CHAPTER 2 

Issue Category: Background 

Pages 1509 - 1943 

Response to Public Comments 

Water Quality Standards for the State of Florida's 

Lakes and Flowing Waters 

November 14, 2010 

40 CFR Part 131 

Docket #: EPA-HQ-OW-2009-0596 

This document is part of a larger document 
Chapter 2 - Comment Documents Background 

II - BACKGROUND 

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

II.A - NUTRIENT POLLUTION 

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

II.A.1 - NUTRIENT POLLUTION 

Comment ID 0487-1.001.005 

Author Name: Patashnik J. 

Organization: 

EPA is correct in its assessment that nutrient pollution poses a significant threat to water quality, particularly since 

discharges of nitrogen and phosphorus from farms-the primary source of nutrient pollution-is unregulated under section 

301 of the CWA, since agriculture is not a "point source" under that provision. 33 U.S.C. § 1362(14). 

Comment ID 0504.001.001 

Author Name: Ney, Jr. R. 

Organization: 

Subject: Phosphorus & nitrogen compounds are present, not P & N2 

Your science is totally incorrect in the following statements. You cannot enforce what is not present. 

"EPA Proposes Standards to Protect Florida's Waters: Action would decrease amount of phosphorus and nitrogen 

pollution Release date: 01/15/2010" and 

Nutrient pollution can damage drinking water sources; increase exposure to harmful algal blooms, which are made of 

toxic microbes that can cause damage to the nervous system or even death; and form byproducts in drinking water 

from disinfection chemicals, some of which have been linked with serious human illnesses like bladder cancer. 

Phosphorus and nitrogen pollution come from stormwater runoff, municipal wastewater treatment, fertilization of crops 

and livestock manure. Nitrogen also forms from the burning of fossil fuels, like gasoline. 

There is no phosphorus present. 

11/19/2010 02:48 PM EST 2-1509
 
Chapter 2 - Comment Documents Background 

I was under the impression that fertilizers contained phosphate as P2O5, potassium as potash or K2O and total
 

nitrogen as "ammoniacal nitrogen" and "nitrate nitrogen" .
 

Phosphorus (P)
 

Phosphorus (P) in elemental form is very toxic and is subject to bioaccumulation and is very rare in nature. Phosphorus
 

is a non-metallic element, which is necessary for animal and plant life and is found in rock as inorganic phosphates. P
 

forms phosphate (PO4) and phosphate can exist as: orthophosphate, meta-phosphate (or polyphosphate) and
 

organically bound phosphate.
 

Orthophosphates are produced by natural processes and are found in sewage. Meta-phosphates are used for treating
 

boiler waters (a pesticide) and in detergents (a pesticide) and change into the orthophosphate form.
 

Organic phosphates are important to animals and plants. They may occur as degradates (caused by metabolism,
 

photo-degradation, bio-degradation, hydrolysis, etc.) from organic phosphate pesticides.
 

Phosphorus (P) is a nonmetallic element and comes in many colors such as; black, red, white (or yellow) and ignites
 

spontaneously in air at about 86 degrees F and when exposed to oxidizing agents. P is stored in water and away from
 

heat. Put phosphorus in fertilizer you have a bomb, put large amounts of P in fertilizer and you may have an incendiary
 

bomb.
 

I quote from the Merck Manual on phosphorus (P). "...Does not occur free in nature..."
 

I quote from 5.6 Phosphorus, from a USEPA Water Quality Manual, "...Pure, "elemental" phosphorus (P) is rare. In
 

nature, phosphorus usually exists as part of a phosphate molecule (PO4).
 

Please note that (PO4) is incorrect, it is the phosphate radical PO4 -3, an ionic group.
 

There is no phosphorus in waters, sewage, fertilizer, etc.
 

ELEMENTAL NITROGEN (N2^)
 

Nitrogen (N2^) is a gas and is not present in fertilizers as elemental nitrogen but as a nitrogen compound, perhaps as
 

ammonia or a nitrate. In the waters it is present as a nitrate and nitrite.
 

Please use correct science.
 

Comment ID 0551.001.001 

Author Name: Gross C. 

Organization: 

As an environmental scientist and Florida resident, I strongly support stronger regulations regarding sewage and 

fertilizer runoff. 

11/19/2010 02:48 PM EST 2-1510
 
Chapter 2 - Comment Documents Background 

Despite much of Florida's reliance on tourism revolving largely around water, the State has failed to act responsibly on 

the contaminated runoff issue and has opposed such controls being enacted by counties and communities. Fortunately, 

my home County of Sarasota managed to pass fairly stringent fertilizer regulations prior to the State's preemption 

despite strong opposition from the fertilizer industry. (However, the County is unable to regulate pesticide use on private 

property due to longstanding State preemption, so these toxins continue to run unabated into our streams, lakes and 

the Gulf of Mexico.) 

While there is focus on the potential of septic systems to contaminate surface waters, sewer systems and treatment 

plants must not be ignored. In particular joint sewage and stormwater collection systems can lead to serious 

overloading during the heavy rains we experience. The overloading results in manhole covers being blown off and 

sewage running into streets and from there into water bodies. Also, when the treatment plants can't handle the 

increased burden, they simply add larger amounts of chlorine to the combined waste and stormwater and discharge it 

directly into waterbodies, including the Gulf. While the proposed pollution limits apply to surface waters, I would remind 

the EPA that the very serious issue of aquifer storage and recovery wells needs immediate attention, especially since 

the prooposed limits will exacerbate effluent disposal problems. Levels of treatment plant effluent are increasing with 

uncontrolled development and as homes are being forced off even well-functioning septic systems. As disposal options 

decrease, Florida counties are resorting to ASR wells. The pumping of this inadequately treated wastewater into wells 

for storage and supposed recovery is a serious threat to drinking water aquifers. Much more stringent regulations are 

needed immediately to ensure that contaminants, including those resulting from nanotechnology, do not contaminate 

our aquifers. Thank you for your attention to my comments. 

I support the EPA's proposed numeric nutrient criteria for Florida. I urge you to withstand the pressure from shortsighted polluters and adopt these criteria pursuant to your obligations under the Clean Water Act. 

Comment ID 0589.001.020 

Author Name: Foy J. 

Organization: StormwaterJ Engineering Inc. 

5. Nutrients vary considerably over time in surface waters. Runoff water quality is at least a function of antecedent 

moisture conditions, rainfall (amounts, duration, intensity, aerial extent, and frequency), groundwater conditions, soils, 

surface water management and conveyance systems, maintenance, and topography. Water quality can also vary by 

location, time of year, season, and time of day. The response of flora and fauna to water quality conditions 

encompasses much more than can be represented by water quality samples that are taken on a time schedule (known 

as a grab sample) to meet sample collection goals (grab samples are snap shots of data, not the entire picture). These 

relationships are much more complicated than criteria set up on exclusionary judgments based upon what is believed to 

be impaired. 

Comment ID 0601.001.006 

Author Name: Kelley H. 

11/19/2010 02:48 PM EST 2-1511
 
Chapter 2 - Comment Documents Background 

Organization: 

There is also no data to support the idea that wastewater treatment plants are a significant source of nitrate 

contamination in surface water bodies. We believe that agricultural runoff, residential lawn fertilizers and runoff from golf 

courses are probably all contributing a higher percentage of the nitrate contamination of Florida surface waters and 

wastewater treatment facilities are way down on the list. 

Comment ID 0620.001.007 

Author Name: Kelly H. 

Organization: Fort Walton Beach Tea Party 

There is also limited data to support the idea of wastewater plants are a significant source of contamination in surface 

water bodies. We believe that agricultural run off, lawn fertilizers, and golf courses are contributing to a higher of the 

nitrate contamination of Florida surface waters, and wastewater facilities are way down the list. 

Comment ID 0646.001.003 

Author Name: Griswold R. 

Organization: Destin Water Users 

Nutrient sources for Florida waters are many. Among them, atmospheric deposition, both direct and indirect; rainfall 

runoff, both point source and nonpoint source; in-stream decomposition of deposit organic matter; septic systems; 

treatment works; and inflow from other states. 

Comment ID 0666.001.001 

Author Name: Grigsby W. 

Organization: Florida Cattleman's Association 

I'm Wade Grigsby with the -- President of the Florida Cattlemen's Association. Thank y'all for coming and being part of 

this. We appreciate you taking our comments. One of the things I'd like to start off with is back at the early part of the 

20th century, Florida had about a million people and about a million cattle. Today we have 18 million people and about 

a million cattle. 

So I ask: Where is the problem? 

Comment ID 0666.001.005 

11/19/2010 02:48 PM EST 2-1512
 
Chapter 2 - Comment Documents Background 

Author Name: Grigsby W. 

Organization: Florida Cattleman's Association 

Buck Island Ranch, which is under Archibald Ecological System had a three-year study on phosphorous runoff. 

Interestingly, we found that stocking rate, the number of animals per acre or acres per animal, had no effect on 

phosphorous. The phosphorous was in the spodic layer or at the spodic layer, and it ran off in big rain flushes. 

Comment ID 0676.001.004 

Author Name: Alves J. 

Organization: Florida Coordinating Group 

And so, I think it's very misleading to talk about the toxicity of nitrates and talk about blue babies, because we do not 

have a nitrate problem. And if there was a nitrate problem, I don't think your rule would be responsive to it at all. So it 

seems like you're trying to generate fear, in all honesty. And in saying that, I would urge you to reconsider whether 

you're going to continue to do that at the other workshops, because it's right on the board of being misinformation. The 

other thing I saw, the vast majority of the photos that y'all showed seemed to be from the second half of 2005. And 

those of us who have lived in Florida know that we had a whole lot of storms that year. 2004 and 2005 we had frequent 

very intense storms, including many hurricanes, and everything was topsy-turvy. We have releases from all sorts of 

waters, and that is not a representative period at all. You had another photo of an impaired water from 1995. I don't 

know what relevance that could possibly have in 2010. And you have another water. 

Comment ID 0678.001.001 

Author Name: Adams C. 

Organization: 

Because and it causes irreparable damages to our natural treasures. Agriculture can implement real and effective 

BMPs. Just look at our waters and you can see that we're well overdue. On the subject of fertilizer use it's past time 

Florida banned fertilizer use all together. We can reduce the huge percent of nutrient loading and financial impact on 

the fertilizer industry would be minimal. Spoiling the springs for everyone shouldn't be a trade off for best lawn in the 

neighborhood. 

Comment ID 0681.001.004 

Author Name: Tilton A. 

Organization: 

And the last thing is in looking at rainfall in South Florida and actually across the state in South Florida there's rainfall 

11/19/2010 02:48 PM EST 2-1513
 
Chapter 2 - Comment Documents Background 

deposition of phosphorous in 15 to 80 parts per billion. And in most of the south Florida we're going to have to treat the 

water to 42 parts or less. I'm not sure how this is possible when the rain fall falling in most situations on clean sheet of 

glass would have to be treated before it could run off the tide water. So I'm kind of hard-pressed to understand what 

really we're shooting for in doing this. If maybe we could treat the water -- treat the businesses in Georgia that we get 

aerial deposition from then we wouldn't get as much aerial deposition then we wouldn't have to treat it before it gets to 

our storm water. Thank you. 

Comment ID 0687.001.003 

Author Name: Joneck D. 

Organization: Florida Growers Landscape and Nursery Association 

I also wonder about historical phosphorous. There's quite a bit of it in the middle of the state, coming down the 

Kissimmee River Valley. Let me explain. I am also a resident of the South Florida Water Management District and know 

quite a bit of all 16 counties and how it comes into Lake Okeechobee and down to Miami-Dade, so historical 

phosphorous concerns me. I also thought of something else. We're the lightening capitol of the world, and we have a 

whole lot of thunderstorms. Now, I have a canal in -- let's say Luxahatchee Florida, and I have tested, and just been 

through five evenings of horrific thunderstorms. Guess what comes out of thunderstorms? Nitrogen. So have you taken 

that into consideration with what Mother Nature just hands to us? How do we do this? And how are we going to do the 

total nitrogen and total phosphorous as it moves through the network. And as usual, that's all I have, and I've never 

taken my entire time and I thank you. 

Comment ID 0695.001.005 

Author Name: Grane C. 

Organization: Marion County Water Conservation District 

We all know we have a problem. I mean, the folks here any way know we have a problem. The current condition of 

Silver Springs is appalling. The problem is the money hasn't been spent to determine where that nitrogen is coming 

from. We know some is organic. We know some is inorganic. The fertilizer is obviously is a big point. Education alone 

on that point would make a huge difference. And I've listened to some of these nursery men here, and they are some of 

the most educated people we have about fertilizer, and they really know what they're doing, and they have made huge 

increases in their standards. You know, the people that are in the water and see the damage are horrified. But 

frequently the blame gets placed in the wrong court. And we have regulations coming down that there are phosphorous 

rules that require run-off forms to be lower than rain water. I mean, this is absurd. And this is the sort of thing I think 

citizens fear and people in agriculture fear. It we needs to be looked at. We need to look at water treatment facilities, 

large municipalities. We need to look at stormwater. From the studies I've seen, as you get rid of agriculture and bring in 

more roads and more rooftops, you actually have more pollution. Everybody thinks if ag went away things would get 

better. That's not the case. Agriculture in Marion County is horse farms. They provide a recharge value that is 

immeasurable. As our water volumes have dropped, naturally the nitrogen levels have increased. There's less water 

flows, so whatever nitrogen was in the system has become concentrated. We don't know how much of a problem is 

11/19/2010 02:48 PM EST 2-1514
 
Chapter 2 - Comment Documents Background 

because we have lower water levels. Hugely lower water levels. In some places we have had 42 percent reductions in 

our wetlands, rivers and streams. Can we say it's the fault of the farmer? I don't think so. This is just excessive 

groundwater pumping, so that development can put in lawns that look like ones in the northeast where the people are 

retiring from. If we just grew native plants and didn't water and didn't fertilize, we would make huge, huge leaps toward 

less fertilizer and less watering. So less groundwater pumping. But getting that word out has been difficult. It doesn't 

require huge regulation. It requires education. So many of these things in the citizen's court require education. 

Comment ID 0709.001.003 

Author Name: Costello C. 

Organization: Sierra Club 

I'd like to talk today about one specific experience that is mine and that is regarding residential fertilizer management 

and specifically the influence that the agrichemical industry has had on both -- or all three, University of Florida Institute 

for Food and Agricultural Sciences, the FDEP and the State Legislature. I have a lot of to say, so I'm going to try to 

squeeze it in. 

Comment ID 0709.001.005 

Author Name: Costello C. 

Organization: Sierra Club 

And the first focus became residential fertilizer management. It was indeed low-hanging fruit. It was something that 

every person on the coast could take responsibility in making happen. 

Comment ID 0709.001.007 

Author Name: Costello C. 

Organization: Sierra Club 

But the one example that I will leave with you here today is that the influence is so great that there are individuals, 

scientists, researchers from the University of Florida that are actually saying that putting down more nitrogen, quickrelease nitrogen, during the rainy season will help -- will help improve water quality. More nitrogen, more quick-release, 

during the rainy season. Improve? I mean, that's the point of ridiculous that the influence has gotten. FDEP is not -- the 

influence is there, but not as great as IFAS. 

Comment ID 0720.001.007 

Author Name: Selph J. 

11/19/2010 02:48 PM EST 2-1515
 
Chapter 2 - Comment Documents Background 

Organization: Citizens of Charlotte County Farm Bureau 

I'm going to quote one last thing. Dr. Finley Pate, the late Dr. Finley Pate, at the University of Florida on a research 

station, he used to make this statement. In 1950 we had a million cows and about a million people. Today we've got 

about 750,000 cows and about 18 million people. 

Now, you guess where the pollution and the problems have come from. It's not from the basic that made Florida Florida. 

It's from people who has moved here who are fertilizing alongside the coast and everything else. 

Comment ID 0726.001.004 

Author Name: Price J. 

Organization: Rayonier 

The EPA is also concerned that forestry practices contribute to nutrient overenrichment. The State of Florida has one of 

the most aggressive forestry best management practices in the nation. These requirements include standards for forest 

fertilization. Additionally, the Florida division of forestry does biannual compliance surveys using aerial selection 

techniques and detailed on-the-ground compliance monitoring. 

The results of these surveys indicate compliance rate percentages in the high nineties. The Florida DEP has also 

completed effectiveness studies across the state demonstrating that when forest best management practices are used, 

they are effective at preventing water quality degradation. 

Comment ID 0740.001.004 

Author Name: Lee C. 

Organization: Audubon of Florida 

The other thing that I would suggest is that you need to have in mind what the outcome of this is. I'm very sympathetic 

to the gentleman who started out by saying that we had 750,000 cows in Florida in the year 1950 and a million people 

and now we have 18 million people. 

I do believe that the green slides you showed of those algae are not primarily due to agriculture with perhaps the 

exception of feed lots and muck-farming-dominated agriculture. The target of this should not be the cattlemen in Florida 

or the citrus growers in Florida. I believe it is the 18 million people that put fertilizers on their lawns, put sewage in the 

water, generate that reclaimed water that is high in nutrients, that are at the heart of this problem. 

Comment ID 0757.001.001 

Author Name: Guest D. 

11/19/2010 02:48 PM EST 2-1516
 
Chapter 2 - Comment Documents Background 

Organization: Earthjustice 

David Guest with Earthjustice. I thank you for the chance to speak, and I'll be brief as I can. 

Just some points of fact. Lake Manatee is not in the wonderful shape that some folks have said that it's in. It gets fed by 

-- to a substantial extent, it's irrigation return flow from heavily irrigated rogue currents. That was a big algae bloom on it 

that keeps coming back. So that story wasn't true. 

Comment ID 0757.001.003 

Author Name: Guest D. 

Organization: Earthjustice 

A word about Lexicon that just grates on my nerves here. Y'all talk about toxic algae blooms. Blooms are things that you 

give to your sweetheart on Valentine's Day. These aren't blooms. These are outbreaks like the Ebola virus or 

something. We should call them outbreaks and not blooms. And these aren't really nutrients either. The nutrients elicits 

an image of boxes of Special K. That's not what this is. This stuff is poison in the water and if you drink too much of it, it 

will kill you. It's sewage, it's fertilizer and it's manure. We should be calling it that. 

Comment ID 0757.001.007 

Author Name: Guest D. 

Organization: Earthjustice 

Finally, I would like to say that the agricultural contribution is a significant and important one. But farmers are really in a 

different -- in a different position than most other folks because what happens when you require the sewage people to 

reduce their nutrients level, they got to pay some money to do that. And when you -- when you require the Ms4's to do it 

other than, of course, the smart fertilizer ordinances, they've got to do some treatment to do that. 

But for farmers, fertilizer is an expense and it's a big one. The price of fertilizer has just gone through the roof. And if 

you want innovation in great ways to figure out how to do water pollution, to improve it, the farmers are folks that you 

can turn to and listen to and collaborate with. It really makes in big improvements. They're great people and wonderful 

stewards of the land and we hope that they can be brought in as collaborators in this process. 

Comment ID 0759.001.006 

Author Name: Costello C. 

Organization: Sierra Club 

The Sierra Club and its allies understand that less fertilizer on the ground means less fertilizer in our waterways. We get 

11/19/2010 02:48 PM EST 2-1517
 
Chapter 2 - Comment Documents Background 

a lot of the rain in the summer, it washes into our waterways. It's kind of a no-brainer; put less down; less is going to get 

off of your lawn. 

Comment ID 0762.001.003 

Author Name: Beagles B. 

Organization: 

I would urge you very carefully to leave agriculture out of what you're doing. We're not the problem. We've never been 

the problem. If you'll go back and check and when you're in Washington and you look at Mount Vernon, go over to 

George Washington's home and go down to the basement and look at the plans that he formed in rotating crops in the 

early 1900s and that will tell you there; agriculture has been in business a long time, and we do what we can do to 

protect because we make our living off of agricultural. 

Comment ID 0772.001.004 

Author Name: Height C. 

Organization: Sierra Club of Central Florida 

I actually have gone and participated in replantings and suffered, you know, leaches, and I had a friend that used to do 

lake monitoring who would get sores on his arms after getting samples from lake watch. We've worked -- it's been so 

polluted. A lot of the things that contributed have been alleviated. There's no more dairy farms, but there have been 

direct discharges from municipalities in Orange County and Seminole County. 

Comment ID 0772.001.006 

Author Name: Height C. 

Organization: Sierra Club of Central Florida 

And one of the big things that through the years has really bothered me is the whole turf industry and the whole issue 

relating to St. Augustine grass and the ornamentals that are non-native. And I think one of the things that we should 

really be looking at in addition to would be the use and proliferation of native plans because you don't need to have 

fertilizers with native plants. 

Comment ID 0772.001.008 

Author Name: Height C. 

Organization: Sierra Club of Central Florida 

11/19/2010 02:48 PM EST 2-1518
 
Chapter 2 - Comment Documents Background 

The fact is that it is what it is. Lake Jessup is polluted. Lake Apopka is polluted. There was an algae bloom on the east 

coast this past summer. 

Comment ID 0786.001.010 

Author Name: Veaudry K. 

Organization: Florida Native Plant Society 

Florida estuaries with the warm and wet, yet sunny, climate further contributes to the increased runoff pollution and 

subsequent eutrophication responses. 

Comment ID 0786.001.011 

Author Name: Veaudry K. 

Organization: Florida Native Plant Society 

We need clean water for survival in Florida and future development. Changes in the environment resulting from 

elevated nutrient levels such as algal blooms and eutrophication cause a variety of damaging effects that affect not only 

the water body but the plant species and the change in habitat and available food sources and resources that can 

induce changes affecting the entire food chain. 

Comment ID 0796.001.005 

Author Name: Albergo N. 

Organization: HSA Engineers and Scientists 

I'm also concerned that there appears to be greater focus on point sources, which I understand is an obvious target, but 

it's often the nonpoint sources that contribute greatest to nutrient loading, and as such probably need to receive some 

greater focus. 

Comment ID 0829.001.006 

Author Name: Quashus P. 

Organization: Collier County Audubon Societies of Southwest Florida 

The limiting factor for the coastal waters is not phosphorous, it's nitrogen. We're in a marine environment. We've got a 

different kind of issue. We don't have the technologies to deal with the nitrogens that are coming into our -- as we 

convert from septic tanks to sewers to do all the rest. We need to develop appropriate nutrient standards. We're in a 

11/19/2010 02:48 PM EST 2-1519
 
Chapter 2 - Comment Documents Background 

unique situation down in Southwest Florida. We get water both from Bone Valley, the richest phosphorous source 

naturally in the United States, and at the same time we get additional increments of phosphorous coming down the 

Caloosahatchee from a water source to which we were not historically linked. 

Comment ID 0839.001.002 

Author Name: Musgrove M. 

Organization: Florida Wildlife Federation 

Of 823 water bodies listed in 2002 by the state as impaired, 60 percent were impaired as a result of excess nutrients, 

runoffs from farms, suburban and urban yards, leaching from septic tanks, and septic tanks remain a tremendous 

problem in South Florida and the rest of Florida, especially on the west coast of Florida, discharges from the suburban 

water systems and the discharges through canals to the sea where they are feeding algae blooms, destroying near 

shore reefs. I want to point out that Lake Okeechobee is a very tragic case in point. It has an accumulated legacy of 

phosphorous so polluting that the lakeside communities can no longer afford to draw water from the lake and treat it for 

drinking. It is the largest lake in the state and you can't treat the water for drinking cost effectively. The Seminole Indian 

Tribe, which happens to service many of the unincorporated communities along the northwest shore of the lake, 

Clewiston on the west shore, the east shore municipalities of South Bay, Belle Glade and Pahokee have all been forced 

for public health reasons, public health reasons to go to wells at total costs in excess of a hundred million dollars. These 

are small communities. Okeechobee, the city and county's water utility now blends lake water with well water before 

treating it. During summer months, algae blooms covered vast reaches of the lake, which depending on conditions are 

discharged into the Caloosahatchee Rivers and St. Lucie Rivers and the C-51, the West Palm Beach canal, which was 

never a river, but it discharges into Lake Worth Lagoon and then out to sea. I have sat in the offices, third floor offices of 

the South Florida Water Management District that looks down on the C-51 canal and seen it pea green, pea green. It's 

very distressing. And that canal has a larger flow of water than many of the rivers on the eastern seaboard. 

Comment ID 0840.001.005 

Author Name: Bell D. 

Organization: Central Broward Water Control District 

I've even been told rain water is higher than what you're proposing, which makes it difficult. 

Comment ID 0844.001.007 

Author Name: Waldron M. 

Organization: Highland Greenhouses Delray Plants 

And I close with this, any and everyone that lives here in Florida or visits Florida adds to nutrient enrichment; septic 

tanks, walking the dog, raising and feeding animals, fertilizing lawns and gardens or managing a large farm operation. 

11/19/2010 02:48 PM EST 2-1520
 
Chapter 2 - Comment Documents Background 

Our challenge is to make sure that any measures are fair and equitable to all the people of Florida. More work needs to 

take place between these two agencies for a lasting solution. Thank you so much for your time. 

Comment ID 0853.001.005 

Author Name: Clark S. 

Organization: Cry of the Water 

And I am kind of all over the place, but I will be submitting written comments which will be a little bit more focused and 

hope to put pictures in there so you can see some of the things we are talking about, like discharges and about a lot of 

land-based sources of erosion, which are just street ends with all that, you know, whatever is on the streets running to 

the ocean, running to our canals. And that's about it. I want to thank you guys for being here so much. 

Comment ID 0859.001.003 

Author Name: Jarriel R. 

Organization: Loxahatchee Groves 

I have seen the pictures that you showed with some of these lakes and stuff. I think that's uncalled for, unnecessary, but 

I haven't observed it myself. I travel from the east coast to the west coast, got property over in the panhandle, and some 

of the prettiest lakes I have seen is over in that area. And the rivers. And their situation over there is totally different 

from ours. They don't have the drainage system like we do with the canals and stuff. 

Comment ID 0896-2.001.007 

Author Name: * * 

Organization: Lee County Board of County Commissioners 

• While point sources are a relatively "easy" target; there must be particular focus on non-point sources as well. Nonpoint sources are considered to be a significant contributor of nutrients in our waters. 

Comment ID 0896-2.001.020 

Author Name: * * 

Organization: Lee County Board of County Commissioners 

• Phosphorous and nitrogen pollution come from stormwater runoff, municipal wastewater treatment, and fertilizer 

runoff. • Nutrients in our waters can damage drinking water sources; degrade downstream lakes, reservoirs, and 

estuaries; and increase exposure to harmful algal blooms. 

11/19/2010 02:48 PM EST 2-1521
 
Chapter 2 - Comment Documents Background 

Comment ID 0899.001.006 

Author Name: Bartz R. 

Organization: Manatee Chamber of Commerce 

Unintended consequences of compliance would cut off the food source of oysters that need more nutrients/algae to live. 

Comment ID 0920.001.002 

Author Name: Boler B. 

Organization: 

As I am sure you are aware, the pollutant of concern in most of the receiving waters in Southwest Florida is nitrogen. 

Conventional stormwater treatment processes in Florida are very poor at removing nitrogen, especially the dissolved 

forms (ammonia and nitrate). Removal of nitrogen requires biological processes where dissolved forms of nitrogen are 

removed through contact with soil and vegetation. The removal of these dissolved forms before discharge from an 

urban development requires the use of infiltration areas (grassy uplands or swales) where the storm water runoff is 

retained and treated onsite. These retention areas require 2-3 feet of separation between the ground surface where the 

runoff is discharged and the groundwater table. The storm water discharge is allowed to filter through the vegetation 

and soil where the pollutants are removed prior to any offsite discharge. The use of infiltration areas is difficult in 

wetlands, since by definition the water table for wetlands is above the ground surface for much of the year. The latest 

scientific research on urban runoff treatment processes indicates that wet ponds-the preferred BMP by developers in 

Florida because they provide fill for house foundations and golf courses and the ponds increase property values (water 

front)-remove only 20 to 30 percent of the total nitrogen in urban runoff from residential developments. 

Comment ID 0922-1.001.040 

Author Name: Fred Lee G. 

Organization: G. Fred Lee & Associates 

Another issue of concern with regard to the nutrient criteria is their exclusive focus on planktonic algal chlorophyll. 

There are many waterbodies in which the nutrient-related water quality problem is not planktonic algae, but rather 

excessive growth of aquatic plants - floating and/or attached macrophytes or benthic algae. The cause-and-effect 

couplings between nutrient load and aquatic plant response are quite different from those for planktonic algae. 

Response assessment is not as readily or universally quantified; effective management approaches are also quite 

different. Waterbody morphology and sediment sources of nutrients play a significantly different role in the development 

of aquatic plants than of planktonic algae. Indeed, in many waterbodies, the reduction in planktonic algae induces the 

manifestation of problems associated with aquatic macrophytes, and vice-versa. 

11/19/2010 02:48 PM EST 2-1522
 
Chapter 2 - Comment Documents Background 

Comment ID 0942.001.011 

Author Name: Reed K. 

Organization: 

A PERSONAL OBSERVATION THAT IMPLICATES IRON POLLUTION 

This derelict, washed into Poquito Bayou by Hurricane Ivan, was allowed by authorities to remain in that same location, 

dripping rust (iron oxide) and, presumably, other substances, into the bayou for at least two years afterward. While it 

was there, Poquito Bayou and Garnier's Bayou (into which Poquito Bayou empties) experienced such an unusually 

strong and long-lasting red tide fish kill that the Florida Marine Research Institute (FMRI) did a special study on it and 

found that brevetoxin was remaining, intact, in our bayou's food web, several months after Karenia brevis (the organism 

that makes brevetoxin) was gone. This rusting derelict is the one, most drastic change to the watershed's ecosystem 

that I observed. 

Original comment letter contains additional data or information for Poquito Bayou from K. Reed. See original comment 

letter. 

Comment ID 0954.001.006 

Author Name: Crenshaw A. 

Organization: United States House of Representatives 

Phosphorus and nitrogen pollution come from stormwater runoff, municipal wastewater treatment, fertilization of crops 

and livestock manure. Nitrogen also forms from the burning of fossil fuels, like gasoline. 

Comment ID 0969.001.003 

Author Name: Schofield J. 

Organization: 

While the agriculture industry will defends the position that the state should not listen to the Federal Government, it is in 

fact a problem that has been created partially by this industry. What this industry fails to understand is that the clean up 

of these waters will come out of the tax payers pocket therefore having acceptable levels are in the best interest of the 

public. I understand the importance that this industry is to Florida, however corporate responsibility on this issue must 

be accepted. It is one thing that agriculture needs the water from our aquifer to support the growth of their product but to 

return it to our water supplies with higher levels of nutrients than what was extracted is also not in the best interest of 

the citizens. The following article while not directly related in text to nutrient levels also points out the issue with the 

Everglades. While not stating any increase in nutrient levels it does point out that to protect this water purchases of 

11/19/2010 02:48 PM EST 2-1523
 
Chapter 2 - Comment Documents Background 

agricultural land is critical. It also was the intent of the state to purchase thousands of acres from US Sugar. This 

combined with Federal involvement is necessary to protect our waters from exceeding high nutrient levels. 

Comment ID 0972-1.001.002 

Author Name: Muench G. 

Organization: Florida's Blue Crab Advisory Board 

Nutrients can be friend or foe to an estuary and that depends on who's talking. Biologist and myself as a fisherman can 

explain nutrients are part of the food chain in an estuary. The problem with nutrients is the bad stuff we add such as 

pesticides and fertilizers, plus the storm water system that prevent nutrients from replenishing wetlands with natural 

fertilizers. 

Comment ID 0972-1.001.004 

Author Name: Muench G. 

Organization: Florida's Blue Crab Advisory Board 

We allow our uplands and wetlands to be drained for people and agriculture then add pesticides and fertilizers to that 

drainage. The Little Manatee River where I fish for blue crabs is polluted up stream, not by urbanization, but 

agriculture. Since the eighties I caught row crop plastics in crab traps. Now if plastic row crop plastic washes off 

agriculture land and down the river, so does pesticides and fertilizers from agriculture. The first thing homeowners do 

when they move next to a river, stream, lake, or any wetland is destroy shoreline vegetation, which catches nutrient 

runoff then complain, "what happen to the wildlife?" We're wrong in allowing bulkheads; every water front should be 

vegetative littorals. We must do a much better job of selling protection of lakes and rivers, not by saying how bad 

nutrients are, but by explaining the benefits and methods of keeping nutrients on the uplands. We can not expect lakes, 

rivers, and estuaries to survive when we eject nutrients from our agriculture and urban lands and add pesticides and 

fertilizers to that drainage. 

Comment ID 0972-1.001.005 

Author Name: Muench G. 

Organization: Florida's Blue Crab Advisory Board 

Today, the Little Manatee River is colored brown from a freeze that added nutrients consisting of tons of dead fish and 

dead leaves, plus winter rains washing those nutrients down stream and I'm happy as a lark as a blue crab fisherman. 

Why? Because shrimp and blue crabs are detritus feeders and those nutrients consisting of dead fish and leaves have 

greatly improve my harvest of blue crabs. Blue crabs today are growing leaps and bounds from a rich nutrient food 

supply. 

11/19/2010 02:48 PM EST 2-1524
 
Chapter 2 - Comment Documents Background 

Comment ID 0997.001.007 

Author Name: Poulson T. 

Organization: University of Illinois 

C. We obviously need more filter marshes but PREVENTION OF NUTRIENTS ENTERING WATERWAYS ARE 

NEEDED AT ALL SCALES AND LEVELS FROM THE INDIVIDUAL TO MUNICIPALITIES AND FROM BUSINESSES 

TO AGRICULTURE. See item III about costs. 

Comment ID 1009.001.004 

Author Name: * * 

Organization: Clay County Board of County Commissioners 

Specific Comments: 

General Comment Item II.A: EPA discusses nutrient pollution in general and specifically in Florida. The document 

considers nutrients as pollutants but does not acknowledge that there are numerous natural sources of nutrients and 

that, in some waterbodies, the lack of nutrients is just as much an impairment as the abundance. The state's nutrient 

target is not to cause an imbalance of natural flora and fauna, a target that EPA acknowledges (page 38). This does not 

say the target is achieving the flora and fauna resulting from natural conditions and there are many waterbodies in 

Florida that meet their recreational (fishable) designation with the existing nutrient condition. 

Comment ID 1016.001.001 

Author Name: Bond T. 

Organization: 

The practice of land-applied sewage sludge and it's runoff are one cause of nutrient pollution in the state's waters. The 

phosphorus content in the sludge is too high. Phosphorus is only monitored at the water utility facility that produces the 

sewage sludge, not the total amount of phosphorus in the sludge dumped in the land at FDEP permitted sludge sites. 

In DeSoto County, where I live, there were 240 permitted sewage sludge sites. I'll take just one year as an example. In 

2002 a local newspaper reported DeSoto County received 250,000 gallons of Class B liquid sludge every day. Also that 

year EPA's own record showed DeSoto County received over 43,000 dry tons of Class AA sludge. It was land applied in 

marginal pastures lands and wetland along the floodplains of Horse Creek and Peace River. Those high volumes of 

sludge dumping are not fertilizer, and have the capacity to enter the state's waters. The amount of phosphorus that 

escaped into the state's waters from too much sewage sludge dumped into the floodplain is huge. Its impact is an 

unknown, unacknowledged detrimental risk to human health and clean water. In 2003 the sludge dumping in the 

floodplains continued in DeSoto County at those high rates. In August Tropical Storm Gabriel [sic] caused a record11/19/2010 02:48 PM EST 2-1525
 
Chapter 2 - Comment Documents Background 

breaking flood on Horse Creek, where I live. 14 homes in the neighborhood had floodwater inside them, including mine. 

18 inches of sewage sludge laden floodwater polluted my home. The polluted floodwater covered my wellhead and 

contaminated my drinking water. The stinky black water covered all of my 5 acres, and when the water receded, it left 

everything blanketed in smelly black sludge residue. That is the worst nutrient pollution you have ever seen or smelled. 

To date, there is no amended sewage sludge rule from the state. The county has no protective sludge ordinance, and 

the water district doesn't acknowledge the nutrient pollution runoff into public waters. Keeping nitrogen and phosphorus 

out of the state's waters is the remedy for nutrient pollution. Thank you for letting me have this moment. 

Comment ID 1020.001.003 

Author Name: Williams C. 

Organization: 

I would like to point out that photos in your booklet that you passed out, Page 5 shows pollution in the densely 

populated Lake Manatee area. The population around the lake is very dense. All the other photos are in populated 

areas. Why is it that everywhere populations explode, pollution follows? Why is the water and land in agricultural areas 

pristine until development moves in? 

Farm families drink their water and eat its fish, yet are generally a healthy part of the population. Why do urban dwellers 

buy that little place in the country? Because they know it is pristine and beautiful. At nearly one-mile increments all 

along our coastlines there are sewage outfalls, each one spilling -- each one spilling millions of gallons of only partially 

treated sewage into our waters, where we swim, swallow water. 

Our urban homeowners can buy all the fertilizer they want, mostly burning their lawns and putting too much on too 

often, and yet we blame agriculture. This is a shame. We need Mr. and Mrs. Homeowner to take a look at themselves. 

What do you pour down your drain and throw on your grass or in your driveway? It doesn't just end up in your driveway. 

It ends up in your water. We need to stop pointing fingers and work together collaboratively to seek a solution that we 

can all live with. Thank you. 

Comment ID 1025.001.003 

Author Name: Heuer M. 

Organization: 

We all share in the responsibility of the pollution, I agree, and septic systems are part of the problem. Runoff is part of 

the problem. Ag interests are part of the problem. I think this is a really good start, what you're doing. I hope you can 

protect us from ourselves, basically, and pass strong legislation to protect -- our really most precious resource is our 

water. 

Comment ID 1032.001.004 

11/19/2010 02:48 PM EST 2-1526
 
Chapter 2 - Comment Documents Background 

Author Name: Angelo P. 

Organization: 

Again when a county or a utility complains to you that your standards are too stringent, they should be prepared to tell 

you what reasonable and cost-effective measures they have adopted to deal with the problem, and what measures 

they've rejected. Unfortunately, there's substantial evidence that their own policies about runoff, buffers, and storm 

water management are part of the problem. If they're not willing to make reasonable efforts to avoid nutrient runoff, their 

objections to your criteria are simply not credible. 

Comment ID 1042.001.002 

Author Name: Nelson V. 

Organization: 

I mean, just agriculturally, having these kind of things will set a precedent for people to use their land better, especially 

ag -- people who need it for whatever they're working on as a source of income. I mean, we've learned that the misuse 

of fertilizers has led not -- well, I remember someone else brought some of these aspects up, but I wanted to point out 

that, in a global market, it makes us better just because the new generation coming up, we want things -- we want food 

that's not only good for us, but it's good for the land that produces it. It's more sustainable. And I know that trying to use 

our land better is going to bring that forth. 

Comment ID 1055.001.005 

Author Name: Cowdright B. 

Organization: 

In the late 1980s and early 1990s, Southwest Florida Water Management did a study about the die-off of the Flatford 

Swamp, up in the Myakka River. It was determined that it was -- it came from the agricultural fields, from runoff of 

nutrients and water. 

Comment ID 1056.001.001 

Author Name: Guest D. 

Organization: 

David Guest for Earth Justice. Thank you for an opportunity to speak to you-all today. 

I don't think there's really any doubt at all that sewage, fertilizer, and manure pollution trigger toxic algae outbreaks, and 

things like that are causing horrible problems all over the state, and here particularly. You've got a picture the 

11/19/2010 02:48 PM EST 2-1527
 
Chapter 2 - Comment Documents Background 

Caloosahatchee River. That's a nightmare economically. It's happens in many places besides there. It was a horrible 

outbreak on Sanibel. You heard about that, too. 

The water treatment plant at Olga for Lee County had to be shut down because of a toxic algae outbreak because the 

water would -- that water plant couldn't function anymore. 

Comment ID 1058.001.003 

Author Name: McCabe J. 

Organization: Bayous Preservation Association 

It's our position that the objections, such as this rule was implemented expediently, are not valid, and we would counter 

that delay is the surest form of denial. The only unfunded mandates that we are really concerned about now is the 

necessity that all of us downriver continue to deal with the pollution that is sent down to us. The only fertilizer that we're 

worried about -- we certainly do not want to see our agricultural colleagues lose their production, and the only fertilizer 

we're worried about is the fertilizer that plants don't use that wash down the waterways and cause all the problems that 

have been talked about today. There are practices in this country and other countries that have shown that that's not 

necessary today. 

Comment ID 1061.001.002 

Author Name: Dove M. 

Organization: 

Since Hurricane Wilma in August of 2005, I have visually watched the Caloosahatchee River experience large blooms 

of algae. Some blooms have been very prolific. Given that I live in the river, I have had the opportunity to photograph 

what appears to be drainage from a large industrial farm that is continuous to my property. Because of my concern, I 

made an appointment with my county commissioner, Mr. Frank Mann to show him the pictures. I've brought copies for 

you to view. The photos speak clearly. 

The following are Commissioner Mann's comments after viewing the photos, and I quote, "Yes, I flew over that area 

where the river -- where the farm is located with a representative of South Florida Water Management, and I 

commented to him that it appears the algae bloom is coming from that farm." According to Commissioner Mann, and I 

quote, "The representative from South Florida South Florida Water Management then said, the water management 

representative, they have grandfathered permits." 

The photos, in my opinion, are horrific. I am confounded as to how our local and state governments would allow a large 

industrial agricultural operation the permission to discharge questionable effluent into the Caloosahatchee River. When 

a business discharges their runoff like this, it has the capacity to have deleterious effects in local economic engine, but 

most importantly, the environmental health of our community. I would like to present you with these photos right now. 

11/19/2010 02:48 PM EST 2-1528
 
Chapter 2 - Comment Documents Background 

Comment ID 1062.001.002 

Author Name: Gross B. 

Organization: 

On March 21st the Caloosahatchee River -- that's of '08 -- turned into a toxic blue-green algae and backed up the Olga 

Water Treatment Plant near the Franklin Locks. It was so bad that the Olga treatment plant, serving over 30,000 

customers, could not treat this toxic, slimy, green, smelly water, and the plant had to be shut down for two or three 

months. 

The Caloosahatchee River was named one of the top seven most polluted rivers in the nation. For many years through 

the runoffs, the fertilizers and nutrients were washing into the beautiful river and was used for a sewer. The Cyano Lab ­

- that's C-Y-A-N-O Lab -- quoted that they found several species of toxic algae present, along with Microcystis. 

Symptoms of Microcystis poisoning include jaundice, shock, abdominal pain, nausea, vomiting, severe thirst, and death. 

A letter of March 12th from Douglas Meurer, director of Lee County utilities, informed us that the most affected area of 

north of Tice to the river, and along the Highway 80 corridor, east to the River Hall. He also said in a letter that the Lee 

County Department of Health, Charles Walther was taking a helicopter ride up the Olga water treatment plant east up 

the river. I heard that Commissioner Frank Mann, as said before, was to fly over the river and follow the algae coming 

from a large plant farm near Alva, certainly an area of concern. 

The South Florida Water Management person -- I think it was Phil Flood that was with him -- said that the farm has 

water permits that were grandfathered in. My problem with that is -- and I had rewritten this, but what does that mean? If 

there are grandfathered permits by South Florida Water Management, do they have the right to bypass the current 

permits standards? I'm not professing that the agricultural concerns are all bad guys. They are hard-working, good 

people. There are always a few that take shortcuts and ruin it for everybody and abuse the process, and we end up with 

unhealthy, dirty, polluted water. 

Comment ID 1064.001.003 

Author Name: Gratkowski A. 

Organization: Girl Scout Troop 319 

Hi. My name is Arissa Gratkowski, and I'm representing my troop, my Girl Scout Troop 319. As you know, because of 

the fact that we don't have clean water right now, excess nitrogen and phosphorus has reached such high levels due to 

the carelessness from unsanitary ways of disposing of certain chemicals from wastewater treatment plants. It's having a 

large impact on our marine ecosystems and marine life. Red tides and algae blooms are dangerous and are caused by 

this. 

Comment ID 1065.001.002 

11/19/2010 02:48 PM EST 2-1529
 
Chapter 2 - Comment Documents Background 

Author Name: Meyers Ms. 

Organization: 

In Cape Coral my understanding is even those who don't live on water, what we do on our property goes off through the 

storm management water directly into the canals. There isn't a separate system that was established when Cape Coral 

was constructed. 

I found to my shock since I've been -- I've been shocked to find out rather since 2000, that I've lived in Cape Coral, that 

there seems to be a fair amount of apathy amongst my neighbors who live on water, understanding the impact of their 

use of chemicals and fertilizer on their properties. I see fertilizer being spread all along the water's edge with it 

spreading into the water. I see commercial fertilizer companies hired by neighbors who are spraying fertilizers on windy 

days, that's going into the water. 

I talk to them, and try explain to them the impact that this might have on the water and our future. I think one big 

problem for Cape Coral is, other than a few isolated incidents of green-blue algae bloom in the summer, which then 

clears up. We have red tide, but that was a couple of years ago. It seems to then disappear. Water pollution seems to 

be an invisible toxic trash that people -- you just can't see it. If you can't see it, people don't think it's there, and they 

don't seem to see the connection between their use of nutrients on the land and it running off into the water, and then 

the development of these algae blooms. 

Comment ID 1066.001.002 

Author Name: Grigsby W. 

Organization: 

We're doing everything we can, as right as science allows us to do it today, the same way that our fathers and 

grandfathers did it in the past. They followed the best recommendations, the best science we had at the time. Now, 

granted, some of it was wrong, but, granted, we've learned a lot of things over time. But how is it that the landowner is 

supposed to be responsible for cleaning that property up, if there is an issue, which most of them there aren't -- I don't 

know -- I can honestly tell you, and you know I've invited you to come that visit ranches with us. I can honestly tell you I 

do not know of a ranch in this state that is doing anything wrong intentionally. Okay? Some of them may still need some 

education, but there is nobody doing stuff that you think or we hear about going on. 

Agriculture is the most important industry in this country. Without food, we have no national security. And for some 

reason, we just want to throw our food producers to the wolves. So I'm sorry, I just got a little frustrated there. It always 

goes back to the same thing. You have large numbers of people that want to point fingers at small numbers of people, 

and there's the problem, politically and otherwise. All right. 

Comment ID 1066.001.006 

Author Name: Grigsby W. 

11/19/2010 02:48 PM EST 2-1530
 
Chapter 2 - Comment Documents Background 

Organization: 

Do you think our infrastructure has kept up? Do you think the issues might be overgrowth rather than agriculture? 

Nobody wants to be the problem here. Everybody wants to have clean water. But dadgum it, I'm getting tired of being 

pointed at time and time again as the culprit. I love clean water. Hell fire, I've got a place in Ten Thousand Islands, and I 

spend as much time as I can. You know what? I'm going to school skip to this because I'm probably going to lose it. 

We had a greater algae flush this month than I've ever seen in the 20 years I've been going down there. Gee, I wonder 

what it came from? Could it be the nutrients of a natural fish kill from the cold? Never seen the fish dead like they were 

this January, early February. When you went into a bay there would be literally thousands upon thousands of dead 

catfish, mullet, snook, jacks. It didn't matter. Everything died. Bait fish, everything died. It got colder than heck. 

Comment ID 1069.001.001 

Author Name: Price M. 

Organization: 

So I get down there, I see rotting fish. He's very, very upset. We're all upset and, you know, I asked Why, Dad? Why 

does this -- why did something like this happen? And then he educated me about the runoff causes these algae blooms, 

which sucks the oxygen out of the ponds, which essentially kills the fish. So, you know, this -- it ultimately affects -- you 

know, it affects our family, and it affects the people who are buying these fish, and the fishing industry. 

Comment ID 1072.001.007 

Author Name: Holsinger M. 

Organization: Holsinger Horticultural Services 

Now, you know, I don't blame any specific sector for this. I blame us all. I mean, certainly, residentially fertilizers have a 

role to play here, and I don't think the homeowners are putting so much fertilizer down. I think most of it is being put 

down by those properties that are high-end properties near the water and on the water, that are managed by contract. 

And that's where I have seen, in my experience, it being all put down. 

Comment ID 1073.001.004 

Author Name: Jackow D. 

Organization: Concerned Citizens of Bayshore 

The Caloosahatchee River and our creeks and waterways are sick. Pollution from fertilizers, pesticides, herbicides, 

fungicides, and run off is killing our river and creeks and streams. Toxic algae blooms cause massive fish kills and 

respiratory problems in people, and it also physically makes me sick. 

11/19/2010 02:48 PM EST 2-1531
 
Chapter 2 - Comment Documents Background 

Comment ID 1075.001.006 

Author Name: Judah R. 

Organization: Lee County Board of County Commissioners 

And it's for the best interest for the state of Florida, and I would ask of you, as Lee County continues to struggle with 

taking on the sugarcane industry that continues to back-bump into Lake Okeechobee, where we feel that effects of that 

phosphorus and nitrogen being the catalyst for nutrient overloading in our waterways in the fish tide -- or the red tide 

and the fish kills. 

We also are just as concerned and already have lawsuit with the phosphate industry to the north of us because of their 

impact of the Peace River watershed and the phosphorus coming down the Peace River, and also, of course, the drying 

up of the Peace River because of the excessive amount of mining operation that is going on today. What you need to 

keep in mind is the phosphate industry is looking at mining another 150,000 acres over the next 30 years. We're hopeful 

that the Corps of Engineers will pay heed to the EPA and finally pursue a cumulative wide area environmental impact 

assessment, so we can once and for all understand the impacts of phosphorus to the region. 

Comment ID 1078.001.002 

Author Name: Glore L. 

Organization: Collier County Troop 319 

We built our home next to a neighbor who happens to have agriculture status on his land. We were unaware of his 

mango tree farm and what that would mean to us. 

We have a retention pond next to our home that is connected to our neighbor's pond by an aquifer underground. We 

also have a storm runoff canal that runs behind our homes and all our surrounding neighbors. For the almost two years 

it took to build our home to the past year, we have watched three different kinds of turtles in our pond -- red-eared 

sliders, soft shelled turtles, and snapping turtles -- die and disappear from our pond. We used to see the wood stork, 

which is, as you know, unusual for that area, and eagles hanging around our pond, but not anymore. 

Our neighbor sprays his mango trees sometime 50 feet in the air with fertilizers and pesticides. He claims he's within 

the legal standard of what he can use and how much. Our pond is now filled with an algae bloom and nitrates. If one 

neighbor can damage the water this severely, what are so many others doing to the water all around us? 

Comment ID 1080.001.007 

Author Name: Angelucci B. 

Organization: 

11/19/2010 02:48 PM EST 2-1532
 
Chapter 2 - Comment Documents Background 

Florida waters have been under attack for years with destruction of trees, wetlands, out of control housing sprawl, 

unregulated fertilizer use, exacerbating red tide in a majority of our waterways, and runoffs of toxins from impervious 

slime pits and phosphogypsum stacks and waste disposal from phosphate mining, which is also our largest business 

user of water. In 2008 they used 17.7 billions of gallons of water out of our aquifer, and homeowners were under 

restrictions for water use. We have dead zones in our Gulf, fish kills in our estuaries, and loss of some of our vital 

wetland habitat, such as the EPA Level 4 Peace River watershed. 

Comment ID 1083.001.002 

Author Name: Hoffman C. 

Organization: Collier County Farm Bureau 

I just had a few points that I ask you to consider. One is that everyone in the state of Florida is a part of the problem in 

some way. And I hope this is something that, as we move forward, people realize. If you have indoor plumbing, I think 

you're part of the problem, and that's all of us. 

Water quality in the state of Florida is vitally important to everyone, including agriculture, and that's why I'm here today, 

to speak on their part. 

Comment ID 1084.001.004 

Author Name: Brodkin S. 

Organization: Concerned Citizens of Bayshore 

I own and operate a wholesale plant nursery in Lee County, and while I'm not a fertilizer expert, I have considerable 

experience with fertilizer. Fertilizers are often applied at the wrong time and in excessive amounts. I believe all 

commercial fertilizer users must implement smart fertilizer practices, which include retention and controlling runoff, 

testing of soil to determine actual needs of the crops, and applying fertilizers only in the amounts needed by the plant 

and only to the root zone of the plant. I also think it's very important to use slow release fertilizers, so that all of the 

fertilizer doesn't release at once in a heavy rain event. 

I recently looked at lawn fertilizer bags in a big box store and confirmed that lawn fertilizers still contain water-soluble 

urea as the primary nitrogen source. Depending upon the brand, 85 to 96 percent of the nitrogen was in the watersoluble urea form. With one big rain event, most of that nitrogen runs off into ditches and wetland, lakes, creeks, and 

rivers. We know that excess nutrients from all sources cause massive algal blooms, which can deplete the water of 

oxygen and smother aquatic vegetation. Some algae produce toxins which are not just a serious threat for human 

health, but plants and animals have to live, and often die, in it. Is this what we want to leave future generations? I 

believe we have a responsibility to clean it up. 

We should require all fertilizers to be slow release and improve and expand the state's best management practices to 

educate everyone about how to eliminate most of the nutrient runoff. Trees, shrubs, and most lawns don't need 

11/19/2010 02:48 PM EST 2-1533
 
Chapter 2 - Comment Documents Background 

fertilizer, once established. Lawns should be minimal in size, if needed at all. Good cultural practices can reduce or 

eliminate the need for fertilizers and pesticides. Weed prone places in yards are usually caused by high soil pH, at least 

in our area. This usually happens when the subsoil is brought to the surface. Instead of using more and more fertilizers 

and weed killers to attempt to fix the problems, which usually has unsatisfactory results, people can adjust the soil pH. 

Research and education, along with strong standards, are essential for cleaning up the water. 

Comment ID 1089.001.004 

Author Name: Giles G. 

Organization: 

When I look at what's happening with some of our wastewater treatment plants, they're over-capacitated, they are old, 

they need to be brought up to standards that are forced on them. That's the only way we'll come into compliance. So it's 

not just septic systems. When I look at the Riverwood Utilities, and whenever there's a big flood, like a deluge of water, 

it's all dumped right out into the Myakka River. And the stench is unbelievable, and the foam coming down the river -­

never mind many other things that don't need to be described -- those are the type of things that I see. I see many 

package plants like on Coal Island and so on. These are all being used and have been used for 30 years to service the 

condos and so along there. And, I mean, I'm not knocking the growth, but these -- this is the time that we need to really 

get into our sewer systems, get them corrected, and done up. The cost to upgrade, they told me, was prohibitive, but 

how much does it cost the federal department -- the federal government to keep up our national estuary programs? 

Comment ID 1089.001.006 

Author Name: Giles G. 

Organization: 

We have dead zones in the Gulf of Mexico, as everybody is aware. And when the Mulberry fertilizer plant went defunct, 

they allowed millions and millions of gallons dumped into the Roberts Bay and so on and out in the Gulf of Mexico 

because they were afraid of what would happen if it had spilled over with berms themselves. This has to stop. Strip 

mining, billions of gallons stored forever right in the heart of Florida. Do you know that they're ripping out Florida's 

plumbing? We need to get a good idea of what's happening with it. Not only -- that's the storage of water. When 

questioned, Why do you use more water at fertilizer chemical plans during heavy rainfall years compared to average 

years, the answer from Mr. Provenzano, who represents the fertilizer company, said, "We use millions of gallons per 

day to blend with polluted chemical process water that must be discharged when storage ponds get full." And that's a 

quote right out of the Charlotte Sun, July 27th, 2008. 

Comment ID 1091.001.004 

Author Name: Lewis R. 

Organization: Chamber of Commerce of Southwest Florida 

11/19/2010 02:48 PM EST 2-1534
 
Chapter 2 - Comment Documents Background 

It's our concern that the proposed EPA rule could have unintended consequences, and that these consequences could 

cost billions of dollars. We want to make sure that the local efforts to address water quality and nutrient loadings be 

given credit by the EPA rule-making effort. For example, my firm just did a Lee County nutrient study of point and 

nonpoint sources that contribute to nutrient loading in Hendry and Mullet Creeks, and we hope the EPA has had a 

chance to look at this, the findings of that study. The study indicates that nonpoint sources may be a major concern in 

nutrient loading, as compared to point sources, and an important consideration -- this is an important consideration, 

when regulating based on concentration versus loading. 

And there are many similar efforts moving forward in Southwest Florida that have been designed to address the specific 

needs of our local water bodies. 

Comment ID 1092.001.003 

Author Name: Kaplan A. 

Organization: Sarasota Countywide Council of Neighborhood Associations 

The water used to be clear, and now it's very brown, murky, and stagnant. I'm told by longer-time residents that the 

canals used to be clear and blue with sandy white bottoms before all the overdevelopment and the resulting runoff of 

fertilizer, yard, waste and other contaminants. 

Our canals lead to Sarasota Bay, which is about one degree away from being declared an impaired waterway. The 

canals, creeks, and other streams that empty into the bay are a big source of nutrient contamination. The fishing all 

over the waterways is lousy, and if you catch something, most people won't eat it for fear of pollution. Every day Siesta 

Key's water treatment plant deposits over 1 million gallons of treated sewage into our canal system, just a few hundred 

yards from my home, which is a short distance from the bay. 

Comment ID 1093.001.002 

Author Name: Roberts B. 

Organization: 

I have seen the rivers, lakes, and the bay deteriorate in that time. I live very near Red Bug Slough, which is part of the 

Phillippi Creek watershed. It is an urban park, which means many neighborhoods around it, and I think, aside from my 

lawn, everybody has beautiful manicured lawns and, of course, this comes from wonderful fertilizers. 

When I first moved in, the slough was clear and beautiful, and now it is clogged with water lettuce and invasive lily and 

other yucky stuff. This has all negatively affected our environment, from the birds, the fish, and the frogs, and eventually 

Sarasota Bay. The slough, and all the other rivers and lakes on the West Coast, feed into the Gulf of Mexico, and in our 

area, Sarasota Bay. And has been mentioned before, the increase in red tide has been amazing, since I've first moved 

here. I hardly knew what it was, and now we have alerts all the time. 

11/19/2010 02:48 PM EST 2-1535
 
Chapter 2 - Comment Documents Background 

Comment ID 1094.001.002 

Author Name: Adams C. 

Organization: 

Today and for many years now, excessive fertilizer use, human and animal waste, and ineffectively treated municipal 

wastewater is feeding a recurrent green monster statewide. Algae blooms are creeping into areas where they've never 

been, namely our inland fresh waters. These blooms not only occur with increasing frequency, but persist for months 

and month. And even when the blooms aren't occurring, constant nuisance algae growth has changed and continues to 

change the natural characteristics of these waters that draw people to our beautiful state. It's time to halt this 

devastation. 

Comment ID 1096.001.002 

Author Name: Lewis S. 

Organization: 

I've watched the cattle ranchers get bigger. They do have -- excuse my expression -- cow shit that they can use to 

fertilize their grass, so, okay, that works for me. If they would recycle their cow manure or spread it and then cut their 

sod, they might find that they might be a little more cost effective. 

As far as the water purification, again, red tide was not something I remember growing up. It was never here. It didn't 

happen -- I can vaguely remember showing up in the early '80s. So this is something that's new as our population of the 

state increases, and I'm not liking it, so okay. 

Comment ID 1096.001.004 

Author Name: Lewis S. 

Organization: 

I also want to say that I am an avid orchid grower, and I have listened to several renowned orchid growers in several of 

the programs I've been to, and I'm surprised to hear that they are actually saying lower phosphorus and lower nitrogen 

fertilizers on their orchids. So it is actually showing up in the agriculture trade, specifically the orchids. 

11/19/2010 02:48 PM EST 2-1536
 
Chapter 2 - Comment Documents Background 

Comment ID 1101.001.009 

Author Name: Williamson M. 

Organization: 

Gone are the days when producers placed an entire year's nutrient supply to the ground prior to planting. Now growers 

deliver nutrients directly to the roots on the plants as needed and in quantities that plants can utilize. Growers have 

absolutely no desire to put out more fertilizer than what is necessary, that's just throwing money away, and it's 

ridiculous for anybody to think that we would even do that. 

Comment ID 1103.001.004 

Author Name: Alexander J. 

Organization: Alico, Inc. 

On the second point, those of us who work in agriculture in South Florida have made tremendous progress in reducing 

nutrients, both nitrogen and phosphorus, being discharged from our properties over the past 15 years. We've gone from 

being accused of being the problem, to becoming a major part of the solution. We invite your inspection of our 

properties and facilities that, in cooperation with DEP and the South Florida Water Management District, are making 

significant strides in the reduction of nutrients. We have made process. We are making progress. We understand the 

problem, and we're committed to do even more, but we request you let the DEP continue its work to establish numeric 

nutrient criteria based on science and local knowledge, in accordance with the Clean Water Act. 

Comment ID 1128.001.005 

Author Name: Blancher II E. 

Organization: Sustainable Ecosystem Restoration LLC on behalf of CF Industries 

We take exception at the U.S. E.P.A.'s watered down and simplistic view of nutrification science, applying ideas and 

concepts that are decades old. For example, during the previous public hearing and recent press announcements in the 

background information of the -- to the E.P.A.'s proposed rule, they presented several points about harmful algal 

blooms, and particularly with red tide events, and intimated that all of these blooms are the direct result of nutrient 

loading from inland waters. 

Red tide events, according to the imminent Florida researchers who work on this issue, are mainly caused by offshore 

and atmospheric events which stimulate the growth of opportunistic red tide species K. brevis. 

We have prepared written comments addressing these issues with publications and recent presentations documenting 

the current understanding of the scientific community. 

11/19/2010 02:48 PM EST 2-1537
 
Chapter 2 - Comment Documents Background 

Comment ID 1132.001.001 

Author Name: Commenter Anonymous 

Organization: 

Most of us who are living with residential septic systems did not choose them. Either public utilities were not available 

during constructiomn or the expansion of public utilities passed us by. Either way, that does not mean we are (1) 

polluting the bodies of water or (2) unsympathetic to environmental causes and realities. The problem with this pressure 

to replace septic systems allows only one type of replacement. The only choice selected by any government agency is 

the PBTS. Rather than allow the legislated 3 phases of study to be completed, the EPA is trying to force a single 

solution to an , as yet, unsourced problem. Even if residential septic systems ARE the primary cause, why are there no 

passive alternatives being considered? What about the ongoing study at UCF of black & gold? Please use some 

common sense in resolving this issue. 

Comment ID 1136.001.004 

Author Name: Underhill T. 

Organization: 

One of my key concerns is that of unintended consequences. We all want to see clean water -- cleaner water. And I'm 

concerned how we get there and the process that we -- we use to prepare for the future. 

As I said, the population is -- is definitely going to grow. And -- and if we could stop that, then I don't even know if that's 

a desirable thing. If we could roll back to a century population, then many of the people in this room wouldn't be here, 

but we wouldn't have the higher standard of living that we have in Florida. 

So what are the answers in dealing with all of the people that are going to continue to flood into Florida, and hopefully 

being able to keep agriculture as a viable part of that community, and the character of agriculture as it stands with many 

family farmers that continue to work in it. 

Comment ID 1138.001.004 

Author Name: Waldo E. 

Organization: 

I'm not going to ask about whether the SPARROW is the appropriate model to cover the entire state rather than getting 

site specific. I'm not going to talk about sufficient -- is there sufficient data to accurately point to farmers or to fertilizer as 

the culprit, is the average farmer out there, is he the bad guy, is the average homeowner the bad guy, is the fertilizer 

company the bad guy, are there other parts of it, we're not going to talk about that. 

11/19/2010 02:48 PM EST 2-1538
 
Chapter 2 - Comment Documents Background 

I'm not even going to ask the -- the really big question is can we actually feed our population if we discontinue the use of 

fertilizer and we get rid of all the farmers. We won't -- we won't ask that question. 

Comment ID 1141.001.002 

Author Name: Coe J. 

Organization: 

This area has been a pollutant that has been identified in 1992 by the Florida Department of Environmental Protection 

where they released a cease and desist order to all mobile operations while they were reviewed and produced the 

B.M.P.s for mobile operations to gain compliance with the Clean Water Act. 

Comment ID 1141.001.004 

Author Name: Coe J. 

Organization: 

There are 32 incidences of discharges going straight into stormwaters or into drains that lead to the Hillsborough 

County River that eventually flow into the Gulf of Mexico. It was ironic to me that in October of 2008, we had nine 

beaches closed for pollution. 

Comment ID 1143.001.003 

Author Name: Bruderly D. 

Organization: 

The scientific basis of nutrient pollution from non-point sources is unequivocal; Florida surface waters are poorly 

buffered and easily overloaded with pollutant loaded rainfall runoff, wastewater and septic tank leachate. 

Comment ID 1162.001.006 

Author Name: Arvanitas P. 

Organization: 

One is reservoirs, second of all is permitting in Florida, and the third thing is the veracity of STORET, your E.P.A. 

database, the report card for the T.M.D.L.s, the pollution that the D.E.P. does. Now, the first e-mail, you have in front 

of you, August 3rd, 2005, by Richard Harvey. I did check, he's still working at the E.P.A. Imagine my surprise when I 

discovered E.P.A. Harvey hastily e-mailed the D.E.P. in 2005, Castile and Sole, all the way up the chain of command 

screaming about reservoirs creating algae. Well, we know from St. Johns all the way down to Stuart and St. Lucie area 

11/19/2010 02:48 PM EST 2-1539
 
Chapter 2 - Comment Documents Background 

waters, algae is a symptom of serious health and impairment of a water body. So numerous lawsuits made their way 

to the D.E.P., especially in 2006. And, of course, our past governor, D.E.P. director, and Southwest Florida Water 

Management Carol Wiley, their response was to announce yet another reservoir building. Well this E.P.A.'s document 

shows there were internal documents in E.P.A. they shared with the D.E.P. that reservoirs harbor and create impaired 

water. We are still buying and building them, though, so how is it that Carol Wiley, Michael Sole, even five years later, 

they didn't share this information? Our Tampa Bay area has a reservoir, South Florida has a mining company pit. Just 

last week, Carol Wiley announced that the water is brackish in her mining pit, it can't be used for drinking. 

Comment ID 1163.001.006 

Author Name: Carroll R. 

Organization: Carroll Brothers Nursery 

According to this, I will have to clean everybody else's water because it drains down to my property. Which I don't think 

is fair, because it comes from a trailer park, which is draining off from parked cars, dripping oil, gasoline, and it makes 

me responsible. 

Comment ID 1169.001.004 

Author Name: Hendry J. 

Organization: People for Protecting the Peace River 

Due to pollute -- due to the polluted conditions along the Peace River today that are largely attributable to the 

phosphate mines as well as some other industries that border on the river, the fishing is a mere ghost of what it used to 

be, and wildlife sightings are not as plentiful as they once were. 

Comment ID 1178.001.005 

Author Name: Ruff R. 

Organization: 

The reefs are now just beginning to feel the impacts of nutrients which have been carried in the groundwater which 

originates in the Everglades agriculture area. It's about, I understand, a 50 or 60-year trip underground. So even if all 

application halted in EAA today, legacy nutrients would haunt the reefs well into the next century, as well as the well 

water in between. 

Comment ID 1189.001.007 

Author Name: Hushon J. 

11/19/2010 02:48 PM EST 2-1540
 
Chapter 2 - Comment Documents Background 

Organization: 

I have studied pesticide levels in the Caloosahatchee River sediments, as obtained by South Florida Water 

Management District as part of their required monitoring, and all the detected pesticides are terrestrial herbicides. 

Interesting, they're never tested on algae, I might point out, but collectively I believe they're adversely affecting grasses 

on the river bottoms, which appear stunted. 

Comment ID 1189.001.008 

Author Name: Hushon J. 

Organization: 

I've also looked into the correlation between pesticide detection levels and rainfall, and they're closely parallel, not a 

surprise. The late rainy season is the peak. It's also the peak nutrient runoff, I would imagine, for the same reason. It's 

not an unexpected result again. The highest correlation was found using rainfall in the two weeks preceding any 

sampling of it. 

Comment ID 1189.001.012 

Author Name: Hushon J. 

Organization: 

Finally, I would like to comment as a toxicologist on the harmful algal blooms. Going back to the Caloosahatchee, 

they've experienced harmful blooms of green algae, such as Anabaena in 2000, Microcystis in 2005, which is toxic. 

These are directly caused by increases in nutrients. You can watch that -- you can watch it on the aerials, you can see it 

on the maps. You know where the outfalls are, and this is, in fact, where you see it. 

Comment ID 1189.001.013 

Author Name: Hushon J. 

Organization: 

Tourism -- oh, another interesting point. In 2008 we had a very dry year here. We did not happen to have red tide 

problems that year. So I just want you to know that when you have a dry year, you don't get the nutrient runoff, and you 

don't have the problem. Thank you. 

Comment ID 1190.001.006 

Author Name: Adams K. 

11/19/2010 02:48 PM EST 2-1541
 
Chapter 2 - Comment Documents Background 

Organization: 

So now the story of the springs is, how it became so polluted over these recent years. The spring is just one of many 

special places in the state where over the years our family has watched the landscape change. It's for the worst, due to 

cattail infestation or other such signs of basin system unnaturally manipulated or too many nutrients and pollutants 

being released into them. 

Comment ID 1192.001.003 

Author Name: Neill G. 

Organization: Gulf Coast Lakes & Wetlands 

However, in accompanying this warmer weather are also the numerous seasonal algae blooms that we often see. And 

as stewards of the environment, our company often tries to practically educate our customers on these blooms and the 

underlying factors that come -- that cause them. 

Unfortunately -- unfortunately, the term "seasonal" is a misnomer, under more natural, non-anthropogenically influenced 

conditions, this algae would be absent. 

Over the past month, I have documented blooms of Lyngbya, Microcystis, Ephemeroptera and Spirogyra and 

inundating about 80 to 90 percent of our jurisdiction. 

And personally, I'm kind of tired of dealing with it, even more tired of using the chemicals, E.P.A. approved, of course, 

that we're forced to implement to combat these -- these blooms. 

If -- if we were to solve the underlying problems in the first place, we wouldn't have to use the chemicals. Theoretically, 

that would put us out of business, but that's a chance I'm willing to take. 

Comment ID 1196.001.007 

Author Name: Ryan N. 

Organization: 

The lake receives excess nutrients from a variety of sources, including urban runoff and the water treatment plant. The 

result, excess growth of exotic vegetation controlled by the application of chemical herbicides, which adds even more 

nutrients to the system. By 1996, 8 million cubic yards of decomposing organic debris, up to 8 feet thick in some 

places, covered the bottom of the lake. Algae blooms and fish kills were common. 

Comment ID 1198.001.006 

11/19/2010 02:48 PM EST 2-1542
 
Chapter 2 - Comment Documents Background 

Author Name: Worley K. 

Organization: 

We are seeing the signs of water quality decline in some areas, whether it's a visible sign like an algal bloom or a fish 

kill, and there is a lot of times we don't see it, but science will. 

Science will see increasing turbidity levels long term, lower fish catches and increased nutrient levels, which often 

change slowly over time, and they have less of a visible impact. 

These and other indicators are like a system of -- symptoms of a disease. You don't wait until you have a full-grown 

cancer to treat it. You catch it early and you treat it so that you have a greater probability of survival. 

Similarly, with water quality, if we listen to the environment and start alleviating symptoms of water quality decline, we 

will be much better off than dealing with a full-blown problem, which we may not be able to fix, will take longer to fix, and 

will cost us all much more. 

Comment ID 1203.001.004 

Author Name: Crooks A. 

Organization: 

But our rivers are also in grave trouble. I have kayaked on the Orange River, a tributary of the Caloosahatchee River, 

spotting manatees and bald eagles. I have boated through Pine Island Sound at the mouth of the river. 

Everyone who has been joining the Caloosahatchee River over the years has told me how disgusted they are with how 

the river has degraded. They speak to the loss of clarity, excessive algae grown, and the fear of human health effects 

from swimming in it. 

The river is impaired from nutrients, amongst other harmful things. Not only is the river used in some parts for drinking 

water, but is also relied upon by the whole community as a source of recreation and utilized by wildlife, including 

imperiled species. 

Comment ID 1207.001.003 

Author Name: Coutant S. 

Organization: 

The Indian River Lagoon when I was young was much cleaner and attracting to -- among its waters, along any bank 

you could find access to swimming. Access now is clogged with slime and algae that builds up everywhere from nutrient 

buildup, not only from point source locations but from overall long runoff and non-point resident locations, and due to 

11/19/2010 02:48 PM EST 2-1543
 
Chapter 2 - Comment Documents Background 

the residents and growing development in the area. 

These buildups are not only unattractive to visitors but also smells, affecting the residents, not only residents, but 

fishermen and visitors, tourists, causing harm to our local economy and losing valuable dollars. 

Comment ID 1224.001.007 

Author Name: Levy K. 

Organization: Pinellas County Department of Environmental Management, Watershed Management Division 

There is a disconnect between the Clean Water Act and the Clean Air Act. Air sources are a significant source of 

nutrients to our watersheds and our waterways, and that disconnect is not reflected in permitting today. Thanks. 

Comment ID 1226.001.002 

Author Name: Muench G. 

Organization: Gus's Crabby Adventures 

Nutrients can be a friend or a foe to an estuary, and that depends on who is talking. Biologists and myself as a 

fisherman can explain nutrients as part of the food chain in an estuary. The problem with nutrients is the bad stuff, the 

stuff that is not natural you add, such as pesticides and fertilizers, plus the stormwater systems that prevent nutrients 

from replenishing the wetlands and -- with natural fertilizers. 

The Mississippi and Gulf of Mexico dead zone are classic examples of nutrients being ejected from the uplands. Plus 

look at the damage we caused Lake Okeechobee with the straightening of the streams. 

We allow our wetlands and uplands to be drained for people and agriculture and then we add pesticides and fertilizers 

to that drainage. 

Little Manatee River, where I fish for blue crabs, is polluted not from urbanization but from agriculture. Since the '80s 

I've been catching plastics, row crop plastics in my traps. And if the plastics wash down the river, so does the pesticides 

and agricultural fertilizers. 

The first thing homeowners do when they move next to a river, stream, or lake, or any wetland is destroy the shoreline 

vegetation, which catches nutrients runoff, and then they complain what happened to the wildlife. 

We are wrong in allowing bulkheads. Every waterfront should be vegetated littoral zones. We must do a better job of 

some of the protection of lakes and rivers not by saying how bad nutrients are but explaining the benefits and methods 

of keeping nutrients on the uplands. 

We cannot expect lakes, streams, rivers to survive when we inject nutrients from our agricultural and urban lands and 

11/19/2010 02:48 PM EST 2-1544
 
Chapter 2 - Comment Documents Background 

add pesticides and fertilizers to the drainage. 

Today, the Little Manatee River is colored brown from a freeze that added nutrients consisting of tons of dead fish and 

dead leaves plus winter rains that washed those nutrients down the stream, and I'm happy as a lark as a blue crab 

fisherman. 

Why? Because shrimp and blue crabs are detritus feeders, and those nutrients consisting of dead fish and leaves have 

greatly improved my harvest of blue crabs. Blue crabs today are growing in leaps and bounds from a rich nutrient food 

supply. 

But until we take a giant and I mean giant leap towards retrofitting stormwater systems of both urban and agricultural 

lands to large, not small, wetlands and not boxed overs, plus change education concerning the important benefits of 

nutrients on uplands, Florida's water quality of the lakes and rivers will not, and I repeat, will not get any better. 

I laugh at the fellow who says he is placing box culverts to catch debris and stormwater, because it's what's in the 

liquids, not the solids, that turns the water green. 

Explaining the harmful effects of nutrients in water bodies may stimulate people to protest, but it does not educate and 

stimulate the people to protest for the benefits of nutrients on the uplands and wetlands. Thank you. 

Comment ID 1238.001.002 

Author Name: King H. 

Organization: 

The Piney Point phosphorgisence stack overflow caused enormous algae blooms in an event that should have been 

everted. And the taxpayers are spending millions of dollars to clean up Lake Hancock after the water pollution that has 

occurred there due to poor monitoring of waters for mining and farming has occurred. 

In summary, there are over 130,000 acres or more yet to be mined for phosphate in southwest Florida along the Peace 

and Myakka rivers. I would like to be assured that waters entering my Charlotte Harbor will not cause damage due to 

upstream polluted waters. Thank you. 

Comment ID 1240.001.001 

Author Name: Nurse K. 

Organization: 

Good afternoon or good evening, I should say. I'm Karl Nurse, I'm a council member from St. Petersburg, Florida. I just 

wanted to mention that, you know, if you look at your list of the causes of nutrients, it's urban landscapes, cattle and 

crop fields, air emissions from cars, from power plants, septic tanks, sewage treatment works, and some other 

11/19/2010 02:48 PM EST 2-1545
 
Chapter 2 - Comment Documents Background 

industries. 

Comment ID 1242.001.004 

Author Name: LarsenWalker M. 

Organization: 

Now, as you know, algae overgrowth in Florida has been thoroughly documented, and empirical evidence strongly 

suggests its exacerbated by excess nitrogen from non-pollutant source runoff. 

Comment ID 1245.001.007 

Author Name: Compton P. 

Organization: 

There are ways, and a lot of folks here tonight, some of our friends who are on the other side of this issue or 

somewhere in the middle, we're working together with them, the whole concept of slow release fertilizer is huge. This is 

a way that industry, private enterprise, corporations are coming up with a solution not only for residential fertilizer that 

you've heard so much about, but for agricultural use. Any fertilizer that runs off with the nitrogen and phosphorus 

getting into the waterways is wasted for the farmer, for the homeowner, for the landscaper. And I -- low-impact 

development, impervious surfacing, there are companies who are making this, and we can redevelop our urban areas 

so that the water flows into the ground naturally, even though we drive our cars on it and walk on it in sidewalks. 

Taking phosphorus out of fertilizer. Our state is made out of it. Why do we have to ship coals to New Castle and put 

phosphorus on lawns and fields that already have an entirely adequate level? If you don't care, you'll keep doing it. 

Comment ID 1246.001.002 

Author Name: Adams C. 

Organization: 

And for many years now, excessive fertilizer use, human and animal waste, and ineffectively-treated municipal 

wastewater is feeding a recurrent green monster all across our state. 

Algae blooms are creeping into areas where they have never been; namely, our inland freshwaters, and they are 

incurring with increasing frequency as well as persisting for months at a time. 

Even when these blooms aren't occurring, constant nuisance growth has changed and continues to change the natural 

characteristics of these waters that draw people to our beautiful state. 

11/19/2010 02:48 PM EST 2-1546
 
Chapter 2 - Comment Documents Background 

Comment ID 1246.001.004 

Author Name: Adams C. 

Organization: 

The chronic fertilization that results from this system is fertilizer abuse, and it causes irrevocable damage to our natural 

treasures. 

Agriculture can implement real and effective B.M.P.s, and all you have to do is look at our waters to tell that we are well 

overdue for that. 

Comment ID 1251.001.003 

Author Name: Hendershot J. 

Organization: 

I have a pond in my backyard that's immediately surrounded by 20 houses. The pond watershed consists of about 60 

subdivision lawns. Because of our poor choices about what we put on our lawns in terms of nitrogen and phosphorus 

and how much of it we put on, we get heavy algae concentrations in our pond. Then we kill the algae with chemicals. 

And even when we carefully follow the directions on the package, we end up killing so much algae that the algae dies, it 

absorbs the oxygen as it's decomposing, there is not enough oxygen left in the water, it's mostly depleted. 

And we ended up this last summer with thousands of dead fish of varying sizes and species floating to the shores 

around our little pond. We counted 75 vultures feeding on the dead fish. That was not a pretty sight. 

Comment ID 1251.001.004 

Author Name: Hendershot J. 

Organization: 

The scientific evidence is overwhelming that our human activities are harming our environment, particularly those 

activities that result in nitrogen and phosphorus and other pollutants in our ponds, lakes, rivers, and oceans, affecting 

that environment. 

We have -- as other people have said, we have an increasing frequency, intensity, and duration of algae blooms in the 

various bodies of waters in Florida from my backyard in the suburbs all the way to Anna Maria Island, as was so colored 

in -- colorfully described earlier. I can't beat that description. 

11/19/2010 02:48 PM EST 2-1547
 
Chapter 2 - Comment Documents Background 

Comment ID 1255.001.008 

Author Name: McLean J. 

Organization: City of Tampa 

Finally, the City would also echo the request and statement of Pinellas County for E.P.A. to evaluate the disconnect 

between the Clean Water Act and the Clear Air Act as atmospheric deposition can be a significant source of nutrients to 

water bodies. 

Thank you for your consideration. 

Comment ID 1261-1.001.007 

Author Name: Dinneen J. 

Organization: Volusia County 

Specific Comments: 

General Comment Item II.A: EPA discusses nutrient pollution in general and specifically in Florida. The document 

considers nutrients as pollutants but does not acknowledge that there are numerous natural sources of nutrients and 

that, in some waterbodies, the lack of nutrients is just as much an impairment as the abundance. The state's nutrient 

target is not to cause an imbalance of natural flora and fauna, a target that EPA acknowledges (page 38). This does not 

say the target is achieving the flora and fauna resulting from natural conditions and there are many waterbodies in 

Florida that meet their recreational (fishable) designation with the existing nutrient condition. 

Comment ID 1262.001.006 

Author Name: Redd W. 

Organization: Deseret Farms of Ruskin 

Unlike utilities and industrial runoff, which is easily monitored coming out of a pipe from a -- from a plant or a factory, 

agricultural runoff is primarily the result of rainfall events that occur sporadically and in varying volumes and patterns, 

making it very difficult to monitor and to control these -- these runoffs. 

Fortunately, much of the rainfall occurs during the summer season, when no agricultural inputs are being applied to the 

soil. 

On our properties we have constructed catch ponds and grass filter strips in cooperation with SWFWMD in order to filter 

the suspended nutrients and silt before it leaves the property in the case of a heavy rainfall. 

11/19/2010 02:48 PM EST 2-1548
 
Chapter 2 - Comment Documents Background 

The phosphate mining industry of this part of Florida is positive evidence that nutrients do occur in natural levels in very 

high amounts in Florida soils. A lot of the runoff, a lot of the nutrient load that we're -- we're concerned and talking about 

really is natural and not manmade. 

Comment ID 1267.001.004 

Author Name: Landers K. 

Organization: 

The other thing that bother -- that worries me is the U.S.G.S. has told us that along with sea level rises is going to come 

violent storms, our storms are going to get worse, our facilities are going to be subject to rapid water inundation. 

That means our drinking water facilities and our sewer facilities must be protected against rapid water inundation. And I 

know that we are not prepared for this. And especially here in Tampa Bay, you've got water facilities right down on the 

bay. 

So if we can put through these regulations, if we can build our infrastructure to take care of what's going to be coming at 

us in the future with this rapid water inundation, and I -- and I hope that you are going to put that in your plans, because 

it is not enough just to build a sewer facility anymore, we've got to think about it cannot be too low. 

During the three hurricanes that came through Polk County, the famous hurricanes of 2004, the sewer facilities, one of 

them failed in Mulberry, one overflowed in Winter Haven. And we know that -- that went right into the Peace River, I 

mean. 

Comment ID 1272.001.002 

Author Name: MalwitzJipson M. 

Organization: 

I'm concerned about the degradation of water quality in our state. I'm concerned when the Florida Bay is considered 

dead. I'm concerned when the Florida reefs are following the same path. I then -- I'm sorry. I've seen firsthand the poor 

quality of water in the Everglades in and around Everglade City. I've lived in south Florida where builders have built on 

swampland and poured toxins directly into the waterways such as pesticides, herbicides, and fertilizers. Advanced 

storage and recovery wells and deep well injections in Brevard County and elsewhere in the state would be 

unprecedented disaster. Companies such as Koppers in Gainesville, miners of phosphate and aggregates, and any of 

the tree paper mills who knowingly pollute must be corrected now, and any fines imposed must be utilized to clean up 

and restore. Farmers must be required to get on board with BMAP, Best Management Agricultural Practices, especially 

if the government subsidizes their livelihood in any manner. Groundwater storage and recovery must be treated 

effectively before it's reused. Municipality infrastructures must be updated along with cost effective plans for nitrogen 

reduction. 

11/19/2010 02:48 PM EST 2-1549
 
Chapter 2 - Comment Documents Background 

Comment ID 1282.001.005 

Author Name: Jones H. 

Organization: Duval County Farm Bureau 

These nutrient standards need to be adjusted to recognize the variability of our surface waters and work that's being 

done already in the state. One thing we need to all realize is that ultimately we, all of us, are the problem, and what we 

need to do is work together to reduce our impact on the environment amount, all of us. Thank you. 

Comment ID 1289.001.003 

Author Name: Bagwell K. 

Organization: 

Case in point. In Alachua County there's a large blueberry farmer who over the past 20 years has about a thousand 

acres on three different types of unique soil runoff conditions. While all three locations could be profitably and 

environmentally sustainable if low to medium farming methods were farmed but, like so many farming operations, 

whether they be concentrated dairy operations, GMO crops which encourages excessive chemical uses or nonnative 

blueberry varieties in concentrated use in Florida, where plant breeders at the ever increasing larger financial profit 

pressures develop BMPs that now have to recommend an intensive varied spray program, at times up to a dozen 

sprays in four months, essentially replacing Mother Nature with chemicals, along with more intensive fertilizer inputs to 

get a profitable crop, at the same time requiring overhead sprinkler and frost protection that at times can run three days 

constantly, which obviously significantly causes chemical and fertilizer runoff since blueberries require an acid soil 

which most often is found close to water bodies and have an impermeable clay underlayer, further causing the runoff. 

The blueberry farm previously mentioned, which own four to 500 acres, which occupies little more than 1 percent of the 

drainage area into Lake Newman has been water management district documented to directly contribute to 7 to 10 

percent of the phosphorus runoff into Newman's Lake, a seriously impaired water body, that FWC is currently 

harvesting Gizzard Shad to help the imbalance, they hope. The mere fact that University BMPs are being followed gives 

no assurance of a sustainable water quality. 

Comment ID 1290.001.005 

Author Name: Paradise B. 

Organization: 

And, unfortunately, I've found that the quality of our waters has diminished very significantly since I've lived here. We've 

had algae blooms, as you well know, on the St. Johns River and other waters, and the St. Johns River and other rivers 

have been degraded by fertilizer and sewage and construction runoff and other sources. 

11/19/2010 02:48 PM EST 2-1550
 
Chapter 2 - Comment Documents Background 

Comment ID 1292-1.001.095 

Author Name: Wiegand P. 

Organization: National Council for Air and Stream Improvement, Inc. 

Nutrient-related pollution problems such as low dissolved oxygen, excessive algae or aquatic plant growth, and water 

clarity declines are a leading cause of impairments to US waters, and environmental agencies are very actively 

engaged in designing management programs to address these impairments. Increased nutrient loadings to streams 

brought about by human activity is, in some situations, the primary cause of these water quality impairments and for this 

reason much current agency activity is devoted to development of water quality targets (criteria) for phosphorus and 

nitrogen. The material in this report was developed in response to one such activity: the proposal by EPA of numeric 

nutrient criteria for Florida waters. Understanding and preventing stream impairments related to nuisance algae and 

excessive aquatic plant growth is difficult due to the number of variables that can contribute to this condition and the 

interrelationships between them. A further complexity is the fact that nitrogen and phosphorus (potential causal 

variables themselves) are required components of healthy aquatic systems. Numerous studies have shown that the 

accumulation of algae and other aquatic plants is governed by many stream characteristics, including shade, bottom 

substrate, water depth, water velocity, water clarity, nutrient concentrations, temperature, and others. In cases where 

nutrient concentrations are known to be the limiting factor controlling populations of algae and aquatic plants, it is 

appropriate to manage the load of nutrients in the system to avoid excessive algae and plant populations. In cases 

where other stream factors limit aquatic plant growth, management of nutrients may be less important. 

Comment ID 1301-1.001.013 

Author Name: Hodge R. 

Organization: Southeast Milk Incorporated 

• The proposed rule is arbitrary and capricious because EPA has not demonstrated a correlation, much less a cause 

and effect relationship, between the numeric standard and impairment due to excess nutrients. Setting numeric nutrient 

criteria under those circumstances is inconsistent with EPA guidance. 

• The proposed rule is arbitrary and capricious because it proposes to regulate both total nitrogen and total phosphorus, 

avoiding a determination of limiting nutrients. 

Comment ID 1305.001.007 

Author Name: Palmer D. 

Organization: Emerald Coast Utility Authority 

Florida Fish and Wildlife Service says there's anecdotal evidence of red tide in Florida dating back to the 1500s. It also 

11/19/2010 02:48 PM EST 2-1551
 
Chapter 2 - Comment Documents Background 

says it's always been with us and probably always will be. Let's not spend a bunch of money and not solve the problem. 

Comment ID 1306.001.003 

Author Name: Schwab R. 

Organization: 

See, when BMPs are applied, water quality is protected. See, this is even studied as -- and then even studied it along 

with Florida -- excuse me, the Florida Department of Environmental Protection and they found that even fertilizer impact 

on stream and pond and lake water feed was not affected when Florida silviculture BMPs were in place. 

Comment ID 1306.001.004 

Author Name: Schwab R. 

Organization: 

And, see, the issue that we're not addressing, I believe, with this rule change is urban runoff, urban fertilization. There's 

a lot of people living in Florida that put a lot of fertilizer on their grass that the water -- that the rain comes and washes it 

right down the street and it goes to the nearest lake, river, or stream, and that's not even addressed in these issues. 

We're doing it in the right way in industry. And we're asking that what needs to be changed is how we do it across the 

board in the state of Florida. And I'm asking the EPA to allow more time for Florida's DEP to work with industry and 

work with the public to be able to make this fit and work for us. And I sure appreciate it. Thank you. 

Comment ID 1307.001.004 

Author Name: Godbold J. 

Organization: Florida Farm Bureau 

after I retired as county extension director, a short time with the St. Johns Water Management District with an 

educational program they did with volunteers. It was a watershed action volunteer program. I saw a lot of good come 

from this in working with the farmers and the homeowners. Looking at, you know, the amount of nutrients that's placed 

on an acre of lawns, it was astounding the amount that was put there compared to what a lot of the farmers do. 

Comment ID 1311.001.002 

Author Name: Long A. 

Organization: 

The nutrient problem I'm addressing today is nitrate nitrogen. In the Suwannee watershed, there are few permitted point 

11/19/2010 02:48 PM EST 2-1552
 
Chapter 2 - Comment Documents Background 

sources of nitrogen, but there are numerous, almost uncountable nonpoint sources all over the Suwannee watershed. 

Comment ID 1312.001.004 

Author Name: Waters C. 

Organization: Florida Federation of Garden Clubs 

We watched water quality decline over the years. The fertilizer runoff in central Florida continues to create problems 

with seasonal algae bloom and hydrilla growth that is choking out the fish, if the toxic water doesn't kill them first. 

Comment ID 1312.001.006 

Author Name: Waters C. 

Organization: Florida Federation of Garden Clubs 

Old and leaking septic tanks, unregulated dumping and overzealous landscapers are polluting our waters locally. I can't 

imagine water skiing or fishing in the river behind my home. 

Comment ID 1315.001.002 

Author Name: Nan S. 

Organization: 

I also do a lot of watershed cleanups, and I'm very concerned about the health of our waterways. I have watched them 

diminish rapidly since we've been working, you know, for several years on -- on the water. And it just kind of makes me 

a little concerned that every day I see people fertilizing their yards weekly, and they also are blowing debris into the 

storm drains. And I'm not against -- I'm not against fertilizer. I just think that there needs to be higher standards. There's 

kind of a complacent attitude I've experienced personally with the local -- local city and the Department of 

Environmental Protection in Florida. 

Comment ID 1317.001.009 

Author Name: Moore C. 

Organization: 

And we've got some good people that work in that area. I know a dairy man from Okeechobee, he was -- I went down 

there and looked at the way he did his environmental program. And he told me that the Department of Environmental 

Regulation had him to drill a well that they would monitor to see what the hosphate and the nitrogen was. And the 

phosphate was just out of the limits. Well, it's because they dug the well into phosphate, because phosphate naturally 

11/19/2010 02:48 PM EST 2-1553
 
Chapter 2 - Comment Documents Background 

occurs down there. 

Comment ID 1317.001.011 

Author Name: Moore C. 

Organization: 

I wonder if the algae bloom, some of it occurs naturally. Even if people didn't exist in this state, would it occur naturally? 

Do you take that into consideration? 

Comment ID 1318.001.003 

Author Name: Larson T. 

Organization: 

I'm very concerned about the impacts that lack of attention to the impacts of nutrient pollution are having on our 

waterways. Florida is not what it should be. It is not what it once was. Many of these waterways have been destroyed or 

severely impaired by sewage and fertilizer, unmanaged growth, untoward business practices that are imposing costs on 

others in order for the private profit of the business. 

I believe in healthy businesses. I believe in fair practices. I don't believe that someone else should impose on me and 

impair my experience costs that are a result of lack of attention to proper practices. 

Comment ID 1325.001.005 

Author Name: Ferreira J. 

Organization: 

One the things that I wanted to talk about was locally in my local community, there was a fairly upscale housing 

development and it backs up to the YMCA, and there's a retention pond that lies behind the YMCA. And the local 

community was all up in arms because this retention pond suddenly turned green and was filled with slime. And the 

homeowner's association was accusing the YMCA of dumping swimming pool water in the retention pond and causing 

the problems. And through further water testing, it shows up that it's nonpoint solution and it's actually the homeowner's 

runoff that's causing this. 

Comment ID 1326.001.002 

Author Name: Gramford N. 

11/19/2010 02:48 PM EST 2-1554
 
Chapter 2 - Comment Documents Background 

Organization: 

When I first got to Fernandina Beach, I went kayaking on a group tour. And they said to watch out for the oyster beds
 

because they were all dead. This used to be an area where people came to buy oysters because they were so tasty,
 

and now because of the water runoff, it appears it is just this massive place where you have to watch out for the bottom
 

of your boat. And I was thinking of that just as I was listening, too. And she is really impressive. Watching her take this
 

down is just phenomenal.
 

MR. KING: Thank you for that. You will be the last speaker, but thank you for for saying that.
 

Comment ID 1326.001.006 

Author Name: Gramford N. 

Organization: 

Right now the fertilizer industry is working in Tallahassee right now trying to strip the local governments of their ability to 

set new rules and regulations to do lawn fertilizer and saying how much you can use locally. In Pinellas and Orange 

County and others they have enacted restrictions on fertilizer and the use of formulations for certain times of the years 

to reduce the runoff or excess nitrogen and for phosphorus into the rivers, lakes and estuaries. But together with the 

Department of Agriculture and Consumer Services, the fertilizer industry and the lawn industry has launched an attempt 

in this year's session of the Florida legislature to reduce or remove these local attempts at controlling it. And since I'm 

one of the big users of fertilizer in trying to keep my lawn that doesn't ever turn green working, I'm one of the nuisances. 

Sorry. We need to have standards that will stop the green slime and the water runoffs that are killing the fish and the 

wildlife that is actually occurring and that we can see. And I would really appreciate it if you were able to do that for us. 

Thank you. 

Comment ID 1336.001.004 

Author Name: Crenshaw A. 

Organization: United States House of Representatives 

Here are the facts: Nutrient pollution can damage drinking water sources; increase exposure to harmful algal blooms 

that can cause damage to the nervous system or even death; form byproducts in drinking water from disinfection 

chemicals, some of which have been linked with serious human illness like bladder cancer. Phosphorus and nitrogen 

pollution come from stormwater runoff, municipal wastewater treatment, fertilization of crops, and livestock manure. 

Nitrogen also forms from the burning of fossil fuels like gasoline. 

Comment ID 1337.001.003 

Author Name: Traylor D. 

Organization: 

11/19/2010 02:48 PM EST 2-1555
 
Chapter 2 - Comment Documents Background 

So here we are 27 years later talking about the amount of nutrient load -- and granted, it's not all coming from 

landscapes, but one of the common focuses in most of the articles written about the issue is about fertilizer, urban 

landscapes and leach -- or runoff. Well, I don't recall what year, but there was another government regulation. This one 

was on a state level by the water management districts, requiring retention ponds, because we needed retention ponds 

to go with the developments to catch the storm water runoff, to catch the nutrient and slow down discharges into the 

tributaries and the river. 

Comment ID 1337.001.004 

Author Name: Traylor D. 

Organization: 

Well, there were probably some good intentioned people. They had an objective; this is what we need to do. But they 

didn't go beyond, I don't believe, and looked at consequences, the unintended consequences of digging retention ponds 

eight, ten feet deep, taking that soil -- you know, the intent, you would think, would be it could go somewhere else. And 

it can. It can be transported off site or a site can be raised. 

The problem with that is, there's two factors. Soil has pH, and pH determines nutrient availability. The second is, there's 

microbial activity that takes place within the roots on the existing trees, existing turf. And when you start getting past 

that root zone, you start -- the -- the environment -- the microbial environment diminishes. So now we're pulling soil 

eight feet out of the ground and using it in the landscape. Now, it doesn't matter that it's devoid of beneficial 

microorganisms. Doesn't matter that the pH is either too acidic, too alkaline. It's dirt. We've got a place for it to go. The 

developer's satisfied. The city's satisfied. The landscaper's satisfied. And now it's time for the lawn care or lawn 

maintenance company to come in and take care of this neutral fill. And there's places here -­

Comment ID 1337.001.005 

Author Name: Traylor D. 

Organization: 

Well, there were -- there was good legislation, good intentions. Today, we are looking at federal legislation dealing with 

the consequences of state legislation and its consequences of local legislation. Now, the people that have made an 

investment need to maintain that investment. And I'm speaking to the lawn -- you know, lawn care. 

I hope that whatever your proposal is, that ten years from now or twenty years from now, that there's not somebody else 

sitting in a hearing trying to address the unintended consequences of what this panel is trying to establish. And I'll let it 

go at that. 

Comment ID 1339.001.001 

11/19/2010 02:48 PM EST 2-1556
 
Chapter 2 - Comment Documents Background 

Author Name: Speed Sr. D. 

Organization: Douglas Speed & Associates 

The first item I gave you is a photograph of a retention pond outflow at a gated community in northeast Florida. This 

gated community has been under a strict fertilizer ordinance for over five years, yet the algae that you see there is 

being pumped into the Intracoastal Waterway on twice a week basis. Now, this community is surrounded -- the pines 

and creeks are surrounded by homes and by a golf course. So I guess the farmers can say it's not my fault, it's their 

fault. MR. KING: And just for the record, this is Mr. Speed? MR. SPEED: I can show you similar pictures of golf 

courses which is surrounding nothing but by golf courses. I can show you similar pictures on farms, surrounding nothing 

but a farm, owned by a single person. So we're all part of the problem. And I have attended meetings at the state level, 

the county level, city level, numerous meetings on the fertilizer ordinance over the past five years. In all of these 

meetings, we hear from different people. 

Comment ID 1340.001.003 

Author Name: Price J. 

Organization: Rayonier 

So let's back up a minute and review the science of silviculture and how those principles are used to grow and harvest 

trees in a manner that is both sustainable from a business standpoint and protective of the environment. Over the past 

30 years there has been a tremendous amount of research devoted to forest management practices, including 

fertilization. We now know that soil type and conditions, tree age and species, the presence of disease or pests and the 

number of trees per acre are critical factors in determining whether a fertilizer treatment will enhance tree growth 

sufficient to justify the cost. Rayonier has translated this knowledge into a rigorous set of criteria to limit fertilization to 

only those tree stands that would measurably benefit from the application. Not all stands are fertilized and, in fact, we 

need (inaudible). When fertilization does occur, it is limited to once a few years after planting or midway through a 20­

year growth cycle. Since we are constantly planting, growing and harvesting tree stands, our forests are composed of 

multiple age groups and species within a given watershed. For example, in a thousand acre tract, you might have a few 

scattered stands that were fertilized once, maybe twice over 20 plus years. The rest would have received no fertilizer at 

all. These practices automatically limit the potential for nutrient contributions to waterways. 

Comment ID 1341.001.003 

Author Name: Ambrose L. 

Organization: Genesis Group 

And the second point I want to quick get across is the importance of being able to encourage sustainable stormwater 

retrofit for already existing communities. We've got great guidelines for new developments, but then what about the 

existing developments that continue to impair our waterways. There needs to be good sound regulations that 

encourage, you know, good science and good research and development practices that can retrofit already existing 

11/19/2010 02:48 PM EST 2-1557
 
Chapter 2 - Comment Documents Background 

communities and not bring in a whole bunch of construction and structural BMPs, that we've sought simple BMPs like 

building healthy soil and taking care of the lake in a responsible way, not putting chemical amendments into it. Thank 

you. 

Comment ID 1350-1.001.007 

Author Name: Schwartz J. 

Organization: American Forest & Paper Association 

V. The Pulp and Paper Industry's Effluents Generally are Compatible with Receiving Water Ecosystems 

In the mid- 1990s, NCASI initiated multi-year studies to assess the effects of pulp mill effluent discharges on receiving 

water aquatic communities. This study, conducted in receiving waters in multiple ecoregions, system types (warm- or 

coldwater), instream effluent concentration gradients, and mill process types (bleached vs. unbleached kraft) seeks to 

provide the industry with short-term and long-term information on potential effluent-related patterns. Samples are taken 

from upstream and downstream sites, including nutrients samples. In addition to habitat assessments and effluent 

chemical and biological analyses, samples are collected for fish, macroinvertebrates, and periphyton. Population level 

parameters are assessed. 

Results show that at all sites there are either (a) no differences at the population level of samples collected upstream or 

downstream from the mill discharges, or (b) where there are differences, these are due to stressors other than those 

associated with the effluent discharges (e.g., habitat differences). The results of the study do show the general overall 

compatibility of modern pulp mill effluents with healthy aquatic ecosystems in receiving waters. Recently, eight 

manuscripts describing the first eight years of data have been published in a peer reviewed journal.[25]

 [25] Integrated Environmental Assessment and Management, Vol. 5, No. 2, pp.186-290. 

Comment ID 1360-1.001.008 

Author Name: Cook R. 

Organization: Daytona Beach Utilities Department 

- Another unintended consequence for the State is the potential for utilities abandonment thereby having more people 

on septic tanks particularly in rural areas where the cost is already escalated. Expansion of septic tanks in the State is 

of a concern due to space and regulation. These tanks could potentially be located in watershed areas, creating the 

possibility for contamination of potable water. The septic tanks could also themselves contribute to run-off and as they 

are untreated be a major contributor to the nutrient levels in the very water-bodies addressed by this rule. 

Comment ID 1364-1.001.004 

Author Name: Hall T. 

11/19/2010 02:48 PM EST 2-1558
 
Chapter 2 - Comment Documents Background 

Organization: Lee County Board of County Commissioners Southwest Florida 

SPECIFIC COMMENTS FROM LEE COUNTY 

III. The Need for Numeric Nutrient Standards 

To begin with, Lee County wishes to express its full support for implementation of numeric nutrient standards and the 

need for greater attention to degradation of water quality in our estuary ecosystems. The water quality problems, 

especially blue-green algal blooms, experienced by the Caloosahatchee River and its tributaries are well documented. It 

is not a matter of "if' we need numeric nutrient standards, but "how" will they be implemented. 

Phosphorous and nitrogen pollution come from stormwater runoff, municipal wastewater treatment, and fertilizer runoff. 

It is understood that nutrients can damage drinking water sources; degrade downstream lakes, reservoirs, creeks, and 

estuaries. High levels of nitrogen and phosphorus in waters can produce harmful algal blooms. As a result, these 

blooms can produce "dead zones" in water bodies where dissolved oxygen levels are so low that most aquatic life 

cannot survive. However, nutrients, at natural background levels, are non-toxic and do not, directly, pose a threat to the 

public health, safety and welfare. The goal of healthier lakes, rivers, streams, estuaries and coastal water in Florida is 

one we all share. 

Comment ID 1368-1.001.011 

Author Name: Waters D. 

Organization: City of Miami Department of Public Works 

Proposed Rule Text Line Item Comments The proposed rule identifies five (5) major sources of nutrient enrichment to 

Florida's waters on pg. 20-21: "1) sources associated with urban land use and development 2) municipal and industrial 

waste water discharge, 3) row crop agriculture, 4) animal husbandry, and 5) atmospheric deposition that may be 

increased by production of nitrogen oxides in electric power generation and internal combustion engines. These 

sources contribute significant loadings of nitrogen and phosphorus to surface waters causing major impacts to aquatic 

ecosystems and significant imbalances in the natural populations of flora and fauna." If the state would limit the amount 

of nutrients that fertilizers sold in the state of Florida are allowed to contain, this would be a much more effective way of 

controlling nutrient pollution than for municipalities to try to remove nutrients from stormwater. The state also needs to 

mandate that all soaps and detergents sold in Florida be phosphate free. Similarly, the state could enact more stringent 

requirements for the treatment of animal waste. These controls and other source control methods should form the first 

phase of the implementation of any nutrient TMDL. Treatment methods such as retrofits should only be considered 

during subsequent phases of the TMDL as necessary. 

Comment ID 1370-1.001.016 

Author Name: Hanson R. 

Organization: Orange County Utilities 

11/19/2010 02:48 PM EST 2-1559
 
Chapter 2 - Comment Documents Background 

4. Nutrients alone do not cause impairments. The biological responses to nutrients result in impairment of the 

designated uses of waterbodies. Thus, numerical nutrient limits do not provide a direct link between water quality 

standards and impairments of designated uses of waterbodies. 

Comment ID 1370-1.001.055 

Author Name: Hanson R. 

Organization: Orange County Utilities 

21. The BMAP process of identifying sources of nutrient addition to waterbodies and modifying those sources to reduce 

nutrient loadings should be continued by FDEP. 

Comment ID 1416-1.001.022 

Author Name: Alves J. 

Organization: Florida Electric Power Coordinating Group, Inc. 

A significant flaw in EPA's approach is in failing to recognize that 

[n]utrients are unlike any other "pollutant" regulated by the federal Clean Water Act (CWA). Most water quality criteria 

are based on a toxicity threshold, evidenced by a dose-response relationship, where higher concentrations can be 

demonstrated to be harmful, and acceptable concentrations can be established at a level below which adverse 

responses are elicited (usually in laboratory toxicity tests). In contrast, nutrients are not only present naturally in aquatic 

systems, they are absolutely necessary for the proper functioning of biological communities, and are sometimes 

moderated in their expression by many natural factors. Therefore, the development of protective nutrient criteria is 

immensely more complicated than that for toxic substances.[33] 

[33] FDEP, State of Florida Numeric Nutrient Criteria Development Plan 1 (March 2(09) (emphasis added). 

Comment ID 1431-1.001.036 

Author Name: Levy K. 

Organization: Pinellas County Department of Environmental Management, Watershed Management Division 

Clean Water Act / Clean Air Act Disconnect 

EPA should consider evaluating the processes that are roadblocks to water quality restoration. There is no reason why 

narrative criteria, as allowed by the Clean Water Act, should not successfully lead to improved water quality if they are 

fully implemented. One such consideration is to examine the disconnect between the Clean Water Act and the Clean 

Air Act. Atmospheric deposition can be a significant source of nitrogen to our watersheds and waterways yet are not 

11/19/2010 02:48 PM EST 2-1560
 
Chapter 2 - Comment Documents Background 

regulated as a nitrogen source. 

Original comment letter contains additional information in Table 1.Cost Estimates for Pinellas County Watersheds likely 

to require Site Specific from Pinellas County watersheds. See original comment letter. 

Original comment letter contains additional information in Table 2. Annual Cost Estimates for Nitrogen and Phosphorus 

Removal in a selection of Pinellas County Watersheds from Pinellas County. See original comment letter. 

Comment ID 1465-1.001.011 

Author Name: Ornberg K. 

Organization: Seminole County Public Works 

6. Consideration of extreme weather condition impacts to water quality conditions 

Finally, the impacts to water quality from extreme weather conditions, such as hurricanes and droughts must be 

considered. Such events can have substantial impacts on water quality and the evaluation of water quality data should 

consider extreme hydrological conditions as not being reflective of anthropogenic impacts and excluded from the data 

evaluation. 

Comment ID 1615-1.001.009 

Author Name: Dinneen J. 

Organization: Volusia County Public Works 

Specific Comments: 

General Comment Item II A: EPA discusses nutrient pollution in general and specifically in Florida. The document 

considers nutrients as pollutants but does not acknowledge that there are numerous natural sources of nutrients and 

that, in some waterbodies, the lack of nutrients is just as much an impairment as the abundance. The state's nutrient 

target is not to cause an imbalance of natural flora and fauna, a target that EPA acknowledges (page 38). This does not 

say the target is achieving the flora and fauna resulting from natural conditions and there are many waterbodies in 

Florida that meet their recreational (fishable) designation with the existing nutrient condition. 

Comment ID 1617-1.001.007 

Author Name: Ammerman D. 

Organization: Florida Water Environment Association and WateReuse Florida 

We will leave detailed discussions on the technical merits of EPA's current approach to others but will note there are 

11/19/2010 02:48 PM EST 2-1561
 
Chapter 2 - Comment Documents Background 

numerous examples, including many in central Florida, where natural background nutrient levels prior to anthropogenic 

influences are above nutrient levels that would be imposed by EPA. In many cases the data were collected by the 

USGS and have been accepted by FDEP as an accurate representation of pre-development conditions. It is impossible 

to envision a rational argument to justify expending funds to reduce nutrients under such conditions. It is also dismaying 

to see that the EPA NNC rule as currently written ignores the nutrient management efforts that are ongoing in the State. 

Comment ID 1641-1.001.005 

Author Name: Littrell J. 

Organization: Okaloosa County Water & Sewer System 

Sources of Nutrient Loadings to Surface Waters 

Domestic wastewater treatment plants are required to renew their operating permits every five years; and therefore are 

easily the focus of regulators and external interest groups as a primary source of nutrients. However, there are many 

other substantial sources of nutrients that are not regulated or which will avoid the level of regulation or public scrutiny 

that domestic wastewater treatment facilities receive. This may result in expenditures of enormous amounts of capital to 

reduce nutrient loadings in the effluent from the treatment facilities with the unrealistic expectation of rapid improved 

water quality; only to later realize that the unregulated sources of nutrients in the system have a much greater impact on 

nutrient water quality than the domestic wastewater treatment facilities. 

Comment ID 1645-1.001.004 

Author Name: Griswold R. 

Organization: Destin Water Users 

Section II. Background 

A. Nutrient Pollution 

1. What is Nutrient Pollution? 

EPA states "As noted above, high nitrogen and phosphorus loadings also result in HABs, reduced spawning grounds 

and nursery habitats for aquatic life, and fish kills. Public health concerns related to eutrophication include impaired 

drinking water sources, increased exposure to toxic microbes such as cyanobacteria and possible formation of 

disinfection byproducts in drinking water some of which have been associated with serious human illnesses such as 

bladder cancer." 

This statement although technically correct, fails to mention that the precursors for disinfection byproducts (THMs) that 

have been linked to bladder cancer naturally occur in lakes and rivers. Humic acids, fulmic acids and hydrophi lic acids 

are natural products from the decomposition of organic matter (leaves, etc.) . This presentation of nitrogen and 

11/19/2010 02:48 PM EST 2-1562
 
Chapter 2 - Comment Documents Background 

phosphorus being introduced into the environment being the sole, causative agent for increased risk of disinfection 

byproducts is misleading. 

Comment ID 1645-1.001.005 

Author Name: Griswold R. 

Organization: Destin Water Users 

The most disturbing and misleading aspect of the primer on nutrient pollution provided in Section 2 is that it consistently 

fails to mention other sources of nitrogen introduction into the environment (i.e. atmospheric deposition, deposition 

through agricultural activities, etc.) and in the case of the THM precursor discussion, the fact that all of the precursors 

occur naturally in healthy water bodies. The only statement regarding the link to fertilizer use and agricultural activities 

is presented in the very last paragraph of this section and fails to mention animal based agricultural activities (i.e. dairy 

farms, cattle operations, poultry farming , etc.) altogether. Nitrogen also is introduced into waters by flowing from 

sources out of state which are not required to comply with the same rules as Florida, by non-point source rainfall runoff 

which is not regulated by this rule, by on site sewage treatment systems which are also not regulated, from the 

decomposition of organic matter naturally occurring in the water body which again is not regulated. The rule will only 

apply to point source discharges such as storm water systems and wastewater systems which represent only a fraction 

of the contribution of nutrients to a water body. 

Comment ID 1645-1.001.020 

Author Name: Griswold R. 

Organization: Destin Water Users 

Typical sources of nitrate buildup in groundwater result from human activities. Septic tanks, fertilizer applications and 

livestock management are typical sources of groundwater nitrogen pollution. As such, it is no coincidence that the wells 

with nitrate issues are located in an agricultural region of Florida. It is unclear how this is linked to the discussion 

regarding surface waters presented in the draft rule. In the case of spring impacts, the link is more clearly presented. 

With a few exceptions, Florida's drinking water supply is primarily groundwaterbased. It is highly likely that virtually all 

the counties listed all rely upon groundwater for their drinking water supplies. 

Comment ID 1670-1.001.006 

Author Name: Legg L. 

Organization: Hernando County Utilities Department 

• Florida's domestic wastewater treatment plants that discharge are being held responsible for Total Nitrogen 

degradation of Florida's water bodies unfairly. Advanced wastewater treatment (AWT) plants convert nitrate-nitrite to 

nitrogen gas (which is released to the atmosphere). The remaining nitrogen that is discharged to surface water is in the 

11/19/2010 02:48 PM EST 2-1563
 
Chapter 2 - Comment Documents Background 

form of organic nitrogen which is not readily bioavailable and does not contribute to surface water impairment. Total 

nitrogen that does not contribute to surface water impairment comes from mainly non-point discharges. 

11/19/2010 02:48 PM EST 2-1564
 
Chapter 2 - Comment Documents Background 

Comment ID 1671-3.001.002 

Author Name: Brooks J. 

Organization: Florida Department of Environmental Protection 

1. Natural Sources of Phosphorus in Florida 

Phosphate-bearing sands, clays and carbonate rocks occur at or near land surface across the northern tier of the 

eastern Florida panhandle and southward along the west-central portion of the Florida peninsula from the Georgia line 

to near Port Charlotte in southwest Florida (Figure 2). These mostly shallow marine sediments comprise the late 

Oligocene-Miocene-early Pliocene Hawthorn Group (approximately 25 to 4 million years old). Commercially-viable 

phosphate deposits occur within this formational group, and are presently mined in Hamilton County in North Florida 

and in Hillsborough, Polk, Manatee, Hardee and De Soto counties in southwest Florida. 

In the eastern panhandle region of Florida between the Apalachicola River to the west and the 

Suwannee/Withlacoochee River valley to the east, the Torreya Formation (part of the Hawthorn Group) underlies the 

northern panhandle "Red Hills" region, also referred to as the Tallahassee Hills or Northern Highlands (Figure 3). The 

Torreya Formation is characterized by an upper unit comprised of white to olive-gray clayey sands, and a phosphatebearing lower carbonate unit, all overlain by Pliocene-age Miccosukee Formation sands and clays, which are partially 

derived from reworked Torreya and other older sediments. The Miccosukee Formation is a prodeltaic deposit which 

grades westward into the Citronelle Formation in central Gadsden County. These formations lie to the north of the Gulf 

Coastal Plain, and are separated from it by the Cody Escarpment, a paleo-shoreline feature created during a past high 

sea level "stillstand". The Cody Escarpment represents a marked topographical break, with relatively low elevation flat, 

sandy Coastal Plain sediments to the south, and elevated rolling "Red Hills" to the north. The Torreya Formation 

(primarily exposed in creek beds and other mid to low elevation areas of the Northern Highlands) and to a lesser extent 

the overlying Miccosukee & Citronelle Formations (exposed at higher elevations within the Northern Highlands) are the 

most likely sources of naturally-derived phosphorus in surface waters of the region. Whereas several major rivers and 

streams (notably the Ochlockonee, St. Marks and Aucilla Rivers) flow through the Northern Highlands, across the Cody 

Escarpment and south to the Gulf of Mexico, many many streams are captures by karst swallets just north of the 

Escarpment, recharging the Floridian aquifer system. Rivers which cross the Cody 

Escarpment (or whose headwaters are at or near the Escarpment) bring with them possible phosphorus bearing 

sediments and dissolved phosphorus in the water column derived from upstream Hawthorn Group sources. 

Original comment letter contains additional information in Figure 1 -DEP proposed stream nutrient regions from Florida 

DEP proposed nutrient criteria comment report. See original comment letter. 

Original comment letter contains additional information in Figure 2. Miocene-age phosphate-bearing formations in 

Florida (green areas) from Scott, 2000 in Florida DEP proposed nutrient criteria comment report. See original comment 

letter. 

Original comment letter contains additional information in Figure 3. Hawthorn Group outcrop area (bright green areas 

along the Florida - Georgia border) in the eastern panhandle region of Florida from Scott et al, 2001 in Florida DEP 

proposed nutrient criteria comment report. See original comment letter. 

11/19/2010 02:48 PM EST 2-1565
 
Chapter 2 - Comment Documents Background 

Comment ID 1671-3.001.006 

Author Name: Brooks J. 

Organization: Florida Department of Environmental Protection 

In the west-central portion of the Peninsula the Bone Valley Member (originally the Bone Valley Formation of Matson 

and Clapp 1909), and the Peace River Formation occurs in a limited area on the southern part of the Ocala Platform in 

Hillsborough, Polk and Hardee Counties (Figures 2 and 4). The phosphate content of the Peace River Formation sands 

is frequently high enough to be economically mined, and naturally occurring phosphorus pebbles are frequently 

observed in streams within this formation. The Bone Valley Member is an extremely important, unique phosphate 

deposit and has provided much of the phosphate production in the United States during the twentieth century. Mining of 

phosphate in the outcrop area began in 1888 (Cathcart 1985) and continues to the present. Phosphatic pebbles are 

observed in the streams and rivers within the area of this formation. 

Comment ID 1671-3.001.008 

Author Name: Brooks J. 

Organization: Florida Department of Environmental Protection 

a) Bone Valley Region 

DEP recognized a sub-region of the Peninsula bioregion during initial work to derive reference-based TMDLs for the 

Northern Lake Okeechobee tributaries. As part of the analysis, DEP utilized an outlier analysis to exclude benchmark 

sites within the Peninsula bioregion with exceptionally high phosphorus levels. The vast majority of the excluded data 

were within the Bone Valley/Peace River drainage. DEP subsequently used the geographic distribution of the Peace 

River Formation and Bone Valley member to delineate a homogenous nutrient region. Our objective was to define a 

limited geographic area with stream phosphorus levels expected to be substantially higher than the remainder of the 

state due to the presence of extremely phosphorus-rich soils. This naturally high phosphate area exists within portions 

of Hillsborough, Polk, Hardee, and Manatee, DeSoto, Sarasota counties, due to natural phosphatic deposits, which 

occur primarily in the Peace River Formation and the Bone Valley Member. While it is important to account for the 

naturally elevated phosphorus in the Bone Valley, EPA's Bone Valley NWR extends outside the areas draining the 

Bone Valley member and Peace River formation (Figure 4). 

Original comment letter contains additional information of Figure 4. Overlay of the EPA Nutrient Watershed Regions 

with the DEP's proposed Bone Valley region, and the Bone Valley and Peace River geologic formations. EPA's region 

extends beyond streams actually draining the relevant geologic formations, while DEP's Bone Valley region is limited to 

streams either overlaying the formations or draining from these surficial phosphatic deposits. It is highly probable that 

the EPA Bone Valley NWR is underprotective of streams in areas outside the overlap with the DEP Bone Valley nutrient 

region from Florida DEP proposed nutrient criteria comment report. See original comment letter. 

11/19/2010 02:48 PM EST 2-1566
 
Chapter 2 - Comment Documents Background 

Comment ID 1729.001.004 

Author Name: Fugett A. 

Organization: 

3. Absent the wastewater collection and treatment services of FRWA members, many rural areas would be served by 

septic tanks that provide little treatment and virtually no nutrient removal prior to discharging wastewater to the surficial 

aquifer. 

Comment ID 1729.001.016 

Author Name: Fugett A. 

Organization: 

20. Florida's domestic wastewater treatment plants that discharge are being held responsible for TN degradation of 

Florida's water bodies unfairly. Advanced wastewater treatment (AWT) plants convert nitrate-nitrite to nitrogen gas 

(which is released into the atmosphere). The remaining nitrogen that is discharged to surface water is in the form of 

organic nitrogen which is not readily bioavailable and DOES NOT contribute to surface water impairment. Total nitrogen 

that does contribute to surface water impairment comes from mainly non-point discharges. 

Comment ID 1731-1.001.004 

Author Name: Gibson T. 

Organization: Engineering & Capital Improvements, City of St. Petersburg 

Another specific comment made by Pinellas County during the public workshops is the concern that the EPA has a 

disconnect with their permitting activities in dealing with the Clean Air Act and the Clean Water Act. EPA will permit 

facilities under the Clean Air Act without regard to the entities that have to deal with the results of atmospheric 

deposition, in particularly nitrogen. It has been roughly estimated by the Tampa Bay Estuary Program (TBEP) that 

atmospheric deposition of nitrogen accounts for about 30% of the nitrogen load in Tampa Bay. The City has been very 

proactive in being an alternate transportation City, such as installation of bike paths, to help limit the travel by 

automobiles, reducing vehicle exhaust. Additionally, the City has invested in and installed a synchronized traffic control 

system estimated to save approximately one million gallons of fuel, further reducing the exhaust emissions that can 

make their way into our surface waters. The City of St. Petersburg has been the first designated Green City in Florida 

by the State of Florida Green Building Coalition. 

Comment ID 1731-1.001.006 

Author Name: Gibson T. 

11/19/2010 02:48 PM EST 2-1567
 
Chapter 2 - Comment Documents Background 

Organization: Engineering & Capital Improvements, City of St. Petersburg 

While the City does not support limiting growth or industry, the City cannot be held accountable for increased nitrogen in 

stormwater due to air permitting activities by EPA. 

Comment ID 1774-1.001.008 

Author Name: Payne J. 

Organization: Farmland Reserve, Inc. doing business as Deseret Ranches of Florida 

2. Specific Comments 

1. Item II.A. The document considers nutrients as pollutants but does not acknowledge that there are numerous natural 

sources of nutrients and that, in some waterbodies, the lack of nutrients is just as much of an impairment as is over 

abundance. The state's nutrient target is: not to cause an imbalance of natural flora and fauna, a target that EPA 

acknowledges (page 38). This does not say the target is achieving the flora and fauna resulting from natural conditions 

and there are many waterbodies in Florida that meet their recreational (fishable) designation with the existing nutrient 

condition. 

Comment ID 1784-1.001.011 

Author Name: Cunningham T. 

Organization: Gainesville Regional Utilities 

GRU works closely with Alachua County Environmental Protection Department, Alachua County Health Department, 

and the City of Gainesville Public Works to identify "hot spots" in the urban creeks that are experiencing elevated levels 

of fecal coliforms. This project focuses on identifying and eliminating these sources to protect the creeks both from fecal 

coliforms and elevated nutrient concentrations. The sources vary and include failing septic systems, sediments in the 

stormwater system, domestic pet waste, leaking private or public sanitary sewer collection facilities, wildlife, and others. 

Comment ID 1784-1.001.015 

Author Name: Cunningham T. 

Organization: Gainesville Regional Utilities 

Septic systems release nutrients directly into the environment and often times these facilities are located near 

waterbodies and therefore contribute directly to nutrient loading in Florida waters. 

Comment ID 1803-1.001.003 

11/19/2010 02:48 PM EST 2-1568
 
Chapter 2 - Comment Documents Background 

Author Name: Bowman J. 

Organization: Nature Conservancy 

Nutrient pollution can lead to water quality problems such as harmful algal blooms, low-oxygen dead zones in water 

bodies such as the Gulf of Mexico and St. Johns River for example, and lead to declines in wildlife and wildlife habitat. 

Florida's 2008 Integrated Water Quality Assessment shows 1,000 miles of rivers and streams, 350,000 acres of lakes, 

and 900 square miles of estuaries are impaired by nutrients (the actual numbers are likely higher, as many waters that 

have yet to be assessed may also be impaired.) In the determination letter, it is noted that Florida DEP has spent "over 

$20 million in collecting and analyzing data" but has yet to develop numeric standards. While the TMDL framework is 

appropriate to restore a waterbody that does not meet its water quality criteria, TNC supports proactive watershed 

programs that aim to reduce impairments and that deter further habitat degradation. Given the limited funds for costly 

restoration projects and increased urbanization, more collaboration with stakeholders should be developed to jointly 

work towards more sustainable projects that preserve riparian habitat, benefit water quality and create desirable 

communities. 

Comment ID 1885.001.019 

Author Name: Connor T. 

Organization: Office of the Executive Director, Sarasota County 

A key ingredient missing from this proposal is the role of atmospheric deposition in nitrogen pollution . 

Comment ID 1918.001.002 

Author Name: Larson A. 

Organization: 

Most of the pollution comes from Bone Valley & Peninsula watersheds and travels south into the very area that needs 

protection. Lake Okeechobee & the Everglades have been used as a toilet for areas lying to the north for to many 

years. I have great concerns that the very polluters are being given a free pass & the areas to the south are being told 

to clean up the mess flowing from the north. Certainly Bone Valley & the Peninsula including North Central should have 

their values set within the same limits as these being proposed for South Florida. Let the areas to the north of Lake 

Okeechobee clean their own toilet. 

Comment ID 1920-1.001.003 

Author Name: Wise W. 

Organization: University of Florida on behalf of Earthjustice 

11/19/2010 02:48 PM EST 2-1569
 
Chapter 2 - Comment Documents Background 

NUTRIENTS BACKGROUND 

7. Phosphorus and nitrogen are elements vital to photosynthesis and plant growth. They are essential ingredients in the 

human and animal manures used since ancient times to fertilize crops. In the past century, chemically-derived fertilizers 

were developed by chemically processing phosphate rock and ammonia. These chemical fertilizers are exceptionally 

powerful in very small concentrations. For example, one sixth of a teaspoon of phosphorus per square foot will facilitate 

luxuriant plant growth in many crops. 

Comment ID 1920-1.001.005 

Author Name: Wise W. 

Organization: University of Florida on behalf of Earthjustice 

15. Those threats have increased substantially in the last ten years due to increased population and development,[3] 

including sewage discharges. 

[3] http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf at p. ix. 

Comment ID 1920-1.001.006 

Author Name: Wise W. 

Organization: University of Florida on behalf of Earthjustice 

16. Increasing pollution from urban stormwater and agricultural activities is having other significant effects. In many 

springs across the state, for example, nitrate levels have increased dramatically (twofold to threefold) over the past 20 

years, reflecting the close link between surface water and groundwater.[4] Springs - unique water resources that 

represent the discharge of groundwater to surface water - are being threatened statewide by biological imbalances 

caused by excessive nutrients that are being delivered by groundwater.[5] 

17. Nitrates are not only contaminating springs - exceedances of the federal established limits for nitrate-nitrogen or 

nitrate+nitrite-nitrogen in drinking water were found in samples from 148 public water systems and over 2,500 private 

wells, with the greatest numberfound in or near agricultural areas. Most private well exceedances were found in 

agricultural areas, with almost half of the total found in the ridge citrus-growing area of the Kissimmee River Basin.[6] 

[4] http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf at p. ix. 

[5] http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf at p. xiv. 

[6] http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf at p. xiii. 

Comment ID 1922.001.003 

11/19/2010 02:48 PM EST 2-1570
 
Chapter 2 - Comment Documents Background 

Author Name: Ayech B. 

Organization: Environmental Confederation of South West Florida 

Additionally, all Florida Department of Environmental Protection (FDEP) permitted sludge land applications sites must 

be included in the determination of TN and TP in down stream water bodies criteria. All water utilities must review their 

processes to comply with more restrictive TN and TP in their sludge product. 

Comment ID 1946.001.003 

Author Name: Sheppard M. 

Organization: 

There is a nearby phosphate mine that pumps millions of gallons water from the aquifer to supplement their reclaimed 

water from mining. It is to the taxpayers benefit if phosphate pays to extend lines to their operation. We the public will 

sooner or later have to pay for reverse osmosis when the aquifer will not have treatable water left for us to drink. 

Comment ID 1964.001.002 

Author Name: Olmos G. 

Organization: Alachua County Environmental Protection Department 

Our in-house ambient monitoring data indicate that less than one percent of the samples we collected in 2008-2009 

would meet the proposed freshwater criteria for phosphorus. There are two primary causes for this (1) the occurrence of 

the phosphatic rich Hawthorn Group formations at or near land surface along the Cody Scarp and in areas of central 

and eastern Alachua County and (2) anthropogenic factors such as ditching and erosion that have exposed more 

phosphorus laden materials in and around our streams. Given the current situation, essentially all of our water bodies 

would fail to meet the new criteria. It may be difficult, if not impossible to significantly improve the phosphorus levels as 

in-stream erosion and stormwater continue to abrade material and increase phosphorus loading. We are concerned that 

reducing external loading from sources such as fertilizer, while extremely important, may not significantly improve 

phosphorus levels. 

Comment ID 1982.001.002 

Author Name: Hanratty K. 

Organization: 

As you know, waters all across the country are polluted by excess nutrient pollution from fertilizer, sewage and manure. 

11/19/2010 02:48 PM EST 2-1571
 
Chapter 2 - Comment Documents Background 

Comment ID 2030-1.001.002 

Author Name: Long A. 

Organization: 

The nutrient problem I am addressing today is Nitrate Nitrogen. In the Suwannee Watershed there are few permitted 

point sources of nitrogen, but there are numerous non-point sources all over the Suwannee Watershed. 

Comment ID 2183.001.001 

Author Name: Urschel S. 

Organization: 

Setting stringent limits on fertilizer, sewage and manure runoff that contributes to eutrophication in Florida's lakes and 

streams should be a high priority. 

Comment ID 2233.001.019 

Author Name: Kovach C. 

Organization: CF Industries 

As CF indicated in its comments to EPA during the public meeting process, algal blooms exist not solely from nutrient 

pollution, but also as a naturally occurring phenomenon associated with the subtropical environments in Florida. The 

following is an excerpt of a canoe trip up the Perdido River in the Florida panhandle that was originally published in 

Outing Magazine [2]: 

"The little stream turned and twisted in the most tortuous channel I ever saw, and often it was with difficultly that we 

managed to turn the boat round the sharp and narrow corners. At length, after paddling in this fashion for over half a 

mile, we emerged . . . It seemed more like a river than a lake, for though by its various windings and twistings it was 

several miles long, it was never, in its widest part, over sixty yards wide, and throughout most of its length not over 

yards. The banks were lined by impressive trees that towered upward to a height of eighty feet or more. From their 

branches hung long festoons and trails of Florida moss, while the roots of the trees, half of out water, assumed such 

weird and fantastic shapes that they seemed like immense serpents that had become suddenly petrified in their 

writings. So dense was the foliage that it formed an impenetrable wall to both sun and wind, and the sunlight never 

touched the water except between the hours of 12 and 2 P.M . Not a breath had stirred the waters for years, and they 

were covered to a depth of several inches in a green vegetable slime, so that appearance was that of a beautiful level 

floor, on which one might walk . . .when the hand was thrust through the slime, the water had a horrible slimy, warm 

11/19/2010 02:48 PM EST 2-1572
 
Chapter 2 - Comment Documents Background 

feeling . . .the fish came up cold and firm, showing that below the water was clear and cold... 

This account was written by Lieutenant W.R. Hamilton in 1888. 

Algal blooms and low dissolved oxygen are not caused solely by anthropogenic nitrogen and phosphorous 

concentrations. Hydrology, flow conditions, temperature, canopy, physiography, and other factors play important roles. 

[2] Hamilton, Lieut. W. R. "A Visit to Death Lake, Florida." *Tales of Old Florida." Ed.Oppel, Frank, and Tony Meisel. 

Secaucus, N .J .: Castle, 1987. pp 109-114. 

Comment ID 2428.001.001 

Author Name: Kirkland F. 

Organization: 

Smoke on this when The mines say the don't put these Gypsum stacks in Hardee and have had the audacity to state 

publicly a lot lately in their defense at hearings. 

People need realize that the gypsum stack they are contributing to by allowing mining is only around 6 to 20 ro so miles 

north and should it do as this one in this article has done along with at least one other get into the aquifers and or the 

rivers that it will in up heading south. 

So next time you drink water it may have been contaminated by the vary mine you allowed and I personally worked 

where a mine and a chemical or fertilizer plant was joint side beside and the gypsum is there even though they have 

mostly left and are mining no more. 

it is close to peace river and could get into Peace river shortly and the aquifer once their all the money in all the world 

won't be able to fix it 

Comment ID 2429-1.001.002 

Author Name: Arvanitas P. 

Organization: 

Reservoirs 

Imagine my surprise when I discovered in 2005, an EPA employee Richard Harvey hastily emailed the Florida DEP 

Castille and Mike Sole. All the way up the chain of command, the scream was about reservoirs creating ALGAE. Now 

we know from St John's all the way through Stuart and the St Lucie area waters, algae is a symptom of serious health 

and impairment of a water body. As numerous lawsuits made their way to the DEP for supposed enforcement of EPA's 

Clean Water Act, the solution for our previous Governor, Dep Director, and SFWMD Carol Wehle was to announce yet 

11/19/2010 02:48 PM EST 2-1573
 
Chapter 2 - Comment Documents Background 

another reservoir. 

But the EPA had internal documents showing reservoirs harbor and create impaired water-ALGAE! Why was Florida 

still buying and building them? How is it Carol Wehle and Mike Sole , even 5 years later, they did not share this 

information? Our Tampa Bay area has US Congressman Bill Young's Reservoir and South Florida has a defunct mining 

company's borrow pit purchased four years ago. Just last week SFWMD Director Carol Wehle announced that the 

water is brackish and cannot be used for drinking! 

Response 

Comment ID: ID 0487-1.001.005 

Response: Thank you for your comment. 

Comment IDs: 0551.001.001, 1025.001.003, 1315.001.002, 1364-1.001.004, 2183.001.001 

Response: Thank you for your comment. 

Comment IDs: 0678.001.001, 0681.001.004, 0687.001.003, 0695.001.005, 0757.001.003, 0759.001.006, 0786.001.011, 

0839.001.002, 0922-1.001.040, 0969.001.003, 0972-1.001.002, 0972-1.001.004, 0997.001.007, 1020.001.003, 1042.001.002, 

1055.001.005, 1056.001.001, 1058.001.003, 1069.001.001, 1073.001.004, 1080.001.007, 1083.001.002, 1084.001.004, 

1089.001.004, 1089.001.006, 1092.001.003, 1093.001.002, 1094.001.002, 1096.001.002, 1136.001.004, 1141.001.004, 

1143.001.003, 1162.001.006, 1163.001.006, 1169.001.004, 1178.001.005, 1189.001.007, 1189.001.008, 1189.001.012, 

1189.001.013, 1190.001.006, 1192.001.003, 1198.001.006, 1203.001.004, 1207.001.003, 1226.001.002, 1240.001.001, 

1242.001.004, 1245.001.007, 1246.001.002, 1246.001.004, 1251.001.003, 1251.001.004, 1262.001.006, 1267.001.004, 

1272.001.002, 1290.001.005, 1306.001.004, 1307.001.004, 1312.001.004, 1312.001.006, 1318.001.003, 1326.001.002, 

1326.001.006, 1336.001.004, 1337.001.003, 1337.001.004, 1337.001.005, 1339.001.001, 1341.001.003, 1368-1.001.011, 1645­

1.001.005, 1645-1.001.020, 1803-1.001.003, 1918.001.002, 1920-1.001.005, 1920-1.001.006, 1946.001.003, 1982.001.002, 2030­

1.001.002, 2428.001.001, 2429-1.001.002 

Response: Thank you for your comments. 

Comment ID: ID 0504.001.001 

Response: Indeed, EPA is not proposing to address elemental phosphorus (P) and nitrogen (N2) in this rulemaking. The proposed 

rule addresses these elements in the form that they occur predominantly in aquatic systems: orthophosphate and phosphates for the 

element phosphorus, and for the element nitrogen, nitrate, nitrite, ammonia/ammonium, including organic forms. To encompass all 

the possible forms of phosphorus and nitrogen, respectfully, the criteria will be expressed as total phosphorus (TP) and total 

11/19/2010 02:48 PM EST 2-1574
 
Chapter 2 - Comment Documents Background 

nitrogen (TN) in the rule, although in some cases, there are specific criteria values for nitrate and nitrite forms of nitrogen. 

Comment ID: ID 0589.001.020 

Response: Thank you for your comment offering the general observations, considerations and challenges of developing appropriate, 

scientifically-defensible criteria for Florida waters. See U.S. EPA II.C of the preamble for additional information on criteria 

development. 

Comment ID: 1292-1.001.095 

Response: Thank you for your comment and offering the general observations, considerations and challenges of developing 

appropriate, scientifically-defensible criteria for Florida waters. EPA considered the additional data provided by the National 

Council for Air and Stream Improvement and used the information where appropriate. For example, EPA used the forestry data 

(NCASI Technical Bulletin 966: Compendium of Forestry Best management Practices for Controlling Nonpoint Source Pollution in 

North America, 2009) when evaluating forest fertilization practices and forestry BMPs during its analysis of the stream criteria 

methodology. 

Comment IDs: 0601.001.006, 0620.001.007 

Response: EPA has sufficient evidence from a number of sources that wastewater treatment facilities can provide significant 

sources of nitrate contamination. For example, FDEP in its recent 2010 Integrated Water Quality Assessment for Florida 

specifically notes, “Elevated nitrate levels reflect the presence of nutrient sources such as fertilizer, animal waste, or domestic 

wastewater.” (U.S. EPA, 2009. An Urgent Call to Action - Report of the State-EPA Nutrient Innovations Task Group.) 

Comment ID: 1128.001.005 

Response: Thank you for your comment. The commenter is correct in that current research does not show a link between estuarine 

nutrients and the initiation of offshore blooms of the marine species, Karenia brevis. However, this is just one example of algal 

blooms with deleterious effect in Florida waters. There is much data showing the links between nutrient pollution and excessive 

levels to chl-a and algal biomass in other waters of Florida. EPA found evidence showing that excess nitrogen and phosphorus can 

lead to harmful algal blooms, both in fresh water and marine systems. Please see the preamble to the final rule as well as the TSD 

for specific evidence cited. 

Comment ID: 1305.001.007 

Response: Thank you for your comment. The comments very likely refer to the algal blooms caused by Karenia brevis, which 

11/19/2010 02:48 PM EST 2-1575
 
Chapter 2 - Comment Documents Background 

mainly affect the Florida Gulf coast, or West Florida Shelf waters. That is only one type of harmful algal bloom that affects Florida 

waters, and this rulemaking address nutrients and nutrient-related issues in inland waters. EPA has found evidence showing that 

excess nitrogen and phosphorus can lead to harmful algal bloom in fresh water systems. Please see the preamble to the final rule as 

well as the TSD for specific evidence cited. 

Comment ID: 1301-1.001.013 

Response: EPA’s approaches are consistent with the CWA and EPA's implementing regulations and EPA's previously published 

peer reviewed technical guidance for the derivation of numeric nutrient criteria. EPA considered multiple lines of evidence and 

analyses in deriving these numeric criteria using the most current data from laboratory experiments to field studies. Moreover, EPA 

has long recognized the need to address both nitrogen and phosphorus as the most meaningful way for addressing nutrient pollution 

and impacts due to excessive algal growth. Evidence has shown that either nitrogen or phosphorus can be the limiting nutrient at 

varying points in space and time, and under varying physical, chemical and biological parameters. To best address the overall 

nutrient enrichment issue, it is most prudent to deal with both simultaneously. EPA’s approaches (reference condition, stressorresponse, and laboratory data) rely on various statistical methodologies that have been peer reviewed and published as guidance 

(see U.S. EPA. 2000a. Nutrient Criteria Technical Guidance Manual: Lakes and Reservoirs. EPA-822-B-00-001. U.S. 

Environmental Protection Agency, Office of Water, Washington, DC and U.S. EPA. 2000b. Nutrient Criteria Technical Guidance 

Manual: Rivers and Streams. EPA-822-B-00-002. U.S. Environmental Protection Agency, Office of Water, Washington, DC.)The 

statistical approaches used are well established and generally accepted by the scientific community. 

Comment ID: 0676.001.004 

Response: EPA has sufficient evidence that there is a problem with excess nitrate concentrations in Florida through assessments, 

direct measurements and the presence of impacts such as algal blooms. EPA pointed to blue baby syndrome as an example of a 

direct impact of highly elevated nitrate values in water. EPA is not suggesting that there is a problem of blue baby syndrome in 

Florida. Moreover, the data that EPA considered extended before and after the 2004-2005 periods. For example, FDEP has 

recognized nitrate pollution as a problem in Florida waters, as evidenced in the 2010 Integrated Water Quality Assessment for 

Florida report, which lists nutrients as an ongoing initiative. Elevated nitrate in springs associated with declining water quality and 

nitrate levels exceeding the MCL is a concern in 6% of the wells sampled. 

Comment IDs: 0646.001.003, 0772.001.008, 0786.001.010, 0840.001.005, 0853.001.005, 0896-2.001.020, 0954.001.006, 

1072.001.007, 1196.001.007 

Response: Thank you for your comments and for listing the possible sources of nutrients in Florida. EPA has considered these and 

other sources. 

Comment IDs: 0726.001.004, 1340.001.003 

11/19/2010 02:48 PM EST 2-1576
 
Chapter 2 - Comment Documents Background 

Response: EPA used forestry management data in support of its analysis of the stream criteria methodology. 

Comment ID: 1306.001.003 

Response: EPA used forestry management data in support of its analysis of the stream criteria methodology. 

Comment ID: 0772.001.006 

Response: Thank you for your comment. 

Comment IDs: 0796.001.005, 0896-2.001.007, 1091.001.004, 1311.001.002 

Response: Thank you for your comments. EPA agrees that nonpoint sources are also significant contributors of nitrogen and 

phosphorus pollution. 

Comment ID: 0829.001.006 

Response: Thank you for your comment. Issues with nitrogen and phosphorus pollution in marine environments will be addressed 

in the next rulemaking for estuaries and coastal waters in the State. 

Comment IDs: 1064.001.003, 1065.001.002 

Response: Thank you for your comment. EPA agrees that nitrogen and phosphorus from fertilizers and wastewater treatment plants 

can lead to algal blooms in marine environments, which will be addressed in a separate rulemaking. 

Comment IDs: 1317.001.011, 2233.001.019 

Response: Thank you for your comments. EPA recognizes that algal blooms occur naturally and are an integral part of an 

ecosystem. When in balance, they provide food and energy in the food web. When out of balance in a system, significant impacts 

on water quality and the health of the system can occur. EPA’s numeric nitrogen and phosphorus pollution criteria were derived to 

allow for balance within the system. 

Comment ID: 0920.001.002 

11/19/2010 02:48 PM EST 2-1577
 
Chapter 2 - Comment Documents Background 

Response: Thank you for your comments 

Comment ID: 0942.001.011 

Response: Thank you for your comment. Nutrients in marine environments will be addressed in a separate rulemaking. 

Comment IDs: 1016.001.001, 1922.001.003 

Response: Thank you for your comment. EPA agrees that proper application of sewage sludge is important for reducing nitrogen 

and phosphorus pollution. 

Comment ID: 1032.001.004
 

Response: Thank you for your comment.
 

Comment IDs: 1061.001.002, 1062.001.002
 

Response: Thank you for your comments. 


Comment IDs: 1075.001.006, 1238.001.002
 

Response: Thank you for your comments and for listing the possible sources of nutrients in Florida. EPA has considered these and 

other sources in its analyses 

Comment IDs: 1078.001.002
 

Response: Thank you for your comment about agricultural sources of nitrogen and phosphorus pollution. 


Comment ID: 1289.001.003 

Response: Thank you for your comment about agricultural sources of nitrogen and phosphorus pollution. 

11/19/2010 02:48 PM EST 2-1578
 
Chapter 2 - Comment Documents Background 

Comment ID: 1350-1.001.007 

Response: Thank you for your comment. EPA has carefully considered this information in its analyses of sources of pollutants. 

Comment IDs: 1360-1.001.008, 1729.001.004, 1784-1.001.015 

Response: Thank you for your comment about sources of nutrient pollution. 


Comment IDs: 1671-3.001.002, 1671-3.001.006, 1671-3.001.008
 

Response: EPA used this and similar information in reanalyzing nutrient watershed regions for streams. 


Comment IDs: 1009.001.004, 1261-1.001.007, 1615-1.001.009, 1774-1.001.008
 

Response: EPA recognizes that nutrients occur naturally and its methodologies account for the balance of nutrients required in 

natural systems (i.e., neither too much nor too little). 

Comment IDs: 0666.001.001, 0666.001.005, 0709.001.003, 0709.001.005, 0709.001.007, 0720.001.007, 0757.001.001, 

0772.001.004, 1066.001.006, 1096.001.004, 1132.001.001, 1138.001.004, 1141.001.002, 1317.001.009, 1325.001.005, 1784­

1.001.011, 1920-1.001.003 

Response: Thank you for your comments about sources of nitrogen and phosphorus pollution. 

Comment ID: 0859.001.003
 

Response: EPA has used information about regional differences in its analyses.
 

Comment IDs: 0740.001.004, 0757.001.007, 0762.001.003, 0844.001.007, 1066.001.002
 

Response: Thank you for your comments. EPA has considered the impacts to farmers and others in its economic analysis. See 

EPA's economic analysis for more detail. 

Comment ID: 0899.001.006 

11/19/2010 02:48 PM EST 2-1579
 
Chapter 2 - Comment Documents Background 

Response: Thank you for your comment. EPA’s objective is not to cut off the food source to oysters but to strike a balance where 

food algae are present in the balanced amounts so as to minimize the negative effect of excessive algal biomass. 

Comment IDs: 1641-1.001.005, 1670-1.001.006, 1729.001.016 

Response: Thank you for your comments. EPA agrees that domestic wastewater treatment plants are a source of nitrogen and 

phosphorus pollution. EPA evaluated the cost of such compliance in its economic analysis. See EPA's economic analysis for more 

detail. 

Comment ID: 0972-1.001.005 

Response: Thank you for your comment. EPA agrees that fish kills and decaying matter contribute to the food supply of blue crabs.

 However, excessive nitrogen and phosphorus pollution also leads to hypoxic conditions in the water where blue crabs are found. 

Hypoxic conditions will eventually lead to a system that is poor for crabs. 

Comment IDs: 1101.001.009, 1103.001.004 

Response: EPA recognizes the contributions made by the agricultural sector in reducing nitrogen and phosphorus pollution. 

However, agriculture is still a source of nitrogen and phosphorus pollution in Florida, which is reported in the 2010 Integrated 

Water Quality Assessment for Florida and documented in U.S. EPA, 2009. An Urgent Call to Action - Report of the State-EPA 

Nutrient Innovations Task Group. 

Comment IDs: 1224.001.007, 1255.001.008, 1731-1.001.004, 1731-1.001.006, 1885.001.019 

Response: Thank you for your comments. EPA agrees that atmospheric sources of nitrogen and phosphorus pollution are a factor in 

Florida. EPA's final criteria are intended to satisfy the requirements of the CWA and EPA's implementing regulations. 

Comment ID: 1282.001.005 

Response: EPA agrees and its criteria reflect this variability. In addition, the site-specific alternative criteria process allows for sitespecific adjustments where warranted. 

Comment ID: 1370-1.001.016 

Response: EPA disagrees that numeric nitrogen and phosphorus criteria do not provide a direct link between water quality 

11/19/2010 02:48 PM EST 2-1580
 
Chapter 2 - Comment Documents Background 

standards and impaired uses. U.S. EPAs II.A and II.D of the preamble provide extensive support of this linkage. Moreover, there is 

ample evidence in Florida between deleterious biological responses like excessive algal blooms and high nutrient concentrations. 

Comment ID: 1370-1.001.055 

Response: EPA agrees that Florida’s BMAP process should be continued as a means to address all sources of nutrients to impaired 

waters. 

Comment ID: 1416-1.001.022 

Response: Thank you for your comment. EPA does recognize that nutrients like phosphorus and nitrogen are different from other 

chemical pollutants regulated under the Clean Water Act for the reasons quoted by the commenter. As they are different, EPA 

followed an approach set forth in its guidance for the development of criteria to address these pollutants that takes into account the 

role that these elements play in biogeochemical processes in aquatic systems. Although the development of protective numeric 

nutrient criteria for nitrogen and phosphorus may be different and more complicated, it does not preclude EPA’s use of established 

and defensible methods and approaches to derive numeric nutrient criteria. See U.S. EPA II.C of the preamble for more 

information. 

Comment ID: 1431-1.001.036 

Response: Thank you for your comment. In its determination letter (dated January 14, 2009), EPA laid out its rationale for why 

Florida's narrative criterion for nutrients was not sufficient to protect water quality, i.e., designated uses, in Florida, and why 

numeric criteria are needed (see U.S. EPA II.D of the preamble for more information). EPA appreciates the comments regarding 

the disconnect between the CWA and CAA and how addressing it may address atmospheric nitrogen sources to the watershed. 

However, resolving this disconnect is beyond the scope of this rulemaking. 

Comment ID: 1465-1.001.011 

Response: EPA’s approach considers extreme weather conditions (see the TSD for more information). 

Comment ID: 1617-1.001.007 

Response: EPA agrees that natural background levels of nitrogen and phosphorus compounds may exceed the proposed criteria. 

The site-specific alternative criterion methodology is in place to account for these scenarios. 

11/19/2010 02:48 PM EST 2-1581
 
Chapter 2 - Comment Documents Background 

Comment ID: 1645-1.001.004 

Response: EPA agrees that these are naturally occurring, as well as human-caused (i.e. algal blooms resulting from anthropogenic 

sources of nitrogen and phosphorus pollution). 

Comment ID: 1964.001.002 

Response: EPA agrees that natural background levels of nitrogen and phosphorus compounds may exceed the proposed criteria. 

The site-specific alternative criterion methodology is in place to account for these scenarios. 

II.A.2 - ADVERSE IMPACTS 

Comment ID 0487-1.001.001 

Author Name: Patashnik J. 

Organization: 

In this Proposed Rule, the federal Environmental Protection Agency (EPA) proposes specific numeric standards for 

nitrogen and phosphorus-so-called "nutrient pollution"- discharged into waterways in the state of Florida, which 

frequently result in algal blooms and oxygen-starved "dead zones" devoid of wildlife. 75 Fed. Reg. at 4178. EPA is 

acting pursuant to its authority under section 303(c) of the Clean Water Act (CWA), which places primary authority for 

setting water quality standards with the states, but permits EPA to intervene to set a state's standard if EPA determines 

that the state has failed to set a standard consistent with the requirements of the CWA. 33 U.S.C. § 1313(c). This is the 

first time the EPA has intervened to set a state's water quality standards under the CWA. John Frank, EPA Plans to Set 

Water-Quality Standards in Florida, a National First, MIAMI HERALD, Jan. 16, 2010, available at 

http://www.miamiherald.com/news/southflorida/story/1428237.html. 

Comment ID 0597.001.001 

Author Name: Hecker J. 

Organization: Conservancy of Southwest Florida 

GOOD AFTERNOON, ON BEHALF OF THE CONSERVANCY OF SOUTHWEST FLORIDA AND OUR MORE THAN 

6,000 MEMBERS. / WE ARE HERE TODAY TO EXPRESS OUR STRONG SUPPORT FOR THE EPA DEVELOPING 

NUMERIC NUTRIENT STANDARDS FOR FLORIDA WATERBODIES. 

IN THE TWELVE YEARS SINCE EPA NOTIFIED THE FLORIDA DEPARTMENT OF ENVIRONMENTAL 

PROTECTION TO SET NUMERIC NUTRIENT STANDARDS FOR FL, COUNTLESS DEVELOPMENT PROJECTS 

HAVE BEEN PERMITTED WITH INSUFFICIENT STORMWATER TREATMENT. / NUTRIENT POLLUTION WHICH 

11/19/2010 02:48 PM EST 2-1582
 
Chapter 2 - Comment Documents Background 

COULD HAVE BEEN PREVENTED THROUGH PROPER SOURCE CONTROL, HAS NOW ACCUMULATED TO 

UNSAFE LEVELS DOWNSTREAM. / OF THE TEN ESTUARY WATERSHEDS IN SOUTHWEST FLORIDA, ALL ARE 

NOT MEETING THEIR STATE WATER QUALITY STANDARDS PRESENTLY - WITH 43-100% OF THEIR TOTAL 

ACREAGE BEING CURRENTLY CLASSIFIED IMPAIRED. / BEING ONE OF THE GROUPS WHO NOMINATED THE 

CALOOSAHATCHEE AS AMERICA'S MOST ENDANGERED RIVER IN 2006 - BASED IN PART TO THE TOXINS 

PRODUCED FROM A NUTRIENT-INDUCED BLUE-GREEN ALGAE OUTBREAK, OUR MEMBERS CAN SPEAK TO 

NUTRIENT POLLUTION AS NOT ONLY BEING AN ENVIRONMENTAL RISK - BUT A SERIOUS HUMAN HEALTH 

RISK AS WELL. 

Comment ID 0612.001.002 

Author Name: Daltry M. 

Organization: Sierra Club - Ft. Myer's Office 

For many years our waters have been impaired due to excessive nutrient runoff. In Southwest Florida we have suffered 

through various harmful algal blooms including severe episodes of Red Tide and toxic blue-green algae. The impacts of 

these harmful algal blooms have affected our health, our tourism economy and our environment. 

Comment ID 0612.001.004 

Author Name: Daltry M. 

Organization: Sierra Club - Ft. Myer's Office 

As another example of the extent of the devastation to our water bodies, in 2006 the Caloosahatchee er was ranked 

seventh out of the ten most Endangered rivers in the United States by the American Rivers organization. While this is 

not a designation that we are proud of, it does demonstrate the magnitude of the pollution problems in our local waters. 

Comment ID 0613.001.004 

Author Name: Musgrove M. 

Organization: Florida Wildlife Federation 

Of 823 water bodies listed in 2002 as impaired, 550 - 60 percent were the result of excess nutrients, i.e. runoff from 

farms suburban farms, the leaching from septic tanks, discharges from urban sewer systems and, in South Florida, 

discharges to sea that are feeding the agal blooms destroying near-shore reefs. 

Lake Okeechobee is a tragic case in point: It has an accumulated legacy of phosphorus so polluting that lakeside 

communities can no longer afford to draw and to treat water for drinking from the largest lake in the state. The Seminole 

Indian tribe (which services unincorporated communities on the northwest shore) and Clewiston on the west shore, and 

on the east shore the municipalities of South Bay, Belle Glade and Pahokee have been forced - for public health 

11/19/2010 02:48 PM EST 2-1583
 
Chapter 2 - Comment Documents Background 

reasons - to go to wells at total costs in excess of $100 million. Okeechobee water utility now blends lake with well 

water before treating it. During summer months, algal blooms cover vast reaches of the lake, which - depending on 

conditions - are discharged into the Caloosahatchee and St. Lucie Rivers and the C-51 West Palm Beach canal that 

discharges into the Lake Worth Lagoon. I have sat in offices at the South Florida Water Management District and 

looked down at that canal - that has a larger flow than many of the rivers on the eastern seaboard - when it was pea 

green. Some of your own employees have been reprimanded for calling attention to the dangers of the toxicity of bluegreen algae. 

Comment ID 0648.001.005 

Author Name: Castile C. 

Organization: 

In January, I stood up at a conference, a press conference and stated that a one-size-fits-all nutrient criteria for the 

State of Florida was not going to work and also recognized that the algae problems that we have in this State are bad 

for wildlife and bad for people and bad for property values and we did need to take -- we did need to address that. 

Comment ID 0674.001.001 

Author Name: Bishop B. 

Organization: Associated Industries of Florida 

I appreciated the comments from the plaintiff's attorney from Earthjustice, that she was concerned about the algae 

bloom on her water. Perhaps she took too many law and not enough science classes because algae blooms, red tides 

have been happening for tens of millions of years, and we could have told her that. She could have saved herself 

buying property on the waterfront. But I'd like to really talk about three things right now. 

Comment ID 0678.001.003 

Author Name: Adams C. 

Organization: 

Another speaker discussed, one of my colleagues, lack of number on the occurrence algae blooms throughout history. 

We're not arguing that blooms haven't occurred for millions of years. The problem is algae blooms are now invading 

inland areas, areas where they have never been. They happen more often and they last much longer than they should. 

In fact, we're going on almost a year now in Tampa Bay of having an algae bloom out there. This is not natural. My 

colleague informed me, in fact, that there had never been an algae bloom in her pond before the one she was talking 

about, and people have lived in that area for about thirty years now. 

11/19/2010 02:48 PM EST 2-1584
 
Chapter 2 - Comment Documents Background 

Comment ID 0691.001.002 

Author Name: Tripp K. 

Organization: Save the Manatee Club 

Good evening. My name is Katie Tripp. I'm a director of science and conservation for Save the Manatee Club. Since 

2001, at least 381 endangered manatees have died from red tide exposure in this state. 101 of those deaths actually 

occurred when I worked in 2001 with the State with their marine mammal pathobiology facility, and we were completing 

as many as eight necropsies a day before this outbreak. In days before this, I had started seeing fish wash up on the 

beaches of Pinellas County, and I knew it was only a matter of time when the manatees would start suffering as well. 

For manatees, red tide acts as a neurotoxin. It give them seizures that cause them to be disoriented and to drown. So in 

a very brief time, red tide turns a very perfect a manatee into a carcass. And the toxin can even accumulate in sea 

grass so that once a bloom has subsided, manatees can still be ingesting fatal doses of these toxins. At the path lab we 

always knew when a manatee would be diagnosed as a red tide death, because as soon as we cut into the carcass, our 

eyes would water and some of us would start coughing from the toxin. 

Comment ID 0708.001.005 

Author Name: Guest D. 

Organization: Earthjustice 

And the one thing I haven't heard from anybody today is the catastrophe that's taking place throughout our waters in 

this state. There's toxic algae blooms that you can see the pictures of outside. I mean, were those taken from another 

planet or were they taken in Florida the last couple of years. How would y'all like to be a landowner and have the river 

in front of your house turn into a stinking toxic algae outbreak that would kill your dog if your dog drank out of it? Who's 

talking about that? Nobody is talking about that. And that's the problem. 

Comment ID 0708.001.007 

Author Name: Guest D. 

Organization: Earthjustice 

And across those 12 years is when the worst of these toxic algal growths have taken place, in the St. Johns River, the 

Caloosahatchee. You've seen the pictures outside. Not lake Apopka, that started before that. Orange Lake, near here, 

that thing is just covered with green slime. It's a disaster. It used to be one of the most beautiful places in the state. This 

thing is killing the economy, and we can't pretend that it's not. And then turning, lastly, to the matter of whether the fish 

like it. There's been an argument, and we haven't heard it here, that the pollution is really okay. No, there are no 

starving oysters out there and there never will be. 

Comment ID 0709.001.004 

11/19/2010 02:48 PM EST 2-1585
 
Chapter 2 - Comment Documents Background 

Author Name: Costello C. 

Organization: Sierra Club 

In 2005 a devastating red tide outbreak and a Rhode Island-sized hypoxic zone woke up Gulf Coast Florida. And at that 

point people in the communities along the Gulf Coast that were so devastated began to focus on what could they do to 

prevent harmful algal blooms. 

Comment ID 0717.001.012 

Author Name: Brown R. 

Organization: Manatee County Natural Resources Department 

And if I could just have one minute to comment on your slide five that was presented on Lake Manatee, I have to 

comment on that. The acknowledgement was not of our staff, who took the picture, and the basis of that picture was a 

decade-old event. It was an event that happened, and we do have events. And that wind-blown algae bloom that you 

saw in the picture was only 20-by-a-hundred-foot bloom within an 1800-acre lake. 

So I am hoping that this ruling does not regulate episodes. We have to look at the big scale. Thank you. 

Comment ID 0742.001.002 

Author Name: Britt M. 

Organization: Natural Resources Division, City of Winter Haven 

A couple of things, I think, maybe that have not been testified to yet include some of the initial slides that you showed 

were of some significant Microcystis blooms that happened throughout the state. I've been with the City about 20 years 

and in that time we've implemented about nine large stormwater treatment projects. A lot of that has been done in 

conjunction with the Southwest Florida Water Management District and a couple of 319 grants thrown in to complete 

that work. 

And since about the mid-1990s we've had very few Microcystis blooms. Before that time we could count pretty regularly 

the times, probably three or four times a year, we would have pretty major blooms. But since then those blooms have 

been reduced, so we feel like we've had some positive benefits. 

Comment ID 0744.001.005 

Author Name: Kovach C. 

Organization: CF Industries 

11/19/2010 02:48 PM EST 2-1586
 
Chapter 2 - Comment Documents Background 

When the hand was thrust through the slime, the water had a horrible slimy, warm feeling. The fish came up cold and 

firm, firm showing that below the water was clear and cold. 

This account was written by W.R. Hamilton in 1888 in a travel up the Perdido River. 

Comment ID 0744.001.008 

Author Name: Kovach C. 

Organization: CF Industries 

With all due respect, I think it's reprehensible to spread misinformation and fear about health impacts unrelated to 

regulatory proposal. Your presentation suggests that bladder cancer and liver damage may result from nutrient 

pollution. But I don't believe the agency has actually provided any information that there's been any link to that. 

Also, there's no blue baby epidemic in Florida. I would challenge the agency to link blue baby syndrome to any 

nitrification of surface waters in this state or even to show a case of blue baby syndrome in the last decade or two. That 

kind of information is really not helpful. 

Comment ID 0746.001.004 

Author Name: Long A. 

Organization: Lowndes, Drosdick, Doster, Kantor & Reed 

The photos being used are not representative of the water bodies as they are presented to depict. In addition to those 

referenced for Manatee County, the one that shows Lake Apopka is over 16 years old. Stating that the proposed criteria 

is based on data and information that is in part DEP-derived is also misleading for the FDEP's fact sheet regarding the 

propose criteria dated February 15th, 2010. 

Comment ID 0752.001.003 

Author Name: Bystrak L. 

Organization: Oklawaha Valley Audubon Society 

On December 14th, only two months ago, our club sponsored an annual Christmas bird count on the marsh by Lake 

Yale. My territory was Lake Yale. Piling in my kayak without my bifocals and in a very dense fog, I did not realize that 

the pollen I thought was covering the lake was really an algal bloom until the fog disappeared. 

At about that time I noticed what appeared to be a muskrat thrashing around in the water apparently drowning. As I 

watched for almost ten minutes, I realized he was dying from the toxin in the water. I collected a sample, took it to a 

nearby St. Johns Water Management District facility and it was identified as Microcystis. 

11/19/2010 02:48 PM EST 2-1587
 
Chapter 2 - Comment Documents Background 

Upon further research, I discovered a bar graph created by the staff, which you have that graph with you. That graph 

shows an increase in total phosphorous in Lake Yale of 103 percent. 103 percent total phosphorous increase between 

'92 and 2007. Both Haynes Creek and Lake Yale are good examples of how dangerous Florida surface waters can be, 

especially to kayakers like me. I paddle with four different Central Florida kayakings groups. We have direct contact with 

the water. And although the water we paddle contains alligators and deadly poisonous snakes, it's the E. Coli and the 

Microcystis that I worry about the most. Both are associated with too many nutrients. 

Comment ID 0759.001.005 

Author Name: Costello C. 

Organization: Sierra Club 

We've experienced red tide, hypoxic zones, red drift algae has wrought its damage. Microcystis in our inland waters; 

Pyrodinium; the bahamense which plagued Tampa Bay this summer; Takayama tuberculata that was off the coast of 

Marco Island, Collier County. And other harmful and nuisance algae blooms. 

They have done a lot of damage to the Gulf Coast, not only to our tourist economy which is what we're based on. 

People come to the Gulf Coast for the beaches, for the water. 

But also to human health. Emergency room visits increased by 50 percent for respiratory ailments when we have like 

red tide outbreaks. The average age in the City of Venice in Sarasota County is 69. So we not only have the increased 

number of asthmatics that exist in the world today, but we have an elderly population that is especially stricken by the 

toxin, the brevetoxin that is given off by Karenia brevis. 

And then there's the quality of life. People that live here or visit want to go to the beach, and when you can't go to the 

beach, your vacation plans or your weekly plans are messed up, to say the least. 

Comment ID 0760.001.002 

Author Name: Bernandy M. 

Organization: Physicians for Social Responsibility 

But in my current capacity as a healthcare provider, I'm concerned about the effects of nitrogen pollution on our health. 

We know that runoff contains endocrine disruptors that have consequences on how our bodies function. With the everrising cost of healthcare, will the proposed price increases compensate for an increase in future healthcare costs? Out 

of concern for the citizens of Florida and their well-being and health, we as healthcare providers support nutrient 

standards. Thank you. 

11/19/2010 02:48 PM EST 2-1588
 
Chapter 2 - Comment Documents Background 

Comment ID 0770.001.006 

Author Name: Wheeler B. 

Organization: Tohopekaliga (Toho) Water Authority 

And just one last thing. I guess it doesn't befit this discussion for you-all to continue to bring up the issue of Blue Baby 

Syndrome associated with nitrogen contamination. It's a whole order of magnitude greater than what's associated with 

algae blooms. And, really, the present water standards in Florida are highly protective of that situation, so I'd think it 

would be better for our discussion if we put that off to the side and just focused on the real issue at hand here which is 

the algae situation. 

Comment ID 0772.001.009 

Author Name: Height C. 

Organization: Sierra Club of Central Florida 

So even though people are worried about, you know, what may happen if we implement these things, the fact of the 

matter is that we have a crisis. We have a water quality crisis. We have a health and safety crisis. People's health -- I'm 

a registered nurse. I'm a hospice nurse. And I've seen firsthand -- I also do pediatric nursing. And I can see what 

happens when the quality of lakes near the homes that I take care of these kids on trachs, they are impacted. And 

they're on trachs and they're in vents and they have oxygen, and they suffer when water quality puts organisms in the 

air. 

Comment ID 0786.001.002 

Author Name: Veaudry K. 

Organization: Florida Native Plant Society 

The excess nitrogen and phosphorus have led to significant water quality problems including harmful algal blooms, 

dead zones and declines in wildlife and wildlife habitat, not to mention the economic damage to fisheries and estuaries. 

Comment ID 0786.001.009 

Author Name: Veaudry K. 

Organization: Florida Native Plant Society 

Nutrient pollution is one of the most serious sources of pollution in Florida to our 1700 streams, 7,800 lakes and 27 first 

magnitude springs and coastlines of important estuaries, harming economic opportunities to the fishing industry, 

causing damage to the aquatic-eco systems and hampering ecotourism and diminishing our quality of life. 

11/19/2010 02:48 PM EST 2-1589
 
Chapter 2 - Comment Documents Background 

Comment ID 0787.001.002 

Author Name: Hitchcock J. 

Organization: United Waterfowlers of Florida 

Now the water is clouded by the different types of algae. They're not just blue-green algae, but other types of algae that 

cause water pollen. When the algae dies, it ends up on the bottom as muck. You got algae that veneers on the eel 

grass, destroys the eel grass. And then your food web goes from there; your invertebrates and your macro 

invertebrates die because they don't have the habitat to live in. 

Not much has been said about the marshes themselves. The areas along the ordinary high waterline where we duck 

hunt mostly now, you never see anybody in there except duck hunters. Maybe a few guys in airboats frog gigging when 

the water is high. But other than that, it's duck hunters that go there. 

And those areas are nutrient-laden moist soils, and the willows and cattails have overgrown them and destroyed the 

food web in those areas as well. So you impact all of the waterfowl in the entire food web in all of the places where 

waterfowl migrate in and out of Florida. 

And it's important that waterfowl have food when they migrate. Especially when they're migrating back, they need 

mostly vegetative for the high carbohydrates for the migration back. By the time they arrive back to Florida on their way 

north, they're coordinating and beginning to breathe; and they don't need to be wasting a lot of time finding food. 

So this issue impacts all waterfowl. Not just ducks -- shore birds and all of the other linked animals, mammals that are in 

the food web. 

Comment ID 0825.001.005 

Author Name: Wilson-Davis L. 

Organization: City of Boca Raton 

One last concern is the apparent misinformation and fear mongering in the reference to blue babies. There is no 

methemoglobinemia or blue baby syndrome epidemic in Florida. Unlike most states, Florida has nitrate groundwater 

standards for drinking water. In fact, FDEP's drinking water standard Web site it states drinking water that meets the 

EPA standard is associated with little to none of this risk and is considered safe with respect to nitrate. 

Comment ID 0852.001.001 

Author Name: Clark D. 

Organization: Cry of the Water 

11/19/2010 02:48 PM EST 2-1590
 
Chapter 2 - Comment Documents Background 

And although there's been a movement afoot to lessen the amount of nutrients that go in the swamp and stop the 

cattails from going in the swamp, I have seen firsthand those health harmful algae blooms, those Lyngbya blooms and 

such. I do understand that this group is dealing with inland bodies of water, and there will be upcoming meetings for the 

coastal communities and we will be attending those, as well. But all the canals and basically all these bodies of water 

we are talking about in southeast Florida all flow to the coast. They can no longer put dirty water in the Everglades, per 

se, so we've become the waste gate, off the west coast and out the east coast. And when there's times of plenty, when 

there's lots of water - it's been drought conditions for awhile - but when they have lots of water they can put a billion 

gallons a day at a time. And I see those effects. I've swam on the reefs that have been there since close to hundreds of 

years to be wiped out in a single event from harmful algae blooms. Also, the inland bodies, part of that ecosystem is the 

grass flats and some of the inland bodies, as well, so that does fall under your jurisdiction. And we can't expect to clean 

up the reef with the water out there on the reef if we don't address the issue of what's flowing to the reefs. And the reefs 

ultimately are our downstream and everything. I mean, our water shoots up the Kissimmee Valley, some people 

referred to. 

Comment ID 0860.001.004 

Author Name: del Real P. 

Organization: Aurora's Voice 

One other comment that nobody has touched on really. We are speaking about water quality and that includes human 

health quality. Maybe somebody did mention health quality - health care quality. But if the water quality in Florida is 

poor and we are comprised primarily of water, then human health is being compromised. If the lakes and streams and 

rivers and canals have too much nitrogen and too much phosphorus, then our bodies have too much nitrogen and too 

much phosphorus because we are a reflection of the water system that we live in. 

Comment ID 0871.001.003 

Author Name: Mahoney S. 

Organization: Sierra Club, Miami group 

Also, they will harm general quality of life when you have too many, as we saw again in the slides, excessive nutrients 

leading to the algal blooms and causing problems with the canals in many places. These can also cause impact to 

human health, as our previous speaker mentioned earlier. 

Comment ID 0872.001.004 

Author Name: Schwartz M. 

Organization: Sierra Club 

Science -- There was one study I was going to quote. Gregory Noe, U.S. Geological Survey; Daniel Child, the 

11/19/2010 02:48 PM EST 2-1591
 
Chapter 2 - Comment Documents Background 

Department of Biology, FIU. This is one of many studies: Phosphorus Budgets in Everglades, Wetland Ecosystem, the 

effects of hydrology and nutrient enrichment. The conclusion is phosphorus enrichment caused a large increase in the 

importance of macrophage, especially in the Everglades wetlands. It represents large shores of internal eutrophication 

to surface waters and phosphorus enriched waters of the Everglades. We are very concerned about that. We're talking 

about the economy. We're very concerned about the estuaries; the St. Lucie, the Biscayne Bay, Florida Bay, gigantic 

fisheries in there. We know. I have been coming down here since the '70s. I have seen the changes in those bodies of 

water. Eutrophication, for those who don't understand the word, American Heritage dictionary, having waters rich in 

minerals and organic nutrients that promote a proliferation of plant life, especially algae, which reduces and dissolves 

oxygen content and often causes the extinction of other organisms. This is very important to the Sierra Club, to our 

national parks, to the quality of life, the things that bring residents and tourists to South Florida. 

Comment ID 0896-2.001.021 

Author Name: * * 

Organization: Lee County Board of County Commissioners 

• However, it must also be recognized that nutrients while considered non-toxic and do pose a threat to the public 

health, safety and welfare. 

Comment ID 0897.001.011 

Author Name: Phillips J. 

Organization: Florida Public Employees for Environmental Responsibility 

The Need for Criteria - FDEP has long realized the importance of establishing water quality standards for protection 

against nitrogen and phosphorus pollution (nutrient pollution) . Nutrient pollution leads to significant water quality 

problems such as harmful algal blooms, low-oxygen "dead zones" in water bodies, and declines in wildlife and wildlife 

habitat. These effects can also disrupt recreational activities and pose threats to public health . 

Comment ID 0901.001.002 

Author Name: Brant T. 

Organization: American Health Trust, Inc. and Santa Fe Lake Dwellers Association 

PROPOSED NUMERIC NUTRIENT STANDARDS Nutrient pollution and algal blooms hurt our river, economy and 

quality of life. Economic losses can include a decline in property values, commercial fishery losses, medical costs to 

treat exposure to algal toxins, costs to treat drinking water, and lost revenues from recreational fishing, boating and 

tourism. Failure to adopt standards will raise, not lower costs. 

11/19/2010 02:48 PM EST 2-1592
 
Chapter 2 - Comment Documents Background 

Comment ID 0930.001.001 

Author Name: Hall S. 

Organization: 

Harmful algal blooms have been known to produce human health effects such as rashes, eye irritation, asthma attacks, 

or liver damage. These harmful algal blooms also result in massive economic losses to communities along Florida's 

coast, affecting restaurants, lodges/hotels, fishing, and various other large contributors to Florida's economy. 

Comment ID 0936.001.002 

Author Name: Golding S. 

Organization: Beaches Watch, Inc. 

1. We are concerned about excess nutrients that are currently causing significant water quality problems in the St. 

Johns River and its tributaries, including toxic algae blooms and dead zones. 

Comment ID 0942.001.010 

Author Name: Reed K. 

Organization: 

Gulf Sturgeon (Acipenser oxyrhynchus desotoi), this is one of two sturgeons found dead in Garnier's Bayou during the 

fish kill of 2006. (Photographed by Jim Roberson) Management decisions have been made about our bayou, based on 

reports that it is not part of the Gulf Sturgeon's main habitat. I believe those reports are mistaken. While this may not be 

its main breeding ground, to protect endangered 

Original comment letter contains additional information in a photograph of a Garniers Bayou fish kill from Jim Roberson. 

See original comment letter. 

Comment ID 0954.001.002 

Author Name: Crenshaw A. 

Organization: United States House of Representatives 

Here are the facts: Nutrient pollution can damage drinking water sources; increase exposure to harmful algal blooms 

causing damage to the nervous system or even death; form byproducts in drinking water from disinfection chemicals, 

some of which have been linked with serious human illnesses like bladder cancer. 

11/19/2010 02:48 PM EST 2-1593
 
Chapter 2 - Comment Documents Background 

Comment ID 0963.001.001 

Author Name: Kevany M. 

Organization: 

In Indian River Lagoon, North America's most wildlife diverse estuary, about 15% of the resident bottlenose dolphins 

are suffering from nutrient pollution with skin-eating fungal infections. This increase in diseased dolphins happened 

during the 2005 St. Lucie algal bloom. Suffering continues because nutrient loading has not sufficiently decreased since 

the onslaught. Offshore dolphin populations are exhibiting skin-eating fungal infections as well. 

Florida algal bloom cause fish kills both fresh water and salt. Increasing numbers of marine fish are covered with 

lesions. It is vital to me that Florida cap phosphorous and nitrogen levels, and that you aggressively regulate to reduce 

nutrient pollution that punishes us all. 

Comment ID 0965.001.006 

Author Name: Medintz M. 

Organization: 

It is clear that the costs of the lack of numeric controls are currently being borne now by Florida citizens, because they 

are made ill, because they are confined to their homes, because they must clean up the fish kills and other damage 

caused by excessive nutrients and because their economy is affected by the impact of degraded resources on tourism 

and our economy. 

Comment ID 0965.001.010 

Author Name: Medintz M. 

Organization: 

Since moving to Florida we have experienced several occasions of red tide, one of which was extremely serious, 

resulting in extensive fish kills next to our property, offensive odors, and difficulty breathing without coughing and pain in 

the chest. Percy's father lived farther north on the gulf in Sarasota County and was affected so seriously that he could 

not leave his home during red tide events. The area lived in fear that red tide would have an effect on tourism, to the 

point that local businesses talked about the need to downplay the problem for fear of frightening off tourists. As an 

economic matter our area is totally dependent on tourism and the visits of retirees. 

Comment ID 0995.001.002 

Author Name: Hilliard M. 

11/19/2010 02:48 PM EST 2-1594
 
Chapter 2 - Comment Documents Background 

Organization: National Garden Clubs, Inc. 

In more than two decades I haven't eaten fish or crabs caught in these waters due to serious concerns with repetitive 

fish and bird killing red tides, and harmful green algae outbreaks. Could the bird and fish deaths be similar to the mine 

canary's warnings? I believe so! It seems to me that we have enough facts before us to be properly warned. 

Comment ID 1005.001.002 

Author Name: Heatherington K. 

Organization: Southwest Florida Regional Planning Council 

The proposed Numeric Nutrient Criteria are needed to protect human and environmental health and safety . There is 

indisputable scientific evidence that excess nutrients are linked to increased severity and frequency of harmful algal 

blooms. Those blooms occur routinely throughout Florida, in some cases causing serious human health effects 

including rashes, eye irritation, asthma attacks, or liver damage. 

Comment ID 1006.001.003 

Author Name: Capozzelli J. 

Organization: 

In Florida, 16 percent of rivers, 36 percent of lakes and 25 percent of estuaries are considered impaired, according to a 

2008 report . 

A Florida DEP report found that 50 percent of the state's rivers and lakes had poor water quality due to too much 

nutrients . Nutrient pollution is the most prevalent water-pollution problem in the state, contributing to algae blooms that 

kill fish and cause respiratory problems and infections among boaters and beachgoers. The EPA has linked "ocean 

dead zones" deprived of oxygen and life to nutrient pollution hemorrhaging from watersheds. 

I have read that in Indian River Lagoon, North America's most wildlife diverse estuary, about 15 percent of the resident 

bottlenose dolphins are suffering from nutrient pollution with skin-eating fungal infections . This increase in diseased 

dolphins happened during the 2005 St. Lucie algal bloom. Suffering continues because nutrient loading has not 

sufficiently decreased since the onslaught . Offshore dolphin populations are exhibiting skin-eating fungal infections as 

well. 

Florida algal bloom cause fish kills both fresh water and salt. Increasing numbers of marine fish are covered with 

lesions. 

Comment ID 1025.001.005 

11/19/2010 02:48 PM EST 2-1595
 
Chapter 2 - Comment Documents Background 

Author Name: Heuer M. 

Organization: 

I guess during the massive polluted water releases down the Caloosahatchee several years ago we suffered, at the 

bottom of the toilet, so to speak, directly observable negative effects. I felt really violated personally to see the actions of 

those many miles from us threaten what we had worked so hard to preserve. Our estuary became a dead zone. Our 

tourism suffered. Residents suffered, the wildlife suffered as red tide became a common occurrence. Old-timers said 

they rarely saw blooms, and suddenly they were commonplace. Driving over a causeway, you could smell the stench of 

sewage. Today you can still notice that smell on Captiva Island, which is all on septic still. 

Comment ID 1026.001.003 

Author Name: Larsen S. 

Organization: 

The proposed EPA numeric nutrient standards are an important first step. Excessive nitrogen and phosphorus are 

known to produce harmful algal blooms. These blooms and the associated health impacts are detrimental to our 

economy, which relies heavily on tourism to our lakes, rivers, estuaries, and beaches. 

As an intern at the Coastal Watershed Institute at Florida Gulf Coast University, I have seen firsthand harmful algal 

blooms clog and suffocate the Caloosahatchee River. 

Comment ID 1030.001.004 

Author Name: Ayech B. 

Organization: 

We know that local governance -- governments have recognized the importance of controlling phosphorus and nitrogen. 

Many local governments have adopted fertilizer ordinances. They see it, they know it. It isn't good for their economy. 

We're a tourist area. Green slime does not sell well on television or in beautiful brochures. So they are taking first steps, 

and I commend them for it and ask everybody else to join in. 

Comment ID 1031.001.004 

Author Name: Campbell R. 

Organization: Sanibel Island Fishing Club 

Sanibel Island has installed a modern sewer system on the entire island. We have enacted fertilizer control ordinances 

and are doing wetland reclamation products -- projects, rather. There is still more to do, as we learn to use less water, 

11/19/2010 02:48 PM EST 2-1596
 
Chapter 2 - Comment Documents Background 

manage our waste streams, and control the use of fertilizers. We believe that all residents and businesses along this 

severely impacted waterway should do the same. 

Comment ID 1038.001.002 

Author Name: Arnason D. 

Organization: 

In North Fort Myers, for instance, the canal that used to be filled with turtles and fish became a dirty, smelly, oily mess 

from runoff after Pondella Road was four-laned by our home. 

I have been disappointed living close to Vanderbilt Beach as more and more red tide bloomed, especially when we had 

friends visit from up North. It seemed to be timed that way. Our beautiful beach was loaded with dead fish and stunk to 

high heaven. We coughed a lot and believe this red tide is toxic to humans also. Farm runoff is feeding red tide and 

creating dead zones. This does not bode well for tourism in Florida. We need the EPA to monitor and stop this excess 

assault on our beaches. 

The Estero and Ichetucknee Rivers, where we canoed, have become less clear and filled with scum. Our local 

Caloosahatchee now has more patches of a algae, although a lock keeps our little area a bit cleaner than the 

surrounding river. It's funny because you show the exactly that on the -- on the map up there. I understand from friends 

last year that they to move from Olga on the rive due to water pollutants that made their son ill. 

I've seen fewer and fewer waterbirds along our shores and at the Gulf beaches from Dunedin to Sarasota to Venice to 

Manasota Key to Fort Myers to Sanibel to Naples, where we like to take friends who visit. I suppose that's due to less 

fish and other pollutants. Live shells are nonexistent, and old maids curls and pretty scallop shells are much hard to 

find. I guess these creatures can't survive in the acidic soup our Gulf waters have become. 

We have tried to live in -- we tried to live in Northern Florida in 2005, 2006. We were forced to move from our new home 

near the Santa Fe Rive because of water and air pollution. Our well water, a beautiful aqua color, was undrinkable, due 

to heavy phosphorus from local cement mining that invaded the water table. At first we thought we were both stricken 

with arthritis or Lyme disease or multiple sclerosis, the reaction was so severe. We could hardly move. My husband had 

trouble breathing from the coal burning we were surrounding with, as did our neighbors. We both had our blood and 

urine tested, since I was experiencing numbness and tingling -- do you want to -­

MR. KEATING: Can you keep recording while she speaks? Does that work? 

MS. ARNASON: We had our blood and urine tested, since I was experiencing the same numbness and tingling and 

muscle spasms I had previously from mercury poisoning. Sure enough, once we were loaded with mercury, lead, and 

antimony, as were the fish in our rivers. We were forced to sell our newly built home and move to Alva. Now what? 

Comment ID 1039.001.002 

11/19/2010 02:48 PM EST 2-1597
 
Chapter 2 - Comment Documents Background 

Author Name: Miller L. 

Organization: League of Women Voters 

Those of us who live in Southwest Florida need no reminders of what happens when the water on our beaches and in 

our estuaries becomes polluted with such nutrients as phosphorus and nitrogen. The beaches become uninhabitable 

and the harbors and byways are covered with blue-green slime. Not only does our quality of life suffer, but the tourist 

industry suffers as well. We support all efforts to prevent such occurrence. 

Comment ID 1044.001.003 

Author Name: Nardi H. 

Organization: 

Now, coming down here, I had no idea how special and how unique this ecosystem was until I got to explore the area. I 

think that's a big part of the reason why students come to school in Florida, is for our beaches and our lovely weather. 

And if we don't have healthy waterways, then I think that will -- I think that will decrease the likelihood of a lot of people 

coming and staying here once they graduate from college. So I think that's also something important to take into 

consideration. So thank you. 

Comment ID 1046.001.002 

Author Name: Sabourin D. 

Organization: 

Now unclean or unhealthy waterways, all water flows back out to the oceans, so that will eventually lead to the algae 

blooms and red tide, which will kill the fish that my nieces and nephews so love to see and marvel at. 

And my brothers are concerned for their health, so if health conditions on coastlines should grow out of control because 

of a lack of numeric nutrient standards, and red tide and algae blooms become more common, they'll become less and 

less willing to come to Florida for their summer vacations. And for me, that would just be terrible because I wouldn't get 

to see my nieces and nephews. My parents wouldn't get to see their grandchildren. 

Comment ID 1072.001.002 

Author Name: Holsinger M. 

Organization: Holsinger Horticultural Services 

And I have noticed in the last five or so years, of the 25 that we've been done here, a significant increase in red drift 

algae on the beach. And we did have the big red tide outbreak in 2005, where we couldn't even walk on the beach. But 

11/19/2010 02:48 PM EST 2-1598
 
Chapter 2 - Comment Documents Background 

more than that, just the red drift algae, which would have to be cleaned off by the county with bulldozers and stuff, you 

know. It wasn't any fun a lot of the times in walking. It smelled. People didn't like it. I noticed the tourist traffic goes 

down. Now, as a the resident, that probably was pretty good for me, you know, the traffic wasn't as bad. But it wasn't 

good for the businesses. 

So I have noticed those degradations myself. I also have fished in Lake Okeechobee, but the last time I went, I couldn't 

hardly fish because there's an algae bloom in the areas, and I couldn't do it anymore. I couldn't -- it wasn't effective. I 

know about the, you know, Saint Johns River in -- up in Jacksonville or the Florida Bay, the Everglades problem. And 

see, what has happened and how much expensive we have to go now in the Everglades to even clean it up, if we can 

get it cleaned up. 

Comment ID 1075.001.004 

Author Name: Judah R. 

Organization: Lee County Board of County Commissioners 

In Lee County we know about the terminology of Lyngbya, or cyanobacteria. We know the effects of Lyngbya because 

of the heavy concentration of nitrogen and phosphorus coming down the Caloosahatchee River from Lake 

Okeechobee, creating filamentous algae that covers and suffocates the grass beds, which is the basis of our marine 

food web that we rely on with our multimillion dollar sport, commercial fishing industry. We know about cyanobacteria, 

toxic to not only wildlife, but also to humans, and we've had public health warnings, again, because of blue-green algae 

in the Caloosahatchee River. 

Comment ID 1081.001.004 

Author Name: Snapp A. 

Organization: Caloosahatchee River Citizens Association or Riverwatch 

The health of our human community is also at risk from the algae blossoms and red tide events. We all know the 

respiratory impacts that these can cause. A clean water and a healthy environment should be something we can all 

agree on. If these standards had been put in place 10 years ago, we would not have the chronic problems that we see 

all over the State of Florida, including Southwest Florida. 

Comment ID 1082.001.002 

Author Name: Morton C. 

Organization: 

And, of course, lately it's really sad because probably at least twice a month now I'm starting to see a dead fish come 

right up on the bank, and I end up having to take it out. 

11/19/2010 02:48 PM EST 2-1599
 
Chapter 2 - Comment Documents Background 

And last week there was even a pelican that was swimming -- well, there was two of them, but one was them was 

swimming upstream, and other one was kind of just drifting along. And I had a friend over visiting, and I said, I wonder 

what -- I said, That's kind of unusual. Well, the next morning -- now, I'm not -- I don't know that the pelican died because 

of the water, but there's a lot of stuff in that water. And the next morning it was lying on my bank, and it was completely 

dead. 

11/19/2010 02:48 PM EST 2-1600
 
Chapter 2 - Comment Documents Background 

Comment ID 1085.001.002 

Author Name: Kamener K. 

Organization: Concerned Citizens of Bayshore 

And I just feel if the special interests are going to continue to dictate our lives, then they should be responsible, like 

some of the other speakers said, to clean up the mess that create. And if they find out that this neurotoxin in green 

algae is -- contributes to autism because they're still investigating all of that, then they should be paying the medical 

bills. They should be paying for the livestock that are killed, and the lost tourist dollars. And thank you very much for 

coming and listening to our concerns. 

Comment ID 1094.001.004 

Author Name: Adams C. 

Organization: 

As of 2001, 381 manatees have died from red tide exposure. Toxins produced by the dying algae accumulates in sea 

grasses that the animals feed on. I've heard horror stories about the release of these toxins during autopsies by 

researchers. The toxins were so powerful that they cause the researchers eyes to water and -- which was followed by 

uncontrollable coughing, if you can imagine that experience. 

My father and I are also avid fisherman, and witnessing the decline of Florida's natural ecology has discouraged me 

from eating from what we catch near shore or inland. I can remember not being afraid to get in the water 20 years ago, 

and no warnings or concerns from my father about doing so. Now we discuss that discussion on every trip. Let's think 

logically about this. Someone who witnesses even one red tide, fish kill, dead manatee, algae bloom, or green water 

body during their visit to Florida will remember that more than any other experience they have here, and what's worse 

is, they'll tell others. 

Comment ID 1097.001.002 

Author Name: LaSalle R. 

Organization: 

My husband and I have lived in Florida for four years, and in that time, in that four years we have experienced 

prolonged drought with water shortage and restrictions; red tide, bacteria, and algae blooms that close beaches to 

people and killed off marine wildlife; phosphate mining that threatens the Peace River watershed, which is our source of 

water; overdevelopment resulting in our property value plummeting; as well as inadequate water resources and 

infrastructure. 

Comment ID 1106.001.002 

11/19/2010 02:48 PM EST 2-1601
 
Chapter 2 - Comment Documents Background 

Author Name: DiazAmes A. 

Organization: 

And you know what, I love Florida, but it's just frustrating to come back here and -- and not be able to -- to swim in the 

river. And when I do invite my husband here from Finland, last time we went to the beach, there was red tide, his family 

was here, and red tide, I'm like, "Oh, sorry." You know, we are a tourist state, but, you know, we rely on our tourists so 

that we don't have to pay a federal tax. And so without our rivers, without our nice beaches, without this, it's like, oh, it's 

not going to be a tourist state anymore. 

Comment ID 1112.001.001 

Author Name: Hines B. 

Organization: 

I live on a barrier island. A couple of years ago, we had red tide that lasted almost continually from January to October. 

My husband and I were part of turtle watch. We walked the beaches. We had to be there because we had to be there 

for the turtles. 

There were, in some places, 12, 15, 18 inches of dead sea life. There were tiny fish, there were enormous fish, there 

were turtles. There was nothing alive. And the smell was terrible. You couldn't put -- even put your feet in the water 

because you were hit by dead fish that were coming in. 

Our county came every day and cleaned, but they no sooner left and the beaches again were filled. The canals on the 

island were filled. We had red tide, we had algae. 

Our local businesses, our restaurants, the motel that was -- that's catty corner from where I live, have said that they 

have been hurt much more by the red tide and algae blooms than they have been hurt by the hurricanes. Now, that's 

telling you something. 

The Palma Sola causeway is often shut because of high levels of contaminants and unsafeness. They post it, but, you 

know, they don't enforce it. And I drive, when I go into Bradenton, across that causeway, and I see little kids in that 

water playing. I see tourists with little kids during red tide blooms in that water with the dead sea life. 

I love the island. I love everything about the island. But you know, it's been several years since either my husband or I 

have been in the gulf, even though we used to go down every evening. It's a shame. 

Comment ID 1113.001.006 

Author Name: Barrera K. 

Organization: 

11/19/2010 02:48 PM EST 2-1602
 
Chapter 2 - Comment Documents Background 

Nutrient pollution is the most prevalent water pollution problem in the state. You know all about the serious health 

effects. I recently wrote a paper in Florida History about the springs. And the rashes that are documented in 

Ichetucknee Springs are just incredibly alarming. 

Comment ID 1115.001.006 

Author Name: Baldwin R. 

Organization: 

Near my home, we routinely see endangered wildlife, including manatees and many rare birds. This wildlife is at great 

risk by algae pollution. 

Comment ID 1119.001.002 

Author Name: Weeks T. 

Organization: 

I remember the red tide of 2005. I remember it real well because it liked to have killed me. I couldn't stop coughing, 

these horrible racking coughs that I practically bent over double with. I had to sleep sitting up, or at least try to. 

I remember the dive companies and the fishing guides that went out of business because nobody wanted to dive in the 

gulf or go fishing because everything was dead. 

I remember the hotels and the restaurants and all the other businesses that depend on tourism, and that's a lot around 

here, struggling. Nobody wanted to come here because they were literally taking bull dozers and plowing the dead fish 

off the beach. 

I mean, if you're worried about jobs, you'd better worry about the water. It's a huge part of our livelihood here. 

Most of all, though, I remember the sea turtles, because I was doing marine animal rehabilitation at that time, and every 

day, more sick and dying sea turtles were brought into our facility. 

They basically, it was a neurotoxin in the red tide that was affecting their neural system -- nervous systems, they were 

basically paralyzed. They couldn't even lift their heads up out of the water to breathe. So we couldn't keep them in 

tanks. We had to put them on foam pads and keep them covered with wet towels all the time, very labor intensive. 

There was no real cure for what they had, they really could just receive some supportive care, fluids, and a few of them 

pulled through, but most of them died. And this was the height of sea turtle nesting season, and to my knowledge, over 

150 sea turtles, that's just what I know about, died in Pinellas County that year. 

That's not to consider the ones we didn't find, and it's also not to take into account the hatchlings who were struggling 

11/19/2010 02:48 PM EST 2-1603
 
Chapter 2 - Comment Documents Background 

out of their nests at that time on the beach and poisoned as soon as they hit the water from the red tide. 

Comment ID 1124.001.003 

Author Name: Katz W. 

Organization: Coastal Wildlife Club 

Decades later, in 1985, I moved to Florida, where I discovered manatee and sea turtles. Today we cannot look at these 

animals without anxiety for them and for the loss and degradation of their and our aquatic habitats. A disease called 

fibropapillomatosis affects sea turtles, primarily young green sea turtles, federally listed as endangered. Tumors occur 

internally and externally on soft tissue on the shoulders, heads, and flippers and on the eyes, where they may be fatal if 

a turtle cannot see to find food. Studies suggest an association with polluted bay waters. 

Outbreaks of naturally occurring red tide also are possibly aggravated by man-made pollution. Fortunately, in my area 

we have had no very serious outbreaks in the last -- in the past couple of years. When we do, though, many turtle 

volunteers are forced to suspend their daily monitoring, and, of course, the beaches are littered with dead marine life, 

as others have noted. 

Given the devastating effect on Florida's economy, on our recreational enjoyment, and on the health and well-being of 

humans and wildlife, and the possibility of a connection, a more robust effort toward stopping pollution-causing nutrients 

and anything else that doesn't belong in the water from entering certainly would be appropriate. Lowering the bar is not. 

Comment ID 1135.001.003 

Author Name: Naja M. 

Organization: Everglades Foundation 

Polluted waters are killing our fish, damaging our lakes and estuaries, and affecting our drinking water supply. 

Comment ID 1150.001.002 

Author Name: Davis A. 

Organization: 

We found also last year that tests of the toxins which exceed the threshold level effect by 65 to 85 percent have a 

mortality rate upon the fertile eggs of sensitive organisms, which is quite high. 

If any two toxins in that range are combined, the predicted mortality is 100 percent. This body has 23 toxins in the 65 to 

85 percent range. It is acutely toxic. 

11/19/2010 02:48 PM EST 2-1604
 
Chapter 2 - Comment Documents Background 

Channel 9 here last year featured a story on high infant mortality amongst African American youth in the four zipcodes 

in the watershed. Three of those zipcodes directly abut Clam Bayou, and they are still used as a food source by those 

people. 

Comment ID 1169.001.002 

Author Name: Hendry J. 

Organization: People for Protecting the Peace River 

A major concern to us is the adverse impact on the Peace River and its attendant watershed because the phosphate 

strip mining pits when mine process water is spilled from their berms and/or clay settling ponds into local waterways. 

More than 18 million cubic meters of clay slime was spilled into the Peace River watershed between 1967 and 1994. 

That is only a shadow of what is poised to begin as they begin to hope -- as they plan to mine another 166,000 acres in 

Hardee County. 

The result of these accidental spills include fish kills, dead zones in the river, and explosive growth of invasive 

vegetation, which in turn creates murky water and reduces recreational opportunity, such as canoeing, bass fishing, and 

swimming along the Peace River. 

Also at risk is the quality of drinking water for an estimated 150,000 residents of south central Florida along the banks of 

the Peace River. 

Comment ID 1173.001.002 

Author Name: Dangler H. 

Organization: Ocean River Institute 

Nutrient pollution is the most prevalent water-pollution problem in the state, contributing to algae blooms that kill fish 

and cause respiratory problems and infections among boaters and beachgoers. The EPA has linked ?ocean dead 

zones? deprived of oxygen and life to nutrient pollution hemorrhaging from watersheds. 

Comment ID 1173.001.003 

Author Name: Dangler H. 

Organization: Ocean River Institute 

In Indian River Lagoon, North America?s most wildlife diverse estuary, about 15% of the resident bottlenose dolphins 

are suffering from nutrient pollution with skin-eating fungal infections. This increase in diseased dolphins happened 

during the 2005 St. Lucie algal bloom. Suffering continues because nutrient loading has not sufficiently decreased since 

11/19/2010 02:48 PM EST 2-1605
 
Chapter 2 - Comment Documents Background 

the onslaught. Offshore dolphin populations are exhibiting skin-eating fungal infections as well. 

Florida algal bloom cause fish kills both fresh water and salt. Increasing numbers of marine fish are covered with 

lesions. 

Comment ID 1178.001.007 

Author Name: Ruff R. 

Organization: 

So along with the nutrients come other hazardous chemicals, which find their way into our well tap, canal waters, and 

wetlands, unbeknownst to the innocent locals, who catch fish, frogs, turtles, and alligators there for personal 

consumption. This situation is no different than the coastal counties which rely on ground and surface waters for their 

individual and municipal supplies. Municipal treatment often adds insult to injury, as we know, by chlorinating the 

decomposition by-products of eutrophication, which the nutrients contribute to, otherwise benign precursors, turning 

them into in confirmed carcinogens. 

Comment ID 1183.001.002 

Author Name: Costello C. 

Organization: Sierra Club 

The consequences of excess nutrients have been catastrophic to our tourism-based economy and quality of life. In the 

last decade, excess nitrogen and phosphorus have led to significant water quality problems, including HABs, dead 

zones, fish kills and declines in wildlife habitat in both our inland and coastal waters. 

Comment ID 1190.001.002 

Author Name: Adams K. 

Organization: 

I also have a personal story on how pollution of our waters can cause serious health problems. When I was young, it 

was considered healthful to swim in our saltwater ocean and Gulf. Now if anyone in my home county of Collier has a 

medical procedure done that causes a cut to the skin, the first thing a doctor will tell you is, Stay out of the Gulf. My son 

was involved in a boating accident a few years ago and had cuts on his legs from the boat. Due to the highly polluted 

water he had been injured in, the doctor prescribed that he go to a clinic each day for a month to have a bag of strong 

antibiotics administered by IV. 

Comment ID 1196.001.008 

11/19/2010 02:48 PM EST 2-1606
 
Chapter 2 - Comment Documents Background 

Author Name: Ryan N. 

Organization: 

Then in April of 1996, dissolved oxygen levels in the lake plummeted, causing a massive fish kill. An estimated 50,000 

large fish died in one day, just went belly up, including large mouth Bass, which was the major draw for sports 

fishermen. This was tremendously devastating both environmentally and economically. But this massive fish kill was 

the necessary wake-up call to restore the lake and change the practices that allowed this disaster to occur. 

Comment ID 1203.001.006 

Author Name: Crooks A. 

Organization: 

Nutrient-produced blooms of blue-green algae, red tide, and other types of harmful algae threaten Florida's wildlife 

heritage as one of the most bio diverse places on the planet. 

About half of all federally-listed endangered species are considered to be water dependent, either living in the water, 

utilizing water for a part of its life cycle, or consuming prey from the water. We need numeric criteria to help these 

struggling species continue on the course of recovery. 

There have been mass mortalities in recent times, a devastating loss of dolphins, sea turtles, and manatees. For 

manatees, red tide events have resulted in a considerable number of deaths per year over the last decade, with the 

devastating in 2003 when 101 manatees perished due to red tide. 

Once a harmful algal bloom has occurred, it continues to place additional stress on our fish and wildlife. Not only is red 

tide responsible for mass kills of millions of fish per year, but fish kills result in lower dissolved oxygen, further 

compounding the mass mortality event. 

In 2007, an additional 27 manatees died even after the red tide bloom had moved out of the Caloosahatchee because 

the toxins laced aquatic vegetation the manatee relied on for its sustenance. Nutrient pollution can also have a longterm latent effect on fish and wildlife by adversely affecting their growth and reproduction, as well as resulting in a 

decline of underwater habitats. 

Comment ID 1214.001.002 

Author Name: D’Avanzo E. 

Organization: The 11 Florida Chapters, Surfrider Foundation 

As you can imagine our constituents are true watermen and women of Florida. Clean water is necessary for recreation 

(fishing, swimming, boating, diving, etc) and recreation-based businesses. Exposure to toxic algae can cause staph 

11/19/2010 02:48 PM EST 2-1607
 
Chapter 2 - Comment Documents Background 

infection, rashes, skin and eye irritation, allergic reactions and gastrointestinal upset. Swimming can cause serious 

illness or even death if water is ingested. Some algae are known tumor promoters, producing "neurotoxins" which 

interfere with nerve cell function and "hepatoxins" which attack the liver. 

The Treasure Coast and Suncoast Chapters specifically hope you have not forgotten the horrifying events of 2005 in 

the St. Lucie Estuary when the entire estuary was filled with foul-smelling toxic green algae and on the Gulf Coast 

where Red Tide ran residents and tourists away from our beaches. You and other members of the Congressional 

Delegation recognized the environmental carnage and economic losses caused by those events. The same problem is 

appearing more frequently elsewhere in the state, with large sections of the St. Johns River and Tampa Bay as 

examples of such outbreaks in 2009. 

Comment ID 1214.001.004 

Author Name: D’Avanzo E. 

Organization: The 11 Florida Chapters, Surfrider Foundation 

Florida desperately needs limits on pollution that triggers algae outbreaks. The outbreaks are becoming more frequent 

and more serious. Apart from causing fish kills and making lakes and rivers too dangerous to use for recreation, the 

green slime outbreaks are damaging our economy, depressing property values and threatening our drinking water 

supplies. 

Comment ID 1217-2.001.012 

Author Name: Voyles J. 

Organization: Mosaic Fertilizer LLC 

7. EPA has in numerous respects overstated the harm to public health from nutrients, and the public health benefits of 

reducing nutrient levels by means of these criteria. Many of EPA's statements in the preamble to the Rule, justifying the 

Rule on public health grounds, are not supported by recognized health studies and assessments. It is important for EPA 

to state its scientific evidence regarding harm and benefits to public health with care and caution, neither overstating the 

extent of the science supporting its position nor overlooking other scientific evidence that reaches different conclusions. 

Mosaic offers a critique of some of EPA's statements in the hope that EPA will provide a more balanced statement of 

these public health issues when it issues the final Rule. 

Comment ID 1217-2.001.021 

Author Name: Voyles J. 

Organization: Mosaic Fertilizer LLC 

6. Additional Mosaic Comments 

11/19/2010 02:48 PM EST 2-1608
 
Chapter 2 - Comment Documents Background 

a. EPA's Statements Regarding The Health Effects Of Nutrients Are Inaccurate And Overstated; Care Should Be Taken 

To State Clearly The Full Body Of Scientific Literature And The Limited Nature And Extent Of Its Recognized Findings. 

In the preamble, EPA makes several inaccurate and overstated claims about the potential adverse effects of excessive 

nutrient levels, including direct and indirect (i.e., secondary) effects on human health. Specifically, EPA claims adoption 

of the proposed criteria will reduce cases of: (1) methemoglobinemia (i.e., "blue baby" syndrome); (2) rectal, bladder, 

and colon cancers; (3) reproductive health risks and liver, kidney, and central nervous system problems; and (4) 

gastrointestinal distress, memory loss, disorientation, confusion, comas, and deaths from consumption of tainted 

seafood. EPA's claims are exaggerated and misleading, and do not present the full body of scientific evidence. 

While some scientific literature concludes that elevated levels of nitrate in drinking water may result in cases of "blue 

baby" syndrome, EPA's argument that the proposed criteria will measurably reduce cases of blue baby syndrome is 

flawed for two reasons. First, EPA's own research cited in the preamble concludes that nitrate levels in drinking water of 

less than 10 mg/L are protective of human health.[56] Thus, the human health effects benefits cited by EPA in adopting 

the proposed criteria will not materialize because the drinking water nitrate standard is already fully protective; the IPVs 

for lakes and streams proposed by EPA range from 5.5 to 20 times more stringent than EPA's protective drinking water 

standards, but there is nothing in the record to support the proposition that such additional stringency in (non-drinking) 

surface waters are either needed to secure further drinking water protectiveness or would be more protective of human 

health. 

EPA presents no evidence that any of the waters in Florida that would be subject to the Rule contain nitrate levels in 

excess of 10 mg/L; nor does EPA provide or cite to any evidence that reductions of nitrates to levels below the Safe 

Drinking Water Act ("SDWA") maximum contaminant levels would result in measurable additional reductions in "blue 

baby" syndrome or other adverse health effects potentially attributable to nitrate levels in drinking water. It is noteworthy 

that the Center for Disease Control reported a total of six deaths nationwide due to "blue baby" syndrome between 

1979 and 1986, the majority of which were attributable to private well water quality.[57] 

The second flaw is EPA's contention that adoption of the proposed criteria would result in reductions in nitrate levels in 

groundwater and in private wells in the predominately agricultural regions of Florida. EPA relies upon data collected by 

the Florida Department of Agriculture and Consumer Services ("FDACS") and the FDEP to infer that 15 percent of 

Florida's private drinking water wells contain nitrate in excess of 10 mg/L. Left unaddressed by EPA are: (1) how 

regulating the levels of nutrients in surface waters would result in reductions of nitrate levels in private water wells; (2) 

whether the locations, total depths and screened intervals of the wells tested were such that other more imminent 

health risks were present (e.g., fecal coliform bacteria levels); or (3) whether the well depths render them unsuitable for 

drinking water usage, in any case. 

EPA also cites, as a basis for the Rule, the potential adverse health effects that could result from disinfection 

byproducts resulting from chlorinated water reacting with organic carbon found in algae.[58] The principal flaw in EPA's 

logic is that reducing nutrient discharges will likely not reduce any adverse health impacts because EPA's own Safe 

Drinking Water Act 

regulations (cited by EPA as the source for its information on the health impacts of disinfection byproducts) were 

established specifically for the purpose of protecting against such byproduct formation (e.g., trihalomethanes) in public 

water supplies.[59] EPA is, in essence, attempting to attribute to the proposed nutrient criteria benefits already 

11/19/2010 02:48 PM EST 2-1609
 
Chapter 2 - Comment Documents Background 

accomplished by existing SDWA regulation. 

EPA also touts the alleged benefits that will result from reducing Harmful Algae Blooms ("HABs"). However, EPA fails to 

point out that no clear link has been established between nutrient loadings and HABs. EPA's citation concerning the link 

between seafood tainted by toxic HABs relates to illnesses reported along the Pacific Ocean coastline dating back to 

1793, when Colonel George Vancouver suffered the first purported death due to consumption of tainted shellfish (i.e., 

mussels). While the toxicity of shellfish filter-feeders is relatively well known when the toxins are heavy metals or 

coliform bacteria, the National Oceanic and Atmospheric Administration (NOAA) reported in 2006 that the scientific 

understanding of the causal relationship between nutrient consumption (in the form of algae) and shellfish toxicology is 

in its infancy.[60] This conclusion is supported by extensive local research on Red Tide in Florida's estuaries and in the 

Gulf of Mexico, which has not established any linkage between nutrient levels and Red Tide outbreaks.[61] As with the 

Pacific coast HABs, the earliest Red Tide outbreaks predate Florida becoming a State.[62] 

Another flaw in EPA's argument is that the vast majority of surface waters treated to provide public drinking water 

supplies are stored in above-grade instream or "off-line" water storage reservoirs. The design of these impoundments, 

in order to be cost-effective, will result in higher algae concentrations than the contributing streams due to heat input, in 

situ water temperatures, and retention times. Lowering the nutrient input to these artificial impoundments will not 

necessarily result in corresponding reductions of algae levels in the raw water supply. 

In essence, EPA's contention that the proposed criteria will prevent human deaths due to elimination of HABs (and/or 

other theorized outcomes) reaches far beyond the findings and conclusions of actual scientific research. EPA should 

retract these unsubstantiated claims. Moreover, if it is the Agency's position that these projected outcomes are the 

basis, as both a matter of law and a matter of policy, for the proposed criteria, then EPA is obligated to undertake the 

rigorous analysis of both (i) these theorized harms from nutrients and (ii) the direct benefits projected to result from 

implementation of the Rule, before the Agency adopts these criteria as federal regulations. 

[56] USEPA. 2007. Nitrates and Nitrites. U.S. Environmental Protection Agency. 

http://www.epa.gov/teach/chem_summ/Nitrates_summary.pdf 

[57] Lynda Knobeloch et al., Blue Babies and Nitrate-Contaminated Well Water, 108 Environmental Health Perspectives 

7 (July 2000), available at http://www.co.portage.wi.us/Groundwater/undrstnd/blbaby.htm 

[58] USEPA. 2009. Drinking Water Contaminants. U.S. Environmental Protection Agency. 

http://www.epa.gov/safewater/hfacts.html 

[59] 40 C.F.R. pts 9, 141, and 142: National Primary Drinking Water Regulations: Stage 2 Disinfectants and Disinfection 

Byproducts Rule. Code of Federal Regulations, Washington, D.C. http://www.epa.gov/fedrgstr/EPAWATER/2006/January/Day-04/wo3.html 

[60] NOAA. 2009. National Ocean Service. Harmful Algae Blooms. U.S. Department of Commerce. National Oceanic 

and Atmospheric Administration. http://oceanservice.noaa.gov/topics/coasts/hab/html 

[61] FWRI. 2010. Red Tides in Florida. Florida Fish and Wildlife Conservation Commission. Fish and Wildlife Research 

Institute. http://research.myfwc.com/features/view_article.aspx 

11/19/2010 02:48 PM EST 2-1610
 
Chapter 2 - Comment Documents Background 

[62] Id. 

Comment ID 1245.001.006 

Author Name: Compton P. 

Organization: 

Since I have been there, I have seen fluorescent green algae blooms, well, "bloom" is a nice word, outbreaks, toxic 

outbreaks, wipe out everything. You heard some reference earlier to the restoration of the minimum flow here in 

Tampa. That's a wonderful thing, life is coming back, as where -- the nursery where life is born for all of Tampa Bay. But 

it's still subject at any point in time to being wiped out by the algae blooms that occur here. You know, do fish like 

pollution? I don't think so. You see them floating. And that's not something we ever want to see here. 

Comment ID 1246.001.006 

Author Name: Adams C. 

Organization: 

My father and I are also avid fishermen. By witnessing the decline of Florida's natural ecology has discouraged me from 

eating anything that we catch near shore or inland. 

And I can remember, you know, getting on the boat and going out into the gulf or on a river and not being afraid to just 

jump in the water with him, and now we -- we actually debate that decision on every trip. 

I actually also had a coworker recently who went down to the Keys to Bahia State Park, and this is, you know, one of 

the most beautiful state parks that we have. She got out of the car and saw a wall of red algae piled on the beach line. 

And she said the smell was so overwhelming of porta potty, that they couldn't stay for more than five minutes. 

So let's think logically about this. Someone who witnesses even one red tide, fish kill, dead manatee, algae bloom, or 

green water body during their visit to Florida will remember that more than any other experience they have in our state. 

What's worse is they're going to tell other people about it, too. 

Comment ID 1252.001.002 

Author Name: Roche J. 

Organization: 

And there were a couple of thoughts that I wanted to share with you, some observations that I've made over the years, 

one of which has to do with words, words like "red tide" and "hypoxia", which I just heard, "dead zones". 

11/19/2010 02:48 PM EST 2-1611
 
Chapter 2 - Comment Documents Background 

These were words that were not common words in the '80s, but they're pretty common today. They're common enough 

that they've made their way into the common lexicon. Most people know what these words mean. And that in itself 

demonstrates something. 

And as a good example of that, and the years are 2002 to 2005, those were the years that, in my opinion, as far as 

what I can recollect, were the worst years of red tide in the gulf waters in this area. 

It -- red tide didn't really go away during that time. It was a chronic red tide with acute outbreaks along the way. And it 

was so bad that the seaweed would come up on onto the beach in thick mats, mats that were so thick that they literally 

had to bulldoze them up into mounds the size of sand dunes. And this happened -- it seemed to happen on a monthly 

basis. 

I -- I frequent the beaches as well as our state and national parks quite a bit, especially during that time, I ran on -- on 

the beaches almost every night. We also had frequent fish kills. I have heard a couple of other people mention that. 

The fish kills during those times, I -- I can recollect at least half a dozen, which were so extensive that they continued 

along the beach for as far as the eye could see. 

And they were -- they -- the fish kills posed such a burden on the county that they couldn't clean them up quickly. So 

they would lay and rot on the beaches for days. And after a day in the hot sun, the fish begin to stink and flies begin to 

swarm. 

And so now you have carcasses of fish along with every other type of sea life, which I heard some other people 

enumerate, that are laying and rotting out in the sun, collecting with flies and maggots. It's -- it's disgusting. And this is 

what tourists see when they come to our beaches. 

And these type of things have been happening more and more frequently. I've gone to -- as a layperson, I have gone to 

the N.O.A.A.'s website and done research, and it's pretty easy to see that the occurrence of red tide has increased 

along the years as the population has increased. And red tides increase in population centers. So you can see that 

where we have had the worst outbreaks are in the areas where we have the most population. It's -- it's -- you don't have 

to be an expert to know what's causing this. 

I spoke of the -- the seafood -- the seaweed mats. You could smell the red tide in the seaweed. And during that time, 

they happened to be resanding the -- the beaches on Anna Maria. 

So what they do is they pump sand about a mile off, out in the gulf, and pump it through pipes back onto the beach. 

Well, at that area, the red tide was so bad that in -- where the water was coming out of the pipes, you couldn't stand 

there, because it -- it affected your nose -- your nose and your throat so badly. 

The only thing that I can compare it to was after 911 in Manhattan, when I happened to be on the Brooklyn side, and 

walked to the edge of the east river shortly after the towers came down, and there was a very strange and toxic smell in 

the area. And every time I smell red tide, it makes me think of that. 

11/19/2010 02:48 PM EST 2-1612
 
Chapter 2 - Comment Documents Background 

This -- this is a -- a toxin, and it's -- during those years, 2002 to 2005, was extremely strong. And there were a number 

of nights when it was so bad that I couldn't even go onto the beach to take a run because of that. 

Comment ID 1253.001.002 

Author Name: Loiselle N. 

Organization: Tampa Bay InnerCity Outings 

Eventually, the beach was shut down and we weren't able to swim there anymore, and I think that experience stayed 

with me and motivated me to volunteer with Inner-City Outings today. 

We take kids out of some of the very worst neighborhoods in St. Pete and Tampa, we take them into the woods hiking, 

we take them canoeing, we take them kayaking, we take them to the beach snorkeling. 

And it's a sad state of affairs when I'm taking them out today and I actually have to look at the algae bloom and the 

slime. And I don't know if you have children, but it's hard enough to keep one child in check, but take 22 kids canoeing 

and it's -- it's hard. 

And inevitably a canoe always accidentally falls over and the kids ends up in the river. And now I not only have to worry 

about gators, but I have to worry about is the kid going to swallow some polluted water, is he going to get a rash when 

he comes out, and I have to worry about the pollution in the Hillsborough River. And we shouldn't have to. It's a 

beautiful, natural resource, and we're trying to teach them about it, and it's not a good experience I want them to have. 

And always as we're doing canoeing and kayaking down the river, there are dead fish that the kids are going to see, 

there is algae and there is slime. And I use that experience to explain to them what is going on in our environment. We 

have had to cancel outings to the beach because of the red tide. And again, we always try to teach the kids about that 

as well. 

My secondary reason for speaking is selfish. I am a marathon runner, and I train for a lot of my long runs on Bayshore, 

also on Davis Island and Harbor Island. 

On many mornings I get up at 4:30 in the morning, I run 22 miles. And the stench coming up from the bay is disgusting. 

It's not what you want to breathe when you are on your 20th mile on a marathon run. 

There is always dead fish floating. And I am sometimes just amazed that there is any wildlife left at all in the bay or in 

the river that comes down at that junction. 

Comment ID 1265.001.004 

Author Name: Armingeon N. 

11/19/2010 02:48 PM EST 2-1613
 
Chapter 2 - Comment Documents Background 

Organization: St. Johns River Keeper 

We went to Silver Glen Springs, a first magnitude spring that is so clogged with Lyngbya that one of our outboard 

motors failed because it -- the intake sucked in so much algae, had to get out in Lake George and clean it. There is the 

beginning of an algae bloom in Lake George, which is close to 100 miles away, and people in the town of Welaka who I 

spoke to are already seeing algae blooms yet again. That's after those people suffered through algae blooms from April 

until January, when we had our first cold spell. 

Comment ID 1269.001.002 

Author Name: Lohman D. 

Organization: 

Then when the Green Monster come, what happens, it coats the inside of the seawall, the outside of the seawall and 

the mud near it. You saw a similar picture up there. And then the stuff dries, it dies, and in that process it puts off this 

horrible aerosol. 

Now, at that moment you don't want the grandkids out there. You don't them touching a fishing line that might touch the 

water. You don't even want them to breathe. Breathing is not a healthy activity over there. And all up and down my 

street, people normally jog until summertime. They don't like to jog along near the creek, a nice little bridge going across 

the creek. Breathing deeply is an unhealthy activity. 

Comment ID 1290.001.002 

Author Name: Paradise B. 

Organization: 

We simply cannot afford, in my opinion, to continue with this continued degradation of our waters. We must reverse the 

trend if we're to preserve and recapture our quality of life and the health and economic benefits that result from clean 

water. 

Comment ID 1304-1.001.040 

Author Name: Stewart J. 

Organization: Florida Pulp and Paper Association Environmental Affairs, Inc. 

Adverse Impact to Other Designated Uses 

The dichotomous roles of phosphorus and nitrogen, both as keystone nutrients and culprits of degradation, have been 

well documented throughout aquatic systems worldwide. Yet regulatory decisions often focus solely on the latter role, 

11/19/2010 02:48 PM EST 2-1614
 
Chapter 2 - Comment Documents Background 

creating nutrient reduction programs to prevent and abate eutrophic conditions that can be counter-productive if they 

result in waterbody specific or ecosystem-wide loss of productivity. EPA's proposed numeric nutrient criteria rule is 

aimed at protecting aquatic life in lakes and flowing waters by simply limiting nutrients. See 75 Fed. Reg. 4174 

However, the proposed rule fails to consider, recognize, and account for the important role nutrients play in achieving 

and maintaining a waterbody's aquatic health, as well as, designated use. The proposed rule also fails to address or 

provide an assessment of the potential loss of productivity or designated uses that could occur if the proposed numeric 

nutrient criteria are determined to be inappropriate. 

Comment ID 1308.001.002 

Author Name: Williams B. 

Organization: 

With that background, we can tell you in no uncertain terms that there are economic consequences to the decisions 

you're being asked to make. We've seen the river turn green, more than once, actually, folks. We've heard customers 

question the safety of what we sell as a result of their concerns associated with those ugly green events. We've heard 

them go so far as to state that they did not want anything that came out of our river. 

We've seen our crabbers been unable to sell their catch because people were scared to eat the crabs, and this is even 

though the state agencies had put out information that the crabs were safe to eat. And, mind you, crabbers are not very 

well paid people, and when you take their livelihood away from them in the middle of the summer, you've really hurt 

those folks. 

Comment ID 1308.001.003 

Author Name: Williams B. 

Organization: 

As recreational fishermen we've seen the river devoid of boats on summer weekends when there should have been 

hundreds between Lake George and Jacksonville, either fishing or skiing or tossing nets for shrimp or simply enjoying 

being on the water. 

And let us be clear, when all those folks -- and many of them are from out of state -- leave their boats and their beat-up 

personal water crafts, which I wish they would leave home anyway, but anyway, their right, and their kayaks and their 

canoes in the garage, it hurts businesses that sell all manner of goods and services. 

Comment ID 1316.001.003 

Author Name: Hilliard M. 

Organization: 

11/19/2010 02:48 PM EST 2-1615
 
Chapter 2 - Comment Documents Background 

When our family relocated to Florida in 1972, I could have been described as an all-around, in the water, by the water, 

boat the water, fish the water, and swim the water person. Back then, we ate the crabs and the shrimp and the fish that 

we caught. Unfortunately, it's more than two decades that I haven't eaten fish or crabs caught in these waters due to the 

serious concerns with repetitive fish and bird killing red tides and harmful green algae outbreaks. Could the bird and fish 

deaths be similar to the mine canary warnings? I believe so. 

Comment ID 1316.001.004 

Author Name: Hilliard M. 

Organization: 

It seems to me that we have enough facts before us to be properly warned and take action. Shame on us that today no 

part of Florida escapes from the unnatural and excessive algal growth caused by excessive nutrient pollution in our 

canals, spring fed lakes, streams, bays and rivers. It is an economic disaster when coastal beaches are closed due to 

pollution. It is a health hazard when exposure to toxic algae causes rashes, skin and eye irritation and allergenic 

problems. Even swimming along with other activities, when polluted water is ingested, can become a cause of serious 

illness. 

Comment ID 1321.001.006 

Author Name: St. John T. 

Organization: Nature Conservancy 

Nutrient pollution can lead to many problems that you've heard about today, harmful algae blooms, low oxygen dead 

zones in water bodies such as the Gulf of Mexico and the St. Johns River, for example, and lead to declines in wildlife 

and wildlife habitat. 

Comment ID 1330.001.005 

Author Name: Goller L. 

Organization: 

I wish we'd had it long ago, because we wouldn't have had the problems that we do now. All it takes is to look out on 

our river, and it's actually earlier this year than it has been in other years, of when the green slime starts. And that 

causes health effects to people. It certainly causes effects to the aquatic wildlife that's in the -- our fishermen are 

affected by it. It affects economics. 

Comment ID 1331-1.001.007 

11/19/2010 02:48 PM EST 2-1616
 
Chapter 2 - Comment Documents Background 

Author Name: Aldstadt S. 

Organization: City of Pensacola Public Works 

EPA claims that the proposed rule addresses specific concerns associated with nutrient loadings-"harmful algal blooms 

(HABs), reduced spawning grounds and nursery habitats, fish kills, and oxygen-starved hypoxic or 'dead' zones" and 

"impaired drinking water sources." (75 Fed.Reg. at p. 4175.) However, the proposed criteria are not tailored to resolve 

algal growth concerns and the potentially harmful conditions that may result from algal growth. That is, there is no 

meaningful link between the criteria and the specific designated uses that EPA seeks to protect. Many factors affect 

algal growth and its impacts. Research shows that nutrient control does not necessarily allow states to manage harmful 

algal blooms to improve water quality for designated beneficial uses.[5] For example, nutrient control measures have 

proven ineffective in efforts to manage and control tastes and odors in drinking water supplies.[6] EPA should not rely 

upon numeric nutrient water column standards to resolve generic problems associated with algal blooms. 

[5] See e.g., Lehman, P.W., S.J. Teh, G.L. Boyer, M.L. Nobriga, E. Bass, and C. Hogle. 2010. Initial impacts of 

Microcystis aeruginosa bloom, on the aquatic food web in the San Francisco Estuary. Hydrobiologia 637: 229-248. 

[6] See e.g., Zaitlin, B., and S.B.Watson. 2006. Actinomycetes in relation to taste and odour in drinking water: myths, 

tenets and truths. Water Res. 40: 1741-1753. doi:10.1016/j.watres.2006.02.024.PMID:16600325. 

Comment ID 1343.001.005 

Author Name: Welch L. 

Organization: 

The blue-green algae toxins that make us sick, we couldn't breathe in our own yard. When that first wave went through, 

my son thought that there was a gas leak, that there could be an explosion. Everyone's allergies and asthma acted up. 

We had to go inside for days. The dioxins from the paper mill unwittingly, unknowingly to me, soaked into my little boys' 

skin as they swam in the river water. We ate the fish that they proudly caught on the river. And they water-skied, and as 

they water-skied, they swallowed gallons of toxin tainted water. We don't see the manatee that used to visit us all year 

round to feed on the eelgrass that was thick and lush because the eelgrass is completely gone now. There aren't as 

many fish as there used to be. The young neighborhood boy that fishes from our dock comes up empty handed more 

times than most. When I take my kayak out, I see construction site runoff that clouds the water, smothers crabs, and 

the water plants where fish breed and suffocate the fish. 

Comment ID 1343.001.006 

Author Name: Welch L. 

Organization: 

Fertilizer laden waters breed blue-green algae. Toxins from the algae cause nerve, liver damage and liver tumors. I've 

11/19/2010 02:48 PM EST 2-1617
 
 

Chapter 2 - Comment Documents Background 

spent the past 25 years of my life raising funds for Wolfson's Children Hospital, and I've spent many hours as a 

volunteer at the bedsides of children with cancer. I've researched and written articles about pediatric cancer, I'm a writer 

by profession, and its treatment. A prominent pediatric oncologist in this town has become a friend of mine over those 

years. And when I asked him why cancer is rising, he replied, "It's all environmental." 

Comment ID 1350-1.001.022 

Author Name: Schwartz J. 

Organization: American Forest & Paper Association 

• EPA has Not Adequately Considered Negative Impacts of Reduced Nutrients in Ambient Waters: In contrast to toxics, 

some water bodies need certain levels of nutrients to maintain aquatic ecosystem health. The Proposal does not 

adequately consider the potential for adverse biological effects from reduced nutrient levels.[10] [10] FPPAEA 

Comments, pages 7-8. 

Comment ID 1416-1.001.008 

Author Name: Alves J. 

Organization: Florida Electric Power Coordinating Group, Inc. 

EPA also implied that nutrient pollution in Florida is associated with serious human health concerns - - such as bladder 

cancer and blue baby syndrome - resulting in the need for "very low nutrients, low productivity, and high water clarity" in 

Florida's waters. 75 Fed. Reg. 4175, 4179-4183. 

Comment ID 1416-1.001.015 

Author Name: Alves J. 

Organization: Florida Electric Power Coordinating Group, Inc. 

(ii) EPA cannot justify a federal takeover of Florida's nutrient water quality standards program based on periodic red tide 

events 

The preamble to EPA's proposed rule repeatedly, to the point of perseveration, cited red tide events (or reports 

addressing red tide events) as justification for its proposed numeric nutrient criteria. But the prevailing scientific opinion 

is that onshore activities in Florida do not cause red tide events. 

"Red tide" is the common name for high concentrations of the harmful marine alga Karenia brevis, one of many types of 

Harmful Algal Blooms (HABs).[8] It is sometimes assumed that red tide events are due to anthropogenic water nutrient 

loadings, which lead to eutrophication.[9] Additional anthropogenic causes may include the transport of organisms in 

ship ballasts and the construction of aquaculture facilities. [10] Also, perceptions of increased bloom frequency are 

11/19/2010 02:48 PM EST 2-1618
 
Chapter 2 - Comment Documents Background 

partially attributable to increased scientific awareness and detection capabilities, which have increased significantly in 

recent years. [11] 

It is well known that in many instances, HABs are caused by natural factors such as circulation, upwelling relaxation, 

and river flow [12] These are substantially implicated with red tides in Florida, where a number of natural factors interact 

to cause blooms of Karenia brevis. [13] Of course Karenia blooms can be natural, as evidenced by reports of Spanish 

explorers in the 1500s (and as documented more carefully as early as the 1840s).[14] 

There is little consensus on the exact mechanisms causing Karenia blooms. The theory with the most support has been 

developed at length by Stumpf et al. They found that Karenia blooms develop even when the nutrients on the west 

Florida shelf are IOW. [15] Summer winds push water and nutrients from the Mississippi River plume onto the west 

Florida shelf, where fall upwelling pushes these concentrations onshore, resulting in blooms. [16] Thermal fronts in the 

winter can re-intensify the blooms. [17] Stumpf et al. find that the nutrient loads found in some of these studies from 

Florida rivers are an unlikely source of growth of Karenia blooms. 18 Even at the maximum nutrient loads these rivers 

might provide, currents probably disperse them too quickly to cause blooms. [19] These loads are quite small and short 

in duration compared to the nutrients from the Mississippi.[20] 

No other study has yet been able to integrate all available data in to a cognizable theory. Researchers have not been 

able to otherwise identify nutrient sources adequate to support high-density growth of the Karenia species.[21] This 

explains why Karenia blooms are less frequent off the Texas coast-because Texas rarely has upwelling-even though 

nutrient loads are often higher there. [22] This conclusion is also more satisfactory than previous natural cause theories, 

such as that dust deposition indirectly causes Karenia blooms is inadequate to completely explain historic blooms.[23] 

Even the studies that have concluded that there could be a relationship between nutrient-rich runoff and Karenia 

blooms recognized the limitations of such conclusions. For example, Vargo et al. found that "a combination of sources 

is required to maintain populations ... ," and "[i]dentifying nutrient sources, primarily nitrogen (N) and phosphorus (P), 

sufficient to support high biomass blooms ... has remained problematic."[24] In another study, Olascoaga et al. 

summarized the various theories of Karenia bloom development and found two nearshore nutrient sources near the 

bloom they studied, which "were inferred" to be its cause.[25] However, they admitted that current technology makes 

"the early stage of the development of HABs" quite difficult to detect, "which makes it quite difficult to test [any of these] 

theories." [26] 

EPA has already acknowledged, in other contexts, the state of the science on this issue. It sponsored, and its scientist 

participated in, a "roundtable discussion to develop a consensus on the relationship between eutrophication and 

[HABs]." [27] The consensus recognized the complex interactions causing HABs and the need for individualized study 

of the many organisms causing HABs.[28] There were few comments in this consensus concerning red tides in Florida, 

but the comments that were made are revealing. One pointed to evidence that Karenia blooms have natural sources. 

Another pointed to the very unusual circumstances leading to a Synechoccus blue-green algae blooms in Florida Bay, 

none of which were attributable to normal runoff.[29] 

This scientific literature demonstrates that EPA cannot justify its federal takeover of Florida's nutrient water quality 

program based on red tide events. Simply put, there is no reasonable expectation that the NNC is necessary or 

appropriate to eliminate or reduce red tide events in Florida. 

11/19/2010 02:48 PM EST 2-1619
 
Chapter 2 - Comment Documents Background 

[8] R.H. Pierce & M.S. Henry, Harmful Algal Toxins of the Florida Red Tide (Karenia brevis): Natural Chemical 

Stressors in South Florida Coastal Ecosystems, 17 Ecotoxicology 623, 623 (2008). 

[9] Kevin G. Sellner et al., Harmful Algal Blooms: Causes, Impacts & Detection, 30 J. Ind. Microbiology & Biotechnology 

383, 383 (2003). See, e.g., Pierce & Henry at 629 (speculating that "human activities" generate the nutrients necessary 

for Karenia blooms, but providing no evidence, in a study that focused on the effects of the blooms, rather than their 

causes). 

[10] Donald M. Anderson, Approaches to Monitoring, Control, and Management of Harmful Algal Blooms, 52 Ocean & 

Coastal Mgmt. 342, 343 (2009). 

[11] Id. at 343. 

[12] Id. 

[13] Sellner et al. at 387-88. 

[14] Pierce & Henry at 623-24 (citing numerous scientific and historical sources). See also Richard P. Stumpf, 

Hydrodynamic Accumulation of Karenia off the West Coast of Florida, 28 Continental Shelf Research 189, 203 (2008) 

(citing P.M. d' Anghiera, De Orbe Novo, The Eight Decades of Peter Martyer D'Anghera (1912).) 

[15] Id. at 189. 

[16] Id. 

[17] Id. 

[18] Id. at 209. 

[19] Id. 

[20] Id. 

[21] Id. at 190, 207. 

[22] Id. at 191, 209. 

[23] Id. at 209-10 (discussing theory posited in J.J. Walsh, Red Tides in the Gulf of Mexico: Where, When, and Why?, III 

J. Geophysical Research Cll003 (2006)). 

[24] Gabriel Vargo et al., Nutrient Availability in Support of Karenia brevis Blooms on the West Florida Shelf What 

Keeps Karenia Blooming?, 28 Continental Shelf Research 73 (2008) (v) (recognizing that Karenia blooms occur 

frequently and persist for months on the West Florida Shelf, which is oligotrophic). 

[25] MJ. Olascoaga et al., Tracing the Early Development of Harmful Algal Blooms on the West Florida Shelf with the 

Aid of Lagrangian Coherian Structures, 1131. Geophysical Res. C12014 (2008). 

[26] Id. at C12016. 

[27] J. Heisler et al., Eutrophication and Harmful Algal Blooms: A Scientific Consensus, 8 Hannful Algae 3, 3 (2008). 

[28] See id. at 3-8. 

[29] Id. 

Comment ID 1416-1.001.016 

Author Name: Alves J. 

Organization: Florida Electric Power Coordinating Group, Inc. 

(iii) EPA should not imply that the NNC rule is necessary due to fears concerning bladder cancer 

The preamble to EPA's proposed rule attempts to justify EPA's necessity determination based in part on an assertion 

that "[p]ublic health concerns related to eutrophication include...possible formation of disinfection byproducts in drinking 

11/19/2010 02:48 PM EST 2-1620
 
Chapter 2 - Comment Documents Background 

water, some of which have been associated with serious human illnesses such as bladder cancer." 75 Fed. Reg. at 

4178. EPA ostensibly supported its implied linkage between eutrophication and bladder cancer by citing to (1) an 

obscure study analyzing the correlation between bladder cancer and chlorinated water in public water supplies and 

swimming pools in Spain and (2) a generic EPA website discussing the general terms the risk of cancer caused by 

disinfection byproducts in drinking water sources. In other words, EPA's sources do not support its assertions. 

Additionally, EPA seemingly ignores Safe Drinking Water Act regulations concerning permissible disinfection byproduct 

levels within drinking water systems which are set at levels to protect human health. EPA presented no evidence that 

anybody ever has or could get bladder cancer as a result of nutrient pollution in Florida. Rather, EPA seems to have 

intended to imply -- without citing any reasonable support whatsoever - - that the proposed NNC will lessen a bladder 

cancer problem in Florida. 

As anyone whose family has ever been touched by cancer can confirm, the word "cancer" carries a unique emotional 

impact, and any assertion by a regulatory agency that a particular activity or event is linked to cancer should be 

carefully made. Agencies like EPA should be an exemplar for responsible public dialogue, not a negative example. 

Comment ID 1462-1.001.005 

Author Name: Helfrich C. 

Organization: City of Boca Raton Utility Services 

One last concern is the apparent misinformation and fear mongering in the reference to "blue babies". There is no 

methemoglobinemia or "blue-baby syndrome" epidemic in Florida, and unlike most states, Florida has nitrate 

groundwater standards for drinking water In fact, on the Florida Department of Environmental Protection's (FDEP) 

Drinking Water Standards website, it states: "Drinking water that meets the EPA standard is associated with little to 

none of this risk and is considered safe with respect to nitrate." So I ask, "Do isolated events of violations of existing 

standards justify new surface water quality criteria?" 

Comment ID 1475-1.001.004 

Author Name: Arrington D. 

Organization: Loxahatchee River Environmental Control District 

On page 25-26 EPA states "EPA expects that by addressing protection of aquatic life uses through the application of 

the proposed numeric nutrient criteria in this rulemaking, risks to human health will also be alleviated, as nutrient levels 

that represent a balance of natural populations of flora and fauna will not produce harmful algal blooms nor result in 

highly elevated nitrate levels." There is an incredible amount of spatial and temporal heterogeneity in Florida's geology 

and water quality, which constrains the accuracy of this statement made by EPA. In particular, water quality concerns 

such as low dissolved oxygen concentrations and/or elevated nitrate concentrations often are associated with healthy 

streams that receive significant flows from wetlands. The LRD believes a more rational and economically affordable 

approach would be to address human health risks derived from water quality issues within specific water bodies that 

experience harmful algal blooms and/or other signs of impairment that affect human health. 

11/19/2010 02:48 PM EST 2-1621
 
Chapter 2 - Comment Documents Background 

Comment ID 1482-1.001.026 

Author Name: Hecker J. 

Organization: Conservancy of Southwest Florida 

VII. Proposed Numeric Nutrient Criteria are Needed to Protect Human Health 

and Safety 

All across the country in rivers, estuaries, and oceans, harmful algal blooms are becoming more prevalent. Numerous 

scientific studies have shown that nutrient overenrichment (i.e. eutrophication) from excessive nitrogen and phosphorus 

are a key factor in the development of harmful algal blooms. Though nutrients themselves are not toxins, these harmful 

algal blooms can in fact produce toxins or conditions lethal to aquatic life and which threaten human health and safety. 

In fact, there are 40 or so known species of microscopic algae believed to be "toxic" by scientists. 

Serious environmental problems arise from these harmful algal blooms, including blocking sunlight that previously 

penetrated to the waterbodies' bottom and starving the seagrasses necessary for sustaining marine life in the area, as 

well as the algal blooms consuming massive quantities of oxygen in the water, killing fish, crabs, oysters and other 

bottom dwellers in the area. [38] Moreover, toxic algae can kill marine life directly and some species "release powerful 

toxins that can make their way through the food web to affect seabirds, marine mammals and humans, sometimes 

fatally." [39] 

However, harmful Algal Blooms (HABs) can also pose serious human health affects because they can "produce toxic or 

harmful effects on people." [40] These powerful toxins can cause respiratory infections and illnesses in humans. There 

are three common ways to contract sicknesses from HABs; skin contact, inhaling toxins, or by eating shellfish that have 

been contaminated by an HAB. Indirect impacts of HABs include the loses in recreational opportunities that occur when 

HABs infect coastal waters making it unsafe for swimmers and fishers to part take in activities in the area. The health 

affects can range from less serious symptoms such as stomach cramps and nausea, to more serious ailments such as 

amnesia, memory loss, paralysis and in some rare cases, death. [41] 

Additionally, EPA has added algae associated with HABs to its Drinking Water Contaminant List. Some algal blooms 

can cause odor and taste problems in drinking water. In some areas, HABs have affected drinking water so much that 

water plants have been forced to upgrade their plants to deal with HABs. The cost of upgrading one single drinking 

water plant in California to address drinking water contamination caused by nutrient-fueled algae outbreaks was over 

$200 million. 

The Center for Disease Control and Prevention works with various other private and public agencies to study the effects 

that certain HABs have on public health. The CDC studied the following algae events and the human health effects that 

are associated with each species of bacteria. The following is directly from the CDC's website: 

Cyanobacteria, also known as blue-green algae, can produce toxins that may taint drinking water and recreational 

water. Humans who drink or swim in water that contains high concentrations of cyanobacteria or cyanobacterial toxins 

may experience gastroenteritis, skin irritation, allergic responses, or liver damage 

11/19/2010 02:48 PM EST 2-1622
 
Chapter 2 - Comment Documents Background 

Harmful marine algae, such as those associated with red tides, occur in the ocean and can produce toxins that may 

harm or kill fish and marine animals. Humans who eat shellfish containing toxins produced by these algae may 

experience neurologic symptoms (such as tingling fingers or toes) and gastrointestinal symptoms. Breathing air that 

contains toxins from algae associated with red tide may cause susceptible individuals to have asthma attacks. [42] 

Additionally, according to the Florida Department of Environmental Protection's list of inorganic drinking water 

contaminants, nitrate is "used in fertilizer and is found in sewage and wastes from human andlor farm animals and 

generally gets into drinking water from those activities. Excessive levels of nitrate in drinking water have caused serious 

illness and sometimes death in infants under six months of age [43]." Nitrite also is used in fertilizers and is found in 

sewage and waste from human's and farm animals. It has similar health affects on humans that nitrate has. [44] 

Nutrient pollution from excess nitrogen and phosphorus has consistently ranked as one of the top causes of 

degradation in U.S. waters for more than a decade [45]. "Excess nitrogen and phosphorus lead to significant water 

quality problems includin harmful algal blooms, dead-zones, and declines in wildlife and wildlife habitat [46] ." Especially 

in Florida, the consequences of excess nutrients are greatly detrimental to our tourism-based economy and quality of 

life. Blooms of Karenia brevis (also called red tide) now affect us almost every year; killing fish, birds, and marine 

mammals and causing respiratory and other deleterious health effects in beachgoers or people living or working near 

the water. [47] 

[38] General Information: Nutrients. Chesapeake Bay Program. Last updated 2009. Accessed at: 

http://www.chesapeakebay.net/nutr1.htm 

[39] Ocean Issue Briefs- Harmful Algal Blooms and Toxins. SeaWeb. Accessed on March 2010. Accessed at: 

http://seaweb.org/resources/briefings/algae.php 

[40] Harmful Algal Blooms. National Oceanic and Atmospheric Administation - National Ocean Service. Last updated 

June, 2009. Accessed at: http://oceanservice.noaa.gov/topics/coasts/hab/ 

[41] Ocean Issue Briefs- Harmful Algal Blooms and Toxins. SeaWeb. Accessed on March 2010. Accessed at: 

http://www.seaweb.org/resources/briefings/algae.php 

[42] About Harmful Algal Blooms (HABs). Assessing the Impact on Public Heath. March, 2004. Center of Disease 

Control and Prevention. P. 1 

[43] Florida Department of Environmental Protection's list of Inorganic Contaminants for drinking water. Found at: 

http://ww.dep.state.fl.us/water/drinkingwater/inorg.con.htm [44] lBID 

[45] U.S. EPA. Water Quality Criteria for Nitrogen and Phosphorus Pollution. Last updated January 15. 2010 Accessed 

at: http://www.epa.gov/waterscience/criteria/nutrient 

[46] lBlD 

[47] Economic Impacts of Harmful Algal Blooms. National Centers for Coastal Ocean Science. Accessed at: 

http://www.cop.noaa.gov/stressors/extremeevents/hab/current/econimpact_08.pdf 

Comment ID 1482-1.001.027 

Author Name: Hecker J. 

Organization: Conservancy of Southwest Florida 

11/19/2010 02:48 PM EST 2-1623
 
Chapter 2 - Comment Documents Background 

VIII. Proposed Numeric Nutrient Criteria are Needed to Protect Fish and 

Wildlife Resources 

One of the overarching goals of the Clean Water Act is to protect fish, shellfish and wildlife resources [48]. Numeric 

Nutrient Criteria are needed to protect our fish and wildlife, including endangered species, which can be vulnerable to 

the adverse affects of harmful algal blooms. "Over the past decade, human-induced eutrophication of Florida [waters] 

has been associated with ulcerated fish, fish kills, declining fisheries resources, the decline of submerged vegetated 

habitats, and extensive algal blooms [49]." These incidents have resulted in far-reaching effect on fish and wildlife, 

including mass die-off events that threaten population stability. Still fully realized, there are possible long-term effects on 

wildlife from harmful algal blooms. Biologists predict that HABs may result in increased susceptibility of wildlife to 

disease, immunosuppression, adverse long-term effects on growth and reproduction, and tumor development [50]. 

These effects are particularlv worrisome as many of Florida's species are already faced with imperilment and additional 

stressors oniy result in more difficult recovery for our endangered species. 

There are at least 60 known toxic or potentially toxic HABs occurring in Florida waterways [51]. These harmful algal 

species blooms have been known to produce red tide, Neurotoxic Shellfish Poisoning (NSP), tropical fish poisoning, 

lesions and tumors in marine animals, and, unfortunately, fish and wildlife mortalities [52]. While red tide HABs occur 

nearly every year, causing NSP and human health effects, fish, bird, and marine mammal mortalities, cyanobacteria 

blooms in Florida can also represent a "major threat to water quality, ecosystem stability, surface water drinking water 

supplies, and public health [53]." 

Additionally, HABs are a major influencing factor in the amount of dissolved oxygen (DO) within a water system. DO is a 

vital component of an aquatic system, and the level of do must remain above a certain threshold in order to for wildlife 

to survive in the area. Low or nonexistent levels of DO can cause serious adverse effects for aquatic wildlife. Anoxic 

conditions, created by the absence of DO in the water column, cause massive ecological effects by killing off marine life 

and emitting foul odors. For example, "During cyano bacteria blooms in the lower St. Johns River, diurnal super 

saturation and anoxia are common in near shore areas (Figs. 3 and 4). Under such conditions, levels of dissolved 

oxygen can fail to reach the Florida minimum standard (5 ppm) during the night (Figs. 3 and 4), when plants use more 

oxygen than they produce. Biota that are unable to escape to offshore areas, where dissolved oxygen concentrations 

remain adequate, may not survive [54]" when anoxic conditions exist. 

Almost half of all federally-listed species are considered to be water-dependent according to the US Fish and Wildlife 

Service [55]. The state of Florida currently protects 15 species of fish, 2 species of mollusks, 3 species of crustaceans, 

and 6 marine mammals that entirely rely on quality water for their preservation. Florida also protects 5 species of 

amphibians, 17 species of reptiles, 30 species of birds, and 21 species of protected mammals that utilize waters for 

some portion of their life cycle, rely on aquatic prey sources, or are wetland-dependent and therefore could be affected 

by poor water quality, Many of these species are also federally-listed. 

Freshwater mussels constitute the nation's largest group of imperiled species [56]. The US Fish and Wildlife Service 

lists and protects 8 species of Florida clams -all but two are classified as endangered- which are sensitive to polluted 

stormwater, especially phosphorus [57]. Because clams siphon the water for oxygen and food, efforts to recovery the 

species include increasing water quality protections [58]. For clams and other bottom dwelling creatures, the presence 

of dead or decay algal blooms that consume massive quantities of oxygen and create hypoxic or even anoxic conditions 

can pose a serious threat. 

11/19/2010 02:48 PM EST 2-1624
 
Chapter 2 - Comment Documents Background 

Poor water quality attributed to excess nutrients also adversely affect species of fish, including imperiled species. Toxic 

dinoflagellates, especially Pfiesteria species, which respond to nutrient loading, in particular phosphorus, are linked to 

adverse health effects in fish [59]. When exposed, hemorrhaging and sloughing of the skin tissue and deep ulcerations 

may result. Fish with these types of symptoms -ulcerative mycosis- unfortunately have a high probability of mortality. 

Red tide is responsible for millions of fish mortalities per year [60]. "The magnitude of [a Tampa Bay red tide] 2005 

event and its impact on marine resources caused scientists as well as recreational anglers to be concerned about 

possible short- and long-term effects on fish populations in southwest Florida [61]. The red tide event resulted in a 

sharp decline of seatrout and red drum fish populations, and additionally, the algae bloom prematurely stopped fish 

spawning not only during the event but for the rest of the spawning season (three months). 

Nutrient loading from non-point source runoff has been identified as a threat to the endangered smalltooth sawfish [62]. 

Recovery plan goals to reduce the sawfish's susceptibility to algal blooms, decreased water clarity, low oxygen, and red 

tide events [63] can be improved with numeric nutrient standards. 

Original comment letter contains additional information in a photo of a fish kill from the Red tide event from the 

Conservancy of Southwest Florida on page 31 of the pdf. See original comment letter. 

Amphibian species are particularly sensitive to changes in water chemistry and pollution levels due to their thin skin, of 

which they utilize for "breathing" (i.e. gas exchange). Studies have showed that nutrient runoff into inhabited freshwater 

systems is the contributing factor to increased infection rate and subsequent deformation rate in frogs and other 

amphibians [64]. While these malformations are disturbing, what is most saddening is that these frogs simply do not 

survive to maturity, victim to starvation or depredation [65], which only places additional stress on population health and 

biodiversity of our frog species. Additionally, low dissolved oxygen levels as a result of HABs and nutrient pollution can 

wreak havoc for larval amphibians, putting further stress on these populations. 

Original comment letter contains additional information in a photo of Frog malformations due to infection compounded 

by nutrient loading from the Conservancy of Southwest Florida on page 31 of the pdf. See original comment letter. 

Toxins from nutrient-nourished cyanobacteria blooms have been implicated in the deaths of hundreds of alligators 

through the state Florida, particularly in the Harris chain of lakes in central Florida near Orlando. Almost 400 alligators 

[66] perished over a several year incident, where chlorophyll a samples measured above 250 uglL in Lake Griffin [67]. 

Necropsies of the alligators, while not conclusive, suggested that the gator's nerve damage and brain lesions could be 

related to a blue-green algae neurotoxin occurring in the lake [68]. Alligators in the lake continue to deal with a 

longlasting reproductive struggle [69] due to abnormally low nest hatching success, but there has also been a near 

failure of the lake fishery with record low densities of speckled perch, and a complete loss of bass species [70]. 

Manatees are affected by harmful algal blooms in both the freshwater and estuarine environments. Red tide is one of 

the biggest threats to manatee survival, as large number of manatee mortalities have occurred due to harmful algal 

blooms. A devastating red tide event occurred in 1996, of which 140 individuals died [71]. The last decade has also 

been very hard on the manatee population, with 101 deaths in 2003, 93 in 2005, 64 in 2006 and 52 in 2007 - all 

contributed to red tide. The danger of red tide poisoning is even a threat weeks and months after the bloom itself has 

dissipated: in 2007, 27 manatee deaths occurred after the red tide bloom had moved out of the Caloosahatchee River 

area. However, lethal levels of the red tide toxin laced the manatee's food sources [72]. Harmful algal blooms have had 

11/19/2010 02:48 PM EST 2-1625
 
Chapter 2 - Comment Documents Background 

a disastrous effect on the Florida manatee, and its impact on manatees have increased over the last two decades, 

particularly in Southwest Florida [73]. 

Of extreme concern is how excess nutrients and subsequent algal blooms affect seagrasses and other submerged 

aquatic vegetation (SAV) which provide shelter and food for so many aquatic species. "Seagrass distribution and 

abundance in many estuaries have declined as a result of direct human impacts ... and indirect effects of development 

(declining water quality and nutrient loading) [74]. SAV is dependent on the clarity and quality of the water. 

Unfortunately, blue-green algal blankets can stop forage plant growth or cover over SAV on seagrass bottoms. 

Seagrass meadows are relied upon by innumerable amount of benthic species, but also by imperiled species such as 

sea turtles and manatees. "SAV provides habitat vital for both freshwater and estuarine species, so these areas are 

often identified as locations where algal death and decay have the greatest effect on food web dynamics, dissolved 

oxygen concentrations, aesthetics, and recreation [75]." 

In fact, most of Florida's commercially-important aquatic life is found in seagrass habitats for a least a portion of their life 

cycle, including 70% of Florida's fish species [76]. SAV habitats are so critical to endangered species such as the 

Florida manatee that one the objectives for recovering the species is for nutrient pollutant standards to be improved to 

help restore Florida's SAVs: "all manatee research, resource protection, and conservation agencies/organizations 

should actively support the establishment of water quality standards that will protect the existing and promote the 

regeneration of SAV in all Florida waters. In particular, FDEP and WMDs actively should pursue changing water 

transparency and nutrient pollution standards to reflect the light requirements of seagrasses and other NSAV species 

[77]." 

Other marine animals can also be adversely affected by harmful algal blooms like red tide. Mass mortality events of 

dolphins have occurred throughout the years, with over 100 individuals perishing in 1999, and over 740 between 1987 

and 1988. The latter is believed to have killed more than 50% of the New Jersey-Florida coastal migratory stock during 

just a few short months [78]. Florida Bay and the east coast of Florida have witnessed destruction of their reef 

ecosystems due to algal blooms, in which excessive blankets of algae matter can cover over the coral, choking it out. In 

2007, algae blooms destroyed nearly every sponge species within a 200 square mile are in Florida Bay [79]. Sponges 

are keystone species of the marine underworld, providing shelter to shrimp, lobsters, and other aquatic species. As 

coral ecosystems are one of the most fragile habitats on the planet, re-establishment once affected, is very difficult. 

Harmful algal blooms, fed by nutrient-rich runoff, jeopardize the proliferation and survival of Florida's diverse and unique 

fish and wildlife resources. The farreaching effects of nutrient pollution have devastated all our native taxon in one way 

or another, from direct mass mortalities to destruction of food sources or essential habitats. Of particular concern is 

pollution's deleterious effects on our imperiled species, which already are struggling to persist. Numeric nutrient criteria 

are necessary to better control nutrient pollution and the harmful algal blooms they fuel. 

[48] 33 USC Section 1251. 

[49] Steidinger, et al., March 8, 1999. Harmful Algal Blooms in Florida. Submitted to Florida's Harmful Algal Bloom Task 

Force by the Harmful Algal Bloom Task Force Technical Advisory Group. P. 21 

[50] Steidinger, et al., March 8, 1999. Harmful Algal Blooms in Florida. Submitted to Florida's Harmful Algal Bloom Task 

Force by the Harmful Algal Bloom Task Force Technical Advisory Group, P. 25. 

[51] Steidinger, et al., March 8, 1999. Harmful Algal Blooms in Florida. Submitted to Florida's Harmful Algal Bloom Task 

Force by the Harmful Algal Bloom Task Force Technical Advisory Group. P, V.-2 

11/19/2010 02:48 PM EST 2-1626
 
Chapter 2 - Comment Documents Background 

[52] Steidinger, et al., March 8, 1999. Harmful Algal Blooms in Florida. Submitted to Florida's Harmful Algal Bloom Task 

Force by the Harmful Algal Bloom Task Force Technical Advisory Group. P, V. -2 

[53] Steidinger, et al., March 8, 1999. Harmful Algal Blooms in Florida. Submitted to Florida's Harmful Algal Bloom Task 

Force by the Harmful Algal Bloom Task Force Technical Advisory Group. P. 20. 

[54] Florida's Harmful Algal Bloom Task Force submitted by Harmful Algal Bloom Task Force Technical Committee, 23, 

Prepared by: K.A. Steidinger, J.H. Landsberg, J.W. Burns, C.R. Thomas. 

[55] US Fish and Wildlife Service. 2008. Environmental Containments Program. Last Updated November, 2008. 

Accessed at: http://www.fws.gov/contaminants/issues/waterquality.cfm 

[56] Noguchi,et al., March 2007 Clearlng the Water for Musses. Endangered Species Bulletin, Vol 32 No 2 uS Fish and 

wildlife service. 

[57] US Fish and Wildlife Service, July 2003. Agency Drafl Recovery Plan for Endangered Fat Threeridge, Shinvraved 

Pocketbook, Gulf Moccasinshell, Ochlockonee Moccasinshell. Oval Pigtoe, and Threatened, shinneyrayed pocket 

book,Gulf Moccasinshell, Oval pigtoe, and threatened chipola, slabshell and purple bankclimber, Panama City Field 

Office P 35 

[58] US Fish and Wildlife Service, July 2003. Agency Drafl Recovery Plan for Endangered Fat Threeridge, Shinvraved 

Pocketbook, Gulf Moccasinshell, Ochlockonee Moccasinshell. Oval Pigtoe, and Threatened, shinneyrayed pocket 

book,Gulf Moccasinshell, Oval pigtoe, and threatened chipola, slabshell and purple backclimber. Panama City Field 

Office. P. 58. 

[59] Steidinger, et al., March 8, 1999. Harmful Algal Blooms in Florida. Submitted to Florida's Harmful Algal Bloom Task 

Force by the Harmful Algal Bloom Task Force Technical Advisory Group. P. 11-12. 

[60] Barbieri & Landsberg, 2006. Effects of the 2005 Red Tide Event on Recreational Fisheries in Southwest Florida. 

Florida Fish and Wildlife Conservation Commission. FWRI. 

[61] Barbieri & Landsberg, 2006. Effects of the 2005 Red Tide Event on Recreational Fisheries in Southwest Florida. 

Florida Fish and Wildlife Conservation Commission. FWRl. 

[62] Federal Register, 2001. Proposed Endangered Status for a Distinct Population Segment of Smalltooth Sawfish 

(Pristis pectinata) in the United States. Vol. 66, No. 73. P.19419.; National Marine Fisheries Service, 2009. Smalltooth 

Sawfish Recovery Plan. Pg. 1-20. 

[63] National Marine Fisheries Service, 2009. Smalltooth Sawfish Recovery Plan. Pg. 1-19. 

[64] Johnson, et al., 2007. Aquatic Eutrophication Promotes Pathogenic Infection in Amphibians. National Academy of 

Sciences of the USA. 

[65] Amphibian Malformations. The Johnson Lab, University of Colorado at Bolder. Last updated 2009. Accessed at 

http://.www.colorado.edu/eeb/facultysites/pieter/amphibianmalformations.html 

[66] Campbell. August 26. 2001. Health Menace Lurks in Lakes: A Study Reveals How Risky it May be to go Into the 

Water. Orlando Sentinel. 

[67] Steidinger, et al., March 8, 1999. Harmful Algal Blooms in Florida. Submitted to Florida's Harmful Algal Bloom Task 

Force by the Harmful Algal Bloom Task Force Technical Advisory Group. P. 22. " 

[68] Hunter, E., 2000. Algae Possible Cause of Increased Alligator Deaths in Lake Griffin. 

http://news.ifas.ufi.edu/2000/06/21/glae-possible-cause-of-increased-alligator--deaths-in-lake-griffin/. 

[69] Steidinger, et al., March 8, 1999. Harmful Algal Blooms in Florida. Submitted to Florida's Harmful Algal Bloom Task 

Force by the Harmful Algal Bloom Task Force Technical Advisory Group. P. 22. 

[70] Ross. P. Effects of Toxic Algae on Alligators and Alligator Egg Development. USGS. Water Resources Research 

Grant Proposal. 

[71] Steidinger, et al., March 8, 1999. Harmful Algal Blooms in Florida. Submitted to Florida's Harmful Algal Bloom Task 

Force by the Harmful Algal Bloom Task Force Technical Advisory Group. P. 7. 

11/19/2010 02:48 PM EST 2-1627
 
Chapter 2 - Comment Documents Background 

[72] Spinner, April 23, 2007. Red Tide May Kill Marine Life Even After It Dissipates. Sarasota Herald-Tribune. 

[73] Florida Fish and Wildlife Conservation Commission, December, 2007. Florida Manatee Management Plan. P. 11­

12. 

[74] Florida Fish and Wildlife Conservation Commission, December, 2007. Florida Manatee Management Plan. P. 11­

12. 

[75] Steidinger, et al.. March 8, 1999. Harmful Algal Blooms in Florida. Submitted to Florida's Harmful Algal Bloom Task 

Force by the Harmful Algal Bloom Task Force Technical Advisory Group. P. 23. 

[76] Florida Fish and Wildlife Conservation Commission. Importance of Seagrass. FWRI. Accessed at 

http://research.myfwc.com/features/view/_article.asp?id=20720 [77] US Fish and wildlife service 2001 Florida Manatee 

Recovery Plan. third eddition Recoverv goal 3.3.8.P. 92 

[78] Florida Fish and Wildlife Conservation Commission. Effects of Florida Red Tide on Marine animals. FWRI. 

[79] Nordlie. et al.. Seotember 8. 2009. UF. Old Dominion Launch Project to Restore Sponges in berren parts of Florida 

Bay. University of Florida. Accessed at http://news.ufl.edu/2009/09/08/uf-old-dominion-launch-project-to- restoresponqes-in-barrren-paris-of-florida-bay/?mobile=1. 

Comment ID 1640.001.008 

Author Name: Pugh T. 

Organization: Source, Inc. 

I have been working as a civil engineer in Southwest Florida for the past 20+ years. I attended the Public Hearing in 

Fort Myers Florida on April 13, 2010, presented by EPA Representatives Ephraim King and Jim Keating. Several points 

made in the presentation by Mr. Keating rationalizing the water quality standards changes were misstated, inaccurate or 

invalid. These include: 

Blue Baby Syndrome Reference - While it is true that nitrates in highly elevated amounts in drinking water supplies can 

cause this syndrome, which can lead to coma and death, what Florida children have succumb to this medical condition 

for the reason of a poor water supply? I believe you will find very few, if any children affected in this manner due to 

nitrates in their drinking water. 

Comment ID 1645-1.001.019 

Author Name: Griswold R. 

Organization: Destin Water Users 

2. Adverse Impacts of Nutrient Pollution on Aquatic Life, Human Health and the Economy Highly elevated nitrogen 

levels, in the form of nitrate, in drinking water supplies and private wells can cause methemoglobinemia (blue baby 

syndrome.... Monitoring of Florida Public Water Supplies from 2004-2007 indicates that violations ofnitrate maximum 

contaminant levels (MCL) rangedfrom 34-40 violations annually. In addition, the predominantly agricultural regions of 

Florida, of3,949 drinking water wells analyzed for nitrate by the Florida Department of Agriculture and Consumer 

Services, (FDACS) and the FDEP, 2,483 (63%) contained detectable nitrate and 584 wells (15% contained nitrate 

11/19/2010 02:48 PM EST 2-1628
 
Chapter 2 - Comment Documents Background 

above the US EPA MCL. Of the 584 wells that exceeded the MCL, 519 were located in the Central Florida Ridge citrus 

growing region, encompassed primarily by Lake, Polk and Highland Counties. 

Comment ID 1692-1.001.002 

Author Name: Mosher A. 

Organization: Save Our Aquifer, Inc. 

The water quality in the Lagoon has been deteriorating in the last 50 years, particularly in the last 20 years due to 

nutrient-laden stormwater. Most of the older neighborhoods still drain to the lagoon, impacting resident wildlife through 

increased pollution, algae blooms and carcinogenic tumors. 

Comment ID 1692-1.001.003 

Author Name: Mosher A. 

Organization: Save Our Aquifer, Inc. 

The state agencies brush off the toxic algae blooms as natural, but if you observe the amount of pesticides and 

fertilizers that local residents apply to their lawns on a monthly basis, you quickly begin to connect the dots and 

understand how the lagoon has been sick for so many decades. As a child I used to swim in the lagoon but now, 30 

years later I no longer feel safe doing so. I do not feel safe eating the fish, crabs, oysters or seafood from the lagoon nor 

would I feed them to my children. 

Comment ID 1781-1.001.001 

Author Name: Roy N. 

Organization: Clean Water Network 

Nutrient pollution is one of the leading sources of impairment to Florida's waters. Currently, Florida does not have 

numeric water quality standards for nutrient pollution, as it does for other pollutants. The current water quality nutrient 

standard in Florida is a narrative standard that is difficult for environmental agencies to enforce with the result that it is 

not enforced despite the clear requirement that narrative standards be enforced under 40 CFR 122.44(d). This lack of 

enforcement has allowed nutrient pollution to increase and accumulate in waterways, threatening human health and the 

environment. 

Nutrient pollution in Florida waters adversely affects the ability of all Floridians to use these waters for drinking, fishing, 

swimming, and other forms of recreation. Clean Water Network (CWN), the largest membership coalition in the country 

working to protect our nation's waters, strongly supports EPA's efforts to adopt critically needed limits on these water 

pollutants. CWN believes that the EPA has proposed scientifically sound and economically reasonable numeric nutrient 

criteria for Florida's lakes and flowing waters. 

11/19/2010 02:48 PM EST 2-1629
 
Chapter 2 - Comment Documents Background 

Numeric nutrient criteria for Florida surface waters are needed to protect human health and the environment. Waters in 

Florida are contaminated with excess nutrient pollution from sewage, fertilizer and manure, which can trigger harmful 

algae outbreaks. Harmful algae outbreaks not only make boating and swimming in these polluted waters dangerous, 

but they can result in massive fish kills, and threaten drinking water supplies. Some of these algae outbreaks are toxic 

to humans and exposure can cause rashes and eye irritation, or worse, damage to the nervous system. 

Numeric nutrient criteria for Florida surface waters are also needed to protect its tourism based economy and to provide 

for sustainable economic growth. Algae outbreaks can result in permanent reductions in waterfront property values and 

scare off tourists horrified to see lakes and rivers covered in green slime. Opponents of these proposed criteria have 

wildly exaggerated the anticipated implementation costs; moreover, their exaggerated claims completely ignore the 

costs in lost real estate and tourism revenue if nutrient pollution is not adequately regulated in Florida. 

Comment ID 1782-1.001.026 

Author Name: Childs D. 

Organization: Hopping Green & Sams, P.A., on behalf of Florida Rural Water Association, Florida Water Environment 

Association Utility Council, and Florida Section of the American Water Works Association Utility Council 

VII. EPA cannot justify its federal takeover of Florida's nutrient water quality standards program based on claims 

concerning bladder cancer 

The preamble to EPA's proposed rule attempts to justify EPA's federal takeover of Florida's nutrient water quality 

standards program based in part on an assertion that "[p]ublic health concerns related to eutrophication 

include...possible formation of disinfection byproducts in drinking water, some of which have been associated with 

serious human illnesses such as bladder cancer."[69] EPA supports the linkage between eutrophication and bladder 

cancer by citing to (1) an obscure study in Spain analyzing the correlation between bladder cancer and chlorinated 

water in public water supplies and swimming pools and (2) a generic EPA website concerning the risk of cancer caused 

by disinfection byproducts in drinking water sources. In other words, EPA's sources supporting its assertions do not 

concern eutrophication, algal blooms, or nutrient standards. Rather, EPA seems to imply -- without any directly 

supporting authority -- that numeric nutrient standards for Florida surface waters will reduce the use of chlorine in public 

water supply utilities and thus reduce the rate of bladder cancer in Florida. This tenuous assertion ignores that the 

treatment and/or prevention of the formation of disinfection by-products is relatively easy, and the technology and 

processes are fairly well established. The claim also overlooks that EPA adopted a "Stage 1 Disinfectants and 

Disinfection Byproducts Rule" that applies to "all community and nontransient noncommunity water systems that treat 

their water with a chemical disinfectant for either primary or residual treatment."[70] Utility members report that Florida 

surface waters often have significant concentrations of Total Organic Carbon just from the run off from natural areas, 

and these conditions already require treatment for prevention of disinfection by-product formation. In addition, utilities 

simply do not as a rule treat and distribute water that has had algae in it because of taste and odor concerns. So, 

although it may be true that if algae laden water were filtered, then chlorinated, then served to customers, who then 

drank the foul tasting water for many years, that bladder cancer could go up, but the simple fact is none of these things 

actually happen. The water treatment industries practices, the publics aesthetic demands, and water treatment 

regulations themselves, all prevent it. It might be fair to say that to the extent that anthropogenic activity might increase 

11/19/2010 02:48 PM EST 2-1630
 
Chapter 2 - Comment Documents Background 

the prevalence of algae in an urban water body that water body is rendered temporarily unusuable as a public water 

supply. It is incorrect, however, to infer that the mere presence of algae increases bladder cancer rates on waters that 

are not used as public drinking water supplies -- and would not be used -- because of the presence of algae. 

As anyone who has ever been touched by cancer can confirm, the word "cancer" carries a unique emotional impact, 

and an assertion that a particular activity or event is linked to cancer should be carefully made, particularly when it is a 

public servant making the assertion. In light of the paltry support for this justification for its proposed rule, EPA should 

formally retract its bladder cancer assertion in the preamble. 

[69] 73 Fed. Reg. 4175, 4178. 

[70] EPA, Stage 1 Disinfection and Disinfection Byproducts Rule, at http://www.epa.gov/safewater/mdbp/dbp1.html; see 

also 40 CFR Parts 9, 141, and 142 

Comment ID 1782-1.001.027 

Author Name: Childs D. 

Organization: Hopping Green & Sams, P.A., on behalf of Florida Rural Water Association, Florida Water Environment 

Association Utility Council, and Florida Section of the American Water Works Association Utility Council 

VIII. EPA cannot justify its federal takeover of Florida's nutrient water quality standards program based on claims of blue 

baby syndrome in Florida 

EPA's preamble and public workshop presentations attempt to justify the proposed nutrient standards based on 

concerns that elevated nitrates in Florida's drinking water supply will cause or has caused cases of "blue baby 

syndrome" in Florida. From the outset, this claim ignores that Florida already has a drinking water standard of 10 mg/L 

Nitrate-Nitrite.[71] Further, our correspondence and conversations with Florida Department of Health staff did not 

uncover any record of a blue baby syndrome occurrences in Florida.[72] 

So, similar to EPA's tenuous bladder cancer rationale, EPA's "blue baby syndrome" justification for this rulemaking does 

not survive even passing scrutiny. Again, one has to wonder why federal public servants would attempt to justify an 

environmental policy on hollow claims that appear designed simply to inflame public emotion. In light of these facts, 

EPA should formally retract "blue baby syndrome" as a justification for this proposed rule. 

[71] Rule 62-550.310(1)(a)-(b), F.A.C. 

[72] See enclosed email correspondence. 

Comment ID 1785-1.001.008 

Author Name: Hall T. 

11/19/2010 02:48 PM EST 2-1631
 
Chapter 2 - Comment Documents Background 

Organization: Lee County Board of County Commissioners Southwest Florida 

SPECIFIC COMMENTS FROM LEE COUNTY 

III. The Need for Numeric Nutrient Standards

 To begin with, Lee County wishes to express its full support for implementation of numeric nutrient standards and 

the need for greater attention to degradation of water quality in our estuary ecosystems. The water quality problems, 

especially blue-green algal blooms, experienced by the Caloosahatchee River and its tributaries are well documented. It 

is not a matter of "if" we need numeric nutrient standards, but "how" will they be implemented.

 Phosphorous and nitrogen pollution come from stormwater runoff, municipal wastewater treatment, and fertilizer 

runoff. It is understood that nutrients can damage drinking water sources; degrade downstream lakes, reservoirs, 

creeks, and estuaries. High levels of nitrogen and phosphorus in waters can produce harmful algal blooms. As a result, 

these blooms can produce "dead zones" in water bodies where dissolved oxygen levels are so low that most aquatic life 

cannot survive. However, nutrients, at natural background levels, are non-toxic and do not, directly, pose a threat to the 

public health, safety and welfare. The goal of healthier lakes, rivers, streams, estuaries and coastal water in Florida is 

one we all share. 

Comment ID 1795-1.001.007 

Author Name: Palmer D. 

Organization: Emerald Coast Utility Authority 

The Florida Fish and Wildlife Conservation Service's website says that there is antidotal evidence of red tide in Florida 

back to the 1500's. It also says it has probably always been here and probably always will be. Don't make utilities spend 

billions to fix a problem and still have the problem. 

Comment ID 1798-1.001.004 

Author Name: Wessell R. 

Organization: Sanibel Captiva Conservation Foundation 

In 2004-2006 the Caloosahatchee experienced devastating blooms of toxic blue green algae that turned the river green 

and the coastal beaches red with algae. Your power point presentation used photos of these conditions taken by 

members of our "river spotter" team. The Health Department posted signs warning people to stay away from the water 

and shut down the regional Olga water treatment plant that serves over 40,000 homes. These conditions earned the 

Caloosahatchee the dubious distinction of being chosen American Rivers 7th most endangered river in the U.S.. Those 

conditions caused Lee County a $40 million dollar loss in our economy. 

Comment ID 1810-1.001.049 

11/19/2010 02:48 PM EST 2-1632
 
Chapter 2 - Comment Documents Background 

Author Name: Young L. 

Organization: Clean Water Network of Florida 

The commenting organizations and their organizational members have many members who are affected by nitrogen 

and phosphorus pollution of Florida waters and by such pollution affecting the Gulf of Mexico and the Atlantic Ocean. 

These persons' ability to use these waters for drinking water, commercial fishing, recreation-based business, swimming 

and other forms of recreation are adversely affected by pollution which causes eutrophication, unnatural algal growth, 

loss of aquatic life and other negative effects on water bodies. 

Comment ID 1877.001.007 

Author Name: Gornicki P. 

Organization: Florida Forestry Association 

Please understand the outcome of this process is of utmost importance to our landowning members whose livelihood 

depends directly on their ability to economically manage their forested properties for the production of forest products. 

We therefore request that you give our comments your most serious consideration as you work through this process . 

Comment ID 1893.001.003 

Author Name: Waite S. 

Organization: 

The St. John's river flourescent green slime (blue-green algae) massive outbreak was so toxic the levels were 40-140 

times above the world health organizations limits. The St. Lucie River's massive toxic algae outbreak caused a 

permenant loss of a half billion dollars in water front value. Some of the algae are known to be neurotoxins and 

hepatoxins (liver). 

Surely, the illnesses, lost revenue were a constant problem over the last 30+ years. D.E.P. has not done it's job. The 

thousands of golf courses are as bad or worse than the manure of the cows and horses. I live in the equestrian 

community of Loxahatchee, FL. where there are a few putting manure in a canal. I use organic methods to feed my 

plants and to combat pests. I don't fertilize my property and it's very pretty. I recharge my aquifer and take very good 

care. D.E.P. 400 So. Congress Avenue, West Palm Beach, FL has had a continuous stream of acting heads. The 

current one is Jack Long. He signed the permit for the largest power plant in the country 4 1/2 miles south of me (3800 

mgw.) He did that the very first day of his new post. Florida Power and Light expedited all the permitting. Deep well 

injecting, they test 1 stack up with 11 more to come. 

The 45,000 people here in Loxahatchee and nearly the same in Wellington where international Polo games are played, 

Lion County Safari are all adjacent, oh, I almost forgot the blasting at Palm Beach Aggregates 200' from the gasline to 

the powerplant. Talk about pollution! 

11/19/2010 02:48 PM EST 2-1633
 
Chapter 2 - Comment Documents Background 

Comment ID 1919-1.001.002 

Author Name: Standridge K. 

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

II. GENERAL COMMENTS REGARDING SECTIONS I AND II 

A. NUMERIC NUTRIENT CRITERIA ARE NECESSARY FOR FLORIDA 

Many members of the organizations Earthjustice represented are personally and economically adversely affected by the 

eutrophication of Florida's waters caused by nitrogen and phosphorus pollution.[1] The pollution has resulted in the 

greening of Florida's waters to the detriment of Florida's public drinking water sources, its tourism industry, and its 

waterfront based property values. [2] That state itself has identified "major issues of concern with regard to the following 

nutrient related degradation of Florida's waters: 

• Since the 1970s, scientists have documented increasing levels of nutrients in surface water. 

• Water quality has declined in most springs since the 1970s; in particular, levels of nitrate (a nutrient) have increased. 

• Freshwater harmful algal blooms (HABs) are increasing in frequency, duration, and magnitude and therefore may be a 

significant threat to surface drinking water resources and recreational areas. Abundant populations of blue-green algae, 

some of them potentially toxigenic, have been found statewide in numerous lakes and rivers. In addition, measured 

concentrations of cyanotoxins-a few of them above the suggested guideline levels-have been reported in finished water 

from some drinking water facilities. 2008 Integrated Report at p. 37. [3] 

[1] Appendix 1: Standing Affidavits. 

[2] Appendix 2: Photographs of algae blooms in various Florida freshwaters. 

[3] The 2008 Integrated Report is already part of the record of this rulemaking. See footnote 1 at 75 Fed. Reg. 4175. 

Comment ID 1919-1.001.003 

Author Name: Standridge K. 

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

1. Florida is plagued by toxic algae outbreaks. 

The most vivid expression of the adverse effects of excessive nutrient pollution are the toxic algae outbreaks that now 

plague Florida's rivers and lakes [4] and, most particularly, its springs and spring fed rivers. [5] An Assessment of 

Cyanotoxins in Florida's Lakes, Reservoirs, and Rivers [6] produced by a team of scientists for the Florida Department 

of Environmental Protection in 2000 found that these outbreaks indicate the potential for a significant threat to public 

health: 

11/19/2010 02:48 PM EST 2-1634
 
Chapter 2 - Comment Documents Background 

During the summer of 1999, the Cyanobacteria Survey Project at the SJRWMD collected a total of 167 water samples 

from sites throughout the state of Florida. Eighty-eight of these samples, representing 75 individual water bodies, were 

found to contain significant levels of toxin- producing blue-green algae. Thus far, algal toxins (particularly liver toxins) 

have been positively identified in all 88 of these water samples, and 80% of these samples have been shown to be 

lethally toxic to mice. 

The widespread distribution and relatively high levels of toxin-producing blue-green algae in Florida's waters, in addition 

to the demonstrated acute toxicity of the algal toxins, indicate the potential for a significant threat to public health from a 

poisonous HAB event. Algal toxins were found in water bodies that are presently being used as drinking water 

resources, which is of particular concern as these chemicals are highly toxic to humans and yet are virtually 

unnoticeable (no smell, discoloration, or off-flavor). 

[4] Appendix 3: Photographs of Algae Outbreaks and Toxin Levels, available at 

http://www.greenwaterlab.com/photo_bloom_020410.htm. 

[5] Appendix 4: 2008 FDEP Powerpoint on Nutrient Pollution of the Suwannee and Santa Fe Rivers. 

[6] Appendix 5: Assessment of Cyanotoxins in Florida's Lakes, Reservoirs, and Rivers; Final Report 2000. 

Comment ID 1919-1.001.004 

Author Name: Standridge K. 

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

As reported by FDEP in its 2008 Integrated Report [7] to EPA: 

Over the last several years, concern has grown in Florida about the potential public health threat from harmful algal 

blooms (HABs). In general, researchers believe that freshwater algal blooms are increasing in frequency, duration, and 

magnitude and therefore may be a significant threat to surface drinking water resources and recreational sites 

(Williams, April 14, 2004). Typically caused by excess nutrients, these blooms may produce toxins that can harm 

humans through exposure to contaminated fish, dermal contact, and even the inhalation of aerosols. 

Original comment letter contains additional information in a photograph of Microcystis Algae: Christopher Point Canal 

(July 31, 2009). See original comment letter. 

A Florida laboratory which performs testing for cyanotoxins (toxins produced by bluegreen algae), has photographs of 

algae outbreaks and accompanying toxin levels. See http://www.greenwaterlab.com/photo_bloom_020410.htm. One of 

those photographs shows a toxic algae bloom on Christopher Point Creek off the St. Johns River that was taken on July 

31, 2009. The toxin concentration level of 800 ug/L for that bloom was 800 times above the WHO drinking standard of 1 

ug/L and 40 times above WHO's recreational standard of 20 ug/L.[8] 

[7] The Integrated Report is already a part of the record of this proceeding. See 75 Fed. Reg. 4176 at n.1. 

[8] Appendix 6: MDPH Guidelines For Cyanobacteria In Freshwater Recreational Water Bodies In Massachusetts. 

11/19/2010 02:48 PM EST 2-1635
 
Chapter 2 - Comment Documents Background 

Comment ID 1919-1.001.008 

Author Name: Standridge K. 

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

Illnesses associated with algae toxins are another cost. A recently published study determine that capitalized estimated 

marginal costs of illness for hospital emergency department respiratory illnesses associated with red-tide blooms in 

Sarasota County, Florida could be as much as $4 million per bloom.[19] It also found that this is a very conservative 

estimate of the total economic impacts of each bloom. Red-tide blooms don't just occur in Sarasota County. A CDC 

report on a red tide outbreak in Nassau County in September 2007 found that reports of respiratory irritation were 

received by public health agencies from persons along Florida's Atlantic coast, up to 200 miles south of Fernandina 

Beach (in Nassau County) and that during this same time period approximately 15-20 reports were received daily by 

NCHD from beachgoers with symptoms of respiratory illness.[20] 

Another cost is the loss of water front property values caused by the appearance of toxic algae outbreaks. For example, 

in Martin County, where the St. Lucie River has suffered from repeated algae outbreaks, there has been a loss of 

waterfront property values due to water pollution in the range of $466 to $647 million dollars.[21] Local real estate 

agents view themselves as being liable under Florida's disclosures laws if they fail to disclose to potential buyers of 

waterfront property the polluted condition of the St. Lucie River, the algae outbreaks, and the public health department 

warnings (see warning poster below) that have been posted on the waterfront.[22] 

Original comment letter contains additional information in an image of a warning poster on page 6 of original comment 

letter. See original comment letter. 

A similar loss in property values can be imputed to other counties (such as Duval County and Lee County) which also 

have extensive waterfront properties and which have suffered from similar algae outbreaks that have prompted similar 

health alerts.[23] 

[19] Appendix 14: Hoagland, et al., The Costs of Respiratory Illnesses Arising from Florida Gulf Coast Karenia brevis 

Blooms, Environ Health Perspect 117:1239-1243 (2009). 

[20] Appendix 15: CDC, Morbidity and Mortality Weekly Report, Vol. 57, No. 26 (July 4, 2008). 

[21] Appendix 16: Declaration of Jacqui Thurlow-Lippsich. 

[22] Id. 

[23] Appendix 17: Public Health Warnings from Lee and Duval Counties, Florida. 

Comment ID 1919-1.001.009 

Author Name: Standridge K. 

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

Yet another cost is associated with the treatment of surface drinking water sources contaminated by blue-green algae. 

11/19/2010 02:48 PM EST 2-1636
 
Chapter 2 - Comment Documents Background 

Florida is rapidly depleting its groundwater resources and must turn to surface waters for drinking water supplies. For 

example, the St. Johns River Water Management District has reported that: 

The District is committed to protecting water resources within its boundaries and in Florida. As a result, the District's 

regional water supply plan has established that additional groundwater withdrawals must be limited so that lakes, 

wetlands and springs are protected and continue to remain healthy. Some areas of the District will reach their 

sustainable groundwater limits very soon. About 200 million gallons of water per day of alternative water supplies will 

likely be needed by 2025 and, in some areas, as early as 2013. To help meet that need, District studies indicate that 

limited quantities of water can be withdrawn from the St. Johns and Lower Ocklawaha rivers without causing harm to 

the water resources of these areas.[24] 

[24] See http://sjr.state.fl.us/surfacewaterwithdrawals/FAQs.html. 

Comment ID 1919-1.001.011 

Author Name: Standridge K. 

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

Furthermore, while it is common for many water suppliers, like the Texas District, to describe the problem created by 

algae in source water as "an aesthetic problem" without associated health risk, in a study conducted for the American 

Water Works Association Research Foundation, 82 percent of 243 samples of treated water testing positive for taste 

and odor problems also tested positive for cyanotoxins.[31] Algae has forced the closure of the Olga Drinking Water 

Treatment Plant on the Caloosahatchee River,[32] and plagues Lake Manatee which serves as a potable water source 

for over 265,000 people in Manatee and Sarasota Counties.[33] Manatee County uses activated carbon filters to 

remove the taste and odor caused by the algae in the reservoir at a cost that can exceed $14,000 per day.[34] 

[31] Appendix 22: NHDES, Environmental Fact Sheet: Cyanobacteria and Drinking Water: Guidance for Public Water 

Systems (2009) (citing to American Water Works Association Research Foundation. Assessment of bluegreen algal 

toxins in raw and finished drinking water. AwwaRF and AWWA, Denver, CO (2001)). 

[32] Appendix 23: Fort Myers News-Press Article on Olga Plant Closure. 

[33] Appendix 24: Stanley, et al., Relationship of Chlorophyll a Concentration to Seasonal Water Quality in Lake 

Manatee, Florida (University of Florida, IFAS Publication SL211 (November, 2003). 

[34] Id. at p. 2. 

Comment ID 1920-1.001.007 

Author Name: Wise W. 

Organization: University of Florida on behalf of Earthjustice 

18. One of the consequences of fertilizer pollution are the extensive algae blooms in the St. Johns River, the 

11/19/2010 02:48 PM EST 2-1637
 
Chapter 2 - Comment Documents Background 

Caloosahatchee River, and the St. Lucie River which have prompted local public health departments to issue "health 

warnings" advising people not to go near the water. Individuals making recreational use of springs (including Wakulla 

Springs and Ichetucknee Springs) have reported rashes and respiratory problems associated with certain kinds of bluegreen algae. 

19. Toxin levels for blue-green algae well above the World Health Organization's recommended limits for recreational 

and drinking water have been found in numerous Florida lakes. Toxin levels above that recommended by the World 

Health Organization for drinking water have also been found in finished drinking water (the water that comes out of the 

tap) produced by several Florida drinking water plants, including the plant that serves people in West Palm Beach and 

the plant on the Peace River that serves people in Charlotte, Sarasota, and DeSoto counties. 

20. In June of 2008, for the first time, a drinking water plant in Florida (the Olga Plant on the Caloosahatchee River) was 

shut down due to algae contamination of its source water. It was the second time the plant had to be closed in three 

months. 

21. Similarly, Lake Okeechobee is being abandoned as a drinking water source by the towns on the south side of the 

Lake because the lake water has become too contaminated to treat without producing treatment byproducts that are 

themselves mutagenic. Prior to the decision to stop using the lake as source water, EPA and FDEP funded drinking 

water stations where thoseresiding in south of the lake towns could obtain free drinking water because the water being 

produced by the plants wasn't safe to drink. 

Comment ID 1920-1.001.027 

Author Name: Wise W. 

Organization: University of Florida on behalf of Earthjustice 

14. The Florida Department of Environmental Protection specifically listed the following major fertilizer/animal waste 

pollution issues in their 2008 Integrated Report to EPA: 1) increasing levels of nutrients in Florida's surface waters since 

the 1970s; 2) nitrate concentration increases in springs; 3) threats to drinking water and recreational use of surface 

waters due to harmful algal blooms which are increasing in frequency, duration, and magnitude; 4) large growths of 

blue-green algae (cyanobacteria) poised to trigger releases of large amounts of health threatening toxins in rivers and 

lakes; and 5) concentrations of these cyanotoxins above suggested guidelines in finished drinking water from some 

Florida drinking water facilities.[2] [2] http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf at p. 37. 

Comment ID 1930.001.003 

Author Name: Congdon L. 

Organization: 

Already this spring one of the causeway beaches is closed due to bacteria from fecal materials. This pollution not only 

causes illness which is sometimes very serious, even fatal, but it has disastrous effects on our economy when tourists 

11/19/2010 02:48 PM EST 2-1638
 
Chapter 2 - Comment Documents Background 

don't come to our beaches. Manatee County gained $569 million from our tourist businesses last year, almost all beachrelated. We can't afford to lose some of that money when our unemployment rate is 12% and taxes are down due to 

many foreclosed homes. 

Comment ID 1982.001.004 

Author Name: Hanratty K. 

Organization: 

Phosphorous and Nitrogen cause toxic algae outbreaks. The algae outbreaks have serious human health effects and 

cause massive fish kills. Exposure to toxic algae can cause eye and skin irritation. Some forms are also made of toxic 

microbes that can cause damage to the nervous system and promote tumor growth. EPA must adopt strong standards 

and resist efforts to weaken numeric limits or delay their effective implementation. 

Comment ID 2045-1.001.006 

Author Name: Tonsmeire D. 

Organization: Apalachicola Riverkeeper 

Many of our members have been or can be negatively affected by nitrogen and phosphorus pollution of the waters of 

the Apalachicola ecosystem and the waters of the Gulf of Mexico. Our members' ability to use these waters for drinking 

water, commercial fishing, recreation-based businesses, swimming and other forms of recreation are adversely affected 

by these pollutants. Numeric nutrient criteria will provide greater protection for the waters of Apalachicola River and 

Bay. 

Comment ID 2233-1.001.006 

Author Name: Kovach C. 

Organization: CF Industries 

C. Blue Babies, Manatees and Liver Cancer 

EPA's after the fact justification for its decision to step over the State of Florida and promulgate numeric nutrient criteria 

became more incredulous when an EPA staff member presented a slide show at EPA's February 16, 2010, public 

meeting in Florida citing blue baby syndrome, liver cancer and manatee survival as reasons for promulgating the 

criteria. There is no public record of a verified case of blue baby syndrome in the State of Florida and, even where the 

handful of examples of this rare medical phenomenon has been documented, agricultural contamination of drinking 

water wells was suspected to be the source. The same is true of the insensitive reference to liver cancer. EPA cannot 

expect an educated public to believe that it must step in, override the State water quality standards program, and hastily 

promulgate nutrient criteria for Florida lakes and streams to stem the tide of liver cancer across the State of Florida. 

11/19/2010 02:48 PM EST 2-1639
 
Chapter 2 - Comment Documents Background 

There is no place for this type of sensationalism in a true scientific endeavor. 

Such scare tactics suggest a need for an after the fact rationalization of federal agency action. Rather than confess a 

premature or misguided decision, the February 16th presentation went so far as to suggest that numeric nutrient criteria 

were needed to ensure that the Florida manatee would not starve. The State's 2009 manatee census included five 

hundred more manatees than were observed under similar conditions in 2001. Perinatal losses, severe cold weather 

and boat collisions are well documented causes of manatee deaths in the State of Florida; starvation for want of algaefree eelgrass has not been linked to manatee mortality. Such hyperbole clouds the real issues, confuses the public and 

serves no Clean Water Act purpose. 

Significantly, there is no mention of blue babies, liver cancer or starving manatees in EPA's January 14, 2009 necessity 

determination. 

D. Inflammatory Public Notice of Listening Sessions 

Yet EPA repeated its inflammatory rhetoric in its notice of three additional public listening sessions in Florida. There are 

no public health justifications for EPA's proposed rule. EPA proposed the rule to settle a citizens' suit of questionable 

merit and not to address an exigent public health threat. 

Florida's drinking water supply has not been compromised by nutrient pollution; the majority of Florida citizens drink 

water from the Floridan aquifer or other groundwater sources. A small fraction of drinking water comes from surface 

waters and that water is treated to standards before it is distributed to the public. Drinking water quality is regulated by a 

separate regulatory program unrelated to the surface water quality criteria proposed by EPA. Any reference to drinking 

water is a reprehensible scare tactic intended to frighten the public to support EPA's proposed rule. 

EPA's continual reference to the deadly harmful algal blooms (HABs) is also a blatant misrepresentation intended to 

scare the public into supporting EPA's proposed rule. In a 2001 Report to the Florida Harmful Algal Bloom Taskforce 

entitled Frequently Asked Questions About Blue Green Algae (Cyanobacteria) and Their Toxins, authored by scientists 

at the University of Miami, illnesses from water contaminated by blue green algae are linked to consuming untreated 

water. The only deaths referenced in the report occurred in Brazil and were due to high levels of blue green algae or 

their toxins in untreated reservoir water used for dialysis. References to liver cancer were associated with laboratory 

mice and a mid-1980's study in China where people were drinking untreated water from a pond and a ditch. "How many 

cases of cancer can be attributed to blue green toxins in the US (where drinking water is of high quality) remains 

unknown," according to the University of Miami report. Scaring the public with the specter of death and cancer to garner 

support of an unnecessary and scientifically and invalid rule is disgraceful. 

EPA's reference to disinfection byproducts is also irrelevant and misplaced. EPA regulates disinfection byproducts and 

maintains seperate criteria for those materials that EPA has declared protective of human health based uses. If 

disinfection byproducts are contributing to bladder cancer, it is at EPA's own hands in that the federal agency regulates 

those very compounds. A surface water criterion for TN or TP cannot credibly be related to a measurable decrease in 

bladder cancer in Florida or the United States. EPA claims in its proposed rule that it is interpreting Florida's narrative 

nutrient criterion to derive numeric endpoints. Florida's narrative standard ensures that Florida surface waters are free 

from levels of nutrients that cause an imbalance of natural populations of flora and fauna. EPA's unsubstantiated and 

persistent reference to illness, death and cancer has absolutely nothing to do with interpreting the narrative criterion to 

11/19/2010 02:48 PM EST 2-1640
 
Chapter 2 - Comment Documents Background 

meet aquatic life use support and is nothing more than hyperbole intended as an after the fact justification of its 

proposed rule. 

Comment ID 2233-1.001.066 

Author Name: Kovach C. 

Organization: CF Industries 

USEPA Comments in Public Hearings regarding Harmful Algal Blooms (HAB's) 

During the public hearings, and in the background information to EPA's proposed rule, the USEPA presented several 

points regarding Harmful Algal Blooms, largely red tide events, and suggested that all of these blooms are the direct 

result of nutrient loading from inland waters. Some non-scientific lay members of the public echoed this misconception. 

We take exception to that assertion and provide the following brief review for the record. 

HAB Impact to Drinking Water and Human Health 

Factual public information is available online as supplied by the Florida Fish and Wildlife Conservation Commission 

(FFWCC) Fish and Wildlife Research Institute. The State legislature has recognized the need to monitor and inform the 

public on HAB's and in 1998 funded a joint program between the Department of Health, the St. John's Water 

Management District (where the Oklawaha chain of lakes resides) and the Florida Fish and Wildlife institute to study the 

issue HAB's in Florida (FFWCC, 2010b). While several species of toxic blue-green algae or cyanobacteria are found in 

many of Florida's lakes and reservoirs, including some waters used for water supplies, no illnesses related to 

cyanobacteria have been documented in the State of Florida (FFWCC, 2010b). 

First and foremost, the vast majority of Florida's drinking water sources comes from the Floridan aquifer or other 

groundwater sources (FDEP 2010g). In a 2001 Report to the Florida Harmful Algal Bloom Taskforce entitled Frequently 

Asked Questions About Blue Green Algae (Cyanobacteria) and their Toxins, authored by scientists at the University of 

Miami (Fleming, 2001), illnesses from water contaminated by blue green algae were linked to consuming untreated 

water. The only deaths referenced in the report occurred in Brazil and were due to high levels of blue green algae or 

their toxins in untreated reservoir water used for dialysis. References to liver cancer were associated with laboratory 

mice and a mid-1980s study in China where people were drinking untreateq water from a pond and ditch. "How many 

cases of cancer can be attributed to blue green toxins in the US (where drinking water is of high quality) remains 

unknown." 

Red tide blooms 

Red tide blooms have been known for centuries and have occurred both on populated as well as pristine coastal areas. 

In fact, it has been reported that the Spanish commented on fish kills in Tampa Bay in the 16th century (Herald Tribune, 

2006; Bay Soundings, 2006) Red tide events were scientifically documented in Florida as early as the 1840's (FFWCC, 

2010c). Florida red tide blooms are caused by Karenia brevis a common, photosynthetic dinoflagellate which is 

common in coastal shelf waters. Although nutrients (nitrogen and phosphorus) can playa role in sustaining in-shore red 

tide events, numerous other physical, chemical and biological factors are involved in the dynamics of red tide blooms 

11/19/2010 02:48 PM EST 2-1641
 
Chapter 2 - Comment Documents Background 

(Milroy et al., 2008; Walsh et aI., 2006; Steidinger 2009). Current as well as past research has demonstrated that many 

factors contribute to reel tide development and dynamics and account for variations in the initiation, growth, 

maintenance and dissipation phases of these events (Milroy et a/., 2008; Walsh et aI., 2006; FFWCC, 2010a; Steidinger 

2009). Red tide is not simply a nutrient problem. 

• Hu et al. (2004) studied a dark plume event (K. brevis bloom) in South Florida using field, rainfall, river flow and 

satellite sensor data. Coastal runoff containlnq high nutrient concentrations resulting from heavy rainfall was linked to 

the bloom event. The dark plume had higher levels of colored dissolved organic matter (CDOM) (2-3 times) and 

negligible levels of inorganic nutrient and chlorophyll compared to shelf waters (Hu et aI., 2004). The bloom was 

stimulated by the dark plume (shading) event even though inorganic nutrient levels were lower. 

• A red tide event offshore of Sarasota, Florida during October 1999 was analyzed using a coupled biophysical model. 

Factors involved in the process included flowfield transport of offshore K. brevis, grazing pressure, phytoplankton 

competition, nutrient availability and light levels (Milroy et a/., 2008). Upwelling, cross-shelf transport, sufficient nitrogen 

(estuarine sources and atmospheric deposition) and phosphorus sources, as well as shading (light), played a role in 

bloom dynamics. Because K. brevis is shade-adapted, high levels of colored dissolved organic matter (CDOM) could 

provide the shading refuge for K. brevis to avoid UV damage. The occurrence of a wind driven iron-loading event 

stimulated Trichodesmium nitrogen fixation and subsequently increased dissolved organic nitrogen (DON) within the 

water column (Milroy et a/., 2008). 

• Walsh et al. (2006) conducted numerical model analyses for Gulf of Mexico red tides, which explained the 

fundamentals for red tide initiation and persistence. The timeline for red tide requires specific physical, chemical and 

biological conditions. These conditions include: a mid-shelf nutrient supply of phosphorus with a low dissolved inorganic 

nitrogen to dissolved inorganic phosphorus (DIN/DIP) ratio (typically upwelled from offshore); delivery of atmospheric 

(windderived) iron-rich dust; dissolved organic nitrogen (DON) release by diazotrophs utilizing the dust; simultaneous 

grouping of diazotrophs (sun-adapted) and K. brevis (shade-adapted); K. brevis migration into near-bottom Ekman 

layers; upwelling transport of K. brevis to coastal waters rich in CDOM; K. brevis release of toxins resulting in fish kills, 

and: K. brevis growth in self-shaded environment and fed by decaying fish and diazotrophs (Walsh et a/., 2006). 

Most of these studies indicate that while loading of onshore nutrients may playa role in sustaining some red tide 

blooms, the events are primarily caused by offshore and atmospheric events that stimulate the growth of the 

opportunistic K brevis. These opinions have been reinforced in recent presentations by red tide researchers (Heil, 2005; 

Weisburg, 2010) and associated publications (Heil and Steidinger, 2009; Millroy, et a/., 2008). By suggesting to the 

public that HABs result from "nutrient pollution" and implying that such blooms will be abated or eliminated through 

implementation of the proposed nutrient was rule, the Agency is misleading the public and perpetuating scientific 

misconceptions and misinformation. 

Comment ID 2233.001.005 

Author Name: Kovach C. 

Organization: CF Industries 

2. EPA's proposed rule will not eliminate Hazardous Algal Blooms (HABs) as suggested by EPA. 

CF is concerned that EPA is perpetuating a basic misconception that all HABs, arid in particular Red Tide algal blooms, 

11/19/2010 02:48 PM EST 2-1642
 
Chapter 2 - Comment Documents Background 

originate from nutrient pollution . While the relationships between nutrient pollution and different types of HABs 

continues to be studied, it is well settled that on the Gulf Coast of Florida, Red Tides (K. brevis) generally originate from 

offshore sources and blooms are driven (or mediated) by factors unrelated to nitrogen or phosphorous nutrient 

enrichment. Red Tide blooms are synonymous with the public's perception of HABs . In reviewing the preamble and 

attending the public presentations by EPA on this proposed rule, one is led to believe that reducing TN and TP to levels 

proposed by EPA in the rule would end outbreaks of Red Tide. CF believes this suggestion is misleading, and EPA 

should fully and properly explain the reality of such occurrences to the public in its representation of what the proposed 

rule might reasonably be anticipated to achieve. 

Response 

Comment IDs: 0487-1.001.001, 1645-1.001.019 

Response: Thank you for your comment. 

Comment IDs: 0597.001.001, 0760.001.002, 1785-1.001.008 

Response: Thank you for your comment. 

Comment IDs: 0612.001.002, 0612.001.004, 0613.001.004, 0691.001.002, 0708.001.005, 0708.001.007, 0709.001.004, 

0752.001.003, 0759.001.005, 0772.001.009, 0786.001.002, 0786.001.009, 0787.001.002, 0852.001.001, 0860.001.004, 

0871.001.003, 0872.001.004, 0896-2.001.021, 0897.001.011, 0901.001.002, 0930.001.001, 0936.001.002, 0954.001.002, 

0963.001.001, 0965.001.006, 0965.001.010, 0995.001.002, 1005.001.002, 1006.001.003, 1025.001.005, 1026.001.003, 

1030.001.004, 1031.001.004, 1038.001.002, 1039.001.002, 1044.001.003, 1046.001.002, 1072.001.002, 1075.001.004, 

1081.001.004, 1082.001.002, 1085.001.002, 1094.001.004, 1097.001.002, 1106.001.002, 1112.001.001, 1113.001.006, 

1115.001.006, 1119.001.002, 1124.001.003, 1135.001.003, 1150.001.002, 1169.001.002, 1173.001.002, 1173.001.003, 

1183.001.002, 1190.001.002, 1196.001.008, 1203.001.006, 1214.001.002, 1214.001.004, 1245.001.006, 1246.001.006, 

1252.001.002, 1253.001.002, 1265.001.004, 1269.001.002, 1290.001.002, 1308.001.002, 1308.001.003, 1316.001.003, 

1316.001.004, 1321.001.006, 1330.001.005, 1343.001.005, 1343.001.006, 1416-1.001.008, 1482-1.001.026, 1482-1.001.027, 1692­

1.001.002, 1692-1.001.003, 1781-1.001.001, 1798-1.001.004, 1810-1.001.049, 1893.001.003, 1919-1.001.002, 1919-1.001.003, 

1919-1.001.004, 1919-1.001.008, 1919-1.001.009, 1919-1.001.011, 1920-1.001.007, 1920-1.001.027, 1930.001.003, 1982.001.004, 

2045-1.001.006 

Response: EPA notes with the concerns about the effects of excess nutrients in Florida waters, such as harmful algal blooms, and 

the impacts associated with blooms as described in the preamble of the proposed rule. 

Comment ID: ID 0648.001.005 

11/19/2010 02:48 PM EST 2-1643
 
Chapter 2 - Comment Documents Background 

Response: EPA did not propose, nor is EPA finalizing, a “one-size-fits-all” criterion for the entire State. EPA considered many 

factors, including waterbody type, regional differences, and underlying geology, among others, in developing appropriate criteria. 

In addition, the site-specific alternative criteria provisions allow for the development of waterbody-specific criteria, if appropriate. 

Comment IDs: 0674.001.001, 0678.001.003 

Response: While algal blooms may have been occurring for millions of years, the concerns, as one commenter points out, are the 

blooms that are occurring because of human influences and the impact of these blooms on human health and the environment. 

Comment ID: 0717.001.012 

Response: EPA’s nutrient criteria are designed to address the long-term problems with nutrient over-enrichment, such as harmful 

algal blooms. 

Comment ID: 0742.001.002 

Response: EPA notes that projects such as those described in the comment reduce nutrient impacts to inland waters, such as harmful 

algal blooms. 

Comment ID: 0744.001.005 

Response: EPA notes that there is historical evidence of algae present in Florida waters and that the presence of this algae cooccurred with healthy fish population. However, there is ample evidence that leads EPA to conclude that present conditions in many 

of Florida’s waters are not providing conditions similar to those in 1888. See sections II.C and II.D of the preamble for additional 

information on documented impacts due to nutrients. 

Comment IDs: 0744.001.008, 0770.001.006, 0825.001.005, 1217-2.001.012, 1416-1.001.016, 1462-1.001.005, 1640.001.008, 1782­

1.001.026, 1782-1.001.027 

Response: EPA is not suggesting that there is an epidemic of blue baby syndrome in Florida, and EPA is not spreading 

misinformation about the health effects. 

EPA, under the Safe Drinking Water Act, has established the level (referred to as the Maximum Contaminant Level or MCL) of 

protection for human health effects associated with nitrate levels in drinking water (see “Basic Information about Nitrates in 

Drinking Water” at http://water.epa.gov/drink/contaminants/basicinformation/nitrate.cfml ). 

11/19/2010 02:48 PM EST 2-1644
 
Chapter 2 - Comment Documents Background 

Florida has adopted the EPA-approved 10 mg/L MCL for nitrate in drinking water and cites the symptoms of methemoglobinemia 

(the cause of blue baby syndrome) as the primary reason (see “Drinking Water Inorganic Contaminants” at 

http://dep.state.fl.us/water/drinkingwater.inorg_con.html ). 

With respect to disinfection by-products, there is a significant body of literature linking disinfection by-products to bladder and 

other cancers (Boorman et al., 1999. Drinking Water Disinfection By-Products: Review and Approach to Toxicity Evaluation. Env. 

Health Perspective, 107, Supplement I.). Additionally, there is significant literature to support the linkage of trihalomethane and 

cancer (see Lee et al. 2006. Cancer Risk Analysis and Assessment of Trihalomethanes in Drinking Water, Stoch. Environ. Res. 

Risk. Assess. 21: 1-13). 

EPA’s intention of including human health impacts of nutrients and the effects of nutrients was to illustrate that there are 

documented human health considerations associated with nitrogen and phosphorus pollution. EPA was not implying that numeric 

nutrient criteria would result in reductions in chlorine use. 

EPA also notes that drinking water, which meets the nitrate MCL standard, is safe to drink. 

Comment ID: 0746.001.004 

Response: The photographs presented illustrate the problem of harmful algal blooms that persist across the State. EPA also notes 

that FDEP proposed numeric criteria in June 2009, which is a primary source of FDEP information used by EPA. Given that some 

of these photographs are several years dated, it is unclear at this time whether the conditions illustrated are indicative of current 

conditions. Nevertheless, these photographs indicate to EPA that harmful algal blooms have been observed in the State. 

Comment ID: 0942.001.010 

Response: Thank you additional information about important fish species. 

Comment ID: 1178.001.007 

Response: This rulemaking does not address other hazardous chemicals that may be associated with nutrients. 

Comment IDs: 1217-2.001.021, 1416-1.001.015, 1795-1.001.007, 2233.001.005 

Response: EPA is not suggesting that there is an epidemic of blue baby syndrome in Florida, and EPA is not spreading 

misinformation about the health effects. 

11/19/2010 02:48 PM EST 2-1645
 
Chapter 2 - Comment Documents Background 

EPA, under the Safe Drinking Water Act, has established the level (referred to as the Maximum Contaminant Level or MCL) of 

protection for human health effects associated with nitrate levels in drinking water (see “Basic Information about Nitrates in 

Drinking Water” at http://water.epa.gov/drink/contaminants/basicinformation/nitrate.cfml ). 

Florida has adopted the EPA-approved 10 mg/L MCL for nitrate in drinking water and cites the symptoms of methemoglobinemia 

(the cause of blue baby syndrome) as the primary reason (see “Drinking Water Inorganic Contaminants” at 

http://dep.state.fl.us/water/drinkingwater.inorg_con.html ). 

EPA’s mention of these impacts was to provide examples of direct impacts that occur at high concentrations of nitrogen in water 

supported by actual scientific studies. EPA notes the increases in nitrates in groundwater as additional evidence of increased 

human-caused impacts associated with nutrients. 

EPA disagrees with the general comments that there are no clear links between nutrient loadings and harmful algal blooms (HABs). 

There is substantial evidence in the scientific literature between the addition of nutrients and blooms like cyanobacterial blooms and 

other algal blooms (see FDEP - 2010 Integrated Water Quality Assessment for Florida). Please see the preamble to the final rule as 

well as the Technical Support Document for specific evidence cited. EPA notes the commenters' assertion that the “vast majority of 

surface waters treated to provide public drinking water are stored above grade or off line.” 

Comment IDs: 1304-1.001.040, 1350-1.001.022 

Response: EPA acknowledges the importance of nutrients in the environment and the role that appropriate levels place in a healthy, 

balanced ecosystem. EPA’s methodologies take into account this important role. 

Comment ID: 1331-1.001.007 

Response: EPA notes that there are many factors that affect algal growth in addition to nutrients. EPA disagrees that there is not a 

meaningful link between criteria and specific designated uses. See sections II.C and II.D of the preamble for more information. 

Comment ID: 1475-1.001.004 

Response: EPA notes that Florida has a diverse landscape which results in spatial and temporal variation. EPA disagrees that 

addressing human health risks derived from specific waterbodies on a case-by-case basis would be a more rational and 

economically affordable approach. The problem of nutrient pollution and its impacts is widespread and continues to grow in the 

State. The pace at which these issues would be dealt with on a case-by-case basis would potentially be slow and costly given the 

number of affected systems in the State. This may make the recovery lag behind the growing problem and impacts. EPA’s methods 

reflect spatial and temporal variability and the final regulation allows for site-specific alternative criteria to be developed. EPA 

disagrees that the time to deal with a nutrient impact is after a waterbody is impaired. 

11/19/2010 02:48 PM EST 2-1646
 
Chapter 2 - Comment Documents Background 

Comment ID: 1877.001.007 

Response: EPA has reviewed your comment and has considered the information carefully. In setting criteria, EPA must assure that 

they are scientifically defensible and protective of the designated uses of the waterbody. EPA has also considered the economic 

impacts of the criteria through its economic analysis. 

Comment ID: 2233-1.001.006 

Response: EPA is not suggesting that there is an epidemic of blue baby syndrome in Florida, and EPA is not spreading 

misinformation about the health effects. 

EPA, under the Safe Drinking Water Act, has established the level (referred to as the Maximum Contaminant Level or MCL) of 

protection for human health effects associated with nitrate levels in drinking water (see “Basic Information about Nitrates in 

Drinking Water” at http://water.epa.gov/drink/contaminants/basicinformation/nitrate.cfml ). 

Florida has adopted the EPA-approved 10 mg/L MCL for nitrate in drinking water and cites the symptoms of methemoglobinemia 

(the cause of blue baby syndrome) as the primary reason (see “Drinking Water Inorganic Contaminants” at 

http://dep.state.fl.us/water/drinkingwater.inorg_con.html ). 

EPA’s mention of these impacts was to provide examples of direct impacts that may occur when high concentrations of nitrate in 

water occur. EPA disagrees that it has overstated the harm to public health from nutrients and the benefits of reducing nutrients 

through numeric nutrient criteria. The preamble of the proposed rule has cited a number of scientific studies that describe the 

impacts of nutrient enrichment, both directly, and indirectly, through the production of harmful algal blooms and their deleterious 

impact on human health and the environment. 

With respect to disinfection by-products, there is a significant body of literature linking disinfection by-products to bladder and 

other cancers (Boorman et al., 1999. Drinking Water Disinfection By-Products: Review and Approach to Toxicity Evaluation. Env. 

Health Perspective, 107, Supplement I.). Additionally, there is significant literature to support the linkage of trihalomethane and 

cancer (see Lee et al. 2006. Cancer Risk Analysis and Assessment of Trihalomethanes in Drinking Water, Stoch. Environ. Res. 

Risk. Assess. 21: 1-13). 

EPA’s intention of including human health impacts of nutrients and the effects of nutrients was to illustrate that there are 

documented human health considerations associated with nitrogen and phosphorus pollutants. EPA was not implying that numeric 

nutrient criteria would result in reductions in chlorine use. 

EPA notes the following example of the linkages of HABs and manatee mortalities. (1) April 17, 2003 (Reuters) - The Florida 

Marine Research Institute said 60 manatee deaths between February 27 and April 15 were caused by red tide. (2) Peirce, RH and 

Henry, MS. 2008. Harmful Algal Toxins of the Florida Red Tide (Karenia brevis): Natural Chemical Stressors in South Florida 

Coastal Ecosystems. Ecotoxicology 17(7): 623-6310. (3) Flewelling et al., 2005. Red Tides and Marine Mammal Mortalities. 

Nature 435(7043): 755-756. (4) Boassart et al., 1998. Brevetoxicosis in Manatees (Trichechusmanatus latirostris) from the 1996 

11/19/2010 02:48 PM EST 2-1647
 
Chapter 2 - Comment Documents Background 

Epizootic. Toxicologic Pathology 26(2): 276-282. 

EPA notes with the statement that Florida’s drinking water supply has not been compromised. However, EPA disagrees with the 

suggestion that surface waters for drinking water and other uses are not threatened by harmful algal blooms such as cyanobacterial 

blooms. EPA has found sufficient evidence, supported by FDEP findings (see FDEP’s 2010 Integrated Water Quality Assessment 

for Florida), that nutrient over-enrichment by nutrients is a significant cause for impairment in Florida waters and that HABs can 

have substantial effects on water quality. Please see the preamble to the final rule as well as the Technical Support Document for 

specific evidence cited. 

EPA disagrees with the comments that referencing cyanobacterial blooms is an attempt to scare and mislead the public. EPA has 

found evidence of the growing problem with algal blooms, toxic or otherwise, in many of Florida’s waterbodies that can lead to 

impacts beyond just human health, but to the quality of the environment and ecosystem services. See (1) Pierce, RH and Henry, 

MS. 2008. Harmful algal toxins of the Florida red tide (Karenia Brevis): Natural Chemical Stressors in South Florida coastal 

ecosystems, Ecotoxicology 17(7):623-631. (2) FDEP. 2010. Integrated Water Quality Assessment for Florida. (3) Burns, J. 2008. 

Toxic Cyanobacteria in Florida Waters. Cyanobacterial Harmful Algal Blooms: State of the Science and Research Needs, HK 

Hudness, ed. Springer Science. 

Regarding the toxic effects of cyanotoxins, there is a growing body of scientific (epidemiological) evidence showing the direct 

impact of these toxins on human beings. See Fleming, LE and Stephan, W. 2001. Frequently asked questions about blue green algae 

(cyanobacteria) and their toxins. NIEHS Marine and Freshwater Biomedical Sciences center, University of Miami, Fleming et al. 

2007. Evaluation of harmful Algal Blooms Outreach Activities. Marine Drugs 2007 (5) 208-219, and Kirkpatric et al. 2010. 

Gastrointestinal emergency room admissions and Florida red tide blooms. Harmful Algae, 9(2010): 82-86. 

Comment ID: 2233-1.001.066 

Response: EPA notes that there is limited information regarding the effect of cyanobacterial toxins and human health in Florida. 

However, cyanobacteria in Florida waters is cited by FDEP (2010 Integrated Water Quality Assessment for Florida), Florida Lake 

Management Society (Burns, J. 2008. Toxic Cyanobacteria in Florida Water, International Symposium on Cyanobacteria Harmful 

Algal Blooms, Springer Press), Florida Harmful Algal Bloom Task Force (Fleming, LE and Stephan, W. 2001. Frequently asked 

questions about blue-green algae (cyanobacteria) and their toxins. NIEHS Marine and Freshwater Biomedical Sciences Center, 

University of Miami, and other published articles (Backer et al. 2008. Recreational Exposure to Low Concentrations of 

Microcystins During and Algal Bloom in a Small Lake. Marine Drugs, 2008(6): 389-406, and Backer et al. 2010. Recreational 

Exposure to Microcystins during Algal Blooms in Two California Lakes. Toxicon 55(2010): 909-921). 

EPA notes that uncertainty remains between anthropogenic nutrient loading and Karenia brevis blooms. It should be noted, 

however, that Karenia brevis is primarily an issue in marine waters and will be addressed in subsequent rulemaking for Florida 

estuaries and coastal waters. This current rulemaking focuses on fresh water systems and will address the impacts of fresh water 

algal blooms. 

II.A.3 - NUTRIENT POLLUTION IN FLORIDA 

11/19/2010 02:48 PM EST 2-1648
 
Chapter 2 - Comment Documents Background 

Comment ID 0567.001.007 

Author Name: McAvoy G. 

Organization: University of Florida 

Florida's climate, consisting of a wet and dry season, annual high rainfall and high variation in the amount of rainfall 

from year to year, makes drainage and flood control an essential part of agriculture and life in south Florida. Proposed 

numeric criteria will also threaten the ability to adequately protect crops and property in extreme weather events. 

Comment ID 0589.001.005 

Author Name: Foy J. 

Organization: StormwaterJ Engineering Inc. 

5. Surface water quality varies considerably. The data being utilized is typically from grab samples. Based on these 

data it is not possible to establish valid cause/effect relationships for nutrients and impairments. NNC are arbitrary 

without cause/effect determinations. 

Comment ID 0590.001.003 

Author Name: Conner R. 

Organization: Lakeland Water Utilities 

(2) In the simplest sense, the balance of the nation is denied similar protections under the law and the Floridians are 

saddled with a unique burden based solely on a political boundary. Unless the EPA has proof that all of Florida's unique 

ecosystems have some common need of protection that is otherwise lacking throughout the balance of the nation, this 

regulation cannot be seen as having scientific merit. 

Comment ID 0590.001.005 

Author Name: Conner R. 

Organization: Lakeland Water Utilities 

(4) The legal impairment of many waters in Florida is questionable. The data held by the State is a collection assembled 

from multitudes of sources. In some cases, the quality may be dubious. It does not follow any well planned and 

executed sampling schedule or plan. As an example, the impairment of our receiving water is based on measured DO 

being below the minimum in more than 10% of the samples on record. It is obvious that sampling frequency increased 

when the DO was low, as several parties would initiate additional sampling. The frequency decreased when conditions 

improved. When the State's 10% rule is applied, the skewed sample frequency generated impairment. 

11/19/2010 02:48 PM EST 2-1649
 
Chapter 2 - Comment Documents Background 

Comment ID 0716.001.012 

Author Name: Coughenour F. 

Organization: Plant City 

I believe the examples that have been provided of water bodies that have become more impaired or continue to be 

extremely impaired are probably more the exception to the rule rather than the rule around Florida. 

11/19/2010 02:48 PM EST 2-1650
 
Chapter 2 - Comment Documents Background 

Comment ID 0744.001.003 

Author Name: Kovach C. 

Organization: CF Industries 

You have a number of slides of algal blocks. These slides, I think others have pointed out, are somewhat misleading. 

It's obvious that some of these photos are outdated. Lake Apopka in 1995, five years before the TMDL program. All of 

the slides that you showed are highly-altered segs, hydrologically-altered urbanized settings. You know, each one out 

context without more information. There were four lakes, actually one manmade reservoir, one pond and two lakes out 

of 7,700 in the state, you know, six streams out of 50,000 miles of waterways. I think in your presentation you noted that 

1,000 miles of waterways were impaired. Well, at least 98 percent of those waterways are unimpaired. 

Comment ID 0786.001.006 

Author Name: Veaudry K. 

Organization: Florida Native Plant Society 

I just want to close with saying that right now the Florida Native Plant Society is #NAME? nutrient criteria alone and the 

resulting delays ensure protection of designated uses for many of the state's waters that are either unimpaired now and 

need protection for the future or have been listed as impaired and require loading reductions. 

Comment ID 0825.001.004 

Author Name: Wilson-Davis L. 

Organization: City of Boca Raton 

The presentation also includes data states a thousand miles of the 50,000 rivers and streams are impaired by nutrients. 

This means that 98 percent of the Florida rivers and streams are not impaired by nutrients, and therefore the pictures 

depicting green waters represent only two percent of Florida's rivers and streams, many of those of that two percent 

already have TMDLs number which are numeric nutrient water quality standards designed for the recovery of those 

water bodies. It is through the TMDL process that such problems are intended to be addressed and not by changing 

water quality standards. 

Comment ID 0846.001.002 

Author Name: Martin P. 

Organization: Lake Worth Drainage District 

Now EPA is proposing numeric standards that are physically and economically impossible; moreover, not necessary. 

11/19/2010 02:48 PM EST 2-1651
 
Chapter 2 - Comment Documents Background 

The numeric standards proposed by the EPA do not represent the unique character of Florida. From subtropical in the 

south to temperate in the north, nutrients and the ability of the various water bodies to assimilate them vary greatly. 

Comment ID 0963.001.003 

Author Name: Kevany M. 

Organization: 

In Florida, 16% of rivers, 36% of lakes and 25% of estuaries are considered impaired, according to a 2008 report. A 

Florida DEP report found that 50% of the state's rivers and lakes had poor water quality due to too much nutrients. 

Nutrient pollution is the most prevalent water-pollution problem in the state, contributing to algae blooms that kill fish 

and cause respiratory problems and infections among boaters and beachgoers. The EPA has linked "ocean dead 

zones" deprived of oxygen and life to nutrient pollution hemorrhaging from watersheds. 

Comment ID 1041.001.005 

Author Name: Urich D. 

Organization: Responsible Growth Management Coalition 

But I think you do have to take a hard look at these issues, and I think that's what you're trying to do, and I think Florida 

is so unique -- when I moved here, I didn't know what an aquifer was. Now I know the different levels, and they're all 

interconnected over the whole state, and we have had people who dumped dye in the aquifer up in Tallahassee, and 

found it was in the Weeki Wachee Spring before they knew it, in a matter of minutes, not in a matter of several days. 

And so we are finding the interconnection of these aquifers. 

And then we, visually permit mining and what we're doing is taking lime rock over the top of the clay dome over the 

aquifer, and that's what's protecting the dome from collapsing. So I think we just really need to take a look at all these 

things. Thank you very much. 

Comment ID 1113.001.005 

Author Name: Barrera K. 

Organization: 

In 2008, a report was released saying 16 percent of rivers, 30 percent -- 36 percent of lakes, 25 percent of estuaries are 

considered impaired, and Tampa Bay is listed as one of the top ten impaired bodies of water by SWFWMD. 

Comment ID 1152.001.002 

11/19/2010 02:48 PM EST 2-1652
 
Chapter 2 - Comment Documents Background 

Author Name: Watson S. 

Organization: Florida Wildlife Federation, Sierra club, Audubon Society and Native Plant Society 

Craig Pittman and Matthew Waite, two reporters for the St. Pete Times, wrote a book Paving Paradise, and they said, 

and I quote, "The greatest fish kill recorded in U.S. history has happened in lake Thonotosassa, here in Hillsborough 

County." Baker's Creek and Lake Thonotosassa are verified are impaired Hillsborough County waters. Setting limits on 

pollution is long overdue in Hillsborough County. Pollution is affecting our water supply, our vegetation, and our wildlife. 

We have been told by the county wildlife biologists that the only significant wildlife habitat recognized by county and 

state in our area of Hillsborough County will not exist in ten years if our water in Baker Creek is not protected and 

cleaned up. 

There are over 60 species of wildlife, some endangered and threatened. The last endangered Florida panther lived 

under our -- in our area until 2004, when it was killed on I-4. I have a list that I would like to present of the animals that I 

have seen personally in this area. 

Comment ID 1173.001.005 

Author Name: Dangler H. 

Organization: Ocean River Institute 

In Florida, 16 percent of rivers, 36 percent of lakes and 25 percent of estuaries are considered impaired, according to a 

2008 report. A Florida DEP report found that 50% of the state?s rivers and lakes had poor water quality due to too 

much nutrients. 

Comment ID 1178.001.003 

Author Name: Ruff R. 

Organization: 

In Florida I worked for the Seminole tribe of Florida water resource management department as a regulatory liaison and 

in educational outreach. I have always been in love with the Everglades, that historically oligotrophic ecosystem which 

has been choked by a combination of nutrient-loving exotic vegetation and a canal system originally intended to make it 

safe and useful to economic interests. 

Being hot and flat, Florida is challenged with maintaining dissolved oxygen in its natural surface waters. Slowing and 

stopping the flow makes it worse, and adding nutrients adds fuel to that fire. Aquatic fauna do not stand a chance, 

especially if we consider the warming due to climate change. 

11/19/2010 02:48 PM EST 2-1653
 
Chapter 2 - Comment Documents Background 

Comment ID 1191.001.003 

Author Name: Cravens M. 

Organization: Mangrove Action Group 

Florida is unique among all the United States of America, in that most of it surface area is never more than a few feet 

above sea level, and its major ridges do not attain more than double-digit height. Our peninsular state is wholly and 

intimately connected to the Atlantic Ocean and Gulf of Mexico, by virtue of our waters that drain from the uplands 

directly and indirectly into the those seas. Florida must be made to be accountable and reverse what has become 

nutrient overloading flowing downstream, reducing waterways' productivity all along the way into the Atlantic and the 

Gulf. 

Comment ID 1198.001.004 

Author Name: Worley K. 

Organization: 

And I'm sure you're all familiar with the Everglades, whose continued viability depends largely on maintaining the 

natural cycle of water and nutrient levels under which the system was originally formed. 

Nutrient levels in the Everglades are naturally low, particularly in regard to phosphorus levels. 

Historically, the primary nutrients to the Everglades was primarily rainfall. In recent history, the water entering the 

Everglades is enriched with large levels of phosphorus that have upset the fragile balance of this ecosystem, which is 

manifested in poor water quality, algal growth, decreased oxygen levels, increased sedimentation, and food chain 

disruptions. 

The increased phosphorate load has altered the biotic assemblages within parts of the ecosystem, especially near the 

marsh areas near the canal outfalls where eutrophic adaptive cattails have now been replaced -- I mean have replaced 

the native oligotrophic adaptive seagrass -- sawgrasses. 

We are now having to spend billions of dollars to restore the Everglades to lessen nutrient-laden freshwater inflows. 

The point is, if we had had standards that would tell us early when we are having a problem starting, it would be able to 

prevent disasters like this. 

Comment ID 1286.001.002 

Author Name: Reese T. 

Organization: Friends of Brooker Creek Preserve 

11/19/2010 02:48 PM EST 2-1654
 
Chapter 2 - Comment Documents Background 

Al and Cindy Davis live on Clam Bayou, which is in south St. Petersburg, in Pinellas County. It is a very significant 

water body due to stormwater. It's been on the impaired waters list since 19 -- or 2003, and you're not even going to be 

doing a T.M.D.L. for it until 2011. So it's going to be many years probably before it gets restored. 

Brooker Creek Preserve is actually an 8,000 acre parcel in northeast Pinellas County, Lake Tarpon are adjacent -- or 

near Lake Tarpon, and Brooker Creek flows through it, it's a major tributary to Lake Tarpon. And the preserve also 

abuts the Anclote River. 

All three of those are impaired waters. All of these are due to stormwater pollution and nutrients. They are listed as 

dissolved oxygen impaired. And to actually control the dissolved oxygen, it is very necessary to get the nutrients 

controlled. 

Comment ID 1286.001.007 

Author Name: Reese T. 

Organization: Friends of Brooker Creek Preserve 

Personally, I would like to comment that having swam in springs, lakes, waters in Florida, it's getting to the point where I 

don't want to do it anymore. I've been to many of the springs in Florida in the last 20 years to see how they've been 

degraded, and they are actually disgusting. There are some that are -- they are just perpetually green. All of them are 

impaired. 

And the springs, it's one of Florida's great assets. And the nutrient loads in these springs is -- is just mind boggling. 

Even Ichetucknee River has degraded, and there is more growth in the river than there was 20 years ago. 

Comment ID 1319.001.003 

Author Name: Bouyounes M. 

Organization: Bouyounes Turpentine and Kettle Company 

We support the current proposal with some reservations. Florida's 2008 integrated water quality assessment reports 

that 28 percent of rivers and streams, 25 percent of lakes, and 59 percent of estuaries were impaired. The EPA 

determination letter has charged that despite huge expenditures of time and money, Florida has not been able to agree 

on numeric standards for the state surface waters. 

Comment ID 1344.001.004 

Author Name: Carter K. 

Organization: South Florida Water Management District 

11/19/2010 02:48 PM EST 2-1655
 
Chapter 2 - Comment Documents Background 

The district supports numeric nutrient criteria as long as it is based on sound science with sufficient time to address 

Florida's exceptional diverse water resources. 

Comment ID 1416-1.001.013 

Author Name: Alves J. 

Organization: Florida Electric Power Coordinating Group, Inc. 

(c) EPA's Articulated Rationale for the NNC Is Deeply Flawed 

(i) Florida Is Systematically Reducing Nutrient Pollution 

The graph below, from the FDEP report that EPA substantially relied on in asserting that there is an unresolved nutrient 

impairment problem in Florida, demonstrates that phosphorus levels fell approximately 50% during a 25 year period 

extending from 1980 through 2005.[3] This was a period during which the population of Florida doubled! This graph 

directly contradicts EPA's assertion that there is a "significant upward trend" in nutrient loading in Florida as well as 

EPA's notion that future increases in population inevitably will result in increased pollutant loading. The slight leveling off 

of phosphorus concentrations beginning in the late 1990s happens to correspond with a period of severe drought which 

began in Florida in 1998.[4] And the slight uptick in phosphorus levels thereafter (still below 1997 levels) is associated 

with a gradual return to normal rainfall patterns in Florida, and then two years of unprecedented hurricane activity that 

afflicted Florida in 2004 and 2005. Any claim that 2004 and 2005 phosphorus levels were associated with lax regulation 

by DEP or anthropogenic variables would be wildly speculative at best. 

Original comment letter contains additional information in the table on page 7 of the pdf of phosphorus levels in Florida 

by year. See original comment letter. 

[3] FDEP, Integrated Water Quality Assessment for Florida: 2008 305(b) Report and 303(d) List Update, at 33-34 (Oct. 

2008), see generally at http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf. 

[4] USGS, The Drought of 1998-2002: Impacts on Florida's Hydrology and Landscape (Circular 1295) (2006). 

Comment ID 1416-1.001.031 

Author Name: Alves J. 

Organization: Florida Electric Power Coordinating Group, Inc. 

EPA went on to assert that despite Florida's unique efforts, degradation of Florida's water quality due to nutrient overenrichment remains "widespread," and could increase because of Florida's expanding urban communities, agriculture 

development, and rapidly increasing population. In attempting to prove this point EPA stated that approximately 5% of 

Florida's flowing waters were identified as impaired by nutrients in FDEP's October, 2008 Integrated Water Quality 

11/19/2010 02:48 PM EST 2-1656
 
Chapter 2 - Comment Documents Background 

Assessment Report. EPA provided several additional isolated facts from FDEP's 2008 Report and relied substantially 

on that report as evidence that nutrient impairment in Florida is getting worse. (Notably, EPA did not provide any 

benchmarks for its appraisal, or focus on the extent of nutrient pollution in Florida now compared to 10 or 20 years ago.) 

EPA asserted that there is a "significant upward trend" in nutrient pollutant inputs in Florida that is associated with 

"extensive agricultural development and associated hydrologic modifications," as well as "population increase." 

Comment ID 1640.001.003 

Author Name: Pugh T. 

Organization: Source, Inc. 

Impairment Statistics - The statistics have been presented in a slanted manner to give the first blush impression of an 

overwhelming problem. Doing the math with the statistics given indicates that 98% of Florida's river and streams are not 

impaired by nutrients. 

Comment ID 1641-1.001.007 

Author Name: Littrell J. 

Organization: Okaloosa County Water & Sewer System 

We are certain that the FDEP has considered its documented, unique, and threatened ecosystems. 

EPA acknowledges that Florida is one of the few States that has a comprehensive program to account for and address 

these issues. Why would having an outstanding and remarkable program be justification for such action? It would 

appear that having a good program results in an adversarial approach while other states with lesser programs can 

continue with the minimal amount of effort. 

EPA's implementation of the proposed action on the basis of the "Integrated Water Quality Assessment for Florida 2008 

305(b) Re and 303(d) List update," October 2008, (IWR) is a misuse of the information provided by the that report. That 

report was prepared in the context of Florida's overall program to manage its water protection programs; and more 

specifically the Total Daily Maximum Loads Rule, Chapter 62-304, FAC. Interestingly, this rule was developed as a 

result of the EPA settling a previous lawsuit against them. After the State of Florida has expended the time and 

resources to develop this legislation, it is now being told by EPA that the effort was or is not good enough. We disagree 

with the EPA's assessment of Florida's TMDL rule making. 

The IWR was prepared by applying the procedures provided in the Impaired Waters Rule, Chapter 62-303, FAC. The 

application of this rule was intended to support the development of TMDLs for specific watersheds. Verification that a 

water body is impaired using the standards in the impaired waters rule is a means of establishing priorities for TMDL 

development. It is a qualified screening tool and not a tool from which specific standards should be developed. 

11/19/2010 02:48 PM EST 2-1657
 
Chapter 2 - Comment Documents Background 

Comment ID 1671-3.001.050 

Author Name: Brooks J. 

Organization: Florida Department of Environmental Protection 

Original comment letter contains additional data or information for all types of waterbodies from Florida DEP proposed 

nutrient criteria comment report (EPA's 1986 Ambient Water Quality Criteria for Dissolved Oxygen document includes 

language within the Conclusions section related to naturally-occurring low DO (EPA 440/5-86-003)) See original 

comment letter for bulleted language. 

Comment ID 1833-1.001.003 

Author Name: Roff R. 

Organization: Save It Now, Glades 

Being hot and flat, Florida's is challenged with maintaining dissolved oxygen in its natural surface waters. Slowing and 

stopping the flow makes it worse, and adding nutrients adds fuel to the fire. Aquatic fauna don't stand a chance, 

especially if we consider the warming due to climate change. 

Comment ID 1834-2.001.003 

Author Name: Bronson C. 

Organization: Florida Department of Agriculture and Consumer Services 

The claim that there has been "extensive agricultural development" leading to "associated hydrologic modifications (e.g. 

canals and ditches)[that] amplify the State's susceptibility to nutrient pollution," is repeated at 75FR4180. Agricultural 

development in Florida is not expanding. Furthermore, the use of BMPs and nutrient management programs have been 

shown to have reduced impacts of existing agriculture significantly. Specifically, all of the dairies in the Okeechobee 

basin have containment facilities and manage nutrients, as do most of the dairies in the Suwannee basin and other 

areas. In the Suwannee, monitoring well data have shown a downward trend for nitrates in the groundwater. Also in the 

Suwannee basin, a number of poultry and row crop farms have implemented controls under the CARES program. EPA 

is a signatory to the agreement that created the Suwannee basin program. 

Comment ID 1834-2.001.005 

Author Name: Bronson C. 

Organization: Florida Department of Agriculture and Consumer Services 

At 75FR4175 and again at 75FR4180, EPA lists the extent of impaired waters in Florida, and goes on to state: "The 

11/19/2010 02:48 PM EST 2-1658
 
Chapter 2 - Comment Documents Background 

actual number of stream miles and lake acres and estuarine square miles of waters impaired for nutrients may be 

higher, as many waters currently classified as "unassessed" may also be impaired." (emphasis added) This statement 

directly contradicts the EPA's statement in its National Water Quality Inventory: Repolt to Congress - 2004 Reporting 

Cycle - January 2009, [3] which states: "Because many states target their limited monitoring resources to waters that 

they suspect are impaired, there may be a lower percentage of impaired waters among the non-assessed (and total) 

waters than among the assessed waters." (emphasis added) 

[3] http. www,epa.gov/owow/305b/2004reportl2004_305Breport.pdr, p.1 

Comment ID 1885.001.018 

Author Name: Connor T. 

Organization: Office of the Executive Director, Sarasota County 

- The rule summary cites many miles and acres of impaired waters as a justification for needing numeric nutrient criteria 

but makes a contradictory argument that the current methods of assessing impairment are in need of improvement. 

EPA is correct in saying that the current assessment methods are inadequate. The remedy for this situation is to 

construct standards that are logical and supported by reputable methods. The current proposal extends the existing 

error of presuming general impairment without specific supporting evidence. 

Comment ID 1920-1.001.002 

Author Name: Wise W. 

Organization: University of Florida on behalf of Earthjustice 

6. In addition, Florida is unique in that it has an excellent study of early phosphorus levels conducted by Professor 

Howard T. Odum and published on January 9, 1953 in a report titled "Dissolved Phosphorus in Florida Waters."[1] 

(Exhibit B: Odum Report). 

Original comment letter contains additional information in Exhibit B, Dissolved Phosphorus in Florida Waters by Howard 

T. Odum. See original comment letter. 

The study provides a basic survey of the total phosphorus concentrations in Florida's many types of surface waters, 

including rivers, streams, springs, and estuaries. Although the parameter is described as "dissolved phosphorus" Odum 

is reporting levels of Total Phosphorus. This is proven by his analytical method which shows he added acid to the 

sample prior to analysis which is a standard technique for analyzing Total Phosphorus today. 

[1] Odum became a distinguished professor at the University of Florida and established the Howart T. Odum Center for 

Wetlands at that school. 

11/19/2010 02:48 PM EST 2-1659
 
Chapter 2 - Comment Documents Background 

Comment ID 1920-1.001.004 

Author Name: Wise W. 

Organization: University of Florida on behalf of Earthjustice 

NUTRIENTS IN FLORIDA WATERS 

8. In most Florida freshwater lakes and streams, phosphorus and nitrogen were naturally very low, limiting plants such 

as algae to only grow in very small quantities. 

9. When rivers and lakes become polluted by run-off containing fertilizer from farms and city lawns, as well as nutrientrich discharge from sewage plants and septic tanks, growths in the form of algal mats and toxic algae blooms appear 

because the water has been fertilized. (Exhibit C: SJRWMD Algae Brochure). 

Original comment letter contains additional information in Exhibit C, SJRWMD Algae Brochure. See original comment 

letter. 

10. These toxic algae blooms can kill wildlife, force closure of drinking water plants, and pose a serious public health 

threat to people who come into direct contact with water containing the toxic algae. 

11. Water quality conditions in Florida have worsened as fertilizer use on agricultural land and urban lawns has 

intensified and increasing amounts of human waste from sewage plants and septic tanks reaches lakes and streams. 

12. In fact, conditions have reached the point where "fertilizer pollution" from these sources has become a source of 

major environmental degradation in Florida. 

Comment ID 1920-1.001.008 

Author Name: Wise W. 

Organization: University of Florida on behalf of Earthjustice 

FLORIDA'S WATER BODIES ARE UNIQUELY SITUATED TO SUFFER FROM FERTILIZER POLLUTION 

22. Florida has 11,761 square miles of total water area, making it the third wettest state in the U.S. behind only Alaska 

and Michigan.[7] Florida depends on water resources in many ways-for example, to sustain its $7 billion fishing and $32 

billion tourism indutries.[8] 

23. Florida has more than 8,000 miles of coastline, which is more than any other state except Alaska. The state's west 

coast alone contains almost 22% of the Gulf coast estuarine acreage in the United States. Florida's estuaries are some 

of the nation's most diverse and productive and include embayments, low- and high-energy tidal salt marshes, lagoons 

or sounds behind barrier islands, mangrove swamps, coral reefs, oyster bars, and tidal segments of large river 

11/19/2010 02:48 PM EST 2-1660
 
Chapter 2 - Comment Documents Background 

mouths.[9] 

24. Florida also has 33 first magnitude springs (first magnitude springs discharge at least 100 cubic feet of water per 

second (cfs), or about 64.6 million gallons per day (mgd)) which is more first magnitude springs than any other state 

(there are only 78 in the entire United States). The total number of springs in Florida is over 700.[10] 

[7] http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf at page 5. 

[8] http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf at page 4. 

[9] http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf at p. 9. 

[10] http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf at page 5. 

Comment ID 1920-1.001.009 

Author Name: Wise W. 

Organization: University of Florida on behalf of Earthjustice 

25. Algae blooms, which are occurring statewide, are due, in most part, to high nutrient loads, slow moving waters, and 

hot, humid, and stagnant conditions,[11] all of which conditions are typically found in Florida but are not found in other 

states. 

[11] http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf at page 81. 

Comment ID 1920-1.001.010 

Author Name: Wise W. 

Organization: University of Florida on behalf of Earthjustice 

26. Florida's slow moving waters are a result of Florida's unique topography - flat with little to no relief.[12] For example, 

the St. Johns River, the state's longest river, falls about a tenth of a foot per mile from the headwaters to the mouth.[13] 

27. Florida's hot, humid, and often stagnant conditions are a result of Florida' unique subtropical and tropical climate; for 

6 months of the year temperatures can be above 90°F (32.2°C) and relative humidity can be 50% or higher.[14] 

[12] http://www.ngdc.noaa.gov/cgi-bin/mgg/topo/state2.pl?region=fl.jpg 

[13] http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf at page 11. 

[14] http://edis.ifas.ufl.edu/EH105 

Comment ID 1920-1.001.011 

Author Name: Wise W. 

11/19/2010 02:48 PM EST 2-1661
 
Chapter 2 - Comment Documents Background 

Organization: University of Florida on behalf of Earthjustice 

28. Florida's low relief, coupled with its geologic history, has created unique hydrogeologic features. Large areas of 

Florida are characterized by "karst" topography, which forms when groundwater dissolves limestone. Landforms in 

these areas include streams that disappear underground, springs and seeps where groundwater rises to the surface, 

sinkholes, and caves. Florida's dynamic karst topography is found in few other places around the world. 

29. When combined with Florida's sandy soils, high average rainfall, and shallow water table, this porous karst terrain 

promotes uniquely close and extensive interactions between groundwater and surface water. As explained by FDEP: 

The free exchange between groundwater and surface water in Florida cannot be overemphasized. As mentioned 

previously, spring-fed stream systems can depend almost entirely on groundwater discharge. Canals can also contain 

mostly groundwater. Other streams and lakes may receive over half of their total inflows via groundwater seepage, and 

natural estuaries rely on groundwater seepage as a significant source of fresh water. In areas where the Floridan 

aquifer system is near the surface, and in southern parts of the state where porous limestone exists near the surface, 

conduit systems in the limestone material efficiently deliver groundwater to streams and canals at high rates. In other 

areas of the state, groundwater discharge occurs as seepage from the surficial aquifer system. (FDEP, 2008 Integrated 

Report). 

Comment ID 1920-1.001.012 

Author Name: Wise W. 

Organization: University of Florida on behalf of Earthjustice 

30. In addition to supplying a steady source of fresh drinking water, Florida's karst features provide stable habitats for 

native species and offer unlimited opportunities for sports andrecreation. Florida's 14 state parks that are named for 

springs attract millions of visitors each year, and private spring attractions and parks are a multimillion-dollar tourism 

industry.[15] As one example, a report commissioned by FDEP's Springs Task Force determined that nonresident 

visitors to Wakulla Spring directly contribute over $22 million dollars a year to the local economy and generate an 

estimated $4.33 million in salaries and wages supporting 347 jobs.[16] 

31. Unfortunately, Florida's unique karst geology also provides a unique and direct pathway for above ground pollutants 

to pollute underground drinking water aquifers, springs, and other surface waters as exemplified by the Wakulla Springs 

case in which I served as an expert for Florida Attorney General Charlie Crist. 

[15] http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf at p. 10. 

[16] http://www.dep.state.fl.us/springs/reports/files/EconomicImpactStudy.doc 

Comment ID 1920-1.001.019 

Author Name: Wise W. 

11/19/2010 02:48 PM EST 2-1662
 
Chapter 2 - Comment Documents Background 

Organization: University of Florida on behalf of Earthjustice 

47. Another concern is the close connection between groundwater and surface water in Florida. Due to Florida's low 

relief, rainwater and irrigation water tends to infiltrate the soil and then flow laterally into streams. See Exhibit F. 

Original comment letter contains additional information in Exhibit F, the IFAS Report on Agriculture in Suwannee River 

Basin. See original comment letter. 

Sandy soils, which are found throughout Florida, are vulnerable to leaching of nutrients and agrichemicals because they 

tend to be sandy throughout, contain little organic matter, are highly conductive to water flow, and have no subsurface 

layer that can slow water drainage through the profile. As a result, application of fertilizer on lands in a watershed but 

outside the riparian zone have the potential of being a source of nutrient pollution without the source being visible either 

on an aerial photograph or on a ground-truthing visit. 

Comment ID 1920-1.001.026 

Author Name: Wise W. 

Organization: University of Florida on behalf of Earthjustice 

13. Florida's 2008 Integrated Water Quality Assessment reveals that approximately 1,000 miles of Florida rivers and 

streams, 350,000 acres of lakes, and 900 square miles of estuaries are impaired by nutrients. According to FDEP, the 

agency responsible for assessing Florida water bodies, the actual number of miles and acres of waters impaired for 

nutrients is likely higher, as many waters that have yet to be assessed may also be impaired. 

Comment ID 2233-1.001.046 

Author Name: Kovach C. 

Organization: CF Industries 

7. Florida Nutrient Trends Contradict EPA's Purported Justification 

Florida has experienced a precipitous decline in nutrient loading, and specifically total phosphorus, from a peak in the 

early 1980s. Intense hurricane activity in 2004 and 2005 may have contributed to a slight uptick (2 data points) in this 

otherwise decreasing trend in phosphorus loading as depicted in the Florida DEP 2008 Integrated Water Quality 

Assessment for Florida. 

Contrary to EPA's assumption, there has been no sudden spate of nutrient impaired waters across the State of Florida. 

Listings of waters as "impaired" for nutrients are influenced by two factors. First, because Florida now has a formalized 

procedure for identifying impaired waters, waters that were nutrient impaired that had not been listed have now been 

identified. The list of waters may have increased but not the actual number of waters needing attention. EPA cannot just 

now start counting red birds at the bird feeder and declare an invasion of red birds. 

11/19/2010 02:48 PM EST 2-1663
 
Chapter 2 - Comment Documents Background 

The second critical factor is that a significant number of the listings in Florida for nutrients are not for nutrients at all but 

low dissolved oxygen (DO) purportedly linked to nutrient enrichment. Appendix C. The Florida DEP has a long history of 

applying unadopted criteria as rules-of-thumb for "linking" low DO to nutrients notwithstanding that the thresholds have 

not been adopted by the DEP, approved by EPA as changes to Florida water quality standards or are truly reflective of 

the impacts of nutrients upon DO concentrations. 

In a recent round of listings, the Florida DEP was using its unadopted draft numeric nutrient criteria to "determine the 

causative pollutant" contributing to low DO in several WBIDs. When challenged on this practice, DEP staff noted that 

the proposed criteria although abandoned after EPA entered its August 2009 Consent Decree-were actually an 

improvement over its past practice of using the 70th percentile of TN and TP values from a 1989 document titled 

''Typical Water Quality Values for Florida's Lakes, Streams and Estuaries." The bottom line is this: the nutrient 

thresholds have no legal or technical basis and cannot be used to establish a presumed link between nutrients and low 

DO. This is true for many reasons not the least of which is that many Florida waters have naturally low DO that is often 

associated with high nutrient contributions from adjacent wetlands. Such waters are not impaired - just naturally high in 

nutrients and naturally low in dissolved oxygen. However, low DO waters with a presumed but unfounded and 

unconfirmed link to nutrient pollution dominate the nutrient listings on Florida's 303(d) lists.[31] 

The proposed TMDL for the North Prong of the Alafia River (WBID 1621E) in southwest Florida is an example of the 

unfounded nutrient/DO presumption. An initial version of the Florida's "delist list" proposed the delisting of WBID 1621E 

because chlorophyll a concentrations established that the North Prong of the Alafia was not impaired for nutrients. An 

initial draft verified list did include WBID 1621E as impaired for low dissolved oxygen with a note that nutrients were 

suspected to be the causative pollutant(s) resulting in the depressed DO values. As currently listed, WBID 1621E was 

verified as impaired for DO with total phosphorus (TP) indicated as the causative pollutant. The draft TMDL sets a TP 

target of 0.415 mg/l as the nutrient target for restoration of WBID 1621E. This target number was the concentration 

proposed by the Florida DEP as the numeric TP criterion for the Bone Valley region of Florida. The proposed criterion 

had not been approved by Florida's Environmental Regulation Commission (which must approve DEP standards), 

adopted as a rule by the Department, or approved as a change to Florida water quality standards by EPA under § 

303(c) of the Clean Water Act. Having not been approved by EPA, the proposed criterion cannot be: used for Clean 

Water Act purposes and cannot serve as the basis of a TMDL promulgated as required under § 303(d) of the CWA. 

More fundamentally, the proposed criterion was developed using the reference stream or benchmark approach and is 

not the result of any site specific analysis linking TP concentrations to DO concentrations in the North Prong of the 

Alafia. The reference: approach is facially invalid as a means of deriving numeric nutrient criteria; it is even less suitable 

for establishing a TMDL. And yet it, along with many other similar surface: waters, stands recently listed as impaired for 

DO linked to nutrients (i.e., impaired for nutrients). 

The proposed TMDL did not establish any causal relationship between DO and TP. Regression analysis looking at TP 

and DO resulted in an R2 of 0.0969; looking at TP where DO concentrations were below 5.0 mg/l resulted in an R2 of 

less that 0.3-still insufficient to establish a significant relationship. 

DEP published notice of the proposed TMDL before the deadline to contest the listing of WBID 1621E had passed. 

However, based upon a commitment by CF and other stakeholders to work cooperative to properly assess water quality 

issues in the North Prong of the Alafia, the Florida DEP agreed not to adopt the proposed TMDL by rule. 

11/19/2010 02:48 PM EST 2-1664
 
Chapter 2 - Comment Documents Background 

To the extent EPA has attempted to justify the federal agency stepping over State regulators to imposed numeric 

nutrient criteria-immediately after approving the State's plan-an "increase" in waters listed as impaired for nutrients may 

not be relied upon to support the January 14,2009, necessity determination. Appendix C. 

[31] The Florida OEP recognizes that its default dissolved oxygen criterion is not appropriate for many natural systems 

in Florida and has performed a statewide survey in anticipation of adjusting its DO criterion. 

Comment ID 2233-1.001.061 

Author Name: Kovach C. 

Organization: CF Industries 

Background 

Setting 

Because of Florida's unique geology, climate and location, highly diverse physiographic units characterize the state. 

Florida is part of the southeastern coastal plain and the highest elevation is 345 feet above sea level with a mean 

elevation of 100 ft MSL. Most of the state is covered by infertile sand or loam that lies on a thick, soluble limestone 

layer. Because of the peninsular shape and low elevation of Florida, the riverine systems are generally short, wide and 

swampy in nature. The state is characterized by a subtropical to tropical climate with mild winters and hot, humid 

summers (Florida State University, 2010). 

The South Florida ecosystems have temperate and tropical characteristics and fall within five physiographic regions: 

Everglades, Atlantic Coastal Ridge, Eastern Flatlands, Western Flatlands and Big Cypress Swamp. These provinces 

are characterized by diverse ecosystems including freshwater and terrestrial components such as canals and lakes, 

ponds and sloughs, sawgrass marsh, wet prairies, pine forests, cypress forests, mixed swamp forests, bay heads, 

hardwood hammocks and palmetto and dry prairies. Coastal ecosystems include sandy beaches, mangroves and salt 

marshes, estuaries and bays, and the Florida reef tract (McPherson et aI., 1976). 

The Apalachicola National Estuarine Research Reserve (ANERR) and St. Joseph Bay State Buffer Preserve (SJBSBP) 

are found in the Apalachicola-Chattahoochee-Flint watershed and are located in the gulf coastal lowlands physiographic 

province. The ANERR includes upland, floodplain, riverine, estuarine and barrier island ecosystems. Within the reserve, 

Apalachicola Bay provides an important nursery area for species of the Gulf of Mexico (FDEP, 2010a). Habitats within 

the SJBSBP are comprised of wet pine flatwoods (mesic and xeric), swamp, freshwater marsh and a tidal creek which 

support threatened and endangered species (FDEP, 2010f). 

The Manatee River Watershed in west-central Florida drains approximately 360 square miles within the Polk Upland, 

DeSoto Plain and Gulf Central Lowlands physiographic provinces (The Southwest Florida Water Management District, 

2001; White, 1970). The "Bone Valley" area within the Polk Uplands is characterized by phosphate and other rare earth 

elements although mining generally occurs outside the watershed (The Southwest Florida Water Management District, 

2001). 

11/19/2010 02:48 PM EST 2-1665
 
Chapter 2 - Comment Documents Background 

Phosphate deposits cover much of the Florida peninsula (Florida Institute of Phosphate Research, 2010). The Bone 

Valley and Hawthorn Formations are Florida's two major phosphate deposits. Dolomite, clay, silica phosphate, 

aluminum phosphate and heavy metals are found in these deposits (EI-Shall and Bogan, 1994). The primary Bone 

Valley mining area is located in Polk County, but mining deposits are also found in DeSoto, Manatee, Hardee and 

Hillsborough counties. Phosphate deposits from the Hawthorn Formation are also mined in Hamilton, Columbia and 

Suwannee Counties located in north Florida (Florida Institute of Phosphate Research, 2010). 

Florida's biological communities have adapted to this unique and extremely diverse physiographic setting, resulting in 

some unique environments, particularly those adapted to high natural background nutrient conditions, high nitrogen 

sources in wetlands areas, and high phosphorus in those areas where the geological conditions have deposited large 

stores of phosphate rich minerals. 

Response 

Comment IDs: 0786.001.006, 0963.001.003, 1041.001.005, 1113.001.005, 1152.001.002, 1173.001.005, 1178.001.003, 

1191.001.003, 1198.001.004, 1286.001.002, 1286.001.007, 1319.001.003, 1833-1.001.003, 1920-1.001.002, 1920-1.001.004, 1920­

1.001.008, 1920-1.001.009, 1920-1.001.010, 1920-1.001.011, 1920-1.001.012, 1920-1.001.019, 1920-1.001.026 

Response: Commenters provided a variety of supporting statements on the types and degree of impairments in Florida waters. 

These statements are consistent with EPA’s estimates and assertions on levels of impairments. Commenters also provided examples 

of nutrient impacts to waters in Florida that are also consistent with EPA’s findings. Several commenters noted the unique 

characteristics of Florida surface and groundwaters, including the interconnection of surface and groundwater throughout many 

areas in Florida. EPA’s findings were similar. Other commenters noted the uniqueness of climate, geology, geography, and habitats 

in Florida. EPA agrees with these assessments about the unique features in Florida and the need for nutrient criteria development to 

be protective. Several commenters provided supporting statements about the cost of not controlling nutrient criteria and the need for 

numeric criteria as a tool. EPA agrees that the long-term effects of not controlling nutrients could lead to costly measures that will 

be required in the future. 

Comment ID: 1344.001.004 

Response: EPA agrees that criteria must be based on sound scientific rationale. EPA has based these criteria on methodologies that 

have been reviewed by technical experts at Florida Department of Environmental Protection and several publicly available guidance 

documents (i.e., U.S. EPA, 2000. Nutrient Criteria Technical Guidance Manuel: Lakes and Reservoirs, EPA-822-B-00-001 and 

U.S. EPA, 2000. Nutrient Criteria Technical Guidance Manual: Rivers and Streams, EPA-822-B-00-002). Also see the Technical 

Support Document in the record for more details on the scientific basis for the various aspects of the criteria. 

Comment ID: 0589.001.005 

Response: EPA disagrees that numeric nutrient criteria are arbitrary, that data used are not representative, and that a cause and 

11/19/2010 02:48 PM EST 2-1666
 
Chapter 2 - Comment Documents Background 

effect relationship has not been established. EPA has used a rational, sound-scientific approach based on peer-reviewed and 

published technical guidance (i.e., U.S. EPA, 2000. Nutrient Criteria Technical Guidance Manuel: Lakes and Reservoirs, EPA-822­

B-00-001 and U.S. EPA, 2000. Nutrient Criteria Technical Guidance Manual: Rivers and Streams, EPA-822-B-00-002). The 

Technical Support Document contains detailed descriptions of the data and analyses used to derive the criteria. EPA also directs 

commenters to the preamble, section II.A.2, for additional supportive information documenting cause and effect relationships 

associated with nitrogen and phosphorus pollution. With respect to the assertion that grab samples are not a valid data set to use for 

criteria development, EPA notes that numerous grab samples taken over large spectral gradients replicate effects observed at a 

single site over time do provide representative data for the purpose of deriving numeric nutrient criteria that are protective of 

designated uses. 

Comment ID: 0590.001.003 

Response: EPA notes that Water Quality Standards are typically adopted and implemented at the state level. EPA refers the 

commenter to section II of the preamble for additional information on the scientific and legal basis for the need to establish numeric 

nutrient criteria in Florida. EPA also notes, and refers the commenter to the preamble and Technical Support Document, that the 

unique ecosystems of Florida have been considered in deriving the numeric criteria. See also response to comments 1416­

1.001.010, 1416-1.001.012, 2233-1.001.041 and 2233-1.001.047 in section II.D.1. 

Comment IDs: 0590.001.005, 1885.001.018 

Response: EPA disagrees that the legal impairment of waters in Florida is questionable. The data from which FDEP assesses 

Florida waters and determines impairments undergo a rigorous review process by FDEP (and EPA when reviewing FDEP's list). 

FDEP data used for making impairment decisions are required under Chapter 62-160 F.A.C. to meet the Standardized Quality 

Assurance Rules. EPA refers the commenter to FDEP’s 2010 Integrated Water Quality Assessment for Florida for additional 

information on FDEP’s assessment program and how FDEP monitors for DO. 

EPA also clarifies that numeric nutrient criteria will support the assessment of Florida’s waters to determine impairments through 

the establishment of clear measurement endpoints from which to judge impairments. EPA is not insinuating that the current listings 

of impairment are inaccurate; rather EPA believes numeric criteria will make assessment easier for FDEP so that additional waters 

can be assessed. 

Comment IDs: 0716.001.012, 0744.001.003, 0825.001.004, 1640.001.003 

Response: TMDLs are important in addressing water quality issues that result after the waterbody has been listed as impaired and 

requiring a TMDL. Water quality standards, with the appropriate criteria, are the goals for waterbodies throughout the state to 

protect their designated uses and help prevent problems before they occur. 

EPA’s analysis of data provided by FDEP in its 2008 and 2010 Integrated Water Quality Assessments for Florida show increasing 

11/19/2010 02:48 PM EST 2-1667
 
Chapter 2 - Comment Documents Background 

trends in numbers and extent of impairments for lakes and streams, as well as increasing trends in TN and TP levels in waters across 

the State. Commenters are referred to the preamble section II.A.3 for more in-depth information on the extent of nutrient pollution 

in Florida. Additionally, EPA notes that for streams, less than one-half of all streams in Florida are assessed. 

Comment IDs: 0567.001.007, 0846.001.002, 2233-1.001.061 

Response: EPA disagrees that the criteria do not represent the unique character of Florida. EPA directs the commenters to sections 

II and III of the preamble and the Technical Support Document Chapters 1-3 for specific details. 

Comment IDs: 1416-1.001.013, 1416-1.001.031 

Response: Please see the response to comments 1416-1.001.010, 1416-1.001.012, 2233-1.001.042 and 2233-1.001.047 in section 

II.D.1 for EPA’s response to the assertion that the determination’s basis was flawed. 

EPA also notes that its analysis using STORET data of the rising trend in TN and TP levels in Florida’s waters shows an increase in 

state-wide average TN levels of 1.06 mg/L in 1996 to 1.27 mg/L in 2008. Similarly, TP levels increased from an average of 0.108 

mg/L in 1996 to 0.151 mg/L in 2008. 

Comment ID: 1641-1.001.007 

Response: EPA disagrees that its use of IWR and 2008 Integrated Water Quality Assessment for Florida data is a misuse of the 

data. Please see the response to comments 1416-1.001.010, 1416-1.001.012, 2233-1.001.042 and 2233-1.001.047 in section II.D.1 

for additional information regarding your comment. 

Comment ID: 1671-3.001.050 

Response: EPA disagrees. Sites currently considered impaired for DO were correctly excluded. EPA must consider existing, EPA 

approved formal State DO listings of impairment as a screening criterion within the process of identifying reference sites that are 

considered least impacted. DO impairment is indicative of the effects of nutrient pollution and eutrophication. At the present time, it 

has not been shown definitively that the DO impairment is a natural phenomenon, and so EPA must err on the side of caution by 

excluding sites with listed DO impairments from the subset of sites that could be considered least-disturbed reference conditions. 

Comment ID: 1834-2.001.003 

Response: In its determination letter (dated January 14, 2009), EPA laid out its arguments for why numeric criteria are needed 

despite progress that Florida has made. 

11/19/2010 02:48 PM EST 2-1668
 
Chapter 2 - Comment Documents Background 

EPA agrees with FDACS that agricultural development is not expanding and BMPs, including nutrient management programs, are 

in place on many farms. EPA also recognizes that these BMPs have been shown to be effective at reducing nutrient impacts. See the 

cost analysis for additional technical information that EPA used in its analyses. 

Comment ID: 1834-2.001.005 

Response: EPA agrees with the FDACS point about the possible percentage of impaired waters in the unassessed waters of the 

State. However, EPA’s point is that there are large numbers of unassessed water in Florida, some of which may also be impaired. 

Comment ID: 2233-1.001.046 

Response: EPA further investigated state-wide trends in TN and TP and found that data from STORET show state-wide average TN 

levels of 1.06 mg/L in 1996 increased to 1.27 mg/L in 2008; state-wide average TP levels of 0.108 mg/L in 1996 increased to 0.151 

mg/L in 2008. This does not represent a sudden spate of nutrient-impaired waters, but a gradual increase in the average levels of 

nutrients in Florida waters over a 12-year period. 

EPA agrees with the commenter that FDEP’s process for identifying nutrient-impaired waters is much more formalized now than it 

was in the past (as documented in the 2008 and 2010 Integrated Water Quality Assessments for Florida). However, EPA considers 

the impairment of 1,049 miles of streams (5% of assessed streams) in 2008 increasing to 1,918 in 2010 (8% of assessed streams) 

and 349,248 acres of lakes (23% of assessed lakes) in 2008 increasing to 378,435 acres (26% of assessed lakes) in 2010 to represent 

an increasing trend in the percentage of impaired waters due to nutrients in Florida. EPA agrees that changes in assessment methods 

and the numbers of waters assessed increasing may impact the number/extent of reported nutrient impairments. 

EPA disagrees that past listings for nutrient impairments by FDEP were somehow flawed and invalid. Approaches such as 

reference-based methodologies using benchmark waters have been peer reviewed and validated as scientifically sound (see U.S. 

EPA, 2000. Nutrient Criteria Technical Guidance Manuel: Lakes and Reservoirs, EPA-822-B-00-001 and U.S. EPA, 2000. Nutrient 

Criteria Technical Guidance Manual: Rivers and Streams, EPA-822-B-00-002). 

Finally, EPA agrees with the commenter that numeric nutrient criteria will make the assessment and listing more efficient in the 

future. Numeric criteria will allow FDEP to move from procedures that rely on interpretation of narrative standards to comparisons 

with scientifically sound numeric criteria values. 

II.B - STATUTORY/REGULATORY BACKGROUND 

Comment ID 0670.001.004 

Author Name: Cole T. 

Organization: Florida Pulp and Paper Association 

11/19/2010 02:48 PM EST 2-1669
 
Chapter 2 - Comment Documents Background 

And like another speaker earlier, I wanted to make just a couple of points that are hopefully nonrepetitive -- I've been 

here for most of the day, not all of it -- that were made before. And this deals with some questions of state law that need 

to be considered as you do this. Part of the assumption, and as I was reading the proposal that you put out, is the 

assumption that if and when you adopt these numbers that then DEP will be implementing them, presumably through 

the delegated permitting programs. One of the things you need to consider is like you have a Federal APA that binds 

you, Congress has told you certain procedural steps you need to go through and certain procedural rights that people 

have, you have to follow that. DEP has a similar type of process here. And that APA, the legislature has told them that 

policy will be implemented only by rule. And so if we're going to write a permit based on your nutrient criterion, then they 

have to do that by rule. And that means that they have to adopt here at the state level the rule that you did in that case. 

And unlike the way the federal process and the federal APA where there's a presumption of correctness when EPA 

adopts that and it will be overturned only if it's arbitrary or capricious. If a Florida rule is challenged, the State agency 

has the burden of demonstrating the scientific and technical validity of that rule. And that's a considerable difference on 

something like this as complex as this rule is. And I'd just like to suggest that I think it's going to be very difficult for them 

to be able to adopt this rule. And if so, some of the thoughts you need to be given are: Who is going to be doing the 

NPDES permitting? Do you end up having to -- if they can't use your numbers when they write a permit and if you 

disagree, then you obviously have the ability to disagree and to veto that permit, pull it back, and write it. And unlike 

dioxin, where that's a situation in Florida right now but there's a handful of facilities that are directly affected by that, for 

nutrients that are so ubiquitous and there are so many potential, that it looks like that this down the road threatens the 

viability of the delegation to Florida, if it goes as it's looking at right now. 

Comment ID 0670.001.006 

Author Name: Cole T. 

Organization: Florida Pulp and Paper Association 

So overall, and I had some comments on restoration standards in which I'll cover in the written comments of why that's 

a good idea, but as it now stands under Florida law, it won't work either unless the Florida law has changed. So 

anyway, we appreciate your patience, and good luck the rest of the afternoon. I hope y'all get a restful evening. 

Comment ID 0708.001.008 

Author Name: Guest D. 

Organization: Earthjustice 

We're never going to get to pristine standards. And not that I think it's an admirable goal, but that's not what this does. 

We're not getting back to pristine. We're getting down to acceptable pollution levels and that's really what the 

compromise in the Clean Water Act is. It's not pristine. It's minimizing damages. I'm not frankly real happy with that, but 

that's the law and we have to abide by that. It's minimalization of damages. 

Comment ID 1009.001.003 

11/19/2010 02:48 PM EST 2-1670
 
Chapter 2 - Comment Documents Background 

Author Name: * * 

Organization: Clay County Board of County Commissioners 

Clay County includes direct domestic discharges, backup reclaimed water dischargers, and stormwater discharges 

under the MS4 permit. Stormwater discharges from a pipe or confined ditch within a permitted MS4 are considered 

point sources according to the Clean Water Act. While MS4 discharges can be episodic, a measure of the average 

concentration of a pollutant during a storm event is called an event mean concentration (EMC). In the development of 

statewide stormwater treatment regulations, FDEP is using "Evaluation of Current Stormwater Design Criteria within the 

State of Florida" (Harper, H .H. and D. M . Baker, Environmental Research & Design, Inc., June 2007) . Table 4-17 from 

this report identifies the literature-based runoff characterization for undeveloped/ rangeland/forest lands (natural lands): 

TN is 1.15 mg/I and TP is 0.055 mg/I . From the proposed NNC for the Clay County streams, lakes, and springs, natural 

lands would not be allowed to discharge into clear lakes because of TN and TP and not allowed in colored lakes for TN 

. Table 4-17 also shows that no other land use identified (urban or agricultural) would be allowed to discharge directly 

either since the EMCs exceed the criteria proposed. 

As a result of these findings, no surface water discharge (point source or MS4) will be allowed into nutrient impaired 

waters without extremely high levels of treatment with long-term maintenance, energy consumption and carbon 

emission costs and consequences. Therefore, to support a policy with very financially onerous consequences, the 

environmental benefit has to be extreme and the science behind it sufficiently robust. 

Many of the comments below consider the scientific support of the proposed NNC and highlight the demand for strong 

scientific justification in light of potentially high fiscal consequence. In general, even though EPA used many of the 

scientific methods considered by the FDEP, EPA added a number of methodologies that do not stand up to the balance 

of scientific support and fiscal consequence. 

Comment ID 1010.001.007 

Author Name: Nelson B. 

Organization: City of Bonita Springs 

Specific Concerns to Proposed Rules 

1. National Pollutant Discharge Eliminations System (NPDES) MS-4 Permit

 The City of Bonita Springs is concerned how revised levels of nutrient and phosphorus affect the City of Bonita 

Springs's own NPDES MS-4 Permit. The City of Bonita Springs is concerned that the cost for monitoring and 

enforcement may increase as the permit requires greater achievement. Since the rule dismisses this economic 

consideration, it is unknown what are the impacts or fiscal consequences that will occur as the City proceeds forwards 

with its monitoring and enforcement responsibilities.

 While it is difficult to speculate on the national economy, the NPDES MS-4 permit, which Lee County is required to be 

an applicant and the municipalities and special districts are required to be co-applicants, agree to address Clean Water 

Act issues through an Interlocal Agreement. A major concern is how to address the conflicts between the shared 

11/19/2010 02:48 PM EST 2-1671
 
Chapter 2 - Comment Documents Background 

boundaries. The concern is if there is failure of a community to keep financially solvent, how will it affect the boundaries, 

and where the proposed rule affects non-point discharges, this becomes even more problematic. 

Comment ID 1065.001.004 

Author Name: Meyers Ms. 

Organization: 

I do have one question. With your water quality standards, are there -- are there parts that deal with nutrient -- not 

nutrient contamination only, but chemical contamination, looking at the excessive use of insecticides and pesticides on 

properties in Florida as well, which is going into our waterways, too. Is there anything that's being put forward, or is it 

presently in existence? 

Comment ID 1098-3.001.006 

Author Name: Vance A. 

Organization: City of Bonita Springs 

Specific Concerns to Proposed Rules 

1. National Pollutant Discharge Eliminations System (NPDES) MS-4 Permit 

The City of Bonita Springs is concerned how revised levels of nutrient and phosphorus affect the City of Bonita 

Springs's own NPDES MS-4 Permit. The City of Bonita Springs is concerned that the cost for monitoring and 

enforcement may increase as the permit requires greater achievement. Since the rule dismisses this economic 

consideration, it is unknown what are the impacts or fiscal consequences that will occur as the City proceeds forwards 

with its monitoring and enforcement responsibilities. 

While it is difficult to speculate on the national economy, the NPDES MS-4 permit, which Lee County is required to be 

an applicant and the municipalities and special districts are required to be co-applicants, agree to address Clean Water 

Act issues through an Interlocal Agreement. A major concern is how to address the conflicts between the shared 

boundaries. The concern is if there is failure of a community to keep financially solvent, how will it affect the boundaries, 

and where the proposed rule affects non-point discharges, this becomes even more problematic. 

Comment ID 1224.001.010 

Author Name: Levy K. 

Organization: Pinellas County Department of Environmental Management, Watershed Management Division 

Lastly, I would -- I would also like you to consider evaluating processes that are roadblocks to water quality restoration 

11/19/2010 02:48 PM EST 2-1672
 
Chapter 2 - Comment Documents Background 

with regard to permitting. 

Comment ID 1331-1.001.002 

Author Name: Aldstadt S. 

Organization: City of Pensacola Public Works 

In particular, EPA proposes numeric nutrient water quality standards for Florida's lakes and flowing waters and 

regulations to establish a framework for Florida to develop "restoration standards" for impaired waters. San Bernardino 

understands that EPA proposes the standards pursuant to its determination that they are necessary for Florida to meet 

the requirements of Clean Water Act (CWA) section 303(c). (33 U.S.C. § 1313(c).) This section requires the periodic 

review of state water quality standards and modification of those standards or the adoption of new ones as appropriate 

under the CWA. (33 U.S.C. § 1313(c).) EPA may propose and adopt revised or new water quality standards on behalf 

of a state if EPA determines that such action is necessary to comply with the CWA. (33 U.S.C. § 1313(c)(4)(B).) 

Comment ID 1333.001.003 

Author Name: Hauck A. 

Organization: Council of Civic Associations 

The Miccosukee Tribe of Indians has attempted to obtain clean water for the Everglades, which is its traditional 

homeland. Their water quality standards include a 10 parts per billion numeric criterion for phosphorus, which was 

approved by the EPA in 1999 as protective of the Everglades and scientifically defensible. Unfortunately, the Tribe has 

had to file numerous administrative actions and permit challenges in federal court to force the State of Florida, the 

South Florida Water Management District, the Florida Department of Environmental Protection, and the EPA to protect 

their interests through compliance with the Clean Water Act. The EPA has sided with the state on these challenges, 

even on appeal. In each of these cases the judge has ruled in favor of the Tribe. Some of the quotes of Judge Alan 

Gold are: "The Florida legislature violated its fundamental commitment and promise to protect the Everglades. Turning 

a blind eye, the U.S. Environmental Protection Agency concluded that there was no change in water quality standards. 

Any further delay through endless, undirected rounds of remands to EPA to do its duty, which it steadfastly has refused 

to do, is alone insufficient, and that it is imperative that this Court exercise its equitable power to avoid environmental 

injury to the Everglades through blanket exemptions. 

Comment ID 1350-1.001.004 

Author Name: Schwartz J. 

Organization: American Forest & Paper Association 

II. The Proposed Criteria Are Not Scientifically Defensible and Do Not Comply with the Clean Water Act, Implementing 

Regulations, or Applicable Guidance 

11/19/2010 02:48 PM EST 2-1673
 
Chapter 2 - Comment Documents Background 

As discussed in more detail in the FWQC Coalition comments, EPA's determination under section 303(c)(4)(B) 

triggered its obligation to promulgate criteria for the State; EPA therefore is subject to the requirements of section 

303(c) of the CWA and its implementing regulations at 40 C.F.R. part 131. Specifically, state water quality criteria must 

be "necessary to protect the [designated] uses." 40 C.F.R. 131.2. Criteria also must be based on "sound scientific 

rationale." 40 C.F.R. 131.11(a). Numeric criteria should be based on EPA's section 304(a) guidance, section 304(a) 

guidance modified to reflect site-specific conditions, or "other scientifically defensible methods." 40 C.F.R. 131.11(b). 

EPA's proposed criteria do not meet these regulatory requirements. 

Comment ID 1415-1.001.002 

Author Name: Diffenderfer M. 

Organization: Lewis Longman & Walker, P.A. on behalf of Seminole Tribe of Florida 

The United States Government has a unique legal relationship with Indian tribal governments as set forth in the 

Constitution of the United States, treaties, statutes, Executive Orders, and court decisions whereby the federal 

government recognizes Indian tribes as domestic dependent nations under its protection. We are encouraged by 

Administrator Lisa P. Jackson's commitment to strengthen this trust relationship with Indian tribal governments, 

including the Seminole Tribe. The creation of EPA's new Office of International and Tribal Affairs is a positive step 

forward in recognizing and treating Indian tribal governments as sovereign nations. As Administrator Jackson stated, 

"[t]his change ensures that we [EPA] approach our relationship with sovereign tribal nations within our own country in 

the same way we approach our relationship with sovereign nations beyond U.S. borders." 

At the core of EPA's trust responsibility to the Seminole Tribe and to treating the Seminole Tribe as a sovereign nation 

is the Seminole Tribe's self determination and ability to protect the natural resources within its nation's boundaries. This 

puts the federal government in a fiduciary role to ensure the best interests and self determination of Indian tribes are 

protected and augmented. (See Executive Order 13175, November 6, 2000; adopted by President Obama by White 

House Memorandum dated November 5, 2009). When a federal agency undertakes formulation and implementation of 

policies that have tribal implications, the agency shall: (a) encourage Indian tribes to develop their own policies to 

achieve program objectives and (b) defer to the Indian tribes to establish standards. (See Id.) 

EPA has formally recognized their trust responsibilities to Indian Tribes, including the Seminole Tribe by developing an 

EPA Policy for the Administration of Environmental Programs on Indian Reservations (November 8, 1984; reaffirmed by 

EPA July 22, 2009). This policy promotes Tribal self government and government to government relations by 

specifically providing that EPA will recognize "tribal governments as the primary parties for setting standards, making 

environmental policy decisions and managing programs for reservations, consistent with agency standards and 

regulations." See EPA Policy, page 2. 

Consistent with EPA's trust responsibility with the Seminole Tribe, both the Seminole Tribe and EPA have developed a 

numeric nutrient criteria development plan whereby the Seminole Tribe will develop numeric nutrient criteria by 2014. 

The Seminole Tribe is concerned that EPA's efforts to establish numeric nutrient criteria for the State of Florida's 

surface waters may interfere with the Seminole Tribe's establishment of numeric criteria for its reservations for the 

11/19/2010 02:48 PM EST 2-1674
 
Chapter 2 - Comment Documents Background 

following reasons: 

EPA is on schedule to develop numeric nutrient criteria for State flowing waters and streams by October of 2010; four 

years in advance of the Seminole Tribe's development of standards. We are concerned that in developing these State 

standards EPA will essentially preordain methodologies that will inevitably apply to the Seminole Tribe when it begins to 

formulate numeric criteria. Having the methodologies used to derive numeric nutrient criteria set before the Seminole 

Tribe has begun developing numeric criteria severely limits the Seminole Tribe's flexibility in developing those standards 

and is inconsistent with EPA's policy that Indian tribes are the primary parties for setting standards. Simply stated, the 

Seminole Tribe is concerned that while it may be left with the sovereignty to establish standards, its right to 

independently develop the methodologies for said standards could be impacted because EPA will have done so in 

advance. 

Comment ID 1415-1.001.006 

Author Name: Diffenderfer M. 

Organization: Lewis Longman & Walker, P.A. on behalf of Seminole Tribe of Florida 

The proposed rule should consider the water supply and water quality obligations the Federal and State governments 

have to the Seminole Tribe under the Water Rights Compact of1987 and associated agreements. 

Comment ID 1474-1.001.117 

Author Name: Herz W. 

Organization: The Fertilizer Institute 

On its face, EPA believes that a WQBEL allowing discharges into a waterbody already exceeding such criteria would 

not ensure that the water quality achieved by point sources was either "derived from" or "complies with" applicable 

water quality standards. EPA also believes that such a permitting approach would be fundamentally at odds with the 

water quality-based permitting requirement contained in section 301(b)(1)(C) of the CWA, since such an approach 

would allow point sources to contribute to the excursion above water quality standards in the waterbody. 

See EPA, Water Quality Guidance for the Great Lakes System -- Supplementary Information Document (1995), at 556. 

When a TMDL is developed, water quality standards continue to have regulatory effect. "Such standards serve the dual 

purposes of establishing the water quality goals for a specific water body and serving as the regulatory basis for the 

establishment of water quality-based treatment controls and strategies beyond the technology-based level of treatment 

required by sections 301(b) and 306 of the Act." 40 C.F.R. 130.3 (emphasis added). 

Thus, federal water quality standards are not comparable to the National Ambient Air Quality Standards (NAAQS) 

considered by the court in American Trucking Ass'n, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999) (rejecting a claim that 

11/19/2010 02:48 PM EST 2-1675
 
Chapter 2 - Comment Documents Background 

the Regulatory Flexibility Act applied to a NAAQS rulemaking) (subsequent history omitted). In the case of NAAQS, a 

state has the discretion to determine what sources will be controlled. The fact that EPA's proposal would allow Florida 

to develop site-specific alternative criteria does not change this analysis. Those criteria would still be federal standards 

imposed by this rulemaking on large and small entities in the State of Florida. 

Comment ID 1482-1.001.048 

Author Name: Hecker J. 

Organization: Conservancy of Southwest Florida 

E. Imperative Need for Numeric Nutrient Criteria for Wetlands 

Section 303(c) of the Clean Water Act directs states to adopt water quality standards for waters that are "waters of the 

United States," including wetlands that are waters of the United States. A water quality standard consists of three main 

elements: (1) one or more designated uses of each of the State's waters, such as recreation or propagation of fish; (2) 

criteria expressed as pollutant concentration levels or narrative statements representing a quality of water that supports 

a designated use; and, (3) an anti-degradation policy to protect existing uses and high quality waters. 

Comment ID 1563-1.001.001 

Author Name: Ward G. 

Organization: Coastal-Environmental 

These comments are intended to address Executive Order compliance issues with referenced Proposed Rules. 

Numerous other commenters are addressing the technical deficiencies and our Florida Engineering Society today 

rendered a wide ranging six page document addressing many of the issues that you have not concluded adequately so 

as to be in a position to adopt your proposals. My testimony as the first public speaker in the afternoon of your Public 

Hearings in Tallahassee were intended to set the stage that Florida clearly "leads the nation" in progress towards the 

objectives of Federal Law addressing water resources. Given that we are a country of laws, it is incumbent upon the US 

Environmental Protection Agency to look at the various President's Executive Orders and evaluate each and every 

section to assure that your proposals are fully in accord with the intent of the Executive Branch of our government. Your 

treatment of Statutory and Executive Orders in less than two pages of Federal Register is nothing short of amazing! 

In general rules must: 

A. Not impose a "significant" economic impact. Without question the analysis is not competent. 

B. Supported by proper Environmental Justification! Clearly 33 USC 1315(B)(D) requires environmental impact 

including economic and social evaluations. 

C. Not Require excessive Information Collection! In order to apply the Proposed Rule standards, no end of information 

collection is required. 

D. Not violate the Rights of States. Several violations of 33 USC exist with the Proposed Rule including 1251(b) & (g) 

11/19/2010 02:48 PM EST 2-1676
 
Chapter 2 - Comment Documents Background 

and 1311 & 1312 which require "with the concurrence of the State"! 

E. Not violate Rights of Indian Tribes. Our Tribes have multi-properties directly impacted by waters with nutrient issues 

that are wide ranging 

F. Not raise the demand for energy. Treatment, particularly point sources of pollutants requires substantial energy. 

G. Lastly, all rules should "make sense"!!!! 

Comment ID 1695-1.001.002 

Author Name: Wiley N. 

Organization: Florida Fish and Wildlife Conservation Commission 

The U.S. Environmental Protection Agency (EPA) is proposing numeric nutrient water quality criteria to protect aquatic 

life in lakes and flowing water, including canals, within the State of Florida and is proposing regulations to establish a 

framework for Florida to develop "restoration standards" for impaired waters_ This proposed rule fulfills EPA's obligation 

under section 303(c)(4) of the Clean Water Act (CWA) to promptly propose criteria for Florida's lakes and flowing 

waters. 

Comment ID 1715-1.001.002 

Author Name: Wilson C. 

Organization: Gunster, Yoakley & Stewart, P.A. on behalf of Everglades Agricultural Area Environmental Protection District 

The EPD has a particular interest in the Nutrient Rule because it will directly impact the Everglades Agricultural Area 

(EAA) in which a majority of the EPD's land and farming operations are located. In addition, the members of the EPD 

hold various regulatory approvals and permits which may be affected by the adoption of this rule. � 

We respectfully believe that the United States Environmental Protection Agency's (USEPA) haste to complete the 

Nutrient Rule has resulted in a rule that is contrary to federal law because it violates the Federal Administrative 

Procedures Act and the Clean Water Act (CWA). Specifically, the EPA's haste to complete the south Florida Canal 

portion of the Nutrient Rule has resulted in criteria for these canals which are both scientifically and legally flawed. 

Comment ID 1715-3.001.001 

Author Name: Wilson C. 

Organization: Gunster, Yoakley & Stewart, P.A. on behalf of Everglades Agricultural Area Environmental Protection District 

The United States Environmental Protection Agency (USEPA) has proposed numeric nutrient criteria (NNC) for surface 

waters of the state of Florida and presented these proposed criteria in the rule entitled, "Water Quality Standards for the 

State of Florida's Lakes and Flowing Waters" (40 CFR Part 131) dated January 26, 2010 Nutrient Rule or NNC). The 

purpose of the NNC rule is to ensure that surface waters of the State provide viable populations of fish and wildlife and 

11/19/2010 02:48 PM EST 2-1677
 
Chapter 2 - Comment Documents Background 

associated habitat commensurate with their designated uses. 

The Clean Water Act provides EPA and the States with the authority to set water quality standards. The Act requires 

states to develop standards that "protect the public health or welfare, enhance the quality of water and serve the 

purposes of the Clean Water Act." Section 303(c) (33 USC 1313 (c)). Section 303(c)(2)(A) and EPA's implementing 

regulations at 40 CFR part 131 require, among other provisions, that state water quality standards include the 

designated use or uses to be made of the waters and criteria that protect those uses. EPA regulations at 40 CFR 

131.11(a)(1) provide that states shall "adopt those water quality criteria that protect designated use" and that such 

criteria "must be based on sound scientific rationale and must contain sufficient parameters or constituents to protect 

the designated use." 

Generally, the states are empowered to develop water quality criteria for their state and EPA is required to review and 

approve those standards. EPA may develop standards if its finds that a state developed standards is not consistent with 

the Act or if EPA determines a revised or new standard is necessary to meet the requirements of the Act. 33 USC 1313 

(c)(4). As such, EPA is also bound to develop water quality standards that protect the designated use and use sound 

science in doing so. 

Comment ID 1715-3.001.005 

Author Name: Wilson C. 

Organization: Gunster, Yoakley & Stewart, P.A. on behalf of Everglades Agricultural Area Environmental Protection District 

Lack of Adequate Scientific Peer Review of Proposed Criteria. 

Scientific peer review of USEPA proposed criteria and supporting documents is a cornerstone of the science policy of 

the current administration in Washington. The Clean Water Act provides USEPA and the States with the authority to set 

water quality standards. The Act requires states to develop standards that "protect the public health or welfare, enhance 

the quality of water and serve the purposes of the Clean Water Act." Section 303(c) (33 USC 1313 (c)). Section 

303(c)(2)(A) and USEPA's implementing regulations at 40 CFR part 131 require, among other provisions, that state 

water quality standards include the designated use or uses to be made of the waters and criteria that protect those 

uses. 

USEPA regulations at 40 CFR 131.11(a)(1) provide that states shall "adopt those water quality criteria that protect 

designated use" and that such criteria "must be based on sound scientific rationale and must contain sufficient 

parameters or constituents to protect the designated use." 

Generally, the states are empowered to develop water quality criteria for their state and USEPA is required to review 

and approve those standards. USEPA may develop standards if its finds that state-developed standards are not 

consistent with the Act or if USEPA determines a revised or new standard is necessary to meet the requirements of the 

Act. 33 USC 1313 (c)(4). As such, USEPA is also bound to develop water quality standards that protect the designated 

use and use sound science to do so. 

11/19/2010 02:48 PM EST 2-1678
 
Chapter 2 - Comment Documents Background 

Comment ID 1768-1.001.005 

Author Name: Armingeon N. 

Organization: St. Johns River Keeper 

General Comments. 

• The Clean Water Act requires that fishable and swimmable uses be achieved wherever attainable, 33 U.S.C. 

1251(a)(2),not just wherever it is easy. EPA has a statutory responsibility to move Florida toward this goal. 

Comment ID 1769-1.001.036 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of City of Cocoa 

D. Consumptive Uses 

At its outset in Section 101(g), the Clean Water Act provides: 

It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not 

be superseded, abrogated or otherwise impaired by this chapter. It is the further policy of Congress that nothing in this 

chapter shall be construed to supersede or abrogate rights to quantities of water which have been established by any 

State. Federal agencies shall co-operate with State and local agencies to develop comprehensive solutions to prevent, 

reduce and eliminate pollution in concert with programs for managing water resources.[17]" 

Because the Proposed Rule is based on nutrient concentrations rather than loads, the Proposed Rule indirectly 

regulates consumptive uses of water and infringes the State's ability to allocate quantities of water in violation of the 

Clean Water Act. As part of the consumptive use permitting process, applicants must demonstrate that the proposed 

withdrawal will not cause a violation of water quality standards. Because water withdrawals may result in increased 

nutrient concentration in the water by not factoring in the reduction in volume, and thereby cause a violation of water 

quality standards. Because the withdrawal of surface water causes a violation of water quality standards by increasing 

concentrations downstream, the proposed rule indirectly prohibits surface water withdrawals. 

Furthermore, surface water withdrawals currently make up approximately 10-15% of the water use in the state and are 

projected to increase to 25% of the water use in the future. By indirectly prohibiting surface water withdrawals the 

Proposed Rule will cause additional strains on groundwater supplies by increasing groundwater demand. 

The EPA needs to address the affect of surface water withdrawals on concentration levels. The Proposed Rule should 

clarify that EPA does not intend to directly or indirectly restrict the utilization of surface water and that surface water use 

is a matter dealt with by the states. 

[17] 33 USC 1251(g) 

11/19/2010 02:48 PM EST 2-1679
 
Chapter 2 - Comment Documents Background 

Comment ID 1770-1.001.060 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of Plant City 

D. Consumptive Uses 

At its outset in Section 101(g), the Clean Water Act provides: 

It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not 

be superseded, abrogated or otherwise impaired by this chapter. It is the further policy of Congress that nothing in this 

chapter shall be construed to supersede or abrogate rights to quantities of water which have been established by any 

State. Federal agencies shall co-operate with State and local agencies to develop comprehensive solutions to prevent, 

reduce and eliminate pollution in concert with programs for managing water rcsourccs.[20] 

Because the Proposed Rule is based on nutrient concentrations rather than loads, the Proposed Rule indirectly 

regulates consumptive uses of water and infringes the State's ability to allocate quantities of water in violation of the 

Clean Water Act. As part of the consumptive use permitting process, applicants must demonstrate that the proposed 

withdrawal will not cause a violation of water quality standards. Because water withdrawals may result in increased 

nutrient concentration in the water by not factoring in the reduction in volume, and thereby cause a violation of water 

quality standards. Because the withdrawal of surface water causes a violation of water quality standards by increasing 

concentrations downstream, the proposed rule indirectly prohibits surface water withdrawals. 

Furthermore, surface water withdrawals currently make up approximately 10-15% of the water use in the state and are 

projected to increase to 25% of the water use in the future. By indirectly prohibiting surface water withdrawals the 

Proposed Ru1e will cause additional strains on groundwater supplies by increasing groundwater demand. 

The EPA needs to address the affect of surface water withdrawals on concentration levels. The Proposed Rule should 

clarify that EPA does not intend to directly or indirectly restrict the utilization of surface water and that surface water use 

is a matter dealt with by the states. Thank you for your consideration of our comments. We look forward to your 

response. Please feel free to contact me if you have any questions. 

[20] 33 USC 1251(g) 

Comment ID 1771-1.001.070 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of Seminole County 

D. Consumptive Uses 

11/19/2010 02:48 PM EST 2-1680
 
Chapter 2 - Comment Documents Background 

At its outset in Section 101(g), the Clean Water Act provides: 

It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not 

be superseded, abrogated or otherwise impaired by this chapter. It is the further policy of Congress that nothing in this 

chapter shall be construed to supersede or abrogate rights to quantities of water which have been established by any 

State. Federal agencies shall co-operate with State and local agencies to develop comprehensive solutions to prevent, 

reduce and eliminate pollution in concert with programs for managing water resources.[17] 

Because the Proposed Rule is based on nutrient concentrations rather than loads, the Proposed Rule indirectly 

regulates consumptive uses of water and infringes the State's ability to allocate quantities of water in violation of the 

Clean Water Act. As part of the consumptive use permitting process, applicants must demonstrate that the proposed 

withdrawal will not cause a violation of water quality standards. The surface water withdrawals may result in increased 

nutrient concentrations. Thus, if the withdrawal of surface water causes a violation of water quality standards by 

increasing concentrations downstream, the proposed rule indirectly prohibits surface water withdrawals. 

Furthermore, surface water withdrawals currently make up approximately 10-15% of the water use in the state and are 

projected to increase to 25% of the water use in the future. By indirectly prohibiting surface water withdrawals the 

Proposed Rule will cause additional strains on groundwater supplies by increasing groundwater demand. 

The EPA needs to address the affect of surface water withdrawals on concentration levels. The Proposed Rule should 

clarify that EPA does not intend to directly or indirectly restrict the utilization of surface water and that surface water use 

is a matter dealt with by the states. 

Thank you for your consideration of our comments. We look forward to your response. Please feel free to contact me if 

you have any questions. 

[17] 33 USC 1251(g) 

Comment ID 1772-1.001.063 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of City of Titusville 

D. Consumptive Uses 

At its outset in Section 101(g), the Clean Water Act provides: 

It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not 

be superseded, abrogated or otherwise impaired by this chapter. It is the further policy of Congress that nothing in this 

chapter shall be construed to supersede or abrogate rights to quantities of water which have been established by any 

State. Federal agencies shall co"operate with State and local agencies to develop comprehensive solutions to prevent, 

11/19/2010 02:48 PM EST 2-1681
 
Chapter 2 - Comment Documents Background 

reduce and eliminate pollution in concert with programs for managing water resources. [17] 

Because the Proposed Rule is based on nutrient concentrations rather thartloads, the Proposed Rule indirectly 

regulates consumptive uses of water and infringes the State's ability to allocate quantities of water in violation of the 

Clean Water Act. As part of the consumptive use permitting process, applicants must demonstrate that the proposed 

withdrawal will not cause a violation of water quality standards. Because water withdrawals Iuay result in increased 

nutrient concentration in the water by not factoring in the reduction in volume, and thereby cause a violation of water 

quality standards. Because the withdrawal of surface water causes a violation of water quality standards by increasing 

concentrations downstream, the proposed rule indirectly prohibits surface water withdrawals. 

Furthermore, surface water withdrawals currently make up approximately 10-15% of the water use in the state and are 

projected to increase to 25% of the water use in the future. By indirectly prohibiting surface water withdrawals the 

Proposed Rule will cause additional strains on groundwater supplies by increasing groundwater demand. 

The EPA needs to address the affect of surface water withdrawals on concentration levels. The Proposed Rule should 

clarify that EPA does not intend to directly or indirectly restrict the utilization of surface water and that surface water use 

is a matter dealt with by the states. 

Thank you for your consideration of our comments. We look forward to your response. Please feel free to contact me if 

you have any questions. 

[17] 33 USC 1251(g) 

Comment ID 1773-1.001.063 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of Orlando Utilities Commission 

D. Consumptive Uses 

At its outset in Section 101(g), the Clean Water Act provides: 

It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not 

be superseded, abrogated or otherwise impaired by this chapter. It is the further policy of Congress that nothing in this 

chapter shall be construed to supersede or abrogate rights to quantities of water which have been established by any 

State. Federal agencies shall co-operate with State and local agencies to develop comprehensive solutions to prevent, 

reduce and eliminate pollution in concert with programs for managing water resources. [17] 

Because the Proposed Rule is based on nutrient concentrations rather than loads, the Proposed Rule indirectly 

regulates consumptive uses of water and infringes the State's ability to allocate quantities of water in violation of the 

Clean Water Act. As part of the consumptive use permitting process, applicants must demonstrate that the proposed 

withdrawal will not cause a violation of water quality standards. Because water withdrawals may result in increased 

11/19/2010 02:48 PM EST 2-1682
 
Chapter 2 - Comment Documents Background 

nutrient concentration in the water by not factoring in the reduction in volwne, and thereby cause a violation of water 

quality standards. Because the withdrawal of surface water causes a violation of water quality standards by increasing 

concentrations downstream, the proposed rule indirectly prohibits surface water withdrawals. 

Furthermore, surface water wi thdrawals currently make up approximately 10-15% of the water use in the state and are 

projected to increase to 25% of the water use in the future. By indirectly prohibiting surface water withdrawals the 

Proposed Rule will cause additional strains on groundwater supplies by increasing groundwater demand. 

The EPA needs to address the affect of surface water withdrawals on concentration levels. The Proposed Rule should 

clarify that EPA does not intend to directly or indirectly restrict the utilization of surface water and that surface water use 

is a matter dealt with by the states. 

Thank you for your consideration of our comments. We look forward to your response. Please feel free to contact me if 

you have any questions. 

[17] 33 USC 1251(g) 

Comment ID 1790-1.001.003 

Author Name: Rota M. 

Organization: Gulf Restoration Network 

It is imperative that EPA's 1998 determination (Clean Water Action Plan, Feb. 19, 1998) be realized in the form of 

numeric nutrient criteria. 

When dealing with nutrient pollution, numeric criteria make the implementation of other parts of the Clean Water Act 

(such as TMDLs, NPDES permits, 303(d)/305(b) reports, etc.) more accurate and easier for states, such as Florida. 

Response 

Comment ID 0670.001.004: 

Response: Florida has the authority to implement federally-promulgated criteria. The numeric nutrient criteria for Florida’s lakes 

and flowing waters, finalized in this rule, will be effective for Clean Water Act (CWA) purposes and will apply in addition to any 

other existing CWA-effective criteria for Class I and Class III waters already adopted by the State and submitted to EPA (and for 

those adopted after May 30, 2000 and approved by EPA’s numeric nutrient criteria). FDEP retains the authority to move forward 

with its own rulemaking process at any time to establish state numeric nutrient criteria and to submit such criteria to EPA for review 

and approval under section 303(c) of the Clean Water Act. If FDEP does not adopt state numeric nutrient criteria, the Department 

retains authority to implement federally-promulgated criteria through the State's narrative or "free froms" criteria. According to a 

2005 letter from FDEP's General Counsel, these minimum water quality criteria for surface waters, set out at Rule 62-302.500, 

F.A.C., provide a vehicle for the Department to address EPA-promulgated criteria in CWA programs such as the NPDES program. 

11/19/2010 02:48 PM EST 2-1683
 
Chapter 2 - Comment Documents Background 

Where EPA has promulgated a numeric criterion for a specific parameter, and Florida has not done so, FDEP has the authority to 

limit the discharge of the parameter pursuant to section 62-302.500, F.A.C. 

Under the Clean Water Act (CWA), Florida Department of Environmental Protection (FDEP) is the primary agency responsible for 

determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to 

FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. EPA has 

worked closely with the State, providing technical assistance, along with funding to the State to support sampling and analysis of 

existing data, to address nitrogen/phosphorus pollution problems in Florida. EPA will continue to collaborate with FDEP as the 

State implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for purposes of the 

Clean Water Act. FDEP retains the authority to move forward with its own rulemaking process at any time and EPA looks forward 

to working with Florida as the State implements these federal criteria while it moves to adopt its own criteria in the future. See the 

preamble to the final rule for further discussion. 

Comment ID: 0708.001.008 

Response: EPA is promulgating numeric nutrient criteria for Florida's lakes and flowing waters that are scientifically defensible and 

protective of applicable designated uses consistent with the requirements of the Clean Water Act section 303(c) and EPA's 

implementing regulations at 40 CFR 131. This final rule establishes numeric nutrient criteria, effective for purposes of the Clean 

Water Act, that are protective of Florida’s inland surface waters designated by FDEP as Class I and Class III waters. EPA reminds 

commenters that water quality criteria are derived to protect the applicable designated uses of waters. 

Comment IDs: 1009.001.003, 1010.001.007, 1098-3.001.006 

Response: EPA reminds the commenter that under the Clean Water Act (CWA), Florida Department of Environmental Protection 

(FDEP) is the primary agency responsible for determining how to implement water quality programs in the State with oversight and 

support by EPA. As such, EPA defers to FDEP in administering applicable CWA programs consistent with the CWA and EPA’s 

implementing regulations. EPA will continue to collaborate with FDEP as the State implements the numeric nutrient criteria 

finalized as part of this rule, which will be the effective criteria for purposes of the Clean Water Act. EPA recognizes there will be 

complex issues involved in implementation of numeric nutrient criteria and looks forward to working with Florida as the State 

implements these federal criteria while it moves to adopt its own criteria in the future. In response to comments regarding the 

potential cost to Florida, please also refer to the preamble of this final rule, specifically section VI. Economic Analysis, and EPA's 

“Economic Analysis of Final Water Quality Standards for Nutrients for Lakes and Flowing Waters in Florida,” located in the docket 

(docket ID: EPA-HQ-OW-2009-0956) for this rulemaking, for cost estimates associated with implementation of EPA's numeric 

nutrient criteria and the assumptions upon which those estimates are based. 

EPA directs commenters to the preamble of the final rule, in particular section III Numeric Criteria for Streams, Lakes, and Springs 

in the State of Florida, which discusses the derivation of the numeric nutrient criteria, derived to account for the natural variability 

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

to derive scientifically defensible numeric nutrient criteria. EPA reminds the commenter that water quality criteria are derived to be 

11/19/2010 02:48 PM EST 2-1684
 
Chapter 2 - Comment Documents Background 

scientifically defensible and protective of the applicable designated uses of waters consistent with the CWA and EPA’s 

implementing regulations at 40 CFR 131. 

EPA reminds commenters that the underlying methodologies for the Agency’s proposed numeric nutrient criteria for Florida’s 

rivers, streams, and lakes underwent scientific peer review. EPA followed the procedures outlined in its Peer Review Handbook 

(EPA/100/B-06/002) by having the specific methods EPA was considering to establish numeric nutrient criteria for Florida's lakes 

and flowing waters peer reviewed by five independent external experts in this field This independent, external peer review was 

completed in July 2009 and the results were made available through EPA’s docket for the proposed Florida nutrients rule (Peer 

Review Comments Final: External Peer Review of EPA’s Proposed Methods and Approaches for Developing Numeric Nutrient 

Criteria for Florida’s Inland Waters, EPA-HQ-OW-2009-0596-0010). EPA considered and responded to these peer review 

comments prior to proposal in January 2010 (EPA Responses to External Peer Review of EPA, EPA-HQ-OW-2009-0596-0155). 

With regard to the Science Advisory Board (SAB)'s recent review of an EPA draft guidance document for States to use when 

deriving numeric nutrient criteria using stressor-response relationships: The SAB reviewed EPA’s draft technical guidance on 

Empirical Approaches for Numeric Nutrient Criteria Development. Stressor-response relationships are one of three general 

approaches that EPA recommends for States to use when deriving numeric nutrient criteria. EPA has previously published peerreviewed general guidance documents that outline these three approaches. The SAB reviewed a supplemental guidance document 

that provided more detail on one of the three general approaches. EPA has used stressor-response approaches in this final rule and 

has benefited from the advice the SAB gave to EPA based on the SAB review of the Agency’s draft technical guidance on 

Empirical Approaches for Numeric Nutrient Criteria Development in September 2009. 

Comment ID: 1065.001.004, 1224.001.010 

Response: EPA appreciates the comments, however, these comments are outside the scope of EPA’s rule to establish numeric 

nutrient criteria for Florida’s lakes and flowing waters. 

Comment ID: 1331-1.001.002 

Response: Comment does not provide a comment on EPA’s rule but rather provides a cursory recap of certain elements of EPA’s 

January 26, 2010 proposed rulemaking. 

Comment ID: 1333.001.003 

Response: EPA appreciates the comments, however, these comments are outside the scope of EPA’s rule to establish numeric 

nutrient criteria for Florida’s lakes and flowing waters. 

Comment ID: 1350-1.001.004 

Response: EPA disagrees with the assertion that the Agency has not complied with its own statutory and regulatory requirements to 

derive scientifically defensible criteria that are protective of designated uses. Please refer to the preamble to the final rule, in 

11/19/2010 02:48 PM EST 2-1685
 
Chapter 2 - Comment Documents Background 

particular section III Numeric Criteria for Streams, Lakes, and Springs in the State of Florida, which discusses the derivation of the 

numeric nutrient criteria, derived to account for the natural variability exhibited in Florida's lakes and flowing waters. EPA relied 

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

EPA also reminds the commenter that the methods EPA used in its proposal went through an independent, external scientific peer 

review in July 2009. The results of this independent, peer review were made available through EPA’s docket (EPA-HQ-OW-2009­

0596). 

Comment IDs: 1415-1.001.002, 1415-1.001.006 

Response: Please refer to EPA's response to comments regarding Executive Order 13175 Consultation and Coordination with 

Indian Tribal Governments in this Response to Comment document. 

Comment ID: 1474-1.001.117 

Response: EPA’s promulgation of water quality standards establishes standards that the State implements through the National 

Pollutant Discharge Elimination Systems permit process. The State has discretion in developing discharge limits, as needed, to 

meet the standards. Please refer to the preamble, in particular section VII. Statutory and Executive Order Reviews, in addition to 

the responses provided under this comment category in this Response to Comments document for further discussion on EPA’s 

compliance with applicable statutory and executive orders. 

Comment ID: 1563-1.001.001 

Response: Please refer to the preamble to the final rule, in particular section VII. Statutory and Executive Order Reviews, in 

addition to the responses provided under this comment category in this Response to Comments document for further discussion on 

EPA’s compliance with applicable statutory and executive orders. 

Comment ID: 1482-1.001.048 

Response: EPA appreciates the comments, however, these comments are outside the scope of EPA’s rule to establish numeric 

nutrient criteria for Florida’s lakes and flowing waters. As indicated in the preamble to this final rule and consistent with the terms 

of the consent decree, EPA’s January 14, 2009 determination did not apply to wetlands, and as a result, Florida’s wetlands will not 

be addressed in this rulemaking or EPA’s forthcoming rulemaking involving estuarine and coastal waters. 

Comment ID: 0670.001.006, 1695-1.001.002 

Response: EPA refers the commenter to the preamble discussion regarding the numeric nutrient criteria that are finalized in this 

11/19/2010 02:48 PM EST 2-1686
 
Chapter 2 - Comment Documents Background 

rule. EPA notes that on June 7, 2010, EPA and Plaintiffs filed a joint notice with the Court extending the deadlines for 

promulgating numeric nutrient criteria for Florida's estuaries and coastal waters, flowing waters in south Florida (including canals), 

and the downstream protection values for flowing waters into estuaries and coastal waters. The new deadlines are November 14, 

2011 for proposal and August 15, 2012 for publishing a final rule for these three categories. This will allow EPA time to have the 

scientific methodologies for developing the numeric nutrient criteria included in EPA's November 2011 rulemaking peer-reviewed 

by EPA’s Science Advisory Board. EPA also notes that the Agency’s proposed restoration water quality standard will not be 

finalized in this rulemaking. Please refer to the preamble to the final rule, in particular section V.E Proposed Restoration Water 

Quality Standard, for clarification on EPA’s decision not to finalize EPA’s proposed restoration water quality standard. 

Comment ID: 1715-1.001.002 

Response: EPA disagrees that the Agency has violated the Administrative Procedures Act and the Clean Water Act in the timeframe 

the Agency has used to derive scientifically defensible numeric nutrient criteria. EPA believes that the extended comment period 

resulting in a 90-day public comment period, in conjunction with the additional public meetings (resulting in a total of 13 public 

meetings held in 6 different cities throughout the State), with a further 30 days to comment on EPA’s August 3, 2010 supplemental 

notice, provided sufficient time and opportunity for all interested parties to perform a thorough review of the proposed regulation 

and provide meaningful public comment to EPA. EPA disagrees that the Agency’s Consent Decree deadline to finalize numeric 

nutrient criteria adversely affected EPA’s public comment process or impeded EPA’s thorough review, consideration, and analysis 

of the comments submitted. EPA also notes that on June 7, 2010, EPA and Plaintiffs filed a joint notice with the Court extending 

the deadlines for promulgating numeric nutrient criteria for Florida's estuaries and coastal waters, flowing waters in south Florida 

(including canals), and the downstream protection values for flowing waters into estuaries and coastal waters. The new deadlines 

are November 14, 2011 for proposal and August 15, 2012 for publishing a final rule for these three categories. This will allow EPA 

time to have the scientific methodologies for developing the numeric nutrient criteria included in EPA's November 2011 rulemaking 

peer-reviewed by EPA’s Science Advisory Board. 

Based upon comments and new data and information received during the public comment phase of the January 2010 proposed rule, 

on August 3, 2010 EPA published a supplemental notice of data availability and request for comment related to the Agency’s 

January 26, 2010 notice of proposed rulemaking. In its supplemental notice, EPA solicited comment on a revised regionalization 

approach for streams, additional information and analysis on least-disturbed sites as part of a modified benchmark distribution 

approach, and additional options for developing downstream protection values (DPVs) for lakes. EPA did not solicit additional 

comment on any other provisions of the January 2010 proposal. EPA received 71 public comments from a variety of sources, 

including local and state governments, industry, and environmental groups. On October 8, 2010, EPA filed an unopposed motion 

with the Court requesting that the deadline for signing this final rule be extended to November 14, 2010. The Court granted EPA's 

motion on October 27, 2010. EPA used this additional time to review and confirm that all comments were fully considered. 

Comment IDs: 1715-3.001.001, 1715-3.001.005 

Response: EPA acknowledges and appreciates the commenter’s reiteration of EPA’s statutory and regulatory authorities to 

promulgate numeric nutrient criteria for Florida’s lakes and flowing waters. 

11/19/2010 02:48 PM EST 2-1687
 
Chapter 2 - Comment Documents Background 

Comment ID: 1768-1.001.005 

Response: EPA appreciates commenter’s support regarding the Agency’s statutory authority. 

Comments IDs: 1769-1.001.036, 1770-1.001.060, 1771-1.001.070, 1772-1.001.063, 1773-1.001.063 

Response: The promulgation of numeric nutrient criteria for Florida’s lakes and flowing waters does not indirectly prohibit surface 

water withdrawals. Even if it did, however, as the Supreme Court has held, CWA section 101(g) "gives the States authority to 

allocate water rights" and "to allocate water quantity as between users", but it does "not limit the scope of water pollution controls 

that may be imposed on users who have obtained, pursuant to state law, a water allocation." PUD No. 1 of Jefferson County, et al. 

v. Washington Department of Ecology, 511 U.S. 700, 720-21 (1994). And as Congress recognized in enacting CWA section 

101(g), "The requirements [of the Act] may incidentally affect individual water rights ... It is not the purpose of this amendment to 

prohibit those incidental effects. It is the purpose of this amendment to insure that State allocation systems are not subverted, and 

that effects on individual rights, if any, are prompted by legitimate and necessary water quality considerations." Id. at 721 (quoting 

3 Legislative History of the CWA of 1977, Ser. No. 95-14, p. 532 (1978)). Under the Clean Water Act (CWA), the Florida 

Department of Environmental Protection (FDEP) is the primary agency responsible for determining how to implement CWA 

programs delegated or with oversight by EPA. As such, EPA defers to FDEP in administering applicable CWA programs 

consistent with the CWA and EPA’s implementing regulations, as well as Florida State law and any applicable water rights granted 

by the State. EPA will continue to collaborate with FDEP as the State implements the numeric nutrient criteria finalized as part of 

this rule, which will be the effective criteria for purposes of the Clean Water Act. 

Comment ID: 1790-1.001.003 

Response: EPA reminds the commenter that the Agency’s Clean Water Action Plan (February 19, 1998) did not constitute an 

Administrator Determination under Clean Water Act section 303(c)(4)(B). EPA agrees that numeric nutrient criteria will create 

clear water quality goals and easily measurable quantitative baselines to support stronger collaboration and more effective 

partnerships with both point and nonpoint source dischargers of nutrient pollution. 

II.C - WATER QUALITY CRITERIA 

Comment ID 1474-1.001.002 

Author Name: Herz W. 

Organization: The Fertilizer Institute 

I. TECHNICAL REVIEW AND ANALYSIS. 

11/19/2010 02:48 PM EST 2-1688
 
Chapter 2 - Comment Documents Background 

A. Technical Guidance. 

EPA has issued a variety of guidance documents relating to the development of numeric nutrient criteria. Technical 

guidance documents include EPA's 1985 Guidelines for Deriving Numerical National Water Quality Criteria for the 

Protection of Aquatic Organisms and Their Use (USEPA 1985) (hereinafter National Guidelines), the Nutrient Criteria 

Technical Guidance Manual - Rivers and Streams (USEPA 2000) (hereinafter Rivers and Streams Technical Guidance 

Manual), and the Nutrient Criteria Technical Guidance Manual - Lakes and Reservoirs (USEPA 2000) (hereinafter 

Lakes and Reservoirs Technical Guidance Manual). More recently, EPA has been developing a guidance called 

Empirical Approaches for Nutrient Criteria Derivation (draft 2009), which is undergoing review by EPA's Science 

Advisory Board. In addition, in 2001 and 2003, EPA published recommended water quality criteria for nutrients based 

on an ecoregion approach under section 304(a) of the Clean Water Act. See 66 Fed. Reg. 1671 (Jan. 9, 2001); 68 Fed. 

Reg. 557 (Jan. 6, 2003). 

EPA also has issued various policy documents, including the National Strategy for the Development of Regional 

Nutrient Criteria (USEPA June 1998) (noticed in the Federal Register on June 25, 1998 at 63 Fed. Reg. 34648) and the 

2001 memorandum from Geoffrey Grubbs to states on the Development and Adoption of Nutrient Criteria into Water 

Quality Standards (hereinafter Grubbs 2001). 

Although EPA has developed recommended nutrient criteria under section 304(a), EPA has made it clear that its criteria 

are merely a starting point and states should use EPA's technical guidance to develop water body specific criteria. In 

fact, nutrient criteria that fully reflect localized conditions and protect specific designated uses, using the process 

outlined in the technical guidance manuals, are preferred: 

EPA strongly encourages states, territories and authorized tribes to refine these recommendations based on the key 

elements of nutrient criteria development (historical information, reference conditions, models, consideration of 

downstream effects, and expert judgment) discussed in EPA's published Technical Guidance Manuals (Lakes and 

Reservoirs: EPA-822-B00-001; Rivers and Streams: EPA-822-B-00- 002). EPA recognizes that states and authorized 

tribes have several options available to them and recommends the following approaches, in order of preference: (1) 

Wherever possible, develop nutrient criteria that fully reflect localized conditions and protect specific designated uses 

using the process described in EPA's Technical Guidance Manuals for nutrient criteria development. Such criteria may 

be expressed either as numeric criteria or as procedures to translate a state or tribal narrative criterion into a quantified 

endpoint in state or tribal water quality standards. 

Grubbs 2001, at 15. See also 68 Fed. Reg. at 558 ("It is not mandatory or expected that the reference condition so 

derived [using the 75th percentile of all reference data] be translated directly into a criterion."). 

EPA's National Guidelines establish the threshold principles that all aquatic water quality criteria must meet. First, the 

purpose of criteria is to protect aquatic organisms and their uses from unacceptable effects. See National Guidelines, at 

vi. "Criteria should attempt to provide a reasonable and adequate amount of protection with only a small possibility of 

considerable overprotection or underprotection." National Guidelines, at 5. Proper criteria derivation requires the 

establishment of a cause-and-effect relationship to ensure that regulation of the pollutant is necessary and will produce 

the desired effect. National Guidelines at 15- 16, 21. Thus, "[t]he concentrations, durations, and frequencies specified in 

criteria are based on biological, ecological, and toxicological data, and are designed to protect aquatic organisms and 

their uses from unacceptable effects." Id. at 16. To develop such criteria, adequate data must be available or the criteria 

11/19/2010 02:48 PM EST 2-1689
 
Chapter 2 - Comment Documents Background 

should not be developed. Id. at 5-6. Specifically, there must be adequate data on pollutant levels that cause an 

unacceptable adverse effect on any of the specified biological measurements. Id. at 39. For materials that have a 

threshold effect (like nutrients), the threshold of unacceptable effect must be determined. Id. at 8. In addition, "[c]riterion 

must be used in a manner that is consistent with the way in which they were derived...." Id. at 7. 

Comment ID 1474-1.001.116 

Author Name: Herz W. 

Organization: The Fertilizer Institute 

If a discharge causes, has the reasonable potential to cause, or contributes to an excursion of a numeric or narrative 

water quality criteria, the permitting authority must develop permit limits as necessary to meet water quality standards. 

40 C.F.R. 122.44(d)(1). In water bodies where a waste load allocation has not been prepared by a State and approved 

by EPA under 40 C.F.R. 130.7, water quality-based effluent limits must ensure that the "level of water quality to be 

achieved by limits on point sources established under this paragraph is derived from, and complies with all applicable 

water quality standards." 40 C.F.R. 122.44(d)(1)(vii)(A). Absent a TMDL, EPA has taken the position that water quality 

based effluent limitations for discharges into impaired waters cannot exceed an applicable water quality criterion. 

Comment ID 1530.001.035 

Author Name: Aschauer Jr. F. 

Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority 

IX. SECTION II.C. OF THE PROPOSED RULE, TITLED WATER QUALITY CRITERIA, IS MISLEADING AND MUST 

BE REDRAFTED AND RE-PROPOSED TO PROVIDE ADEQUATE NOTICE AND COMMENT. 

In this section, EPA gives the impression that numeric criteria are required. The regulations at 40 CFR 131.11(b) clearly 

state: "In establishing criteria, States should: (l) Establish numerical values." Because the regulations use the word 

"should" this is not an actual requirement, rather it is left to the states discretion. EPA should, therefore, redraft this 

section to make clear that the regulations do not require numeric criteria and remove this misleading language from the 

Proposed Rule. 

Later in this same section, EPA notes, "Narrative criteria are most effective when they are supported by procedures to 

translate them into quantitative expressions of the conditions necessary to protect the designated use." As pointed out 

numerous times in the preamble, the state of Florida has a very rigorous data collection and TMDL program that has 

procedures for translating the narrative criteria when necessary. A good example of this is the Lower St. Johns River 

TMDL, which, as discussed in this Comment, was a thorough site-specific analysis of the water body and should not 

now, as a result of the Proposed Rule, be tossed aside in order to usher in numeric nutrient criteria based upon a 

reference site approach, especially when EPA was not able to demonstrate a sufficiently strong correlation between the 

biological response indicators (e.g. chlorophyll a, periphyton biomass, or SCI) and TN and TP concentrations. 

Therefore, it is not clear why EPA has taken action (other than reacting to a federal lawsuit) to put in place numeric 

11/19/2010 02:48 PM EST 2-1690
 
Chapter 2 - Comment Documents Background 

criteria that will not be as protective as the site specific action levels developed by the state because the EPA numeric 

criteria will lack the specificity the state of Florida procedures include. 

Comment ID 1918.001.001 

Author Name: Larson A. 

Organization: 

The Clean Water Act created in 1972 has been continually ignored by the FDEP & the EPA. The numeric standards 

need to be set but the numbers proposed by EPA are flawed. 

Comment ID 1919-1.001.005 

Author Name: Standridge K. 

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

2. Florida's narrative standard has allowed the degradation of Tier I Outstanding Florida Waters. 

Florida's current narrative standard for nutrients allows pristine river systems and lakes to be virtually destroyed by 

nutrient pollution because there is nothing to alert the public to a fertilization problem until toxic algae mats and green 

slime indisputably evidence the fact that an "imbalance in flora and fauna" has occurred. For example, the Santa Fe 

River and Orange Lake have both been designated as Outstanding Florida Waters under Florida law, see Rule 62­

302.700 (9)(i), F.A.C., and therefore were supposedly specially protected from degradation. Yet both are impaired due 

to nutrient pollution,[9] and both suffer from serious algae outbreaks.[10] As succinctly stated by scientists in the Soil 

and Water Science Department at the University of Florida, use of a narrative nutrient standard "often results in a water 

body becoming impaired before the level of nutrients that cause imbalance is determined."[11] Earthjustice and its 

clients support the proposed rule because it will prevent the Santa Fe River and Orange Lake scenario from reoccurring 

with countless other Florida water bodies in the future. 

[9] See http://www.dep.state.fl.us/WATER/TMDL/docs/tmdls/final/gp1/orange_lake_nut_tmdl.pdf; and 

http://www.dep.state.fl.us/WATER/TMDL/docs/tmdls/final/gp1/suwanneebasinnutrienttmdl.pdf. 

[10] Appendix 7: Photograph of Algae Bloom on Lake Orange. 

[11] Appendix 8: University of Florida, IFAS Extension, A Guide to EPA's Proposed Numeric Nutrient Criteria, Doc. No. 

SL316, February 2010. 

Response 

Comment ID: 1474-1.001.002 

Response: EPA acknowledges the commenter’s reiteration of EPA’s technical and policy guidance documents pertaining to nutrient 

11/19/2010 02:48 PM EST 2-1691
 
Chapter 2 - Comment Documents Background 

criteria, and the role that states play in developing nutrient criteria which reflects localized conditions and protects designated uses. 

Comment ID: 1474-1.001.116 

Response: EPA acknowledges the commenter’s reiteration of EPA’s implementing regulations pertaining to permitting program. 

Comment ID: 1530.001.035 

Response: EPA disagrees that section II.C Water Quality Criteria of the proposal preamble is misleading and must be redrafted and 

reproposed. Section II.C of the preamble provides background information on guidance the Agency has issued for use by states 

when developing criteria. Please refer to the preamble to the final rule, which discusses the derivation of the numeric nutrient 

criteria, derived to account for the natural variability exhibited in Florida's lakes and flowing waters. EPA relied on an extensive 

amount of Florida-specific data and technical analyses to derive scientifically defensible numeric nutrient criteria consistent with 

the requirements of the Clean Water Act and EPA’s implementing regulations at 40 CFR 131. EPA also reminds the commenter 

that the methods EPA used in its proposal went through an independent, external scientific peer review in July 2009. The results of 

this independent, peer review were made available through EPA’s docket (EPA-HQ-OW-2009-0596). Please refer to the preamble 

to the final rule, in particular section V.C Site-Specific Alternative Criteria (SSAC), for discussion on the applicability of EPA’s 

federal SSAC procedure which provides for an alternative value to criteria set forth in this final rule that could be applied on a 

watershed, area-wide, or waterbody specific basis that meets the regulatory test of protecting the instream designated use, having a 

basis in sound science, and ensuring the protection and maintenance of downstream WQS. SSAC may be more or less stringent 

than the otherwise applicable federal numeric criteria. In either case, because the SSAC must protect the same designated use and 

must be based on sound science (i.e., meet the requirements of 40 CFR 131.11(a)), there is no need to modify the designated use or 

conduct a use attainability analysis (UAA). 

Comment ID: 1918.001.001 

Response: EPA disagrees with the comment that the Clean Water Act has been ignored by EPA and that EPA’s numeric nutrient 

criteria are flawed. Please refer to the preamble to the final rule, which discusses the derivation of the numeric nutrient criteria, 

derived to account for the natural variability exhibited in Florida's lakes and flowing waters. EPA relied on an extensive amount of 

Florida-specific data and technical analyses to derive scientifically defensible numeric nutrient criteria consistent with the 

requirements of the Clean Water Act and EPA’s implementing regulations at 40 CFR 131. EPA also reminds the commenter that 

the methods EPA used in its proposal went through an independent, external scientific peer review in July 2009. The results of this 

independent, peer review were made available through EPA’s docket (EPA-HQ-OW-2009-0596). EPA considered and responded 

to these peer review comments prior to proposal in January, 2010 (EPA Responses to External Peer Review of EPA, EPA-HQ-OW2009-0596-0155). 

Comment ID: 1919-1.001.005 

11/19/2010 02:48 PM EST 2-1692
 
Chapter 2 - Comment Documents Background 

Response: EPA acknowledges the comment encouraging EPA to promulgate numeric nutrient criteria for Florida's lakes and 

flowing waters that are scientifically defensible and protective of applicable designated uses consistent with the requirements of the 

Clean Water Act section 303(c) and EPA's implementing regulations at 40 CFR 131. EPA believes it has done so with this rule. 

This final rule establishes numeric nutrient criteria, to be effective for purposes of the Clean Water Act, that are protective of 

Florida’s inland surface waters designated as Class I and Class III waters. As a result, promulgation of this rule serves to protect 

aquatic ecosystems, recreation in and on the water, and drinking water supplies from water quality degradation due to the negative 

impacts of nitrogen/phosphorus pollution. Numeric nutrient criteria will create clear water quality goals and easily measurable 

quantitative baselines to support stronger collaboration and more effective partnerships with both point and nonpoint source 

dischargers of nitrogen/phosphorus pollution. 

II.D - AGENCY DETERMINATION REGARDING FLORIDA 

Comment ID 0503.001.002 

Author Name: Larson W. 

Organization: 

2. Practicality. To achieve any goal the goal must be achievable. Sounds like double talk but simply put why establish 

an impossible goal? In light of current population trends, technology and economics the application of numeric 

standards will not be practical. Why burden society with a Quixote type quest? 

Comment ID 0508-1.001.005 

Author Name: Wilson M. 

Organization: Florida Chamber of Commerce 

• Existing municipal wastewater and agricultural technology is not up to the task of achieving the proposed criteria; and 

Comment ID 0629.001.003 

Author Name: Bassett B. 

Organization: Florida Dairy Products Association 

I have been told that the conditional municipal waste technology cannot achieve the EPA proposed criteria. Existing 

technology criteria for agriculture cannot achieve the EPA proposed criteria. 

Comment ID 0640.001.006 

11/19/2010 02:48 PM EST 2-1693
 
Chapter 2 - Comment Documents Background 

Author Name: Dudley S. 

Organization: Florida League of Cities in Tallahassee 

As you know the expensive wastewater system won't be sufficient meeting the EPA proposed water requirements it 

obsolete when it comes online because the nutrient levels in the treated waters would exceed the nitrogen established 

by the EPA by four times or more. 

Comment ID 0646.001.005 

Author Name: Griswold R. 

Organization: Destin Water Users 

The only technology with a proven ability to strip nutrients to the levels being required is reverse osmosis, and a whole 

set of adverse environmental impacts that go with this type technology. 

Comment ID 0661.001.007 

Author Name: Ferguson D. 

Organization: Florida Association of Counties 

We're receiving reports from some counties that some of the proposed criteria are simply unattainable, and there's no 

amount of money they could spend to achieve compliance; and that's a very real problem that needs to be addressed. 

Comment ID 0666.001.003 

Author Name: Grigsby W. 

Organization: Florida Cattleman's Association 

Florida has the largest number of test and monitoring stations. I think that number is somewhere in the 40 thousand 

range, and most of the data being collected from Florida, I feel similar to the lady who expressed the comment about 

the football team. You know, are we being penalized for having done good to begin with? Much of Florida is -- most of 

Florida is still in ag. Ag has taken a pretty good hit in this deal all along. We would ask that some of that be looked at. 

You know, Florida has adopted Swim Program. They've adopted -- we've got 79 TMDL systems set up and approved 

ready to go. And then, you know, all of this is going to be for naught. I've been on the ten parts per billion. I was 

fortunate, if that's how we want to call it, for managing a large ranch next to the sugar cane growing area. In the C139 

basin in South Florida, we were required at ten parts per billion phosphorous. Never achieved. Not on the properties, 

not off the properties, not in the discharge of the stormwater treatment area. So, you know, we need to look at that. That 

treatment area, to my knowledge, has yet to discharge water at ten parts per billion. And if it has, it hasn't done it two 

11/19/2010 02:48 PM EST 2-1694
 
Chapter 2 - Comment Documents Background 

years in a row. So, you know, the science has to be questioned. Can we even do it, much less do it economically? 

Comment ID 0679.001.007 

Author Name: Vogel C. 

Organization: Florida Water Quality Coalition 

Finally, achievability. And I'm going to quote two more issues from Secretary Sole: Conventional municipal wastewater 

technology endorsed by the EPA in 2008 cannot achieve EPA proposed criteria. Number two, existing technology for 

agriculture cannot achieve EPA proposed criteria. This is testimony from the secretary of the Environmental Protection 

Department to legislative committees and by extension to the people of Florida. 

Comment ID 0701.001.004 

Author Name: Forward D. 

Organization: Titusville Patriots 

In closing, yesterday Mr. Henry Kelly made a presentation to you about the Fort Walton Beach facilities. They spent 

sixty million dollars on one of the latest, greatest wastewater treatment facilities. That facility can't come up to the 

standards. They just made it. We have an environmental engineer in Brevard County that says that the real easy study 

that's just made -- that four to 8 percent -- four to eight times the discharge can be made -- I'm looking at this wrong. 

Four to eight times the discharge rate they can't make here in Florida. Excuse me on that one. 

Comment ID 0703.001.002 

Author Name: Morrissey J. 

Organization: Pinellas County Utilities 

We operate two wastewater treatment facilities permitted to advance wastewater treatment. That's five parts per million 

biological oxygen, five parts per million TSS, three parts per million total nitrogen and one part per million in total 

phosphorus. Those limits are at the very edge of biological mechanical treatments. The proposed rules will move us 

beyond those images into more complicated treatments, which we can't yet discern. 

Comment ID 0714.001.003 

Author Name: Alexander J. 

Organization: Alico, Inc. 

Number two. The numeric criteria appear to be unattainable with current technology and without very aggressive and 

11/19/2010 02:48 PM EST 2-1695
 
Chapter 2 - Comment Documents Background 

very expensive practices, which added costs I don't believe agriculture can sustain. 

Comment ID 0716.001.002 

Author Name: Coughenour F. 

Organization: Plant City 

Right now one of the main concerns is that even with the 53 million dollars we've put into this state-of-the-art treatment 

plant, we have serious doubts that it would be and we're rather certain it would not be able to meet the standards at the 

point of discharge, if that's how they're applied. 

11/19/2010 02:48 PM EST 2-1696
 
Chapter 2 - Comment Documents Background 

Comment ID 0732.001.006 

Author Name: Fulford C. 

Organization: Congressman Adam Putnam 

According to DEP, the technology does not exist for municipal wastewater facilities and agricultural operations to meet 

EPA criteria. 

Comment ID 0788.001.003 

Author Name: Gildan P. 

Organization: East Central Regional Water Reclamation Facility Board 

The next issue we'd like to raise, the ECR would urge the EPA to consider the negative environmental impacts that we 

believe implementation of the rule would create, particularly in South Florida. In order to meet the rule requirements on 

a numeric basis, technologies to reduce nutrient loadings in reclaimed water and/or treated waste water to the levels 

being proposed by the EPA would require implementation of very intensive membrane technologies. These membrane 

technologies require high energy usage to force the effluent waste water through membrane filters with a result in 

substantial increase in a treatment facility's existing carbon footprint and the substantial impact on global warming at 

this point. It would also create a concentrated side stream that must then be disposed of with additional impact on the 

environment. These negative environmental impacts do not appear to have been significantly considered by EPA, and 

the ECR board believes that if you're looking at a rule making, the negative impact must be weighed against the 

projected incremental environmental benefits anticipated to be gained by implementation of the rule. 

Comment ID 0821.001.005 

Author Name: Miedema B. 

Organization: Sugar Cane Growers Cooperative of Florida 

Nitrogen is naturally occurring in the Everglades agricultural area. It's not something that we're adding in fertilizer. There 

is no way for us to meet the standard. What's already in the soil is three times greater than what you're asking for. So 

we get thrown out of the box before we even do a single thing. 

Comment ID 0822.001.006 

Author Name: Hutchcraft M. 

Organization: King Ranch and Consolidated Citrus 

Further, we're concerned that the current technology that is available might prevent us from actually being able to 

11/19/2010 02:48 PM EST 2-1697
 
Chapter 2 - Comment Documents Background 

achieve those standards, so we have a very real concern that we won't be able to meet the standards that you've met. 

Comment ID 0822.001.011 

Author Name: Hutchcraft M. 

Organization: King Ranch and Consolidated Citrus 

That's a significant improvement, but it won't meet your standard. We think that's important, particularly in the EAA 

where your standard is ten parts per billion. The water coming wouldn't even meet that. Over and above that, rainwater 

won't meet that. That's a very difficult standard for us to meet, and we're concerned that it might require a higher 

authority than the federal government to get rainwater to meet the standard. 

Comment ID 0832.001.004 

Author Name: Stewart R. 

Organization: Florida Pulp and Paper Association 

So you've heard comments about the scientific underpinnings of the criteria. We're going to address those as well. But 

one thing I would like, and it would be best if it were some type of dialogue so that we could understand which target 

we're shooting at. But given this assumption that we have to implement this criteria into pipe, this is what we're currently 

studying. We have a team of scientists and of engineers. They're looking at our effluent treatment facilities, which are 

currently -- we discharge about 160 million gallons a day of effluent into Florida streams. They have an average of three 

milligrams per liter of total nitrogen. 85 percent of that is recalcitrant, so we're going to have to treat that in a different 

way, and our average is about one milligram per liter. So the idea that we can do process optimization or something up 

in the plant to actually meet these limits is just not true. We're going to have to add something into the pipe. And if these 

are true end of the pipe criteria, this is what we're looking at. We're looking at adding an oxidation stage, an anoxic 

stage, clarification, precipitation stage, filtration stage, sledge handling and disposal. And by the way, if we go to 

chemical precipitation and phosphorous and then filtration, we'll be looking at generating six to eight tons of solid waste 

for every ton of phosphorous we remove. And I guess, you know, that's where we're at right now and that's the path 

we're proceeding down. 

Comment ID 0840.001.004 

Author Name: Bell D. 

Organization: Central Broward Water Control District 

Also, the nutrient standards that you come up with, I think they're better than what I thought was going to happen, but 

they're still unrealistically low, which are requiring us to implement, and this is going to be very difficult to attain, and 

scientifically you may not even be able to match it, the water which is existing, or even the ground waters come through 

is the same or higher standards in which you're proposing to happen. 

11/19/2010 02:48 PM EST 2-1698
 
Chapter 2 - Comment Documents Background 

Comment ID 0843.001.002 

Author Name: Brown R. 

Organization: Southeast Florida Utility Council 

Many utilities have presented technology issues and cost impacts as has been presented that the best available 

biological treatment is unable to treat to the EPA's proposed standards, and that a homeowner's wastewater bill will at 

least double. The Water Reuse Research Association Foundation is conducting a study now of impacts from impaired 

water bodies on - in Florida concerning advanced wastewater treatment and reuse treatment, and those areas do not 

align up with the impaired water bodies in the State of Florida. So there seems to be a lack of coordination between the 

two. 

Comment ID 0844.001.003 

Author Name: Waldron M. 

Organization: Highland Greenhouses Delray Plants 

We all share the same goal and desire to protect the waters of Florida. At this time extra cash is not readily available for 

implementing pollution control technology, if it is even available at this time to meet the proposed standards. 

Comment ID 0868.001.001 

Author Name: Cassel K. 

Organization: 

I cannot regulate how much fertilizer is purchased, the content of the fertilizer that is purchased in the stores or have 

any enforcement responsibilities; but yet I, as a district, am responsible under your new regulations to treat the water 

that I receive before I get rid of it. And I have no control over what I receive. That's up to the individual cities and the 

counties. The logistics of getting this treatment in a rain event situation is staggering. How would you treat upwards of 

400,000 gallons a minute to the levels that you have? I am not sure how you would do that on a cost, I haven't even 

started looking into the engineering issues. 

Comment ID 0890.001.001 

Author Name: Berman W. 

Organization: Davie Dairy, Inc. 

Our dairy farm has been in the Lake Okeechobe"e watershed 'for over 40 years and has been heavily involved in BMP's 

11/19/2010 02:48 PM EST 2-1699
 
Chapter 2 - Comment Documents Background 

to reduce phosphorus runoff for over twenty years. 

For the last five years we have partnered with the SFWMD in constructing and operating an edge of farm chemical 

treatment system to treat storm water runoff to reduce total phosphorus content of the storm water by 90%, down to 

levels which are actually below the numeric criteria in your proposal . I believe my experience allows me a "real life" 

perspective on your proposals. 

Based on my experience of attempting to operate our system and undergoing a long and steep learning curve, I would 

make the following observations : 

1) After years of research and development, our system is still a work in progress. We have yet to perfect an 

economical, reliable, and easily maintained system that treats our storm water to remove nutrients down to < 100 ppb 

total phosphorus . It is easy to sit in Washington DC or Tallahassee and set strict standards . It is another matter to be 

in the field and make those standards a reality . 

Comment ID 0898-1.001.002 

Author Name: Jones D. 

Organization: Putnam County Chamber of Commerce 

WHEREAS, Attempting to comply with these federal regulations - which in some cases will prove technically impossible 

- will cost tens of billions of dollars; and 

Comment ID 0915-1.001.001 

Author Name: Stephens G. 

Organization: The Niceville-Valparaiso-Okaloosa County Regional Sewer Board, Inc. 

1. The NVOCRSB operates a wastewater treatment facility (WWTF) which utilizes the contact-stabilization mode of the 

activated sludge process. The effluent from the WWTF is applied to a 290-acre restricted access, slow-rate land 

application system (sprayfield). The sprayfield is divided into two parcels. A small creek flows between the two parcels. 

The WWTF effluent applied to the sprayfield seeps into the stream which bisects the two parcels. A majority of the flow 

in the stream is this effluent which has seeped into the stream, therefore, it is estimated that the WWTF effluent would 

have to contain less than 1.1 mg/L TN and 0.057 mg/L TP in order to meet the limits proposed by EPA. Tested 

technology is not now available to reliably achieve these limits. 

Comment ID 0947.001.002 

Author Name: Alexander J. 

Organization: Alico, Inc. 

11/19/2010 02:48 PM EST 2-1700
 
Chapter 2 - Comment Documents Background 

(2) the Numeric Criteria appear to be unattainable with current technology and without very aggressive and very 

expensive practices which added costs I don't believe Agriculture can sustain; 

Comment ID 0949.001.005 

Author Name: Kelley H.
 

Organization: Fort Walton Beach Tea Party
 

4. There is not a single wastewater treatment facility in Florida that can currently meet the new limits. 

Comment ID 0949.001.007 

Author Name: Kelley H.
 

Organization: Fort Walton Beach Tea Party
 

6. There is no explanation for the profound increase this will have in the carbon footprints of the retrofitted plants. If 

these plants adopt a reverse osmosis system, it will greatly increase operating costs and ironically, increase the amount 

of carbon based energy needed to meet these unscientific standards. So in the process of trying to save the patient, we 

will kill the patient by using more greenhouse gases. 

Comment ID 0951.001.006 

Author Name: Berry A.
 

Organization: Hillsborough County Water Resource Services
 

For domestic wastewater facilities such as ours, that are already operating at advanced wastewater treatment levels, 

the proposed criteria may not even be achievable. 

Comment ID 0961.001.001 

Author Name: MacLeod G. 

Organization: Palms & Pines Inc. 

We cannot meet the requirements suggested in this bill. The technology is not available and the cost in relation to the 

results are not reasonable 

Comment ID 0993.001.001 

11/19/2010 02:48 PM EST 2-1701
 
Chapter 2 - Comment Documents Background 

Author Name: Rigsby J. 

Organization: Riverbend Homeowner's Association 

I am sending this as the representative of a small community utility (46 properties). Our reading of the proposed NNC 

rules have caused us deep concern about our ability to continue to operate a potable water and wastewater treatment 

facility. Following are concerns that we would ask be considered before a final ruling is made on this proposed rule. 

We do not have the experties and economy of scale to operate the technology required to meet the proposed criteria. 

We feel it would be impossible to implement the technology needed to design, permit, finance, and construct the 

systems that would be required by the time line that is being proposed. 

We serve a population of less than 100 residents, and are therefore, unable to spread the cost of such a system over 

such a small base of users. 

EPA should consider that the proposed rule would have unintended consequences like utility abandonment. This will 

force the state or EPA to take over the operations of these utilities or force residents to go to septic tanks that provide 

little or no nutrient removal. 

Comment ID 0997.001.008 

Author Name: Poulson T. 

Organization: University of Illinois 

V. SOME OF THE PROPOSED STANDARDS ARE NOT ATTAINABLE WITH CURRENT TECHNOLOGY OR WITH 

THE LEGACY OF PAST POLLUTION. A. We can come up with attainable N and P concentration criteria that take into 

account present technology of STAs and filter marshes with sewage treatment plants and natural differences among 

types of waters. WE SHOULD AIM FOR STANDARDS THAT PROTECT RESOURCES AND SCHEDULE 

INCREMENTAL APPROACH TO THE IDEAL. 

Comment ID 1007.001.002 

Author Name: Nordstrom R. 

Organization: Turtle Cove Condo. (Condominiums) Park 

3) EPA should design, conduct, test, and demonstrate effective treatment technologies that attain compliance with the 

proposed rule. It will also need to di it on a limited buget of a very small RV park. ( If the EPA can not do this how do 

they think we can.) 

Comment ID 1084.001.005 

11/19/2010 02:48 PM EST 2-1702
 
Chapter 2 - Comment Documents Background 

Author Name: Brodkin S. 

Organization: Concerned Citizens of Bayshore 

I've read Lee County documents indicating a hurry to increase the output of the North Fort Myers reverse osmosis water 

plant because the water plant in Alva, which takes water from the river, has serious water quality problems. Also, I 

recently toured the Fiesta Village wastewater treatment facility plant in Lee County. I did not see any method for 

removing water soluble nutrients, and they admitted that if bacterial counts are found to be high, that the water has 

already been dumped into the river before the test results are in. This is not acceptable. Numeric criteria will expedite 

the development of effluent limits for utilities. 

Comment ID 1098-1.001.008 

Author Name: Vance A. 

Organization: City of Bonita Springs 

• End of pipe treatment. Bonita Springs is served with a state of the art reverse osmosis water treatment plant for its 

drinking water and water reclamation facilities that treat the effluent and provides non-potable irrigation lines to nearby 

planned communities. It is not logical to have a reduction below certain numeric thresholds for these lines. If it does not 

meet with technology, it means more expensive water for the grass as there is a cost of treating the effluent. If reduced 

too low, fertilizer will need to be applied where it is currently accounted for in the effluent, meaning errors in application 

with better chance to get in the water ways, extra costs to the consumers, and greater chance for human error. 

Comment ID 1107.001.004 

Author Name: Jones A. 

Organization: Hillsborough County Public Works Department 

Furthermore, Hillsborough County's advanced domestic wastewater treatment plants currently meet very strict nutrient 

criteria. A T.M.D.L. that E.P.A. proposed for Rocky Creek, a tributary of Tampa Bay, stated the following: E.P.A. 

recognizes that the three existing wastewater treatment plants currently apply advanced wastewater treatment and that 

further reductions in the load from these facilities may not be economically or technologically feasible. It is not clear at 

this point how the proposed numeric criteria will be implemented with regard to point discharges. Alternate criteria and 

mixing zones are very difficult to obtain. If the numeric criteria are applied of end-of-pipe limits, we could not attain these 

levels without spending hundreds of millions of dollars in upgrading our facilities with ultrafiltration, reverse osmosis, 

and brine disposal. Additional O&M costs would be significant as well. 

Comment ID 1125.001.002 

Author Name: Hodges D. 

11/19/2010 02:48 PM EST 2-1703
 
Chapter 2 - Comment Documents Background 

Organization: Palm & Pines Mobile Home Park 

Additionally, there are several other questionable proposals, including: discharging brine into deep wells which could 

lead to saltwater intrusion, migration, and upconing in our drinking water aquafirs; designating current biologically 

healthy streams as impaired; the unavailability of conventional technology that will meet the criteria proposed. These 

are but a few. 

Comment ID 1136.001.003 

Author Name: Underhill T. 

Organization: 

Are the numeric standards as they currently stand actually even attainable? And in what processes could -- could -­

could we take to make sure that they are clearly attainable? The soundness of the scientific data used to -- to base the 

standards upon. 

Comment ID 1155.001.008 

Author Name: Kollinger R. 

Organization: Polk County 

And finally, the current level of technology for stormwater treatment is not efficient enough to provide the improvement 

needed to meet numeric standards for nitrogen and phosphorus. 

Therefore, implementing best available technology at the current levels to the maximum extent practicable will not be 

sufficient to meet the proposed criteria. 

Comment ID 1156.001.004 

Author Name: Carr R. 

Organization: 

EPA should design, construct, test, and demonstrate effective treatment technologies that attain compliance with the 

proposed rule. Without doing this due diligence EPA will be implementing a program that has no guarantee of success. 

EPA claims not to possess the time, money, or manpower to achieve this. If this is true it is unfair to ask the public to 

pay for a program that has not been tested and proven 

Comment ID 1164-1.001.004 

11/19/2010 02:48 PM EST 2-1704
 
Chapter 2 - Comment Documents Background 

Author Name: Baer W. 

Organization: City of Altamonte Springs Public Works and Utilities 

Although our treatment process fulfills the advanced wastewater treatment criteria established by EPA, it currently could 

not meet the proposed numeric nutrient criteria as written. Upgrades to the RWRF process that would allow continued 

use of our Project APRICOT system under the proposed numeric nutrient criteria would conservatively cost the City an 

estimated $110 million. We have recently engaged a consulting firm to evaluate our process and establish a more 

accurate cost estimate. 

Comment ID 1172.001.002 

Author Name: Wideman J. 

Organization: Pine Grove Village 

Small water systems like ours lack the expertise and cost to operate the technology required to approach meeting the 

proposed criteria. The economic recession has severely impacted small Florida communities like ours and our senior 

residents cannot afford the substantial increases in utility fees. Even if we could afford to implement this technology, it is 

impossible to design, permit, finance, and construct it by the timeline imposed by EPA. 

Comment ID 1216-1.001.002 

Author Name: Griswold R. 

Organization: Northwest Florida Utility Managers Council 

It is debatable within the engineering community if the limits being set by EPA exceed the limits of technology needed to 

achieve them. It is clear though that if the downstream protective values calculated are included they clearly exceed the 

capability all known methods for treatment. Other areas of the State and nation have a better chance of achieving 

compliance with their standards because their limits are much higher. The EPA has arbitrarily established a standard 

that may not be achievable and is not protective of the waters of this region and are likely over protective. 

Comment ID 1287-1.001.006 

Author Name: Purvee L. 

Organization: Wastewater Treatment Plant # 2, City of Mount Dora Public Works and Utilities 

A final thought is, if most systems go to deep well injection, because they cannot meet or afford the apparatus needed 

to meet the criteria, will this affect the frequency of sinkholes in the State? As we all know, sinkholes are prevalent in 

Florida, and are very unpredictable. If all these millions of gallon are being injected into a state that essentially is a 

sandbar, what are the cause and effects of these actions? 

11/19/2010 02:48 PM EST 2-1705
 
Chapter 2 - Comment Documents Background 

Comment ID 1301-1.001.012 

Author Name: Hodge R. 

Organization: Southeast Milk Incorporated 

MISC POINTS:
 

The following are miscellaneous points that I would like to make about the rule: 


• The proposed rule isn't consistent with existing Florida Statues, under which water quality criteria cannot require the 

abatement or treatment of natural conditions. 

• The proposed rule directly violates Florida's Statutes, which require that water quality standards account for variability 

inherent in nature. 

Comment ID 1304-1.001.047 

Author Name: Stewart J. 

Organization: Florida Pulp and Paper Association Environmental Affairs, Inc. 

Limits of Technology and Cost Estimation 

The FFPAEA requested that the firms AWARE Environmental Inc. (AEI) and AquAeTer, Inc. prepare an engineering 

analysis ("Technology and Cost Report") to assess the application of existing nutrient control technology and to 

estimate the cost for its eight member facilities to comply with the proposed numeric nutrient standards. Their 

conclusion indicates that because of the high percentage of refractory levels of organic nutrient in pulp and paper 

effluents, the ability to consistently achieve the proposed TN and TP criteria in mill effluents using state-of-the-art 

technology is uncertain as further indicated by wastewater treatment vendor's refusal to provide any performance 

guarantees for these low levels of TN and TP. 

Comment ID 1304-1.001.050 

Author Name: Stewart J. 

Organization: Florida Pulp and Paper Association Environmental Affairs, Inc. 

Literature Review 

A review of published literature to determine the technologies available for nitrogen and phosphorus removal was 

11/19/2010 02:48 PM EST 2-1706
 
Chapter 2 - Comment Documents Background 

completed. The primary sources of this review are two technical bulletins provided by the National Council for Air and 

Stream Improvement ("NCASI") attached as appendices to this report, Technical Bulletin No. 937 and Technical Bulletin 

No. 944. The full analysis of technology and sources of this information are detailed in Section 2.0 of the Cost Report. 

EPA considers the limits of technology (LOT) treatment levels for municipal wastewater treatment plants to be 3 mg/L 

for TN and 0.1 mg/L for TP (USEPA, 2010). All of EPA's proposed TN standards and most of the TP standards are 

below this limit of technology treatment levels for municipal facilities. However, due to the higher refractory levels of 

nitrogen and phosphorus in pulp and paper effluent compared to municipal effluent, AWARE and AquAeTer have 

concluded that the limits of technology of TN and TP for effluents generated by pulp and paper mills will be site-specific 

and require extensive treatability studies to be accurately determined. 

Comment ID 1304-1.001.052 

Author Name: Stewart J. 

Organization: Florida Pulp and Paper Association Environmental Affairs, Inc. 

For TN removal, no pulp and paper installations currently exist that are actively practicing biological nitrogen removal, 

which in any case will only remove the inorganic portion. The treatment technologies to achieve low total nitrogen levels 

are complicated because of the varying forms of nitrogen which can occur in pulp and paper mill effluent. The total 

inorganic nitrogen requires additional biological treatment. There is a recalcitrant organic-N portion which must be 

removed by physical chemical means, at very high chemical dosages. Data characterization of the remaining soluble 

organic N fraction is limited. Jar testing data on a Florida pulp and paper wastewater by AEI indicates that some 

removal of soluble organic-N is possible using chemical precipitation by aluminum chloride and powdered activated 

carbon. Sludge generation for nutrient removal is estimated at approximately 5,300 tons/year of sludge generated per 

million gallons treated which translates to a huge quantity of sludge requiring management and disposal. It is important 

to note that generation of these large quantities of sludges is primarily based on trying to remove the recalcitrant 

organic nutrients that ultimately are not bioavailable and thus their impact on the environment is negligible. 

Comment ID 1304-1.001.053 

Author Name: Stewart J. 

Organization: Florida Pulp and Paper Association Environmental Affairs, Inc. 

Commercially Available Technology 

Various manufacturers of proprietary treatment systems were contacted to determine effluent levels of TN and TP 

vendors would consider achievable and thus to provide a performance guarantee or contract warranty. To provide 

11/19/2010 02:48 PM EST 2-1707
 
Chapter 2 - Comment Documents Background 

performance guarantees all vendors discussed requiring mill-specific characterization of wastewaters and pilot testing 

to verify performance. The consensus from the vendors is that performance guarantees for achieving levels of TP to at 

or below 0.1 mg/L is possible. However, performance guarantees for total nitrogen would be difficult to obtain due to the 

variability of the refractory levels on organic nitrogen. Vendors felt that conducting site-specific characterization and 

providing performance guarantees for removal of TIN (total inorganic nitrogen) and ortho-phosphate would be more 

appropriate, however, given that the criteria are based on total nitrogen and phosphorus, these performance 

guarantees are of little value from a compliance standpoint. 

Comment ID 1304-1.001.054 

Author Name: Stewart J. 

Organization: Florida Pulp and Paper Association Environmental Affairs, Inc. 

Tertiary Treatment Design 

Based on the discussions with vendors, the basis of design chosen was a tertiary treatment system that would provide 

conversion of the labile fraction of the organic nitrogen to inorganic nitrogen, denitrification, clarification, precipitation of 

the ortho-phosphorus and filtration prior to discharge. The recalcitrant fraction of the organic nitrogen is difficult to 

remove with existing technology and in the hydraulic timeframe of existing wastewater treatment systems. The tertiary 

treatment technology proposed would be implemented following the ASB stage of existing secondary treatment. 

Comment ID 1305.001.002 

Author Name: Palmer D. 

Organization: Emerald Coast Utility Authority 

We have three wastewater treatment plants, three different outfalls, three different water bodies. In the past 12 years 

we've upgraded two of these to AWT, and by the end of this year we'll have a third converted to AWT, well sort of. 

We're currently spending $300 million to move a plant, a 20 MGD plant. We'll be pulling its discharge out of the bay and 

it will used by industries for reuse. 

To put the 300 million that we're spending into perspective, for our utility our typical CIP is about $10 million. So we're 

spending 30 years worth of CIP to do this. It took some creative financing and some creative rate increases. Will this 

new plant meet the new rule? Will any of our plants meet the new rule? First you have to understand I live and work in 

northwest Florida. Proposed standards there are the tightest in the state, and it's doubtful they can be reliably met with 

any conventional treatment. We have lower limits as we generally have very clean streams. We have the cleanest 

water, so, my opinion, we're getting penalized for having that cleaner water. 

Comment ID 1305.001.004 

Author Name: Palmer D. 

11/19/2010 02:48 PM EST 2-1708
 
Chapter 2 - Comment Documents Background 

Organization: Emerald Coast Utility Authority 

The plant has to be upgraded to meet the limits and downstream protection values are added. There's no known 

technology to get the total nitrogen down on that level, not even AWT followed by RO. Cost impacts you heard so about 

for wastewater treatment plants are related to using RO. RO is just plain stupid in many issues. It provides no real 

treatment.It's just a concentrate. You still have the nutrients. We have to find a way to get rid of them. 

Comment ID 1331-1.001.010 

Author Name: Aldstadt S. 

Organization: City of Pensacola Public Works 

If EPA adopts the proposed rule or a similar approach, some NPDES permits would include effluent limitations so low 

that POTW's would have to overhaul their treatment systems. For example, where a discharge has the reasonable 

potential to cause or contribute to an excursion of numeric nutrient criteria, the NPDES permitting authority must 

develop permit limits to meet the criteria. (See 40 C.F.R. § 122.44(d)(1).) This means that some POTWs will be forced 

to meet the criteria as end-of-pipe effluent limitations and in many cases have to install reverse osmosis facilities. Such 

facilities extend beyond what is reasonably considered the limit of technology for nutrient removal and produce adverse 

environmental effects through excessive energy and chemical use and the emission of greenhouse gases. 

Comment ID 1338-1.001.012 

Author Name: Champion T. 

Organization: Georgia-Pacific Corporation, LLC 

GP does not operate any pulp and paper mill nutrient removal systems that can meet the standards end of pipe. 

Furthermore, AWARE Environmental, Inc. as part of the FPPAEA comments conducted a technology review and 

concluded it does not appear to be technically feasible to meet the proposed nitrogen standards and most of the 

phosphorus standards as end of pipe criteria without using unproven advanced treatment technologies. 

Comment ID 1355-1.001.012 

Author Name: Barker V. 

Organization: Brevard County Board of County Commissioners 

In Closing: The Florida Department of Environmental Protection (FDEP) compared EPA's proposed NNC to available 

Total Nitrogen, Total Phosphorus or Chlorophyll data for fresh waters in Florida and found 38 fresh water segments in 

Brevard County that would be designated as impaired based on EPA's proposed Numeric Nutrient Rule. In contract, 

only 11 fresh water segments in Brevard County are listed by FDEP as nutrient impaired. During recent technical 

working group meetings for developing Basin Management Action Plans for the Indian River Lagoon, local entities have 

11/19/2010 02:48 PM EST 2-1709
 
Chapter 2 - Comment Documents Background 

raised concern that reasonable assurance has not been provided that current load reduction mandates are achievable 

with best available technologies. Therefore, it is imperative that EPA follow the spirit of its August 1997 guidance 

Memorandum, "New Policies for Establishing and Implementing Total Maximum Daily Loads (TMDLs)" and 

demonstrate the feasibility of meeting these more burdensome numeric nutrient criteria. 

Comment ID 1360-1.001.009 

Author Name: Cook R. 

Organization: Daytona Beach Utilities Department 

- Currently none of the conventional technologies will meet the criteria. The supporters of this action have suggested 

that Utilities and business owners have grossly over-estimated the cost for implementation. However, they have not 

considered that any upgrades prior to this rule were done so using the available technologies. These technologies 

would not be sufficient to accomplish such low levels. 

Comment ID 1360-1.001.010 

Author Name: Cook R. 

Organization: Daytona Beach Utilities Department 

- These advance technologies would actually create an industrial type waste stream. This waste stream would also 

require treatment and special disposal. Deep well injections of the waste would create problems for aquifer. The 

advanced technologies would increase energy and other natural resource consumption. It would increase our carbon 

emissions and therefore our overall carbon footprint. Current Biological Nutrient Removal technologies remove about 

96% of total nitrogen and 85% of total phosphorous using as much natural materials as possible. Changing 

technologies to a membrane or RO type of treatment would ultimately create another type of problem. 

Comment ID 1360-1.001.011 

Author Name: Cook R. 

Organization: Daytona Beach Utilities Department 

- New technologies are also in some cases cost prohibitive. On average, Florida utilities customers could be paying 

approximately $60 more every month. For smaller communities the cost is high as they are not able to average the cost 

among the customers. This cost only represents construction of the new plants and not the additional operating costs, 

which would also be increasing. 

Comment ID 1363-1.001.007 

11/19/2010 02:48 PM EST 2-1710
 
Chapter 2 - Comment Documents Background 

Author Name: Butler N. 

Organization: Smurfit-Stone Container Enterprises, Inc. 

AWARE Environmental and AquAeTer recently surveyed the technology that could be applied at pulp and paper mills 

for nutrient reduction to meet the EPA's proposed nutrient criteria. These firms concluded that because of the high 

percentage of refractory levels of organic nutrient in pulp and paper effluents, it is uncertain whether available 

technology is capable of consistently achieving the proposed Total Nitrogen (TN) and Total Phosphorus (TP) criteria for 

mill effluents. The uncertainty regarding the ability of even state-of-the-art technology to achieve EPA's proposed 

criteria at pulp and paper mills is underscored by the fact that wastewater treatment vendors were unwilling to provide 

any performance guarantees at these levels due to the difficulties of removing the organic fraction of the nutrients. 

Additionally, the installation of technology to achieve the required nutrient reductions in pulp and paper mill effluent will 

have substantial unintended consequences. The best-performing technology identified by AWARE and AquAeTer 

would result in the generation of an average of approximately 5,300 tons/year of sludge per million gallons of effluent 

treated. For Smurfit- Stone's three mills, this would result in the generation of 78 to 343 additional tons of sludge per mill 

per day attributable to the process of removing organic nutrients which are not readily bioavailable. Sludge generation, 

management and disposal issues, as well as the environmental trade-offs, energy requirements and costs associated 

with sludge management processes, must be considered in the development of any numeric nutrient criteria. 

Comment ID 1462-1.001.011 

Author Name: Helfrich C. 

Organization: City of Boca Raton Utility Services 

In the public hearings, utilities have discussed and presented the technology issues and cost impacts and it has also 

been presented that the best available biological treatment is unable to treat wastewater to the EPA's proposed 

standards and that a homeowners wastewater utility bill alone will at least double. I am simply reiterating those facts. 

Comment ID 1550.001.003 

Author Name: Berchtold J. 

Organization: City of Lake Butler 

-Even if rural systems could afford to implement the technology needed to approach meeting the proposed criteria, it is 

impossible to design, permit, finance, and construct the technology by the timeline imposed by EPA's proposed rule. 

Comment ID 1556-1.001.005 

Author Name: Horenstein B. 

11/19/2010 02:48 PM EST 2-1711
 
Chapter 2 - Comment Documents Background 

Organization: Tri-TAC 

3. Adoption of standards similar to those proposed in the State of Florida would result in significant compliance 

problems in California 

One of the few predictable outcomes of the adoption of the proposed standards will be the application of those 

standards in the NPDES permitting process. An assessment of effluent quality from existing California POTWs that 

nitrify and denitrify has been performed to examine the ability to attain projected effluent limits. 

For a number of plants in California and other areas of the arid west which discharge to receiving streams with little or 

no dilution, the permitting approach will be to apply standards at the end of pipe. The following analysis focuses on the 

ability of advanced treatment facilities in California to comply with effluent limits based on approximations using the 

proposed Florida nutrient standards as projected limits. 

The proposed Florida standards for Total N and Total P for flowing rivers are summarized in Table 1. 

Original comment letter contains additional information in Table 1. Proposed Criteria for Florida Streams (Annual 

Geometric Mean). See original comment letter. 

Using the maximum and minimum standards for Total N and Total P shown in Table 1 as projected effluent limits, the 

compliance frequency for existing nitrification and denitrification treatment facilities has been assessed and is illustrated 

described in Attachments A and B. Probability plots of effluent quality in comparison to projected effluent limits for Total 

N and Total P are shown as colored bands in the attachments. The point of intersection between the probability plot and 

the colored bands indicate the compliance percentages for each individual POTW represented. Full compliance would 

be represented by a figure with the colored band above the effluent concentration probability plot. Total noncompliance 

would be the case where the colored band is below the probability plot. 

The analysis indicates that all of the 18 POTWs examined would have significant compliance problems if the Florida 

Total N standards were applied in California. Of the 12 California POTWs for which Total P data were available, all 

would have problems with the most restrictive Florida standards and most would have problems with the full range of 

proposed Florida standards. Clearly, adoption of the proposed Florida standards would require installation of additional 

nitrogen and/or phosphorus removal facilities at all of the POTWs in California discharging to freshwater receiving 

waters with limited dilution capacity if those standards were applied at the end of pipe. 

Adding to these significant compliance concern are the findings of a recent WERF study[11] which examined the 

effluent quality of twelve total nitrogen and fifteen total phosphorus removal facilities from around the US. None of the 

total nitrogen facilities could reliably meet any of the effluent limits derived from the proposed Florida standards if they 

were applied at end of pipe. Only two of the fifteen total phosphorus plants could possibly meet the most restrictive 

phosphorus limits derived from the proposed Florida standards as end of pipe limits. Therefore, a question exists as to 

the availability of treatment technology which could produce effluent of the required quality. In California, compliance 

attainability is of particular importance, because mandatory minimum penalties require automatic, nondiscretionary 

payments by POTWs for exceedances of NPDES permit limits. 

[11] Bott, C, 2010. 

11/19/2010 02:48 PM EST 2-1712
 
Chapter 2 - Comment Documents Background 

Comment ID 1564-1.001.004 

Author Name: Williams G. 

Organization: Florida Rural Water Association 

5. EPA should establish and provide an acceptable, phased implementation schedule for making wastewater treatment 

upgrades to comply with these rules. Smaller water utilities need more time to develop options and alternatives and the 

proposed October 15, 2010 compliance date in the rule is unreasonable. It is not possible to design, permit, arrange 

financing, acquire additional properties, and construct a treatment solution by October 15, 2010. Most EPA rules are 

published well in advance of the implementation dates and give years for states and water utilities to prepare for 

implementation of the regulations. In th is process, only nine months existed from the time the rule was released to the 

proposed implementation date. This timeline is unacceptable and impossible to meet. Also, smaller systems normally 

are provided a delayed compliance schedule by EPA. A realistic timetable for facilities to meet new regulatory 

requirements typically is 4 to 6 years (to incorporate the necessary engineering design, materials procurement, and 

construction schedules). The timeline presented by EPA will result in competition for scarce resources, driving up costs 

and additionally will result in smaller systems competing for the same resources required by larger systems at rule 

implementation. The compliance timeframe suggested by EPA's rule implementation is beyond absurd and will result in 

100% of the smaller wastewater systems being immediately out of compliance while driving the costs of the new 

facilities up by factors of magnitude. All of this will result in facilities racing to complete new and untested facilities, using 

engineering consultants not familiar and experienced with the new technologies being employed and contractors who 

rush to secure unfamiliar work. EPA's implementation of this rule is a recipe for failure and chaos. 

6. As is standard practice, EPA did not provide details and nor guidance within the proposed rule on how the Agency 

intends to provide variances and exemptions to water and wastewater utilities that are unable to meet impossible 

deadlines to attain the proposed rule compliance. Since the procedures have not been identified, Florida utilities can 

only expect to find themselves operating under a standard where the implementation rules are arbitrarily developed adhoc by different EPA departments, officials, national headquarters and regional offices. 

Comment ID 1564-1.001.008 

Author Name: Williams G. 

Organization: Florida Rural Water Association 

Because of the financial and environmental costs of meeting these new regulations, the fact that many current facilities 

are landlocked and unable to expand, that the technology needed to meet EPA nutrient limits is currently unproven, and 

the costs of operation will be exorbitant, many small communities will likely switch to effluent disposal by land 

application, a technology that is well understood. Unfortunately, much of the state sits on unconfined areas of the 

Floridian aquifer and all of the state experiences Karst geological conditions. Because of the potential for large-scale 

changes to the current surface water effluent disposal methods, the discharges can adversely affect drinking water 

supplies, groundwater that feeds Florida springs and, ultimately, surface water bodies such as streams, rivers and 

11/19/2010 02:48 PM EST 2-1713
 
Chapter 2 - Comment Documents Background 

lakes. In essence, the new rules will result in moving the nutrients sources where it is currently innocuous, to ot her 

location where it will be potentially much more problematic. 

In some areas, removing the wastewater effluent from receiving environments will change the character of the receiving 

ecosystem. These impacts are not always desirable. Without a consistent source of water to receiving environments, 

current communities of plants and animals will be stressed. Complete drying out of these areas can result. When this 

happens, there will be losses or extinction of existing populations of animals and aquatic life, with the resultant negative 

impact on the communities where these amenities are located. 

This listing of unintended consequences is not a prediction of events nor is it all-inclusive. The point to be made here is 

that effluent disposal changes are linked to other issues in the communities where high quality effluent is currently 

discharged. Any change in costs or method of disposal will have local impacts that must be considered. 

Comment ID 1615-1.001.024 

Author Name: Dinneen J. 

Organization: Volusia County Public Works 

Prior to providing comments on the draft NNC, it must be noted that for the most part surface water dischargers in 

Florida do not currently achieve these criteria at the point of discharge. Surface water dischargers include direct 

domestic and industrial wastewater discharges, backup reclaimed water dischargers (authorized by Apricot Act [Section 

403.086(7), F.5.j, or stormwater discharges via a pipe or confined ditch (Le., outfall for NPDES MS4 purposes). In 

surface waters that will become impaired with the new EPA NNC, no mixing zone is allowed, so that the NNC would 

have to be met at the discharge point. For surface waters that are not impaired, a mixing zone is allowable, so that 

dilution of the effluent is possible. 

Comment ID 1641-1.001.011 

Author Name: Littrell J. 

Organization: Okaloosa County Water & Sewer System 

Technologies Available to Achieve Compliance 

OCWS's current operating wastewater treatment facilities are of an advanced design capable of biological nitrogen 

removal. We have worked with the FDEP over the years to develop our wastewater treatment systems to exceed the 

minimum required effluent standards. Each of our wastewater treatment facilities include costly land application 

systems that were developed according to FDEP's policy of eliminating direct discharges to surface waters. Despite 

having made substantial investments in current state of the art wastewater treatment systems, these will not be able to 

meet EPA's proposed standards without major modifications. 

Okaloosa County Water and Sewer has evaluated the capabilities of its facilities to meet the proposed effluent limits in 

11/19/2010 02:48 PM EST 2-1714
 
Chapter 2 - Comment Documents Background 

EPA's proposal. The current processes do not have the capability to comply with the stringent nitrogen or phosphorus 

limits and additional processes are required. 

�Liquid Train Treatment Processes 

A major hurdle that these facilities, and most facilities in Florida, must overcome to comply with the proposed limits is 

the removal of organic nitrogen species. Currently no proven biological technologies exist that are reliably capable of 

removing organic nitrogen species to the value required to meet the 0.82 mg/L total nitrogen limit for streams in the 

Panhandle, or the downstream protective limits for total nitrogen proposed for the estuaries located in the Panhandle. 

Equipment processes will be required to be installed at each facility to reliably comply with the proposed limits. 

•�Anaerobic Treatment to provide a 5-stage Bardenpho Process 

•�Deep Bed Sand Filters or Ultrafiltration Membranes 

•�Low Pressure Reverse Osmosis 

•�High Pressure Reverse Osmosis 

•�Evaporation of Brine 

The existing treatment plants would need to be modified and additional treatment basins and equipment installed to 

provide for a 5-stage Bardenpho treatment process, including anaerobic treatment. This modification will minimize the 

concentration of effluent organic nitrogen species and further reduce the effluent total nitrogen concentration. However, 

since the total nitrogen concentration is not expected to reliably comply with the stringent limits proposed by EPA, 

additional treatment is required. The effluent from the facilities would be further treated with chemical additions to 

precipitate phosphorous and filtered using a deep bed filter system or ultrafiltration membranes to remove particulates 

including phosphorous upstream of the low pressure reverse osmosis (RO) units. The low pressure RO units would 

remove most of the remaining nutrients and other multi- and mono-valent ion compounds, including the nitrogen 

phosphorous compounds, from the effluent stream. It is assumed that the 0.82 mg/L would be reliably met using these 

technologies at this point in the modified system. 

The Reverse Osmosis process produces a waste stream of brine that is about 10 to 20 percent of the volume applied to 

the RO membrane system. This waste stream would have a total dissolved solids content in the order of about 5,000 

ppm, would contain high concentrations of nitrogen and phosphorous species, and could not be retreated by the 

wastewater treatment system or diposed to land application sites or discharged to surface waters. Currently, the best 

available technology for treating and disposing of this brine waste stream is to minimize and reduce its volume and 

evaporate the water from the remaining waste stream. The cost of evaporation is extremely high, so we propose to 

further reduce the volume of that stream by sending it through a high pressure RO system. This would further reduce 

the water volume by an additional 80 to 90 percent and the resulting waste stream would be 1/100th to 4/100th of the 

influent flow to the wastewater treatment plant. The waste stream from the high pressure RO system would be fed to a 

series of evaporators where the water would be reduced another 90% and the remaining salt sludge waste stream from 

the evaporators would be disposed to the sanitary land fill. 

Original comment letter contains additional information as a Figure of Figure 1, Okaloosa County Water & Sewer 

Service Area. See original comment letter. 

Solid Train Treatment Processes 

11/19/2010 02:48 PM EST 2-1715
 
Chapter 2 - Comment Documents Background 

OCWS currently has the capacity to produce about 2,000 dry tons per year of Class B biosolids from each of its three 

wastewater treatment facilities. These biosolids are currently land applied to farm land in north Okaloosa County. Given 

the low level of total nitrogen and phosphorous species to be allowed by the proposed standards, we anticipate a 

severe restriction on the use and application of biosolids to these lands as a result of EPA's proposal. Therefore, the 

County must assume that the current method for treating and disposing of waste solids from our facilities will change 

and we assume we will be required to produce biosolids meeting the Class AA Biosolids requirements. This advance in 

technology is necessary because of the significant increase in land area requirements to dissipate the nutrient loads to 

local streams from biosolids applications. The Class AA product is classified as a fertilizer instead of a waste stream 

and will provide an unlimited area over which these materials can be distributed. 

The County has evaluated the modifications in the biosolids treatment technologies required to produce biosolids 

meeting the stringent AA level requirements. At a minimum, additional storage, dewatering, and new biosolids drying 

equipment is required. 

Comment ID 1645-1.001.022 

Author Name: Griswold R. 

Organization: Destin Water Users 

The only available technology for stripping nutrients out of water is reverse osmosis. This technology may or may not be 

able to reach the limits proposed in the rule. And this technology brings some altogether different situations with which 

to deal. PH Control is extremely important in the R.O. process and will result in acid storage and use. High pressures 

are needed to force the water through the membrane which means high energy needs. The resultant concentrate will 

be very high in both nitrogen and phosphorus and must be disposed of somehow. No economical solution exists with 

the cheapest for Destin Water Users being deep well injection. At present it is thought that the nearest location for 

injection is approximately 2500 feet deep in an aquifer only noted in old petroleum exploration logs. Much investigation 

and testing of this aquifer will be required before it can be used. As EPA knows, all UIC wells will be challenged 

administratively and the battle to win approval of these wells is difficult always and never certain of results. A minimum 

of a 2 year operational testing program will be needed before the wells can be used as a matter of normal operation. It 

must also be noted that DWU will need at least two wells since redundancy is needed in plant operation. Each well 

must be capable of handling between 600,000 and 1,200,000 gpd depending on efficiency of the R.O. process. 

Comment ID 1647-1.001.031 

Author Name: Kates K. 

Organization: Florida Fruit and Vegetable Association 

What technologies does the EPA recommend for both N and P removal and are these technologies financially viable? 

As previously mentioned, in a recent FDEP presentation by Secretary Sole, he stated that existing technology for both 

agriculture and conventional municipal wastewater facilities could not achieve the proposed EPA criteria (Sole, 2010). 

11/19/2010 02:48 PM EST 2-1716
 
Chapter 2 - Comment Documents Background 

Comment ID 1670-1.001.007 

Author Name: Legg L.
 

Organization: Hernando County Utilities Department
 

• The EPA should design, construct, test and demonstrate effective treatment technologies that attain compliance with 

the proposed rule. If the EPA does not possess the time, money or manpower to achieve this, the EPA cannot expect 

Florida's utilities to achieve it. 

Comment ID 1670-1.001.009 

Author Name: Legg L.
 

Organization: Hernando County Utilities Department
 

• If the proposed nutrient criteria are implemented, Membrane/Reverse Osmosis water treatment systems that 

discharge brine to surface waters (or aquifers that influence surface water through springs) will need to discharge the 

brine in deep wells beneath the Floridian Aquifer. This will be costly and could eventually lead to saltwater intrusion, 

migration, and upconing in Florida's drinking water aquifers, as has been seen in the past within the state of Florida. 

Comment ID 1729.001.006 

Author Name: Fugett A. 

Organization: 

5. Rural systems lack the expertise and economies of scale to operate the technology required to approach meeting the 

proposed criteria. 

Comment ID 1729.001.008 

Author Name: Fugett A. 

Organization: 

7. Even if rural systems could afford to implement the technology needed to approach meeting the proposed criteria, it 

is impossible to design, permit, finance, and construct the technology by the timeline imposed by EPA's proposed rule. 

Comment ID 1729.001.009 

11/19/2010 02:48 PM EST 2-1717
 
Chapter 2 - Comment Documents Background 

Author Name: Fugett A. 

Organization: 

8. Typically, when new water quality standards are implemented, smaller systems are allotted more time to comply due 

to the economical and technical limitations of the systems. 

Comment ID 1729.001.013 

Author Name: Fugett A. 

Organization: 

15. EPA should develop Best Available Technology and Best Available Affordable Technology studies for various type 

and sizes of water and wastewater systems that will enable compliance with the proposed criteria. 

16. EPA should design, construct, test, and demonstrate effective treatment technologies that attain compliance with 

the proposed rule. (If EPA claims not to possess the time, money, or manpower to achieve this, then EPA cannot 

expect Florida's utilities to achieve it.) 

17. There are no conventional technologies available that have been proven to meet the proposed criteria. Individual 

Florida systems with surface water discharges will be forced to spend hundreds of millions of dollars on unprecedented 

reverse/osmosis treatments or develop alternative disposal methods (such as deep well injection) in order to comply 

with the proposed criteria. 

Comment ID 1729.001.018 

Author Name: Fugett A. 

Organization: 

22. If the proposed nutrient criteria are implemented, membrane/R0 water treatment systems that discharge brine to 

surface waters will need to discharge the brine in deep wells. This will be costly and could eventually lead to saltwater 

intrusion, migration, and upcoming in Florida's drinking water aquifers. 

Comment ID 1766-1.001.004 

Author Name: Crotty M. 

Organization: City of Satellite Beach 

Finally, Satellite Beach is one of those local entities Brevard County mentions that have questioned whether the load 

reduction mandates associated with the Basin Management Action Plan for the Indian River Lagoon are even 

achievable with available best management practices, let alone more stringent criteria to be imposed by EPA. 

11/19/2010 02:48 PM EST 2-1718
 
Chapter 2 - Comment Documents Background 

Comment ID 1771-1.001.041 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of Seminole County 

Application of Numeric Limits 

A review of the location and operations of each of these WRFs indicates that both facilities do, in fact, maintain NPDES 

discharge permits allowing wastewater disposal to surface waters: the Yankee Lake WRF with the ability to discharge to 

the St. Johns River, and the Iron Bridge facility utilizing the Little Econlockhatchee River, a tributary to the St. Johns. A 

review of the proposed USEPA NNC showed that both of these water bodies were identified as "impaired", and 

restrictive nutrient limits were proposed for implementation as shown in the table below: 

Original comment letter contains additional information in Table 1. USEPA Proposed Numeric Nutrient Criteria for 

Receiving Streams. See original comment letter. 

The EPA's current proposal includes the additional application of Limit of Technology ("LOT") standards where instream limits are below the ability of traditional wastewater treatment technology to attain. The effect of the LOT 

approach on the Seminole County facilities would result in numerical limits of 3.0 mg/L for TN, and approximately 0.1 

mg/L for TP. These proposed discharge standards were therefore used as the basis for assessing current and future 

treatment-focused compliance at the County's facilities. 

In an effort to identify the County's existing treatment plant conditions and capabilities, recent historical data was used 

to demonstrate the current process limitations. In this regard, recent historical data for the Yankee Lake WRF and the 

typical effluent TN and TP concentrations for Iron Bridge WRF are presented in the following subsections. 

Total Nitrogen 

The Yankee Lake facility will be undergoing significant construction upgrades over the next several years, based on 

previous planning and compliance requirements of the Wekiva Protection Act, to improve the treatment processes in an 

effort to reduce the TN levels in the facility's effluent stream. These upgrades will include constructing engineered 

systems such that the current nutrient removal test process operated at Yankee Lake will be more robust and operable. 

Based on the LOT limits proposed by EPA for the Yankee Lake facility, the monthly average TN levels observed 

exceeded these limits on a regular basis. It is anticipated, however, from the overall success of the process testing at 

Yankee Lake over several years that the planned construction improvements to the facility will allow the effluent TN 

levels to be maintained consistently below the LOT limit of 3 mg/L. 

Based on recent discussions with treatment facility operations staff, the Iron Bridge WRF currently maintains a TN level 

of less than 3.0 mg/L on a consistent basis. As such, no improvements are currently anticipated at the Iron Bridge 

facility to meet these proposed NNC. 

Total Phosphorus 

11/19/2010 02:48 PM EST 2-1719
 
Chapter 2 - Comment Documents Background 

While specific TP data over a significant period of time for the Yankee Lake WRF were not available, the facility's recent 

performance relative to effluent phosphate (a component of TP) is indicative of the potential compliance issues. 

However, monthly averages for phosphate exceeded the projected TP LOT limits proposed by EPA at all times over the 

past year. With TP concentrations inherently higher than phosphate, the Yankee Lake WRF would not be able to meet 

TP limits imposed by the proposed EPA rules as currently configured. 

The Iron Bridge Facility effluent monitoring data were unavailable at the time of assembly of this letter. However, 

discussions with plant personnel suggest that effluent TP concentrations are typically observed at approximately 0.130 

mg/L. This particularly low effluent value as compared to most WRFs in Florida, is attributed to the robust biological 

phosphorus removal process operated at Iron Bridge. This information suggests, however, that even this advanced and 

well operated system designed specifically for phosphorus removal would still slightly exceed the projected limits posed 

by EPA for the Little Econlockhatchee River watershed. 

In sum, a review of the specific EPA proposed criteria expected to be applied to Seminole County's utilized wastewater 

treatment facilities suggests that compliance would not be possible given the current treatment processes and 

infrastructure, due to the inability to meet the TP limit of approximately 0.1 mg/L. 

Comment ID 1786-1.001.008 

Author Name: Kirk K. 

Organization: National Association of Clean Water Agencies 

Even where court-ordered deadlines are not forcing an acceleration of the scientific process, state regulators are having 

difficulty developing meaningful numeric criteria for nitrogen and phosphorus that are realistically linked with in-stream 

impacts. Where criteria are developed, many of the numeric values are so low that NACWA's members are concerned 

that if applied as end-of-pipe effluent limits, they would be difficult, if not impossible to meet with existing treatment 

technology. Numeric nutrient criteria that translate to effluent limits so low that wastewater utilities would need to treat 

their effluent with reverse osmosis, go well beyond what is realistically considered to be the "limit of technology" for 

nutrient removal and may harm the environment through excessive use of energy, chemicals, and emission of 

greenhouse gases. NACWA believes additional flexibility is needed for states to develop nutrient criteria that better 

reflect actual in-stream conditions and watershed nutrient loadings to best target the source of the problem and develop 

sustainable management plans to protect water quality. 

Comment ID 1786-1.001.039 

Author Name: Kirk K. 

Organization: National Association of Clean Water Agencies 

EPA's statement that most of the proposed in-stream nutrient standards for Florida are below the LOT, and thus it may 

be infeasible to meet the criteria in-stream due to technology limitations, especially if the water is dominated by 

11/19/2010 02:48 PM EST 2-1720
 
Chapter 2 - Comment Documents Background 

wastewater discharges, is a significant assumption that both explains why EPA's cost estimate is so low - they assume 

wastewater treatment plants will not be required to treat beyond 3 mg/l TN and 0.1 mg/l for TP - but also raises the 

larger policy issue of whether forcing all treatment plants to LOT, when the criteria will still not be met and 

environmental benefit cannot be assured, is sound environmental policy. 

Comment ID 1786-1.001.041 

Author Name: Kirk K. 

Organization: National Association of Clean Water Agencies 

NACWA believes it is counterproductive and a waste of resources to develop and implement criteria that all parties 

acknowledge cannot be reasonably achieved with currently available nutrient removal technology. Nothing in the CWA 

would allow permitting agencies to stop imposing point source controls at some defined limit of treatment technology. 

The current approach forces states to develop nutrient standards for TN and TP, and deal with implementation 

complications after the fact through variances or other regulatory options EPA discusses in the proposal. 

Comment ID 1786-1.001.043 

Author Name: Kirk K. 

Organization: National Association of Clean Water Agencies 

EPA's Proposal Sets Goals that May Not Be Technically Achievable 

EPA's proposed numeric nutrient standards for Florida raise the issue of what is really achievable in terms of meeting 

low levels of both TN and TP at wastewater treatment plants. EPA states in the preliminary compliance cost report for 

Florida (EPA, 2010) that the Agency "believes that BNR is the most reasonable and best technology for nitrogen and 

phosphorus removal for WWTPs." Biological nutrient removal (BNR) is typically capable of producing effluent 

phosphorus of approximately 1 mg/l and effluent nitrogen of 10 mg/l. Enhanced nutrient removal (ENR) with effluent 

filtration and larger biological reactors may produce effluent phosphorus in the range of 0.25 to 0.50 mg/l and effluent 

nitrogen of 4 to 6 mg/l. The most advanced nutrient removal systems operating at the maximum capability of treatment 

technology with multiple filtration steps or membranes, and larger biological reactors, may reduce effluent phosphorus 

to 0.050 to 0.100 mg/l and effluent nitrogen to 3 to 4 mg/l. EPA states that (EPA, 2010) "[f]or municipal wastewater 

treatment plants (WWTPs), the limit of technology (LOT) for biological nutrient removal is 3 mg/L for TN and 0.1 mg/L 

for TP." 

Comment ID 1786-1.001.044 

Author Name: Kirk K. 

Organization: National Association of Clean Water Agencies 

EPA has not provided implementation guidance in the proposed Florida nutrient standards and so there is uncertainty 

11/19/2010 02:48 PM EST 2-1721
 
Chapter 2 - Comment Documents Background 

as to how instream standards will be translated to effluent discharge permit limits. Comparing the very best nutrient 

removal facilities with the proposed Florida numeric nutrient standards reveals that effluent phosphorus may approach 

these instream targets with the most advanced treatment processes should they be applied end-of-pipe. However, even 

the most advanced nitrogen removal facilities would have effluent concentrations much higher than the proposed 

instream standards for Florida. The proposed Florida standards are likely to result in very restrictive discharge permit 

limits lower than treatment technologies are capable of achieving. NACWA is concerned about the uncertainty 

associated with what will be required of wastewater facilities, whether treatment technologies are available for 

successful compliance with the proposed standards and whether application of available technologies to achieve 

extremely low levels of nutrients makes sense given the significant energy and other resource demands of such 

technologies. 

Comment ID 1786-1.001.045 

Author Name: Kirk K. 

Organization: National Association of Clean Water Agencies 

The EPA states in the preliminary compliance cost report for Florida (EPA, 2010), but not in the proposed standards, 

that: 

Most of the proposed criteria are at or below the LOT. For waters where the criteria are below the LOT, it may be 

infeasible to meet the criteria instream due to technology limitations, especially if the water is dominated by WWTP 

discharges. In those cases where it may be technologically infeasible to discharge at levels below LOT, the following 

alternatives would be considered: (1) the lakes criteria adjustment procedure or reallocation procedure of the DPV 

methodology for estuary protection, (2) site-specific alternative criteria, (3) restoration standards, (4) variances, or (5) 

UAAs and resulting changes to designated uses. Site-specific modeling would be needed to identify such instances 

where it is infeasible to meet criteria instream and determine appropriate effluent limits. 

The proposed Florida standards have resulted in broad discrepancies in the understanding of treatment technology 

requirements and costs. Guidance is needed to ensure there is a common understanding of how the proposed Florida 

standards will be implemented. While EPA's cost analysis is based on recognition that "... BNR is the most reasonable 

and best technology for nitrogen and phosphorus removal," the proposed rule dictates an instream numeric nutrient 

standard which requires interpretation to define compliance requirements (e.g., permit limits) that presumably could go 

beyond BNR. Implementation guidance is needed to address the uncertainty associated with the ability of treatment 

technologies to meet the proposed standards, the ability to achieve compliance with the resulting effluent discharge 

permit limits and the capital and operating costs and other ancillary impacts of the necessary treatment facilities. 

Comment ID 1787-1.001.014 

Author Name: Spratt J. 

Organization: Florida Nursery, Growers and Landscape Association 

11/19/2010 02:48 PM EST 2-1722
 
 

Chapter 2 - Comment Documents Background 

In addition, Secretary Sole stated that the FDEP did not believe that existing technology for agriculture or municipal 

wastewater facilities could achieve the criteria proposed in the EPA's numeric nutrient ruling and that it is roughly 

estimated to cost the State and stakeholders billions of dollars to achieve compliance. 

Comment ID 1792-1.001.004 

Author Name: Putnam A. 

Organization: United States House of Representatives 

Regulations can only be effective if they are attainable, and EPA must take into account the technology available to 

meet the proposed standards. According to DEP, conventional municipal and agricultural technology cannot achieve 

the proposed criteria. At best, an IFAS report entitled "A Guide to EPA's Proposed Numeric Nutrient Water Quality 

Criteria for Florida," states that while technology exists to reduce nutrient levels in waste water disposal systems, it 

remains unclear that such technology exists to reduce nutrients in other sources of pollution. 

Comment ID 1796-1.001.007 

Author Name: Mizrahi C. 

Organization: National Potato Council 

While providing strict numeric nutrient criteria for Florida's waters, the EPA has not provided an acceptable framework 

or plan for reaching those goals. FDEP Secretary Michael Sole in a statement to the Florida House of Representatives 

indicated he believes that currently existing technology is not adequate and cannot meet the criteria as currently 

proposed. New technology would cost even more money to develop and would use significantly more electricity than 

the current system, thus increasing Florida's carbon footprint. It is also unclear how such large quantities of land could 

be acquired to build the necessary water treatment facilities, or how existing canals could be so tightly controlled while 

still providing flood relief and drainage. These economic and logistic hurdles lead most of Florida's agricultural 

communities to believe that, even if the EPA's proposal was scientifically sound and environmentally beneficial, it is 

unrealistic to believe that the criteria could be met. 

Comment ID 1797-1.001.021 

Author Name: Braswell S. 

Organization: Florida Farm Bureau 

b. Technological Limitations to the Agricultural Industry 

More importantly, the EPA has failed to recognize the technological limitations of reducing nitrogen and phosphorus in 

wastewater effluents, specifically for the agricultural industry, the cost of implementing these technologies, and the 

adverse environmental impacts, such as high energy inputs, caused by controlling nutrients in effluents. 

11/19/2010 02:48 PM EST 2-1723
 
Chapter 2 - Comment Documents Background 

Adequate technology will take a significant amount of time and a substantial amount of financial resources. Agricultural 

producers do not have the ability to pass costs on to the consumer, and most technological alternatives will be costprohibitive to farmers and ranchers in the State of Florida. 

Comment ID 1802-1.001.003 

Author Name: Torres E. 

Organization: City of Casselberry 

To emphasize, most existing enhanced treatment methods are incapable of meeting the proposed criteria. It is 

imperative to recognize that the NNC would have to be met at the discharge point because mixing zones are not 

allowed in surface waters that will become impaired because of the strict criteria. There are no surface water discharges 

in Florida that currently achieve the criteria at the point of discharge. Therefore, in order to achieve the NNC, Florida's 

high level treatment, advanced wastewater treatment (AWT) followed by membrane systems would be required, which 

leads to a momentous increase in energy, carbon footprint and a massive resultant sludge that requires disposal. It 

should be noted that neither the City of Casselberry's wastewater treatment system nor the majority of wastewater 

treatment systems in Florida meet AWT. Further, existing systems typically cannot simply be retrofitted to meet AWT. 

Therefore hundreds of wastewater treatment systems in Florida would need to be completely replaced to meet this 

standard, at exorbitant cost. 

Moreover, in the case of stormwater, the City of Casselberry is a largely built-out urban area and thus faces tremendous 

challenges. The City is clearly devoted to protection of its surface waters. It has adopted an aggressive Stormwater, 

Lakes Management, and Water Quality Master Plan with an equally aggressive Stormwater and Lake Management 

Utility Fee, funding approximately $10 million in projects through 2017, many specifically targeted at improving water 

quality for the purpose of achieving Total Maximum Daily Loads for the Lake Jesup Watershed. Even with such funding, 

especially with limited land availability and prohibitive acquisition cost, stormwater retrofits have a very high cost to 

benefit ratio for nutrient removal. 

Comment ID 1832-1.001.003 

Author Name: Steele W. 

Organization: Department of Public Services, City of Crestview 

The proposed WWTF and effluent disposal systems were recently permitted under the existing rules. The capital cost to 

retrofit the plant in the future in an attempt to meet the proposed criteria at the discharge of the facility is estimated to be 

$58,000,000. This equates to an average of approximately $12,000 per customer. The annual operation and 

maintenance cost is estimated to be around $2,000,000 per year. These additional costs would impose a tremendous 

financial burden on our City and customers. The funding of such an upgrade would not be financially feasible without 

federal and/or state agencies providing a majority of the funds. 

11/19/2010 02:48 PM EST 2-1724
 
Chapter 2 - Comment Documents Background 

Comment ID 1832-1.001.006 

Author Name: Steele W. 

Organization: Department of Public Services, City of Crestview 

Before the rules are imposed, a study should be performed to determine if the proposed criteria can be met consistently 

using existing treatment technologies. The City estimated the costs for retrofitting the WWTF assuming that the current 

technologies, such as reverse osmosis and microfiltration, will be able to reliably meet the new standards for nitrogen. 

Current research and performance history suggest that this may not be the case. 

Comment ID 1832-1.001.007 

Author Name: Steele W. 

Organization: Department of Public Services, City of Crestview 

It does not appear that there will be a net benefit to the environment as a result of the proposed rule. An increase in 

treatment requirements will impose a greater burden on the environment by increasing power consumption and the 

disposal of treatment residuals from the chemical precipitation, reverse osmosis, and filtration processes required to 

meet the new standards. The nitrogen and phosphorus will be removed from the wastewater effluent, but still must be 

disposed of as part of the treatment residuals. 

Comment ID 1893.001.004 

Author Name: Waite S. 

Organization: 

Our estuaries are last next year? Phosphorus limits should be calculated now too. Sewage outfall is a disgusting 

method (being sent out to tide). In this day of technology there must be a thorough safe way to treat it, at a reasonable 

cost. Science has the genious to make a practical way to protect the water ways etc. I for one expect excellence and 

accountability to all of us. 

11/19/2010 02:48 PM EST 2-1725
 
Chapter 2 - Comment Documents Background 

Response 

Comment ID: 0503.001.002 

Response: In response to the comment, EPA notes that section 303(c) of the Clean Water Act directs states to revise or adopt water 

quality standards for their navigable waters. Section 303(c)(2)(A) and EPA’s implementing regulations at 40 CFR part 131 require, 

among other provisions, that state water quality standards include the designated use or uses to be made of the waters and the 

criteria that protect those uses. Water quality criteria are derived to protect the designated uses of waters. Criteria are not set at 

levels based on whether they are affordable for dischargers to meet. Nonetheless, the water quality standards program is equipped 

to recognize and respond with flexibility in cases where affordable technology limitations are insufficient to meet water quality 

targets. The State may use existing (or propose in the future) regulatory relief mechanisms that allow implementation flexibility 

where demonstrated to be appropriate. See the preamble to the final rule, in particular section V. Alternative Regulatory 

Approaches and Implementation Mechanisms, which describes the tools the State has at its disposal to exercise flexibility such that 

the rule is not a one-size-fits-all rule. 

Comment IDs: 0508-1.001.005, 0629.001.003, 0640.001.006, 0661.001.007, 0666.001.003, 0679.001.007, 0701.001.004, 

0703.001.002, 0714.001.003, 0716.001.002, 0732.001.006, 0788.001.003, 0821.001.005, 0822.001.006, 0822.001.011, 

0832.001.004, 0840.001.004, 0843.001.002, 0844.001.003, 0868.001.001, 0890.001.001, 0898-1.001.002, 0915-1.001.001, 

0947.001.002, 0949.001.005, 0951.001.006, 0961.001.001, 0993.001.001, 0997.001.008, 1007.001.002, 1098-1.001.008, 

1107.001.004, 1125.001.002, 1136.001.003, 1155.001.008, 1156.001.004, 1164-1.001.004, 1172.001.002, 1216-1.001.002, 1287­

1.001.006, 1301-1.001.012, 1304-1.001.047, 1304-1.001.050, 1304-1.001.052, 1304-1.001.053, 1304-1.001.054, 1305.001.002, 

1331-1.001.010, 1338-1.001.012, 1355-1.001.012, 1360-1.001.009, 1360-1.001.010, 1360-1.001.011, 1363-1.001.007, 1462­

1.001.011, 1550.001.003, 1556-1.001.005, 1564-1.001.004, 1564-1.001.008, 1615-1.001.024, 1641-1.001.011, 1647-1.001.031, 

1670-1.001.007, 1729.001.006, 1729.001.008, 1729.001.009, 1729.001.013, 1766-1.001.004, 1771-1.001.041, 1786-1.001.008, 

1786-1.001.039, 1786-1.001.041, 1786-1.001.043, 1786-1.001.044, 1786-1.001.045, 1787-1.001.014, 1792-1.001.004, 1796­

1.001.007, 1797-1.001.021, 1802-1.001.003, 1832-1.001.003, 1832-1.001.006, and 1832-1.001.007 

Response: In response to the comments, section 303(c)(2)(A) and EPA’s implementing regulations at 40 CFR part 131 require, 

among other provisions, that state water quality standards include the designated use or uses to be made of the waters and the 

criteria that protect those uses. The preamble to the final rule discusses the derivation of the numeric nutrient criteria, derived to 

account for the natural variability exhibited in Florida's lakes and flowing waters. EPA relied on an extensive amount of Floridaspecific data and technical analyses to derive scientifically defensible numeric nutrient criteria. EPA reminds commenters that 

water quality criteria are set to protect the designated uses of waters. Criteria are not set at levels based on whether they are 

affordable for dischargers to meet. 

Nonetheless, the water quality standards program is equipped to recognize and respond with flexibility in cases where affordable 

technology is insufficient to meet water quality targets. If the facilities receive end-of-pipe limits based on criteria that are below 

the level of treatment of biological nutrient removal they would most likely examine the following alternatives: (1) the lakes criteria 

adjustment procedure (2) site-specific alternative criteria, (3) variances, (4) compliance schedules, or (5) UAAs and resulting 

changes to designated uses. See U.S. EPA 2010 Letter from Stephen Perkins, U.S. EPA Region 1, Director, Office of Ecosystem 

11/19/2010 02:48 PM EST 2-1726
 
Chapter 2 - Comment Documents Background 

Protection to Betsey Wingfield, Connecticut Department of Environmental Protection and CT DEP, 2010, Addressing EPA 

Concerns: CT NPDES Phosphorus Limits for an example of the types of flexibility EPA has granted to states. In the case that 

nonpoint source contributions are the limiting factor in a waterbody meeting the new criteria, the same alternatives would apply 

subsequent to implementation of reasonable and cost-effective best management practices according to Florida State procedures. 

Water quality standards, and EPA’s rule specifically, do not specify how to achieve protective levels. The State may use existing 

(or propose in the future) regulatory relief mechanisms that allow implementation flexibility where demonstrated to be appropriate. 

See the preamble to the final rule, in particular section V. Alternative Regulatory Approaches and Implementation Mechanisms, 

which describes the tools the State has at its disposal to exercise flexibility such that the rule is not a "one-size-fits-all" rule. In 

response to comments regarding the potential cost to Florida, please refer to the preamble of this final rule, specifically section VI. 

Economic Analysis, and EPA's “Economic Analysis of Final Water Quality Standards for Nutrients for Lakes and Flowing Waters 

in Florida,” located in the docket (docket ID: EPA-HQ-OW-2009-0956) for this rulemaking for cost estimates associated with 

implementation of EPA's numeric nutrient criteria and the assumptions upon which those estimates are based. 

Under the Clean Water Act (CWA), Florida Department of Environmental Protection (FDEP) is the primary agency responsible for 

determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to 

FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. EPA has 

worked closely with the State, providing technical assistance, along with funding to the State to support sampling and analysis of 

existing data, to address nitrogen/phosphorus pollution problems in Florida. EPA will continue to collaborate with FDEP as the 

State implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for purposes of the 

Clean Water Act. 

Comment IDs: 0646.001.005, 0949.001.007, 1107.001.004, 1305.001.004, 1645-1.001.022, 1670-1.001.009, 1729.001.018 

Response: In response to the comments, EPA disagrees with the premise that membrane treatment technologies will be required for 

all wastewater treatment plants and industrial dischargers (the term “membrane treatment technologies” is used primarily to refer to 

reverse osmosis (RO)). EPA refers commenters to the preamble of this final rule, specifically section VI. Economic Analysis, and 

EPA's “Economic Analysis of Final Water Quality Standards for Nutrients for Lakes and Flowing Waters in Florida,” located in the 

docket (docket ID: EPA-HQ-OW-2009-0956) for this rulemaking for cost estimates associated with implementation of EPA's 

numeric nutrient criteria and the assumptions upon which those estimates are based, including assumptions and expectations 

regarding reverse osmosis. 

Comment IDs: 0788.001.003, 0821.001.005, 0822.001.011, 1893.001.004 

Response: In response to the comments, EPA notes that on June 7, 2010, EPA and Plaintiffs filed a joint notice with the Court 

extending the deadlines for promulgating numeric nutrient criteria for Florida's estuaries and coastal waters, flowing waters in south 

Florida (including canals), and the downstream protection values for flowing waters into estuaries and coastal waters. The new 

deadlines are November 14, 2011 for proposal and August 15, 2012 for publishing a final rule for these three categories. This will 

allow EPA time to have the scientific methodologies for developing the numeric nutrient criteria included in EPA's November 2011 

rulemaking peer-reviewed by EPA’s Science Advisory Board. 

11/19/2010 02:48 PM EST 2-1727
 
Chapter 2 - Comment Documents Background 

Comment ID: 1084.001.005 

Response: In response to the comment, EPA agrees that numeric nutrient criteria will expedite the development of water qualitybased effluent limits for affected utilities. EPA believes that numeric nutrient criteria will create clear water quality expectations 

and easily measurable quantitative baselines to support stronger collaboration and more effective partnerships with both point and 

nonpoint source dischargers of nutrient pollution. 

Comment ID: 1564-1.001.004 

Response: Regarding the request for a delayed effective date pertaining to the numeric nutrient criteria for Florida’s lakes and 

flowing waters finalized in this rule, please refer to the preamble to the final rule, section III.E Applicability of Criteria When Final. 

II.D.1 - AGENCY DETERMINATION REGARDING FLORIDA 

Comment ID 0186-1.001.002 

Author Name: DuVal C. 

Organization: 

I question the apparent premise the EPA used for determining in January 2009 under section 303(c)(4)(B) of the Clean 

Water Act that numeric nutrient water quality criteria are needed for the State of Florida to meet the requirements of the 

Clean Water Act. The Department of Environmental Protection (DEP), the State of Florida, and numerous other 

organizations have worked over the past few years to establish quantifiable measures and processes for working with 

agriculture, industry, and conservation groups to maintain and improve Florida water quality. The proposed rule goes 

into great detail about the measures and accountability the State of Florida already has in place, including the Total 

Maximum Daily Loads program. However, the proposed rule scraps the science-based metrics used to establish water 

quality and proposes that Florida institute numbers-based nutrient criteria. 

Comment ID 0186-1.001.005 

Author Name: DuVal C. 

Organization: 

In fact, it appears the EPA's January determination was litigation-driven since your agency admits in the proposed rule 

that in August of 2009, the EPA entered into a phased Consent Decree with Florida Wildlife Federation, Sierra Club, 

Conservancy of Southwest Florida, Environmental Confederation of Southwest Florida, and St. .Johns Riverkeeper that 

states that the EPA will impose numeric water quality criteria as part of the Consent Decree. 

11/19/2010 02:48 PM EST 2-1728
 
Chapter 2 - Comment Documents Background 

Comment ID 0487-1.001.004 

Author Name: Patashnik J. 

Organization: 

This example is emblematic of a broader problem with the EPA's notice: it provides virtually no explanation of why the 

agency has decided to preempt the state's independent rulemaking efforts, which would likely have sufficed to meet its 

statutory obligations under the CWA. Given the clear statutory preference expressed by Congress in section 303 for 

state-authored rules, with EPA involvement contemplated only as a last resort, EPA's failure to defer to FDEP is both 

puzzling and problematic. Trampling on Florida's extensive and expensive efforts sends a clear and perverse message 

to other states: there's no need to invest in CWA compliance, since the EPA is likely to step in, issue its own standards, 

and render the whole effort moot anyway. EPA's decision to ignore Florida's efforts could thus be a significant step in 

the direction of unilateral federal control over enforcement of the CWA, a result directly at odds with congressional 

intent. 

In this case, it appears that the direct impetus for EPA's decision to issue its own standards and override the state 

rulemaking process was a Consent Decree entered into by the federal government in litigation with environmental 

groups over nutrient pollution standards. Florida Wildlife Fed'n v. Jackson, No. 4:08-cv-00324-RH-WCS (N.D. Fla. Aug. 

19, 2009) (consent decree), available at http://www.earthjustice.org/library/legal_docs/env_defense-434740-v1­

fwf_v_epa_- _signed_cd.pdf. But the relevant conclusion to be drawn is not that EPA was thus justified in ignoring the 

diligent efforts made by FDEP to comply with the CWA. Rather, the lesson is that EPA should avoid entering into 

consent degrees that require it to undermine principles of federalism and usurp the rightful functions of state 

environmental agencies. 

Comment ID 0549.001.001 

Author Name: Friend J. 

Organization: 

I attended the Feb. 17, 2010 hearing in Orlando on the EPA's intrusion into the State of Florida. This note is to express 

my opposition to any federal attempt to usurp states' rights in this manner. Florida has its own DEP and is spending its 

money to protect our resources to the satisfaction of our residents. We don't need Washington telling us how to live. I 

would support a constitutional challenge to any EPA ruling re: Florida's waters. 

Comment ID 0574.001.001 

Author Name: Hall S. 

Organization: 

It has been 12 years since since EPA first directed states to set specific limits for nutrients. In 1972, Congress passed 

11/19/2010 02:48 PM EST 2-1729
 
Chapter 2 - Comment Documents Background 

the Clean Water Act to protect our nation's lakes, rivers, streams and wetlands from unregulated pollution and 

destruction. But after decades of weak enforcement and poor court decisions, our waterways are more vulnerable than 

ever. Needless to say that we need to protect people's health, aquatic life and the long term recreational uses of 

Florida's waters, which are a critical part of the state's economy. In 2009, EPA entered into a consent decree with the 

Florida Wildlife Federation to propose limits to this pollution. The proposed action, released for public comment and 

developed in collaboration with the state, would set a series of numeric limits on the amount of phosphorus and 

nitrogen, also known as "nutrients," that would be allowed in Florida's lakes, rivers, streams, springs and canals. 

Comment ID 0597.001.006 

Author Name: Hecker J. 

Organization: Conservancy of Southwest Florida 

/ AS THE DEPT. OF ENVIRONMENTAL PROTECTION, THE FDEP SHOULD BE ACTIVELY PROVIDING SUPPORT 

FOR THIS IMPERATIVE STEP TOWARDS RESTORING OUR WATER QUALITY. IN LEUI OF THEM DOING SO 

HOWEVER, IT IS APPROPRIATE FOR EPA TO STEP IN AND ENSURE THE CLEAN WATER ACT IS PROPERLY 

IMPLEMENTED IN FLORIDA. 

Comment ID 0601.001.001 

Author Name: Kelley H. 

Organization: 

Fort Walton Beach is the home of the newest wastewater plant in the United States. On behalf of the Fort Waltan Beach 

Tea party, we would like to register our objection to these proposed regulations. 

The litigation that was filed to create this issue does not in our opinion, have any basis in supportable science, and we 

question the EPA's right to adjudicate this matter based on the 10th amendment. The Fort Waltan Beach Tea Party 

supports responsible means to protect our environment, and our tax dollars going to build a new $60 million dollar 

waste water plant is tangible proof of our commitment. The EPA was not needed to approve this new facility, so we 

question how it can now inject itself into a state and local matter. 

Comment ID 0611.001.004 

Author Name: Hecker J. 

Organization: Conservancy of Southwest Florida 

As the Department of Environmental Protection , the DEP should be actively providing support for this imperative step 

towards restoring our water quality. In lieu of them doing so, however, it is appropriate for EPA to step in and ensure the 

Clean Water Act is properly implemented in Florida. 

11/19/2010 02:48 PM EST 2-1730
 
Chapter 2 - Comment Documents Background 

Comment ID 0613.001.002 

Author Name: Musgrove M. 

Organization: Florida Wildlife Federation 

This West Palm Beach hearing is being conducted in the heart of the former congressional district of the late Rep. Paul 

G. Rogers, author of the Clean Water Act. I knew Paul. He considered the Clean Water Act to be a crowning 

achievement and was pleased that it was used effectively to attack the problems of point-source pollution. I believe, he 

would be equally pleased with the approach outlined in the Jan 14, 2009 letter to Mike Sole, secretary of the Florida 

Department of Environmental Protection, from Benjamin H. Grumbles, assistant administrator of EPA for attacking "nonpoint source" pollution that has and is continuing to overwhelm our water bodies. 

Comment ID 0620.001.006 

Author Name: Kelly H.
 

Organization: Fort Walton Beach Tea Party
 

The EPA was not needed to approve this new facility, so we question how it can now inject itself into a state and local 

matter. 

Comment ID 0623.001.008 

Author Name: Null M.
 

Organization: City of Green Cove Springs
 

The City Council urges the Congressional Delegation in the state of Florida to take the necessary steps to delay 

promulgation now and until the completion of the implementation of the current TMDL -- (inaudible). 

The City Council urges Assistant Administrator, Mr. Grumbles, to retract the letter submitted on January 14, 2009. 

Done and resolved by the City Council of Green Cove Springs, the second day of February, 2010. 

Comment ID 0623.001.013 

Author Name: Null M.
 

Organization: City of Green Cove Springs
 

Now therefore, be it resolved by the City Council and City for Green Cove Springs that the City Council opposes 

11/19/2010 02:48 PM EST 2-1731
 
Chapter 2 - Comment Documents Background 

consent to agree to case number 408CV00324RH7VS. 

Comment ID 0627.001.004 

Author Name: Stephens N. 

Organization: Manufacturers Association of Florida, the Florida Minerals and Chemistry Counsel, and the Florida Poultry 

Federation 

EPA has advocated its responsibility for wellreasoned scientifically sound approaches to environmental protection to 

nongovernmental litigants. Development of policy by litigation circumvents statutory authority and violates all pretense 

of open government. The settlement negotiations were in stark contrast to the open process that are characteristic of 

Florida's regulatory programs. 

In this case, narrowly focused activist groups are determining EPA's priorities and allocation of resources rather than 

follow its statutory guidance. EPA should dedicate the resources misallocated to this process to support the Florida 

existing programs. 

Comment ID 0627.001.008 

Author Name: Stephens N. 

Organization: Manufacturers Association of Florida, the Florida Minerals and Chemistry Counsel, and the Florida Poultry 

Federation 

We all understand the value of clean water, but we must temper that with sound science, a deliberative process that we 

know in Florida, and sensitivity to cost. We believe EPA has failed to demonstrate the necessity for numeric nutrient 

criteria. The characterization of EPA's January, 2009, declaration as a necessity, termination does not meet minimum 

standards for such determination. 

Comment ID 0646.001.002 

Author Name: Griswold R. 

Organization: Destin Water Users 

The proposed rule is replete with innuendo, distortion, and arrogance. It is sorely lacking in science and completely 

divorced from reality. Furthermore, this proposed rule is crafted with the intention of misleading the Congress of the 

United States. Just to get to this point, the EPA may have conspired with special interest groups to mislead a federal 

judge. 

Comment ID 0648.001.002 

11/19/2010 02:48 PM EST 2-1732
 
Chapter 2 - Comment Documents Background 

Author Name: Castile C. 

Organization: 

I do hope that you will take the opportunity to really drill down into the science and work with the people in this room, on 

both sides of the lawsuit who have -- who have Florida's best interests at heart. 

Comment ID 0664.001.002 

Author Name: Steinbrecher P. 

Organization: JEA 

As you know, there was a federal consent decree in 1999 that resulted in the establishment of Florida's TMDL program. 

Under that consent decree, several dozen TMDLs for nutrients have been developed for Florida's waters, including 

nutrient TMDLs applicable to the lower St. Johns River, which flows through my community. These nutrient TMDLs 

have water body specific numeric end points right now. And these nutrient TMDLs have been approved by EPA 

already, very specifically approved as restoring and protecting Florida's waters from nutrient impairment. Moreover, 

under Florida's progressive TMDL legislation, these nutrient TMDLs are being implemented in a manner that goes well 

beyond what is required by the Federal Clean Water Act. 

Comment ID 0675.001.009 

Author Name: Childs D. 

Organization: FWEA Utilities Council, the FSAWA Utility Council, and the Florida Rural Waters Association 

We maintain that Florida does not need this federal intervention. 

Comment ID 0679.001.006 

Author Name: Vogel C. 

Organization: Florida Water Quality Coalition 

And one final ammunition that Secretary Sole made in his testimony was: Floridians be afraid. Now, fear is a very 

powerful motivator what you believe is right and more proper and equitable. And so maybe it's a good thing but to me it 

seems very disconcerting that we're hearing from officials in the state of Florida to Floridians that we need to be afraid 

of what the federal government is going to do to our state. Thank you. 

11/19/2010 02:48 PM EST 2-1733
 
Chapter 2 - Comment Documents Background 

Comment ID 0703.001.006 

Author Name: Morrissey J. 

Organization: Pinellas County Utilities 

Now, for suggestions as to what we should do, I realize you signed the consent order and you're under your time 

periods. But I think that it would be best if this rule could be returned to the Florida Department of Environmental 

Protection. (Applause.) They have a credibility with the citizens of Florida. They have an ability to develop that rule and 

they have an ability to make people make unpleasant choices and spend some money that is just going to be difficult 

for the Environmental Protection Agency to do. Thank you very much for your time. 

Comment ID 0706.001.001 

Author Name: Grace L. 

Organization: Space Coast Patriots 

However, I do believe in our state government. I do believe that they have done a wonderful job, the Department of
 

Environmental Protection, in protecting us and really I'm beginning to think that we need protection from our Federal
 

Government because what's happening here is blatantly unconstitutional.
 

(Applause.)
 

I know that my compatriot, Mr. Forward, passed to you the copies of our Constitution and I believe each of you probably
 

do respect it. But have you read it lately and have you looked at the Tenth Amendment? Which basically addresses the
 

fact that you don't really have any business in our Florida waters. You really don't.
 

And I know you probably have some knowledge that we could use in the State of Florida and we probably could move a
 

little faster. But I'll tell you this. I hope that today, I hope and pray that today that this will really move forth our
 

sovereignty in the State of Florida so that we can take back our state and get rid of this governmental intrusion and I
 

also hope that we can return to -- eventually to a constitutional government.
 

And if this means that people in the State of Florida need to sue at the Supreme Court level for our sovereignty
 

involving the EPA takeover of our Florida waters, well, I hope that the people will do that.
 

That's all I have to say. Thank you for coming.
 

MS. GRACE: And I hope you enjoy your time here, but please go home.
 

Comment ID 0713.001.004 

Author Name: Merriam C. 

11/19/2010 02:48 PM EST 2-1734
 
Chapter 2 - Comment Documents Background 

Organization: Orlando Utilities Commission 

I've been part of developing maximum daily loads and it is a cumbersome process. It's a very valuable process, but you 

have to have the right science to actually set the parameters. And, as some previous speakers have said, the ones who 

have to pay for this to understand what those parameters truly mean is extremely important. 

We respectfully request you consider the following comments as you proceed with your current rulemaking. One is 

consider if what you're proposing to fix throughout the state is truly broken. Let the State of Florida work with the 

municipalities and the taxpayers, frankly, to help decide what is best for the residents in the State of Florida. Ask if this 

proposed rulemaking will achieve the desired goals and what does victory look like. At the end of the day will the bar 

continue to move or will we know what the end of the process looks like. 

Comment ID 0714.001.004 

Author Name: Alexander J. 

Organization: Alico, Inc. 

And number three. It took until 2000, 2001 one for the EPA to publish technical guidance to develop nutrient criteria. 

The development plan entered into between the Florida DEP and EPA in July of 2004 to establish a numeric nutrient 

criteria for Florida, revised in 2007 and mutually agreed upon by the EPA was suddenly declared on January 14th, 

2009, and I quote, insufficient to ensure protection of the state's water bodies as required by the Clean Water Act, end 

quote. 

I'd like you to know that the Clean Water Act became effective October the 18th, 1972, almost 38 years ago. 

Comment ID 0714.001.006 

Author Name: Alexander J. 

Organization: Alico, Inc. 

We have made progress. We are making progress. We understand the problem and we are committed to doing even 

more. But I suggest that you let the Florida DEP continue its work to establish numeric nutrient criteria based on 

science and local knowledge in accordance with the Clean Water Act without specific dictation from Washington. 

(Applause.) 

Comment ID 0714.001.007 

Author Name: Alexander J. 

Organization: Alico, Inc. 

11/19/2010 02:48 PM EST 2-1735
 
Chapter 2 - Comment Documents Background 

The third thing relates to the agreements already reached in 2004, 2007 to develop and implement the numeric nutrient 

criteria for Florida. Sufficient time has not been spent to evaluate the information procedures already developed. Only 

nine years have gone by. I say where is EPA's word? Where is its bond? Where is what we refer to as full faith and 

credit of the United States? How lasting will be the next agreement that we cut with EPA? 

What I'm asking for today is five things. We want you to work with us to accomplish the purposes and goals of the Clean 

Water Act of 1972. We want clean water. And we are committed to achieve this in a responsible manner. 

Comment ID 0716.001.010 

Author Name: Coughenour F. 

Organization: Plant City 

And it seems like this is a much excessive overlapping regulation to accomplish that rule. Thank you. 

Comment ID 0720.001.003 

Author Name: Selph J. 

Organization: Citizens of Charlotte County Farm Bureau 

And, secondly, I oppose this because I still believe in the United States of America and the fact that we are states 

united, that the Federal Government is not the all-seeing, all-knowing omnipotent government that should be in charge 

of our lives. I think our own local and state agencies have done the job correctly and are doing it correctly. They're 

basing it on the best science, not necessarily what I see coming from y'all. 

You know, when the Federal Government takes care of things, just like they have taken care of our deficit, we've got a 

13-trillion-dollar deficit, and I really don't think EPA needs to be here taking care of this for us. 

Comment ID 0720.001.004 

Author Name: Selph J. 

Organization: Citizens of Charlotte County Farm Bureau 

Thirdly, I opposes this because I really believe as a citizen that you gave in to a small group that does not necessarily 

stand for what the citizens of this state want. Fourthly, I oppose this, that the state agencies are using the best available 

science, something I do not believe EPA is doing. 

Comment ID 0720.001.006 

11/19/2010 02:48 PM EST 2-1736
 
Chapter 2 - Comment Documents Background 

Author Name: Selph J. 

Organization: Citizens of Charlotte County Farm Bureau 

And I want to tell you, it hurts my feelings that EPA comes down and wants to tell us what to do, signs a legal 

agreement without the people of the State of Florida agreeing to that legal agreement. And I think you're wrong in that. 

Comment ID 0722.001.004 

Author Name: Story V. 

Organization: 

And, also, I would like to say that I hope you involve our government officials that represented government, that served 

this country very well for a long time. Thank you very much. 

Comment ID 0724.001.002 

Author Name: Kane D. 

Organization: Citizens for Constitutional Property Rights 

And I don't know where in the Constitution in the enumerated powers the Federal Government is given the right to have 

jurisdiction over the waters that are strictly in the State of Florida. And you've got the Tenth Amendment that says the 

powers not delegated to the United States by the Constitution nor prohibited to it by the States are reserved for the 

States respectively or to the people. So I just wonder if the EPA really has jurisdiction here. I wonder how they can 

enforce it. And I think the State of Florida DEP is really tough to work with. And I think that they can take care of our 

waters without redundant onerous and unscientific dictates coming down from Washington. And I just think that it's time 

for the citizens of the United States and the other states to be against things that are unconstitutional. We don't need 

this redundancy. We'll take care of it. We can take care of it ourselves. 

Comment ID 0724.001.004 

Author Name: Kane D. 

Organization: Citizens for Constitutional Property Rights 

But I am of the opinion that the State of Florida knows a lot more about what goes on in this state and how to take care 

of it than somebody in Washington or Kansas. 

Comment ID 0727.001.002 

11/19/2010 02:48 PM EST 2-1737
 
Chapter 2 - Comment Documents Background 

Author Name: Kelter M. 

Organization: Green Cove Springs 

We have a number of objections to this rule. First, 80 days after our communities in Northeast Florida committed their 

treasuries to the tune of 700 hundred million dollars to remove nutrients from the Lower St. Johns River pursuant to 

what are Florida TMDL rules. The U.S. EPA Administrator wrote a letter of determination stating that Florida's TMDL 

program was not working and that we needed the Federal Government to tell us how to clean up Florida waters. Ouch. 

That hurts, 80 days when you're trying to design a bill. 

Comment ID 0728.001.003 

Author Name: Van Horn J. 

Organization: Flagler Estates Road and Water Control District 

In closing, I would like to encourage the EPA to allow the State of Florida to do what is best for Florida. I believe the 

State of Florida knows better than anyone else, including EPA, what will work best for our environment, our people and 

the state. Thank you very much. 

Comment ID 0732.001.003 

Author Name: Fulford C. 

Organization: Congressman Adam Putnam 

While the Florida Department of Environmental Protection has already established nutrient criteria, many years ago the 

agency was in the process of developing numeric standards at the time the Environmental Protection Entered into a 

consent degree with EarthJustice. 

Despite the difficulty in establishing numeric standards, DEP moved forward with EPA on an EPA-approved plan to 

establish numeric standards by the year 2010. However, in August 2009 EPA voluntarily entered into a consent decree 

with EarthJustice without consent or consultation with DEP. The resulting acceleration time line prevented DEP from 

gathering additional useful data for protecting Florida's waters. 

Comment ID 0732.001.009 

Author Name: Fulford C. 

Organization: Congressman Adam Putnam 

In conclusion, I would once again urge EPA to truly collaborate with DEP in developing a table of numeric nutrient 

standards. To date, the only collaboration I have seen is between EPA and a few litigants. 

11/19/2010 02:48 PM EST 2-1738
 
Chapter 2 - Comment Documents Background 

Comment ID 0736.001.004 

Author Name: Walkinshaw J.
 

Organization: Hillsborough River Watershed Alliance
 

I think it's very important if we're going to get more working as a team than we are to just to have somebody come in 

with some numbers and set things for you. We know best here in Florida. 

Comment ID 0738.001.002 

Author Name: Stewart R.
 

Organization: Florida Pulp and Paper Association
 

There's a misperception that DEP was not proceeding along the lines of rulemaking. And I had the opportunity to speak 

to the Office of Management and Budget in Washington. And I told them just the opposite. We were about ready to 

adopt this rule as final in Florida. And I'm not real sure why EPA had to step in in August of 2009 and sign a consent 

order when Florida was ready to implement its own rule. 

Comment ID 0740.001.002 

Author Name: Lee C. 

Organization: Audubon of Florida 

So we are personally glad that you are here. And we would note that it's not lost on us when we talk about the 

Everglades, which now has 10-part-per-billion phosphorous standard adopted, that started with the necessity of a 

federal lawsuit and federal consent decree before the state would sit up and listen and we would move into that arena. 

And so it is somehow sort of consistent with history that we are here following a federal consent decree. 

Comment ID 0748.001.002 

Author Name: Godlewski V.
 

Organization: City of Orlando Wastewater Division
 

One of the things that we find lacking in this present rule is any assistance to local governments. We try to abide by the 

rules that are promulgated. So we would suggest that you consider that. I know that's going to be a tough one. 

Comment ID 0751.001.002 

11/19/2010 02:48 PM EST 2-1739
 
Chapter 2 - Comment Documents Background 

Author Name: Grigsby W. 

Organization: 

So I would ask that we all come together, all the stakeholders, the scientists, the attorneys, and let's try and work 

something out that will work for everybody and that we can make work. And we all want it to work. And I think that is 

what you heard today and yesterday, is everybody wants our water clean in our area. Nobody wants to have a problem 

with that. 

So, with that, I'll leave and I thank you all again very much. 

Comment ID 0766.001.002 

Author Name: Mattiacci T. 

Organization: City of Lakeland Water Utilities Department 

Several decades ago the Federal Government would be able to easily enact this type of regulation without challenge, 

but during the 1990s, there had been some court cases that kind of limited the Federal Government's ability to burden 

the states. 

I think to survive the legal challenges that are already coming in on this issue, the EPA is going to have to, more or less, 

have a compelling federal interest, narrowly tailored with least restrictive means in response to Florida not taking 

reasonable means to self regulate itself. 

I don't think Florida is doing that. I think they're waiting both sides of the issues, the cost versus regulation and how to 

do that. But Florida has already been a leader in environmental stewardship. Florida enacted Grisso fate (phonetic) 

almost a generation ago. Florida has led the United States in environmental regulation. They collected a lot of data. 

And, unfortunately, right now the U.S. EPA is using this information that Florida collected to Florida's detriment against 

our federalist principles. 

No matter how much is tried, we are not going to go back to pre-Columbian levels with 18 million people living in the 

State of Florida. The Federal Government should require Florida to self regulate. And if Florida does not self regulate, 

impose sanctions using the spending clause of the Constitution and not give Florida any money, or be prepared to 

impose the same draconian principles or draconian limits throughout the United States that you're getting ready to enact 

in Florida. Thank you. 

Comment ID 0768.001.002 

Author Name: Wood J. 

Organization: 

11/19/2010 02:48 PM EST 2-1740
 
Chapter 2 - Comment Documents Background 

And, no, we're not happy that the EPA is here. I don't think you belong here. I think DEP can do the job very well. I've 

worked with DEP in agriculture on various issues. I've worked with DEP as a property owner on a lake. I've seen what 

they can accomplish. I know what they can accomplish. 

And I don't think the Constitution of the United States gives you-all the right to be here. I'm in total disagreement of you 

being here. And I hope that somebody puts a lawsuit for an injunction to stop it. This is just unbelievable and unAmerican in my opinion. And the only way for us to change it as citizens of this land is, I guess, just vote our 

congressmen out and get someone in there who will listen to us because the ones we've got don't seem to want to. 

Comment ID 0770.001.007 

Author Name: Wheeler B. 

Organization: Tohopekaliga (Toho) Water Authority 

Following EPA's letter of January 14th, 2009 informing Florida of the adoption of the numeric nutrient criteria if 

necessary, FDEP submitted a revised nutrient criteria development plan in March of 2009 with an implementation 

schedule that appeared to be only 12 months longer than the schedule that EPA has proposed. Today, apparently, the 

DEP's work is no longer considered feasible and progressive. 

Comment ID 0773.001.006 

Author Name: Kelly R. 

Organization: Southern Dr. Phillips Homeowners Coalition 

And then we see you coming into Florida working diligently to meet some schedule for a lawsuit and overruling our own 

Florida EPD that's been doing a fine job trying to reach its own water quality standards. 

Comment ID 0782.001.003 

Author Name: Compton P. 

Organization: Friends of the Hillsborough River 

Now, you've heard some people tonight say you all shouldn't be here. I think we settled that about 1865; the Federal 

Government has a role in the state's business. 

I've heard people say there's a rush doing this. Well, it took five years to study Hillsborough River. That seemed like a 

long time. This has taken us 12 years, since 1998. Did we even know what a digital phone or a digital camera was back 

then? 

You know, we can do this. The State could have done this. 

11/19/2010 02:48 PM EST 2-1741
 
Chapter 2 - Comment Documents Background 

Comment ID 0784.001.004 

Author Name: Morrell B. 

Organization: Florida Engineering Society 

So I will just leave it at that. I think that the EPA has had to rush to come up with these numbers, and I don't think 

they're really ready for prime time. I would urge you to slow down. It has a big impact in Florida. And also, I think this is 

going to have national implications and it's worthwhile to slow down and try to make it right. Thank you. 

Comment ID 0786.001.012 

Author Name: Veaudry K. 

Organization: Florida Native Plant Society 

EPA's goal to provide a challenging but realistic incremental framework to establish appropriate control measures will 

allow Florida to retain full aquatic protections for its water bodies while establishing a transparent, organized-phased 

approach that would result in planned implementation of enforceable measures, which we currently do not have now 

and need. 

Comment ID 0810.001.001 

Author Name: Hammock A. 

Organization: 

Thank you for coming here today to hear our comments. I'm a small farmer who is currently meeting -­

Alan Hammock. Sorry. My heart is about to jump out of my chest. I'm a small farmer who is currently meeting best 

management practice required by the Florida Department of -- DEP. Now EPA proposes rules that will devastate my 

family farm and all farming in Florida, rules that came from a consent decree, not from a court. 

Comment ID 0836.001.004 

Author Name: Boyd B. 

Organization: 

I would ask that perhaps you could approach it on a state level and go back to the state and say listen, we want to 

partner with you, we want to give you incentives, not punitive damages. We want to give you helpful hints on how you 

could direct our energies and efforts because we want clean water. I don't know anybody who doesn't want clean water. 

Nobody's arguing that point. It's just how we're accomplishing it. And if the things haven't worked in the past, maybe 

11/19/2010 02:48 PM EST 2-1742
 
Chapter 2 - Comment Documents Background 

there has to be a new think tank of how you deal with the state so the state can deal with the county and the county can 

deal with the city and the city could come out to guys like me and say this is how it's going to have to be done. But right 

now I would see, if everybody's going to be held to these numbers, we're going to have one number against another 

neighbor, a business against a neighbor, a business against a city, a city against a city, a city against a city, a county 

against the county, county against the state, state against the state. Shoot, we're already fighting with Georgia over this, 

over water. So unless we have some way of dealing with this in a more practical way, it seems to me that we've got a 

huge blanket of legislation which is going to be very, very difficult for people to adhere to, setting aside the finances of it. 

Maybe there could be some partnering and some direction, whether it's incentives or who's paying for what, but you 

could put some pressure on the state of Florida to start accomplishing this because we want the water to be clean. We 

all live here, we all use it. We want it to be here for our children. Thank you for your time. 

Comment ID 0844.001.006 

Author Name: Waldron M. 

Organization: Highland Greenhouses Delray Plants 

We agree that the EPA should collaborate with the Florida Department of Environmental Protection in developing 

attainable numeric nutrient standards as urged by Congressman Adam Putnam. And to quote Congressman Putnam, 

"To date the only collaboration I have seen is between EPA and a few litigants." 

Comment ID 0849.001.006 

Author Name: Ryan J. 

Organization: Loxahatchee Groves Water Control District 

Your Consent Decree also seems a little too convenient as a reason to act arbitrarily with safe and unrealistically 

expensive criteria for total nitrogen, phosphorus and chlorophyll A that you are proposing. I would object as part of that 

Consent Decree to EPA paying plaintiffs' attorneys fees if the plaintiffs were encouraged in any way to file that lawsuit 

just for that purpose. Thank you. 

Comment ID 0864.001.002 

Author Name: Poulson T. 

Organization: Friends of Loxahatchee Natural Wildlife Refuge 

Florida has had ample time to do this work. And if it weren't for the suits and the EPA coming forth I don't believe we 

would even be here tonight. 

Comment ID 0883.001.002 

11/19/2010 02:48 PM EST 2-1743
 
Chapter 2 - Comment Documents Background 

Author Name: Lynch T. 

Organization: Palm Beach County League of Cities, Inc. 

WHEREAS, although the Board recognizes the critical importance of clean waters, it is believed that the rules currently 

under review have been proposed in reaction to a lawsuit filed against the EPA administrator by a number of 

environmental organizations in Florida alleging that the agency had failed to comply with its responsibility under the 

Clean Water Act to force the State of Florida to expeditiously adopt numeric criteria; and 

WHEREAS, while the Board acknowledges the necessity of the adoption of new rules to maintain the highest quality of 

waters throughout the State of Florida, it appears that the deadlines proposed are really litigation driven as opposed to 

being based on scientific needs or technical procedures; and 

Comment ID 0895.001.015 

Author Name: Commenter Anonymous 

Organization: 

Why would these new regulations be imposed? 

The regulations have not been developed openly through the people's elected representatives, but instead have been 

crafted by litigants and bureaucrats working behind closed doors as a result of a lawsuit filed by the group EarthJustice . 

Comment ID 0895.001.016 

Author Name: Commenter Anonymous 

Organization: 

How early could these restrictions be put in place? 

These regulations have already been released and are on track to become the law of the land and enforceable by the 

federal Environmental Protection Agency as early as October 2010. This deadline is driven by the ongoing litigation 

between the EarthJustice group, the State of Florida, the EPA and other Florida-based groups. 

Comment ID 0896-2.001.019 

Author Name: * * 

Organization: Lee County Board of County Commissioners 

11/19/2010 02:48 PM EST 2-1744
 
Chapter 2 - Comment Documents Background 

INTRODUCTION 

EPA is proposing "numeric water quality criteria" (the "Rule") pertaining to nutrient concentrations to protect aquatic life 

in lakes and flowing waters, including canals, within the state of Florida. In addition, EPA is proposing regulations to 

help Florida develop "restoration standards" for impaired waters. EPA's 1998 "National Strategy for the Development of 

Regional Nutrient Criteria" encouraged all states to adopt numeric nutrient water quality criteria as a more effective way 

to protect water resources from nutrient enrichment. 

Comment ID 0900-1.001.001 

Author Name: Milstrey G. 

Organization: Bureau of Water Assessment and Management, New York State Department of Environmental Conservation 

Thank you for the opportunity to comment on the proposed Water Quality Standards for the State of Florida's Lakes and 

Flowing Waters. New York views this proposal with great interest, as we are actively moving to propose nutrient criteria 

for our own ponded and flowing waters. 

Our comments reflect the concern that the approach that EPA is taking for Florida may have implications on the 

approach that is underway in other states. 

Comment ID 0901.001.004 

Author Name: Brant T. 

Organization: American Health Trust, Inc. and Santa Fe Lake Dwellers Association 

The proposed Numeric Nutrient Standards (NNS) will provide clear water quality goals and measurable quantitative 

baselines, making it easier to establish targets and eventually meet the requirements of the Clean Water Act. The EPA 

has proposed a range of standards that would be applied based on 4 watershed regions of Florida and the type of 

waterway. 

Comment ID 0928.001.001 

Author Name: Commenter Anonymous 

Organization: 

The Florida waterways is a state issue. It is not up to the federal gov't. to regulate standards for the waters in Florida, 

and the EPA has no business stepping in and taking over on something that they have little or no knowledge of. The 

State of Florida has been working to keep the balance needed in the Florida waters to where it should be.Leave it to 

those who know best, The people in Florida. 

11/19/2010 02:48 PM EST 2-1745
 
Chapter 2 - Comment Documents Background 

Comment ID 0941.001.001 

Author Name: Burnsky J. 

Organization: 

Why are you elevating one group of citizens over another by interfering with Florida's water supply? Don't you care 

about the people's Constitution? Aren't you supposed to uphold and defend it? Stand up for the proletariat by allowing 

the workers of Florida to take care of their own water supply. Allowing the Obama Regime to rule over the people's 

water will only serve to make them thirsty and continue their oppression by the Czars! 

Comment ID 0947.001.003 

Author Name: Alexander J. 

Organization: Alico, Inc. 

(3) it took until 2000 and 2001 for the EPA to publish technical guidance to develop nutrient criteria; the Development 

Plan entered into between FDEP and EPA in July 2004 to establish numeric nutrient criteria for Florida, revised in 2007 

and mutually agreed upon by EPA, was suddenly declared, on January 14, 2009, "insufficient to ensure protection of 

the state's water bodies as required by the Clean Water Act" (Please note the Clean Water Act became effective 

October 18, 1972, almost 38 years ago). 

Comment ID 0947.001.012 

Author Name: Alexander J. 

Organization: Alico, Inc. 

The third point relates to the agreements already reached in 2004 and 2007 to develop and implement the numeric 

nutrient criteria for Florida; sufficient time has not been spent to evaluate the information and procedures already 

developed . Guidance development of numeric nutrient criteria was developed by EPA in 2000 and 2001 . Only nine 

years have transpired since then, during which written agreements were agreed upon and entered into between the 

FDEP and EPA. Where is EPA's "word", its bond, that which we refer to as "the full faith and credit of the United States 

Government"? How lasting will be the NEXT agreement reached with the EPA? 

Comment ID 0949.001.001 

Author Name: Kelley H. 

Organization: Fort Walton Beach Tea Party 

The litigation that was filed to create this issue does not in our opinion, have any basis in supportable science, and we 

11/19/2010 02:48 PM EST 2-1746
 
Chapter 2 - Comment Documents Background 

question the EPA's right to adjudicate this matter based on the 10th amendment. The Fork Walton Beach Tea Party 

supports responsible means to protect our environment, and our tax dollars going to build a new $60 million dollar 

waste water plant is tangible proof of our commitment. The EPA was not needed to approve this new facility, so we 

question how it can now inject itself into a state and local matter. 

Comment ID 0955.001.005 

Author Name: Putnam A. 

Organization: United States House of Representatives 

While the Florida Department of Environmental Protection (DEP) had already established nutrient criteria many years 

ago, the agency was in the process of developing numeric standards at the time the Environmental Protection Agency 

(EPA) entered into its consent decree with Earthjustice. 

Despite the difficulty in establishing numeric standards, DEP moved forward with EPA on an EPA-approved plan to 

establish numeric standards by the end of 2010. However, in August 2009, EPA voluntarily entered into a consent 

decree with Earthjustice without consent of or consultation with DEP. The resulting accelerated timeline prevented DEP 

from gathering additional, useful data for protecting Florida's waters . 

Additionally, it is worth noting that even though EPA is using slightly different methodologies to determine water quality, 

they are relying on data DEP provided. EPA now seeks to impose federal regulations based on data obtained by state 

resources using methodologies with which state scientists disagree. Were it not for the scientific data Florida tax payers 

rightfully funded, EPA would not likely have enough information to move forward with these regulations. Now, these 

same tax payers will be punished by the unnecessary costs associated with the proposed regulations. This heavy 

handed approach is exactly why people have become frustrated with Washington bureaucrats. Unfortunately, these 

actions will have a chilling effect on other states, discouraging future collaborative efforts with EPA to restore our 

environment. 

Comment ID 0966.001.001 

Author Name: Bolam K. 

Organization: 

I would like to enter the following comment to the forum on the EPA's meetings in Florida. #1 Under what Constitutional 

Authority does the Federal EPA operate? Answer: There is no Constitutional Authority for the Federal EPA. The 10th 

Amendment gives all jurisdiction over the waters of the State of Florida to the EPA of Florida. #2, On June 27, 1997, 

the Supeme Court ruled that the Brady Bill was in fact unconstitutional. Justice Scalia wrote for the majority stating, 

"The Federal Government may not compel the states to enact or enforce a federal regulatory program." #3. Therefore, 

the State of Florida only needs to tell the Federal EPA to go back to Washington and STAY THERE. We are a 

Sovereign State, we formed the Federal Government, not the other way around. If our legislators understood the 

Constitution, we wouldn't be having this conversation. 

11/19/2010 02:48 PM EST 2-1747
 
Chapter 2 - Comment Documents Background 

Comment ID 0996.001.001 

Author Name: Scott T. 

Organization: 

I think you folks need to read and follow the Constitution. You have NO right to control Florida or any other States 

waterways. Your arrogance is astounding. 

Comment ID 0998.001.001 

Author Name: Rimbey G. 

Organization: Citizens for the Revitalization of Temple Terrace 

Clean-water rule 

No more rivers green as grass! 

Florida's had 10 YEARS to clean up its surface waters since the Environmental Protection Agency ordered it and other 

foot-dragging states to comply with federal law. The state spent millions on studies and was preparing a presentation 

for last August to scientists and industry leaders on how it intended to do so. But conservation groups, weary of the 

state's dawdling and the EPA's complacency, sued the federal government to force the issue. Under pressure, the EPA 

announced last January that it would impose for the first time its own nutrient-load standards on a state. Business and 

farm leaders in Florida sued to block the action, saying compliance would cost them billions. A federal judge last fall 

found their objection to EPA standards "premature" since the agency hadn't devised its standards. 

Comment ID 1008.001.004 

Author Name: Cann M. 

Organization: The Forest Country Club 

all florida ecology programs and mandates should be handled by the state and not the federal govt. solely because the 

state understands the ecological and financial impact such rules and regulations would have. 

Comment ID 1080.001.005 

Author Name: Angelucci B. 

Organization: 

11/19/2010 02:48 PM EST 2-1748
 
Chapter 2 - Comment Documents Background 

As a government agency concerned with the American environment and its impact on human health, it is imperative 

that you respond to our growing environmental concerns. You are responsible for establishing and enforcing 

environmental standards. And as a regulatory agency, I expect you to require the FDEP, Southwest Florida Water 

Management District, and other water agencies to abide by the regulations of the Clean Water Act. These agencies 

have been derelict in their responsibilities to protect our waters. 

Comment ID 1116.001.003 

Author Name: Bucolo B. 

Organization: 

And I want to say that E.P.A. mandate -- mandates are needed, of course, in the light of the State of Florida's inability 

and unwillingness to reliably and responsibly address water quality problems. 

Comment ID 1138.001.002 

Author Name: Waldo E. 

Organization: 

The question we have before us today is an interesting one. There are some questions that I'm -- things I am not going 

to talk about today. I'm not going to talk about the different legal arguments that are out there, whether this is a federal 

matter or a state matter, whether it's unfairly applied to a single state as opposed to all of them. 

I'm not going to talk about whether it violates the rights of the people in the Legislature by having the federal 

government ask those things. 

Comment ID 1179.001.004 

Author Name: Peterson M. 

Organization: Palm Beach County Soil & Water Conservation District 

So we don't need the EPA to come in and usurp our local government authority. We need to govern ourselves on a 

local level. 

Comment ID 1179.001.006 

Author Name: Peterson M. 

Organization: Palm Beach County Soil & Water Conservation District 

11/19/2010 02:48 PM EST 2-1749
 
Chapter 2 - Comment Documents Background 

"The legislature further finds that agricultural activities conducted on farmland in urbanizing areas are potentially subject 

to lawsuits, based on the theory of nuisance, and that these suits encourage and even force the premature removal of 

farmland from the agricultural use. It is the purpose of this act to protect reasonable agricultural activities conducted on 

farmland from nuisance suits." 

We thank you for your efforts today. I really appreciate your time. 

Comment ID 1189.001.003 

Author Name: Hushon J. 

Organization: 

My only suggestion would be reducing the 20-year implementation period. I'm not sure some of our water bodies can 

last that long without being cleaned up. I know if you bring in the interim criteria, that will help. 

Comment ID 1194.001.006 

Author Name: Spitzer K. 

Organization: Florida Stormwater Association 

It results, undoubtedly, in my opinion, in numerous, numerous new lawsuits. There is absolutely no doubt in my mind 

that we will be in administrative court or in circuit court or federal court for many years to come. And I do fear that it will 

end the coordination of Florida's water quality program with E.P.A. Regional 4. 

Comment ID 1197.001.010 

Author Name: Hecker J. 

Organization: Conservancy of Southwest Florida 

Also, due to the inherent flexibility of the water quality regulatory system that allows for mixing zones, site-specific 

alternative criteria, as well as a 20-year restoration standards expanded compliance timeline offered in the E.P.A. 

proposal, these standards are attainable from an implementation perspective as well. 

Comment ID 1216-1.001.005 

Author Name: Griswold R. 

Organization: Northwest Florida Utility Managers Council 

11/19/2010 02:48 PM EST 2-1750
 
Chapter 2 - Comment Documents Background 

If the EPA is really interested in improving water quality in the panhandle, the best thing they could do is simply leave us 

alone to continue our work. We call and will take care of ourselves and our environment. 

Comment ID 1217-2.001.024 

Author Name: Voyles J. 

Organization: Mosaic Fertilizer LLC 

d. EPA Lacks the Statutory Authority to Promulgate this Rule 

Respectfully, Mosaic believes it must go on record to state that in certain respects this Rule violates the Administrative 

Procedure Act, 5 U.S.C. § 706, because EPA has exceeded its statutory authority. EPA has not demonstrated that 

there is a necessity justifying its authority under 33 U.SC. § 1313(c)(4)(B) to promulgate this Rule, and EPA has not 

utilized "sound scientific rationale" in developing these criteria, as required in 40 C.F.R. § 131.11(a). Further, EPA lacks 

the authority to asserts its jurisdiction to regulate all of the waterbodies potentially covered by the Rule. Accordingly, 

Mosaic believes that the Rule, in addition to being arbitrary and capricious if not appropriately revised, constitutes 

agency action in excess of statutory jurisdiction and authority. 

Comment ID 1245.001.001 

Author Name: Compton P. 

Organization: 

I think it's very important for your -- for the E.P.A. to come in here because -- and help us in Florida, because our state 

legislature passed a resolution as you heard about, saying y'all go away. 

State legislature is also trying to undo what Pinellas County did and a lot of other counties up and down the gulf coast 

have done to reduce the nitrogen level and the phosphorus level in your waterways with residential fertilizer ordinances. 

11/19/2010 02:48 PM EST 2-1751
 
Chapter 2 - Comment Documents Background 

Comment ID 1250.001.002 

Author Name: Roth R. 

Organization: Florida Chamber of Commerce 

However, economic factors have not stopped regulators from kowtowing to environmental activists. In August of 2009, 

the E.P.A. entered into a consent decree with environmental groups led by the Florida Wildlife Federation. 

In response, the Florida Department of Environmental Protection suspended its process for establishing numeric water 

quality criterion. And during the past decade, they have spent over 20 million dollars to fully understand nutrient 

pollution and control. 

Florida is a national leader when it comes to water quality data, and D.E.P. was well into the process of working with 

regulated entities to set limits on nutrient loading to waters of the state. Standards are being met as a result of best 

management practices voluntarily agreed to by those being regulated, and D.E.P. has shared this success with E.P.A. 

Comment ID 1263.001.005 

Author Name: Rooks L. 

Organization: 

One question I have to ask is where is the constitutional rights of the broad-brush approach to these nutrient standards 

on the different water bodies and also the different water types -- I mean different land types. Because one -- one -- one 

doesn't fit all here in the state. So I'm concerned about those -- those requirements and what they -- the implications 

they may have to the citizens of Florida. I appreciate your time, and thank you. 

Comment ID 1301-1.001.003 

Author Name: Hodge R. 

Organization: Southeast Milk Incorporated 

Nonetheless, working with the TAC, the DEP produced a Numeric Nutrient Criteria Plan in September 2007 which 

outlined its approach for developing numeric nutrient criteria throughout the state. This plan was submitted to and 

generally agreed upon by the EPA. However, in July 2008, several environmental organizations in Florida filed a lawsuit 

in federal court against the EPA Administrator alleging that the agency had failed to comply with its responsibility under 

the federal Clean Water Act to force the state of Florida to expeditiously adopt numeric nutrient criteria. As a result of 

that lawsuit, in January 2009, EPA issued a detennination letter on the need and requirement of numeric nutrient criteria 

in Florida, basically requiring adoption of numeric nutrient criteria. EPA in August 2009 entered into a consent decree 

agreeing to promulgate such standards by January 2010 for lakes, streams and Class III waters; January 2011 for 

coastal waters). This was done with little coordination with Florida. It should be observed that these deadlines are 

11/19/2010 02:48 PM EST 2-1752
 
Chapter 2 - Comment Documents Background 

litigation-driven and not based on scientific or technical feasibility. 

In response to the need determination, DEP began the process of attempting to meet the EPA's "litigation driven 

timeline" and focused all of their resources to this effort. EPA was involved in many of the public hearings and also 

participated in the TAC meetings that were held to assist DEP in this effort. DEP prepared a draft rule with numeric 

criteria for streams and flowing waters based on a reference approach that broke the state into six regions with a plan to 

take their recommendation to the state's Environmental Regulation Commission (ERe) for approval in October 2009. 

DEP intended to offer up standards for lakes soon thereafter. It is important to note that DEP was unable to justify a 

standard for the South Florida region because of the very complex nature of manmade canals. 

In August 2009, EPA settled the court case and announced they were going to propose standards for the State of 

Florida. This was a shock to DEP and everyone else because DEP had made a good faith effort to meet the litigation 

driven deadline. In response to the consent decree, DEP suspended its rulemaking on numeric nutrient criteria. EPA 

issued the proposed rule in late January 2010. In March 2010, EPA by letter to DEP indicated it had delayed finalizing 

promulgation of the "downstream protection values," or DPVs with respect to downstream estuary protection and 

intended to address this issue in the 2011 estuary/coastal rulemaking. In addition, EPA announced it would seek 

additional third party review of the scientific basis for water quality standards to protect downstream estuarine and 

coastal waters. To date very little information has been disseminated with regards to EPA's proposed "third party 

review." SMI requests that EPA share its process of third party review with the public. 

Comment ID 1301-1.001.014 

Author Name: Hodge R. 

Organization: Southeast Milk Incorporated 

• The rule improperly infringes upon the authority of state and local government to adopt water quality standards and to 

manage public spending. 

Comment ID 1301-1.001.017 

Author Name: Hodge R. 

Organization: Southeast Milk Incorporated 

• The proposed standards, under Florida law, will not allow for reasonable moderating provisions. The proposed 

moderating provisions, then, cannot serve their apparent purpose. 

Comment ID 1304-1.001.034 

Author Name: Stewart J. 

11/19/2010 02:48 PM EST 2-1753
 
Chapter 2 - Comment Documents Background 

Organization: Florida Pulp and Paper Association Environmental Affairs, Inc. 

EPA lacks authority to repeal the existing standards in Chapter 62-302, F.A.C. Moreover, it would be irrational for EPA 

to adopt the proposed nutrient standard in light of these existing Florida standards which would directly conflict with the 

proposed regulation. 

Comment ID 1304-1.001.057 

Author Name: Stewart J. 

Organization: Florida Pulp and Paper Association Environmental Affairs, Inc. 

Legal Concerns 

There are many legal issues and concerns related to the standards that the EPA has proposed. As discussed above, 

these issues deal with a variety of federal and state laws. The primary concerns of FPPAEA and its members include 

fundamental flaws in EPA's notice and public participation processes, errors in separate legal requirements for the 

adoption of federal regulations, the lack of necessary relief mechanisms for nutrients in Florida, the importance of 

including important implementing provisions in the final rule to address site-specific circumstances, and the 

consideration of upstream states and dischargers. 

Comment ID 1307.001.003 

Author Name: Godbold J. 

Organization: Florida Farm Bureau 

I think we need to look at the standards that's been set. Let's make sure there's good science there. Let's look at what 

our state has done. Let's look at if there's a problem with the state, getting the job done. Let's, you know, look at that. I 

feel very strongly that we should do this on a state basis rather than having the federal government come in and take 

over where we have made so much progress, and to come back and look at how we can -- rather than use a big 

hammer and go to the courts, let's go back and look at education, work with the -­

Comment ID 1307.001.005 

Author Name: Godbold J. 

Organization: Florida Farm Bureau 

There's a lot of education that needs to be done. There should be something done here, and sort of rethink the 

mandatory big hammer of saying, well, it hasn't worked. You know, let's look at the science. Has it worked, or where it 

worked and where has it not worked and let's put some efforts in these areas. And I think all of us working together as 

cooperative effort, all of us affect that drop of rainwater that falls in our back yard and we all have an impact on it and 

11/19/2010 02:48 PM EST 2-1754
 
Chapter 2 - Comment Documents Background 

we all are concerned with it and we're all dependent upon it. Thank you very much. 

Comment ID 1310.001.003 

Author Name: Smith J. 

Organization: 

Is it now, after decades of cooperative involvement, that this has been in vain? Likewise, have the tireless efforts of our 

visionary governmental agencies been futile? 

Seemingly the efforts of all parties to maintain a harmonic balance of productive industry and fragile ecosystem are 

proving to be wasted. And now the vocation I love, the lifestyle I enjoy, the beautiful green space we have dutifully 

conserved and preserved, are now threatened or in jeopardy of losing its most proven caretakers. 

Comment ID 1317.001.008 

Author Name: Moore C. 

Organization: 

That brings up another point that I want to be sure and get in. And that is that I believe that we're raising a generation 

that's so bombarded with Earth Day and recycling and what's good for the environment and everything that it kind of 

throws things out of balance. And personally, me personally, I think when we call out and ask big government -- ask the 

federal government to come help us because we cannot help ourselves, we're in big trouble. That's how we ended up 

with the health care I guess we're going to have and everything. I guess I'm kind of a Tea Party type person where I 

think that the local people can take care of theirselves a lot better than a more expensive, more intrusive federal 

government can. 

Comment ID 1319.001.004 

Author Name: Bouyounes M. 

Organization: Bouyounes Turpentine and Kettle Company 

The current reactive TMDL framework is set up to trigger restoration of impaired waters, not to produce warning signals 

prior to this level of degradation. The point of the EPA approach is to avoid ever getting to this point. Setting 

scientifically -- excuse me, scientifically sound numeric in addition to narrative nutrient criteria should improve Florida's 

ability to address nutrient pollution. 

Comment ID 1325.001.006 

11/19/2010 02:48 PM EST 2-1755
 
Chapter 2 - Comment Documents Background 

Author Name: Ferreira J. 

Organization: 

I think one of the important things is that most homeowners and people aren't aware of the impact they're having on the 

environment. And it's really for regulatory agencies to step forward and create regulations that -- that encourage 

awareness or demand awareness and give the public the education that they're lacking. So I think most people are 

clueless and that there's really a need for an outside organization such as you to come in and create regulations that 

have teeth, you know, that have verifiable standards with numbers that will protect the fragility of our ecosystem. 

Comment ID 1326.001.005 

Author Name: Gramford N. 

Organization: 

We have five waterway classifications that are used to help determine the amount of pollution that can be discharged 

into our water bodies. Most of the waterways are considered to be Class III, meaning the water class will support 

recreation, healthy fish and wildlife. However, in 2009, the Florida Stormwater Association petitioned the DEP to create 

a new classification so that the local governments would not be required to improve their water systems. This is why we 

need you to come in and be the enforcer to develop these new standards that you're proposing for nitrogen and 

phosphorus for our waterways as they are needed. And I understand it varies over the state, but still these are needed. 

We really need to realize this classification system somehow. 

Comment ID 1328.001.003 

Author Name: Register L. 

Organization: 

(Brief pause.)
 

MR. KEATING: Keep going. Go ahead with your remarks.
 

MR. REGISTER: So I just wanted to say that farmers -- there's no way they can take on more expense. And besides
 

that, we need a definite definition of the waters that is to be regulated. We've heard it said that mud puddles is going to
 

be under control whether they're holding water or not, and things like that has really got us very nervous. Thank you for
 

your time.
 

Comment ID 1329.001.007 

Author Name: Assaf R. 

Organization: Florida Farm Bureau and Florida Cattle Association 

11/19/2010 02:48 PM EST 2-1756
 
Chapter 2 - Comment Documents Background 

So my summary is this. Florida is a national leader in protecting its waters. The EPA needs to support the state of 

Florida and not single us out for more aggravation. I don't think we can stand anymore "I" -- I'm from the government, 

and I'm here to help you -- programs. Somebody needs to read the mind of "We the people." 

Comment ID 1329.001.008 

Author Name: Assaf R. 

Organization: Florida Farm Bureau and Florida Cattle Association 

There is a Bible verse that says -- and I'll paraphrase -- "Woe unto ye lawyers. You put burdens on men grievous to be 

borne, but lift not a finger to help." That speaks to the lawyers that wrote it up and the lawmakers that put them up to it. 

And I might even add the bureaucrats that carry out the mandates and bring this before the law into the courts. I say all 

of this not to insult anybody, but I do encourage you to tell those that put you and EPA on this mission to hear out the 

populace, that the population is sick and tired of government continuously meddling in our lives and in our business. We 

have tea party meetings all over every major city in the United States today. People are tired. They're wore out. They're 

frustrated. We came to live in a nation -- in a land of peace and of freedom, and we're put upon every day. 

Comment ID 1333.001.002 

Author Name: Hauck A. 

Organization: Council of Civic Associations 

We believe that the EPA is implementing numeric nutrient criteria as a result of a settlement over a lawsuit filed by 

Earth Justice, not because they thought it was the right thing to do. Looking at recent history, which is important leading 

into my comments, the Everglades are an example of the utter breakdown of implementation of the Clean Water Act in 

Florida. 

Comment ID 1333.001.005 

Author Name: Hauck A. 

Organization: Council of Civic Associations 

EPA's track record is that they will work with the stakeholders to ease the implement impacts, which is code for 

essentially never requiring compliance or postponing compliance while the water resources continue to significantly 

deteriorate. In fact, Federal Judge Gold will be holding hearing in April, this month, to consider holding the EPA in 

contempt of court for their repeated failure to protect the Everglades. 

If EPA will not protect the Everglades with its already established numeric phosphorus criteria, why should we expect 

anything different? In a memorandum dated July 2nd, 2009, EPA administrator Lisa Jackson states: "Clean and safe 

water is a priority for this administration. The American public has a right to expect their water quality will be clean, and 

11/19/2010 02:48 PM EST 2-1757
 
Chapter 2 - Comment Documents Background 

EPA has an obligation to use its resources and authorities to the fullest to ensure this result. Too many of our streams, 

lakes, and rivers do not meet our water quality." 

Comment ID 1333.001.011 

Author Name: Hauck A. 

Organization: Council of Civic Associations 

She further says, "We are falling short of this administration's expectations for effectiveness of our clean water 

enforcement program." She says, "The first step is to improve transparency. Americans have a right to know how their 

government is doing in enforcing laws to protect the nation's waters." 

Comment ID 1334.001.006 

Author Name: Milicevic M. 

Organization: 

Instead of using a carrot to entice and help producers, landowners, and utilities to implement and clean up the waters of 

the state, EPA needs -- has decided to come in through the lawsuit and use a stick to force this mandate on the public. 

This approach is doomed from the start, as numeric criteria plan does not identify the problems, it does not identify the 

remedies to the problems, nor does it provide the financial means to obtain the solutions. The nutrient loading of the 

waters is a known fact, but to come in with unscientific, arbitrary numeric standards is not the answer. The only avenue 

that this is going to prosper is for the attorney's checkbook. 

Comment ID 1350-1.001.021 

Author Name: Schwartz J. 

Organization: American Forest & Paper Association 

I. Overview Of EPA's Proposed Criteria For Florida The State of Florida had invested over $19 million in gathering data 

on the quality of the waters in the state and in the development of nutrient criteria based on those data. In the midst of 

that rulemaking, EPA issued its Proposal to establish numeric nutrient criteria for Florida waters. EPA is taking this 

action because it has determined, pursuant to a settlement with several environmental organizations, that federal 

nutrient criteria in Florida are "necessary to meet the requirements of the Act." Clean Water Act, § 303(c)(4)(B). 

Pursuant to that settlement, EPA proposed numeric nutrient criteria for lakes and flowing waters [1] (to be promulgated 

in October 2010) and it will propose numeric criteria for estuarine and coastal waters in January 2011 (to be 

promulgated in October 2011). 

[1] There are four water body types in the "lakes and flowing waters" category: lakes, streams/rivers, springs and clear 

11/19/2010 02:48 PM EST 2-1758
 
 

 

 

Chapter 2 - Comment Documents Background 

streams, and canals in South Florida. 

Comment ID 1359-1.001.004 

Author Name: Andes F. 

Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality Coalition 

Based on these facts, the FWQC respectfully submits that the record does not support EPA's determination that 

Federal state-wide numeric nutrient criteria in Florida are necessary. As a result, EPA does not have the statutory 

authority to issue nutrient water quality standards for Florida's lakes and flowing rivers, and the proposed criteria should 

be withdrawn. 

Comment ID 1359-1.001.047 

Author Name: Andes F. 

Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality Coalition 

A. Federal Numeric Nutrient Criteria Are Not Necessary So EPA Has No Statutory Authority To Issue Federal Nutrient 

Standards In Florida. EPA's authority to issue water quality standards in an authorized state is found in section 

303(c)(4)(B) of the CWA, which authorizes EPA to issue regulations "setting forth a revised or new water quality 

standard" in any case where the Administrator of EPA "determines that a new or revised standard is necessary to meet 

the requirements of the Act." EPA issued such a determination for Florida on January 14, 2009, in a letter from 

Benjamin Grumbles, Assistant Administrator, EPA Office of Water, to Michael Sole, Secretary, Florida Department of 

Environmental Protection (hereinafter EPA Determination). Specifically, EPA determined that numeric nutrient criteria 

"are necessary to facilitate and expedite the identification of all nutrient impaired waters in Florida; thereby providing 

necessary protection for the State's designated uses, as required by the CWA." EPA Determination at 4-5. To support 

its determination, EPA faulted the case-by-case assessment procedure Florida had been following to determine 

whether there were imbalances in flora or fauna in waters with waters with lower levels of nutrients (waters with higher 

levels of nutrients were already deemed by the State to be impaired). EPA Determination, at 8. See also 75 Fed. Reg. 

at 4175 ("EPA determined that Florida's reliance on a case-by-case interpretation of its narrative nutrient criterion in 

implementing an otherwise comprehensive water quality framework of enforceable accountability was insufficient to 

ensure protection of applicable designated uses."). EPA essentially concluded that only state-wide numeric nutrient 

standards can meet the requirement in the CWA to protect designated uses of water bodies. This conclusion is not 

supported by the facts or the record in this rulemaking. 

Comment ID 1359-1.001.054 

Author Name: Andes F. 

11/19/2010 02:48 PM EST 2-1759
 
Chapter 2 - Comment Documents Background 

Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality Coalition 

V. RECOMMENDATIONS 

As noted above, EPA's Science Advisory Board has advised EPA that "[n]umeric nutrient criteria developed and 

implemented without consideration of system specific conditions (e.g., from a classification based on site types) can 

lead to management actions that may have negative social and economic and unintended environmental consequences 

without additional environmental protection." Draft SAB Report, at 37. 

To prevent these unintended consequences, EPA must adhere to the following principles when developing numeric 

nutrient criteria in Florida or elsewhere. 

First, EPA must be able to demonstrate why imposing federal state-wide nutrient criteria would be more consistent with 

the Clean Water Act than allowing a state to continue to protect water quality through the state's water quality 

management program. If EPA cannot make this demonstration, the federal criteria cannot be considered necessary, 

which is the statutory predicate for promulgating federal standards under section 303(c)(4)(B) of the Clean Water Act. 

Comment ID 1362-1.001.008 

Author Name: Herz W. 

Organization: The Fertilizer Institute 

PRINCIPLES FOR NUTRIENT CRITERIA DEVELOPMENT 

EPA's Science Advisory Board (SAB) has reviewed EPA's Empirical Approaches for Nutrient Criteria Derivation (draft 

EPA 2009). In their review of that guidance, the SAB advised EPA that "[n]umeric nutrient criteria developed and 

implemented without consideration of system specific conditions (e.g., from a classification based on site types) can 

lead to management actions that may have negative social and economic and unintended environmental consequences 

without additional environmental protection." See 1-8-10 Draft Science Advisory Board (SAB) Ecological Processes and 

Effects Committee Advisory Report, at page 37. 

To prevent these unintended consequences, EPA should adhere to the following principles when developing numeric 

nutrient criteria in Florida or elsewhere: 

First, EPA must demonstrate why imposing federal numeric criteria state-wide would be more consistent with the Clean 

Water Act than allowing a state to continue to protect water quality through its water quality management program. If 

EPA cannot make this demonstration, the federal criteria cannot be considered necessary, which is the statutory 

predicate for promulgating federal standards under section 303(c)(4)(B) of the Clean Water Act. 

Second, any federal criteria must meet the requirements of EPA's water quality standards regulations. This means the 

criteria must be set at a level that is necessary to protect designated uses (40 C.F.R. 131.2), must be based on a 

"sound scientific rationale," (40 C.F.R. 131.11(a)), and must be developed using "scientifically defensible methods" (40 

C.F.R. 131.11(b)). Accordingly, for specific waterbodies, EPA must establish on a cause-and-effect relationship 

11/19/2010 02:48 PM EST 2-1760
 
Chapter 2 - Comment Documents Background 

between the nutrient being controlled and the biological response that affects the designated use. In addition, for each 

waterbody, EPA must establish the threshold below which additional nutrient reductions will result in harm. 

Third, EPA must not promulgate nutrient standards below natural background levels. 

Fourth, EPA must not base its criteria on inappropriate models. 

Fifth, criteria should apply only if the specific nutrient is affecting plant growth. 

Sixth, criteria must set a level of protectiveness, not a load allocation. Specifically, federal criteria must not usurp sitespecific determinations of what concentration or loading of nutrients is protective, including determinations made 

through the TMDL process. 

Seventh, if EPA intends to apply its federal criteria in upstream states, it must fully engage those states in its rulemaking 

process. 

Eighth, EPA must recognize that federal criteria will be directly incorporated into permits, and therefore EPA's cost 

estimate must fully account for the costs of implementing its proposed standards, to dischargers, to agriculture, to city 

storm sewer systems, and to the State as a whole. Because nutrients are critical for food production, EPA's economic 

analysis also must also include the adverse economic impacts from reduced food production resulting from reductions 

in fertilizer use implemented as a management practice. 

Comment ID 1370-1.001.027 

Author Name: Hanson R. 

Organization: Orange County Utilities 

14. The Florida Department of Environmental Protection (FDEP) should continue to have primacy for developing and 

enforcing water quality standards. 

Comment ID 1370-1.001.031 

Author Name: Hanson R. 

Organization: Orange County Utilities 

18. The NNC adds an additional layer of bureaucracy that hinders the ability to implement restoration projects. 

Comment ID 1370-1.001.076 

Author Name: Hanson R. 

11/19/2010 02:48 PM EST 2-1761
 
Chapter 2 - Comment Documents Background 

Organization: Orange County Utilities 

In August, 2009 USEPA entered into a consent decree agreement with non-governmental environmental organizations 

which required USEPA to propose NNC for lakes and flowing waters within the State of Florida by January 2010. The 

agreement requires the criteria to be finalized by October 2010. The agreement also requires USEPA to propose NNC 

for estuaries and coastal waters by January 2011 and finalize the estuary and coastal waters criteria by October 2011. 

Tables 1, 2 and 3 summarize the NNC for lakes, flowing waters and springs, respectively proposed by USEPA. The 

proposed NNC must be met at the point of discharge (end-of-pipe) to impaired waterbodies without benefit of a mixing 

zone. It should be noted that in Table 2 only the criteria for the Peninsular Region are applicable in Orange County. 

The concentrations shown represent an annual geometric mean not to be surpassed more than once in a three-year 

period or as a long-term average. 

Original comment letter contains additional information in Table 1. USEPA Proposed Numeric Nutrient Criteria for 

Lakes, Table 2. USEPA Proposed Numeric Nutrient Criteria for Flowing Waters, and Table 3. USEPA Proposed 

Numeric Nutrient Criteria for Spings, Spring Runs and Clear Streams. See original comment letter. 

Comment ID 1372-1.001.003 

Author Name: Phillips L. 

Organization: Gunster, Yoakley & Stewart, P.A., Attorneys at Law on behalf of United States Sugar Corporation (USSC) 

I. BACKGROUND AND LEGAL AUTHORITY FOR NUTRIENT RULE 

On January 26, 2010, EPA published its Nutrient Rule in the Federal Register. EPA states that the purpose of the rule is 

to protect aquatic life in lakes and flowing waters, including canals within Florida, and to establish "restoration 

standards" for impaired waters. In its supplementary information, also published with the Nutrient Rule, EPA claims that 

the rule is the result of a phased Consent Decree with the Florida Wildlife Federation, Sierra Club, Conservancy of 

Southwest Florida, Environmental Confederation of Southwest Florida and the St. John's Riverkeeper. This Consent 

Decree, per EPA, commits EPA to proposing numeric criteria for lakes and flowing waters in Florida by January 14, 

2010. EPA further states that this Consent Decree requires EPA to issue a final rule by October 15,2010 for lakes and 

flowing waters in Florida. 

Regardless of the requirements in the above referenced Consent Decree, EPA must still adhere to the Clean Water Act 

and the Federal Administrative Procedures Act in order to properly promulgate the Nutrient Rule. The CWA provides 

EPA and the States with the authority to set water quality standards. The Act requires States to develop standards that 

"protect the public health or welfare, enhance the quality of water and serve the purposes of the Clean Water Act." 

[Section 303(c) (33 USC 1313 (c»]. Section303(c)(2)(A) and EPA's implementing regulations, at 40 CFR part 131, 

require that water quality standards include the designated uses to be made of the waters and criteria that protect those 

uses. EPA's regulations provide that states shall "adopt those water quality criteria that protect designated use" and that 

such criteria "must be based on sound scientific rationale and must contain sufficient parameters or constituents to 

protectthe designated use." [40 CFR 131.11(a)(l)]. 

Generally, states are empowered to develop water quality criteria for their State and EPA is required to review and 

11/19/2010 02:48 PM EST 2-1762
 
Chapter 2 - Comment Documents Background 

approve those standards. EPA may develop standards if it finds that state developed standards are not consistent with 

the Act, or if EPA determines a revised or new standard is necessary to meet the requirements of the Act. [33 USC 

1313 (c)( 4)]. On January 14, 2009, EPA purportedly made its determination under the Clean Water Act that numeric 

nutrient water quality criteria for lakes and flowing waters were necessary for Florida to meet the requirements of the 

Clean Water Act Section 303(c). As such, EPA is also bound to develop water quality standards that protect the 

designated use and use sound science in doing so. 

Comment ID 1416-1.001.004 

Author Name: Alves J. 

Organization: Florida Electric Power Coordinating Group, Inc. 

2. Florida Does Not Need the Federal NNC Standards 

(a) EPA Has a Limited Role 

Congress specifically articulated its intent "to recognize, preserve, and protect the primary responsibilities and rights of 

States to prevent, reduce, and eliminate pollution, [and] to plan the development and use (including restoration, 

preservation, and enhancement) of land and water resources...." CWA § 101(b) (Emphasis added.) More specifically, 

Congress gave the states "primary authority" over water quality standards because it was "[c]oncemed that federal 

promulgation would discourage state plans for water quality and 'would place in the hands of a single federal official the 

power to establish zoning measures over to control the use of land within watershed areas' throughout the nation." 

Miss. Comm'n on Natural Res. v. Castle, 625 F.2d 1269, 1272 (5 th Cir. 1980) (citing H. Rep. 215, 89th Cong., 1st 

Sess., (1965)). Further, Congress "recognize[d] that the States should have a significant role in protecting their own 

natural resources" and thus gave states "a strong voice in regulating their own pollution." Int'l Paper Co. v. Ouellette, 

479 U.S. 481, 489-90 (1987). (Emphasis added.) 

Consistently with the states' primary role, Congress authorized EPA's imposition of federal standards only if EPA first 

conclusively determines such new standards are "necessary." CWA § 303(c)(4)(B). Such federal action has been rare 

and extraordinary; as EPA itself has noted, "[f]ederal promulgation of state water quality standards should be a course 

of last resort. It is symptomatic of something awry with the basic statutory scheme." 57 Fed. Reg. 60858 (December 22, 

1992). (Emphasis in original.) In exercising its limited authority under CWA § 303(c)(4)(B), EPA must be mindful of its 

obligation "to prevent needless duplication and unnecessary delays at all levels of government." CWA § 101(f). 

Comment ID 1416-1.001.010 

Author Name: Alves J. 

Organization: Florida Electric Power Coordinating Group, Inc. 

It turns out that an explanation is available, and an underlying reason for the necessity determination had little to do with 

water quality concerns in Florida. In a memo dated December 22,2008, Assistant Administrator Luis Luna made the 

11/19/2010 02:48 PM EST 2-1763
 
Chapter 2 - Comment Documents Background 

case for a necessity determination as follows: 

EPA does not agree with the plaintiffs' allegation that we made a CWA determination in our 1998 Strategy [1] that 

numeric nutrient criteria are necessary for Florida to meet the requirements of the CWA. There is, however, some risk 

that the court could agree with the plaintiffs that the 1998 Strategy constitutes a CWA determination that nutrient criteria 

are necessary in Florida. Such a ruling could spur similar litigation in other states. Presently, 49 states have one or 

more 303(d) listings for waters impaired by nutrients. 

The litigants have highlighted that water quality in Florida is declining due to nutrient pollution and that numeric criteria 

are needed to address the environmental degradation. In response to this lawsuit, we believe that we should collect and 

analyze nutrients-related information pertaining to Florida and decide whether to make a Section 303(c)(4)(B) 

determination that revised nutrient standards are necessary for the State of Florida to meet the requirements of the 

CWA. Making such a determination could give EPA a basis to propose a settlement to the plaintiffs or to request that 

the court dismiss the case. While making a determination may not resolve the litigation, we believe it is an option we 

should seriously consider and therefore are requesting delegation of authority. A CWA Section 303(c)(4)(B) 

determination can only be made by the Administrator or the Administrator's duly authorized delegate. (Emphasis 

added). 

In other words, EPA was extremely motivated to avoid the precedential impact associated with a lawsuit, and this memo 

asserted that the potential adverse precedent could be avoided by independently concluding that NNC are "necessary" 

in Florida.[2] 

[1] Plaintiffs initially alleged that EPA's 1998 National Strategy for the Development of Regional Nutrient Criteria was the 

document serving as a necessity determination; in their first amended complaint, the plaintiffs alleged that it was a 1998 

Clean Water Action Plan, coauthored with the U.S. Department of Agriculture. that was the document triggering EPA' s 

mandatory duty to promulgate numeric nutrient criteria for Florida. 

[2] The adverse precedent that EPA sought to avoid would have required EPA to develop NNC in all of the other states. 

In essence, EPA concluded that requiring NNC in Florida on an "independent basis" could avoid precedent requiring all 

other states to have NNC. 

Comment ID 1416-1.001.011 

Author Name: Alves J. 

Organization: Florida Electric Power Coordinating Group, Inc. 

Assuming (very generously) that EPA personnel thereafter worked exclusively on Florida water quality 

assessment/nutrient impacts issues full-time over the Christmas and New Years holidays as well as most weekends, 

this left just three weeks to "collect and analyze nutrients-related information pertaining to Florida and decide whether to 

make a Section 303(c)(4)(B) determination that revised nutrient standards are necessary for Florida" by January 14, 

2009. EPA's abbreviated necessity determination, rather obviously, was neither a thoughtful nor deliberative process. 

Moreover, EPA provided no opportunity for input by stakeholders in Florida on this important issue, in violation of CWA 

11/19/2010 02:48 PM EST 2-1764
 
Chapter 2 - Comment Documents Background 

§ 101(e) (requiring "public participation" in the "development and revision" of any regulation). This backdrop explains 

the significant shortcomings that continue to weigh so heavily on EPA's rationale for imposing federal NNC on Florida. 

Comment ID 1416-1.001.012 

Author Name: Alves J. 

Organization: Florida Electric Power Coordinating Group, Inc. 

In sum, EPA apparently sacrificed Florida's "impressive" water quality standards program to give itself "a basis", to 

avoid the "risk that the court could agree with the plaintiffs." The fundamental weaknesses in EPA's official rationale for 

the necessity determination, as published one year later in the Federal Register, is an artifact of EPA's inappropriate 

starting point. 

Comment ID 1416-1.001.021 

Author Name: Alves J. 

Organization: Florida Electric Power Coordinating Group, Inc. 

In January 2009, after evaluating the issue for three weeks (see explanation above on page 5), Assistant Administrator 

Benjamin Grumbles anticipated that it would only take six months to develop scientifically valid nutrient criteria at the 

levels at which Florida's flowing waters exhibit signs of nutrient impairment: 

EPA anticipates that six months will then be required to complete detailed analyses of the data to identify the 

relationships between nutrient causal variables, e.g. nitrogen and phosphorus, and key response variables, e.g., 

chlorophyll a, Secchi depth, periphyton, and dissolved oxygen (DO).[30] 

Unaware of the complexity of the issues at hand, EPA thus initially represented that within half a year it could establish 

valid numerical interpretations of Florida's existing narrative nutrient standard (i.e., affix numeric nutrient standards at 

the nutrient levels at which Florida water bodies will exhibit imbalances of naturally occurring populations of flora and 

fauna). 

Ten months later, EPA used less definitive terms when attempting to assure Northern District Court of Florida Judge 

Hinkle that the agency could propose numeric criteria within the strict time frames of the proposed Consent Decree. A 

sworn declaration of Denise Keehner of EPA's Office of Science and Technology stated: 

EPA is able and capable of proposing protective criteria for lakes, rivers, streams, and estuaries/coastal waters based 

on scientifically defensible methodologies, and appropriately taking into account current data and other information, as 

well as the state of the science.[3l] 

By the time EPA issued its proposed rule in January 2010, however, the agency signaled a retreat with respect to 

stream standards: 

11/19/2010 02:48 PM EST 2-1765
 
Chapter 2 - Comment Documents Background 

...EPA analyzed stressor-response relationships in Florida streams based on available data, but...did not find sufficient 

scientific support for their use in the derivation of numeric nutrient criteria for Florida streams. More specifically, EPA 

was not able to demonstrate a sufficiently strong correlation between the biological response indicators...and TN or TP 

concentrations. . .. [32] 

Due to the self-imposed timeframes of the Consent Decree, EPA abandoned any attempt to proffer a numerical 

interpretation of Florida's narrative standard for Florida's streams based on empirically validated dose-response 

relationships. EPA instead utilized a crude averaging methodology that by its very nature will result in healthy streams 

being listed as impaired. This will result in Florida's regulated community making substantial expenditures to reduce 

nutrients inputs into waterbodies that are not really impaired. 

[30] EPA, Letter from EPA Assistant Administrator Benjamin Grumbles to FDEP Secretary Michael Sole, 9 (Jan. 

14,2009), hereinafter, EPA Necessity Determination. 

[31] Declaration of Denise Keehner, ¶5 (November 3, 2009) 

[32] 75 Fed. Reg. 4174, 4194. 

Comment ID 1473-1.001.010 

Author Name: Herz W. 

Organization: The Fertilizer Institute 

B. EPA's Proposed Criteria Are Not Necessary to Meet the Requirements of the Clean Water Act. EPA's authority to 

issue water quality standards in an authorized state is found in section 303(c)(4)(B) of the CWA, which authorizes EPA 

to issue regulations "setting forth a revised or new water quality standard" in any case where the Administrator of EPA 

"determines that a new or revised standard is necessary to meet the requirements of the Act." EPA issued such a 

determination for Florida on January 14, 2009, in a letter from Benjamin Grumbles, Assistant Administrator, EPA Office 

of Water, to Michael Sole, Secretary, Florida Department of Environmental Protection (hereinafter EPA Determination). 

Specifically, EPA determined that numeric nutrient criteria "are necessary to facilitate and expedite the identification of 

all nutrient impaired waters in Florida; thereby providing necessary protection for the State's designated uses, as 

required by the CWA." EPA Determination at 4-5. To support its determination, EPA faulted the case-by-case 

assessment procedure Florida had been following to determine whether there were imbalances in flora or fauna in 

waters with lower levels of nutrients (waters with higher levels of nutrients are deemed to be impaired). EPA 

Determination, at 8. See also 75 Fed. Reg. at 4175 (EPA determined that Florida's reliance on a case-by-case 

interpretation of its narrative nutrient criterion in implementing an otherwise comprehensive water quality framework of 

enforceable accountability was insufficient to ensure protection of applicable designated uses). Thus, EPA's statutory 

authority to promulgate water quality standards for Florida is based on the assertion that only state-wide numeric 

nutrient standards can meet the requirement in the CWA to protect designated uses of water bodies. This assertion is 

not supported by the facts or the record in this rulemaking. 

Comment ID 1473-1.001.022 

11/19/2010 02:48 PM EST 2-1766
 
Chapter 2 - Comment Documents Background 

Author Name: Herz W. 

Organization: The Fertilizer Institute 

EPA has signed a consent decree agreeing to finalize this rulemaking by October 15, 2010, to settle a claim against it 

by the Florida Wildlife Federation, and others (Northern District of Florida, Case No. 4:080cv-00324-RH-WCS). EPA 

also has asked Science Advisory Board (SAB) to review the Agency's draft Technical Guidance on Empirical 

Approaches for Numerical Nutrient Criteria Development. The SAB's final report was released on April 27, 2010. By 

rushing through this rulemaking, EPA is not taking the time to consider the advice of its own panel of experts that it has 

convened on developing nutrient criteria. 

The failure to take into account the advice of the SAB would render this rulemaking arbitrary and capricious, in violation 

of the Administrative Procedure Act. 

Comment ID 1473-1.001.029 

Author Name: Herz W. 

Organization: The Fertilizer Institute 

III. Recommendations. 

A. Recommendations For Criteria Development. 

As noted above, EPA's Science Advisory Board has advised EPA that "[n]umeric nutrient criteria developed and 

implemented without consideration of system specific conditions (e.g., from a classification based on site types) can 

lead to management actions that may have negative social and economic and unintended environmental consequences 

without additional environmental protection." Draft SAB Report, at 37. 

To prevent these unintended consequences, EPA must adhere to the following principles when developing numeric 

nutrient criteria in Florida or elsewhere. 

First, EPA demonstrate why imposing federal numeric criteria state-wide would be more consistent with the Clean 

Water Act than allowing a state to continue to protect water quality through its water quality management program. If 

EPA cannot make this demonstration, the federal criteria cannot be considered necessary, which is the statutory 

predicate for promulgating federal standards under section 303(c)(4)(B) of the Clean Water Act. 

Comment ID 1474-1.001.026 

Author Name: Herz W. 

Organization: The Fertilizer Institute 

11/19/2010 02:48 PM EST 2-1767
 
Chapter 2 - Comment Documents Background 

III. STATUTORY AND REGULATORY REVIEW AND ANALYSIS 

Section 303 of the Federal Water Pollution Control Act (Clean Water Act or CWA) requires all states to promulgate 

water quality standards. Water quality standards have two main components: designated uses and criteria to protect 

those uses. CWA section 303(c). State water quality standards are subject to EPA review and approval. 

Florida is authorized to carry out the Clean Water Act and has adopted narrative water quality standards for nutrients 

that have been approved by EPA. Further, Florida had been developing numeric nutrient criteria based on EPA 

regulations and guidance, and state law. 

Notwithstanding state primacy and Florida's impressive program to improve water quality, on January 26, 2010, EPA 

proposed numeric nutrient criteria for Florida lakes, streams, springs and clear streams, and canals. If finalized, these 

criteria will become part of Florida's water quality standards for the purpose of issuing permits under section 402 of the 

CWA sixty days after the final criteria are issued. 

A. Federal Numeric Nutrient Criteria Are Not Necessary So EPA Has No Statutory Authority To Issue Federal Nutrient 

Standards In Florida. 

EPA's authority to issue water quality standards in an authorized state is found in section 303(c)(4)(B) of the CWA, 

which authorizes EPA to issue regulations "setting forth a revised or new water quality standard" in any case where the 

Administrator of EPA "determines that a new or revised standard is necessary to meet the requirements of the Act." 

EPA issued such a determination for Florida on January 14, 2009, in a letter from Benjamin Grumbles, Assistant 

Administrator, EPA Office of Water, to Michael Sole, Secretary, Florida Department of Environmental Protection 

(hereinafter EPA Determination). Specifically, EPA determined that numeric nutrient criteria "are necessary to facilitate 

and expedite the identification of all nutrient impaired waters in Florida; thereby providing necessary protection for the 

State's designated uses, as required by the CWA." EPA Determination at 4-5. To support its determination, EPA faulted 

the case-by-case assessment procedure Florida had been following to determine whether there were imbalances in 

flora or fauna in waters with lower levels of nutrients (waters with higher levels of nutrients are deemed to be impaired). 

EPA Determination, at 8. See also, 75 Fed. Reg. at 4175 ("EPA determined that Florida's reliance on a case-by-case 

interpretation of its narrative nutrient criterion in implementing an otherwise comprehensive water quality framework of 

enforceable accountability was insufficient to ensure protection of applicable designated uses."). 

Thus, EPA's statutory authority to promulgate water quality standards for Florida is based on the conclusion that only 

state-wide numeric nutrient standards can meet the requirement in the CWA to protect designated uses of water 

bodies. This conclusion is not supported by the facts nor by the record in this rulemaking. 

1. Numeric nutrient criteria are not necessary to protect water quality. 

As noted by EPA's Science Advisory Board (SAB), in other contexts EPA has not found numeric nutrient criteria to be 

necessary to protect water quality: 

[T]he way in which EPA used results from mechanistic models to develop nutrient load reduction goals for the Gulf of 

Mexico (Mississippi River/Gulf of Mexico Watershed Nutrient Task force, 2008), and the way in which it is currently 

11/19/2010 02:48 PM EST 2-1768
 
Chapter 2 - Comment Documents Background 

using mechanistic models for nutrient and sediment TMDLs for Chesapeake Bay, does not involve development or use 

of numeric nutrient criteria. The reason is that these mechanistic models (Scavia et al., 2004; Cerco and Noel, 2004) 

are load-response models, not empirical stressor-response models, and hence they obviate the need for numeric 

nutrient criteria because they directly link nutrient loads to response variables that represent water quality impairments 

(e.g., dissolved oxygen, chlorophyll, water clarity and acreage of submerged aquatic vegetation). 

SAB Report, at 6 (emphasis added). 

2. Florida's existing program protects water quality. 

The State of Florida currently has a narrative water quality criterion for nutrients: "In no case shall nutrient 

concentrations of a body of water be altered as to cause an imbalance in natural populations of aquatic flora or fauna." 

FAC 62-302-530(47)(b). Florida currently implements this criterion on a site-specific basis in the context of taking action 

to improve water quality through limitations in NPDES permits, TMDLs, the development of Basin Management Action 

Plans, and in identifying impaired waters. In doing so, the State identifies the level of nutrients that would cause an 

imbalance and then translates that level into site-specific numeric targets. 

To identify whether an imbalance exists, FAC 62-303.350 requires the State to evaluate sitespecific data on the trophic 

state, chlorophyll a values, and other information such as algal blooms, excessive macrophyte growth, and the state of 

submerged aquatic vegetation. While the Florida regulations include thresholds for nutrient impairment based on 

response variables, impairment is confirmed with a site-specific bioassessment. Further, Florida law requires data 

reasonably demonstrating the pollutant causing the impairment and how the pollutant is associated with the observed 

biological effect. FAC 62-303-430. 

Employing this approach, Florida is able to establish nutrient criteria that are "necessary to protect the [designated] 

uses," in compliance with 40 C.F.R. 131.2. Further, under this approach, the State's nutrient criteria are based on 

"sound scientific rationale," in compliance with 40 C.F.R. 131.11(a). 

Narrative standards also have not prevented Florida from developing successful TMDLs loads for nutrients. In fact, 

Florida has developed 135 nutrient TMDLs with an additional 39 pending adoption. 

Florida's approach has been praised by the SAB: 

We agree with the statement in the Florida Department of Environmental Protection's letter of September 4, 2009 (letter 

from Daryll Joyner, Florida Department of Environmental Protection to Thomas Armitage, Designated Federal Officer, 

EPA Science Advisory Board Staff Office) indicating that the "most scientifically defensible strategy for managing 

nutrients within the range of uncertainty is to verify a biological response prior to taking a management action." This 

risk/performance-based approach to setting nutrient criteria is evident not only in Florida's program, but also in those 

developed by California and Maine (Florida Department of Environmental Protection, 2009; Maine Department of 

Department of Environmental Protection, 2009; McLaughlin and Sutula, 2007). Those risk-based linkages are not 

addressed in either the Guidance or EPA's Nutrient Criteria Technical Guidance documents for Rivers (U.S. EPA 

2000a), Lakes/Reservoirs (U.S. EPA 2000b), and Estuaries (U.S. EPA 2001). 

SAB Report, at 7. Given Florida' success in implementing its narrative criterion, 

11/19/2010 02:48 PM EST 2-1769
 
Chapter 2 - Comment Documents Background 

numeric nutrient criteria (whether developed by EPA or by Florida) are not necessary to protect Florida water quality. 

3. EPA's proposal would allow site-specific criteria development. 

While one of EPA's major objections to Florida's narrative standards is that the State implemented those standards on a 

site-specific basis, EPA's proposal would still allow Florida to adopt site-specific alternative criteria to protect designated 

uses. 75 Fed. Reg. at 4217. The process proposed by EPA is similar to Florida's current method of implementing its 

narrative nutrient criteria by translating them into numeric loads or concentrations on a case-by-case basis. 75 Fed. 

Reg. at 4218. 

4. EPA's record for this rulemaking does not support EPA's determination 

that Federal numeric nutrient criteria are necessary. 

As discussed above, the record for this rulemaking makes it clear that, for most Florida waters, Federally-imposed 

state-wide numeric criteria are not appropriate and therefore cannot be necessary. For example, neither EPA nor the 

State could find a relationship between nutrients and impairments in Florida streams. EPA also failed to demonstrate a 

causal relationship between nutrients and algal growth in springs, clear streams, or the Southern Florida canals. Absent 

a demonstration that nutrients are actually causing impairments in Florida waters, EPA cannot demonstrate that Federal 

numeric nutrient criteria are necessary. 

Before making a necessity determination, EPA must perform the type of statistical analysis that was performed by 

Florida and its Technical Advisory Committee. That statistical analysis failed to show a cause-and-effect relationship 

between the biological health of a stream and nutrient concentration. Unless EPA can show this relationship in a 

scientifically defensible way, its necessity determination is per se invalid. 

5. Florida had been in the process of developing numeric nutrient criteria 

when EPA made its finding that federal criteria were "necessary." 

At the time that EPA made its determination that federal standards were "necessary," Florida was in the process of
 

developing scientifically defensible numeric nutrient criteria for waters, other than canals, under an EPA approved plan.
 

See September 28, 2007, letter to Jerry Brooks, Florida Department of Environmental Protection, from James D.
 

Giattina, Director, Water
 

Management Division, Region 4, U.S. Environmental Protection Agency (noting that Florida's plan made it unlikely that
 

EPA would determine that federal nutrient standards were necessary in Florida).
 

Florida's plan for developing nutrients would have relied on the "dose-response" approach (investigating the effects of
 

nutrients on biological communities) as the primary method for the development of scientifically defensible numeric
 

nutrient criteria. Under this approach, Florida planned to utilize its extensive biological database and assessment tools
 

to explore response based thresholds. The State also planned to investigate thresholds of biological response during
 

development of a stream periphyton index. Florida then could use these approaches as the basis for Florida's numeric
 

nutrient criteria could couple this information with information from reference sites to form the basis for a weight-ofevidence approach.
 

Based on this approach, Florida proposed criteria in July 2009 and planned to issue final criteria for lakes and streams
 

11/19/2010 02:48 PM EST 2-1770
 
Chapter 2 - Comment Documents Background 

by December 2010. See State of Florida Numeric Nutrient Criteria Development Plan (March 2009), at 55. While there 

are technical problems with Florida's draft July 2009 criteria, the State's approach took more site-specific information 

into account and therefore was more consistent with EPA policy and guidance. Specifically, Florida's goal had been to 

"to develop numeric criteria for causal variables (phosphorus and nitrogen) and/or response variables (potentially 

chlorophyll a and transparency), recognizing the hydrologic variability (waterbody type) and spatial variability (location 

within Florida) of the nutrient levels of the State's waters, and the variability in ecosystem response to nutrient 

concentrations." Id. at 1. To achieve this, Florida planned "to develop cause/effect relationships between nutrients and 

valued ecological attributes, and to establish nutrient criteria that ensure that the designated uses of Florida's waters 

are maintained." Id. Adherence to that plan might have resulted in scientifically defensible nutrient criteria. 

Based on these facts, TFI respectfully submits that the record does not support EPA's determination that Federal statewide numeric nutrient criteria in Florida are necessary. As a result, EPA does not have the statutory authority to issue 

nutrient water quality standards for Florida's lakes and flowing rivers, and the proposed criteria should be withdrawn. 

Comment ID 1474-1.001.040 

Author Name: Herz W. 

Organization: The Fertilizer Institute 

First, EPA must be able to demonstrate why imposing federal state-wide nutrient criteria would be more consistent with 

the Clean Water Act than allowing a state to continue to protect water quality through the state's water quality 

management program. If EPA cannot make this demonstration, the federal criteria cannot be considered necessary, 

which is the statutory predicate for promulgating federal standards under section 303(c)(4)(B) of the Clean Water Act. 

Comment ID 1482-1.001.047 

Author Name: Hecker J. 

Organization: Conservancy of Southwest Florida 

V. EPA Has Provided a Strong Legal Basis for Adoption of Numeric Nutrient Criteria. 

EPA has provided a strong legal basis for adoption of numeric nutrient criteria in Florida, taking measured steps under 

the authority of the Clean Water Act for over ten years. Beginning as early as 1998, EPA found that adoption of numeric 

nutrient criteria is necessary. In 1998, EPA determined that prompt development of numeric standards for the nutrients 

phosphorus and nitrogen in all states was necessary to meet the requirements of the Clean Water Act. The Clean 

Water Action Plan ("CWAP") issued on February 19, 1998 explained: 

"Excessive nutrient loadings ... result in excessive growth of macrophytes or phytoplankton and potentially harmful algal 

blooms (HABs), leading to oxygen declines, imbalance of aquatic species, public health risks, and a general decline of 

the aquatic resource. Nutrient over-enrichment has also been strongly linked to the large hypoxic zone in the Gulf of 

Mexico and to recent outbreaks of Pfiesteria along the mid- Atlantic Coast. 

11/19/2010 02:48 PM EST 2-1771
 
Chapter 2 - Comment Documents Background 

"State water quality reports indicate that over-enrichment of waters by nutrients (nitrogen and phosphorus) is the 

biggest overall source of impairment of the nation's rivers and streams, lakes and reservoirs, and estuaries. In the 1996 

National Water Quality Inventory, states reported that 40 percent of surveyed rivers, 51 percent of surveyed lakes and 

57 percent of surveyed estuaries were impaired by nutrient enrichment, 

"EPA will develop nutrient criteria numerical ranges for acceptable levels of nutrients (i.e., nitrogen and phosphorus) in 

water. EPA will develop nutrient criteria for the various water body types and ecoregions of the country by the year 

2000. Within three years of the EPA issuance of applicable criteria, all states and tribes should have adopted water 

quality standards for nutrients. Where a state or tribe fails to adopt a water quality standard for nutrients within that 

three-year period, EPA will begin to promulgate water quality standards for nutrients."'[29] 

On June 25, 1998, EPA published its National Strategy for the Development of Regional Nutrient Criteria in the Federal 

Register, acknowledging that nutrient pollution had recently been reported to be the leading cause of impairment in 

lakes and coastal waters and the second leading cause of impairment in rivers and streams.[30] This plan again 

underscored that all states were required to develop numeric nitrogen standards that supported designated uses by 

2003, or EPA would develop standards for them.[31] EPA took the next step under CWA Section 304(a) and in 

December 2000 published recommended numeric nutrient criteria as part of the water quality standard guidance that 

EPA provides for the states. [32] Unfortunately, Florida and other states did not follow through in adopting numeric 

nutrient criteria. 

In 2007, EPA's Office of Water issued another report outlining the detrimental affects of nitrogen and phosphorus 

pollution and the states' general failure to adopt numeric nitrogen and phosphorus criteria.33 EPA acknowledged that 

"[v]irtually every State and Territory is impacted by nutrient-related degradation of our waterways" and explained that 

the adoption of numeric nutrient water quality criteria would allow for easier and faster development of TMDLs; 

quantitative targets to support trading .w ro-a rams: easier issuance of wrotective NPDES permits: increased 

effectiveness in evaluating success of nutrient runoff management progrems; and measurable, objective water quality 

baselines against which to assess environmental progress. EPA stated very clearly that "we cannot afford delayed or 

ineffective responses to this major source of environmental degradation". 

On January 14, 2009, EPA's Assistant Administrator made a determination under CWA Section 303(c)(4)(B) that new or 

revised water quality standards are necessary in the State of Florida. It was incumbent on Florida to adopt the criteria 

on a timely basis at this point, but Florida did not do so. 

In August 2009, EPA's Office of the Inspector General ("OIG") depicted the states' scant progress in adopting numeric 

nutrient criteria in a report titled "EPA Needs to Accelerate Adoption of Numeric Nutrient Water Quality Standards."[34] 

Recognizing that "[s]tates have not been motivated to create these standards because implementing them is costly and 

often unpopular with various constituencies," the report found that under the current approach there are no assurances 

that States will develop protective standards. OIG noted that "[h]istorically, EPA has said it would use its authority to set 

standards as a motivator and then failed to set standards," and that states upstream of the Gulf of Mexico and the 

Mississippi River have failed to set nutrient standards for themselves; "consequently, it is EPA's responsibility to act". In 

response to the OIG's report, EPA affirmed its view that "numeric nutrient State water quality standards are needed to 

protect not only those waters already impaired by nutrient pollution, but also to prevent high quality waters from future 

impairment."[35] 

11/19/2010 02:48 PM EST 2-1772
 
Chapter 2 - Comment Documents Background 

Last year, the State-EPA Nutrient Innovations Task Group reiterated the urgency of adopting [36] numeric nitrogen and 

phosphorus criteria in its August 2009 report An Urgent Call to Action. In that report, the collaboration of state and EPA 

water quality and drinking water directors and program managers recognize the lack of state and national efforts to 

control nutrient pollution, and calls for national leadership. In fact, the Task Group rated "Federally required state WQS 

numeric nutrient water quality criteria" as one of the top five most effective tools for reducing nitrogen and phosphorus 

pollution. 

FDEP itself has also recognized the importance of adopting numeric standards for Florida. In 2009, FDEP wrote, 

"...the State of Florida has conducted an extensive effort to gather and assess the necessary scientific information to 

develop and adopt numeric nutrient criteria .... It is envisioned that these criteria, in combination with the related 

bioassessment tools, will facilitate the assessment of designated use attainment for its waters and to provide a better 

means to protect state waters from the adverse effects of nutrient over-enrichhment."[37] 

In its Background section of the proposal (p4178-82), EPA again provides a good explanation of the damage done by 

nitrogen and phosphorus pollution and the pressing need for numeric nutrient standards. 

[29] U.S. EPA, Clean Water Action Plan: Restoring and Protecting America's Waters 58-59 (Feb. 1998). 

[30] U.S. EPA, National Strategy forthe Development of Regional Nutrient Criteria, iii (June 25, 1998). 

[31] Id. at 5-6. 

[32] Nutrient Criteria Development; Notice of Ecoregional Nutrient Criteria, 66 Fed. Reg. 1671 (Jan. 9, 2001) 

[33] Memorandum from Benjamin H. Grumbles, Assistant Administrator, U.S. EPA, on Nutrient Pollution and Numeric 

Water Quality Standards. (May 25, 2007), available at 

http://www,epa.gov/waterscience/criterialnutrientlfles/policy20070525.pdf 

[34] US. EPA, Office of the Inspector Gen., EPA Needs to Accelerate Adoption of Numeric Nutrient Water Quality 

Standards, No. 09-P-0223 (Auq 26. 2009). 

[35] Id. At app. C (Memorandum from Michael H. Shapiro, Acting Assistant Administrator, U.S. EPA on Agency 

Response to the Draft Evaluation Report to Dan Engelberg, Director, Water Enforcement Issues (July 15, 2009)). 

[36] State-EPA Nutrient lnnovations Task Group, An Urgent Call to Action, 2-1 1 (Aug. 2009). 

[37] FDEP (2009) Draft Technical Support Document: Development of Numeric Nutrient Criteria for Florida Lakes and 

Streams. Standards and Assessment Section, FDEP, Tallahassee, FL. 

Comment ID 1530.001.013 

Author Name: Aschauer Jr. F. 

Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority 

E. The Information Contained in the Existing Nutrient TMDLs Can be Directly Converted into Nutrient Criteria For Use in 

the Proposed Rule. 

While EPA has provided no justification for ignoring the already EPA-approved nutrient targets contained in existing 

TMDLs, one presumable reason is that it was determined to be too difficult to package TMDL targets into the desired 

11/19/2010 02:48 PM EST 2-1773
 
Chapter 2 - Comment Documents Background 

form in the limited time available to develop the rule. To that end, EPA, by agreeing to the consent decree in case 

number 4:08-cv-00324RH- WCS, styled Florida Wildlife Federation, Inc. et al. v. Jackson, placed itself under this 

timeline. Accordingly, any deficient work product resulting from this self-imposed timeline by EPA should not be thrust 

upon the state of Florida, the regulated community, and other stakeholders that participated in the development of the 

TMDLs. 

Comment ID 1530.001.034 

Author Name: Aschauer Jr. F. 

Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority 

VIII. SECTION II.E. OF THE PROPOSED RULE, TITLED STATUTORY AND REGULATORY BACKGROUND, GIVES 

THE IMPROPER IMPRESSION THAT THE CLEAN WATER ACT SUPPORTS THE EPA'S ACTIONS IN THE 

PROPOSED RULE, WHICH IT DOES NOT. 

CCUA acknowledges that the United States District Court for the District of Columbia, in National Wildlife Federation v. 

Browner, 1996 U.S. Dist. LEXIS 15321 (D.D.C. Oct. 11, 1996), interpreted Section 303(c)(4)(b), 33 U.S.C. § 

1313(c)(4)(b), as providing authority for the Administrator to propose new or revised WQS outside of, and unrelated to, 

the triennial review. However, this decision is only persuasive,[9] and will not act to bind a Federal District Court in the 

Eleventh Circuit, and, furthermore, CCUA does not agree with the District Court's interpretation and reserves the right to 

argue that the District Court's interpretation was incorrect and, in that regard, entirely undermines Congress' express 

preference of State primacy in the area of promulgating WQS. CCUA acknowledges that the Administrator may, as part 

of the triennial review, approve or disapprove of a State's proposed new or revised WQS as well as set forth a new or 

revised WQS not addressed by the State, again as part of its triennial review. The following analysis emphasizes 

CCUA's interpretation of the Clean Water Act (CWA) and is set forth below without deference to the District Court's 

interpretation of the CWA. 

Beginning on page 4180, the EPA discusses the statutory and regulatory background surrounding the Proposed Rule. 

The EPA's discussion in the preamble contains multiple very broad, general statements with little or no support. For 

instance, EPA claims, at page 4181, that the "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." 

(Emphasis supplied). The CWA does not include the statement, "even in the absence of a state submission." Indeed, a 

review of the CWA reveals that this extraneous language is in direct contradiction to the CWA's preference towards the 

states acting as the primary entity responsible for determining WQS. Accordingly, it is only proper that EPA remove this 

statement from the preamble entirely. 

The premise of this entire Proposed Rule is that EPA has the authority to promulgate standards for Florida. This 

premise is unsupported by the CWA and is therefore incorrect. Nonetheless, in the preamble, EPA assumes this 

authority is clear. Contrary to the EPA's premise, however, the CWA does not provide authority for the EPA to 

promulgate the standards in the Proposed Rule. On page 4216, EPA acknowledges that "[u]nder the CWA, Congress 

gave states primary responsibility for developing and adopting WQS for their navigable waters." To be sure, section 

101(b), 33 U.S.C. § 1251, states: "It is the policy of the Congress to recognize, preserve, and protect the primary 

responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use 

11/19/2010 02:48 PM EST 2-1774
 
Chapter 2 - Comment Documents Background 

(including restoration, preservation, and enhancement) of land and water resources, and to consult with the 

Administrator in the exercise of his authority under this Act [33 USCS §§ 1251 et seq.]." 

In order to understand how the authority to set WQS was designated by Congress, one must walk through section 303 

of the CWA in its entirety. It is not possible to analyze the authority Congress provides in the CWA by choosing 

individual sentences that best fit the broad assumptions made by EPA in the preamble. 

In section 303(a), 33 U.S.C. § 1313, Congress differentiates between standards that existed before the 1972 

amendments to the Federal Water Pollution Control Act, CWA, and ones to be developed as a result of the 1972 

amendments. Congress also differentiates between interstate waters in section 303(a)(I) and intrastate waters in 

section 303(a)(2). Section 303(a)(3) requires states that have not adopted standards for their waters prior to the date of 

the 1972 amendments do so and provide those standards for EPA review and approval. 

Section 303(b) requires EPA to propose standards for any state that has not done so as required by section (a), or in 

cases where EPA determines the standards submitted by the state as required in section (a) do not meet the 

requirements of the CWA. In either case, section 303(b) still recognizes the state as primarily responsible for WQS, and 

only if the "State fails to submit water quality standards within the times prescribed in subsection (a) of this section" is 

the EPA empowered to propose such standards. 

Section 303(c) sets up the requirement for states to conduct what has become known as the "trienuial" review of WQS. 

Section 303(c)(1) requires states to periodically, but no less than every three years, review standards and make 

changes as needed. During the triennial review, should the state revise or adopt a new standard, section 303(c)(2) 

requires the state to submit said newly revised or adopted standard to the Administrator for review and approval. 

Section 303(c)(3) requires the Administrator to review the newly revised or adopted WQS. If the Administrator approves 

the newly revised or adopted WQS then those newly revised or adopted standards become applicable WQS for the 

state. If the Administrator determines the WQS are inappropriate, then he must notify the state "and specify the 

changes to meet" the requirements of the CWA. If the state fails to adopt the changes to the WQS identified by the 

Administrator then the Administrator must promulgate standards based on section 303(c)(4). 

Section 303(c)(4) specifically states, "The Administrator shall promptly prepare and publish proposed regulations setting 

forth a revised or new WQS for the navigable waters involved-" 

Section 303(c)(3) and section 303(c)(4) work together in concert. Interpreting section 303(c)(4) of the CWA to support 

the Proposed Rule, as EPA suggests, is a perverse construction of a statute that emphasizes the states' primary 

authority for promulgating WQS. In section 303(c), the key term is "for the navigable waters involved." This language 

clearly refers to those waters identified by the state in the trienuial review. Stated otherwise, EPA must react to the 

submission of the state. Congress did not give EPA authority to act instead of the state or as EPA feels best suits the 

EPA (as in the case of agreeing to promulgate WQS in order to settle a federal lawsuit). As noted earlier, EPA argues 

that it has the authority to propose, and ultimately promulgate WQS, "even in the absence of a state submission." This 

conclusion is not supported by the CWA. Indeed, the quoted language, "even in the absence of a state submission," is 

not included in the language of Section 303(c), and it is not possible to read that language into the section. Section 303 

follows a very logical, systematic approach including establishing the original standards at the time of the 1972 

amendments and then requiring periodic updates. The establishment of the standards and the updates both clearly 

11/19/2010 02:48 PM EST 2-1775
 
Chapter 2 - Comment Documents Background 

identify: (l) the state as the entity responsible for the standard; and (2) EPA's role as a reactionary to the state triennial 

review, not to act instead of the state. EPA acting completely independent of the state would negate Congress' intent for 

states to be responsible for their own state WQS. 

There is no argument that FDEP has not timely participated in the triennial review, and neither could there be. The 

Proposed Rule is not an extension of the triennial review, and the EPA is not acting in response to FDEP's failure to 

adequately address a water body during the triennial review. Therefore, there is no authority for EPA to promulgate the 

criteria in the Proposed Rule. 

[9] See Richards V. Local 134, Int'l Brotherhood ofElectrical Workers, 790 F.2d 633, 636 (7th Cir. 1986); and see Traffic 

Sports USA, Inc. v. Federacion Nat'! Autonoma de Futbal de Honudras, 2008 U.S. Dist. LEXIS 110637 (S.D. Fla. Oct. 

31, 2008). 

Comment ID 1530.001.045 

Author Name: Aschauer Jr. F. 

Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority 

XIII. THE PROPOSED RULE CONFLICTS WITH THE EPA'S RESPONSIBILITIES UNDER THE CONSENT DECREE 

ENTERED INTO IN FLORIDA WILDLIFE FEDERATION v: BROWNER, 4:98-CV-2560-WS (N.D. FLA. I 999)[DOC. 

#36-1]. 

On January 20, 2010, the Florida Department of Agriculture and Consumer Services ("FDACS") filed a Motion for 

Rehearing and Reconsideration of the Court's Order of December 30, 2009 ("FDACS Rehearing Motion") in the United 

States District Court for the Northern District of Florida, case number 4:08-cv-00324-RH-WCS, styled Florida Wildlife 

Federation, Inc. et al. v. Jackson. The Rehearing Motion, at footnote 2, notes that "[w]hile statewide numeric standards 

have not been adopted, FDEP Rule 62-304, F.A.C., contains lists of Total Maximum Daily Loads that have been 

adopted by rule for 79 water bodies in Florida, which in themselves set numeric nutrient standards." 

On January 27, 2010, the Florida Water Environment Association Utility Council ("Utility Council") filed its own Motion 

for Rehearing and Reconsideration of the Court's Order Entered December 30, 2009 ("Utility Council Rehearing 

Motion"). The Utility Council Rehearing Motion incorporated by reference the FDACS Rehearing Motion and then 

focused on the above-quoted footnote 2 out of the FDACS Rehearing Motion. 

The FDACS Rehearing Motion and Utility Council Rehearing Motion are both attached hereto, as Appendix V.l. and V.2, 

respectively, and incorporated herein by reference. 

The Proposed Rule ignores the EPA's responsibilities under a previously-court-adopted consent decree in Florida 

Wildlife Federation v. Browner, 4:98-cv-2560-WS (N.D. Fla. 1999). Attached hereto as Appendix W is a copy of the 

consent decree. 

Now, EPA proposes, with the support of two of the plaintiffs from the 1999 case, to undue, in one fell swoop, the hard 

work of FDEP and the many stakeholders involved with regard to the establishment of TMDLs across the state of 

11/19/2010 02:48 PM EST 2-1776
 
Chapter 2 - Comment Documents Background 

Florida. The Proposed Rule will have the effect of nullifying the TMDLs adopted pursuant to the 1999 consent decree. 

Such action flies in the face of the Federal District Court, in that it entered, and therefore placed its imprimatur on, the 

1999 consent decree. 

The Federal District Court could not have envisioned that a Consent Decree which has resulted in millions of public and 

private dollars spent, countless hours of hard work, and the preparation of a significant number of TMDLs would be 

tossed aside - thrown out like the "baby with the bath water." No, that couldn't have been the intent of the Federal 

District Court when it accepted the 1999 Consent Decree. It should be noted, as evidenced within CCUA's Comment, 

that the 1999 consent decree has been a smashing success. The TMDLs, and particularly the Lower St. Johns River 

TMDL (one governing CCUA's actions), contain superb science - science that is site-specific unlike the general criteria 

presented in the Proposed Rule. Since 1993, CCUA has installed AWT and implemented a public access reclaimed 

water distribution network in Clay County, Florida. The dual purpose of this program has been to reduce nutrient loading 

to the Lower St. Johns River and to conserve groundwater. The estimated capital cost investment towards achieving 

this goal is currently $79 million dollars of which CCUA has contributed $49 million. This was voluntarily undertaken by 

the Authority and included in FDEP's BMAP. 

XIV. THE JANUARY 14,2009 NECESSITY DETERMINATION IS NOT LAWFUL, AND, ACCORDINGLY, THE 

PROPOSED RULE IS LIKEWISE UNLAWFUL. 

On January 14,2009, former EPA Assistant Administrator Benjamin H. Grumbles issued a letter to FDEP Secretary 

Michael Sole. A copy of the January 14,2009 determination letter is attached hereto as Appendix X. The letter states 

that it "constitutes a determination under Clean Water Act (CWA) section 303(c)(4)(B) that new or revised water quality 

standards for nutrients are necessary to meet the requirements of the CWA for the State of Florida." 

The January 14, 2009 determination letter was prefaced by a memorandum dated December 22, 2008 from then EPA 

Assistant Administrator Luis Luna to then EPA Administrator Stephen Johnson. A copy of the December 22, 2008 

memorandum is attached hereto as Appendix Y. The December 22, 2008 memorandum makes clear that EPA should 

issue the "determination" as part of a litigation strategy. More specifically, the December 22, 2008 memorandum states: 

EPA does not agree with plaintiffs' allegation that we made a CWA determination in our 1998 Strategy that numeric 

nutrient criteria are necessary for Florida to meet the requirements of the CWA. There is, however, some risk that the 

court agree with the plaintiffs that the 1998 Strategy constitutes a CWA determination that nutrient criteria are 

necessary in Florida. Such a ruling could spur similar litigation in other states. Presently, 49 states have one or more 

303(d) listings for waters impaired by nutrients. 

. . . . In response to this lawsuit, we believe that we should collect and analyze nutrients-related information pertaining 

to Florida and decide whether to make a Section 303(c)(4)(B) determination that revised nutrient standards are 

necessary for the State of Florida to meet the requirements of the CWA. Making such a determination could give EPA a 

basis to propose a settlement to the plaintiffs or to request that the court dismiss the case, ... 

It is clear from the language of the December 22, 2008 memorandum that EPA was pursuing a litigation strategy and 

not following the CWA. Congress most certainly did not envision the EPA using the CWA as a shield from litigation as 

the EPA has done in this instance. Through its actions, EPA has disregarded the very central premise in the CWA that 

11/19/2010 02:48 PM EST 2-1777
 
Chapter 2 - Comment Documents Background 

states are to have primary responsibility for WQS. 

The time that expired in between the December 22,2008 memorandum and January 14, 2009 determination was not 

sufficient for the EPA to "collect and analyze nutrients-related information pertaining to Florida and decide whether to 

make a Section 303(c)(4)(B) determination that revised nutrient standards are necessary" as suggested in the 

December 22, 2008 memorandum. Indeed, CCUA now understands that EPA was drafting the January 14, 2009 letter 

on, and even before, December 22, 2008. Indeed, EPA knew full well that it intended to impose upon Florida numeric 

nutrient criteria at the time Assistant Administrator Luna issued the December 22, 2008 memorandum. 

Moreover, the EPA's determination in January 14,2009, stands in dark contrast to EPA's position on Florida's 

development of, and follow through with, its Numeric Nutrient Criteria Development Plan. EPA was well aware of 

Florida's good work with regard to nutrients. Only in the face of litigation did Florida's good work become not good 

enough. Again, it is clear that the EPA's January 14, 2009 letter is really not a determination letter. Sure, it uses that 

term. The January 14, 2009 letter is really a solution to a litigation problem - not a nutrient problem. 

The public was never offered the opportunity to participate in the process of issuing the January 14, 2009 letter. 

Because the public was precluded from the process, the January 14, 2009 determination is unlawful because it failed to 

offer public participation and consideration under Part 25, Title 40 of the Code of Federal Regulations. Furthermore, the 

EPA's actions in this regard denied the citizens of Florida due process oflaw. 

The EPA has failed to marshal conclusive evidence of "necessity" prior to issuing the January 14, 2009 letter. Because 

the EPA failed to marshal conclusive evidence of "necessity" prior to issuing the January 14, 2009 letter, the January 

14, 2009 letter is unlawful. 

The EPA is denying the citizens of Florida equal protection under the law. The Proposed Rule applies only to the state 

of Florida, notwithstanding the fact that waters flow into the state of Florida from other states. The EPA's failure to 

promulgate similar criteria in states that are upstream of any water body which will be regulated by the Proposed Rule 

results in the denial of equal protection under the law to the citizens of Florida. 

Comment ID 1532-1.001.002 

Author Name: Stacey P. 

Organization: Connecticut Department of Environmental Protection 

For more than a decade, following the issuance of President Clinton's 1998 Clean Water Action Plan, EPA, the states 

and researchers have directed considerable attention towards developing nutrient criteria for phosphorus and nitrogen. 

Yet an acceptable, scientifically-defensible approach has been elusive despite these concerted efforts. 

In the Federal Register notice (40 CFR Part 131 [EPA-HQ-OW-2009-0596; FRL-9105-1] "Water Quality Standards for 

the State of Florida's Lakes and Flowing Waters"), EPA has in a very compressed time frame and under court order, 

revisited and tried to modify these prior approaches and propose a viable rule for numeric nutrient criteria that would be 

applicable to most of Florida's waters. 

11/19/2010 02:48 PM EST 2-1778
 
Chapter 2 - Comment Documents Background 

Comment ID 1641-1.001.015 

Author Name: Littrell J. 

Organization: Okaloosa County Water & Sewer System 

After examining EPA's proposal, it is not explicitly clear as to why EPA is justified in taking such an action that interferes 

with and undermines the sovereignty of the State of Florida. Furthermore, it is not explicitly clear as to how this action 

will improve water quality any faster or with any greater effect or efficiency than an action that allows the State of Florida 

to complete its numeric nutrient criteria rule making process. Additionally, we question why EPA should take such 

dramatic action with respect to Florida when EPA acknowledges many times in its proposal that problems associated 

with nutrient enrichment of surface waters are "Nationwide". 

Comment ID 1667-1.001.001 

Author Name: Gierach D. 

Organization: CPH Engineers, Inc. and the City of Sanford 

We are submitting the comments regarding the EPA proposed numeric nutrient criteria and its impacts on the system of 

City of Sanford, FL. 

Background and Proposed Rule Summary 

Although Florida Department of Environmental Protection (FDEP) has implemented the Total Maximum Daily Load 

(TMDL) program to restore and improve Florida's water quality, EPA is proposing to promulgate federal numeric nutrient 

water quality standards (WQS) for Florida. EPA's motivation for setting the federal standards in Florida was to promote 

the settlement of a lawsuit filed by several Florida environmental advocacy groups[1] in 2008. The lawsuit was seeking 

to require EPA to promulgate numeric nutrient WQS. EPA entered into a Consent Decree with the advocacy groups to 

settle the litigation and committed to propose numeric nutrient standards for lakes and flowing waters in Florida by 

January 2010 and for Florida's estuarine and coastal waters by January 2011. EPA agreed to establish final standards 

for lakes and flowing waters by October 2010 and for estuarine and coastal waters and downstream protective values 

by October 2011. 

EPA is proposing numeric nutrient for four water body types and the first two types are classified to groups or regions 

as follows: 

o Lakes 

- Colored 

- Clear and alkaline 

- Clear and acidic o Streams/rivers 

- Panhandle 

- Bone Valley 

- Peninsula 

11/19/2010 02:48 PM EST 2-1779
 
Chapter 2 - Comment Documents Background 

- North Central 

o Springs and clear streams 

o Canals in south Florida 

Under the current rule making, EPA is proposing criteria for lakes and streams. The proposed parameters and numeric 

criteria for the lakes are listed in Table 1. 

Original comment letter contains additional information in Table 1. EPA Proposed Criteria for Lakes. See original 

comment letter. 

The proposed parameters and numeric criteria for rivers and streams are listed in Table 2. The regions are presented 

on Figure 1. 

Original comment letter contains additional information in Table 2. EPA Proposed Criteria for Rivers and Streams. See 

original comment letter. 

Original comment letter contains additional information in Figure 1. Region Division for Florida Rivers and Streams. See 

original comment letter. 

[1] Florida Wildlife Federation, Inc., Sierra Club, Inc., Conservancy of Southeast Florida, Inc., Environmental 

Confederation of Southwest Florida, Inc., and the St, Johns Riverkeeper, Inc. 

Comment ID 1700-1.001.008 

Author Name: Mahan R. 

Organization: MB Management 67, Inc. 

I urge you to rescind this recommendation and go back to the drawing board. Frankly, I believe our Department of 

Environmental Regulation in Florida is more than up to the task, and is already doing the correct work to protect our 

water resources. And I do question whether the Federal Government and the EPA has the constitutional authority to 

enforce these proposed criteria. However if the EPA would like to help, then, please, let's do the real work of developing 

the site specific criteria for each water body and waterway, and remove these generalized, arbitrary and broad criteria 

from the discussion. 

Comment ID 1715-1.001.010 

Author Name: Wilson C. 

Organization: Gunster, Yoakley & Stewart, P.A. on behalf of Everglades Agricultural Area Environmental Protection District 

For all the reasons discussed in the attached Technical Comment Paper, the Nutrient Rule constitutes an abuse of the 

agency's discretion and is arbitrary and capricious. Thus, the EPD believes the south Florida Canal portion of the 

11/19/2010 02:48 PM EST 2-1780
 
Chapter 2 - Comment Documents Background 

Nutrient Rule should be withdrawn. Should the USEPA finalize the Nutrient Rule as proposed, the EPD believes it 

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

Act, 5 U.S.C. 551-559, 701-706. 

Comment ID 1715-1.001.011 

Author Name: Wilson C. 

Organization: Gunster, Yoakley & Stewart, P.A. on behalf of Everglades Agricultural Area Environmental Protection District 

The EPD restates its belief that this rule will be invalidated under the provisions of the Federal Administrative 

Procedures Act, because it is arbitrary and capricious, an abuse of discretion, and is not supported by substantial 

evidence. 

Comment ID 1715-3.001.006 

Author Name: Wilson C. 

Organization: Gunster, Yoakley & Stewart, P.A. on behalf of Everglades Agricultural Area Environmental Protection District 

Aspects of the proposed criteria have undergone two scientific peer reviews. The initial peer review in August 2009 

examined the proposed methods and approaches (Eastern Research Group 2009). In November, 2009, USEPA's 

Science Advisory Board ("SAB") was asked to review the report entitled, "Guidance Document on Empirical 

Approaches for Numeric Nutrient Criteria Development" (USEPA 2009). A Draft of the resulting peer review was 

prepared in January, 2010 (SAB 2010). Both of these documents provided significant criticisms of approaches and 

methods proposed by USEPA and option to help address these issues. Despite these concerns, USEPA proceeded to 

develop the January 2010 proposal for criteria for Florida surface waters. This latter document has not undergone 

scientific formal peer review. 

Comment ID 1723-1.001.003 

Author Name: Clement D. 

Organization: East Charlotte Drainage District 

We understand that the development of numeric nutrient criteria is the result of a consent decree EPA has entered into 

that specifies deadlines for establishing such criteria. We are concerned that the timeframes set forth in the consent 

decree are too ambitious and have thus resulted in hastily formulated standards that are not scientifically sound. 

Comment ID 1729.001.002 

Author Name: Fugett A. 

11/19/2010 02:48 PM EST 2-1781
 
Chapter 2 - Comment Documents Background 

Organization: 

Comments on EPA's Proposed Numeric Nutrient Criteria 

1. Scientifically defensible numeric nutrient criteria can't be developed within the timeframes imposed by EPA's Consent 

Decree with EarthJustice, and impacts on Florida water utilities are not justified. 

Comment ID 1729.001.020 

Author Name: Fugett A. 

Organization: 

24. In light of the above, it is believed that EPA should revoke its necessity determination and seek judicial relief from its 

consent decree. Why should Floridians suffer for EPA getting sued? 

Comment ID 1769-1.001.004 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of City of Cocoa 

II. EPA Authority Under the Clean Water Act
 

A. The EPA Administrator failed to properly determine state regulations did not meet the requirements of the Clean
 

Water Act.
 

Section 303(c)(4) of the Clean Water Act directs the EPA Administrator to prepare and publish proposed regulations
 

setting forth a revised or new water quality standard for the navigable waters involved in the following two situations:
 

a) If a revised or new water quality standard submitted by such State under paragraph (3) of this subsection for such 

waters is determined by the Administrator not to be consistent with the applicable requirements of this Act, or 

b) In any case where the Administrator determines that a revised or new standard is necessary to meet the 

requirements of this Act. The Administrator shall promulgate any revised or new standard under this paragraph not later 

than ninety days after he publishes such proposed standards, unless prior to such promulgation, such State has 

adopted a revised or new water quality standards which the Administrator determines to be in accordance with this Act. 

(Emphasis added). CWA §303(c)(4)(a) and (b). 

On January 14,2009, the EPA purportedly determined under Section 303(c)(4)(b) that new or revised water quality 

standards in the form of numeric nutrient water quality criteria are necessary to meet the requirements of the Clean 

Water Act in the State of Florida. [1] In reaching this determination, the EPA found that Florida's reliance on a casebycase site-specific data interpretation of its narrative nutrient criterion was insufficient to ensure protection of applicable 

11/19/2010 02:48 PM EST 2-1782
 
Chapter 2 - Comment Documents Background 

designated uses.[2]" EPA indicated it expected to propose numeric nutrient criteria for lakes and flowing waters within 

12 months, and for estuarine and coastal waters within 24 months, of the January 14, 2009 determination. However, the 

EPA failed to specifically identify how the State water quality standards failed to be consistent with the applicable 

requirements of the Clean Water Act. 

[1] Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4174,4175, 4181 

(proposed January 26, 2010)(to be codified at 40 CFR Part 131). 

[2] Id. 

Comment ID 1769-1.001.008 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of City of Cocoa 

Furthermore, the EPA clearly exceeds its authority in imposing new numeric standards in watersheds where the DEP 

has already established site-specific numeric water quality standards. Nutrient standards have been adopted for a 

number of watersheds through the TMDL process. The EPA was provided with the opportunity to review the numeric 

standards and provide comments, but offered no indication that these criteria failed to meet the requirements of the Act. 

Therefore, absent a specific finding that each of these numeric criteria fails to meet the Act's requirements, the EPA 

may not impose the Proposed Rule on these water bodies pursuant to Clean Water Act Section 303(c)(4)(a) and (b). 

B. The Proposed Rule Exceeds the EPA's Authority Under the Clean Water Act 

As previously discussed, Section 303(c) of the Act directs states to adopt water quality standards for navigable 

waters[7] and requires the state water quality standards include the designated use or uses to be made of the waters 

and criteria that protect those uses [8] EPA recognizes this limitation on authority in the Proposed Rule as follows: 

The Clean Water Act defines 'navigable waters' to mean 'the waters of the United States, including territorial seas'.[9] 

Whether a particular water body is a water of the United States is a water body-specific determination. Every water 

body that is a water of the United States requires protection under the CWA. 

Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4183 (proposed January 26, 

2010) (to be codified at 40 CFR Part 131). 

However, as written, the Proposed Rule ignores this limitation and applies to water bodies that are not navigable 

waters. The EPA provides that the "criteria in the Proposed Rule apply to lakes and flowing waters of the State of 

Florida." The Proposed Rule defines "lakes and flowing waters" to mean inland surface waters that have been classified 

by Florida as "Class I (potable Water Supplies Use) or Class III (Recreation, Propagation and Maintenance of a 

Healthy, Well-Balanced Population of Fish and Wildlife Use) water bodies pursuant to Florida Administrative Code 

(F.A.C.) Rule 62-302.400, excluding wetlands, and which are predominantly fresh waters." [10] 

Assuming that Section 303(c)(4)(B) of the Act authorizes the Administrator to determine that a new or revised standard 

11/19/2010 02:48 PM EST 2-1783
 
Chapter 2 - Comment Documents Background 

is needed in the State of Florida, the Clean Water Act limits EPA's authority to promulgate this standard to navigable 

waters.[11] The EPA must recognize and clarify that waters of the state which do not fall within the definition of 

navigable waters are not subject to the criteria limits ofthe Proposed Rule. 

"Navigable Waters" 

The constitutional basis for Congress' regulation of waters is the Commerce Clause. In Solid Waste Agency of Northern 

Cook County v. United States Army Corps of Engineers ("SWANCC"), 531 U.S. 159 (2001), the United States Supreme 

Court addressed the United States Army Corps of Engineers ("Corps") interpretation of the term "navigable waters" and 

provided a significant analysis regarding the expansiveness of the term. In SWANCC, the Supreme Court addressed 

the question of whether the term "navigable waters" under the Act extended to include intrastate waters used as habitat 

by migratory birds. Because the Supreme Court determined the Clean Water Act did not extend to these waters, it did 

not reach the second question presented of whether Congress could exercise such authority consistent with the 

Commerce Clause. SWANCC at 531 U.S. 166. 

In reaching its decision, the Supreme Court rejected the Corps use of the "Migratory Bird Rule" to assert jurisdiction 

over the site at issue. The Corps argued the Clean Water Act included nonnavigable, isolated intrastate waters based 

upon the presence of migratory birds that crossed state lines. However, the Supreme Court concluded that the 

"Migratory Bird Rule" is not fairly supported by the Clean Water Act. SWANCC at 531 U.S. 167. The Court held that to 

constitute "navigable waters" under the Act, a water or wetland must possess a "significant nexus" to waters that are or 

were navigable in fact or that could reasonably be so made. Id 

The Supreme Court further elaborated on the importance of the word "navigable" in interpreting the statute. To hold that 

isolated ponds wholly located within the state were covered under the Act would assume that "the use of the word 

navigable in the statute ... does not have any independent significance. SWANCC at 531 U.S. 172. The Supreme Court 

refused to agree "that Congress' separate definitional use of the phrase 'waters of the United States' constitutes a basis 

for reading the term "navigable waters" out of the statute." SWANCC at 531 U.S. 172. 

Furthermore, the Supreme Court recognized Congress' intent to "recognize, preserve, and protect the primary 

responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use 

(including restoration, preservation and enhancement) of land and water resources" and refused to encroach on state 

power. SWANCC at 531 U.S. 166-167. The Supreme Court found the Corps' rule extending the definition of "navigable 

waters" under the Clean Water Act to include intrastate waters used as habitat to migratory birds which cross state lines 

was not entitled to Chevron deference. SWANCC at 531 U.S. 172-173. The Supreme Court noted the concern that an 

agency interpretation of a statute exceeds limits of power granted by Congress is heightened where interpretation alters 

the federal-state framework by permitting federal encroachment upon a traditional state power. SWANCC at 531 U.S. 

172. "Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the 'Migratory Bird 

Ru1e' wou1d result in a significant impingement of States' traditional and primary power over land and water use." 

SWANCC at 531 U.S. 174 (citing Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30 (1994)). 

Similarly, with the Proposed Rule, the EPA is attempting to impinge upon the State's traditional power to regulate 

waters of the state that are not "navigable waters" as defined in the Clean Water Act or which do not have a significant 

nexus to navigable waters. The State of Florida is authorized to regulate waters within the state that are not otherwise 

considered "navigable waters" and has chosen to do so in the case of nutrients using a narrative standard. However, 

11/19/2010 02:48 PM EST 2-1784
 
Chapter 2 - Comment Documents Background 

many of these "nonnavigable" waters are designated by the State as Class I or Class III waters and would therefore 

become subject to the EPA's Proposed Rule. Because the Proposed Rule is a federally implemented rule and is not 

adopted by the State, the EPA's jurisdiction is limited to "navigable waters" and the Proposed Rule exceeds EPA's 

authority. 

The Supreme Court again addressed the definitions of the terms "navigable waters" and "waters of the United States" in 

Rapanos v. United States, 126 S. Ct. 2208 (2006). In Rapanos, which involved two consolidated cases, the United 

States brought civil enforcement proceedings against the Rapanos petitioners, who backfilled wetlands lying near 

ditches or man-made drains that eventually empty into traditional navigable waters without a permit. 

In perhaps what is the most direct explanation to date of what the term includes, the Supreme Court entered a fractured 

opinion wherein the plurality held the term "navigable waters" included "only those relatively permanent, standing or 

continuously flowing bodies of water 'forming geographic features' that are describe in ordinary parlance as 'streams,' 

'oceans, rivers, [and] lakes" and does not include "channels through which water flows intermittently or ephemerally, or 

channels that periodically provide drainage for rainfall. Rapanos at 126 S. Ct. 2221, 2225. The plurality emphasized that 

"navigable waters" are "continuously present, fixed bodies of water, as opposed to ordinarily dry channels through 

which water occasionally or intermittently flows." Id. at 2221. In distinguishing itself from Justice Kennedy's concurring 

opinion, the plurality found that "relatively continuous flow is a necessary condition for qualification as a [navigable] 

'water,' not an adequate condition." Id. at 2223. 

However, the Proposed Rule applies to all Class I or Class III waters of the State whether intermittent or continuously 

flowing. As such, the Proposed Rule applies to waters not included within the definition of"navigable waters." 

Furthermore, in applying this definition, the plurality specifically found the Corps had "stretched the term 'waters of the 

United States' beyond parody" when asserting jurisdiction over cccephemeral streams,' 'wet meadows,' storm sewers 

and culverts, 'directional sheet flow during storm events,' drain tiles, man-made drainage ditches, and dry arroyos in the 

middle of the desert." Id. In supporting its holding, the Supreme Court focuses on the Act's language itself, which 

"categorizes channels and conduits that typically carry intermittent flows of water separately from 'navigable waters,' by 

including them in the definition of 'point source.'" 

These definitions conceive of 'point sources' and 'navigable waters' as separate and distinct categories. ... The separate 

classification of "ditch]es], channel]s], and conduit[s]" - which are terms ordinarily used to describe the watercourses 

through which intermittent waters typically flow - shows that these are by and large not "waters ofthe United States." 

Id. The plurality addresses Justice Kennedy's argument that ditches, channels, conduits and the like "can all hold water 

intermittently," by pointing out that when such waters hold water permanently, they are referred to as "rivers," "creeks," 

or "streams." Id. The plurality goes on to hold 

It is also true that highly artificial, manufactured, enclosed conveyance systems- such as "sewage treatment plants," 

post, at 2243 (opinion of KENNEDY, 1), and the "mains, pipes, hydrants, machinery, buildings, and other 

appurtenances and incidents of the city ... "system of waterworks," .. .likely do not qualify as "waters of the United 

States," despite the fact that they may contain continuous flows of water. 

Id. 

11/19/2010 02:48 PM EST 2-1785
 
Chapter 2 - Comment Documents Background 

In the Proposed Rule, the EPA appears to be stretching its jurisdiction beyond parody and ignoring this Supreme Court 

decision by attempting to regulate intermittent streams outside of South Florida, the canals in South Florida and other 

man-made drainage ditches that were constructed for flood control purposes. To allow the EPA to regulate these waters 

as "waters of the US" would stretch the outer limits of Congress's commerce power and raise difficult questions about 

the ultimate scope of that power. See Rapanos at 126 S. Ct 2224; SWANCC at 531 U.S. 173. 

In his concurring opinion, Justice Kennedy followed the decision in SWANCC and found that water can only be 

"navigable" under the Act if it possesses a significant nexus to waters that are or were navigable in fact. Rapanos at 

126 S. Ct 2236. Under this argument, absent a significant nexus in instances where there is no close connection 

between a nonnavigable water or wetland and a navigable water, jurisdiction under the Act is lacking. Id at 2241. 

Furthermore, a "mere hydrologic connection" would not necessarily be enough to meet the "significant nexus" test. Id. at 

2250-2251. 

In United States v. Robison, et al, 505 F.3d 1208 (ll th Cir. 2007), the Eleventh Circuit Court of Appeals considered the 

Rapanos decision in detail in order to determine exactly how and to what extent the district court's "navigable water" 

instruction was erroneous. In Robison, the defendants appealed their district court sentence based on an allegation that 

the district court's jury charge that "navigable waters" include "any stream which may eventually flow into a navigable 

stream or river," and that such stream may be man-made and flow "only intermittently," was erroneous and not 

harmless error. Robison at 505 F.3d 1208. In reaching this decision, the Court adopted Justice Kennedy's "significant 

nexus" test as the governing rule of Rapanos and applied this test for purposes of determining whether the jury 

instruction on the definition of "navigable waters" was harmless error. Robison at 505 F.3d 1216. 

In attempt to provide further clarification to the EPA regions and the Corp districts implementing the Supreme Court 

decisions addressing the jurisdiction over waters of the United States under the Clean Water Act, the El'A issued a 

guidance memorandum [12] In this memorandum, the EPA sunnnarized the following key points: 

- The agencies will assert jurisdiction over the following waters: 

o Traditional navigable waters o Wetlands adjacent to traditional navigable waters 

o Non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries typically 

flow yearround or have continuous flow at least seasonally (e.g., typically three months) 

o Wetlands that directly abut such tributaries 

- The agencies will decide jurisdiction over the following waters based on a fact-specific analysis to determine whether 

they have a significant nexus with a traditional navigable water: 

o Non-navigable tributaries that are not relatively permanent 

o Wetlands adjacent to non-navigable tributaries that are not relatively permanent 

o Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary 

11/19/2010 02:48 PM EST 2-1786
 
Chapter 2 - Comment Documents Background 

- The agencies generally will not assert jurisdiction over the following features: 

o Swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent or short duration 

flow) 

o Ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively 

permanent flow of water 

- The agencies will apply the significant nexus standard as follows: 

o A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions 

performed by all wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and 

biological integrity of downstream traditional navigable waters 

o Significant nexus includes consideration of hydrologic and ecologic factors 

Thus, the EPA appears to be incorporating the plurality opinion in Rapanos and the "significant nexus" test of SWANCC 

in determining which waters are subject to the EPA's jurisdiction. As discussed throughout this analysis, the Proposed 

Rule disregards these limitations on the EPA's authority and includes all Class I or Class III waters in the State 

regardless of whether they meet the permanent flow or significant nexus tests. 

Groundwater 

Because groundwater is not included within the definition of navigable waters and is outside the scope of the Clean 

Water Act, the EPA is not authorized to regulate groundwater. Under the Proposed Rule, the EPA exceeds its authority 

under the Clean Water Act by regulating directly and indirectly regulating groundwater. 

Springs are formed where groundwater meets the Earth's surface. The EPA must determine where the groundwater 

ends and the surface water spring begins. Similarly, certain rivers, streams and South Florida canals are nothing more 

than an expression of groundwater because they are cuts into the aquifer. For example, the Suwannee and Santa Fe 

rivers are streams which are spring fed and representations of groundwater. 

[7] CWA §303(c)(2)(a)(33 U.S.C. 1313(c)); Water Quality Standards for the State of Florida's Lakes and Flowing 

Waters, 75 Fed. Reg. 4183 (proposed January 26, 2010)(to be codified at 40 CFR Part 131). 

[8] 40 CFR 131. 

[9] Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4183 (proposed January 

26, 2010)(to be codified at 40 CFR Part 131); CWA §502(7). 

[10] Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4180-4181 (proposed 

January 26, 2010)(to be codified at 40 CFR Part 131). 

11/19/2010 02:48 PM EST 2-1787
 
Chapter 2 - Comment Documents Background 

[11] 33 U.S.C. 1362(7) 

[12] Clean Water Act Jurisdiction Following the Us. Supreme Court's Decision in Rapanos v. United States & Carabell v. 

United States (June 5, 2007). 

Comment ID 1770-1.001.022 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of Plant City 

II. EPA Authority Under the Clean Water Act 

A. The EPA Administrator failed to properly determine state regulations did not meet the requirements of the Clean 

Water Act. 

Section 303(c)(4) of the Clean Water Act directs the EPA Administrator to prepare and publish proposed regulations 

setting forth a revised or new water quality standard for the navigable waters involved in the following two situations: 

a) If a revised or new water quality standard submitted by such State under paragraph (3) of this subsection for such 

waters is determined by the Administrator not to be consistent with the applicable requirements of this Act, or 

b) In any case where the Administrator determines that a revised or new standard is necessary to meet the 

requirements of this Act. The Administrator shall promulgate any revised or new standard under this paragraph not later 

than ninety days after he publishes such proposed standards, unless prior to such promulgation, such State has 

adopted a revised or new water quality standards which the Administrator determines to be in accordance with this Act. 

(Emphasis added). CWA §303(c)(4)(a) and (b). 

On January 14,2009, the EPA purportedly determined under Section 303(c)(4)(b) that new or revised water quality 

standards in the form of numeric nutrient water quality criteria are necessary to meet the requirements of the Clean 

Water Act in the State of Florida.[1] In reaching this determination, the EPA found that Florida's reliance on a casebycase site-specific data interpretation of its narrative nutrient criterion was insufficient to ensure protection of applicable 

designated uses.[2] EPA indicated it expected to propose numeric nutrient criteria for lakes and flowing waters within 12 

months, and for estuarine and coastal waters within 24 months, of the January 14, 2009 determination. However, the 

EPA failed to specifically identify how the State water quality standards failed to be consistent with the applicable 

requirements of the Clean Water Act. 

[1] Water Quality Standards for the State ofFlorida's Lakes and Flowing Waters, 75 Fed. Reg. 4174,4175, 4181 

(proposed January 26, 20I0)(to be codified at 40 CFR Part 131). 

[2] Id. 

Comment ID 1770-1.001.026 

11/19/2010 02:48 PM EST 2-1788
 
Chapter 2 - Comment Documents Background 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of Plant City 

Furthermore, the EPA clearly exceeds its authority in imposing new numeric standards in watersheds where the DEP 

has already established site-specific numeric water quality standards. Nutrient standards have been adopted for a 

number of watersheds through the TMDL process. The EPA was provided with the opportunity to review the numeric 

standards and provide comments, but offered no indication that these criteria failed to meet the requirements of the Act. 

Therefore, absent a specific finding that each of these numeric criteria fails to meet the Act's requirements, the EPA 

may not impose the Proposed Rule on these water bodies pursuant to Clean Water Act Section 303(c)(4)(a) and (b). 

B. The Proposed Rule Exceeds the EPA's Authority Under the Clean Water Act 

As previously discussed, Section 303(c) of the Act directs states to adopt water quality standards for navigable 

waters[7] and requires the state water quality standards include the designated use or uses to be made of the waters 

and criteria that protect those uses.[8] EPA recognizes this limitation on authority in the Proposed Rule as follows: 

The Clean Water Act defines 'navigable waters' to mean 'the waters of the United States, including territorial seas'.[9] 

Whether a particular water body is a water of the United States is a water body-specific determination, Every water 

body that is a water of the United States requires protection under the CWA. 

Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4183 (proposed January 26, 

20l0)(to be codified at 40 CFR Part 131). 

However, as written, the Proposed Rule ignores this limitation and applies to water bodies that are not navigable 

waters. The EPA provides that the "criteria in the Proposed Rule apply to lakes and flowing waters of the State of 

Florida." The Proposed Rule defines "lakes and flowing waters" to mean inland surface waters that have been classified 

by Florida as "Class I (Potable Water Supplies Use) or Class III (Recreation, Propagation and Maintenance of a 

Healthy, Well-Balanced Population of Fish and Wildlife Use) water bodies pursuant to Florida Administrative Code 

(F.A.C.) Rule 62-302.400, excluding wetlands, and which are predominantly fresh waters." [10] 

Assuming that Section 303(c)(4)(B) of the Act authorizes the Administrator to determine that a new or revised standard 

is needed in the State of Florida, the Clean Water Act limits EPA's authority to promulgate this standard to navigable 

waters.[11] The EPA must recognize and clarify that waters of the state which do not fall within the definition of 

navigable waters are not subject to the criteria limits of the Proposed Rule. 

"Navigable Waters" 

The constitutional basis for Congress' regulation of waters is the Commerce Clause. In Solid Waste Agency ofNorthern 

Cook County v. United States Army Corps of Engineers ("SWANCC"), 531 U.S. 159 (2001), the United States Supreme 

Court addressed the United States Army Corps of Engineers ("Corps") interpretation of the term "navigable waters" and 

provided a significant analysis regarding the expansiveness of the term. In SWANCC, the Supreme Court addressed 

the question of whether the term "navigable waters" under the Act extended to include intrastate waters used as habitat 

by migratory birds. Because the Supreme Court determined the Clean Water Act did not extend to these waters, it did 

11/19/2010 02:48 PM EST 2-1789
 
Chapter 2 - Comment Documents Background 

not reach the second question presented of whether Congress could exercise such authority consisterrt with the 

Commerce Clause. SWANCC at 531 U.S. 166. 

In reaching its decision, the Supreme Court rejected the Corps use of the "Migratory Bird Rule" to assert jurisdiction 

over the site at issue. The Corps argued the Clean Water Act included nonnavigable, isolated intrastate waters based 

upon the presence of migratory birds that crossed state lines. However, the Supreme Court concluded that the 

"Migratory Bird Rule" is not fairly supported by the Clean Water Act. SWANCC at 531 U.S. 167. The Court held that to 

constitrrte "navigable waters" under the Act, a water or wetland must possess a "significant nexus" to waters that are or 

were navigable in fact or that could reasonably be so made. Id. 

The Supreme Court further elaborated on the importance of the word "navigable" in interpreting the statrrte. To hold that 

isolated ponds wholly located within the state were covered under the Act would assume that "the use of the word 

navigable in the statute ...does not have any independent significance. SWANCC at 531 U.S. 172. The Supreme Court 

refused to agree "that Congress' separate definitional use of the phrase 'waters of the United States' constitutes a basis 

for reading the term "navigable waters" out ofthe statute." SWAJ.l\/CC at 531 U.S. 172. 

Furthermore, the Supreme Court recognized Congress' intent to "recognize, preserve, and protect the primary 

responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use 

(irrcluding restoration, preservation and enhancement) of land and water resources" and refused to encroach on state 

power. SWANCC at 531 U.S. 166-167. The Supreme Court found the Corps' rule extending the definition of "navigable 

waters" under the Clean Water Act to include intrastate waters used as habitat to migratory birds which cross state lines 

was not entitled to Chevron deference. SWANCC at 531 U.S. 172-173. The Supreme Court noted the concern that an 

agency interpretation of a statute exceeds limits of power granted by Congress is heightened where interpretation alters 

the federal-state framework by permitting federal encroachment upon a traditional state power. SWANCC at 531 U.S. 

172. "Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the 'Migratory Bird Rule' 

would result in a significant impingement of States' traditional and primary power over land and water use." SWANCC at 

531 U.S. 174 (citing Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30 (1994)). 

Similarly, with the Proposed Rule, the EPA is attempting to impinge upon the State's traditional power to regulate 

waters of the state that are not "navigable waters" as defined in the Clean Water Act or which do not have a significant 

nexus to navigable waters. The State of Florida is authorized to regulate waters within the state that are not otherwise 

considered "navigable waters" and has chosen to do so in the case of nutrients using a narrative standard. However, 

many of these "nonnavigable" waters are designated by the State as Class I or Class III waters and would therefore 

become subject to the EPA's Proposed Rule. Because the Proposed Rule is a federally implemented rule and is not 

adopted by the State, the EPA's jurisdiction is limited to "navigable waters" and the Proposed Rule exceeds EPA's 

authority. 

The Supreme Court again addressed the definitions of the terms "navigable waters" and "waters of the United States" in 

Rapanos v. United States, 126 S. Ct. 2208 (2006). In Rapanos, which involved two consolidated cases, the United 

States brought civil enforcement proceedings against the Rapanos petitioners, who backfilled wetlands lying near 

ditches or man-made drains that eventually empty into traditional navigable waters without a permit. 

In perhaps what is the most direct explanation to date of what the term includes, the Supreme Court entered a fractured 

opinion wherein the plurality held the term "navigable waters" included "only those relatively permanent, standing or 

11/19/2010 02:48 PM EST 2-1790
 
Chapter 2 - Comment Documents Background 

continuously flowing bodies of water 'forming geographic features' that are describe in ordinary parlance as 'streams,' 

'oceans, rivers, [and] lakes" and does not include "channels through which water flows intermittently or ephemerally, or 

channels that periodically provide drainage for rainfall. Rapanos at 126 S. Ct. 2221, 2225. The plurality emphasized that 

"navigable waters" are "continuously present, fixed bodies of water, as opposed to ordinarily dry channels through 

which water occasionally or intermittently flows." Id. at 2221. In distinguishing itself from Justice Kennedy's concurring 

opinion, the plurality found that "relatively continuous flow is a necessary condition for qualification as a [navigable] 

'water,' not an adequate condition." Id. at 2223. 

However, the Proposed Rule applies to all Class I or Class III waters of the State whether intermittent or continuously 

flowing. As such, the Proposed Rule applies to waters not included within the definition of "navigable waters." 

Furthermore, in applying this definition, the plurality specifically found the Corps had "stretched the term 'waters of the 

United States' beyond parody" when asserting jurisdiction over '''ephemeral streams,' 'wet meadows,' storm sewers and 

culverts, 'directional sheet flow during storm events,' drain tiles, man-made drainage ditches, and dry arroyos in the 

middle of the desert." Id. In supporting its holding, the Supreme Court focuses on the Act's language itself, which 

"categorizes channels and conduits that typically carry intermittent flows of water separately from 'navigable waters,' by 

including them in the definition of 'point source. '" 

These definitions conceive of 'point sources' and 'navigable waters' as separate and distinct categories. ... The separate 

classification of "ditch[es], channel[s], and conduit[s]" - which are terms ordinarily used to describe the watercourses 

through which intermittent waters typically flow - shows that these are by and large not "waters of the United States." 

Id. The plurality addresses Justice Kennedy's argument that ditches, channels, conduits and the like "can all hold water 

intermittently," by pointing out that when such waters hold water permanently, they are referred to as "rivers," "creeks," 

or "streams." Id. The plurality goes on to hold 

It is also true that highly artificial, manufactured, enclosed conveyance systems- such as "sewage treatment plants," 

post, at 2243 (opinion of KENNEDY, J), and the "mains, pipes, hydrants, machinery, buildings, and other 

appurtenances and incidents of the city... "system of waterworks," .. .likely do not qualify as "waters of the United 

States," despite the fact that they may contain continuous flows of water. 

Id. 

In the Proposed Rule, the EPA appears to be stretching its jurisdiction beyond parody and ignoring this Supreme Court 

decision by attempting to regulate intermittent streams outside of South Florida, the canals in South Florida and other 

man-made drainage ditches that were constructed for flood control purposes. To allow the EPA to regulate these waters 

as "waters of the US" would stretch the outer limits of Congress's commerce power and raise difficult questions about 

the ultimate scope ofthat power. See Rapanos at 126 S. Ct 2224; SWA.NCC at 531 U.S. 173. 

In his concurring opinion, Justice Kennedy followed the decision in SWANCC and found that water can only be 

"navigable" under the Act if it possesses a significant nexus to waters that are or were navigable in fact. Rapanos at 

126 S. Ct 2236. Under this argument, absent a significant nexus in instances where there is no close connection 

between a nonnavigable water Or wetland and a navigable water, jurisdiction under the Act is lacking. Id at 2241. 

Furthermore, a "mere hydrologic connection" would not necessarily be enough to meet the "significant nexus" test. Id. at 

11/19/2010 02:48 PM EST 2-1791
 
Chapter 2 - Comment Documents Background 

2250-2251. 

In United States v. Robison, et al, 505 F.3d 1208 (111h eir. 2007), the Eleventh Circuit Court of Appeals considered the 

Rapanos decision in detail in order to determine exactly how and to what extent the district court's "navigable water" 

instruction was erroneous. In Robison, the defendants appealed their district court sentence based on an allegation that 

the district court's jury charge that "navigable waters" include "any stream which may eventually flow into a navigable 

stream or river," and that such stream may be man-made and flow "only intermittently," was erroneous and not 

harmless error. Robison at 505 F.3d 1208. In reaching this decision, the Court adopted Justice Kennedy's "significant 

nexus" test as the governing rule of Rapanos and applied this test for purposes of determining whether the jury 

instruction on the definition of "navigable waters" was harmless error. Robison at 505 F.3d 1216. 

In attempt to provide further clarification to the EPA regions and the Corp districts implementing the Supreme Court 

decisions addressing the jurisdiction over waters of the United States under the Clean Water Act, the EPA issued a 

guidance memorandum.[12] In this memorandum, the EPA summarized the following key points: 

The agencies will assert jurisdiction over the following waters: 

o Traditional navigable waters 

o Wetlands adjacent to traditional navigable waters 

o Non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries typically 

flow year-round or have continuous flow at least seasonally (e.g., typically three months) 

o Wetlands that directly abut such tributaries 

The agencies will decide jurisdiction over the following waters based on a fact-specific analysis to determine whether 

they have a significant nexus with a traditional navigable water: 

o Non-navigable tributaries that are not relatively permanent 

o Wetlands adjacent to non-navigable tributaries that are not relatively permanent 

o Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary 

The agencies generally will not assert jurisdiction over the following features: 

o Swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent or short duration 

flow) 

o Ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively 

permanent flow of water 

The agencies will apply the significant nexus standard as follows: 

o A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions 

performed by all wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and 

biological integrity of downstream traditional navigable waters 

o Significant nexus includes consideration of hydrologic and ecologic factors 

Thus, the EPA appears to be incorporating the plurality opinion in Rapanos and the "significant nexus" test of SWANCC 

in determining which waters are subject to the EPA's jurisdiction. As discussed throughout this analysis, the Proposed 

Rule disregards these limitations on the EPA's authority and includes all Class I or Class III waters in the State 

regardless of whether they meet the permanent flow or significant nexus tests. 

11/19/2010 02:48 PM EST 2-1792
 
Chapter 2 - Comment Documents Background 

Groundwater 

Because groundwater is not included within the definition of navigable waters and is outside the scope of the Clean 

Water Act, the EPA is not authorized to regulate groundwater. Under the Proposed Rule, the EPA exceeds its authority 

under the Clean Water Act by regulating directly and indirectly regulating groundwater. 

Springs are formed where groundwater meets the Earth's surface. The EPA must determine where the groundwater 

ends and the surface water spring begins. Similarly, certain rivers, streams and South Florida canals ate nothing more 

than an expression of groundwater because they are cuts into the aquifer. For example, the Suwannee and Santa Fe 

rivers are streams which are spring fed and representations of groundwater. 

[7] CWA §303(c)(2)(a) (33 U.S.c. 1313(c)); Water Quality Standards for the State of Florida' s Lakes and Flowing 

Waters, 75 Fed. Reg. 4183 (proposed January 26,2010)(00 be codified at 40 CFR Part 131). 

[8] 40 CFR 131. 

[9] Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4183 (proposed January 

26, 20 IOXto be codified at 40 CFR Part 131); CWA §502(7). 

[10] Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4180-4181 (proposed 

January 26, 2010Xto be codified at 40 CFR Part 131). 

[11] 33 U.S.C. 1362(7) 

[12] Clean Water Act Jurisdiction Following the Us. Supreme Court's Decision in Rapanos v. United States & Carabell v. 

United States (June 5, 2007). 

Comment ID 1771-1.001.029 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of Seminole County 

II. EPA Authority Under the Clean Water Act 

A. The EPA Administrator failed to properly determine that state regulations did not meet the requirements of the Clean 

Water Act. 

Section 303(c)(4) of the Clean Water Act directs the EPA Administrator to prepare and publish proposed regulations 

setting forth a revised or new water quality standard for the navigable waters involved in the following two situations: 

a) If a revised or new water quality standard submitted by such State under paragraph (3) of this subsection for such 

waters is determined by the Administrator not to be consistent with the applicable requirements of this Act, or 

b) In any case where the Administrator determines that a revised or new standard is necessary to meet the 

requirements of this Act. The Administrator shall promulgate any revised or new standard under this paragraph not later 

than ninety days after he publishes such proposed standards, unless prior to such promulgation, such State has 

adopted a revised or new water quality standards which the Administrator determines to be in accordance with this Act. 

11/19/2010 02:48 PM EST 2-1793
 
Chapter 2 - Comment Documents Background 

(Emphasis added). CWA §303(c)(4)(a) and (b). 

On January 14, 2009, the EPA purportedly determined under Section 303(c)(4)(b) that new or revised water quality 

standards in the form of numeric nutrient water quality criteria are necessary to meet the requirements of the Clean 

Water Act in the State of Florida.[1] In reaching this determination, the EPA found that Florida's reliance on a casebycase site-specific data interpretation of its narrative nutrient criterion was insufficient to ensure protection of applicable 

designated uses.[2] EPA indicated it expected to propose numeric nutrient criteria for lakes and flowing waters within 12 

months, and for estuarine and coastal waters within 24 months, of the January 14, 2009 determination. However, the 

EPA failed to specifically identify how the State water quality standards failed to be consistent with the applicable 

requirements of the Clean Water Act. 

[1] Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4174, 4175, 4181 

(proposed January 26, 2010)(to be codified at 40 CFR Part 131). 

[2] Id. 

Comment ID 1771-1.001.033 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of Seminole County 

Furthermore, the EPA clearly exceeds its authority in imposing new numeric standards in watersheds where the DEP 

has already established site-specific numeric water quality standards. Numeric nutrient standards have been adopted 

for a number of watersheds through the TMDL process. The EPA was provided with the opportunity to review the 

numeric standards and provide comments, but offered no indication that these criteria failed to meet the requirements of 

the Act. Therefore, absent a specific finding that each of these numeric criteria fails to meet the Act's requirements, the 

EPA may not impose the Proposed Rule on these water bodies pursuant to Clean Water Act Section 303(c)(4)(a) and 

(b). 

B. The Proposed Rule Exceeds the EPA's Authority Under the Clean Water Act 

As previously discussed, Section 303(c) of the Act directs states to adopt water quality standards for navigable 

waters[7] and requires the state water quality standards include the designated use or uses to be made of the waters 

and criteria that protect those uses.[8] EPA recognizes this limitation on authority in the Proposed Rule as follows: 

The Clean Water Act defines ‘navigable waters' to mean ‘the waters of the United States, including territorial seas'.[9] 

Whether a particular water body is a water of the United States is a water body-specific determination. Every water 

body that is a water of the United States requires protection under the CWA. 

Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4183 (proposed January 26, 

2010)(to be codified at 40 CFR Part 131). 

However, as written, the Proposed Rule ignores this limitation and applies to water bodies that are not navigable 

11/19/2010 02:48 PM EST 2-1794
 
Chapter 2 - Comment Documents Background 

waters. The EPA provides that the "criteria in the Proposed Rule apply to lakes and flowing waters of the State of 

Florida." The Proposed Rule defines "lakes and flowing waters" to mean inland surface waters that have been classified 

by Florida as "Class I (Potable Water Supplies Use) or Class III (Recreation, Propagation and Maintenance of a 

Healthy, Well-Balanced Population of Fish and Wildlife Use) water bodies pursuant to Florida Administrative Code 

(F.A.C.) Rule 62-302.400, excluding wetlands, and which are predominantly fresh waters." [10] 

Assuming that Section 303(c)(4)(B) of the Act authorizes the Administrator to determine that a new or revised standard 

is needed in the State of Florida, the Clean Water Act limits EPA's authority to promulgate this standard to navigable 

waters.[11] The EPA must recognize and clarify that waters of the state which do not fall within the definition of 

navigable waters are not subject to the criteria limits of the Proposed Rule. 

"Navigable Waters" 

The constitutional basis for Congress' regulation of waters is the Commerce Clause. In Solid Waste Agency of Northern 

Cook County v. United States Army Corps of Engineers ("SWANCC"), 531 U.S. 159 (2001), the United States Supreme 

Court addressed the United States Army Corps of Engineers ("Corps") interpretation of the term "navigable waters" and 

provided a significant analysis regarding the expansiveness of the term. In SWANCC, the Supreme Court addressed 

the question of whether the term "navigable waters" under the Act extended to include intrastate waters used as habitat 

by migratory birds. Because the Supreme Court determined the Clean Water Act did not extend to these waters, it did 

not reach the second question presented of whether Congress could exercise such authority consistent with the 

Commerce Clause. SWANCC at 531 U.S. 166. 

In reaching its decision, the Supreme Court rejected the Corps use of the "Migratory Bird Rule" to assert jurisdiction 

over the site at issue. The Corps argued the Clean Water Act included nonnavigable, isolated intrastate waters based 

upon the presence of migratory birds that crossed state lines. However, the Supreme Court concluded that the 

"Migratory Bird Rule" is not fairly supported by the Clean Water Act. SWANCC at 531 U.S. 167. The Court held that to 

constitute "navigable waters" under the Act, a water or wetland must possess a "significant nexus" to waters that are or 

were navigable in fact or that could reasonably be so made. Id. 

The Supreme Court further elaborated on the importance of the word "navigable" in interpreting the statute. To hold that 

isolated ponds wholly located within the state were covered under the Act would assume that "the use of the word 

navigable in the statute...does not have any independent significance. SWANCC at 531 U.S. 172. The Supreme Court 

refused to agree "that Congress' separate definitional use of the phrase ‘waters of the United States' constitutes a basis 

for reading the term "navigable waters" out of the statute." SWANCC at 531 U.S. 172. 

Furthermore, the Supreme Court recognized Congress' intent to "recognize, preserve, and protect the primary 

responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use 

(including restoration, preservation and enhancement) of land and water resources" and refused to encroach on state 

power. SWANCC at 531 U.S. 166-167. The Supreme Court found the Corps' rule extending the definition of "navigable 

waters" under the Clean Water Act to include intrastate waters used as habitat to migratory birds which cross state lines 

was not entitled to Chevron deference. SWANCC at 531 U.S. 172-173. The Supreme Court noted the concern that an 

agency interpretation of a statute exceeds limits of power granted by Congress is heightened where interpretation alters 

the federal-state framework by permitting federal encroachment upon a traditional state power. SWANCC at 531 U.S. 

172. "Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the ‘Migratory Bird Rule' 

11/19/2010 02:48 PM EST 2-1795
 
Chapter 2 - Comment Documents Background 

would result in a significant impingement of States' traditional and primary power over land and water use." SWANCC at 

531 U.S. 174 (citing Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30 (1994)). 

Similarly, with the Proposed Rule, the EPA is attempting to impinge upon the State's traditional power to regulate 

waters of the state that are not "navigable waters" as defined in the Clean Water Act or which do not have a significant 

nexus to navigable waters. The State of Florida is authorized to regulate waters within the state that are not otherwise 

considered "navigable waters" and has chosen to do so in the case of nutrients using a narrative standard as well as a 

numeric standard where TMDLs have been adopted. However, many of these "nonnavigable" waters are designated by 

the State as Class I or Class III waters and would therefore become subject to the EPA's Proposed Rule. Because the 

Proposed Rule is a federally implemented rule and is not adopted by the State, the EPA's jurisdiction is limited to 

"navigable waters" and the Proposed Rule exceeds EPA's authority. 

The Supreme Court again addressed the definitions of the terms "navigable waters" and "waters of the United States" in 

Rapanos v. United States, 126 S. Ct. 2208 (2006). In Rapanos, which involved two consolidated cases, the United 

States brought civil enforcement proceedings against the Rapanos petitioners, who backfilled wetlands lying near 

ditches or man-made drains that eventually empty into traditional navigable waters without a permit. 

In perhaps what is the most direct explanation to date of what the term includes, the Supreme Court entered a fractured 

opinion wherein the plurality held the term "navigable waters" included "only those relatively permanent, standing or 

continuously flowing bodies of water ‘forming geographic features' that are describe in ordinary parlance as ‘streams,' 

‘oceans, rivers, [and] lakes" and does not include "channels through which water flows intermittently or ephemerally, or 

channels that periodically provide drainage for rainfall. Rapanos at 126 S. Ct. 2221, 2225. The plurality emphasized that 

"navigable waters" are "continuously present, fixed bodies of water, as opposed to ordinarily dry channels through 

which water occasionally or intermittently flows." Id. at 2221. In distinguishing itself from Justice Kennedy's concurring 

opinion, the plurality found that "relatively continuous flow is a necessary condition for qualification as a [navigable] 

‘water,' not an adequate condition." Id. at 2223. 

However, the Proposed Rule applies to all Class I or Class III waters of the State whether intermittent or continuously 

flowing. As such, the Proposed Rule applies to waters not included within the definition of "navigable waters." 

Furthermore, in applying this definition, the plurality specifically found the Corps had "stretched the term ‘waters of the 

United States' beyond parody" when asserting jurisdiction over "‘ephemeral streams,' ‘wet meadows,' storm sewers and 

culverts, ‘directional sheet flow during storm events,' drain tiles, man-made drainage ditches, and dry arroyos in the 

middle of the desert." Id. In supporting its holding, the Supreme Court focuses on the Act's language itself, which 

"categorizes channels and conduits that typically carry intermittent flows of water separately from ‘navigable waters,' by 

including them in the definition of ‘point source.'" 

These definitions conceive of ‘point sources' and ‘navigable waters' as separate and distinct categories. ... The separate 

classification of "ditch[es], channel[s], and conduit[s]" - which are terms ordinarily used to describe the watercourses 

through which intermittent waters typically flow - shows that these are by and large not "waters of the United States." 

Id. The plurality addresses Justice Kennedy's argument that ditches, channels, conduits and the like "can all hold water 

intermittently," by pointing out that when such waters hold water permanently, they are referred to as "rivers," "creeks," 

or "streams." Id. The plurality goes on to hold 

11/19/2010 02:48 PM EST 2-1796
 
Chapter 2 - Comment Documents Background 

It is also true that highly artificial, manufactured, enclosed conveyance systems- such as "sewage treatment plants," 

post, at 2243 (opinion of KENNEDY, J), and the "mains, pipes, hydrants, machinery, buildings, and other 

appurtenances and incidents of the city... "system of waterworks," ...likely do not qualify as "waters of the United 

States," despite the fact that they may contain continuous flows of water. 

Id. 

In the Proposed Rule, the EPA appears to be stretching its jurisdiction beyond parody and ignoring this Supreme Court 

decision by attempting to regulate intermittent streams outside of South Florida, the canals in South Florida and other 

man-made drainage ditches that were constructed for flood control purposes. To allow the EPA to regulate these waters 

as "waters of the US" would stretch the outer limits of Congress's commerce power and raise difficult questions about 

the ultimate scope of that power. See Rapanos at 126 S. Ct 2224; SWANCC at 531 U.S. 173. 

In his concurring opinion, Justice Kennedy followed the decision in SWANCC and found that water can only be 

"navigable" under the Act if it possesses a significant nexus to waters that are or were navigable in fact. Rapanos at 

126 S. Ct 2236. Under this argument, absent a significant nexus in instances where there is no close connection 

between a nonnavigable water or wetland and a navigable water, jurisdiction under the Act is lacking. Id at 2241. 

Furthermore, a "mere hydrologic connection" would not necessarily be enough to meet the "significant nexus" test. Id. at 

2250-2251. 

In United States v. Robison, et al, 505 F.3d 1208 (11th Cir. 2007), the Eleventh Circuit Court of Appeals considered the 

Rapanos decision in detail in order to determine exactly how and to what extent the district court's "navigable water" 

instruction was erroneous. In Robison, the defendants appealed their district court sentence based on an allegation that 

the district court's jury charge that "navigable waters" include "any stream which may eventually flow into a navigable 

stream or river," and that such stream may be man-made and flow "only intermittently," was erroneous and not 

harmless error. Robison at 505 F.3d 1208. In reaching this decision, the Court adopted Justice Kennedy's "significant 

nexus" test as the governing rule of Rapanos and applied this test for purposes of determining whether the jury 

instruction on the definition of "navigable waters" was harmless error. Robison at 505 F.3d 1216. 

In attempt to provide further clarification to the EPA regions and the Corp districts implementing the Supreme Court 

decisions addressing the jurisdiction over waters of the United States under the Clean Water Act, the EPA issued a 

guidance memorandum.[12] In this memorandum, the EPA summarized the following key points: 

- The agencies will assert jurisdiction over the following waters: 

o Traditional navigable waters 

o Wetlands adjacent to traditional navigable waters 

o Non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries typically 

flow yearround or have continuous flow at least seasonally (e.g., typically three months) 

o Wetlands that directly abut such tributaries 

- The agencies will decide jurisdiction over the following waters based on a fact-specific analysis to determine whether 

they have a significant nexus with a traditional navigable water: 

o Non-navigable tributaries that are not relatively permanent 

11/19/2010 02:48 PM EST 2-1797
 
Chapter 2 - Comment Documents Background 

o Wetlands adjacent to non-navigable tributaries that are not relatively permanent 

o Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary 

- The agencies generally will not assert jurisdiction over the following features: 

o Swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent or short duration 

flow) 

o Ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively 

permanent flow of water 

- The agencies will apply the significant nexus standard as follows: 

o A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions 

performed by all wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and 

biological integrity of downstream traditional navigable waters 

o Significant nexus includes consideration of hydrologic and ecologic factors 

Thus, the EPA appears to be incorporating the plurality opinion in Rapanos and the "significant nexus" test of SWANCC 

in determining which waters are subject to the EPA's jurisdiction. As discussed throughout this analysis, the Proposed 

Rule disregards these limitations on the EPA's authority and includes all Class I or Class III waters in the State 

regardless of whether they meet the permanent flow or significant nexus tests. 

Groundwater 

Because groundwater is not included within the definition of navigable waters and is outside the scope of the Clean 

Water Act, the EPA is not authorized to regulate groundwater. Under the Proposed Rule, the EPA exceeds its authority 

under the Clean Water Act by regulating directly and indirectly regulating groundwater. 

Springs are formed where groundwater meets the Earth's surface. The EPA must determine where the groundwater 

ends and the surface water spring begins. Similarly, certain rivers, streams and South Florida canals are nothing more 

than an expression of groundwater because they are cuts into the aquifer. For example, the Suwannee and Santa Fe 

rivers are streams which are spring fed and representations of groundwater. 

[7] CWA §303(c)(2)(a) (33 U.S.C. 1313(c)); Water Quality Standards for the State of Florida's Lakes and Flowing 

Waters, 75 Fed. Reg. 4183 (proposed January 26, 2010)(to be codified at 40 CFR Part 131). 

[8] 40 CFR 131. 

[9] Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4183 (proposed January 

26, 2010)(to be codified at 40 CFR Part 131); CWA §502(7). 

[10] Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4180-4181 (proposed 

January 26, 2010)(to be codified at 40 CFR Part 131). 

[11] 33 U.S.C. 1362(7) 

[12] Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell 

v. United States (June 5, 2007). 

Comment ID 1772-1.001.023 

11/19/2010 02:48 PM EST 2-1798
 
Chapter 2 - Comment Documents Background 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of City of Titusville 

II. EPA Authority Under the Clean Water Act 

A. The EPA Administrator failed to properly determine state regulations did not meet the requirements ofthe Clean 

Water Act. 

Section 303(c)(4) of the Clean Water Act directs the EPA Administrator to prepare and publish proposed regulations 

setting forth a revised or new water quality standard for the navigable waters involved in the following two situations: 

a) If a revised or new water quality standard submitted by such State under paragraph (3) of this subsection for such 

waters is determined by the Administrator not to be consistent with the applicable requirements of this Act, or 

b) In any case where the Administrator determines that a revised or new standard is necessary to meet the 

requirements of this Act. The Administrator shall promulgate any revised or new standard under this paragraph not later 

than ninety days after he publishes such proposed standards, unless prior to such promulgation, such State has 

adopted a revised or new water quality standards which the Administrator determines to be in accordance with this Act. 

(Emphasis added). CWA §303(c)(4)(a) and (b). 

On January 14,2009, the EPA purportedly determined under Section. 303(c)(4)(b) that new or revised water quality 

standards in the form of numeric nutrient water quality criteria are necessary to meet the requirements of the Clean 

Water Act in the State of Florida.[1] In reaching this determination, the EPA found that Florida's reliance on a casebycase site-specific data interpretation of its narrative nutrient criterion was insufficient to ensure protection of applicable 

designated uses.[2] EPA indicated it expected to propose numeric nutrient criteria for lakes and flowing waters within 12 

months, and for estuarine and coastal waters within 24 months, of the January 14, 2009 determination. However, the 

EPA failed to specifically identify how the State Water quality standards failed to be consistent with the applicable 

requirements ofthe Clean Water Act. 

[1] Waler Quality Standards for the Stale of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4174, 4175, 

4181 (proposed January 26, 2010)(to be codified at 40 CFR Part 131). 

[2] Id. 

Comment ID 1772-1.001.027 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of City of Titusville 

Furthermore, the EPA clearly exceeds its authority in imposing new numeric standards in watersheds where the DEP 

has already established site-specific numeric water quality standards. Nutrient standards have been adopted for a 

number of watersheds through the TMDL process. The EPA was provided with the opportunity to review the numeric 

11/19/2010 02:48 PM EST 2-1799
 
Chapter 2 - Comment Documents Background 

standards and provide comments, but offered no indication that these criteria failed to meet the requirements of the Act. 

Therefore, absent a specific finding that each of these numeric criteria fails to meet the Act's requirements, the EPA 

may not impose the Proposed Rule on these water bodies pursuant to Clean Water Act Section 303(c)(4)(a) and (b). 

B. The Proposed Rule Exceeds the EPA's Authority Under the Clean Water Act 

As previously discussed, Section 303(c) of the Act directs states to adopt water quality standards for navigable 

waters[7] and requires the state water quality standards include the designated use or uses to be made of the waters 

and criteria that protect those uses.[8] EPA recognizes this limitation on authority in the Proposed Rule as follows: 

The Clean Water Act defines 'navigable waters' to mean 'the waters of the United States, including territorial seas'.[9] 

Whether a particular water body is a water of the United States is a water body-specific determination. Every water 

body that is a water of the United States requires protection under the CWA. 

Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4183 (proposed January 26, 

2010)(to be codified at 40 CFR Part 131). 

However, as written, the Proposed Rule ignores this limitation and applies to water bodies that are not navigable 

waters. The EPA provides that the "criteria in the Proposed Rule apply to lakes and flowing waters of the State of 

Florida." The Proposed Rule defines "lakes and flowing waters" to mean inland surface waters that have been classified 

by Florida as "Class I (Potable Water Supplies Use) or Class III (Recreation, Propagation and Maintenance of a 

Healthy, Well-Balanced Population of Fish and Wildlife Use) water bodies pursuant to Florida Administrative Code 

(F.A.C.) Rule 62-302.400, excluding wetlands, and which are predominantly fresh waters." [10] 

Assuming that Section 303(c)(4)(B) of the Act authorizes the Administrator to determine that a new or revised standard 

is needed in the State of Florida, the Clean Water Act limits EPA's authority to promulgate this standard to navigable 

waters.[11] The EPA must recognize and clarify that waters of the state which do not fall within the definition of 

navigable waters are not subject to the criteria limits of the Proposed Rule. 

"Navigable Waters" 

The constitutional basis for Congress' regulation of waters is the Commerce Clause. In Solid Waste Agency a/Northern 

Cook County v. United States Army Corps of Engineers ("SWANCC''), 531 U.S. 159 (2001), the United States Supreme 

Court addressed the United States Army Corps of Engineers ("Corps") interpretation of the term "navigable waters" and 

provided a significant analysis regarding the expansiveness of the term. In SWANCC, the Supreme Court addressed 

the question of Whether the term "navigable waters" under the Act extended to include intrastate waters used as habitat 

by migratory birds. Because the Supreme Court determined the Clean Water Act did not extend to these waters, it did 

not reach the second question presented of whether Congress could exercise such authority consistent with the 

Commerce Clause. SWANCC at 531 U.S. 166. 

In reaching its decision, the Supreme Court rejected the Corps use of the "Migratory Bird Rule" to assert jurisdiction 

over the site at issue. The Corps argued the Clean Water Act included nonnavigable, isolated intrastate waters based 

upon the presence of migratory birds that crossed state lines. However, the Supreme Court concluded that the 

"Migratory Bird Rule" is not fairly supported by the Clean Water Act. SWANCC at 531 U.S. 167. The Court held that to 

11/19/2010 02:48 PM EST 2-1800
 
Chapter 2 - Comment Documents Background 

constitute "navigable waters" under the Act, a water or wetland must possess a "significant nexus" to waters that are or 

were navigable in fact or that could reasonably be so made. Id. 

The Supreme Court further elaborated on the importance of the word "navigable" in interpreting the statute. To hold that 

isolated ponds wholly located within the state were covered under the Act would assume that "the use of the word 

navigable in the statute...does not have any independent significance. SWANCC at 531 U.S. 172. The Supreme Court 

refused to agree "that Congress' separate definitional use of the phrase 'waters of the United States' constitutes a basis 

for reading the tenn "navigable waters" out of the statute." SWANCC at 531 U.S. 172. 

Furthermore, the Supreme Court recognized Congress' intent to "recognize, preserve, and protect the primary 

responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use 

(including restoration, preservation and enhancement) of land and water resources" and refused to encroach on state 

power. SWANCC at 531 U.S. 166-167. The Supreme Court found the Corps' rule extending the definition of "navigable 

waters" under the Clean Water Act to include intrastate waters used as habitat to migratory birds which cross state lines 

was not entitled to Chevron deference. SWANCC at 531 U.S. 172-173. The Supreme Court noted the concern that an 

agency interpretation of a statute exceeds limits of power granted by Congress is heightened where interpretation alters 

the federal-state framework by permitting federal encroachment upon a traditional state power. SWANCC at 531 U.S. 

172. "Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the 'Migratory Bird Rule' 

would result in a significant impingement of States' traditional and primary power over land and water use." SWANCC at 

531 U.S. 174 (citing Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30 (1994)). 

Similarly, with the Proposed Rule, the EPA is attempting to impinge upon the State's traditional power to regulate 

waters of the state that are not "navigable waters" as defined in the Clean Water Act or which do not have a significant 

nexus to navigable waters. The State of Florida is authorized to regulate waters within the state that are not otherwise 

considered "navigable waters" and has chosen to do so in the case of nutrients using a narrative standard. However, 

many of these "nonnavigable" waters are designated by the State as Class I or Class III "vaters and \vould therefore 

become subject to the EPA's Proposed Rule. Because the Proposed Rule is a federally implemented rule and is not 

adopted by the State, the EPA's jurisdiction is limited to "navigable waters" and the Proposed Rule exceeds EPA's 

authority. 

The Supreme Court again addressed the definitions of the terms "navigable waters" and "waters of the United States" in 

Rapanos v. United States, 126 S. Ct. 2208 (2006). In Rapanos, which involved two consolidated cases, the United 

States brought civil enforcement proceedings against the Rapanos petitioners, who backfilled wetlands lying near 

ditches or man-made drains that eventually empty into traditional navigable waters without a permit. 

In perhaps what is the most direct explanation to date of what the term includes, the Supreme Court entered a fractured 

opinion wherein the plurality held the tern "navigable waters" included "only those relatively permanent, standing or 

continuously flowing bodies of water 'forming geographic features' that are describe in ordinary parlance as 'streams,' 

'oceans, rivers, [and] lakes" and does not include "channels through which water flows intermittently or ephemerally, or 

channels that periodically provide drainage for rainfall. Rapanos at 126 S. Ct. 2221, 2225. The plurality emphasized that 

"navigable waters" are "continuously present, fixed bodies of water, as opposed to ordinarily dry channels through 

which water occasionally or intermittently flows." Id. at 2221. In distinguishing itself from Justice Kennedy's concurring 

opinion, the plurality found that "relatively continuous flow is a necessary condition for qualification as a [navigable] 

'water,' not an adequate condition." Id. at 2223. 

11/19/2010 02:48 PM EST 2-1801
 
Chapter 2 - Comment Documents Background 

However, the Proposed Rule applies to all Class I or Class III waters of the State whether intermittent or continuously 

flowing. As such, the Proposed Rule applies to waters not included within the definition of "navigable waters." 

Furthermore, in applying this definition, the plurality specifically found the Corps had "stretched the term 'waters of the 

United States' beyond parody" when asserting jurisdiction over '''ephemeral streams,' 'wet meadows,' storm sewers and 

culverts, 'directional sheet flow during storm events,' drain tiles, man-made drainage ditches, and dry arroyos in the 

middle of the desert." Id. In supporting its holding, the Supreme Court focuses on the Act's language itself, which 

"categorizes channels and conduits that typically carry intermittent flows of Water separately from 'navigable waters,' by 

including them in the definition of 'point source.", 

These definitions conceive of 'point sources' and 'navigable waters' as separate and distinct categories. ... The separate 

classification of "ditch[es], channel[s], and conduit[s]" - which are terms ordinarily used to describe the watercourses 

through which intermittent waters typically flow - shows that these are by and large not "waters of the United States." 

Id. The plurality addresses Justice Kennedy's argument that ditches, channels, conduits and the like "can all hold water 

intermittently," by pointing out that when such waters hold water permanently, they are referred to as "rivers," "creeks," 

or "streams." Id. The plurality goes on to hold 

It is also true that highly artificial, manufactured, enclosed conveyance systems- such as "sewage treatment plants," 

post, at 2243 (opinion of KENNEDY, 1), and the "mains, pipes, hydrants, machinery, buildings, and other 

appurtenances and incidents of the city... "system of waterworks," .. .likely do not qualify as "waters of the United 

States," despite the fact that they may contain continuous flows of water. 

Id. 

In the Proposed Rule, the EPA appears to be stretching its jurisdiction beyond parody and ignoring this Supreme Court 

decision by attempting to regulate intermittent streams outside of South Florida, the canals in South Florida and other 

man-made drainage ditches that were constructed for flood control purposes. To allow the EPA to regulate these waters 

as "waters of the US" would stretch the outer limits of Congress's commerce power and raise difficult questions about 

the ultimate scope ofthat power. See Rapanos at 126 S. Ct 2224; SWANCC at 531 U.S, 173. 

In his concurring opinion, Justice Kennedy followed the decision in SWANCC and found that water can only be 

"navigable" under the Act if it possesses a significant nexus to waters that are or were navigable in fact. Rapanos at 

126 S. Ct 2236. Under this argument, absent a significant nexus in instances where there is no close connection 

between a nonnavigable water or wetland and a navigable water, jurisdiction under the Act is lacking. Id at 2241. 

Furthermore, a "mere hydrologic connection" would not necessarily be enough to meet the "significant nexus" test. Id. at 

2250-2251. 

In United States v. Robison, et aI, 505 F.3d 1208 (11th Cir. 2007), the Eleventh Circuit Court of Appeals considered the 

Rapanos decision in detail in order to determine exactly how and to what extent the district court's "navigable water" 

instruction was erroneous. In Robison, the defendants appealed their district court sentence based on an allegation that 

the district court's jury charge that "navigable waters" include "any stream which may eventually flow into a navigable 

stream or rivet," and that such stream may be man-made and flow "only intermittently," was erroneous and not 

11/19/2010 02:48 PM EST 2-1802
 
Chapter 2 - Comment Documents Background 

harmless error. Robison at 505 F.3d 1208. In reaching this decision, the Court adopted Justice Kennedy's "significant 

nexus" test as the governing rule of Rapanos and applied this test for purposes of determining whether the jury 

instruction on the definition of "navigable waters" was harmless error. Robison at 505 F.3d 1216. 

In attempt to provide further clarification to the EPA regions and the Corp districts implementing the Supreme Court 

decisions addressing the jurisdiction over waters of the United States under the Clean Water Act, the EPA issued a 

guidance memorandum.[12] In this memorandum, the EPA summarized the following key points: 

-The agencies will assert jurisdiction over the following waters: 

o Traditional navigable waters 

o Wetlands adjacent to traditional navigable waters 

o Non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries typically 

flow year round or have continuous flow at least seasonally (e.g., typically three months) 

o Wetlands that directly abut such tributaries 

-The agencies will decide jurisdiction over the following waters based on a fact-specific analysis to determine whether 

they have a significant nexus with a traditional navigable water: 

o Non-navigable tributaries that are not relatively permanent 

o Wetlands adjacent to non"navigable tributaries that are not relatively permanent 

o Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary 

-The agencies generally will not assert jurisdiction over the following features: 

o Swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent or short duration 

flow) 

o Ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively 

permanent flow of water 

-The agencies will apply the significant nexus standard as follows: 

o A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions 

performed by all wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and 

biological integrity of downstream traditional navigable waters 

o Significant nexus includes consideration of hydrologic and ecologic factors 

Thus, the EPA appears to be incorporating the plurality opinion in Rapanos and the "significant nexus" test of SWANCC 

in determining which waters are subject to the EPA's jurisdiction. As discussed throughout this analysis, the Proposed 

Rule disregards these limitations on the EPA's authority and includes all Class I or Class III waters in the State 

regardless of whether they meet the permanent flow or significant nexus tests. 

Groundwater 

Because groundwater is not included within the definition of navigable waters and is outside the scope of the Clean 

Water Act, the EPA is not authorized to regulate groundwater. Under the Proposed Rule, the EPA exceeds its authority 

under the Clean Water Act by regulating directly and indirectly regulating groundwater. 

11/19/2010 02:48 PM EST 2-1803
 
Chapter 2 - Comment Documents Background 

Springs are formed where groundwater meets the Earth's surface. The EPA must determine where the groundwater 

ends and the surface water spring begins. Similarly, certain rivers, streams and South Florida canals are nothing more 

than an expression of groundwater because they are cuts into the aquifer. For example, the Suwannee and Santa Fe 

rivers are streams which are spring fed and representations of groundwater. 

[7] CWA §303(c)(2)(a) (33 u.s.c. 1313(c)); Water Quality staudards for the State of Florida's Lakes and Flowing Waters, 

75 Fed. Reg. 4183 (proposed January 26, 2010)(to be codified at 40 CFR Part 131). 

[8] 40 CFR 131. 

[9] Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4183 (proposed January 

26, 2010Xto be codified at 40 CFR Part 131); CWA §502(7). 

[10] Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4180-4181 (proposed 

January 26, 2010)(10 be codified at 40 CFR Part 131). 

[11] 33 U.S.C. 1362(7) 

[12] Clean Water Act Jurisdiction Following the Us. Supreme Court's Decision in Rapanos v. United States & Cambell v. 

United States (June 5, 2007). 

Comment ID 1773-1.001.026 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of Orlando Utilities Commission 

II. EPA Authority Under the Clean Water Act 

A. The EPA Administrator failed to properly determine state regulations did not meet the requirements of the Clean 

Water Act. 

Section 303(c)(4) of the Clean Water Act directs the EPA Administrator to prepare and publish proