the University of Texas showed that chronic exposure of Atlantic croaker to hypoxia in Florida’s East Bay estuary resulted in “marked suppression of ovarian and testicular growth which was accompanied by endocrine disruption.” During the same study, the scient ists observed normal gonadal growth in Atlantic croaker found in the nearby waters of Pensacola Bay which had sufficient oxygen levels. 93 Newspapers in Florida regularly report on impacts associated with nitrogen and phosphorus pollution. Recent examples in clude reports of algal blooms and fish kills in the St. Johns River

. 94 Spring releases of water from Lake Okeechobee into the St. Lucie Canal resulted in floating mats of toxic cyanobacteria, Microcystis aeruginosa, prompting Martin and St. Lucie county hea lth departments to issue public health warnings. 95 A large Microcystis bloom was documented in the Lower St. Johns River in 2005, covering a 100

92 Fish kill in island canals appears over. 2011. Marconews.com

– Marco Eagle. <http://www.marconews.com/news/2011/jun/02/dead

- fish

- bad

- smell

- permeate

- parts

- island/?print=1>. Accessed January 2012. 93 Tho mas, P., Md. S. Rahman, I.A. Khan, and J.A. Kummer. 2007. Widespread endocrine disruption and reproductive impairment in an estuarine fish population exposed to seasonal hypoxia. Proceedings of the Royal Society B (274):2693

– 2701. 94 Patterson, S. 2010, Jul y 23. St John’s River Looks Sick. Florida Times Union. <http://jacksonville.com/news/metro/2010

- 07

- 23/story/st

- johns

- looks

- sick

- nelson

- says>. Accessed September 2010. Patterson, 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

- churns

- environmental

questions>. Accessed October 2010. 95 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

- green - algae

found

- floating

- near - palm

- city

- o/>. Accessed October 2010.*** E.O. 12866 Review

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Page 38 of 191 mi (160 km) stretch from Jacksonville to Crescent City. 96 Toxic cyanobacteria Anabaena circinalis and Cylindrospe rmopsis raciborskii have been implicated in fish kills in the Lower St. Johns River basin. 97 In addition, in June 2009, a large algal bloom stretching more than 14 mi (23 km) was documented in Tampa Bay. This was linked to surface water runoff of nutrients and pollutants (e.g., fertilizers, yard waste, animal feces) that were washed into the bay from recent heavy rains. 98 Numerous algal blooms, some capable of producing toxins, foul odors, and fish kills, occurred in Florida coastal areas, estuaries, and cana ls in 2011. G reen algae, known as June Grass, w ere found washing onto local beaches on Okaloosa Island. The algae adheres to swimmers, cover s beaches and hinder s fishing. 99 In the Caloosahatchee River and estuary, high algae and salinity levels caused the
O lga water treatment plant in Lee County to close in May 2011. Customers complained about unusual tastes and odors in their drinking water . The blue

- green algae bloom significantly affected areas from the W.P. Franklin Lock and Dam, upstream through Alva an d LaBelle, Florida. The bloom caused fish, bird and shellfish mortalities, and triggered the Lee County Health Department to issue warnings and advisories on water

96 Aubel, M., P. D'Aiuto, A. Chapman, D. Casamatta, A. Reich, S. Ketchen, and C. Williams. 2006. Blue

Green Algae in St . Johns River, FL. Lakeline Summer 2006: 40

- 45. 97 FWRI. 2009. Resource Guide for Public Health Response to Harmful Algal Blooms in Florida . ed. G. M

. Abbott, J. H. Landsberg, A. R. Reich, K. A. Steidinger, S. Ketchen and C. Blackmore. Technical Report TR

- 1 4. Florida Fish and Wildlife Research Institute. <http://www.lsjr.org/pdf/ResourceGuide_FL_algal_blooms_2009.pdf>. Accessed June 2011. 98 Pittman, C. 2009. Algae bloom one of largest in Tampa Bay history. St. Petersburg Times. <http://www.tampabay.com/news/ environment/water/article1013322.ece>. Accessed July 2010. 99 Tammen, K. 2011, April 20. It’s not even June and the June Grass is Back

. Northwest Florida Daily News. http://www. nwfdailynews.com/news/grass

- 39438

- island

- okaloosa.html . Accessed April 2011.*** E.O. 12866 Review

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Page 39 of 191 and fish consumption as well as swimming. Toxic blue

- green algae species were identified in the bloom, including Anabaena , Oscillatoria and Aphanizomenon sp. 100 The Indian River Lagoon also experienced large and prolonged algae blooms

. High levels of green algae Resultor sp. were found from Titusville to Melbourne and covering the entire Banana River. The algae were thought to be responsible for killing hundreds of fish and inhibiting seagrass growth. 101 A large rust

- color ed bloom of Pyrodinium bahamense formed in Old Tampa Bay in August 2011 ; t he bloom stretched from Safety Harbor to the Howard Fr ankland Bridge and was thought to be caused by a combination of heat, rain, and fertilizer runoff. 102

c. Adverse Impacts of Nitrogen and Phosphorus Pollution on Human Health

100 Lee Closes a Water Plant; Blame Algae and Saltwater intrusion in Caloosahatchee. 2011, May 19. CBS Wink News Now. http://www.winknews.com/Local

- Florida/2011

- 05

- 19/Lee

- Closes

- a - Water

- Plant

- Blame

Algae

- and

- Salt

- water

- intrusion

- in

- Caloosahatchee . Accessed December 2011. Lollar, K. 2011, June 6. Bacterial bloom stains waterway up to LaBelle. News

- Press. http://www.marconews.com/news/2011/jun/02/dead

- fish

- bad

- smell

- permeate

- parts

- island/ . Accessed June 2011. Crisis in the Caloosahatchee: Algal blooms in local waters. 2011, June 8. Sanibel

- Captiva Islander. http://sanibel

- captiva

- islander.com/page/content.detail/id/511872/Crisis

- in

- the

- Caloosahatchee

-- Algal

blooms

- in

- local

- waters.html?nav=5051 . Accessed June 2011. Warning added for Lee County waters. 2011, June 16. CBS Wink News Now. http://www.winknews.com/Local

- Florida/2011

- 06

- 16/Warning

- added

- for

- Lee

- County

- waters . Accessed June 2011. Cornwell, B. 2011, June 22. Algae Bloom doesn’t deter everyone. F ort Meyers Florida Weekly

. http://fortmyers.floridaweekly.com/news/2011

- 06

- 22/Top_News/Algae_bloom_doesnt_deter_everyone.html . Accessed June 2011. 101 Florida Today. 2011, July 18. Green algae killing fish, seagrass in northern Indian River Lagoon. 10 News WTSP

– Tampa Bay. http:// www.wtsp.com/rss/article/201465/19/Green

- algae

- killing

- fish

- seagrass in

- northern

- Indian

- River

- Lagoon . Accessed December 2011. 102 Reyes, R. 2011, August 31. Algae bloom continues to grow in Old Tampa Bay. Tampa Bay Online. http://www2.tbo.com/news/breaking

- news/2011/aug/31/1/algae

- bloom

- continues

- to

- grow - in

- old

- tampa

bay

- ar - 254281/ . Accessed December 2011. Harwell, D. 2011, August 27. Tampa Bay algae bloom threatens the estuary’s fish . St. Petersburg Times. http://www.tampabay.com/news/environment/water/tampa

- bay

- algae

- bloom

- threatens

- the

- estuarys

fish/1188284 . Accessed August 2011.*** E.O. 12866 Review

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Page 40 of 191 Toxins produced by HABs have been linked , through recreational exposure, to adverse human health impacts through ingesti on of contaminated seafood, dermal reactions , and respiratory problems. 103 Ingestion of seafood that is contaminated with toxins cause s gastrointestinal, neurological, cardiovascular, and hepatological illnesses.
In some severe cases, ingestion of even a small amount of contaminated seafood can result in coma or death. 104 Each year in the United States , incidents of poisoning from marine toxins are reported to the CDC. 105 Among the toxins HABs produce are ciguatoxins, which leads to Ciguatera fish poisoning (CFP), one of the most commonly reported food borne illness es caused by a marine biotoxin in the United States, 106 with 1 76 cases reported in 2009 (22 percent of the tota l reported cases of food poisoning from seafood toxins)

. 107 Ciguatoxins are

103 WHOI. 2006. Harmful Algae and Red Tides Primer. Woods Hole Oceanographic Institute, Woods Hole, MA. Anderson, D. 2004. The growing problem of Harmful Algae. Woods Hole Oceanographic Institu te, Woods Hole, MA. Graham, J. 2007. Harmful Algal Blooms. U.S. Geological Survey, Lawrence, KS CDC. 2004. About Harmful Algal Blooms. Centers for Disease Control and Prevention, Atlanta, GA Bronstein, A.C., D.A. Spyker, L.R. Cantilena, Jr., J.L. Green, B. H. Rumack, S.L. Giffin. 2009. 2008 Annual Report of the American Association of Poison Control Centers’ National Poison Data System (NPDS): 26th Annual Report. Clinical Toxicology 48 : 979

– 1178

. Landsberg, J

. , F

. Van Dolah, and G

. Doucette. 200 6 . Marine and e stuarine h armful a lgal b looms: Impacts on h uman and a nimal h ealth. In Oceans and Health: Pathogens in the Marine Environment . Edited by Belkin and Colwell, Springer, New York, 2005. NOAA. 2009. Marine Biotoxins

. National Oceanic and Atmospheric Administrat ion. < http://www.nwfsc.noaa.gov/hab/habs_toxins/marine_biotoxins/index.html >. Accessed December 2011. Anderson, D. P. Glibert, and J. Burkholder. (DATE) Harmful Algal Blooms and Eutrophication: Nutrient Sources, Composition, and Consequences. Estuaries 25( 4b): 704

- 726. 104 Bushaw

- Newton, K.L. and K.G. Sellner 1999. Harmful Algal Blooms. In: NOAA's State of the Coast Report . Silver Spring, MD: National Oceanic and Atmospheric Admi nistration. < http://oceanservice.noaa.gov/websites/retiredsites/sotc_pdf/hab.pdf > 105 CDC. 2005. Marine Toxins: Frequently Asked Questions. Centers for Disease Control and Prevention. < http://www.cdc.gov/ncidod/dbmd/diseaseinfo/marinetoxins_g.htm > Accessed June 2011. 106 Dickey, R.W., and S.M. Plakas. 2010. Ciguatera: A public health perspective. Toxicon 56: 123

- 136. 107 Bronstein, A.C., D.A. Spyker, L.R. Cantilena, Jr., J.L. Green, B.H. Rumack, S.L. Giffin. 2009. 2008 Annual Report of the American Association of Poi son Control Centers’ National Poison Data System (NPDS): 26th Annual Report. Clinical Toxicology 48 : 979

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Page 41 of 191 bioaccumulative , causing gastrointestinal, neurological, or cardiovascular symptoms that vary in intensity. 108 Saxitoxins are also produced by HABs, leading to p aralytic shellfish poi soning (PSP , which occurs when humans eat shellfish contaminated with saxitoxins , affect ing the nervous system and in severe cases causing respiratory paralysis. 109 Domoic acid , also produced by HABs, can also cause food poisoning , produc ing symptoms ranging from mild gastrointestinal discomfort to permanent brain damage and , in rare cases, death. 110 Recreational exposure to toxins from HABs occur when humans inhale sea spray vapor containing fragments of marine algae cells and their associated toxins during

wa ter

- related activities such as jet

- skiing or boating , causing hay fever

- like respiratory problems

. 111 In addition, e levated levels of nitrate , a byproduct of nutrient pollution in surface
waters , can cause public health concern s if the water is a drinking w ater source, where 112

n itrate is converted to harmful nitrite after ingestion. 113 The primary human health concern with nitrates and nitrites in drinking water is methemoglobinemia, although

108 McKee D. Physician diagnosis and reporting of ciguatera fish poisoning in an endemic area. In Harmful Algal Blooms 2000, eds. G.M. Hallegraeff, S.I. Blackburn, C.J. Bolch, and R.J. Lewis. Proceedings of the 9th International Conference on Harmful Algal Blooms, Intergovernmental Oceanographic Commission of UNESCO: Paris. 109 Landsberg, J

. , F

. Van Dolah, and G

. Doucette. 200 6 . Marine and estuarine h arm ful a lgal b looms: Impacts on h uman and a nimal h ealth. In Oceans and Health: Pathogens in the Marine Environment . Edited by Belkin and Colwell, Springer, New York, 2005. 110 NOAA. 2009. Marine Biotoxins

. National Oceanic and Atmospheric Administration. < http://www.nwfsc.noaa.gov/hab/habs_toxins/marine_biotoxins/index.html >. Accessed December 2011. 111 CDC. 2010. Facts about Cyanobacteria and C yanobacterial H armful A lgal B looms

. Centers for Disease Control and Prevention . < http://www.cdc.gov/hab/cyanobacteria/facts.htm > Accessed August 2010. 112 FDEP. 1998. Water Groundwater Quality and Agricultural Land Use in the Polk County Very Intense Study Area (VISA). Florida Department of Environmental Protecti on, Division of Water Facilities. http://www.dep.state.fl.us/water/ monitoring/docs/facts/fs9802.pdf. Accessed September 2010. 113 Gulis. G., M. Czompolyova, J.R. Cerhan. 2002. An Ecologic Study of Nitrate in Municipal Drinking Water and Cancer Incidence in Trnava District, Slovakia. Environmental Research 88: 182

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Page 42 of 191 adverse thyroid effects have been associated with elevated nitrates as well

. 114
M ethemoglobinemia, or “blue baby syndrome , ” a s the name implies, most often affects infants less than six months old, although adults can also be affected when the ingested nitrate is converted to nitrite in the body that prevents hemoglobin in t he blood from delivering oxygen effectively throughout the body. Methemoglobinemia is an acute disease and symptoms can develop rapidly in infants , usually over a period of days. Symptoms include shortness of breath and blueness of the skin , and even death in severe

cases . 115 EPA developed a Maximum Contaminant Level (MCL) of 10 mg/L for nitrate in drinking water and an MCL of 1 mg/L for nitrite. 116 In the 2010 USGS National Water

Quality Assessment Program report, nitrate concentrations in streams across the U.S. exceeded 10 mg/L in 28 percent of streams in agricultural areas and 83 percent of studies of shallow ground water

. However, t he report also found that nitrate concentrations exceeding the MCL of 10 mg/L were more prevalent in groundwater d rinking water

sources than in streams. 117 There is strong documentation for the increased contamination

114

. Fan, A.M. and Steinberg, V.E. (1996). Health implications of nitrate and nitrite in drinking water: an update on methemoglobinemia occurrence and reproductive and development toxicity. Regul. Toxicol. Pharmacol., 23(1 Pt 1): 35

– 43. 115 Manassaram, D. M., L. C. Backer, and D. 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. FDEP. 2011. Drinking Water: Inorganic Contaminants . Florida Department of Environmental Protection. < http://www.dep.state.fl.us/water/drinkingwater/inorg

_ con.htm >. Accessed November 2011. 116 USEPA. 2007. Nitrates and Nitrites: TEACH Chemical Summary

. U.S. Environmental Protection Agency. < http://www.epa.gov/teach/chem_summ/Nitrates_summary.pdf >. Accessed November 2011

. 117 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 w aters

— Nutrients in the Nation’s streams and groundwater, 1992

– 2004: U.S. Geological Survey Circular 1350 , 174p. http://water.usgs.gov/nawqa/nutrients/pubs/circ1350

. Accessed November 2011.*** E.O. 12866 Review

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Page 43 of 191 of groundwater aquifers and drinking water supplies from anthropogenic sources of nitrogen. 118
Nitrate is the most common nutrient found in groundwater. E le vated nitrate concentrations in groundwater are more common in rural agricultural areas that are often served by private wells. When n itrate occurs at concentrations greater than 1 mg/L , it is considered to be the result of human activities such as applica tion of agricultural fertilizers, disposal of animal wastes, and use of septic tanks. 119 Nitrogen and phosphorus pollution has been clearly linked to human health impacts in Florida, primarily through illnesses associated with HABs. Significant HAB

caused toxins that have been found in Florida’s marine waters include saxitoxins, brevetoxins, ciguatoxins, cyanotoxins, domoic acid, and okadaic acid. 120 Between January 2002 and May 2004, 28 cases of saxitoxin poisoning associated with puffer fish caught in Flo rida’s Indian River Lagoon (IRL) were reported. In 2002, Florida Fish and Wildlife Conservation Commission banned the commercial and recreational harvest of puffer fish in several water bodies in Florida and made that ban

118 USGS. 2010. Hydrogeology and Groundwater Quality of Highlands County, FL. Scientific Investigations Report 2010

– 5097. U.S. Geological Survey, Reston, VA Dubrovsky, N.M., Burow, K.R., Clark, G.M., Gronberg, J.M., Hamilton P.A., Hitt, K.J., Mueller, D.K., M unn, 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. 119 DeSimone, L. et al. 2009. Quality of Water from Domestic Wells in Principal Aquifers of the United States, 1991

- 2004: Overview of Major Findings . U nited States Geological Survey . National Water Quality Assessment Program. Circular 1332. http://water.usgs.gov/nawqa/studies/domestic_wells/WaterWellJournalAr ticle_DeSimoneetal2009.pdf

. Accessed November 2011. 120 Abbott,G. M., J. H. Landsberg, A. R. Reich, K. A. Steidinger, S.Ketchen, and C. Blackmore. 2009. Resource Guide for Public Health Response to Harmful Algal Blooms in Florida. Fish and Wildlife Research Institute Technical Report TR

- 14. viii + 132 p. <http://myfwc.com/research/redtide/task

force/reports

- presentations/resource

- guide

- for

- public

- health

- response - to

- harmful

- algal

- blooms

- in

- florida/> Accessed June 2011*** E.O. 12866 Review

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Page 44 of 191 permanent in 2004. 121 Although puffe r fish poisoning is typically associated with tetrodotoxins, samples were also contaminated with saxitoxins. 122 In Florida, ciguatera fish poisoning (CFP) poses a significant risk to public health. 123 One estimate indicates that approximately 1,300 cases of C FP (reported and unreported cases) occur annually in Florida. 124 The Florida Department of Health ( FDOH ) reported 8 cases of CFP in 2005, 44 cases in 2006, 34 cases in 2007, and 51 cases in 2008. 125 d. Adverse Impacts of Nitrogen and Phosphorus Pollution on t he Economy Excessive algal blooms result in a range of economic losses, including lost revenue from impacts to commercial fisheries, recreational fishing and boating trips, and tourism , as well as increased drinking water costs and reduced waterfront prope rty

121 Abbott,G. M., J. H. Landsberg, A. R. Rei ch, K. A. Steidinger, S.Ketchen, and C. Blackmore. 2009. Resource Guide for Public Health Response to Harmful Algal Blooms in Florida. Fish and Wildlife Research Institute Technical Report TR

- 14. viii + 132 p. <http://myfwc.com/research/redtide/task

force/ reports

- presentations/resource

- guide

- for

- public

- health

- response - to

- harmful

- algal

- blooms

- in

- florida/> Accessed June 2011. 122 Landsberg, J.H., S. Hall, J.N. Johannessen, K.D. White, S.M. Conrad, J.P. Abbott, L.J. Flewelling, R.W. Richardson, R.W. Dickey, E.L. E. Jester, S. M. Etheridge, J.R. Deeds, F.M. Van Dolah, T.A. Leighfield, Y. Zou, C.G. Beaudry, R.A. Benner, P.L. Rogers, P.S. Scott, K. Kawabata, J.L. Wolny, and K.A. Steidinger. 2006. Saxitoxin Puffer Fish Poisoning in the United States, with the First Re port of Pyrodinium bahamense as the Putative Toxin Source. Environmental Health Perspectives . 114(10):1502

- 1507. 123 Cited in Abbott,G. M., J. H. Landsberg, A. R. Reich, K. A. Steidinger, S.Ketchen, and C. Blackmore. 2009. Resource Guide for Public Health Re sponse to Harmful Algal Blooms in Florida. Fish and Wildlife Research Institute Technical Report TR

- 14. viii + 132 p. <http://myfwc.com/research/redtide/task

force/reports

- presentations/resource

- guide

- for

- public

- health

- response - to

- harmful

- algal

- blooms

- in

- f lorida/> Accessed June 2011. 124 Cited in Abbott,G. M., J. H. Landsberg, A. R. Reich, K. A. Steidinger, S.Ketchen, and C. Blackmore. 2009. Resource Guide for Public Health Response to Harmful Algal Blooms in Florida. Fish and Wildlife Research Institute Tech nical Report TR

- 14. viii + 132 p. <http://myfwc.com/research/redtide/task

force/reports

- presentations/resource

- guide

- for

- public

- health

- response - to

- harmful

- algal

- blooms

- in

- florida/> Accessed June 2011. 125 Abbott,G. M., J. H. Landsberg, A. R. Reich, K. A. Ste idinger, S.Ketchen, and C. Blackmore. 2009. Resource Guide for Public Health Response to Harmful Algal Blooms in Florida. Fish and Wildlife Research Institute Technical Report TR

- 14. viii + 132 p. <http://myfwc.com/research/redtide/task

force/reports

- prese ntations/resource

- guide

- for

- public

- health

- response - to

- harmful

- algal

- blooms

- in

- florida/> Accessed June 2011.*** E.O. 12866 Review

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Page 45 of 191 values. 126 In 2006, U.S. sportfishers spent $42.0 billion on fishing, including $26.3 billion for freshwater fishing and $8.9 billion for saltwater fishing. These costs include trip

- related costs (food, lodging), fishing equipment costs, and other costs such as licenses, land

- leasing, and ownership. 127 Commercial harvests of fish and shellfish totaled $3.9 billion nationally in 2009. 128
The economic value of Florida’s marine recreational fisheries is higher than any other state in the country. R ecreational f ishing contributed over $5 billion to Florida’s
economy. In the 2008/2009 fiscal year, over 1 million individuals bought a marine recreational fishing license, generating over $29 million in revenue. 129 Similarly, Florida has one of the nation’s top producing commercial fisheries

. In 20 09 , Florida’s harvest of the top five commercial species of fish and shellfish was worth more than $ 55 million combined

. In total, commercial fishing contributed more than $1 billion to the economy
of Florida. Outd oor recreation in Florida (includ ing wildlife

- viewing , fishing, and water sports) generates $10.1 billion annually. 130 In 2006, over 3 million Florida residents and

126 Dodds, Walter K., Wes W. Bouska, Jeffrey L. Eitzmann, Tyler J. Pilger, Kristen L. Pitts, Alyssa J. Riley, Joshua T. Schloesser, and Darren J. Thor nbrugh. 200 9

. Eutrophication of U.S. Freshwaters: Analysis of Potential Economic Damage. Environmental Science and Technology , Vol. 43, No. 1, 2009. 127 USFWS

. 2006. 2006 National Survey of Fishing, Hunting, and Wildlife

- Associated Recreation Errata Sheet for National Report . U.S. Fish and Wildlife Service. <http://www.census.gov/prod/2008pubs/fhw06

- errata.pdf>. Accessed July 2011. USFWS . 2006

. 2006 National Survey of Fishing, Hunting, and Wildlife

- Associated Recreation: Florida

. U.S. Fish and Wildlife Serv ice. <http://www.census.gov/prod/2008pubs/fhw06

- fl.pdf>. Accessed July 2011. 128 NOAA. 2009. Fisheries of the United States

— 2009

. National Oceanic and Atmospheric Administration, National Marine Fisheries Service. <http://www.st.nmfs.noaa.gov/st1/fus/fus09/0 2_commercial2009.pdf>. Accessed July 2011. 129 FFW C C . 2011. The Economic Impact of Saltwater Fishing in Florida . Florida Fish and Wildlife Conservation Commission. <http://myfwc.com/conser vation/value/saltwater

- fishing> . Accessed December 2011. 130 F F WC C . No D ate. Outdoor Recreation . Florida Fish and Wildlife Conservation Commission. <http://myfwc.com/conservation/value/o utdoor

- recreation>. Accessed July 2011.*** E.O. 12866 Review

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Page 46 of 191 746,000 visitors participated in wildlife

- viewing activities, for total retail sales of an

es timated $3.1 billion. 131 At the county level, f infish and shellfish are important to Florida Bay and Monroe County’s commercial tourism and fishing industries. Measurable economic losses associated with the changing environmental conditions of the Bay have o ccurred, primarily from the substantial decline in pink shrimp harvests. From 1986 through the early 1990s, employment in commercial fishing declined by about 10 percent, while income of individuals in the industry declined by $16 million. These losses coi ncided with massive seagrass die

- offs in the bay and blue

- green algae blooms

. 132
HAB toxins can make seafo od unsafe for human consumption, leading to an overall reduction in the amount of fish purchased due to the real or perceived threats of contamination

. 133 Additional costs for medical care to treat individuals exposed to toxins are also an economic burden associated with HABs. Economic impacts from nitrogen and phosphorus pollution in Florida include monetary losses due to depressed fisheries, tourism and p roperty values, and elevated costs to address nutrient impacts (e.g., beach cleanup costs, HAB monitoring). Reduction in s eagrass habitat due to nitrogen and phosphorus pollution negatively impacts ecosystem services

. FDEP has estimated that each acre of seagrass is worth

131 USFWS. 2006. 2006 National Survey of Fishing, Hunting, and Wildlife

- Associated Recreation: Florida

. U.S. Fish and Wildlife Service. <http://www.census.gov/prod/2008pubs/fhw06

- fl.pdf>. Accessed July 2011. 132 Gorte, Ross W. 1994. The Florida bay economy and changing environmental conditions. 94

- 435 ENR, CRS Report for Congress, Congressional Research Service, The Library of Congress. 133 WHOI. 2008. Hearing on “ Harmful Algal Blooms: The Challenges on the Nation’s Coastlines ”

. Woods Hole Oceanographic Institution. < http://www.whoi.edu/page.do?pid=8916&tid=282&cid=46007 >. Accessed December 2011

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Page 47 of 191 $20,255 per year, which would translate to a benefit of $44.6 billion statewide

. 134 Florida’s nearshore waters contain nearly 2.2 million acres of seagrass beds, which provide an estimated $40 billion of ecological services annually includi ng support for fish and shellfish that are economically vital to commercial and recreational businesses in Florida. 135 Some estuary experts have attempted to quantify the overall value of individual estuaries in Florida. For example, the Indian River Lagoon National Estuary Program estimated the total value of the Indian River Lagoon at $46.7 billion. In the study, recreational and non

- use values of the lagoon were estimated to increase by nearly $80 million per year if there were a significant increase in th e amount and diversity of

134 USGS 20 01. Seagrass Habitat In the Northern Gulf of Mexico: Degradation, Conservation, and Restoration of a Valuable Resource . USGS Gulf of Mexico Habitat Program Team, 855

- R

- 04

- 001. Burkholder, J.M., D.A. Tomasko, and B.W. Touchette. 2007. Seagrasses and eutroph ication. Journal of Experimental Marine Biology and Ecology 350: 46

- 72. Waycott, M. C.M. Duarte, T.J.B. Carruthers, R.J. Orth, W.C. Dennison, S. Olyarnik, A. Calladine, J.W. Fourqurean, K.L. Heck, Jr., A. R. Hughes, G.A. Kendrick, W.J. Kenworthy, F.T. Shor t, and S.L. Williams. 2009. Accelerating loss of seagrasses across the globe threatens coastal ecosystems. Proceedings of the National Academy of Sciences of the United States of America 106(30): 12377

- 12381. Short, F.T., B. Polidoro, S.R. Livingstone, K.E . Carpenter, S. Bandeira, J.S. Bujang, H.P. Calumpong, T.J.B. Carruthers, R.G. Coles, W.C. Dennison, P.L.A. Erftemeijer, M.D. Fortes, A.S. Freeman, T.G. Jagtap, A.H.M. Kamal, G.A. Kendrick, W.J. Kenworthy, Y.A. La Nafie, I.M. Nasution, R.J. Orth, A. Prathe p, J.C. Sanciangco, B. van Tussenbroek, S.G. Vergara, M. Waycott, and J.C. Zieman. 2011. In press. Extinction risk assessment of the world’s seagrass species. Biological Conservation

. Watson R.A., R.G. Coles, and W.J. Lee Long. 1993. Simulation estimates o f annual yield and landed value for commercial penaeid prawns from a tropical seagrass habitat. Australian Journal of Marine and Freshwater Research 44:211

– 219. Carlson, P. and L. Yarbro. 2008. Seagrass Mapping and Monitoring: Big Bend and Beyond. Presente d at Florida Water Resources Monitoring Council Meeting, St. Petersburg, FL, September 24

- 25, 2008. Costanza, R., R. d’Arge, R. de Groot, S. Farber, M. Grasso, B. Hannon, K. Limburg, S. Naeem, R.V. Neill, J. Paruelo, R.G. Raskin, P. Sutton, and M. van den Belt. 1997. The value of the world’s ecosystem services and natural capital. Nature 387:253

– 260. 135 FDEP. 2011. Celebrate Seagrass Awareness Month . Florida Department of Environmental Protection. <http://www.dep.state.fl.us/coastal/news/art icles/2011/1103_S eagrass.htm>. Accessed June 2011. FDEP. 2011. Seagrass Awareness Month . Florida Department of Environmental Protection. <http://www.dep.state.fl.us/coastal/habitats/seagrass/ awareness/Proclamation_2011.pdf>. Accessed June 2011.*** E.O. 12866 Review

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Page 48 of 191 wildlife in the lagoon, as well as increased water quality throughout the system from restoration and water quality improvement projects. 136 According to a study on the impacts of HABs on beachfront tourism

- dependent businesses in the Ft. Walton Beach and Destin areas of Florida, HABs reduced restaurant and lodging revenues by $2.8 million and $3.7 million per month, respectively, representing a 29 percent to 35 percent decline in average monthly revenues. 137
To estimate the various economic impacts of nutrients, o ne national study compared ambient concentrations of total nitrogen (TN) and total phosphorus (TP) in freshwater lakes with EPA’s criteria developed for the fourteen nutrient ecoregions across the U.S

. 138 The study provides conservative annual estimates of economic losses due to nitrogen and phosphorus pollution: decreased recreational water usage ($1 billion), waterfront property devaluation ($0.3 to $2.8 billion), recovery efforts for threatened and endangered species ($44 million), and additional treatment for drinking water ($813 million). These potential losses total over $2.2 billion annually. 139 A study by Mather Economics estimated the effects of water quality on real estate value in the South Florida Water Management Di strict. T he aggregate owner

- occupied

136 USEPA. 2009. Determining a n Estuary’s Economic Value . EPA

- 842F09001. U.S. Environmental Protection Agency, National Estuary Program. < http://water.epa.gov/type/oceb/nep/upload/2009_05_28_estuaries_inaction_Efficient_IndianRiver.pdf >. Accessed July 2011. 137 Larkin, S.L., and C.M. Ada ms. 2007. Harmful a lgal b looms and c oastal b usiness: e conomic c onsequences in Florida. Society & Natural Resources 20: 9, 849

- 859. 138 Under CWA section 304(a), EPA periodically publishes criteria recommendations for use by states in setting water quality criteria for particular parameters to protect recreational and aquatic life uses of waters. EPA produced nutrient criteria for l akes a nd r eservoirs in 12 of the 14 e coregions across the country. See USEPA. 2011. Ecoregional Nutrient Criteria Documents for Lakes & Reservoirs. United States Environmental Protection Agency. < http://water.epa.gov/scitech/swguidance/standards/criteria/nutrie nts/ecoregions/ecoregions_lakes_index.cf m>. Accessed January 2012. 139 Dodds, Walter K., Wes W. Bouska, Jeffrey L. Eitzmann, Tyler J. Pilger, Kristen L. Pitts, Alyssa J. Riley, Joshua T. Schloesser, and Darren J. Thornbrugh. 200 9

. Eutrophication of U.S. Fres hwaters: Analysis of Potential Economic Damage. Environmental Science and Technology , Vol. 43, No. 1, 2009.*** E.O. 12866 Review

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Page 49 of 191 residential real estate value in the 16

- county South Florida Water Management District is approximately $976 billion. A ssuming that water quality ( measured by dissolved oxygen levels) can be returned to 1970 levels as a result of restoring the Everglades ( a potential
23.4 percent improvement in water quality) , the study found that would translate into $16
billion in increased real estate values

. 140 In addition to negatively impacting Florida businesses, nitrogen and phosph orus pollution increases costs for beach cleanup, HAB monitoring, and wastewater treatment. Approximately $63,000 was spent annually from 1995

- 1997 to dispose of red seaweed and fish killed by HAB events that littered 17.5 miles of beach in Sarasota County

. 141
In addition, there are increased costs due to the need to treat polluted sources of drinking water. As an example of increased costs for drinking water treatment, in 1991, Des Moines (Iowa) Water Works constructed a $4 million ion exchange facility to

r emove 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 $3 , 000 per day. 142 Fremont, Ohio (a city of approximately 20,000) has experienced high l evels of nitrate from its drinking water source, the Sandusky River, resulting in numerous drinking water use advisories. An estimated $15 million is needed to build a reservoir (and associated piping) that will allow for selective withdrawal from the river to avoid

140 McCormick, B., R.C. Clement, D. Fischer, M. Lindsay, R. Watson, et al. Measuring the Economic Benefits of America’s Everglades Restoration: An Ec onomic Evaluation of Ecosystem Services Affiliated with the World’s Largest Ecosystem Restoration Project. Prepared for the Everglades Foundation by Mather Economics, Roswell, GA. 141 Hoagland, P., D.M. Anderson, Y. Kaoru, and A.W. White. 2002. The economic effects of harmful algal blooms in the United States: estimates, assessment issues, and information needs. Estuaries 25:819

- 837. 142 Jones, C.S., D. Hill, and G. Brand. 2007. Use a multifaceted approach to manage high sourcewater nitrate. Opflow June pp. 20

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Page 50 of 191 elevated levels of nitrate and provide storage. 143 By regulating allowable levels of chlorophyll a in Oklahoma drinking water reservoirs, th e Oklahoma Water Resources Board estimated that the long

- term cost savings in averted drinking water treatment for 86 systems would range between $106 million and $615 million if such regulations were implemented. 144

B. Statutory and Regulatory Background Section 303 (c) of the CWA (33 U.S.C. 1313 (c) ) directs s tates to adopt water quality standards for their navigable waters

. Section 303(c)(2)(A) and EPA's implementing regulations at 40 CFR 131 require, among other things, that state water quality standards include the designated use and criteria that protect those uses. EPA regulations at 40 CFR 131.11(a)(1) provide that st ates shall “ adopt those water quality criteria that protect the designat ed use” and that such criteria “ must be based on sound scientifi c rationale and must contain sufficient parameters or constituents to protect the designated use.” 40 CFR 131 .10(b) provides that "[i]n designating uses of a water body and the appropriate criteria for those uses, the state shall take into consideration th e 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 water quality standards at least once every three years and, if appropriate, revise or adopt new standards. ( See CWA section

143 Taft, Jim, Association of State Drinking Water Administrators (ASDWA). 2009. Personal Communication. 144 Moershel, Philip, Oklahoma Water Resources Board (OWRB) and Mark Derischweiler, Oklahoma Department of Environmental Quality (ODEQ). 2009. Personal Communication.*** E.O. 12866 Review

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Page 51 of 191 303(c)(1)). Any new or revised water quality standards 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.

C. Water Quality Criteria Under CWA section 304(a), EPA periodica lly publishes criteria recommendations for use by states in setting water quality criteria for particular parameters to protect recreational and aquatic life uses of waters. Whe re EPA has published recommended criteria, s tates have the option of adopting w ater quality criteria based on EPA ’ s CWA section 304(a) criteria guidance, section 304(a) criteria guidance modified to reflect site

- specific conditions, or other scientifically defensible methods ( See 40 CFR 131.11(b)(1)).
For nitrogen and phosphorus po llution, 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, 145 rivers and streams, 146 and estuaries and coastal marine waters. 147 EPA based the methodologies used to develop numeri c nutrient criteria for Florida in this proposed r egulation on the se published guidance documents which identify three scientifically defensible approaches for deriving nutrient criteria : (1) the reference condition approach derives criteria from

145 USEPA. 2000a. Nutrient Criteria Technical Guidance Manual: Lakes and Reservoirs. EPA

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- 001. U.S. Environmental Protection Agency, Office of Water, Washington, DC. 146 USEPA. 2000b. Nutrient Criteria Technical Guidance Manual: Rivers and Streams. EPA

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- 002. U.S. Environmental Protection Agency, Office of Water, Washington, DC. 147 USEPA. 2001. Nutrient Criteria Technical Manual: Estuarine and Coastal Marine Waters . EPA

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Page 52 of 191 observations collected in reference water bodies or during reference time periods ; (2) the mechanistic modeling approach represents contaminant loadings, hydrodynamics, and impacts in aquatic systems using equations that represent physical and ecological
processes , calibrated using site

- specific data ; and (3) the stressor

- response approach estimate s the relationship betwee n nutrient concentrations and response measure s related
to a designated use of the wat er body

. T hese three analytical approaches ha ve been independently peer

- reviewed and are appropriate for deriving scientifically defensible numeric nutrient criteria , taking into consideration the method

- specific data needs and available data. In addition to these approaches, consideration of established (e.g., published and peer

- reviewed ) nutrient response thresholds is also an acceptable approach for deriving criteria. 148
The criteria proposed in this rulemaking translate Florida’s narrative nutrient provis ion at Subsection 62

- 302

- 530(47)(b), F.A.C., into numeric values that apply to Class I, II and III estuaries and coastal waters in Florida and flowing waters in the South Florida Region

. In Florida, water quality criteria established for Class I, II and II I surface
waters must protect “fish consumption, recreation and the propagation and maintenance of a healthy, well

- balanced population of fish and wildlife” 149 Florida’s existing narrative nutrient provision serves to protect Class I, II and III waters from nitrogen and phosphorus pollution by requiring that “[i]n no case shall nutrient concentration of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna

. ” After an extensive review of the latest scientific k nowledge relating to the

148 USEPA. 2000a. Nutrient Criteria Technical Guidance Manual: Lakes and Reserv oi r s. EPA

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- 001. U.S. Environmental Protection Agency, Office of Water, Washington, DC. 149 Pursuant to Subsection 62

- 302.400(4), F.A.C.*** E.O. 12866 Review

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Page 53 of 191 impacts of nutrients to aquatic systems, EPA determined that three biological endpoints

- water clarity, dissolved oxygen, and phytoplankton biomass

– effectively translate Florida’s narrative criterion

. EPA further determined that this narrative criterion protects all designated uses, as a balanced natural population of aquatic flora and fauna is inherently necessary for fish consumption, recreation, and the propagation and maintenance of fish and wildlife. The criteria proposed i n 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) provides that (“[t]he discharge of nutrients shall continue to be limited as needed to prevent violati ons of other standards contained in this chapter. Human

- 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.”)

. Subsection 62

- 302.530(47)(a), F.A.C. remains in place as an applicable WQS for CWA
purposes and could result in more stringent nitrogen and phosphorus limits than those proposed in this rule , where necessary to protect other applicable water quality standards in Florid a.
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 water quality standards in the form of numeric water qualit y criteria for nitrogen and phosphorus pollution are necessary to meet the requirements of the CWA in the State of Florida. EPA’s determination is available at the following Web site: http://www.epa.gov/waterscie nce/standards/rules/fl

- determination.htm

. EPA determined that Florida’s narrative nutrient criterion alone was insufficient to ensure protection of*** E.O. 12866 Review

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Page 54 of 191 applicable designated uses. The determination reco gnized that Florida has a comprehensive regulatory and non

- regulatory administrative water quality program to address nitrogen and phosphorus pollution through : a water quality strategy of
assessments, non

- attainment listing determinations, TMDL development, and NPDES permit regulations; individual watershed mana gement plans through the State’s BMAPs; advanced wastewater treatment technology

- based requirements under the 1990 Grizzle

Figg Act; and rules to limit nitrogen and phosphorus pollution in ge ographically specific areas such as the Indian River Lagoon Syste m and the Everglades Protection Area. However, the determination noted that despite Florida’s existing regulatory and non

regulatory water quality fra mework and the State’s intensive efforts to diagnose nitrogen and phosphorus pollution, their reliance on a narrative criterion resulted in a time

consuming and resource

- intensive process . S ubstantial water quality degradation from nitrogen and phosphorus over enrichment remains a significant challenge in the State , and EPA’s determination noted that conditions in Florida 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 the delays associated with a

resource - intensive, site

- specific implementation approach , do es not ensure protection of applicable designated uses for the many State waters that either have been listed as impaired and require loading reductions or those that are hig h quality and require protection from future degradation. While Florida continues to work to implement their watershed management program, the impairments caused by nutrient pollution a re*** E.O. 12866 Review

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Page 55 of 191 steadily increasing as evidenced by the 2008 and 2010 Integrated Water Quality Assessment for Florida report results . Meanwhile, the tools to correct the impairments (TMDLs and BMAPs) are not being completed by the State at a pace to keep up with increa ses in nutrient pollution

. When implementing th eir existing narrative criteri on to deriv e NPDES water quality

- based 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 absen ce of numeric criteria results in a “reasonable potential” analysis that is more complex, data

- intensive, and protracted. Following a reasonable potential analysis, the State then evaluates levels of nitrogen and phosphorus that would “cause an imbalance i n 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 statewide , water body

- by

- water body 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 water body, it can be very difficult to accurately determine appropriate targets in the context and timeframe of the NPDES permitting process. For example, in some cases, site

- specific d ata may take several years to collect and, therefore, may not be available for a particular water body at the time of permitting issuance or re

- issuance. EPA determined that numeric criteria for nitrogen and phosphorus pollution would strengthen the founda tion for identifying impaired waters, establishing TMDLs,*** E.O. 12866 Review

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Page 56 of 191 and deriving water quality

- based effluent limits in NPDES permits, thus providing the necessary protection for the State’s designated uses in a timely manner, consistent with the requirements of the CWA

. In addition, numeric criteria will support the State’s ability to effectively partner with point and non - point sources to control nitrogen and phosphorus pollution , thus further providing the necessary protection for the designated uses of the State’ s water bodies. The January 14, 2009 determination stated EPA’s intent to propose numeric criteria for lakes and flowing waters in Florida within 12 months, and for estuarine and coastal waters within 24 months of the determination. EPA entered into a C on sent D ecree with Florida Wildlife Federation, Sierra Club, Conservancy of Southwest Florida, Environmental Confederation of Southwest Florida, and St. Johns Riverkeeper, effective on December 30, 2009, committing to the schedule stated in EPA’s January 14, 2009 determination to establish numeric nutrient criteria for Florida’s lakes, flowing waters , estuari es and coastal waters. The Consent Decree provided that if Florida submitted and EPA approved numeric nutrient criteria for the relevant water bodies before the dates outlined in the schedule, EPA would no longer be obligated to act on those water bodies

. On December 6, 2010, EPA promulgated numeric nutr ient criteria for Florida’s lakes and flowing waters outside of the South Florida Region (40 CFR 131.43)

. The 2010 “inland waters rule” was scheduled to take effect on March 6, 2012, with the exception of one provision that allows entities to submit Site

- S pecific Alternative Criteria (SSAC) that took effect on February 4, 2011. Since the promulgation of the December 6, 2010 final rule, EPA has continued to work in close coordination with the State of Florida as the State develops its own*** E.O. 12866 Review

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Page 57 of 191 rulemaking for num eric nutrient criteria. On November 10, 2011, FDEP proposed numeric nutrient criteria and related provisions for inland as well as a number of estuarine waters for the State (Clearwater Harbor/St. Joseph Sound; Tampa Bay; Sarasota Bay; Charlotte Harbor/Est ero Bay; Tidal Cocohatchee River/Ten Thousand Islands; Florida Bay; Florida Keys; and Biscayne Bay) , which were published in the Florida Administrative Weekly (Volume 37, number 45, pages 3753

– 3775). On December 8, 2011, the State’s Environmental Review Co mmission (ERC) approved these proposed rules with additional amendments and o n December 9, 2011, FDEP submitted the ERC

approved rules and amendments to the Florida Legislature for ratification during the 2012 legislative session. In order to avoid any con fusion and inefficiency that may occur should Federal criteria become effective while State criteria are being finalized by the State and reviewed by EPA , EPA exte nded the March 6, 2012 effective date of the Federal criteria for lakes and flowing waters ou tside of the South Florida Region to June 4, 2012 through a subsequent rulemaking on XX

. 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 the S outh Fl orida Region , and the downstream protection values for flowing waters into estuaries and coastal waters , to allow time for a public peer

- review by EPA’s Scien ce Advisory Board (SAB) of the scientific metho dologies for numeric nutrient criteria development in each of these types of waters

. On September 30, 2011, EPA and Plaintiffs made further revisions to the deadlines in the Consent Decree. Under the revised Consent Decree, EPA i s required to propose crit eria for Florida’s estuaries, coastal waters and inland flowing waters in the*** E.O. 12866 Review

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Page 58 of 191 South Florida Region by March 15 , 201 2 and to finalize the criteria by November 15,
2012

. This proposed rule satisfies EPA’s requirement to propose criteria for these three categ ories of Florida waters by March 15, 201 2

. In accordance with the January 14, 2009 determination, the December 30, 2009 Consent Decree, and the June 7, 2010 and September 30, 2011 revisions to that Consent Decree, in this notice EPA is pro posing numeric criteria for estuaries and coastal waters in the State of Florida , and inland flowing waters in the South Florida Region

. 150

III. Proposed Numeric Criteria for Florida’s Estuaries, Coastal Waters, and South Florida Inland Flowing Waters

In this notice of proposed rulemaking, EPA is proposing numeric nutrient criteria to implement Florida ’s narrative nutrient provision at S ubsection 62

- 302.530(47)(b),
F.A.C. This proposed rule also includes downstream protection values (DPVs) to ensure the attainment and maintenance of WQS in downstream estuarine and south Florida marine waters. The proposed criteria and related provisions in this rule reflect a detailed consideration of the best available scientific research, data, and analyses related to the specific circumstances for deriving numeric criteria in the State of Florida. EPA’s actions are consistent with and support existing Florida WQS regulations. In deriving scientifically sound numeric criteria for this proposed rulemaking, EPA relied on the local technical expertise of various scientific experts in Florida . EPA

150 F or purposes of this rule, EPA has distinguished south Florida as those areas south of Lake Okeechobee and the Calo osahatchee 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. EPA’s proposed criteria do not apply to flowing waters within the Everglades Protecti on Area (EvPA) or the Everglades Agricultural Area (EAA).*** E.O. 12866 Review

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Page 59 of 191 met and consulted with FDEP ’s scientific and technical expert s during the development of these criteria as part of an ongoing collaborative process to analyze, evaluate, and interpret a substantial amount of Florida

- specific data. EPA carefully evaluated the technical approaches and scientific analys e s that FDEP presented as part of the ir draft approaches to develop numeric criteria for estuaries within the State

. Finally, EPA also carefully considered substantial stakeholder input from twelve public hearings conducted by FDEP during 2010 , i n addition to working with scientists from several Florida National Estuary Programs (NEPs), Water Management Districts, universities, and other government agencies in Florida.
To further ensure the best use of available data and scientific analyses for deriving criteria , the Agency submitted its potential methods and approaches for evaluation by
EPA ’s Science Advisory Board (SAB) in November 2010 for an independent, scientific peer review process

. The SAB reviewed the document entitled: Methods and Approaches for Numeric Nutrient Criteria for Nitrogen/Phosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters , and submitted their final recommendations to EPA in July 2011. 151 EPA used the SAB’s recommendations to refine the methods and approaches for deriving the criteria proposed in this rulemaking

. Subsection III.A provides an overview of the technical elements used to support derivation of the numeric nutrient criteria proposed in today’s rulemaking. 152 The

151 USEPA

- SAB. 2011. Review of Methods and Approaches for Deriving Numeric Criteria for Nitrogen and Phosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters

. U. S. Environmental Protection Agency, Science Advisory Board, Washington, DC. USEPA. 2010. Methods and Approaches for Deriving Numeric Criteria for Nitrogen and phosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters. U.S. Environmental Protection Agency, Office of Water, Washington, DC. 152 Additional details are provided in a separate document, the Technical Support Document for U.S. EPA’s Proposed Rule for Numeric Nutrient Criteria for Florida’s Estuaries, Coastal Wate rs, and Southern Inland*** E.O. 12866 Review

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Page 60 of 191 remainder of Section III specifically describes EPA’s proposed numeric criteria for estuaries (subsection III.B), coastal waters (subsection III.C), south Flor ida marine waters (subsection III.D), and south Florida inland flowing waters (subsection III.E). These subsections include EPA’s proposal for segmenting water bodies and applicable criteria. Also included are proposed DPVs for estuaries (subsection III.B) and south Florida marine waters (subsection III.D). A. General Information and Approaches For each group of waters addressed in Section III, EPA is proposing to use system

- specific approaches for the derivation of numeric nutrient criteria to ensure that the diversity of unique ecosystems found in each type of water body is taken into consideration. This system

- specific approach allows the Agency to consider the physical, chemical, and biological characteristics of a particular water body. This subsec tion describes the technical approaches EPA employed to derive the proposed criteria and DPVs, including (1) data and segmentation, (2) biological endpoints, and (3) analytical methodologies. For each group of water body types, EPA screened out data from impaired coastal, estuarine, or marine segments, based on the State’s CWA Section 303(d) listing information, from scientific literature, EPA reports, local considerations of historical water quality, and State water quality data, and from mechanistic mode l results to determine whether segments were healthy. 1. Data Sources and Segmentation a) Estuaries

Flowing Waters (TSD); located at www.regulations.gov, Docket ID No. EPA

- HQ

- OW

- 2010

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Page 61 of 191 Florida’s estuarine areas encompass approximately 1,950 square miles. EPA used the IWR Run 40 database to identify all available data from a range of sampli ng sites. T o compute relationships between nutrient concentrations and chlorophyll a , EPA relied on measurements of Total Kjeldahl Nitrogen (TKN), TN, Nitrate

- Nitrite (NO 3 - NO 2 ), TP, and chlorophyll a from 1998

- 2009

. T he resulting dataset included 180,814 samples, collected at 13,648 sites. The Agency also analyzed additional data submitted by local experts and organizations. Estuarine water quality and biological communities are affected by multiple factors related to the shape and size of the estuary, it s connections to the ocean, geology, climate, and watershed characteristics (e.g., watershed area and land use) that affect the magnitude, location, and quality of freshwater inflows. For these reasons, EPA proposes to define individual estuarine systems b ased on salinity and the natural geographic features of estuarine basins and their associated watersheds. This approach has been utilized previously in development of the NOAA Coastal Assessment Framework. 153 This approach is also consistent with a watershed approach to water quality management, which EPA encourages as a way to integrate and coordinate efforts within a watershed in order to most effectively and efficiently assess conditions and implement controls. 154 EPA is proposing to sub

- divide each estuari ne system into segments based on physical factors and long

- term average salinity gradients. Estuaries are complex and dynamic systems reflecting the mixing of fresh and marine water, and include different ecological zones across the salinity regime. These estuary segments are expected to have

153 NOAA. 2007. Coastal Assessment Framework (CAF). NOAA/NOS Special Projects Office

- Coastal Geospatial Data Project. Silver Spring, MD. http://coastalgeospatial.noaa.gov/ 154 USEPA. 2008. Handbook for Developing Watershed Plans to Restore and Protect Our Waters. EPA 841

- B

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Page 62 of 191 unique physical, chemical, and biological characteristics that may respond differently to nutrient inputs. 155 EPA is proposing numeric criteria for 121 individual segments in 23 estuaries. A detailed description and mor e detailed maps of EPA’s proposed within

estuary segments are provided in the TSD (Volume 1: Estuaries, Sub

- chapter 1.3 and for each estuarine system in Chapter 2). b) Coastal Waters The available field monitoring data to support numeric criteria derivatio n for Florida’s coastal waters are less extensive than those available for estuaries. However, there are substantial data available from satellite remote sensing that can be used in a scientifically defensible and reliable way in conjunction with available field monitoring data to derive coastal numeric criteria for chlorophyll a . Satellite remote sensing technologies have been widely used 156 to measure chlorophyll a in approximately 3,865 square miles of coastal waters in Florida. These technologies allow consistent and reliable monitoring of expansive areas of Florida's coastline. EPA is not proposing to derive TN and TP criteria for coastal waters due to lack of su fficient coastal TN and TP data; however, EPA believes that the chlorophyll a criteria alone will provide the necessary protection of these waters. By applying chlorophyll a criteria to coastal waters, EPA is protecting a sensitive biological endpoint to s erve as an early warnin g signal to the State that land

- based sources may be causing imbalance to natural populations of aquatic flo ra and fauna in coastal waters.

155 Telesh, I.V. and V.V. Khlebovich. 2010. Principal processes within the estuarine salinity gradient: A review. Marine Pollution Bulletin 61(4

- 6):149

- 155. 156 Gregg and Casey. 2004. Global and regional evaluation of the SeaWiFS chlorophyll data set. Remote S ensing of Environment. 93(4):463

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Page 63 of 191 The data EPA used to derive numeric chlorophyll a criteria for Florida’s coastal
waters encom pass a twelve year period of record (1998

- 2009). The length of this data record captures the long

- term variability that has been observed in water quality within Florida’s coastal waters. To derive numeric criteria protective of coastal waters, EPA
proces sed over 1,000 8

- day composites of remotely sensed images from ocean color satellites. EPA also obtained field monitoring data for TN, TP, and chlorophyll a from
FDEP IWR R un 40, the Northeastern Gulf of Mexico Chemical Oceanography and Hydrography Study ( NEGOM), the Ecology and Oceanography of Harmful Algal Blooms Research Program (ECOHAB), the Florida Fish and Wildlife Conservation Commission Fish and Wildlife Research Institute (FWRI), Mote Marine Laboratory, and the Sea

- viewing Wide Field

- of

- view Sensor (SeaWiFS) 157 Bio

- optical Archive and Storage System. Field monitoring data included over 5,500 chlorophyll a measurements, which were reduced to 1,947 after screening for data quality, as described below. EPA screening factors were established to ensure dat a quality, as follows. Field monitoring data were required to have, at a minimum, metadata for date, time, latitude, longitude, and chlorophyll a or light attenuation information for all samples. Field monitoring data with latitude and longitude informatio n rounded to the nearest degree or

one - half degree were excluded because of lack of precision in terms of sampling location. Where multiple samples of chlorophyll a at different depths existed, the sample closest to the surface was utilized in order to pro vide a better comparison to the remotely sensed data. The monitoring sampling times were compared to the satellite overpass times.

157 NOTE : Sea WiFS has subsequently been replaced by MODIS and MERIS satellite generated data. EPA has developed an approach that can utilize these newer satellite data sources for ongoing assessment purposes.*** E.O. 12866 Review

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Page 64 of 191 Samples falling within a plus or minus three hour time window were utilized to minimize variability between the sample time a nd satellite overpass time. Impaired coastal segments, based on the State’s CWA Section 303(d) listing, as well as segments adjacent to 303(d) impaired estuarine waters, were also screened out and removed from the analysis . S creening impaired WBIDs did not result in the complete removal of all data over the period of record, only data during the period of impairment. From these satellite measurements, EPA calculated average satellite

- derived chlorophyll a (chl RS - a ) values over an eight

- day period based on d ata from 1998

- 2009 in each coastal segment. The eight

- day binning period is a standard approach based on the satellite orbit repeat period of 16 days for the SeaWiFS satellite. 158 For the purposes of deriving criteria, EPA is proposing to exclude chl RS measu rements taken during known bloom events of Karenia brevis , from the statistical distribution of coastal data. Karenia brevis is a dinoflagellate responsible for red tide. Satellites can detect K. brevis blooms when cell counts are above 50,000 cells/L. Coastal segments with an FWRI count greater than 50,000 cells/L during an 8

- day composite were flagged and not included into the chl RS - a distributions. 159 In addition, the same WBID is flagged one week prior to and after a bloom detection to provide a temporal buffer as blooms are transported along the coast. While FWRI sampling procedure is

158 Campbel l, J.W., J.M. Blaisdell, and M. Darzi. 1995. Volume 32, Level

- 3 SeaWiFS Data Products: Spatial and Temporal Binning Algorithms . In: SeaWiFS Technical Report Series, NASA Technical Memorandum 104566, Vol 32. Hooker, S.B., E.R. Firestone, and J.G. Acker, eds . National Aeronautics and Space Administration. Greenbelt, Maryland. 159 Heil, C.A. and K.A. Steidinger. 2009. Monitoring, management, and mitigation of Karenia blooms in the Eastern Gulf of Mexico. Harmful Algae. 8:611

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Page 65 of 191 robust, covering the vast spatial area of coastal Florida remains a challenge 160 and it is possible that K. brevis blooms may go undetected and therefore unflagged. This proposed approach is consistent with recommendations of the Agency’s Science Advisory Board , which recommended EPA screen out these data points, as they are likely not representative of referen ce conditions

. 161 Analyses of cumulative distributions of chl RS - a show they are minimally affected by inclusion or removal of observations affected by K. brevis . EPA divided Florida’s coastal waters into three main areas: the Florida Panhandle, West Florida Shelf, and Atlantic Coast. These three coastal areas were initially subdivided into a total of 76 segments based on FDEP’s Water Body Identification System (WBIDs). EPA relied on physical factors, the optical properties of the coastal areas, water quality characteristics, and the jurisdictional limits of the Clean Water Act (i.e., three nautical mile seaward limit) to further refine these three areas, resulting in 74 segments. A detailed description of EPA’s data screening process and a map of the coastal waters are provided in the TSD (Volume 2: Coastal Waters, Sub

chapter 1.4 ). c) South Florida Marine Waters For purposes of this proposal, “south Florida marine waters” refers to combined estuarine and coastal waters south of the Caloosahatchee River waters hed on Florida’s west coast and the St. Lucie River watershed on Florida’s east coast, including marine waters around the Florida Keys and Dry Tortugas. This region encompasses approximately 3,155 square miles. EPA utilized water quality monitoring data fr om 335

160 Id. 161 USEPA

- SAB. 2011. Revie w of Methods and Approaches for Deriving Numeric Criteria for Nitrogen and Phosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters

. U.S. Environmental Protection Agency, Science Advisory Board, Washington, DC.*** E.O. 12866 Review

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Page 66 of 191 sampling sites, provided by the Southeast Environmental Research Center (SERC) Water Quality Monitoring Network. A total of 31,931 samples resulted in 31,300 chlorophyll a , 31,883 TN, and 31,838 TP concentrations that EPA evaluated to spatially segm ent and compute criteria for south Florida marine waters. EPA screened the water quality data based on its review of the scientific literature, state 303(d) water quality assessments, and local considerations of historical water quality. EPA took these mea sures to ensure that the data used to derive numeric criteria are representative of the water quality and reflect conditions that are biologically healthy and free from known human disturbances (e.g., bridge and roadway construction). Further details regar ding data screening can be found in the TSD (Volume 3: South Florida Marine Waters, and Inland Flowing Waters, Chapter 1 ). EPA is proposing to segment the south Florida marine waters using data from extensive water quality monitoring in this region. Physic al classification based on water body shape and salinity that was applied to other marine waters in Florida was not applicable to these south Florida marine waters because the South Florida region lacks major rivers and there is an open connection between these waters and the oceans. Instead, EPA, with the assistance of scientists from the National Park Service (NPS) and Florida International University (FIU), used cluster analysis to segment these waters based on similarities in water quality. Cluster anal ysis is a mathematical method that groups samples that are most similar with one another. The cluster analysis resulted in 40 different segments delineated for criteria development, and is similar to the approach used by FIU and NPS to segment marine water s of south Florida and proposed by FDEP*** E.O. 12866 Review

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Page 67 of 191 in 2011. This approach has been well established in south Florida’s scientific literature over the last 15 years. Additional details and a map of the segments are provided in the TSD (Volume 3: South Florida Marine Waters, and Inland Flowing Waters, Chapter 1 ). d) Request for Comment on Data and Segmentation EPA believes the data and segmentation approaches utilized provide s a strong foundation for the derivation of numeric nutrient criteria that will protect the des ignated uses in Florida's estuaries, coastal waters. However, the Agency is soliciting additional relevant data and information to assist in the derivation of numeric criteria. Relevant data and information includes, but is not limited to: monitoring data for DO, chlorophyll a , total nitrogen, total phosphorus, total Kjeldhal nitrogen (TKN), dissolved organic nitrogen, dissolved organic phosphorus, dissolved inorganic nitrogen, dissolved inorganic phosphorus, and nitrate+nitrite. EPA also invites comment on the timeframe of the data used to derive criteria. EPA is requesting comment on the procedures used to screen data to ensure representativeness of conditions that are supporting balance populations of aquatic flora and fauna. In addition, EPA requests co mment on excluding chl RS - a measurements taken during known bloom events of Karenia brevis , from the statistical distribution of coastal data, given the significance of red tide in Florida and the ongoing public engagement on this issue. EPA also solicits comment on and requests any additional available information regarding the ability of the proposed segmentation approaches to account for the unique water quality conditions that can be found in estuarine and coastal waters throughout the*** E.O. 12866 Review

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Page 68 of 191 State. Finally, Numeric nutrient criteria are derived using a system

- specific approach. EPA requests comment on the spatial scale of criteria derivation, and if a broader spatial approach would be more appropriate.

2. Biological Endpoints When deriving numeric criteria it is important to identify nutrient sensitive biological endpoints relevant to particular estuarine and coastal systems. These endpoints serve as sensitive measures to translate the State’s current narrative nutrient provision into prote ctive concentrations of chlorophyll a , TN, and TP that, in turn, will ensure the overall support of balanced natural populations of aquatic flora and fauna. EPA conducted an extensive evaluation of available scientific literature to select appropriate biol ogical endpoints, reviewing over 800 documents. From this review of the latest scientific knowledge, EPA has determined that chlorophyll a , water clarity, and DO as measurements of excessive algal growth are three sensitive biological endpoints to use in
t he translation of the State’s narrative criteria. Information on these biological endpoints was used as the basis for the development of proposed criteria for chlorophyll a , TN, and TP necessary to: (1) maintain water clarity to achieve seagrass depth of colonization targets, (2) reduce the risk of phytoplankton blooms, and (3) maintain dissolved oxygen concentrations sufficient for healthy and balanced aquatic life. The three biological endpoints provide a scientifically defensible basis upon which to der ive criteria to ensure consistency of conditions for balanced natural populations of aquatic flora and fauna over the full range of estuarine and coastal conditions across Florida.*** E.O. 12866 Review

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Page 69 of 191 a) Healthy Seagrass Colonization at Historical Depths Seagrasses were sel ected as a biological endpoint because they are critical aquatic flora in most estuarine systems throughout Florida. Seagrasses provide essential habitat for many aquatic species and serve other key ecological functions. Seagrasses cover approximately 2.7 million acres throughout the State and are a central ecological feature of Florida’s dynamic, highly productive marine ecosystems. 162 An endpoint based on seagrasses was also used by the NEPs and FDEP to derive their recommended estuarine criteria because of seagrass sensitivity to nutrient over

- enrichment. Seagrasses are an important indicator of biological integrity in systems where they have been historically present. Because of the unique conditions that are created within seagrass communities, populations of other floral and faunal species benefit from the presence and abundance of seagrasses. 163 For example, seagrasses act as nurseries for many species by providing refuge from predators. Seagrasses also improve water quality by trapping suspended sediments, preventing sediment resuspension, and retaining nutrients. Healthy populations of seagrasses serve as an important and widely recognized indicator of biological integrity of estuarine systems and, in turn, of balanced natural populations of aqu atic flora and fauna. 164

162 Flor ida Marine Research Institute. 2003. Conserving Florida's Seagrass Resources: Developing a Coordinated Statewide Management Program. Florida Marine Research Institute. St. Petersburg, FL 163 Orth, R.J., T.J.B. Carruthers, W.C. Dennison, C.M. Duarte, J.W. Fou rqurean, K.L. Heck Jr., A.R. Hughes, G.A. Kendrick, W.J. Kenworthy, S. Olyarnik, F.T. Short, M. Waycott, and S.L. Williams. 2006. A global crisis for seagrass ecosystems. Bioscience 56:987

- 996. 164 Ferdie, M. and J.W. Fourqurean. 2004. Responses of seagrass communities to fertilization along a gradient of relative availability of nitrogen and phosphorus in a carbonate environment. Limnology and Oceanography 49(6):2082

- 2094. Orth, R.J., T.J.B. Carruthers, W.C. Dennison, C.M. Duarte, J.W. Fourqurean, K.L. Heck, A.R. Hughes, G.A. Kendrick, W.J. Kenworthy, S. Olyarnik, F.T. Short, M. Waycott, and S.L. Williams. 2006. A global crisis for seagrass ecosystems. BioScience 56(12):987

- 996. Doren, R.F., J.C. Trexler, A.D. Gottlieb, and M.C. Harwell. 2009. Ecological indicators for system

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Page 70 of 191 Seagrass communities depend on a variety of physical, chemical, and biological conditions to thrive. Among these, adequate underwater light availability (as measured by water clarity) is critical for seagrass health. The relationshi p between water clarity and the depth to which seagrasses grow, known as the depth of colonization, has been well

documented. 165 EPA reviewed studies that empirically assessed the relationship between seagrasses and available light 166 and concluded that , for Florida, an average value of 20 percent of incident light penetrating from the surface to the depth of colonization is necessary to protect seagrasses from impairment due to light attenuation in the water. A similar value has been used in previous nutrient management efforts in Florida. 167 Using the 20 percent incident light value, EPA was able to relate water quality, namely water

assessment of the greater everglades ecosystem restoration program. Ecological Indicators 9:S2

- S16. Gibson, G.R., M.L. Bowman, J. Gerritsen, and B. D. Snyder. 2000. Estuarine and Coastal Marine Waters: Bioassessment and Biocriteria Technical Guidance . EPA 822

- B

- 00

- 024. U.S. Environmental Protection Agency, Office of Water. http://water.epa.gov/scitech/swguidance/standards/criteria/aqlife/biocriteria/u pload/2009_04_22_biocriteria _States_estuaries_estuaries.pdf. Accessed November 2011. 165 Dennison, W.C. 1987. Effects of light on seagrass photosynthesis, growth, and depth distribution. Aquatic Botany. 27:15

- 26. Dennison, W.C., R.J. Orth, K.A. Moore, J.C. S tevenson, V. Carter, S. Kollar, P.W. Bergstrom, and R.A. Batiuk. 1993. Assessing water quality with submersed aquatic vegetation. BioScience 43(2):86

- 94. Duarte, C.M. 1991. Seagrass depth limits. Aquatic Botany 40(4):363

- 377. Gallegos, C.L. 1994. Refining habitat requirements of submersed aquatic vegetation: Role of optical models. Estuaries 17(1):187

- 199. Gallegos, C.L. and W.J. Kenworthy. 1996. Seagrass depth limits in the Indian River Lagoon (Florida, USA): Application of an optical water quality model. Estuarine Coastal and Shelf Science 42(3):267

- 288. Gallegos, C.L. 2005. Optical water quality of a blackwater river estuary: the Lower St. Johns River, Florida, USA. Estuarine Coastal and Shelf Science 63(1

- 2):57

- 72. Steward, J., R. Virnstein, L. Morris, a nd E. Lowe. 2005. Setting seagrass depth, coverage, and light targets for the Indian River Lagoon system, Florida. Estuaries and Coasts 28(6):923

- 935. 166 Dennison, W.C., R.J. Orth, K.A. Moore, J.C. Stevenson, V. Carter, S. Kollar, P.W. Bergstrom, and R.A. B atiuk. 1993. Assessing water quality with submersed aquatic vegetation. BioScience 43(2):86

- 94. Duarte, C.M. 1991. Seagrass depth limits. Aquatic Botany 40(4):363

- 377. Gallegos, C.L. 1994. Refining habitat requirements of submersed aquatic vegetation: Role of optical models. Estuaries 17(1):187

- 199. Steward, J., R. Virnstein, L. Morris, and E. Lowe. 2005. Setting seagrass depth, coverage, and light targets for the Indian River Lagoon system, Florida. Estuaries and Coasts 28(6):923

- 935. 167 Janicki, A.J., and D.L. Wade. 1996. Estimating critical nitrogen loads for the Tampa Bay estuary: an empirically based approach to setting management targets. Technical Publication 06

- 96. Tampa Bay National Estuary Program. Prepared by Coastal Environmental, Inc.*** E.O. 12866 Review

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Page 71 of 191 clarity and chlorophyll

- a concentration, with seagrass health in Florida estuaries as a measure of balanced flora and fauna

. Whe n seagrasses receive sufficient sunlight, seagrass biomass remains constant or increases over time. Conversely, when incoming light is blocked by substances in the water column, such as phytoplankton, suspended solids, or color, seagrass growth slows
or st ops. Studies on seagrasses have documented this relationship of nutrient

- related algal growth to declines in available light and subsequent declines in seagrass communities. 168 Since the area within an estuary available for seagrass growth is, in part, a fun ction of the total area with enough sunlight at sufficient depths to sustain growth, as water clarity decreases and reduces the amount of sunlight that can reach the seagrasses, the available area for seagrass growth also decreases. EPA used extensive his torical seagrass coverage data (the earliest available, generally 1940

- 1960) to compute historical depth of seagrass colonization. In the absence of historical data, more recent seagrass coverage data (e.g., 1992) were used. In all cases, current (2000

- 201 0) seagrass coverage was also evaluated to determine existing depth of colonization, and to relate these values with existing water quality. To compute seagrass depth of colonization, EPA overlaid seagrass coverage data on bathymetric data compiled by NOAA using a Geographic Information System. 169 EPA then developed target values for seagrass depth of colonization in Florida’s estuaries. Because studies examining biological utilization of seagrass habitats show that seagrass habitats support a rich array

168 Ferdie, M . and J.W. Fourqurean. 2004. Responses of seagrass communities to fertilization along a gradient of relative availability of nitrogen and phosphorus in a carbonate environment. Limnology and Oceanography 49(6):2082

- 2094. Orth, R.J., T.J.B. Carruthers, W.C. Dennison, C.M. Duarte, J.W. Fourqurean, K.L. Heck, A.R. Hughes, G.A. Kendrick, W.J. Kenworthy, S. Olyarnik, F.T. Short, M. Waycott, and S.L. Williams. 2006. A global crisis for seagrass ecosystems. BioScience 56(12):987

- 996. 169 Hagy and Jackson, in prep*** E.O. 12866 Review

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Page 72 of 191 of s eagrass - dependent biological uses, 170 EPA concluded that water bodies in which seagrass coverage has decreased from historical coverage levels are not supporting balanced natural populations of aquatic flora or fauna. Where seagrass coverage has remained constant or increased over time, the g oal of the numeric criteria is to maintain the greatest level of coverage. EPA then used data on past and present seagrass coverage to determine the maximum depths that seagrasses have been able to grow in each estuary, where applicable (i.e., this approac h was not used in some estuaries in Florida that do not have historical evidence of seagrass colonization). These depths were then used as the targets for EPA’s proposed criteria. Using the requirement of 20% percent of incident light penetrating from the surface to the depth of colonization EPA then calculated a water clarity target to support seagrasses at the depth target and which was used to derive criteria to support a balanced natural populations of aquatic flora. b) Phytoplankton Biomass Based upon the extensive review of current scientific literature noted above, EPA selected phytoplankton biomass as a second biological endpoint in estuaries because of its responsiveness to nutrient enrichment, integral role in aquatic food webs, long use as an int egrative measure of aquatic ecosystem condition, and its correlation with changes in floral composition and subsequent faunal response. 171 Chlorophyll a is the quantitative

170 Hughes, A. R., S. L. Williams, C. M. Duarte, K. L. Heck, Jr, and M. Waycott. 2009. Associations of concern: declining seagrasses and threatened dependent species. Frontiers in Ecology and the Environment 7(5): 242

- 246 171 Boyer, J.N., C.R. Kelble, P.B. Or tner, and D.T. Rudnick. 2009. Phytoplankton bloom status: Chlorophyll a biomass as an indicator of water quality condition in the southern estuaries of Florida, USA. Ecological Indicators, 9s: s56

- s67. Hagy, J.D., J.C. Kurtz, and R.M. Greene. 2008. An appr oach for developing numeric nutrient criteria for a Gulf coast estuary. EPA 600R

- 08/004. Research Triangle Park, NC : U.S. Environmental Protection Agency, Office of Research and Development, National Health and Environmental Effects Research Laboratory

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Page 73 of 191 measure of phytoplankton biomass, and has a long history of use in aquatic ecology as a measure of phytoplankton biomass and production. 172 Phytoplankton growth rate and biomass have been widely shown to increase with corresponding increases in nitrogen and phosphorus. 173 In most of Florida’s coastal and estuarine waters, healthy biotic

commun ities depend on balanced natural populations of phytoplankton because phytoplankton are integral components of aquatic food webs (e.g., provide the basic food source for many food webs, contribute to the success of filter

- feeding organisms and organisms th at rely on visual capture feeding methods) and aquatic nutrient cycling. 174 Elevated chlorophyll a concentrations resulting from nutrient

- enhanced phytoplankton growth and accumulation are a well

- documented symptom of eutrophication and the adverse impacts from nutrient pollution across the nation and specifically in Florida (refer to subsection II.A for additional information). EPA evaluated the available scientific literature to determine chlorophyll a concentrations that were indicative of phytoplankton b looms or an imbalance in natural

Bricker, S.B., C.G. Clement, D.E. Pirhalla, S.P. Orlando, and D.R.G. Farrow. 1999. National Estuarine E utrophication Assessment. Effects of Nutrient Enrichment in the Nation’s Estuaries. NOAA

— NOS Special Projects Office, Silver Spring, Maryland. See Sectio n B.3 in Appendix B of USEPA. 2010. Methods and Approaches for Deriving Numeric Criteria for Nitrogen and phosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters. U.S. Environmental Protection Agency, Office of Water , Washington, DC

. 172 Wetzel, R.G. 2001. Limnology, 3 rd Edition. Academic Press, New York. Kalff, J. 2002. Limnology: inland water ecosystems. Prentice

- Hall, Upper Saddle River, New Jersey. 173 Elser, J.J., M.E.S. Bracken, E.E. Cleland, D.S. Gruner, W.S. Harpo le, 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. Smith, V.H. 2006. Responses of estuarine and coastal marine phytoplankton to nitrogen and phosphorus enrichment. 51(1, part 2): 377

– 384 174 Hauxwell, J., C. Jacoby, T. Frazer, and J. Stevely. 2001. Nutrients and Florida’s Coastal Waters: The Links Between People, Increased Nu trients and Changes to Coastal Aquatic Systems . Florida Sea Grant Report No. SGEB

- 55. Florida Sea Grant College Program, University of Florida, Gainesville. < http://edis.ifas.ufl.edu/pdffiles/SG/SG06100.pdf >. Accessed June 2011. NOAA. No date. Overview of Harmful Algal Blooms. National Oceanic and Atmosphe ric Administration. < http://www.cop.noaa.gov/stressors/extremeevents/hab/default.aspx >. Accessed June 2011

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Page 74 of 191 populations of aquatic flora and fauna. Published reports on chlorophyll a concentrations in estuarine waters across the nation, including Florida estuaries, suggest that low algal bloom conditions are defined as maximum ch lorophyll a concentrations less than 5 μg/L , medium bloom conditions defined as maximum chlorophyll a concentrations between 5

- 20 μg/L , high bloom conditions defined as maximum chlorophyll a concentrations above
20 μg/L , and hypereutrophic conditions are d efined by bloom concentrations above 60 μg/L

. 175 Florida estuaries were analyzed as a part of a larger NOAA national survey of estuaries, and the authors reported the average bloom chlorophyll a concentrations were
20 μg/L or less for seven of ten large Flor ida estuaries, especially low for Florida Bay (8 μg/L ) and Pensacola Bay (10 μg/L ). 176 EPA also evaluated other literature regarding phytoplankton blooms that indicated similar results. 177 Based on the ranges of average chlorophyll a concentrations indicative of phytoplankton bloom conditions or characteristic of Florida estuaries, EPA selected a chlorophyll a concentration of 20 μg/L as the defining threshold for a nuisance phytoplankton bloom which was used in deriving numeric criteria. Where chlorophyll a

175 Bricker et al. 2003 Bricker, S.B., J.G. Ferreira, and T. Simas. 2003. An integrated methodology for assessment of estuarine trophic status. Ecological Modelling 169(1):39

- 60. 176 Glibert, P.M., C.J. Madden, W. Boynton, D. Flemer, C. Heil, and J. Sharp. 2009. Estuarine Nutrient Criteria Development: State of the Science. United States Environmental Pro tection Agency, Office of Water, Washington, DC. 2009 Draft. 177 OECD (Organisation for Economic and Cooperative Development). 1982. Eutrophication of Waters: Monitoring, Assessment and Control . Organisation for Economic and Cooperative Development, Paris, France. Painting, S.J., M.J. Devlin, S.J. Malcolm, E.R. Parker, D.K. Mills, C.Mills, P. Tett, A. Wither, J. Burt, R. Jones, and K. Winpenny. 2007. Assessing the impact of nutrient enrichment in estuaries: susceptibility to eutrophication. Marine Pollution Bulletin 55:74

– 90. Painting, S.J., M.J. Devlin, S.I. Rogers, D.K. Mills, E.R. Parker, and H.L. Rees. 2005. Assessing the suitability of OSPAR EcoQOs for eutrophication vs. ICES criteria for England and Wales. Marine Pollution Bulletin 50:1569

– 1584 Tett, P. , R. Gowen, D. Mills, T. Fernandes, L. Gilpin, M. Huxham, K. Kennington, P. Read, M. Service, M. Wilkinson, and S. Malcolm. 2007. Defining and detecting undesirable disturbance in the context of marine eutrophication. Marine Pollution Bulletin 55:282

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Page 75 of 191 co ncentrations exceed this threshold , it reflects an imbalance in estuarine waters

. EPA also considered the available scientific studies described in this subsection to define an allowable frequency of occurrence of phytoplankton blooms, represented by chlor ophyll

a levels greater than 20 μg/L, to further define this endpoint when deriving numeric criteria. EPA selected a value of 10% as an allowable frequency of occurrence of phytoplankton blooms , which is also consistent with current nutrient management practices in Florida, such as those utilized in approved Florida TMDLs. c) Dissolved Oxygen EPA selected dissolved oxygen (DO) as a third biological endpoint to derive numeric criteria for estuar ies. As described in more detail above, DO concentrations are a well

- known indicator of the health of estuarine and coastal biological communities. Aquatic animals including fish, benthic macroinvertebrates and zooplankton depend critically on levels of DO that meet the needs of all species and life stages (e.g., larval, juvenile, and adult). 178 To derive numeric criteria using the DO endpoint, EPA conducted an analysis of the dissolved oxygen requirements of sensitive species using the Virginian Province di ssolved oxygen evaluation procedure. 179 The results of this analysis were used to determine that dissolved oxygen targets considered for modeling endpoints for numeric nutrient criteria development would ensure the protection of sensitive aquatic species in

178 Diaz, R.J. 2001 ; . Overview of hypoxia around the world. Journal of Environmental Quality 30(2):275

- 281. Diaz, R.J. and R. Rosenberg. 2008. Spreading dead zones and consequences for marine ecosystems. Science 321(5891):926

- 929. 179 Vincent, A.M., J. Flippin, E. Leppo, and J.D. Hagy III. Dissolved oxygen requirements of Florida

resident saltwater species applied to water quality criteria development. In review

. USEPA. 2000. Ambient Aquatic Life Water Quality Criteria for Dissolved Oxy gen (Saltwater): Cape Cod to Cape Hatteras . Environmental Protection Agency, Office of Water, Washington D.C. PA

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Page 76 of 191 Florida estuaries. Based on levels of DO that meet the needs of sensitive aquatic animal species in Florida estuarine waters, EPA selected a minimum allowable water column average DO of 4.0 mg/L, a daily water column average DO of 5.0 mg/L, and a minimum b ottom water average DO of 1.5 mg/L in estuarine waters for use in deriving numeric criteria. These values and interpretations are also consistent with existing Florida DO criteria [Subsection 62

- 302.530(30), F.A.C.] and FDEP’s assessment process [Subsectio n 62

- 303.320(5), F.A.C.]. (More detail on both the existing Florida DO criteria and the EPA analysis is in the TSD, Volume 1: Estuaries, sections 1.2.3 (page 10) and 1.4.1 (page 15))

. d) Other Endpoints Considered by EPA EPA considered, but is not proposi ng to use, the following nutrient

- sensitive biological endpoints: (1) harmful algal blooms (HABs), (2) coral, (3) epiphytes, (4) macroinvertebrate and fish indices, (5) macroalgae, (6) Spartina marshes (salt

- marshes), and (7) the Eastern oyster ( Crassostre a virginica ). These biological endpoints were not selected because there was an absence of sufficient data to quantify the link to nitrogen and phosphorus concentrations. Additional details on these alternative endpoints are provided in Appendix B in the M ethods and Approaches for Deriving Numeric Criteria for Nitrogen/Phosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters

. 180 e) Request for Comment on Endpoints

180 USEPA. 2010. Methods and Approaches for Deriving Numeric Criteria for Nitrogen and P hosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters

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Page 77 of 191 EPA believes that the three biological endpoints of healt hy seagrass colonization, phytoplankton biomass and dissolved oxygen are the appropriate nutrient sensitive endpoints to translate the State’s current narrative nutrient criteria to ensure that nutrient concentrations of a body of water do not cause an imb alance in natural populations of aquatic flora or fauna into numeric values that will, in turn protect the Class II and III designated waters in the State of Florida. EPA requests comment regarding the endpoints selected, as well as additional scientific information on other appropriate endpoints that can be used to translate the State’s narrative nutrient criteria to provide protection of fish consumption, recreation and the propagation and maintenance of healthy, well balanced population of fish and wild life in Florida’s Class II and III estuarine and coastal waters.

3. Analytical Methodologies EPA used three analytical approaches to derive TN, TP, and chlorophyll a numeric nutrient criteria: (1) reference condition approach, (2) stressor

- response
appro ach, and (3) mechanistic modeling. These approaches were applied to the available data in a particular water segment to allow the Agency to quantitatively link protective concentrations of nitrogen, phosphorus, and chlorophyll a to biological endpoints for that segment . These protective concentrations are define d as either the conditions that are currently healthy or least disturbed by human activities or alternatively defined by the predicted responses to nutrient load reductions necessary to meet the biol ogical endpoint

. a) Reference Condition Approach EPA applied the reference condition approach to derive numeric criteria in Florida estuaries and coastal waters that are currently healthy or least

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Page 78 of 191 activities. To do so, EPA first ensure d the waters have least disturbed conditions and are supporting designated uses

. In coastal areas and south Florida marine waters, EPA reviewed 303(d) listings, and where impairments existed those data were removed to reflect healthy and unimpaired conditi ons. EPA then reviewed available monitoring information, peer

reviewed literature, and technical reports from coastal areas and south Florida marine
waters to ensure that these data were representative of waters that have least impacted conditions and are supporting designated uses. Furthermore, EPA removed data during periods of temporary known human disturbances (e.g., bridge and roadway construction) .The resulting data were reflective of healthy, least impacted conditions in which endpoints were supporte d and thus were used in subsequent analyses. The screening steps are detailed in section III.A.1.b and III.A.1.c. In estuaries, EPA used the mechanistic models to help determine whether water quality supported balanced populations of flora and fauna. Where quantitative biological endpoints existed, these endpoints (chlorophyll a , water clarity, and DO) were compared
t o the mechanistic modeling results as a way to determine the health of each estuary segment. Based on EPA's review of the latest scientific knowledge, EPA has determined that the endpoints described in section III.A.2 can be used to translate of the State’ s narrative criteria, and thus signify whether a system is healthy least

- disturbed. As a result, where the endpoints were achieved EPA determined that a reference approach could be used to derive criteria. To derive criteria for coastal and estuarine syste ms using this reference approach , EPA identified nutrient concentrations that quantified the upper bound (90 th percentile) of*** E.O. 12866 Review

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Page 79 of 191 the historical range (after data were screened for impairments) of observed concentrations as the criteri a . Thus , values lower tha n the derived criterion value occurred at least 90 percent of the time in the period of record for these datasets. To derive this value, EPA first transformed individual data values to a natural logarithm, then calculated the annual geometric mean concent rations of TN, TP, and chlorophyll a for each year of the data record and for each segment. Even though coastal, marine, and estuarine waters were assigned to segments to ensure homogeneity of water quality across different locations within a segment, EPA recognizes that limited variability may still exist across locations within a given segment. S election of this percentile reflects EPA's confidence that the majority of locations within a segment support balanced natural populations of aquatic flora and fa una . b) Stressor

- response Approach The stressor

- response approach uses monitoring data for each system to estimate a statistical relationship between TN, TP, and chlorophyll a and the biological endpoints. Criteria for TN, TP, and chlorophyll a are derived to achieve the biological endpoints selected by EPA to serve as measures of balanced natural populations of flora and fauna.

181 This approach was used in systems that EPA determined were not currently healthy and therefore a reference approach was not appropriate. EPA used the stressor

- response approach to predict the biological response to nutrient load reductions, and from these predictions, derive numeric criteria, where data were available. EPA's assessment of system health was based on an e valuation of current water quality conditions to

181 USEPA. 2010. Using stressor

- response relationships to derive numeric nutrient criteria . United States Environmental Protection Age ncy, Office of Water, Office of Science and Technology. EPA

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Page 80 of 191 determine if they supported the biological endpoints of chlorophyll a , water clarity, and
DO

. To determine chlorophyll a concentrations supportive of the water clarity depth target to achieve the healthy seagrass endpoint in a segment , EPA used logistic regression to estimate the relationship between chlorophyll a concentration and the probability that water clarity was gre ater than the water clarity target for the segment. Then, the chlorophyll a criterion was computed as the chlorophyll a concentration that was associated with a 50% probability of water clarity being greater than the clarity target. In other words, the chl orophyll a criterion should allow for water clarity targets to be met at least half of the days in a year, a level which has been shown sufficient for supporting healthy seagrass communities. 182 As chlorophyll a is correlated with algal growth, increases in chlorophyll a concentrations are related to an increase in algae and decrease in dissolved oxygen. To determine candidate chlorophyll a criteria associated with DO endpoints, EPA first estimated the relationship between chlorophyll a concentration and the probability that DO endpoints were met. However, hourly measurements of DO , which are often necessary to accurately assess attainment of the DO endpoint, w ere only available in the St. Johns River estuary. In other estuaries, available DO data were not su fficient to permit a direct assessment of attainment of the DO endpoint. In these estuaries, EPA calculated the chlorophyll a concentration that was associated with a statistically significant decrease in DO concentrations. That is, candidate chlorophyll a criterion values were calculated to satisfy the DO endpoint in the one estuary where hourly data were available,

182 Dennison, W.C. 1987. Effects of light on seagrass photosynthesis, growth, and depth distribution. Aquatic Botany, 27:15

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Page 81 of 191 and in all other estuaries, the chlorophyll a criterion was calculated as the concentration below which increases in DO concentration were not associated with further reductions in chlorophyll a concentration. EPA also used stressor

- response relationships to derive chlorophyll a criteria protective of the phytoplankton biomass endpoint. To this end, EPA used logistic regression to estimate the relationship between the annual geometric mean chlorophyll a concentration and the probability of any single chlorophyll a measurement exceeding 20 μg/L during the year. Then, a chlorophyll a criterion was derived from this relationship as the annual geome tric mean concentration that ensured that single measurements exceeded 20 μg/L no more than 10% of the time. The final chlorophyll a criterion derived by stressor

- response analysis was the lowest of the different criteria computed to satisfy the water cla rity depth target, phytoplankton biomass endpoint, and DO endpoint. That is, the final chlorophyll a criterion was selected to protect all endpoints in each estuary. To calculate TN and TP criteria associated with the chlorophyll a criterion, the relations hip between annual geometric mean TN and TP and annual geometric mean chlorophyll a concentration was estimated for each estuary segment. TN and TP criteria were then computed from this relationship as the concentrations that are required to maintain avera ge predicted chlorophyll a concentrations that are no higher than the chlorophyll a criterion. Because both TN and TP are included in the stressor

- response analyses that predict chlorophyll a , many different combinations of TN and TP achieve the desired ch lorophyll a criterion and are therefore protective of designated uses. To identify a single value of TN and a single value of TP, criteria are specified such that they represent the most frequent ratio*** E.O. 12866 Review

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Page 82 of 191 of TN to TP currently observed in the data. That is, c riteria are specified as the ratio of TN and TP concentrations that are most common in current data. c) Mechanistic Modeling The third approach EPA used for deriving numeric criteria for estuaries employed integrated mechanistic simulation models of the coupled watershed

- estuary system to interpolate water quality data that are sampled at particular locations and at particular times throughout each estuary and throughout the simulated time period. Specifically, EPA used watershed hydrology and water quali ty models coupled with estuarine hydrodynamic and water quality models to simulate the physical, chemical, and biological processes in a watershed

- estuarine system. EPA used the watershed models to develop estimates of TN, TP, and freshwater inputs to the estuary. Next, EPA used the hydrodynamic and water quality models to simulate estuarine water quality responses, including estuarine TN, TP, and chlorophyll a concentrations, water clarity, and DO over the period of record. To select the models, EPA devel oped an inventory of watershed and estuary models that have been applied previously to estuaries in Florida, including models developed by FDEP. 183 Based on the results of the review, EPA selected the Loading Simulation Program in C++ (LSPC) 184 for simulating freshwater flows and nutrient loading from watersheds, the Environmental Fluid Dynamics Code (EFDC) 185

183 Wolfe 2007 Wolfe, S.H. 2007. An Inventory of Hydrodyna mic, Water Quality, and Ecosystem Models of Florida Coastal and Ocean Waters . Florida Department of Environmental Protection. Tallahassee, Florida. 184 USEPA. 2011. Loading Simulation Program in C++ (LSPC)

. http://www.epa.gov/athens/wwqtsc/html/lspc.html . Accessed December 2011. 185 USEPA. 2011. Environmental Fluid Dynamics Code (EFDC)

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Page 83 of 191 for simulation of estuarine hydrodynamics, and the Water Quality Analysis Simulation Program (WASP) 186 for simulation of estuarine water quality. 187 LSPC can continuously simulate the hydrologic and water quality processes on pervious and impervious land surfaces, in streams, and in well

- mixed impoundments and provided daily estimates of stream flow, TN and TP concentrations. In addition LSPC has been applied to many watersheds throughout the southeastern United States and Florida. Therefore, EPA applied the LSPC model to the watersheds in Florida north of the Caloosahatchee River watershed on the west coast and the St. Lucie River watershed on the east coast. Coupled hydrodynamic

- water quality models using EFDC for hydrodynamics (i.e., physical processes) and WASP for water quality have been applied to many water quality management projects throughout the southeastern United States and Florida. Based o n this extensive experience using these models for similar applications, EPA used the EFDC and WASP models for numeric criteria derivation for Florida estuaries. EFDC and WASP are both publicly available and have undergone external peer review by the
EPA S AB. 188 The process that EPA used for development of proposed numeric criteria using mechanistic models involved modeling the conditions and processes in both a watershed and corresponding estuary that occurred during the 2002

- 2009 timeframe using all

186 USEPA. 2011. Water Quality Analysis Simulation Program (WASP)

. http://www.epa.gov/athens/wwqtsc/html/wasp.html . Accessed De cember 2011. 187 USEPA. 2010. Methods and Approaches for Deriving Numeric Criteria for Nitrogen and phosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters. U.S. Environmental Protection Agency, Office of Water, Washin gton, DC. 188 USEPA

- SAB. 2011. Review of Methods and Approaches for Deriving Numeric Criteria for Nitrogen and Phosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters

. U.S. Environmental Protection Agency, Science Advi sory Board, Washington, DC.*** E.O. 12866 Review

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Page 84 of 191 availab le data . EPA chose a simulation period from 2002

- 2009 because it represented a wide range of seasonal and climatological conditions for the evaluation of the current water quality conditions and it contained the best available data. Output from the mechan istic models provided another means of interpreting available water quality data with respect to the biological endpoints (e.g., seagrass, phytoplankton biomass, or DO) (see Section III.A.2), and where required, mechanistic models provided a means of predi cting nutrient load reductions to meet biological endpoints. For systems where monitoring data were insufficient to calculate criteria and the mechanistic model showed the system was least disturbed, EPA used the mechanistic model prediction of a conce ntration distribution to derive criteria

. For systems that EPA determined were not least disturbed, EPA used mechanistic modeling to predict the reduced nutrient loads necessary to meet biological endpoints. Numeric criteria were derived from the concentra tions of nutrients resulting from these reduced loadings. Candidate numeric nutrient criteria for TN, TP, and chlorophyll a were then calculated as the 90 th percentile of the annual geometric means for each estuary segment.

d) Use of Multiple Approaches w ithin the criteria derivation framework EPA considered multiple lines of evidence from these three main approaches to derive system

- specific numeric nutrient criteria for coastal and estuarine waters of Florida. EPA first determined whether each water body appeared to support balanced natural populations of flora and fauna based on an extensive review of existing literature, consideration of local knowledge, consideration of 303(d) assessments of the water body*** E.O. 12866 Review

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Page 85 of 191 by FDEP, a quantitative assessment of field mo nitoring data with respect to all of the biological endpoints described in Section III.A.2

. , and a quantitative assessment of the predictions from mechanistic models based on nutrient loads that existed during the
2002

- 2009 time period with respect to all of the biological endpoints. A reference condition approach using monitoring data, mechanistic model predictions, or satellite imagery was used to derive criteria for water bodies that EPA determined to be healthy. Criteria for water bodies that EPA determ ined were not healthy were derived by using the mechanistic models to calculate the load reductions necessary to achieve all biological endpoints, and by using stressor

- response relationships to calculate concentrations of TN and TP necessary to achieve al l biological endpoints. In all instances but one there were not sufficient data to apply the stressor

- response approach in all segments in an estuary so mechanistic model predictions were used to derive criteria. In these instances EPA analyzed the stresso r - response data to corroborate and support the proposed criteria , in segments where available

.

e) Request for Comment on Analytical Methodologies EPA believes that these analytical methodologies used in combination in this proposed rulemaking result in nu meric criteria that are supportive of balanced natural populations of aquatic flora and fauna, and thus protect Class II and III estuarine and coastal waters in the State of Florida from nutrient pollution. These analytical methodologies utilized the lates t scientific knowledge, nutrient sensitive endpoints, and the best available data. The Agency requests comment on the application of the proposed methodologies and whether these methodologies are appropriate to derive criteria*** E.O. 12866 Review

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Page 86 of 191 protective of designated uses in Florida's estuaries and coastal waters. Specifically, EPA is soliciting comment and any scientific information on the use of these approaches in areas where there may be other factors present that may also affect the three biological endpoints by attenuating light in similar ways as chlorophyll a (e.g., colored dissolved organic matter (CDOM) or suspended sediments). The Agency is also soliciting comment on its application of 90th percentile values of the screen ed data set to represent healthy and least disturbed conditions

.

B. Proposed Numeric Criteria for Estuaries 1. Introduction EPA is proposing to use a system

- specific approach for the derivation of numeric nutrient criteria for estuaries to ensure that the u nique attributes of each estuarine ecosystem are taken into account and addressed. This system

- specific approach allows the Agency to consider the individual physical, chemical, and biological characteristics of each system. 189 2. Proposed Numeric Criteria (Estuaries) EPA is proposing numeric criteria for TN, TP, and chlorophyll a for 12 1 discrete segments within 23 estuarine systems in Florida (Table III. B

- 1). These include Class II and III waters under Florida law (Section 62

- 302.400, F.A.C.); no Class I estuarine waters were found by EPA. The 23 estuaries include five systems in the Florida

189 USEPA. 2001. The nutrient criteria technical manual: Estuarine and coastal waters. Office of Water. EPA

- 822

- B

- 01

- 003. Glibert, P.M. ,C.J Madden, W. Boynton, D. Flemer, C. Heil, and J. Sharp (eds.), 2010. Nutrients in Estuaries: A Summary Report of the National Estuarine Experts Workgroup, 2005

– 2007. Report to U.S. Environmental Protection Agency, Office of Water, Washington DC.*** E.O. 12866 Review

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Page 87 of 191 panhandle region, six systems in the Big Bend/Springs Coast region, four systems in southwest Florida, and eight systems along the Atlantic coast. Maps showing the loc ations of these estuaries and their segmentation are provided in the TSD (Volume 1: Estuaries, Chapter 1 and for each estuarine system in Chapter 2).

Table III. B

- 1. EPA’s P roposed N umeric C riteria for Florida’s E stuaries (in geographic order from northwest to northeast) Proposed Criteria

Perdido Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Upper Perdido Bay 0101 0.59 0.042 5.2

Big Lagoon 0102 0.26 0.019 4.9

Central Perdido Bay 0103 0.47 0.031 5.8 Lower Perdido Bay 0104 0.34 0.023 5.8

Pensacola Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Blackwater Bay 0201 0.55 0.022 3.9 Upper Escambia Bay 0202 0.43 0.025 3.7 East Bay 0203 0.50 0.021 4.2 Santa Rosa Sound 0204 0.31 0.018 4.1 Lower Escambia Bay 0205 0.42 0.024 3.9 Upper Pensacola Bay 0206 0.40 0.021 3.9*** E.O. 12866 Review

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Page 88 of 191 Lower Pensacola Bay 0207 0.34 0.020 3.6 Santa Rosa Sound 0208 0.33 0.020 4.1 Santa Rosa Sound 0209 0.36 0.020 5.2

Choctawhatchee Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Eastern Choctawhatchee Bay 0301 0.61 0.035 4.1
Central Choctawhatchee Bay 0302 0.48 0.017 3.9
Western Choctawhatchee Bay 0303 0.41 0.015 3.5

St. Andrews Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) East Bay 0401 0.31 0.014 4.6 St. Andrews Sound 0402 0.14 0.009 2.3 Eastern St. Andrews Bay 0403 0.24 0.021 3.9 Western St. Andrews Bay 0404 0.19 0.016 3.1 Southern St. Andrews Bay 0405 0.15 0.013 2.6 North Bay 1 0406 0.22 0.012 3.7 North Bay 2 0407 0.22 0.014 3.7 North Bay 3 0408 0.21 0.016 3.4 West Bay 0409 0.23 0.022 3.8 St. Joseph Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

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Page 89 of 191 St. Joseph Bay 0501 0.43 0.020 3.0

Apalachicola Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) St. George Sound 0601 0.53 0.019 3.6 Apalachicola Bay 0602 0.51 0.019 2.7 East Bay 0603 0.76 0.034 1.7 St. Vincent Sound 0605 0.52 0.016 12 Apalachicola / Offshore 0606 0.30 0.008 2.3

Alligator Harbor SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Alligator Harbor 0701 0.36 0.011 2.8 Alligator / Offshore 0702 0.33 0.009 3.1 Alligator / Offshore 0703 0.33 0.009 2.9

Ochlockonee Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Ochlockonee

- St. Marks Offshore 0825 0.79 0.033 2.7 Ochlockonee Offshore 0829 0.47 0.019 1.9 Ochlockonee Bay 0830 0.66 0.037 1.8

Ochlockonee Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) St. Marks River Offshore 0827 0.51 0.022 1.7

St. Marks River 0828 0.55 0.030 1.2

Big Bend/ Apalachee Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Econfina Offshore 0824 0.59 0.028 4.6
Econfina 0832 0.55 0.032 4.4 Big Bend/ Apalachee Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

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Page 90 of 191 Fenholloway 0822 1.15 0.44 1.9 Fenholloway Offshore 0823 0.48 0.034 10.3

Big Bend/ Apalachee Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Steinhatchee

Fenholloway Offshore 0821 0.40 0.023 4.1

Big Bend/ Apalachee Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Steinhatchee River 0819 0.67 0.077 1.0 Steinhatchee Offshore 0820 0.34 0.018 3.5
Big Bend/ Apalachee Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Steinhatchee Offshore 0818 0.39 0.032 4.8

Suwannee River SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L)

Suwannee Offshore 0817 1.1 0.090 3.7

Springs Coast SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Waccasassa River Offshore 0814 0.38 0.019 3.9 Waccasassa River Offshore 0815 0.32 0.019 4.1

Springs Coast SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Crystal River 0812 0.35 0.013 1.3 Crystal

- Homosassa Offshore 0813 0.36 0.013 2.1 Springs Coast SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

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Page 91 of 191 Weeki Wachee River 0808 0.32 0.010 1.6 Weeki Wachee Offshore 0809 0.30 0.010 2.1

Springs Coast SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Pithlachascotee River 0806 0.50 0.022 2.4 Pithlachascotee Offshore 0807 0.32 0.011 2.5

Springs Coast SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L)

Anclote River 0804 0.48 0.037 4.7

Anclote Offshore 0805 0.31 0.011 3.2

Clearwater Harbor/ St. Joseph Sound SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Clearwater Harbor 0801 0.47 0.029 5.7 St. Joseph Sound 0802 0.46 0.029 5.5
Clearwater Harbor

St. Joseph Offshore 0803 0.29 0.008 2.6

Tampa Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Hillsborough Bay 0901 0.49 0.175 7.7 Old Tampa Bay 0902 0.44 0.172 12.9 Upper Tampa Bay 0903 0.44 0.152 7.9 Middle Tampa Bay 0904 0.37 0.116 6.3 Lower Tampa Bay 0905 0.31 0.074 4.9 Manatee River 0906 0.62 0.115 7.4 Boca Ciega 0907 0.30 0.086 5.3 Sarasota Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Sarasota Bay 1001 0.28 0.119 7.7*** E.O. 12866 Review

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Page 92 of 191 Palm Sola Bay 1002 0.34 0.141 7.2 Roberts Bay 1003 0.34 0.131 8.6 Little Sarasota Bay 1004 0.30 0.123 8.3 Blackburn Bay 1005 0.28 0.118 7.0 Dona Bay 1006 0.24 0.115 4.2

Charlotte Harbor SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Upper Caloosahatchee 1101 1.11 0.110 9.9 Lower Caloosahatchee 1102 0.61 0.083 3.5 Estero Bay 1103 0.65 0.072 2.3 Matlacha Pass 1104 0.57 0.076 1.6 San Carlos Bay 1105 0.57 0.060 2.4 Peace Estuary 1106 0.79 0.303 3.5 Myakka Estuary 1107 0.71 0.176 3.8 Upper Charlotte Harbor 1108 0.71 0.177 2.9 Lower Charlotte Harbor 1109 0.61 0.105 2.1 Pine Island Sound 1110 0.56 0.062 2.1

Lake Worth Lagoon SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) North Lake Worth Lagoon 1201 0.55 0.067 4.7 Central Lake Worth Lagoon 1202 0.57 0.089 7.6 South Lake Worth Lagoon 1203 0.48 0.034 6.8

Loxahatchee SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Lower Loxahatchee 1301 0.64 0.027 2.9 Middle Loxahatchee 1302 0.90 0.041 3.8 Upper Loxahatchee 1303 1.2 0.068 2.8 St. Lucie SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

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Page 93 of 191 Lower St. Lucie 1401 0.58 0.045 5.3 Middle St. Lucie 1402 0.90 0.12 8.4 Upper St. Lucie 1403 1.22 0.197 8.9

Indian River Lagoon SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Upper Mosquito Lagoon 1501 1.1 0.05 3.6 Lower Mosquito Lagoon 1502 1.3 0.06 7.0
Banana River 1503 1.6 0.06 9.9 Upper Indian River Lagoon 1504 1.4 0.06 10 Upper Central Indian River Lagoon 1505 1.3 0.06 11
Lower Central Indian River Lagoon 1506 0.8 0.08 8.0
Lower Indian River Lagoon 1507 0.8 0.07 5.6

Halifax River SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Upper Halifax River 1601 1.1 0.18 8.8 Lower Halifax River 1602 0.85 0.2 9.7

Guana, Tolomato, Matanzas, Pellicer SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Pablo Creek 1701

0.6 0.09 6.6 Cabbage Creek 1702 Guana River 1703 Upper Tolomato River 1704 Lower Tolomato River 1705 Upper Matanzas River 1706*** E.O. 12866 Review

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Page 94 of 191 Central Matanzas River 1707 Lower Matanzas River 1708

Lower St. Johns River SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Lower St. Johns River 1801 0.75 0.095 2.5 Trout River 1802 1.09 0.108 3.6 Trout River 1803 1.15 0.074 7.7

Nassau SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Lower Nassau 1901 0.33 0.113 3.2
Middle Nassau 1902 0.40 0.120 2.4 Upper Nassau 1903 0.75 0.125 3.4

St. Marys River SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Lower St. Marys River 2002 0.27 0.045 3.0 Middle St. Marys River 2003 0.44 0.036 2.7

1 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. * For a given water body, 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 perio d.
a) Summary of Approaches (Estuaries) 1) EPA Approach (Estuaries) EPA used a reference

- based approach for estuaries where mechanistic modeling predictions and monitored data from the 2002

- 2009 reference time period showed that conditions supported balanced natural populations of flora and fauna. For two estuarine systems , St. Joseph Bay and Suwannee River , EPA had sufficient monitoring data*** E.O. 12866 Review

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Page 95 of 191 available to characterize a reference condition in each of the estuarine segment s of the systems. For these three estuarine systems, EPA used the 90 th percentiles of the distribution o f monitoring data in each segment to derive numeric criteria

. In five estuari n e system s , monitoring data were not available for each segment (Perdido Bay, St. Andrews Bay, Alligator Harbor, Apalachicola Bay, and St. Lucie ). EPA used mechanistic modeling p redicted concentration distributions to characterize the reference condition for each of these systems. EPA derived criteria based on the 90 th percentiles of the distribution of mechanistic modeling predictions in each segment to derive numeric criteria

. I n eleven estuarine systems EPA used monitoring data and/or mechanistic modeling predictions to evaluate the three biological endpoints (i.e., water clarity, chlorophyll a concentration, and DO) and found that reductions in nutrients were insufficient to me et all three of the endpoints. However, EPA determined that these estuaries appeared to be supporting balanced natural populations of aquatic flora and fauna with regard to nutrients because other conditions in the estuaries significantly affected the bio logical endpoints. In one common example , CDOM and suspended solids significantly affect water clarity in the system to the point at which nutrient reductions alone were not sufficient to achieve the water clarity target. EPA used mechanistic modeling pred icted concentration distributions in Choctawhatchee Bay, Ochlocknee Bay, Big Bend/Apalachee Bay, Springs Coast, Clearwater Harbor/St. Joseph Sound, Sarasota, Charlotte Harbor, Loxahatchee, and Nassau/St. Marys River to characterize the reference condition for each of these systems. EPA derived criteria based on the 90 th percentiles of the distribution of mechanistic modeling data in each segment to derive numeric criteria.*** E.O. 12866 Review

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Page 96 of 191 For two estuarine systems, Indian River Lagoon and Halifax River , there were not mech anistic models available, however, EPA had sufficient monitoring data available to characterize a reference condition in each of the estuarine segment s of the systems. For these two estuarine systems, EPA used the 90 th percentiles of the distribution of

mo nitoring data in each segment to derive numeric criteria

. In four estuari n e system s ( Pensacola Bay, Tampa Bay, Lake Worth, and St. Johns River ), EPA used monitoring and mechanistic modeling data to determine that, without nutrient load reductions, these sy stems do not support a balanced natural population of aquatic flora and fauna

. EPA used mechanistic models to calculate the load reductions necessary to meet all three biological endpoints, and derived criteria based on mechanistic model predictions using this reduced load. EPA used analysis of monitoring data in these estuaries to corroborate and support the proposed criteria, where available. For additional details please refer to the TSD (Volume 1: Estuaries, Chapter 2)

. Proposed criteria for the Guana, Tolomato, Matanzas, and Pellicer (GTMP) estuarine system were based upon nutrient concentrations that were calculated from
stressor

- response analyses of available monitoring data to support the biological endpoints, and thus support balanced natural popul ations of aquatic flora and fauna. In these systems, EPA’s analysis of monitoring data indicated that existing nutrient loads were unlikely to yield conditions that support balanced natural populations of aquatic flora and fauna. In these estuaries, mechan istic model predictions were not available because there was insufficient data for model parameterization. For additional details please refer to the TSD (Volume 1: Estuaries, Chapter 2).*** E.O. 12866 Review

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Page 97 of 191 Several alternative approaches for deriving numeric criteria for est uaries were evaluated and considered by EPA, including submissions from FDEP, three west coast National Estuary Programs (Tampa Bay, Sarasota Bay, and Charlotte Harbor), and the St. Johns River Water Management District for estuaries within their jurisdict ion (St. Johns River, Mosquito Lagoon, Tolomato

- Matanzas estuary, Halifax River estuary, Indian River Lagoon, and Banana River). While some of these approaches reflected different segmentation schemes than the ones EPA is proposing, all used multiple biolo gical endpoints and analytical methods to determine the current state of the system and derive criteria. EPA solicits comments on the alternative approaches described in more detail in the following section . Additional details on these submissions are prov ided in the TSD (Volume 1: Estuaries, Chapter 2). 2) Alternative for Tampa Bay The Tampa Bay National Estuary Program (TBNEP) has derived numeric criteria using stressor

- response and reference condition approaches for four main segments within Tampa Bay ( Old Tampa Bay, Hillsborough Bay, Middle Tampa Bay, and Lower Tampa Bay) as well as Boca Ciega Bay, Terra Ceia Bay, and the Manatee River estuary. The criteria submitted by TBNEP and proposed by FDEP are expressed as chlorophyll a concentrations, total nitr ogen (TN), and total phosphorus (TP) delivery ratios. To get an estimate of seagrass coverage in the Bay, TBNEP first established 1950 as a benchmark time period. Aerial photographs from 1950 show ing seagrass distribution were compared to more recent ima ges from 1990. Areas with seagrasses present in 1950, but absent in 1990, were designated as potential restoration sites. Areas that were supporting seagrasses in 1990 were designated as protection sites, while locations where*** E.O. 12866 Review

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Page 98 of 191 no seagrass could be supporte d due to major physical alterations were noted as non

restorable areas and removed from the target analysis. The final seagrass areal target for the Bay was based on 95% of the seagrass acreage of the restoration and protection area combined. Depth targets were established using a conservative estimate of the deep edge of the seagrasses from 1950 coverage. Light requirements of seagrasses were determined using data from 1985

- 1994 and were established as a minimum of 20.5% of subsurface light. Chlorophyll a concentrations necessary to support the light requirements of seagrasses were derived using one of two methods. The first calculates the chlorophyll a concentrations in each segment necessary to restore seagrasses based on the relationship of average mont hly chlorophyll a to light availability and the seagrass light requirement of 20.5% for healthy growth. Chlorophyll a targets were also developed by calculating the average annual chlorophyll a in an estuary segment using data from 1992

- 1994 (a period of t ime with high and low rainfall during which seagrass was noted to be expanding). The lower value of these two methods was used to set the segment

- specific chlorophyll a target, while a threshold value used for criteria was defined as the loading target plu s two standard errors above the period of record mean annual chlorophyll a concentrations in each segment. For Boca Ciega Bay, Terra Ceia Bay and the Manatee River estuary, chlorophyll a thresholds were established using the reference condition approach.
T N and TP criteria were established for Tampa Bay by calculating the average annual segment specific loading for the years 1992

- 1994, with the exception of Manatee River estuary, where the 2003

- 2007 period was used. The loading was then converted to*** E.O. 12866 Review

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Page 99 of 191 a segme nt

- specific "Nitrogen Delivery Ratio" or "Phosphorus Delivery Ratio" (the mass (load) of TN or TP delivered per volume of water (tons/m 3 )) during the reference period. For more information regarding the derivation of these criteria, please see the TSD (Vo lume 1: Estuaries, Sub

- chapter 2.13.9). 3) Alternative for Sarasota Bay FDEP has proposed numeric criteria that were derived by the Sarasota Bay National Estuary Program (SBNEP) using a reference condition approach, as well as using a stressor

- response a pproach that links nutrients, chlorophyll a , and seagrass extent. Numeric nutrient criteria for the greater Sarasota Bay area were proposed for the following 5 segments: Palma Sola Bay, Sarasota Bay, Roberts Bay, Little Sarasota Bay, and Blackburn Bay.
To determine seagrass targets, SBNEP analyzed seagrass coverage documented in historic and recent aerial surveys and GIS shapefiles. Aerial photos from 1950 were used to establish the baseline extent of seagrass in the study area. More recent seagrass areal coverage from 2004 to 2006 was determined through analysis of GIS shapefiles based on biannual aerial surveys by SFWMD. Areas deemed non

- restorable were removed from the analysis. The greater of either the historic (1950) or recent (2004

- 2006) seagrass

cov erage was used as the target in each segment (excluding Little Sarasota Bay which used recent coverage). SBNEP determined that recent seagrass coverage is meeting established targets, indicating that corresponding chlorophyll a concentrations and resultant water clarity are also protective of the seagrass in each estuary segment. Based on this assessment, SBNEP calculated the segment

- specific annual arithmetic mean of chlorophyll a*** E.O. 12866 Review

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Page 100 of 191 concentrations from 2001

- 2005. To allow for some variation in water quality and seagrass coverage, SBNEP recommended criteria be based on a chlorophyll a threshold, that is the sum of the target and standard deviation around the mean annual chlorophyll a concentration in each segment. To derive TN concentration criteria for each s egment in Roberts Bay, Little Sarasota Bay, and Blackburn Bay, SBNEP first regressed seasonal TN concentration against chlorophyll a . The chlorophyll a threshold concentration, described earlier, was used to define an associated seasonal TN concentration c onsidered protective. Seasonal TN concentrations were weighted based on the number of months per season , and from these weighted values an annual geometric mean was calculated to derive the TN concentration criteria. To calculate TN concentrations for Sar asota Bay, color, region of the Bay, and season were regressed against the chlorophyll a threshold values. The seasonal TN concentrations were weighted based on the number of months per season and from these weighted values an annual geometric mean was cal culated to derive the TN criteria. In Palma Sola Bay, TN concentration threshold value s were derived by calculating the annual mean TN concentration, by segment, from 2001

- 2005 and adding the standard deviation of the segment

- specific annual mean TN conce ntrations for the period of record of data. SBNEP calculated TP concentrations for all five segments of Sarasota Bay based on the 2001

- 2005 reference period. TP criteria were calculated by adding the arithmetic means of TP concentrations in each segment d uring the reference period to the standard deviation around the mean annual TP concentrations in each segment. For more*** E.O. 12866 Review

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Page 10 1 of 191 information regarding the derivation of these criteria, please see page the TSD (Volume 1: Estuaries, Sub

- chapter 2.14.9). 4) Alternati ve for Charlotte Harbor FDEP has also proposed segment

- specific numeric criteria derived by the Charlotte Harbor National Estuary Program (CHNEP) based on mean annual concentrations. Derivation of the criteria is based on a reference period approach, exce pt in the Caloosahatchee River , due to nutrient impairments. In the Caloosahatchee River FDEP will apply a TMDL that is currently under development. Seagrass aerial targets were derived for CHNEP by establishing historical baseline acreage (1950) and more recently surveyed seagrass acreage (1988

- 2006). Historical coverage was established by interpreting aerial photos from 1950 and digitizing the results, as well as using additional electronic coverage data. Overall aerial targets for each segment were based on the greater of either the baseline acreage or mean of all recent seagrass surveys. Protection and restoration areas were also defined for each segment. Protection areas are defined as the minimum seagrass area from recent seagrass surveys

. R estoration areas are defined as the difference between the minimum and maximum seagrass areas from recent surveys. CHNEP determined whether recent seagrass coverage is meeting established targets based on the presence of restoration areas, as defined earlier. Using this assessment, CHNEP calculated the segment

- specific threshold criteria values. Chlorophyll a criteria for segments with only protection areas are calculated as the arithmetic mean of chlorophyll a concentrations from 2003

- 2007 plus one standard deviatio n of the annual mean chlorophyll a concentrations in the segment during the period of record. For restoration areas chlorophyll a criteria are calculated as the*** E.O. 12866 Review

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Page 102 of 191 arithmetic mean of chlorophyll a concentrations from 2003

- 2007 plus one

- half standard deviation of the annual mean chlorophyll a concentrations in the segment during the period of record. Chlorophyll a criteria for the Tidal Myakka and Tidal Peace were established based on the chlorophyl l a values established for the downstream waters. Criteria for TN and TP concentrations were developed using the reference period from 2003

- 2007. TN and TP concentration criteria were calculated as the arithmetic mean of TN or TP concentrations from 2003

- 2 007, plus one standard deviation of the annual mean TN or TP concentrations in the segment during the period of record for protection areas, or one

- half standard deviation for restoration areas. For more information regarding the derivation of these crite ria, please see the TSD (Volume 1: Estuaries, Sub

- chapter 2.15.9). 5) Alternative for Clearwater Harbor and St. Joseph Sound FDEP proposed concentration

- based numeric nutrient criteria for each of the three open estuarine segments of St. Joseph Sound, Clearwater Harbor North, and Clearwater Harbor South using a reference time period, which is a reference condition approach.
Sea grasses were identified as a critical endpoint to establish nutrient criteria because seagrass health depends on water quality and clarity. Historical photography from 1942 and 1957 was used to estimate seagrass acreage, which was then compared to
seagrass acreage in recent studies. Non

- restorable areas were also identified and accounted for in the comparison. In Clearwater Harbor North and Clearwater Harbor South, historical seagrass estimates were used to establish targets. Because of the large amount of physical disturbance in St. Joseph Sound since the time period of the historical documentation, the target was based on average of the two most recent surveys.*** E.O. 12866 Review

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Page 103 of 191 Trends in water quality changes over time were then examined by comparing data collected from 1 992 to 2002 at fixed sites, to probabilistic sampling sites from 2003 to 2009. By comparing the distribution of chlorophyll a concentrations, FDEP concluded that water quality had improved over time. Annual averages for TN and TP in each segment were also comparable, signaling that all segments responded similar to changes in water quality and tended to co

- vary over time. Additionally, both TN and TP loads were observed as declining from 2003 to 2008. 190 From the results of those analyses and because seagrass es are improving throughout the Clearwater Harbor/St. Joseph Sound estuary, it was concluded that recent water quality conditions are sufficient to maintain full aquatic life uses in the estuary. As a result of the analyses described earlier, a reference period of 2003

– 2009 was chosen to establish chlorophyll a targets and thresholds and TN criteria based on annual geometric means during the reference period. 191 The threshold value proposed by FDEP represents a deviation from reference conditions, and the ta rget would be set to support the reference conditions. The threshold value was calculated on the basis of statistical theory that if TN concentrations in any year were not different from reference period conditions, its geometric average value would be low er than the reference period mean + 1.96 times the standard deviation of the annual geometric averages with known confidence. 192 For more information regarding the derivation of these criteria, please see the TSD (Volume 1: Estuaries, Sub

- chapter 2.12.9).

190 Levy 2010 191 Janicki Environmental 2011 192 Janicki Environmental 2011*** E.O. 12866 Review

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Page 104 of 191 6) Alternative for St. Johns River Water Management District waters The St. Johns River Water Management District (SJRWMD) outlined proposed approaches for several estuaries within their jurisdiction. These included the St. Johns River, Mosquito Lagoon, To lomato

- Matanzas estuary, Halifax River estuary, Indian River Lagoon, and Banana River. In general, SJRWMD proposed a weight of evidence approach employing several analytical techniques to derive numeric criteria for each of the systems. The following parag raphs outline the methods proposed for each of these systems. There are currently values for TN, TP, and chlorophyll a developed for the Lower St. Johns River (LSJR) to support TMDL and site

- specific alternative criterion (SSAC) activities in the river. Th e LSJR is defined as the main stem segments of the river between the juncture with the Ocklawaha River and the river mouth at Mayport, with the marine portion occurring between Julington Creek and the mouth. The SSAC was developed for DO in the marine port ion of the river. It was approved by EPA in 2006 and is in effect as a WQS. The TMDL established numeric criteria for TN and TP loads in the freshwater portion of the LSJR and TN load criteria in the saline portion of the LSJR to achieve the marine DO SSAC and protect the statewide standard for DO in the freshwater section. The TMDL also established a SSAC for chlorophyll a as biological target to reflect TN and TP concentrations, and thereby ensures attainment of the applicable DO criteria established in t he SSAC for the marine section of the LSJR. Similar to the modeling approach proposed by EPA for Florida estuaries, TN, TP, and chlorophyll a criteria were derived for the LSJR using linked watershed,*** E.O. 12866 Review

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Page 105 of 191 hydrodynamic, and water quality models. Non

- point nutri ent inputs from the watershed to the river were determined for each sub

- basin in the LSJR using the Pollutant Loading Screen Model (PLSM), estimates of atmospheric deposition, and estimates of loading from tributaries and upstream. Within the river, hydrod ynamics were modeled using the Environmental Fluid Dynamics Code (EFDC) model and water quality processes were modeled using the U.S. Army Corps of Engineers Quality Integrated Compartment Model (CE

- QUAL

- ICM), Version 2. The models were calibrated for the period from January 1, 1995 to November 30, 1998. TMDL model scenarios were assessed on an annual basis to determine if chlorophyll a levels exceeded the chlorophyll a threshold of 40 μg/L less than 10% of the time (to prevent undesirable shifts in algal c ommunity composition). For Mosquito Lagoon, a suite of five approaches are considered to develop a weight of evidence by which numeric criteria can be developed. These approaches are based upon one of three relationships; 1) the link between nutrients, phy toplankton growth (as shown by chlorophyll a ), and the trophic state of a system; 2) the link between nutrients, phytoplankton growth (as shown by chlorophyll a ), the effects of phytoplankton on light attenuation in the water column, and the light requirem ents of seagrasses; or 3) the connection between TP and harmful algal bloom (HAB) occurrence. The first and primary approach uses a reference period from 2004

- 2008 to calculate annual median and maximum wet season medians of chlorophyll a , TN, and TP. The reference time period was selected because of the low TN, TP, and chlorophyll a observed during that period; the rainfall amounts during that period were representative*** E.O. 12866 Review

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Page 106 of 191 of typical rainfall over time; and the Trophic State Index value for that time period w as greater than 50, which is considered to be "good" (mesotrophy to oligo

- mesotrophy). The second approach draws upon an optical model linking chlorophyll a to previously established light attenuation targets as a way to predict annual median chlorophyll a in southern Mosquito Lagoon that would be protective of seagrass and serve as a basis for criteria derivation. A third approach derives a TP level that corresponds to minimum "bloom" levels of the dinoflagellate Pyrodinium bahamense , the common HAB speci es seen primarily in the southern Lagoon. A fourth line of evidence applied to the Mosquito Lagoon is multivariate geometric mean function regression models relating TN and TP to chlorophyll a on an annual basis and during the wet season. Targets for chlor ophyll a are set based on the reference period mentioned earlier for the north and central segments and the optical model for the southern segments. The final method is based on two general nutrient models

. 193 The reference method is used to derive the TN, T P, and chlorophyll a , criteria for the Mosquito Lagoon with the other four methods providing supporting evidence. Two criteria magnitudes for TN, TP, and chlorophyll a are presented; one an annual median value and the other a wet season (July

September) me dian value. The approaches used for the Indian River Lagoon (IRL) and Banana River Lagoon (BRL) are similar to those used for Mosquito Lagoon. The approaches are based upon a weight of evidence relying on two general ecological relationships: 1) the link between nutrients, phytoplankton growth (as shown by chlorophyll a ), and the trophic

193 Stewar d, J.S., and E.F. Lowe. 2010. General empirical models for estimating nutrient load limits for Florida’s estuaries and inland waters. Limnology and Oceanography 55(1): 433

- 445. Dettmann, E. H, 2001. Effect of water residence time on annual export and denit rification of nitrogen in estuaries: A model analysis. Estuaries 24, 481

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Page 107 of 191 state of a system; 2) the link between nutrients, phytoplankton growth (as shown by chlorophyll a ), the effects of phytoplankton on light attenuation in the water column, the light requirements of seagrasses, and the previously established depth limit for seagrasses. The influence of TP on HAB events is also discussed as an ancillary line of evidence. As a first line of evidence loading limits are derived based on analyses done for TMDLs in 2009. The loading limits were established using regression models that regress seagrass depth limits targets against loading of TN and TP. 194 The second method used annual medians of data from reference segments that meet desired depth thre sholds established by the TMDL analyses. The third approach relies upon an optical model similar to the one described earlier for the Mosquito Lagoon using data from 1996

- 2007. A model was built for each of the sub

- lagoons: the BRL, North IRL, and Central IRL (divided into Sebastian and South Central reaches). An optical model is in development for the North Central reach. The fourth approach also applies two general models to data specific to the IRL and BRL. 195 Where the Dettmann (2001) model could not be u sed to predict TN concentrations, a TN:TP ratio for the given sublagoon was applied to the TP limit to get TN limits. The fifth approach relies upon the relationship between HAB occurrence and TP concentrations. Targets for chlorophyll a are presented as a range of values established using the optical model approach and the reference segment approach. Proposed TN and TP loading criteria are based on the loading limits established using the TMDL analyses. Primary proposed TN and TP criteria concentrations ar e calculated

194 Steward J.S., R.V. Virnstein, L.J. Morris, and E.F. Lowe. 2005. Setting Seagrass Depth, Coverage, and Light targets for the Indian River Lagoon system, Florida. Estuaries, No.6, p.923

- 935. 195 Steward, J.S., and E.F. Lowe. 2010. General empirical models for estimating nutrient load limits for Florida’s estuaries and inland waters. Limnology and Oceanography 55(1): 433

- 445. Dettmann, E. H, 2001. Effect of water residence time on annual export and denitrification of nitrogen in estuaries: A model analysis. Est uaries 24, 481

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Page 108 of 191 based on the reference segment method. Alternate criteria are proposed using a convergence of the concentrations calculated by the reference segment method and general models. Two criteria magnitudes are proposed, one for an annual median and the other for a wet season (June

- October) monthly maximum. The SJRWMD proposed criteria for the Tolomato and Matanzas Estuary (TME) using a weight of evidence approach and methods similar to those used in the other estuaries. TN and TP concentrations and c hlorophyll a target concentrations are based on an approach that analyzes water quality and estimated current loading during a reference period from 2000

- 2009. The period of reference was selected based on a desirable TSI score (< 50), rainfall amounts typical of average conditions, and completeness of the data record. Criteria magnitudes are proposed as an annual median or mean and a maximum wet season (June

- September) median or mean. The reference period approach of criteria deriv ation for the TME is supported by an additional line of evidence using regression analyses of chlorophyll a versus TN and TP. Target chlorophyll a values are based on the reference period analyses. The general nutrient models of Steward and Lowe (2010) and Dettmann (2001) are also used as an additional method by which to estimate loading limits and concentrations associated with those limits. The SJRWMD also derived criteria for the Halifax River Estuary. SJRWMD derived criteria using three methods. The fir st is a reference condition based on the period from 2000

- 2008. This period is selected because of the low TN levels compared to the previous decade, the low chlorophyll a concentrations during the period which are consistent with chlorophyll a targets est ablished for other estuaries throughout the State, and the "good" trophic status shown by TSI values less than 50. Concentrations are*** E.O. 12866 Review

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Page 109 of 191 calculated using annual median concentrations and maximum wet

- season median concentrations (as the highest monthly values from July

- September) of TN, TP, and chlorophyll a . Simple linear regressions are used as a second line of evidence to calculate TN and TP criteria based on chlorophyll a targets established by the reference period calculations. The general nutrient models of Steward and Lowe (2010) and Dettmann (2001) are used as a final method by which to estimate loading limits and concentrations associated with those limits. Proposed loading and concentration criteria for the North Halifax River Estuary are based on the loading and concentration estimates of the general nutrient models, with estimates of loadings from wastewater treatment facilities in the estuary removed to represent reference conditions . The current estimated concentrations (ca. 2004) of TN and TP based on the reference approach are proposed as criteria for the South Halifax River Estuary. Target chlorophyll a values for both segments are calculated using the reference period approach. EPA is also considering the use of approaches outlined in Steward et al. (2005) to derive criteria in Indian River Lagoon. In particular EPA is considering using the depth of colonization within reference segments as “upper restoration depths” and the highest value observed for a specific segment as a minimum target for tha t segment. For more information regarding the derivation of these criteria, please see the TSD (Volume 1: Estuaries, Sub

- chapter 2.18.9 (Indian River Lagoon), 2.19.9 (Halifax River), 2.20.9 (GTMP), and 2.21.9 (St Johns River)). 7) Request for Comment on P roposed and Alternative Approaches EPA believes that the approach developed for each estuarine system is appropriate, scientifically defensible, and results in numeric values that translate the*** E.O. 12866 Review

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Page 110 of 191 State’s current narrative nutrient criteria to ensure that nut rient concentrations of a body of water do not cause an imbalance in natural populations of aquatic flora or fauna that will, in turn, protect Class II and III designated waters in the State of Florida. EPA requests comment on this system

- specific approach and the derived numeric criteria, as well as additional scientific information that can be used to translate the State’s narrative nutrient criteria to provide protection of fish consumption, recreation and the propagation and maintenance of healthy, well

- balanced population of fish and wildlife in Florida’s Class II and III estuarine waters. In addition, EPA requests comment on the alternate approaches that were submitted by the NEPs and proposed by FDEP for Tampa Bay, Sarasota Bay, Charlotte Harbor, Cl earwater Harbor, and St. Joseph Sound, as well as the alternative approaches submitted by the St. Johns River Water Management District for waters under their jurisdiction. Specifically, EPA requests comment on the scientific defensibility of these
approac hes as well as their ability to result in numeric values that will protect Class II and III designated waters in the State of Florida.

b) Proposed Criteria Duration and Frequency (Estuaries) For the chlorophyll a , TN, and TP criteria for estuarine waters, the criterion

magnitude values (expressed as a concentration) provided in Table III. B

- 1, the criterion

duration (or averaging period) is specified as annual, and the criterion

- frequency is specified as no more than once every three years. EPA is proposing criteria duration of a year, in which sampled nutrient concentrations are summarized as annual geometric means, because annual average concentrations are directly related to annual nutrient*** E.O. 12866 Review

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Page 111 of 191 loading to the waterbody. 196 EPA is proposing criteria frequency as a no - more - than

- one in

- three

- years excursion frequency. EPA has determined that this frequency of excursions will not result in unacceptable effects on designated uses as it will allow waterbodies enough time to recover from occasionally elevated levels of nitrogen and phosphorus concentrations. These duration and frequency components of the criteria are identical to those utilized in the Inland rule (40 CFR 131.43), which will add consistency to the implementation of these criteria with those established i n the previous rulemaking. EPA requests comment on the frequency and duration components of these criteria regarding their ability to ensure protection of the designated uses of these waters. c) Proposed DPVs (Estuaries) EPA is proposing a rule that inclu des numeric criteria for streams in Florida to protect the estuarine waterbodies that ultimately receive nitrogen and phosphorus pollution from the watershed. These numeric criteria, which EPA refers to as Downstream Protection Values, or DPVs, will apply at the point of entry into the estuary, also referred to as the “pour point.” If the DPV is not attained at the point of entry into the estuary, then the collective set of streams in the upstream watershed does not attain the DPV, for purposes of CWA secti on 303(d). The Agency is proposing a rule that includes three approaches for setting TN and
TP DPVs: 1. Water quality simulation models,

196 Boyton, W.R. J.D. Hagy, L. Murray, C.Stokes, and W.M. Kemp. 1996. A comparative anlaysis of eutrophication patterns in a temperate coastal lagoon. Estuaries 19:406

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Page 112 of 191 2. Ambient water quality data associated with the pour point, coincident in time with the data record for which the downstre am receiving estuary segment TN and TP criteria were developed, and
3. The estuary segment TN and TP criteria to which the freshwater stream or canal discharges. The Agency’s intention in proposing all three approaches is to provide a range of methods for deriving TN and TP DPVs that reflect the degree of data and scientific information available. For the purpose of deriving DPVs EPA believes that the use of mechan istic models is the most refined method to define a concentration target at the pour point to support the attainment of healthy, balanced populations of aquatic flora and fauna

. These three approaches are briefly described below. A more detailed descriptio n of the approaches, as well as examples of the TN and TP DPV calculations using the three approaches, is provided in the technical support document. EPA employed the first approach where water quality simulation models were available and used to derive nu meric nutrient criteria. Using the model simulations, EPA was able to derive DPVs from the modeled nutrient loads entering the estuaries that met the biological endpoints, and thus supported designated uses for that estuary. Employing the same modeling sce nario used to derive the estuarine criteria , the DPVs were based on the calibrated watershed model scenario used in deriving estuarine criteria. Similar to the estuary criteria, the DPVs were calculated by computing annual geometric mean TN and
TP concentr ations that correspond with the modeled loads at the pour point of each tributary for each of the years 2002 through 2009. Because EPA established that model interpretations of existing data met all biological endpoints EPA inferred that freshwater*** E.O. 12866 Review

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Page 113 of 191 loads d uring this time period supported healthy conditions in the estuary. Therefore EPA selected the upper bound ( i.e., the 90 th percentile) of modeled loads as the DPV

. EPA employed the second approach to calculate DPVs where estuary criteria were not derived using water quality simulation models, and where the estuary is currently meeting criteria . In these areas, EPA calculated reference

- based DPVs using water quality data at the pour point of the freshwater streams, coincident in time with the data record fo r which the downstream receiving estuary segment TN and TP criteria were calculated. A reference

- based approach for computing DPVs was used because the downstream receiving estuary segment currently supports biological endpoints. Thus, the nutrient concent rations occurring at, and the nutrient loads passing through, the pour point over the data record used to show that the estuary is supporting the endpoints are protective of the downstream receiving estuary segment. EPA calculated DPVs in these areas using the same mathematical approach used to calculate the downstream estuary segment TN and TP criteria to prevent calculating a DPV using upstream water quality data that coincided with a documented downstream impact (e.g., 303(d) listing for nutrients in the estuary segment) and to ensure mathematical consistency between the approaches. The Agency’s third approach for setting DPVs is to use the downstream receiving estuary segment criteria as the DPVs. Such an approach may be appropriate where water quality simulation models and water quality data are not available. EPA is requesting comment on the scientific defensibility of these three proposed approaches for determining concentrations of TN and TP result in attainment and maintenance of the estuarine crit eria.*** E.O. 12866 Review

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Page 114 of 191 d) EPA Approach and Criteria for Tidal Creeks Tidal creeks are small sub

- estuaries that exhibit a wide range of salinity zones typical of larger estuaries, albeit on a smaller scale. Tidal creeks receive freshwater flow from streams and groundwater, similar to estuaries, but have small drainage areas and less developed drainage systems. Tidal creeks may be dominated by mangroves and other wetland vegetation with no freshwater stream inputs, and serve as conduits for tidal water to enter and leave wet land areas. Water quality and biological conditions are different in tidal creeks compared to more open estuarine systems due to small drainage areas, narrow stream channels, shallow depths, and the influence of adjacent marsh and mangrove habitats. They a re important spawning and nursery areas for aquatic life in adjacent estuary and coastal systems. EPA concluded that there were insufficient data and research to develop criteria specifically for tidal creeks. The Agency proposes to derive numeric criter ia for tidal creeks using the criteria developed for adjacent freshwater and estuarine segments. If the mean chloride concentration of the tidal creek is < 1,500 mg/L, the TN and TP criteria of the adjacent freshwaters segment (as defined in 40 CFR 131.43) would be used. If the mean chloride concentration of the tidal creek is > 1,500 mg/L, the TN and TP criteria of the adjacent estuary segment (as defined in Section III.B of this proposed rulemaking) would be used. EPA did not establish chlorophyll a crite ria for freshwater streams in the December 2010 final rule, Water Quality Standards for the State of Florida’s Lakes and Flowing Waters (40 CFR 131.43)

. The alternate option is to derive values for tidal creeks based on the mean salinities for the tidal creek, which would then be used to interpolate TN and TP concentrations between freshwater and estuarine criteria from adjacent*** E.O. 12866 Review

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Page 115 of 191 freshwater and estuarine se gments. Criteria would be derived by this method where there were sufficient salinity data to allow for interpolation. The calculation used to interpolate TN and TP concentrations between freshwater and estuarine segments based on salinity is provided in d etail in the TSD (Volume 1: Estuaries, Sub

- chapter 3.1). EPA is soliciting comment on the proposed option and the alternative, as well as other scientific information that can be used to translate the State’s narrative nutrient criteria to provide protect ion of fish consumption, recreation, and the propagation and maintenance of healthy, well

- balanced populations of fish and wildlife in Florida’s tidal creeks. e) EPA Approach and Criteria for Marine Lakes Marine lakes are coastal lakes and ponds with gro und

- water or intermittent surface water connections to marine water. They do not have a permanent surface connection to tidal waters. They are small and shallow, and generally round or elliptical in shape reflecting their formation as depressions that beca me isolated from marine waters by sand and dune formation. Some marine lakes are stratified by a salinity gradient where a freshwater layer at the surface is separated from a denser saline layer below. Similar to inland lakes, marine lakes are generally ol igotrophic under undisturbed conditions with low nutrient concentrations and low productivity. Their oligotrophic nature and stratification make them susceptible to the adverse effects of nutrient enrichment. EPA analyzed the data from over 50 marine lakes in Florida and found that chlorophyll a responded to nutrient enrichment in a similar fashion, based on color and alkalinity, as inland lakes. Details and supporting documentation are provided in the TSD (Volume 1: Estuaries, Sub

- chapter 3.2).*** E.O. 12866 Review

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Page 116 of 191 EPA has de termined that the Inland Rule criteria developed for inland lakes are applicable to marine lakes due to similarities in trophic condition and chlorophyll a response to nutrient concentrations. The criteria EPA proposes to use for marine lakes are those fou nd in 40 CFR 131.43 and below in Table III.B

- 2

. Table III.B

- 2

. EPA’s Proposed Numeric Criteria for Florida’s Marine Lakes Long Term Average Lake Color a and Alkalinity EPA Final Chl

- a b,*

μg/L EPA Final TN and TP Criteria [Range] TN mg/L TP mg/L Colored lakes c 20 1.27 [1.27

- 2.23] 0.05 [0.05

- 0.16] Clear lakes, high alkalinity d 20 1.05 [1.05

- 1.91] 0.03 [0.03

- 0.09] Clear lakes, low alkalinity e 6 0.51 [0.51

- 0.93] 0.01 [0.01

- 0.03]

a Platinum

- cobalt units (PCU) assessed as true color free from turbidity b Chl

- a is defined as corrected chlorophyll, or the concentration of chl

- a remaining after the chlorophyll degradation product, phaeophytin a, has been subtracted from the uncorrected chl

- a measurement. c Long

- term color > 40 PCU and alkalinity > 20 mg/L CaCO 3 d Long

- term color ≤ 40 PCU and alkalinity > 20 mg/L CaCO 3 e Long

- term color ≤ 40 PCU and alkalinity ≤ 20 mg/L CaCO 3 * For a water body, the annual geometric mean of chl

- a, TN or T P concentrations shall not exceed the applicable criterion concentration more than once in a three

- year period. EPA is soliciting comment on the application of Inland Rule lake criteria to marine lakes.

C. Proposed Numeric Criteria for Coastal Waters
1. Introduction Coastal waters are defined in this proposed rulemaking as marine waters that start at the land margin and extend up to three nautical miles from shore, with chloride concentrations greater than 1,500 mg/L, excluding estuaries. Unlike estuarie s, which are*** E.O. 12866 Review

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Page 117 of 191 commonly dominated by freshwater flows and can be organized within watershed boundaries, coastal waters have open coastal boundaries and localized influences near the estuary/coastal boundary (i.e., estuary pass). EPA is proposing criteria fo r coastal waters using satellite remote sensing to derive chlorophyll a , where possible. EPA is proposing to use a different approach to derive numeric criteria for marine waters in south Florida, including the Florida Keys and Dry Tortugas, because signif icant bottom reflectance in the region confounds derivation of chlorophyll a from satellite remote sensing (chl RS - a ) and extensive monitoring data are available to use in deriving criteria

. EPA is also proposing an alternative approach for coastal criteria derivation in the Big Bend region (between St. Joseph Bay and Anclote Bay) based on mechanistic modeling because seagrass beds within the coastal waters and CDOM export from rivers confoun d interpretation of satellite data and derivation of chl RS - a . Proposed criteria for Big Bend region and south Florida marine areas are discussed in subsections III.B and III.D, respectively.

2. Proposed Numeric Criteria (Coastal Waters) EPA is proposing numeric criteria for remotely sensed chlorophyll a in 74 segments (see the TSD, Volume 2: Coastal Waters, section 1.3 for a map showing the locations of the segments) in three coastal regions of Florida classified as Class III waters under Florida law (Sec tion 62

- 302.400, F.A.C.) (Table III. C

- 1).

Table III. C

- 1. EPA’s P roposed N umeric C riteria for Florida’s C oastal W aters*** E.O. 12866 Review

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Page 118 of 191 Coastal Region Coastal Segment 197 Approximate Location Chlorophyll RS - a 1 * (mg/m 3 )

Panhandle 1 AL border 2.41 2 Pensacola Bay Pass 2.57 3 1.44 4 1.16 5 1.06 6 1.04 7 1.14 8 Choctawhatchee Bay Pass 1.23 9 1.08 10 1.09 11 1.11 12 1.18 13 1.45 14 St. Andrew Bay Pass 1.74 15 St. Joseph Bay Pass 2.75 16 2.39 17 Southeast St. Joseph Bay 3.47

West Florida Shelf 18 5.43 19 4.80 20 4.24 21 3.96 22 Tampa Bay Pass 4.45 23 3.37 24 3.25 25 2.95 26 2.79 27 2.98 28 3.24 29 Charlotte Harbor 4.55 30 4.22 31 3.67 32 4.16 33 5.70 34 4.54 35 4.03 36 Fort Myers 4.61

Atlantic Coast 37 Biscayne Bay 0.92 38 0.26 39 0.26 40 0.24 41 0.21 42 0.21 43 0.20 44 0.20 45 0.21 46 0.25 47 0.57 48 St. Lucie Inlet 1.08

197 Please see TSD for location of Coastal Segments*** E.O. 12866 Review

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Page 119 of 191 Coastal Region Coastal Segment 197 Approximate Location Chlorophyll RS - a 1 * (mg/m 3 ) 49 1.42 50 1.77 51 1.55 52 1.44 53 1.53 54 1.31 55 1.40 56 1.80 57 Canaveral Bight 2.73 58 2.33 59 2.28 60 2.06 61 1.92 62 1.76 63 1.72 64 2.04 65 1.9 2 66 1.86 67 1.95 68 2.41 69 2.76 70 2.80 71 3.45 72 Nassau Sound 3.69 73 3.78 74 Georgia border 4.22 1 Chlorophyll RS - a is remotely sensed calculation of chlorophyll a concentrations. * For a given water body, the annual geometric mean of the chlorophyll a concentration shall not exceed the applicable criterion concentration more than once in a three

- year period.
a) Summary of Approaches 1) EPA Approach (Coastal Waters) EPA conducted a comprehensive review of water body

- specific water quality and impairment information as detailed in Section III.A.3.a. EPA determined through this review that at most times, Florida coastal waters appear to be supporting balanced populations of flora and fauna. Therefore criteria are proposed for coastal waters using a reference condition approach and satellite remote sensing imagery to derive protective criteria for chlorophyll a using a dataset that has been screened for times of K. brevis bloom events.*** E.O. 12866 Review

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Page 120 of 191 b) Request for C omment on Proposed Approach EPA believes that the approach that EPA has developed for these coastal water s is appropriate, scientifically defensible, and results in numeric values that translate the State’s current narrative nutrient crite rion that will, in turn, protect Class III designated waters in the State of Florida. EPA requests comment on this approach and the derived numeric criteria, as well as additional scientific information that can be used to translate the State’s narrative nutrient criteria to provide protection of fish consumption, recreation and the propa gation and maintenance of healthy, well

- balanced population of fish and wildlife in Florida’s Class III coastal waters.

c) Proposed Criteria Duration and Frequency (Coastal Waters) For the chlorophyll a criteria for coastal waters, the criterion

- magnitude values (expressed as a concentration) provided in Table III. C

- 1, the criterion

- duration (or averaging period) is specified as annual, and the criterion

- frequency is specified as no more than once every three years. EPA is proposing criteria duration of a year, in which sampled nutrient concentrations are summarized as annual geometric means, because annual average concentrations are directly related to annual nutrient loading to the waterbody. 198 EPA is pr oposing criteria frequency as a no

- more - than

- one - in

- three

- years excursion frequency. EPA has determined that this frequency of excursions will not result in unacceptable effects on designated uses as it will allow waterbodies enough time to recover from oc casionally elevated levels of nitrogen and phosphorus concentrations.

198 Boyton, W.R. J.D. Hagy, L. Murray, C.Stokes, and W.M. Kemp. 1996. A comparative anlaysis of eutrophication patterns in a temperate coastal lagoon. Estuaries 19:406

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Page 121 of 191 These duration and frequency components of the criteria are identical to those utilized in the Inland rule (40 CFR 131.43), which will add consistency to the implementation of these crit eria with those established in the previous rulemaking. EPA requests comment on the frequency and duration components of these criteria regarding their ability to ensure protection of the designated uses of these waters.

D. Proposed Numeric Criteria for South Florida Marine Waters 1. Introduction For purposes of this proposed rule, EPA is referring to south Florida marine waters as marine waters in the South Florida Nutrient Watershed Region. 199 EPA delineated the South Florida Region as the flowing freshw aters south of Lake Okeechobee, the Caloosahatchee River watershed, and the St. Lucie River watershed. Some of the significant land management units within the South Florida Region include the Everglades Agricultural Area, the Loxahatchee National Wildlife Refuge (Water Conservation Area 1), Water Conservation Areas 2 and 3, Big Cypress National Preserve, Everglades National Park, Biscayne Bay National Park, and the Florida Keys National Marine Sanctuary. A map of the South Florida Region can be found in th e TSD (Volume 3: South Florida’s Estuaries, Coastal Waters, and Inland Flowing Waters, Chapter 1). EPA is proposing numeric criteria collectively for these southern marine waters because of their unique physical, chemical and biological properties. They a re substantially different from other Florida coastal systems in part because South Florida

199 This is consistent with the classification used in previous EPA rulemaking (see EPA. 2010. Technical Support Document for U.S. EPA’s Final Rule for Numeric Criteria for Nitrogen/Phosphorus Pollution in Florida’s Inland Surface Fresh Waters ).*** E.O. 12866 Review

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Page 122 of 191 lacks the major rivers that are typical of watersheds throughout the State. They have unique freshwater sources (e.g., Everglades) and interactions with ocean water s. Nutrient sources in the watersheds that discharge into south Florida marine waters are typical of other areas in Florida and include runoff from developed (agricultural, urban) and undeveloped (wetlands and forests) lands, and discharges from wastewate r treatment plants. However, the flow paths that transport nutrients to these waters are unique and varied and include managed surface flows (canals), seepage from groundwater, circulation of ocean water, and direct atmospheric deposition. 2. Proposed Num eric Criteria (South Florida Marine Waters) For each south Florida marine system, the ecological status of phytoplankton, seagrass, mangrove, hardbottom, and macroalgal communities was evaluated with respect to impairments. EPA used information from the sc ientific literature, EPA reports, and existing State water quality data to perform this assessment. Based on this extensive review, EPA is confident that the screened data set represents times at which the marine systems are supporting balanced natural pop ulations of aquatic flora and fauna. Hence, EPA is considering a segment

- specific reference approach based on these least

- impaired sites to derive numeric TN, TP, and chlorophyll a criteria for south Florida marine waters. EPA is proposing TN, TP, and chlo rophyll a criteria for 40 segments for six south Florida marine systems (Table III. D

- 1). Table III. D

- 1. EPA’s P roposed N umeric C riteria for S outh Florida M arine W aters
S. Coastal System Segment Code Segment Name TN * (mg/L) TP* (mg/L) Chlorophyll a* 1 (μg/L)

Biscayne Bay NNB Northern North Bay 0.33 0.012 1.82 SNB Southern North Bay 0.31 0.010 1.04 NCI North Central Inshore 0.33 0.008 0.47 SCI South Central Inshore 0.53 0.008 0.41 SCM South Central Mid

- Bay 0.40 0.008 0.36 SCO South Central Outer

- Bay 0.27 0.007 0.28*** E.O. 12866 Review

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Page 123 of 191 CS Card Sound 0.38 0.007 0.38

Florida Bay MBS Manatee

- Barnes Sound 0.74 0.010 0.77 ECFB East Central Florida Bay 0.89 0.009 0.69 CFB Central Florida Bay 1.47 0.025 3.17 SFB South Florida Bay 0.89 0.011 1.35 WFBN West Florida Bay

- North 0.45 0.024 2.98 WFBC West Florida Bay

- Central 0.63 0.020 2.06 WFBS West Florida Bay

- South 0.34 0.012 1.04 NFB North Florida Bay 0.87 0.015 1.09 CL Coastal Lakes 1.61 0.050 10.22

Florida Keys FKN Florida Keys

- North 0.20 0.007 0.28 FKT Florida Keys

- Transition 0.21 0.008 0.34 FKS Florida Keys

- South 0.23 0.008 0.37 KWOS Key West

- Offshore 0.21 0.008 0.39 BKB Back Bay 0.29 0.009 0.39 BKS Back Shelf 0.26 0.012 0.74 MAR Marquesas 0.24 0.009 0.63 DT Dry Tortugas 0.22 0.008 0.43

Whitewater Bay/ Ten Thousand Islands WWB Whitewater Bay 1.05 0.029 4.58 PD Ponce de Leon 0.67 0.026 3.06 SRM Shark River Mouth 1.15 0.027 2.49 CTHB Coastal Harney

- Broad River 0.85 0.041 5.44 LMB Lostman Bay 0.90 0.027 4.02 IWW Internal Waterways 0.77 0.037 5.02 GI Gulf Islands 0.54 0.040 3.81 BLK Black River 0.47 0.056 4.21 Pine Island/ Rookery Bay MARC Marco Island 0.37 0.048 5.95 NPL Naples Bay 0.38 0.052 5.22 COCO Cocohatchee 0.55 0.059 6.35 Gulf Shelf GS Gulf Shelf 0.40 0.021 2.88 1 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. * For a given water body, 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.
a) Alternative Approaches Evaluated by EPA (South Florida Marine Waters) During EPA’s review of the available scientific data and information for derivation of numeric criteria for south Florida's marine waters, EPA also considered alternate approaches for criteria derivation. As an alternative method to calculate TN, TP, and chlorophyll a criteria using the reference approach, the Agency is considering the annual geometric means for TN, TP, and chlorophyll a proposed by FDEP and associated segmentation. Additional details are*** E.O. 12866 Review

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Page 124 of 191 provided in the TSD (Volume 3: South Florid a’s Estuaries, Coastal Waters, and Inland Flowing Waters, Sub

- chapter 1.5).

b) Request for Comment on Proposed and Alternative Approaches EPA believes that the approach that EPA has developed for marine waters in south Florida is appropriate, scientifically defensible, and results in numeric values that translate the State’s current narrative nutrient criteria that will, in turn, protect these Class II and III designated waters in the State of Florida. EPA requests comment on this approach and the derived n umeric criteria, as well as additional scientific information that can be used to translate the State’s narrative nutrient criteria to provide protection of fish consumption, recreation and the propagation and maintenance of healthy, well

- balanced populati on of fish and wildlife in south Florida’s Class II and III marine waters. In addition, EPA requests comment on the alternate approach of using FDEP’s proposed segmentation and associated criteria . Specifically, EPA requests comment on the scientific defensibility of this alternative approach as well as its ability to result in numeric values that will protect Class II and III designated waters in the State of Florida

.

c) Proposed Criteria Duration and Frequency (South Florida Marine Waters) For the TN, TP, and chlorophyll a criteria for south Florida marine waters, the criterion

- magnitude values (expressed as a concentration) provided in Table III. D

- 1, the criterion

- duration (or averaging period) is specified as annual, and the criterion

- frequency is specified as no more than once every three years. EPA is proposing criteria duration of a year, in which sampled nutrient concentrations are summarized as annual geometric*** E.O. 12866 Review

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Page 125 of 191 means, because annual average concentrations are directly related to annual nutrien t loading to the waterbody. 200 EPA is proposing criteria frequency as a no

- more - than

- one in

- three

- years excursion frequency. EPA has determined that this frequency of excursions will not result in unacceptable effects on designated uses as it will allow wate rbodies enough time to recover from occasionally elevated levels of nitrogen and phosphorus concentrations. These duration and frequency components of the criteria are identical to those utilized in the Inland rule (40 CFR 131.43), which will add consiste ncy to the implementation of these criteria with those established in the previous rulemaking. EPA requests comment on the frequency and duration components of these criteria regarding their ability to ensure protection of the designated uses of these wate rs.

d) Proposed DPVs (South Florida Marine Waters) In this proposed rule, attainment and maintenance of the water quality standards of downstream waters in South Florida is ensured through establishment of a downstream protection value (DPV). The applica ble criteria for flowing waters in south Florida that impact the downstream south Florida marine waters consist of the DPV, which is a concentration value at the point of entry into marine waters that results in attainment of the south Florida marine crite ria. EPA selected the point of entry into the south Florida marine waters, also referred to as the “pour point,” as the location to identify DPVs because the marine waters respond to the input from the pour point and all contributions from the network of flowing waters above this point in a canal or stream basin affect the water quality at the

200 Boyton, W.R. J.D. Hagy, L. Murray, C.Stokes, and W.M. Kemp. 1996. A comparative analysis of eutrophic ation patterns in a temperate coastal lagoon. Estuaries 19:406

– 421.*** E.O. 12866 Review

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Page 126 of 191 pour point. The canal basin concept is similar to that of a watershed in less managed waters and is used by the South Florida Water Management District (SFWMD) to de fine 31 canal basins in South Florida. If the DPV is not attained at the point of entry into the estuary, then the collective set of streams in the upstream watershed does not attain the DPV, for purposes of CWA section 303(d). To calculate DPVs in sout h Florida EPA is proposing the following approaches (also see subsection III.B.2.c. for additional information):
1. Ambient water quality data associated with the pour point coincident in time with the data record for which the downstream receiving estuary

s egment TN and TP criteria were developed, and
2. The estuary segment TN and TP criteria to which the freshwater stream or canal discharges. EPA is requesting comment on whether these approaches for determining concentrations of TN and TP will result in attai nment and maintenance of the south Florida marine criteria.

E. Proposed Numeric Criteria for South Florida Inland Flowing Waters 1. Proposed Numeric Criteria (South Florida Inland Flowing Waters) For purposes of this proposal, “south Florida Inland flow ing waters” refers to Class I and Class III surface waters with chloride concentrations at the surface less than 1,500 mg/L in a defined channel, including streams and canals. In general, these waters are located within the boundaries of the Southern Flori da Coastal Plain south of Lake*** E.O. 12866 Review

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Page 127 of 191 Okeechobee, the Caloosahatchee River watershed, and the St. Lucie watershed and are bounded by the estuarine/marine waters of the Gulf of Mexico and Atlantic Ocean to the east, south, and west. This area contains more than 1, 700 miles (2,736 km) of canals, dikes, and levees that control the movement of freshwater in south Florida. South Florida inland flowing waters include the large wetland ecosystem of the Everglades. A map showing this region is provided in the TSD (Volume 3: South Florida’s Estuaries, Coastal Waters, and Inland Flowing Waters, Chapter 3). EPA is proposing criteria for TN and TP expressed as downstream protection values for 23 pour points for estuarine systems in south Florida, where surface waters discharge into estuaries or marine waters (Biscayne Bay, Florida Bay, Southeast Coast marine waters, and Southwest Coast marine waters). The applicable criteria for flowing waters in south Florida, outside the EvPA and the EAA, consist of the marine water DPVs (See subsection III.D.2.d. for more information). The numeric nutrient criteria that EPA is proposing for south Florida inland flowing waters do not apply to flowing waters (canals) within the Everglades Protection Area (EvPA) or the Everglades Agricultural Area (EAA). There is an existing TP criterion of 0.010 mg/L (10 ppb) that currently applies to the marshes and adjacent canals within the EvPA (Section 61

- 302.540, F.A.C.). EPA approved that TP criterion in 2005 as protective of the waters in the EvPA. EPA’s approval was upheld by the U.S. District
Cour t in Miccosukee Tribe of Indians, et al. v. EPA

. 201 For this proposal, EPA has determined that the existing TP criterion continues to be protective of the designated uses of the flowing waters in the EvPA and that no additional numeric nutrient criteria are

201 Miccosukee Tribe v US EPA, 105 F.3d 599 (11th Cir. 1997)*** E.O. 12866 Review

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Page 128 of 191 necessary at this time for the EvPA. While the existing TP criterion does not apply directly to the flowing waters of the EAA, EPA has also determined that the TP criterion will serve to be protective of the designated uses of the flowing waters in the EAA . Most current flows from the EAA pass through storm water treatment areas (STAs) that have been specifically constructed to remove phosphorus from those waters before entering the EvPA. The waters discharging from the STAs are subject to CWA discharge per mits that must include limits as stringent as necessary to meet the 10 ppb TP criterion in the EvPA. Reductions of phosphorus upstream of the STAs (i.e., in the EAA) are part of the actions necessary to ensure the water discharged from the STAs will meet t he TP criterion in the EvPA. Based on the combination of the actions that will be necessary to ensure that waters from the EAA do not cause an impairment of the downstream waters in the EvPA, EPA has determined that the existing TP criterion is the only nu meric nutrient criterion that is necessary to protect the flowing waters of the EAA as well as the EvPA. Development of water quality standards for the EvPA and restoration actions within the EAA to attain the TP criterion have been and remain subject to t he oversight of two federal district courts. EPA believes its determination not to propose additional numeric nutrient criteria for these areas also will help facilitate the ongoing restoration efforts in the Everglades. a) Alternative Approaches Evaluated b y EPA (South Florida Inland Flowing Waters) As an alternative, EPA developed protective values for Class I and III waters (including canals and streams) in three inland subregions in south Florida (Biscayne, Palm Beach, and West) that are outside the EAA a nd the EvPA. The TN and TP values*** E.O. 12866 Review

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Page 129 of 191 represent the geometric mean of water quality measurements for waters in those regions and the criteria values are based on the frequency of occurrence of nuisance algal blooms in these waters, measured by chlorophyll a . A dditional details are provided in the TSD (Volume 3: South Florida’s Estuaries, Coastal Waters, and Inland Flowing Waters, Chapter 3). b ) Request for comment on the Proposed and Alternative Approaches EPA believes that both the proposed and alternative a pproaches that EPA has developed for inland flowing waters in south Florida are appropriate, scientifically defensible, and result in numeric values that translate the State’s current narrative nutrient provision that will, in turn, protect these Class I a nd III designated waters in the State of Florida. EPA requests comment on this approach and the derived numeric criteria, as well as additional scientific information that can be used to translate the State’s narrative nutrient provision to provide protect ion of fish consumption, recreation and the propagation and maintenance of healthy, well

- balanced population of fish and wildlife in south Florida’s Class I and II inland flowing waters.

F

. Applicability of Criteria When Final EPA’s proposed numeric nutrient criteria for Florida’s estuary’s, coastal and South Florida flowing waters will be effective for CWA purposes 60 days after publication of final criteria and will apply in addition to any other existing CWA

effective criteri a for Class I, II or Class III waters already adopted by the State and submitted to EPA (and for those adopted after May 30, 2000, approved by EPA). EPA requests comment on this proposed effective date.*** E.O. 12866 Review

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Page 130 of 191 FDEP establishes its designated uses through a syste m 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 II waters provide for the protection of

s hellfish p ropagation or h arvesting . Class I wa ters include all the protection of designated uses provided for Class III waters, and also include protection for designated uses related to drinking water supply. Class I, II and III waters comprise the set of Florida waters that meet the goals articulate d in section 101(a)(2) of the CWA and the waters for which EPA is proposing criteria. For water bodies designated as Class I, II and Class III any final EPA numeric nutrient criteria will be applicable CWA water quality criteria for purposes of implementi ng CWA programs including permitting under the NPDES program, as well as monitoring and assessment based on applicable CWA WQS and establishment of TMDLs. The proposed criteria in this rule, if and when finalized, would be subject to Florida’s general rule s of applicability in the same way and to the same extent as are other State

- adopted and/or federally

- promulgated criteria for Florida waters. See proposed 40 CFR 131.45(d). EPA notes that the proposed criteria in this rule are subject to Florida’s genera l rules of applicability in the same way and to the same extent as are other State

- adopted and/or Federally

- promulgated criteria for Florida waters. States have discretion to adopt policies generally affecting the application and implementation of WQS. (Se e 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 proposed rule to enumerate each of them, nor is it necessary to restate any otherwise appli cable*** E.O. 12866 Review

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Page 131 of 191 requirements. This broad reference to general rules of applicability provides sufficient coverage and was used without further elaboration in EPA’s December 6, 2010 final Inland criteria promulgation. The Agency is also concerned that addressing some applications in this proposal and not others may create unnecessary and unintended questions, confusion, and uncertainty about the overall application of Florida’s general rules. It is important to keep in mind that no TMDL will be rescinded or invalidate d as a result of this proposed rule, nor does this proposed 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 TMD L review.

I V. Under What Conditions Will Federal Standards Be Either Not Finalized or Withdrawn ? Under the CWA, Congress gave states primary responsibility for developing and adopting water quality standards for their navigable waters

. ( See CWA section
3 03(a)

- (c)). Although EPA is proposing numeric criteria for estuaries and coastal waters in Florida and flowing waters in the South Florida Region, Florida continues to have the*** E.O. 12866 Review

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Page 132 of 191 option to adopt and submit to EPA numeric criteria for the State’s Class I, Cla ss II and Class III waters consistent with CWA section 303(c) and implementing regulations at 40
CFR 131

. Consistent with CWA section 303(c)(4), if Florida adopts and submits numeric nutrient criteria and EPA approves such criteria as fully satisfying the CWA before publication of the final rulemaking, EPA will not proceed with the final rulemaking for those waters for which EPA approves Florida’s criteria. Pursuant to 40 CFR 131.21(c), if EPA does finalize this proposed rule, EPA’s promulgated water qual ity standards are applicable water quality standards for purposes of the CWA until EPA withdraws those federally

- promulgated water quality standards

. 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

w hen Florida adopts and EPA approves numeric nutrient criteria that fully meet the requirements of section 303(c) of the CWA and EPA’s implementing regulations at 40
CFR 131

. V. Alternative Regulatory Approaches and Implementation Mechanisms A. Designating Uses Under CWA section 303(c) (2)(A) , states shall adopt d esignated uses a fter 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 navigat ion.” 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)*** E.O. 12866 Review

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Page 133 of 191 defines “ designated uses ” as “ th os e uses specified in water quality standards for each water body or segment whether or not they are being attained.” A “use” is a particular function of, or activity in, waters of the U nited States that requires a specific level of water quality to support it. In other words, d esignated uses are a s tate’s concise statements of its management objectives and expectations for individual surface waters. In the context of designat ing uses, s tate s often work with stakeholders to identify a collective goal for their waters that the state intend s to strive for as it manage s water quality. States may evaluate the attainability of these goals and expectations to ensure they have designated appropriate uses

. ( S ee 40 CFR 131.10(g)). E PA’s regulations at 40 CFR 131 interpre t and implement CWA sections 101(a)(2) and 303(c)(2)(A) to require 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 (referred
to as uses specified in section 101(a)(2) of the Act), wherever attainable. ( See 40 CFR 131.2; 131.5(a)(4); 131.6(a),(f); 131.10(g),(j) ). W here s tates do not designate uses specified in 101(a)(2) of the Act , or remove such uses, they must demonstrate that the

uses ar e not attainable consistent with the use attainability analysis (UAA) provisions of
40 CFR 131.10 , specifically 131.10(g)

. A s tate may remove protection for a 101(a)(2) use if it can show, based on a UAA consistent with 131.10, that attaining such a design ated use is not feasible. States may include waters located in the same watershed in a single
UAA , provide d 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).*** E.O. 12866 Review

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Page 134 of 191 EPA’s proposed numeric nutrient criteria for estuaries and coastal waters, and inland flowing waters in the South Florida Region w ill apply to those waters designated by F lorida as C lass I (Potable Water Supplies) , Class II (Shellfish Propagation or Harvesting) or Class III (Recreation, Prop a gation and Maintenance of a Healthy, Well

Balanced Population of Fish and Wildlife)

. If Florida removes either the Class I, Class II and/or Class III designated use for a ny particular water body ultimately affected by this rule, and EPA approves such a removal because it is consistent with CWA section 303(c) and regulations at 40 CFR 131, then the federally

- promulgated numeric nutrient criteria

wou ld not appl y to that water body because it would no longer be designated Class I, II or
III. Only the water quality criteria associated with the revised designated use would apply to that water body.

B. Variances A variance is a temporary modification to the designated use and associated water quality criteria that would otherwise apply to the water body

. 202 Variances constitute new or revised water quality standards subject to the procedural and substantive requirements applicable to removing a designate d use. 203 Thus, a n approvable variance may only be granted if it is based on the same factors, set out at 40 CFR 1 31.10 (g) , that are required to revise a 101(a)(2) designated use through a UAA. Typically, variances are time

- limited, but may be renew ed

. Temp orarily

m odifying the designated use for a particular water body through a variance process

202 Water Quality Standards Regulation , 40 C

. F

. R

. Part 131: Advance notice of proposed rulemaking. USEPA Fed. Reg. 63:129 (July 7, 1998). p. 36741

- 36806. 203 In re Bethlehem Steel Corporation , General Counsel Opinion No. 58

. March 29, 1977 (1977 WL 28245 (E.P.A. G.C.)).*** E.O. 12866 Review

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Page 135 of 191 allows a s tate to limit the applicability of a specific criterion to that water and to identify an alternative designated use and associated criteria to be met duri ng the term of the variance. A state should seek a variance instead of a permanent use removal where the

s tate believes the water quality standard can be attained at some point in the future

. By maintaining the designated use , and associated criteria, and by specifying a point in the future when the designated use will be fully applicable in all respects , the s tate en sure s 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 discharger

. All other applicable water quality standards not specifically modified by the variance , including any other criteria adopt ed to protect the designated use , remain applicable. State variance procedures, as part of

s tate water quality standards , must be consistent with the substantive requirements of 40
CFR 131. Each variance, as a revised water quality standard , must be submit ted to EPA for review and approval or disapproval pursuant to CWA section 303(c). For purposes of t his proposal , EPA is proposing criteria that apply to use designations that Florida has already established. EPA believes that the State has sufficient auth ority to use its currently EPA

- approved variance procedures with respect to a temporary modification of its Class I , Class II or Class II I uses as it pertains to any federally

- promulgated criteria. For this reason, EPA is not proposing a Federal variance
p rocedure.

C. Site

- S pecific Alternative Criteria Site

- S pecific alternative criteria (SSAC) are alternative value s to otherwise applicable water quality criteria that would be applied on a watershed, area

- wide , or*** E.O. 12866 Review

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Page 136 of 191 water body

- specific basis that meet the regulatory test of protecting the water’s designated use , having a basis in sound science , and ensuring the protection and maintenance of downstream water quality standards

. SSAC may be more or less stringent than the otherwise applicable criteri a . In either case, because the SSAC must protect the same designated use and must be based on sound science according to the requirement s 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 additional scientific data and analyses can bring increased precision or accuracy to express the necessary concentration of a water quality parameter that is protective of the designated use

. In EPA’s 2010 rulemaking for Florida’s lakes and flowing waters outside of the South Florida Region, EPA promulgated a procedure whereby EPA’s Region 4 Regional Administrator may establish a SSAC after making available the proposed SSAC and supporting documentation for public comment. ( See 40 CFR 131.43(e)). This proce dure became effective for CWA purposes on February 4, 2011. Under this provision, any entity, including the State , can submit a proposed Federal SSAC directly to EPA for the Agency’s review and assessment as to whether an adjustment to the applicable Feder al numeric nutrient criteria is warranted. The Federal SSAC process is separate and distinct from the State’s SSAC processes in its water quality standards

. The current Federal SSAC procedure allows EPA to determine that a revised site

specific chlorophyl l a , TN, TP, or nitrate+nitrite numeric criterion should apply in lieu of the generally applicable criteria promulgated in the final rule for Florida’s lakes and flowing waters where that SSAC is demonstrated to be protective of the applicable designated use(s ). The promulgated procedure provides that EPA will solicit public*** E.O. 12866 Review

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Page 137 of 191 comment on its determination. Because EPA’s rule established this procedure, implementation of this procedure does not require withdrawal of federally promulgated criteria for affected wate r bodies for the Federal SSAC to be effective for purposes of the
CWA. EPA has promulgated similar procedures for EPA’s granting of variances and SSACs in other federally promulgated water quality standards

. 204 Consistent with the procedure outlined in 40 C FR 131.43(e) and in the draft “Technical Assistance for Developing Nutrient Site

- Specific Alternative Criteria in Florida” (June 2011), the process for obtaining a Federal SSAC includes the following steps. First, an entity seeking a SSAC compiles the supp orting 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 o r county, a municipal or industrial discharger, a consulting firm acting on the 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 t he 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 o n the proposal to
EPA. Third, EPA’s Region 4 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 R egional Administrator may decide not to publish a public notice and instead r eturn the proposal to the entity submitting the

204 See 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).*** E.O. 12866 Review

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Page 138 of 191 proposal, with an explanation as to why the proposed SSAC application did not provide sufficient information for EPA to determine whether it meets CWA re quirements or not.
If EPA solicits public comment on a proposed SSAC, upon review of comments, th e Regional Administrator may determine that the Federal SSAC is or is not appropriate to account for site

- specific conditions and make that determination publi cly available together with an explanation of the basis for the decision. EPA believes that there is benefit in extending this procedure for EPA adoption of Federal SSAC that will adjust the numeric nutrient criteria proposed in this rule. EPA is therefor e proposing that the same procedure promulgated in 40 CFR 131.43(e) apply to estuaries, coastal waters and flowing waters in the South Florida Region. EPA requests comment on the following proposed application of the SSAC procedure. To successfully develop a Federal SSAC for a given estuary , coastal water segment, or s tream in the South Florida Region , a thorough analysis is necessary that indicates how the alternative concentration of TN, TP, or chlorophyll a support s both the water body itself and downstream water bodies , where applicable

. This analysis should have supporting documentation that consists of examining indicators of longer

- term response to multiple stressors , such as seagrass health, as well as indicators of shorter

term re sponse specific to nitrogen and phosphorus pollution , such as periphyton algal thickness or water column chlorophyll a concentrations

. In developing a Federal SSAC, it is necessary to ensure that values allowed in an upstream water body as a result of a
SS AC provide for the attainment and maintenance of the water quality standards of downstream waters , where applicable

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Page 139 of 191 EPA is proposing five approaches for developing SSAC for estuaries, coastal water segments and streams in the S outh Florida Region that are similar to the four approaches EPA finalized in the 2010 rule for Florida’s lakes and flowing waters. The first three proposed approaches are replicating the approaches EPA used to develop estuary, coastal and s outh Florida inland flowing water criteri a, respectively, and applying these methods to a smaller subset of waters or water body segments

. To understand the necessary steps in this analysis, i nterested parties should refer to the complete documentation of these approaches in the Technical Support Document for this proposed rule

. The fourth proposed approach for developing SSAC is to conduct a biological, chemical, and physical assessment of water body conditions

. A detail ed description of the supporting rationale must be included in the documentation submitted to EPA. The components of this approach could include, but not be limited to, evaluation of seagrass health , 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 water body type, with specific components of analysis tailored for the situation. The proposed fifth 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 de scribed in the rule or its statement of basis, consistent with 40 CFR*** E.O. 12866 Review

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Page 140 of 191 131.11(b)(1)(iii). This approach could potentially include use of mechanistic models or other data and information.
D. Compliance Schedules A compliance schedule , or schedule of compl iance, 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 a n NPDES permit, Water Quality

- Based Effluent Limitations (WQBELs) are effluent limits based on applicable water quality standards for

a given pollutant in a s pecific receiving water ( See NPDES Permit Writers Manual, EPA

833

- B

- 96

- 003, December, 1996). EPA regulations provi de 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). 205
Florida has adopted a regulation authorizing compliance schedules

. That regulation, Subsection 62

- 620.620(6) , F.A.C ., is not affected by t his proposed 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 federally

- promulgated numeric criteria.

VI . Economic Analysis

205 Hanlon, 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 .”*** E.O. 12866 Review

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Page 141 of 191 State implementation of the proposed rule may result in new or revised National Pollutant Discharge Elimination System (NPDES) permit conditions for point source dischargers, and requirements for nitrogen and phosphorus pollution treatmen t controls on other sources (e.g., agriculture, urban runoff, and septic systems) through the development of Total Maximum Daily Loads (TMDLs) and Basin Management Action Plans (BMAPs). To provide information on the potential incremental costs associated

w ith these related State actions, EPA conducted an analysis to estimate both the additional impaired waters that may be identified as a result of the proposed rule, and the potential State of Florida actions that may be necessary to assure attainment of app licable State water quality designated uses. EPA’s analysis is fully described in the document entitled Economic Analysis of Proposed Water Quality Standards for the State of Florida’s Estuaries, Coastal Waters, and South Florida Inland Flowing Waters , whi ch can be found in the docket and record for this proposed rule. An economic analysis of a proposed regulation compares a likely scenario absent the proposed regulation (the baseline) to a likely scenario with the proposed regulation. The differences betwe en these two scenarios represent the potential incremental impacts of the proposed rule. EPA is promulgating numeric nutrient criteria to address deficiencies in the State of Florida’s current narrative nutrient criteria, and the incremental impacts of thi s proposed rule are those associated with the difference between EPA’s numeric nutrient criteria and Florida’s narrative criteria. The baseline incorporates requirements associated with existing water quality, impaired waters, and TMDLs that exist at the t ime of the analysis. The baseline for this analysis also includes EPA’s previously promulgated numeric nutrient criteria for Florida’s lakes and flowing*** E.O. 12866 Review

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Page 142 of 191 waters, and the potential incremental costs and benefits EPA estimated to be associated with that rule. The incremental impacts of the proposed rule are the costs and benefits associated with additional pollution controls beyond those currently identified as part of the baseline. See section 2 of the economic analysis document where EPA fully describes the baseline. This analysis is principally designed to gain an understanding of the potential costs and benefits associated with implementation of the proposed numeric criteria, including DPVs, for estuaries, coastal waters, and south Florida inland flowing w aters above and beyond the costs associated with State implementation of its current narrative nutrient criteria. For waters that the State of Florida has already identified as impaired, EPA expects that the effect of this proposed 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 appro ach to reducing the nutrient loadings necessary to meet the numeric criteria that support current State designated uses. The further effect of this proposed rule will likely be the assessment and identification of additional waters that are impaired and no t meeting the designated use set forth at Section V.A, 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 ne w 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 consider ed a part of the baseline).*** E.O. 12866 Review

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Page 143 of 191 Using this interpretation of the baseline, EPA estimates that the potential incremental costs associated with the proposed rule as ranging between $ 164 million and $ 202 million per year (2010 dollars). To develop these estimat es, EPA first assessed State control requirements associated with existing water quality, impaired waters, and total maximum daily loads, as well as regulations specific to estuaries, coastal waters and south Florida inland flowing waters (the baseline). E PA then identified the costs and benefits associated with additional pollution controls to meet EPA’s proposed numeric criteria, beyond pollution controls currently in place or required. To estimate incremental costs to municipal and industrial dischargers , EPA gathered publicly available facility information and data on potential control technologies, and used Florida Department of Environmental Protection (FDEP) point source implementation procedures to project the additional treatment that the State may require as a result of the proposed 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 the proposed rule, and usi ng FDEP and Florida Department of Agricultural and Consumer Services (FDACS)

non - point source control procedures, estimated costs to implement agricultural best management practices (BMPs) the State may require in order to attain the proposed numeric crite ria. 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 dev eloping additional total maximum daily loads (TMDLs) for water identified as impaired under this rule. Finally, EPA qualitatively and quantitatively described and*** E.O. 12866 Review

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Page 144 of 191 estimated some of the potential benefits of complying with the new water quality standards. B ecause 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

s tandards, the result of this analysis represent EPA’s estimates of costs and benefits of the State of Florida’s likely actions to implement this proposed rule.

A. Incrementally Impaired Waters Compared to current conditions, potentially incrementally impa ired waters represent waters that exceed EPA’s proposed criteria for which FDEP has not already developed a TMDL or listed as impaired for nutrients and DO. To estimate incremental costs associated with State control requirements that may be necessary to a ssure attainment of criteria, EPA first removed 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
est uarine segments that may be identified as incrementally impaired using the criteria of this proposed rule. EPA then identified waterbodies (WBIDs 206 ) that surround those incrementally impaired segments, and then identified the watersheds that drain to those incrementally impaired WBIDs. For coastal criteria set by satellite imagery, EPA identified Florida WBIDs that may be identified as incrementally impaired using the criteria of this proposal, and then identified the watersheds that drain to those increment ally impaired WBIDs. EPA analyzed FDEP’s database of ambient water quality

206 WBID is a waterbody identifi cation of which Florida assigns a number, in order to delineate the boundaries of Florida’s waters.*** E.O. 12866 Review

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Page 145 of 191 monitoring data and compared monitoring data for each segment with EPA’s proposed criteria for TN and TP in estuaries, and south Florida inland flowing waters to identify incrementa lly impaired waters. EPA also analyzed chlorophyll

- a data for coastal waters by their WBID. EPA compiled the most recent five years of monitoring data, calculated the annual geometric mean for each segment or WBID identified by either EPA segment boundarie s or WBID boundaries, and identified waters as incrementally impaired if they exceeded the applicable criteria in this proposed rule as shown in Table VI(A).

Table VI(A): Summary of Incremental ly Impairments WBIDs Category Number of Coastal and Estuarine WBIDs Total in State 1,143 Total in Analysis 1 952 Nutrient Data in IWR Run 44 2 513 Sufficient Data Available 3 410 Exceeding Criteria (incrementally impaired) 4 ,5 230 IWR = Impaired Waters Rule TMDL = total maximum daily load 1. Excluding waters for which FDEP has already developed a TMDL or listed as impaired for nutrients and DO 2. Data within last 5 years meeting data quality requirements. 3. Sufficient to calculate annual geometric means; based on at least 4 samples with at least one sample from May to September and one sample from October to April in a given year. 4. Based on annual geometric mean exceeding the applicable criterion more than once in a three year period 5. Eight coastal WBIDs meet the applicable coastal nutrient criteria but do not meet estuarine criteria for the segments to which they are mapped. EPA analyzed these WBIDs among the potential incremental impairments.
For downstream protection values (DPVs), EPA conducted a sensitivity analysis for the option of meeting numeric n utrient criteria of associated segments/WBIDs at the pour point. See Appendix D of the economic analysis for further details.

B. Point Source Costs Point sources of wastewater must have a National Pollution Discharge Elimination System (NPDES) permit to discharge into surface waters. EPA identified*** E.O. 12866 Review

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Page 146 of 191 point sources potentially discharging nitrogen and phosphorus to estuaries, coastal waters, and south Florida inland flowing waters by evaluating the Integrated Compliance Information System

- National Pollutant Discharge Elimination System (ICIS

- NPDES) database. EPA identified all industry codes associated with any permitted discharger with an existing effluent limit or monitoring requirement for nitrogen or phosphorus. This analysis identified 158 point sources as having the potential to discharge nitrogen and/or phosphorus. Table VI(B) summarizes the number of point sources with the potential to discharge nitrogen and/or phosphorus.

Table VI( B ). NPDES

- Permitted Wastewater Dischargers Potentially Affected by Prop osed Rule Discharger Category Major Dischargers a Minor Dischargers b Total Municipal Wastewater 69 38 107 Industrial Wastewater 2 7 24 51 Total 9 6 62 158

a Facilities discharging greater than one million gallons per day or likely to discharge toxic pollutants in toxic amounts. b Facilities 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. 207 EPA considered wastewater treatment to these concentrations to be the 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 determining their reasonable potential to

207 U.S. EPA, 2008, “Municipal Nutrient Removal Technologies Reference Document. Volume 1

– Technical Report,” EPA 832

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- 08

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Page 147 of 191 exceed water quality criteria. To most accurately estimate the potenti al incremental costs for WWTPs, the likelihood that WWTPs discharging to Florida estuaries, coastal waters, and south Florida inland flowing waters have reasonable potential to exceed the numeric criteria in this proposed rule should be evaluated. However, the site

- specific data and information required to precisely determine reasonable potential for each facility was not available. In the absence of this information two scenarios presented themselves: assume all WWTPs have reasonable potential or all WWTPs do not have reasonable potential. EPA chose to make the former 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 an d 0.1 mg/L or less for TP using advanced 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 o smosis applied on such a large scale has not been demonstrated as practical or necessary. 208 Such treatment has not been required for WWTPs by the State of Florida in the past, including for those WWTPs under TMDLs with nutrient targets comparable to the cri teria in this proposed rule. EPA believes that should state

- of

- the

- art BNR technology, together with other readily available and effective physical and chemical treatment, fall short of 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

208 Treatment using reverse osm osis also requires substantial amounts of energy and creates disposal issues as a result of the large volume of concentrate generated.*** E.O. 12866 Review

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Page 148 of 191 standards such as reuse, non

- point source reductions, site

- specific alternative criteria, variances, and designated use m odifications. To estimate compliance costs for WWTPs, EPA identified current WWTP treatment capabilities using FDEP’s Wastewater Facility Regulation (WAFR) database, and information obtained from NPDES permits and/or water quality monitoring reports.
EPA a ssumed 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 th e proposed rule because those costs would be incurred absent the rule (under the baseline). However, sufficient location information was not available to ensure 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. Table VI(B)(1)summarizes EPA’s best estimate of the number of potentially affected municipal WWTPs that may require additional treatment for nitrogen and/o r phosphorus to meet the numeric criteria supporting State designated

uses.

Table VI( B )(1). Summary of Potential for Additional Nutrient Controls for Municipal Wastewater Treatment Plants a Discharge Type Number of Dischargers Additional Reduction in TN and TP a Additional Reduction in TN Only b Additional Reduction in TP Only c No incremental controls needed d Total*** E.O. 12866 Review

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Page 149 of 191 Major 9 0 31 29 69 Minor 24 2 1 11 38 Total 33 2 32 40 107 Source: Based on treatment train descriptions in FDEP (2009c) and permits, WLAs in TMDLs and existing regulations, assuming dischargers would have to install advanced BNR for compliance under the rule. a. Includes dischargers without treatment processes capable of achieving the target levels or existi ng WLA for TN and TP, or for which the treatment train description is missing or unclear. b. Includes dischargers with chemical precipitation only. c. Includes dischargers with Modified Ludzack

- Ettinge (MLE), four

- stage Bardenpho, and BNR specified to achieve less than 3 mg/L, those with WLA under a TMDL for TN only, or those covered under the Grizzle

- Figg Act. d. Includes dischargers with anaerobic

- anoxic oxidation (A 2 /O), modified Bardenpho, modified University of Cape Town (UCT), oxidation ditches, o r other BNR coupled with chemical precipitation, those with WLAs under a TMDL for both TN and TP, those discharging to waters on the 303(d) list for nutrients or DO, and ocean dischargers

.

An EPA study provides unit cost estimates for BNR for various TN and TP performance levels (USEPA 2008a). 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. Multiplying these unit costs by facility flow reported in EPA’s PCS database, EPA estimated that total costs could be approximately $9 4.2 million per year (2010 dollars). 209 EPA also conducted a sensitivity analysis to address the potential for future
T MDLs for waters currently on the 303(d) list to only develop WLAs for TN or TP (and not both pollutants), such that incremental costs could be required under the proposed rule to control the other pollutant. The results of this analysis suggest a range of additional costs from $0 million (no additional controls) to $23 million (base case plus

209 Estimated capital costs annualized at 7% over 20 years, plus estimated annual O&M.*** E.O. 12866 Review

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Page 150 of 191 TP controls for 9 additional dischargers) annually. This resulted in an estimated total cost of approximately $94.2 million to $117.5 million per year.

2. Industrial Point Source Costs Incremental costs for industrial dischargers are likely to be facility

- specific and depend on process operations, existing treatment trains, and composition of waste streams. EPA identified 51 industrial dischargers potentially affected by the proposed rule (Table VI(B)). Of those, 4 are subject to an existing TMDL for nitrogen and/or phosphorus, and 6 discharge to waters currently listed as impaired. As with WWTPs, EPA assumed that industrial dischargers under an existing TMDL are curren tly 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 proposed rule because those costs would be incurred absent the rule (under the baseline). To estimate potential costs to the remaining 41 potentially affected industrial facilities, EPA analyzed their effluent data obtained from EPA’s PCS database and other information in NPDES permits to determine whether or not th ey have reasonable potential to cause or contribute to an exceedance of the proposed criteria in this proposed rule. For those facilities with reasonable potential, EPA further analyzed their effluent data and estimated potential revised water quality base d effluent limits (WQBELs) 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 de signated uses and the costs of those controls. EPA then calculated the flow

- based cost of compliance for the facilities in each industrial category (see economic analysis support document for more information).*** E.O. 12866 Review

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Page 151 of 191 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. 210 EPA believes that sho uld state

- of

- the

- art BNR technology, together with other readily available and effective physical and chemical treatment, fall short of 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, non

- point source reductions, site

- specific alternative criteria, variances, and designated use modifications. Using this method, EPA estimated tha t the potential costs for industrial dischargers could be approximately $ 7.6 million annually (2010 dollars). Table VI(A)(2): Potential Incremental Costs for Industrial Dischargers a

Industrial Category Total Number of Facilities Total Annual Costs (million 2010$/yr) Chemicals and Allied Products 3 $0.3 Electric Services 12 $0 Food 3 $0.2 Mining 2 $0.04

Other 18 $0 Pulp and Paper 3 $7.1 Total 41 $7.6 mgd = million gallons per day a May not add due to rounding

210 Treatment using reverse osmosis al so requires substantial amounts of energy and creates disposal issues as a result of the large volume of concentrate that is generated.*** E.O. 12866 Review

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Page 152 of 191 C. Non

- point Source Costs To estimate the potential incremental costs associated with controlling nitrogen and phosphorus pollution from non

- point sources, EPA identified land areas near incrementally impaired waters using GIS analysis. EPA identified all the 10

- digit hydrologic units (HUCs) in Florida that drain to an incrementally impaired WBID (WBIDs are GIS polygons for water assessment), and excluded those HUCs that are considered baseline or already costed for in the inland rule. With the remaining HUCs identified by their drainage to an incrementally impaired WBID for estuarine, coastal and south Florida inland flowing waters, EPA then identified land uses using GIS analysis of data obtained from the State of Florida.
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 56,000

– 87,000 acres (or 8.4%) of the land near incrementally impaired waters. EPA’s analysis also indicates that urban runoff is already regulated on a portion of this land under EPA’s stormwater program requiring municipal separate 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) p ermitted MS4s serving fewer 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 discha rging to impaired waters or under a TMDL currently do not have numeric limits for any pollutant.*** E.O. 12866 Review

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Page 153 of 191 In addition to EPA’s stormwater 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 stormwater rule (Chapter 403 of Florida statues) requires stormwater from new development and redevelo pment 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 othe r stormwater pollutant load reduction goals. In addition, the “Water Resource Implementation Rule” (Chapter 62

- 40, F.A.C.) establishes that stormwater design criteria adopted by FDEP and the water management districts shall achieve at least 80% reduction o f the average annual load of pollutants that cause or contribute to violations of water quality standards (95% reduction for outstanding natural resource waters). The rule also states that the pollutant loadings from older stormwater management systems sha ll 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 earlier, this proposed rule may indirectly result in changes to MS4 NPDES permit requiremen ts for urban runoff so that Florida waters meet the proposed criteria. 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 and phosphorus pollution contained in urban runoff at each particular location. Because stormwater programs are usually implemented using an iterative approach

– with the installation of controls followed by monitoring and re

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Page 154 of 191 evaluation

– esti mating the complete set of pollution controls required to meet a particular water quality target would require detailed site

- specific analysis. Although it is difficult to predict the complete set of potential additional storm water controls that may be re quired 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 stormwater controls. FDEP has previously assumed that all urban land developed after adoption of Florida's 1982 stormwater rule would be in compliance with this proposed rule. 211 Using this same assumption, EPA used GIS analysis of land use data obtained from the State of Florida 212 to id entify the amount of remaining urban land located near incrementally impaired waters. For Phase I MS4s, EPA used a range of acres with 31, 2 00

acres as the upper bound and zero acres as the lower bound because Phase I MS4 urban areas already must implement controls to the “maximum extent practicable.” As such, these municipalities may not need to achieve additional reductions if existing requirements are already fully implemented. Using this procedure, EPA estimated that
5 5,9 00

- 87, 1 00 acres may require additional storm water controls. The cost of stormwater pollution controls can vary widely. FDEP has assessed the cost of completed stormwater projects throughout the State in terms of dollars per acre treated. 213 Capital costs range from $62 to $60,300 per acre treated, with a median cost of $6,800 per acre. EPA multiplied the median capital cost per acre by the number of acres

211 Florida Department of Environmental Protection, 2010, “FDEP Review of EPA’s ‘Preliminary Estimate of Potential Complia nce Costs and Benefits Associated with EPA’s Proposed Numeric Nutrient Criteria for Florida’,” p. 9. 212 Florida Geological Data Library, 2009. 213 Florida Department of Environmental Protection, 2010, appendix 3.*** E.O. 12866 Review

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Page 155 of 191 potentially requiring controls to estimate the potential incremental stormwater control costs associated with the proposed rule. EPA also used FDEP's estimate of operating and maintenance (O&M) costs (5% of capital costs), and annualized capital costs using FDEP's discount rate of 7% over 20 years. This analysis indicates that urban runoff control costs could range f rom approximately $ 55.2 to $86.0 million. Table VI(C)(1) summarizes these estimates.

Table VI(C)(1). Potential Incremental Urban Storm Water Cost Scenarios e Land Type Acres Needing Controls a Capital Cost (millions 2010 $) b O&M Cost (millions 2010 $) c Annual Cost (millions 2010 $) d MS4 Phase I 0

- 31,000 $0

- $213.3 $0

- $10. 7 $0

- $30.8 MS4 Phase II 35,000 $235.9 $11.8 $34.1 Non

- MS4 21,000 $146.5 $7.3 $21.2 Total 56,000

- 87,000 $382.4

- $595.7 $19.1

- $29.8 $55.2

- $86.0

a Phase I MS4s range represents implementation of BMPs to the MEP resulting in compliance with EPA’s rule or controls needed on all pre

- 1982 developed land; Phase II MS4s and urban land outside of MS4s represent controls needed on all pre

- 1982 developed lan d that is not low density residential. b Represents acres potentially needing controls multiplied by median per - acre 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. e May not add due to rounding 2. Agricultural Costs EPA’s GIS analysis of land use indicates that agriculture accounts for about 16,600 to 16,619 acres (or 1.3 %) of the land near increm entally impaired waters. Agricultural runoff can be a source of nitrogen and phosphorus to estuaries, coastal waters and south Florida inland flowing waters through the application of fertilizer to crops and pastures and from animal wastes. For waters impa ired by nitrogen and 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 the proposed rul e may result in*** E.O. 12866 Review

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Page 156 of 191 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. 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. 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 s et 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 BMP program ,” is a more expensive program designed to supplement the “Owner Implemented BMP program ” and “Typical BMP program ” if additional reductions a re necessary. The BMPs in the “Owner Implemented BMP Program” and “Typical BMP Program” are similar to the BMPs verified as effective by FDEP and adopted by FDACS. EPA has found no indicatio n that the “Alternative BMP Program,” which includes storm water chemical treatment, has been required in nutrient impaired watersheds with significant contributions from agriculture for which TMDLs have been developed (e.g., Lake Okeechobee). Therefore, f or purposes of this analysis, EPA believes it is reasonable to assume that nutrient controls for agricultural sources are best represented by the combination of the “Owner Implemented BMP Program” and “Typical BMP Program.”*** E.O. 12866 Review

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Page 157 of 191 Table VI(C)(2) summarizes the p otential incremental costs of BMPs on agricultural lands in the watersheds of incrementally impaired estuaries, coastal waters and southern inland flowing waters for each agricultural category. This analysis indicates that incremental agricultural costs re sulting from the proposed numeric nutrient criteria may be estimated at $ 0.3 million

.

Table VI(C)(2). Potential Incremental Agricultural BMP Costs Agricultural Category Area Potentially Needing Controls (acres) a “Owner Implemented BMP Program” plus ”Typical BMP Program” Unit Costs ( 2010 $/ac/yr) e Total “Owner Implemented BMP Program” and ”Typical BMP Program” Costs ( 2010 $/yr) Animal Feeding 19 $18.56 $400 Citrus 26 $156.80 $4,000 Cow Calf Production (Improved Pastures) 7,449 $15.84 $118,000 Cow Calf Production (Unimproved Pastures) 1,511 $4.22 $6,400
Cow Calf Production (Rangeland and Wooded) 2,001 $4.22 $8,500 Row Crop 253 $70.40 $17,800 Cropland and Pastureland (general) b 38 $27.26 $1,000
Sod/Turf Grass 0 $35.20 $0 Ornamental Nursery 256 $70.00 $18,000 Horse Farms 61 $15.84 $1,000 Field Crop (Hayland) Production 4,648 $18.56 $86,300 Other Areas c 358 $18.56 $6,600 Total d 16,619

-- $267,800

a Based on GIS analysis of land use data and FDACS BMP program NOI GIS data layer. 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 d Excludes land not in production.
e Soil 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.*** E.O. 12866 Review

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Page 158 of 191 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 proposed rule. Several nutrient

- related TMDLs in Florida identify septic systems as a significant source of nitrogen and phosphorus pollution. Although properly operated and maintained systems can provide treatment equivalent to secondary wastewater treatment, 214 even pro perly functioning septic systems can be expected to contribute to nitrogen and phosphorus pollution at some locations. 215 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 p lants. On the basis of current practice in the State of Florida, EPA assumed that the most likely strategy to reduce nutrient loads from septic systems would be to upgrade existing conventional septic systems to advanced nutrient removal systems. Septic sy stems 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 at least 75 feet from surface waters (F.A.C.

214 Petrus, K., 2003, “Total Maximum Daily Loa d 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.p df. 215 Florida 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_a mmonia

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Page 159 of 191 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 incr ementally impaired waters 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 uncert ainty, EPA conservatively assumed that septic systems located within 500 feet of any WBID in watersheds associated with incrementally impaired estuaries, coastal waters or south Florida inland flowing waters may be identified for upgrade from conventional to advanced nutrient removal systems. EPA identified the number of septic systems within 500 feet of waters in the watersheds associated with incrementally impaired estuaries, coastal waters, and South Florida inland flowing waters using GIS analysis on d ata obtained from the Florida Department of Health 216 that provides the location of active septic systems in the State. This analysis yielded 7,663 active septic systems that may be affected by the proposed rule. EPA evaluated the cost of upgrading existing septic systems to advanced nutrient removal systems. Upgrade capital 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 c onventional onsite sewage treatment and disposal system and fixed film activated sludge systems. This study

216 Florida 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.*** E.O. 12866 Review

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Page 160 of 191 estimated the incremental O&M costs for an advanced system to be $650 per year. 217 Thus, based on annual O&M costs of $650 and annualizing capital cos ts at 7% over 20 years, total 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 up grade. Using this method, total annual costs for upgrading septic systems in incrementally impaired watersheds could range from $ 5.9 to $ 9.5 million

.

D . Governmental Costs The proposed rule may result in the identification of incrementally impaired waters that would require the development of additional TMDLs. As the principal State regulatory agency implementing water quality standard, FDEP may incur costs associated with d eveloping additional TMDLs. As described earlier, EPA’s analysis identified 230 incrementally impaired waters (WBIDs). Because current TMDLs for estuaries and coastal waters in Florida include an average of approximately four WBIDs each, EPA estimates tha t the State of Florida may need to develop and adopt approximately 58 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. 218 , 219 The low end of the range reflects the typical cost associated with TMDLs that are the easiest to develop and/or have the

217 Chang, 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). 218 U.S. EPA, 2001, “The National Costs of the Total Maximum Daily Load Program (Draft Report),” (EPA

- 841

- D

- 01

- 003). 219 EPA did not adjust these estimates to account for potential reductions in resources required to develop TMDLs given that scientifically base d numeric targets were developed as part of this proposed rule.*** E.O. 12866 Review

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Page 161 of 191 benefit of previous TMDL development for other pollutants. Because most of the incrementally impaired waters in EPA's analysis exceeded the criteria for b oth nitrogen and phosphorus, EPA assumed that TMDLs would need to be developed for both. 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 poll utant, and adjusted to 2010 dollars). For 58 TMDLs, total costs for incremental TMDL development could be $2.7 million. FDEP currently operates its TMDL schedule on a five

- phase cycle that rotates through Florida’s five basins over five years. Under this s chedule, 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. Assuming all the incremental impairments are high priority and FDEP develops the new TMDLs over a 9

- year period, annual costs could be $0.3 million. 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 maintained by the State of Florida. Because Florida is currently monitoring TN, TP, and chlorophyll a*** E.O. 12866 Review

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Page 162 of 191 concentrations in many w aters, EPA assumed that the rule is unlikely to have a significant impact on costs related to water quality monitoring activities.
E. Summary of Costs Table VI(E) summarizes EPA's estimates of potential incremental costs associated with additional State re quirements to meet the numeric criteria supporting 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 complian ce and the site

- specific source reductions needed to meet the new numeric criteria.

Table VI( E ). Summary of Potential Annual Costs (millions of 2010 dollars per year) Source Sector Potential Annual Costs Municipal Waste Water Treatment Plants $94 .2

- $ 117.5 Industrial Dischargers $ 7.6 Urban Storm Water $55.2

- $86.0 Agriculture $0.3 Septic Systems $5.9

- $9.5 Government/Program Implementation $0.3 Total $163. 5

– $ 221.2
F. Benefits Since elevated concentrations of nutrients in surface waters can result in adverse ecological effects and negative economic impacts, EPA expects the proposed numeric nutrient criteria to result in significant ecological and economic benefits to Florida. Fo r example, excess nutrients in water can cause eutrophication, which can lead to harmful (sometimes toxic) algal blooms, loss of rooted plants, and decreased dissolved oxygen. In turn, these results can lead to adverse impacts on aquatic life, fishing, swi mming, wildlife watching, camping, and drinking water. Excess nutrients can also cause nuisance surface*** E.O. 12866 Review

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Page 163 of 191 scum, reduced food for herbivorous wildlife, fish kills, alterations in fish communities, and unsightly shorelines that can decrease property values. Nutrient impairment is currently a major concern for many bays, estuaries, and coasts within the United States, and is particularly severe for many Florida waters. Florida’s 2008 Integrated Report stated that 94 estuaries encompassing approximately 900 squ are miles of water are impaired for nutrients, with nutrients ranked as the second most common source of impairment. These impairments may have a significant impact on the value of environmental goods and services provided by the affected waterbodies. For example, the losses of submerged aquatic vegetation resulting from eutrophication can have profound economic impacts; FDEP has estimated that each acre of seagrass is worth over $20,000 to Florida’s economy annually or $44 billion statewide. 220 In 2009, Flor ida seagrass communities supported an estimated harvest of $23 million for just six species
of commercial fish and shellfish. 221 In Florida’s environment and economy, the tourism

- focused goods and services provided by its bays, estuaries, and coastal waters are particularly valuable. The tourism industry of Florida’s nearshore counties contributes approximately $12.4 billion (2004 dollars) to the state’s economy annually. 222 Coral reefs are especially important contributors to Florida’s tourism sector. Reef

- re lated recreational expenditures on activities such as snorkeling, scuba diving, fishing, and glass bottom boating in four

220 Carlson, P. and L. Yarbro. 2008. Seagrass Mapping and Monitoring: Big Bend a nd Beyond . Presented at Florida Water Resources Monitoring Council Meeting, St. Petersburg, FL, September 24

- 25, 2 008. 221 Crist, C. 2010. Seagrass Awareness Month. Statement by the Governor of the State of Florida. 222 National Ocean Economics Program (NOEP). 2006. Coastal Economy Data.*** E.O. 12866 Review

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Page 164 of 191 counties in southeastern Florida for a one year p eriod in 2000

- 2001 totaled $5.4
billion. 223 The proposed rule will help reduce nitrogen and phosphorus concentrations in Florida’s estuaries, coastal waters and south Florida inland flowing waters. In turn, this reduction will improve ecological function and prevent further degradation that can result in substantial economic benefits to Flor ida citizens. EPA's economic analysis document describes in detail many of the potential benefits associated with meeting the numeric criteria in the proposed rule for nitrogen and phosphorus, including reduced human health risks, ecological benefits and f unctions, improved recreational opportunities, aesthetic enhancements and others. 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
q uality (water quality index) and valuing these improvements in terms of individual willingness to pay (WTP) for the types of uses that are supported by different water quality levels. EPA calculated the baseline water quality index value three ways, using each of TN, TP and Ch

- a as the determinant of baseline water quality. The baseline water quality relied on the percentage difference from proposed criteria levels as a measure of exceedances, with the baseline index value set as being inversely related to exceedances. Lacking information to prefer one baseline method over the others, EPA used all three descriptions of baseline water quality to calculate a range of benefits. EPA estimated potential changes that would result from implementation of this propo sed rule

223 Johns, G.M., V.R. Leeworthy, F.W. Bell, and M.A. Bonn. 2001. Socioeconomic Study of Reefs in Southeast Florida. Final Report by Hazen and Sawyer for Broward County, Palm Beach County, Miami

- Dade County, Monroe County, Florida Fish and Wildlife Conservation Commission, and National Oceanic and Atmospheric Administration

.*** E.O. 12866 Review

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Page 165 of 191 and their value to a distribution of full

- time and part

- time 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 $83.7

- $100.1 million as shown in Table VI(F). Although these monetized benefits estimates do not account for all potential economic benefits arising from the proposed rule, they help to partially demon strate the economic importance of restoring and protecting Florida waters from the impacts of nitrogen and phosphorus pollution.
Table VI(F) : Potential Annual State Benefits Associated with the Proposed Criteria (Millions of 2010$)

Baseline WQ I Based on % of TN Exceedance Baseline WQ I Based on % of TP Exceedance Baseline WQ I Based on % of Ch - **a** Exceedance $100.1 $86.8 $83.7 Ch

- a = chlorophyll a TN = total nitrogen TP = total phosphorus WQI = water quality index

VII . Statutory and Executive Order Reviews
A. Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) Under Executive Order 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 E xecutive O rders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been docum ented in the docket for this action. Th is proposed rule does not establish any requirements directly applicable to regulated entities or other sources of nitrogen and phosphorus pollution. Moreover, existing narrative water quality*** E.O. 12866 Review

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Page 166 of 191 criteria in State law al ready require that nutrients not be present in waters in concentrations that cause an imbalance in natural populations of flora and fauna in estuaries and co astal waters in Florida and in s outh Florida inland flowing waters.
B. Paperwork Reduction Act
Thi s 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). This action 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 not ice 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) regulat ions 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 i s independently owned and operated and is not dominant in its field.*** E.O. 12866 Review

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Page 167 of 191 Under the CWA water quality standards program, states must adopt water quality standards for their waters and must submit those water quality standards to EPA for review and approval or disapproval ; 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 and regulatory requirements. EPA also has the authority to promulgate water quality standards in any case where the Administrator determines that a new or revised standard is necessary to meet the requirements of the CWA

. S tate standards approved by EPA (or EPA

- promulgated standards) are implemented through variou s 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 applica ble water quality standards

. Thus, under the CWA, EPA ’ s promulgation of water quality standards establishes standards that the State of Florida implements through the NPDES permit
process. The State has discretion in developing discharge limits, as needed to meet the standards. This proposed rule 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 n ecessary 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 (e.g., relating to compliance schedules, variances, etc.)

. While Florida ’ s implementation of the rule m ay 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*** E.O. 12866 Review

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Page 168 of 191 requirements are not self

- implementing. Thus, I ce rtify 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 s tate, local, and t ribal 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 that include a ” Federal mandate ” that
may result in expenditures to s tate, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. A “Federal mandate,” is any provision in federal statute or regulation that would impose an enforceable duty on State, local or Tribal governments or the private sector. 224 Bef ore promulgating an EPA rule for which a written statement is needed under section 202 , section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost

- effective o r least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 (a) do not apply when they ar e inconsistent with law. Moreover, sec tion 205 (b) allows EPA to adopt an alternative other than the least costly, most cost

- e ffective 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 governmen ts, including T ribal governments, it must

224 A “Federal man date” does not include conditions of Federal assistance and generally does not include duties arising from participation in a voluntary Federal program.*** E.O. 12866 Review

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Page 169 of 191 have developed under section 203 of the UMRA a small government agency pla n. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have mean ingful 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 proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for state, local, or T ribal governments or the private
sector

. As these water quality criteria are not self

- implementing, EPA’s proposed rule does not regulate or affect any entity

. Because t his proposed rule does not regulate or affect any entity , it therefore is not subject to the requirements of sections 202 and 205 of
UMRA. EPA determined that this proposed rule contains no regulatory requirements that might s ignificantly or uniquely affect small governments. Moreover, water quality standards , including those promulgated here, apply broadly to dischargers and are not uniquely applicable to small governments. Thus, this proposed rule is not subject to the requir ements 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 S tates, on the relationship between the national government and the
S tates, 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*** E.O. 12866 Review

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Page 170 of 191 promulgate Federal water quality standards when s tate standards do not meet the requirements of the CWA is well established and has been used on various occasions in the past. The proposed rule w ould not substantially affect the relationship between EPA and the S tates and T erritories, or the distribution of power or responsibilities between
EPA a nd the various levels of government. The proposed rule w ould not alter Florida’s considerable discretion in implementing these water quality standards

. Further, this proposed rule w ould not preclude Florida from adopting water quality standards that EPA

co ncludes meet the requirements of the CWA, either before or after promulgation of the final rule, which would eliminat e the need for Fe deral standards. Thus, Executive Order 13132 does not apply to this proposed rule. Although section 6 of Executive Order 13132 does not apply to this action, EPA communicat ed with the State of Florida to discuss the F ederal rulemaking process. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and S tate and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.

F. Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) Subject to the Executive Order 13175 (65 FR 67249, November 9, 200 0) 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 T ribal governments, or EPA consults with tribal officials early in the process of developing the*** E.O. 12866 Review

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Page 171 of 191 proposed regulation and develops a tribal summary impact statement. EPA has concluded that this action may have tribal implications. However, the rule will ne ither 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 flowing waters. Both t ribes have been approved for treatment in the same manner as a state (TAS) status for CWA sections 303 and 401 and have federally

- approved water quality standards in their respective jurisdictions. These tribes are not subject to this proposed rule. Howeve r, this rule may impact the tribes because the numeric criteria for Florida will apply to waters adjacent to the tribal waters. EPA has contacted the tribes to inform them of the potential future impact this proposal could have on tribal waters. A meeting with tribal officials has been requested to discuss the draft proposed rule and potential impacts on the tribes. EPA specifically solicits additional comment on this proposed rule from tribal officials.
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 believes that 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)*** E.O. 12866 Review

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Page 172 of 191 This rule is not a “significant energy a ction” 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 i ts 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) t hat 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 proposed rulemaking d oes 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 F ederal executive policy on environmental justice. Its main provision directs F ederal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by id entifying and addressing, as appropriate, disproportionately high and*** E.O. 12866 Review

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Page 173 of 191 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 proposed rule does not have disproportionately high and adverse human health or environmental effects on minority or low

- income populations because it would afford a greater level of protection to both human health and the environment if these numeri c criteria are promulgated for Class I, Class II and Class III waters in the State of Florida.

List of Subjects in 40 CFR Part 131 Environmental protection, W ater quality standards, Nitrogen and phosphorus pollution , N utrients, Florida.

Dated: March 15 , 201 2

.

Lisa P. Jackson, Administrator

.

For the reasons set out in the preamble, EPA proposes to amend 40 CFR P art 131 as follows: PART 131

– WATER QUALITY STANDARDS
1. The authority citation for P art 131 continues to read as follows: Auth ority : 33 U.S.C. 1251 et seq
. Subpart D
- [Amended] 2. Section 131.43 is amended as follows:*** E.O. 12866 Review

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Page 174 of 191 a. Revise paragraph (b)(5), b. Add paragraph (b)(14); and c. Revise paragraph (c)(2)(i)

. 3. Section 131.45 is added to read as follows:

§ 131. 43 Florida.
* * * * * (b) * * * (5) Lake means a slow

- moving or standing body of freshwater or marine water that occupies an inland basin that is not a stream, spring, or wetland.
* * * * * (14) Tidal creek means a portion of a stream that is affected by the ebb and flow

o f ocean tides

. (15) Predominantly marine waters means surface waters in which the chloride concentration at the surface is greater than or equal to 1,500 mg/L. (c) * * * (2) * * * (i) The applicable instream protection value (IPV) cri teria for total nitrogen (TN) and total phosphorus (TP) for streams and predomina n tely freshwater tidal creeks within each respective nutrient watershed region are shown on Table 2.
* * * * *

§ 131. 45 Water Quality Standards for the State of Florida’s Estuaries, Coastal Waters, and South Florida Inland Flowing Waters*** E.O. 12866 Review

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Page 175 of 191 (a) Scope

. This section promulgates numeric criteria for nitrogen and phosphorus pollution for Class I, Class II 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 ) Coastal water means all marine waters extending to three nautical miles from shore that are not classified as estuaries. (3 ) Estuary means predominantly marine regions of interaction between rivers and nearshore ocean waters, where tidal action and river flow mix fresh and salt water. Such areas inclu de bays, mouths of rivers, and lagoons. (4) Estuaries and coastal waters means surface waters that have been classified as Class II (Shellfish Propagation or Harvesting) or Class III (Recreation, Propagation and Maintenance of a Healthy, Well

- Balanced Pop ulation of Fish and Wildlife) water bodies pursuant to Rule 62

- 302.400, F.A.C., excluding wetlands, and are predominantly marine
waters. (5 ) Everglades Agricultural Area (EAA) means those lands described in Florida Statute Section 373.4592 (1994) subsectio n (15). (6) Everglades Protection Area (EvPA) means Water Conservation Areas 1 (which includes the Arthur R. Marshall Loxahatchee National Wildlife Refuge ) , 2A, 2B, 3A, and 3B, and the Everglades National Park. (7) Inland f lowing waters means inland surface waters that have been classified as Class I (Potable Water Supplies) or Class III (Recreation, Propagation and Maintenance*** E.O. 12866 Review

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Page 176 of 191 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. ( 8 ) Predominantly fresh waters m eans surface waters in which the chloride concentration at the surface is less than 1,500 milligrams per liter. ( 9 ) Predominantly marine waters means surface waters in which the chloride concentration at the surface is greater than or equal to 1,500 mg/L. ( 10 ) South Florida inland flowing waters means inland flowing waters in the South Florida Region. ( 11 ) South Florida marine waters means predominantly marine waters lo cated in the South Florida Region. (1 2 ) 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. ( 1 3 ) 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. (1 4 ) 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. (1 5 ) Surface water means water upon the surface of the ea rth, 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.*** E.O. 12866 Review

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Page 177 of 191 (1 6 ) Tidal creek means a portion of a stream that is aff ected by the ebb and flow

o f ocean tides

. (c) Criteria for Florida waters. (1 ) Criteria for estuaries. The applicable criteria for t o tal nitrogen (TN), total phosphorus (TP), and chlorophyll a for estuaries and predominately marine tidal creeks are shown i n Table 1

.

Table 1. EPA’s N umeric C riteria for Florida’s E stuaries (in geographic order N orthwest
to N ortheast ) Proposed Criteria

Perdido Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Upper Perdido Bay 0101 0.59 0.042 5.2

Big Lagoon 0102 0.26 0.019 4.9

Central Perdido Bay 0103 0.47 0.031 5.8 Lower Perdido Bay 0104 0.34 0.023 5.8

Pensacola Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Blackwater Bay 0201 0.55 0.022 3.9 Upper Escambia Bay 0202 0.43 0.025 3.7 East Bay 0203 0.50 0.021 4.2 Santa Rosa Sound 0204 0.31 0.018 4.1*** E.O. 12866 Review

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Page 178 of 191 Lower Escambia Bay 0205 0.42 0.024 3.9 Upper Pensacola Bay 0206 0.40 0.021 3.9 Lower Pensacola Bay 0207 0.34 0.020 3.6 Santa Rosa Sound 0208 0.33 0.020 4.1 Santa Rosa Sound 0209 0.36 0.020 5.2

Choctawhatchee Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Eastern Choctawhatchee Bay 0301 0.61 0.035 4.1
Central Choctawhatchee Bay 0302 0.48 0.017 3.9
Western Choctawhatchee Bay 0303 0.41 0.015 3.5

St. Andrews Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) East Bay 0401 0.31 0.014 4.6 St. Andrews Sound 0402 0.14 0.009 2.3 Eastern St. Andrews Bay 0403 0.24 0.021 3.9 Western St. Andrews Bay 0404 0.19 0.016 3.1 Southern St. Andrews Bay 0405 0.15 0.013 2.6 North Bay 1 0406 0.22 0.012 3.7 North Bay 2 0407 0.22 0.014 3.7 North Bay 3 0408 0.21 0.016 3.4 West Bay 0409 0.23 0.022 3.8 St. Joseph Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

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Page 179 of 191 St. Joseph Bay 0501 0.43 0.020 3.0

Apalachicola Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) St. George Sound 0601 0.53 0.019 3.6 Apalachicola Bay 0602 0.51 0.019 2.7 East Bay 0603 0.76 0.034 1.7 St. Vincent Sound 0605 0.52 0.016 12 Apalachicola / Offshore 0606 0.30 0.008 2.3

Alligator Harbor SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Alligator Harbor 0701 0.36 0.011 2.8 Alligator / Offshore 0702 0.33 0.009 3.1 Alligator / Offshore 0703 0.33 0.009 2.9

Ochlockonee Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Ochlockonee

- St. Marks Offshore 0825 0.79 0.033 2.7 Ochlockonee Offshore 0829 0.47 0.019 1.9 Ochlockonee Bay 0830 0.66 0.037 1.8

Ochlockonee Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) St. Marks River Offshore 0827 0.51 0.022 1.7

St. Marks River 0828 0.55 0.030 1.2

Big Bend/ Apalachee Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Econfina Offshore 0824 0.59 0.028 4.6
Econfina 0832 0.55 0.032 4.4 Big Bend/ Apalachee Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

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Page 180 of 191 Fenholloway 0822 1.15 0.44 1.9 Fenholloway Offshore 0823 0.48 0.034 10.3

Big Bend/ Apalachee Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Steinhatchee

Fenholloway Offshore 0821 0.40 0.023 4.1

Big Bend/ Apalachee Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Steinhatchee River 0819 0.67 0.077 1.0 Steinhatchee Offshore 0820 0.34 0.018 3.5
Big Bend/ Apalachee Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Steinhatchee Offshore 0818 0.39 0.032 4.8

Suwannee River SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L)

Suwannee Offshore 0817 1.1 0.090 3.7

Springs Coast SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Waccasassa River Offshore 0814 0.38 0.019 3.9 Waccasassa River Offshore 0815 0.32 0.019 4.1

Springs Coast SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Crystal River 0812 0.35 0.013 1.3 Crystal

- Homosassa Offshore 0813 0.36 0.013 2.1 Springs Coast SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

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Page 181 of 191 Weeki Wachee River 0808 0.32 0.010 1.6 Weeki Wachee Offshore 0809 0.30 0.010 2.1

Springs Coast SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Pithlachascotee River 0806 0.50 0.022 2.4 Pithlachascotee Offshore 0807 0.32 0.011 2.5

Springs Coast SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L)

Anclote River 0804 0.48 0.037 4.7

Anclote Offshore 0805 0.31 0.011 3.2

Clearwater Harbor/ St. Joseph Sound SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Clearwater Harbor 0801 0.47 0.029 5.7 St. Joseph Sound 0802 0.46 0.029 5.5
Clearwater Harbor

St. Joseph Offshore 0803 0.29 0.008 2.6

Tampa Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Hillsborough Bay 0901 0.49 0.175 7.7 Old Tampa Bay 0902 0.44 0.172 12.9 Upper Tampa Bay 0903 0.44 0.152 7.9 Middle Tampa Bay 0904 0.37 0.116 6.3 Lower Tampa Bay 0905 0.31 0.074 4.9 Manatee River 0906 0.62 0.115 7.4 Boca Ciega 0907 0.30 0.086 5.3 Sarasota Bay SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Sarasota Bay 1001 0.28 0.119 7.7*** E.O. 12866 Review

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Page 182 of 191 Palm Sola Bay 1002 0.34 0.141 7.2 Roberts Bay 1003 0.34 0.131 8.6 Little Sarasota Bay 1004 0.30 0.123 8.3 Blackburn Bay 1005 0.28 0.118 7.0 Dona Bay 1006 0.24 0.115 4.2

Charlotte Harbor SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Upper Caloosahatchee 1101 1.11 0.110 9.9 Lower Caloosahatchee 1102 0.61 0.083 3.5 Estero Bay 1103 0.65 0.072 2.3 Matlacha Pass 1104 0.57 0.076 1.6 San Carlos Bay 1105 0.57 0.060 2.4 Peace Estuary 1106 0.79 0.303 3.5 Myakka Estuary 1107 0.71 0.176 3.8 Upper Charlotte Harbor 1108 0.71 0.177 2.9 Lower Charlotte Harbor 1109 0.61 0.105 2.1 Pine Island Sound 1110 0.56 0.062 2.1

Lake Worth Lagoon SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) North Lake Worth Lagoon 1201 0.55 0.067 4.7 Central Lake Worth Lagoon 1202 0.57 0.089 7.6 South Lake Worth Lagoon 1203 0.48 0.034 6.8

Loxahatchee SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Lower Loxahatchee 1301 0.64 0.027 2.9 Middle Loxahatchee 1302 0.90 0.041 3.8 Upper Loxahatchee 1303 1.2 0.068 2.8 St. Lucie SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

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Page 183 of 191 Lower St. Lucie 1401 0.58 0.045 5.3 Middle St. Lucie 1402 0.90 0.12 8.4 Upper St. Lucie 1403 1.22 0.197 8.9

Indian River Lagoon SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Upper Mosquito Lagoon 1501 1.1 0.05 3.6 Lower Mosquito Lagoon 1502 1.3 0.06 7.0
Banana River 1503 1.6 0.06 9.9 Upper Indian River Lagoon 1504 1.4 0.06 10 Upper Central Indian River Lagoon 1505 1.3 0.06 11
Lower Central Indian River Lagoon 1506 0.8 0.08 8.0
Lower Indian River Lagoon 1507 0.8 0.07 5.6

Halifax River SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Upper Halifax River 1601 1.1 0.18 8.8 Lower Halifax River 1602 0.85 0.2 9.7

Guana, Tolomato, Matanzas, Pellicer SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Pablo Creek 1701

0.6 0.09 6.6 Cabbage Creek 1702 Guana River 1703 Upper Tolomato River 1704 Lower Tolomato River 1705 Upper Matanzas River 1706*** E.O. 12866 Review

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Page 184 of 191 Central Matanzas River 1707 Lower Matanzas River 1708

Lower St. Johns River SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Lower St. Johns River 1801 0.75 0.095 2.5 Trout River 1802 1.09 0.108 3.6 Trout River 1803 1.15 0.074 7.7

Nassau SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Lower Nassau 1901 0.33 0.113 3.2
Middle Nassau 1902 0.40 0.120 2.4 Upper Nassau 1903 0.75 0.125 3.4

St. Marys River SEGMENT SEGMENT ID TN * (mg/L) TP (mg/L) Chl

- a 1 (μg/L) Lower St. Marys River 2002 0.27 0.045 3.0 Middle St. Marys River 2003 0.44 0.036 2.7

1 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. * For a given water body, 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 perio d.
(2 ) Criteria for coastal waters. The applicable criteria for c hlorophyll a for coastal waters are shown i n Table 2

.

Table 2 . EPA’s N umeric C riteria for Florida’s C oastal W aters Coastal Region Coastal Segment 225 Approximate Location Chlorophyll RS - a 1 * (mg/m 3 )

225 Please see TSD for location of Coastal Segments*** E.O. 12866 Review

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Page 185 of 191 Coastal Region Coastal Segment 225 Approximate Location Chlorophyll RS - a 1 * (mg/m 3 )

Panhandle 1 AL border 2.41 2 Pensacola Bay Pass 2.57 3 1.44 4 1.16 5 1.06 6 1.04 7 1.14 8 Choctawhatchee Bay Pass 1.23 9 1.08 10 1.09 11 1.11 12 1.18 13 1.45 14 St. Andrew Bay Pass 1.74 15 St. Joseph Bay Pass 2.75 16 2.39 17 Southeast St. Joseph Bay 3.47

West Florida Shelf 18 5.43 19 4.80 20 4.24 21 3.96 22 Tampa Bay Pass 4.45 23 3.37 24 3.25 25 2.95 26 2.79 27 2.98 28 3.24 29 Charlotte Harbor 4.55 30 4.22 31 3.67 32 4.16 33 5.70 34 4.54 35 4.03 36 Fort Myers 4.61

Atlantic Coast 37 Biscayne Bay 0.92 38 0.26 39 0.26 40 0.24 41 0.21 42 0.21 43 0.20 44 0.20 45 0.21 46 0.25 47 0.57 48 St. Lucie Inlet 1.08 49 1.42 50 1.77 51 1.55*** E.O. 12866 Review

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Page 186 of 1 91 Coastal Region Coastal Segment 225 Approximate Location Chlorophyll RS - a 1 * (mg/m 3 ) 52 1.44 53 1.53 54 1.31 55 1.40 56 1.80 57 Canaveral Bight 2.73 58 2.33 59 2.28 60 2.06 61 1.92 62 1.76 63 1.72 64 2.04 65 1.9 2 66 1.86 67 1.95 68 2.41 69 2.76 70 2.80 71 3.45 72 Nassau Sound 3.69 73 3.78 74 Georgia border 4.22 1 Chlorophyll RS - a is remotely sensed calculation of chlorophyll a concentrations. * For a given water body, the annual geometric mean of the chlorophyll a concentration shall not exceed the applicable criterion concentration more than once in a three

- year period.
(3) Criteria for south Florida marine waters. The applicable criteria for t o tal nitroge n (TN), total phosphorus (TP), and chlorophyll a for south Florida marine waters are shown i n Table 3

.

Table 3. EPA’s N umeric C riteria for S outh Florida M arine W aters
S. Coastal System Segment Code Segment Name TN* (mg/L) TP* (mg/L) Chlorophyll a* 1 (μg/L)

Biscayne Bay NNB Northern North Bay 0.33 0.012 1.82 SNB Southern North Bay 0.31 0.010 1.04 NCI North Central Inshore 0.33 0.008 0.47 SCI South Central Inshore 0.53 0.008 0.41 SCM South Central Mid

- Bay 0.40 0.008 0.36 SCO South Central Outer

- Bay 0.27 0.007 0.28 CS Card Sound 0.38 0.007 0.38 Florida Bay MBS Manatee

- Barnes Sound 0.74 0.010 0.77 ECFB East Central Florida Bay 0.89 0.009 0.69 CFB Central Florida Bay 1.47 0.025 3.17*** E.O. 12866 Review

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Page 187 of 191 SFB South Florida Bay 0.89 0.011 1.35 WFBN West Florida Bay

- North 0.45 0.024 2.98 WFBC West Florida Bay

- Central 0.63 0.020 2.06 WFBS West Florida Bay

- South 0.34 0.012 1.04 NFB North Florida Bay 0.87 0.015 1.09 CL Coastal Lakes 1.61 0.050 10.22

Florida Keys FKN Florida Keys

- North 0.20 0.007 0.28 FKT Florida Keys

- Transition 0.21 0.008 0.34 FKS Florida Keys

- South 0.23 0.008 0.37 KWOS Key West

- Offshore 0.21 0.008 0.39 BKB Back Bay 0.29 0.009 0.39 BKS Back Shelf 0.26 0.012 0.74 MAR Marquesas 0.24 0.009 0.63 DT Dry Tortugas 0.22 0.008 0.43

Whitewater Bay/ Ten Thousand Islands WWB Whitewater Bay 1.05 0.029 4.58 PD Ponce de Leon 0.67 0.026 3.06 SRM Shark River Mouth 1.15 0.027 2.49 CTHB Coastal Harney

- Broad River 0.85 0.041 5.44 LMB Lostman Bay 0.90 0.027 4.02 IWW Internal Waterways 0.77 0.037 5.02 GI Gulf Islands 0.54 0.040 3.81 BLK Black River 0.47 0.056 4.21 Pine Island/ Rookery Bay MARC Marco Island 0.37 0.048 5.95 NPL Naples Bay 0.38 0.052 5.22 COCO Cocohatchee 0.55 0.059 6.35 Gulf Shelf GS Gulf Shelf 0.40 0.021 2.88 1 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. * For a given water bod y, 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.
(4) Criteria for south Florida flowing waters. The applicable criteria for South Florida flowing waters that flow into downstream estuaries include the downstream protection value (DPV) for t o tal nitrogen (TN), and total phosphorus (TP) derived pursuant to the provisions of §131.45(c)(5). These criteri a are not applicable to waters within the Everglades Protection Area (EvPA) or the Everglades Agricultural Area (EAA). (5) Criteria for protection of downstream estuaries. (i) A downstream protection value (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 estuaries is the allowable*** E.O. 12866 Review

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Page 188 of 191 concentration of total nitrogen (TN) and/or total phosphorus (TP) applied at the point of entry into the estuary. The applicable DPV for any stream flowing into a downstream estuary shall be determined pursuant to paragraphs (c)(5)(ii), (iii), or (iv) of this section. Contributions from stream tributaries upstream of the point of entry location must result in attainment of the DPV at th e point of entry into the estuary. If the DPV is not attained at the point of entry into the estuary, 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 segment s 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 estuary. The State or EPA also have discretion to establish DPVs
to accoun t 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). (ii) In instances where available data and/or resources provide for use of a scientifically defensible and protecti ve estuary

- specific application of water quality simulation models that protect the estuary’s designated uses and meet all applicable criteria for the estuary, the State or EPA may derive the DPV for TN and/or TP from use of an estuary

- specific application of water quality simulation models. 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 estuary’s designated uses and meet all applicab le criteria for the estuary. (iii) When the State or EPA has not derived a DPV for a stream pursuant to paragraph (c)(5)(ii) of this section, and where the downstream estuary attains the applicable chlorophyll a criterion and the applicable TP and/or TN cr iteria, then the DPV*** E.O. 12866 Review

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Page 189 of 191 for TN and/or TP is the associated ambient instream levels of TN and/or TP at the point of entry to the estuary. 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)(5)(ii) of this section. (iv) When the State or EPA has not derived a DPV pursuant to paragraph (c)(5)(ii) of this section, and where the downstream estuary 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 estuary as described in §131.45(c)(1). (v) The State and EPA shall maintain a record of DPVs they derive based on the methods described in paragraphs (c)(5)(ii) and (iii) 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 re cord within 30 days of derivation of DPVs pursuant to paragraphs (c)(5)(ii) or (iii) of this section. (d) Applicability

. ( 1) The criteria in paragraph s (c)(1) through ( 5 ) of this section apply to all Class I, Class II and Class III waters in Florida, 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 alte rnative criteria apply pursuant to the procedures in paragraph (e) of this section; or*** E.O. 12866 Review

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Page 190 of 191 (iii) The State adopts and EPA approves a water quality standards variance to the Class I , Class II, or Class III designated use pursuant to §131.13 that meets the appli cable 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

- adopte d 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 sh all 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 mat erials 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 estuary c riteria in paragraph (c)(1) or (c)(3) of this section. (ii) Replicate the process for developing the coastal criteria in paragraph (c)(2) or (c)(3) of this section.*** E.O. 12866 Review

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Page 191 of 191 (iii) Replicate the process for developing the flowing water criteria in paragraph (c)(4) of this section. (vi) Conduct a biological, chemical, and physical assessment of water body conditions. (vii) 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 Region al 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 [ INSERT DATE 60 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER ].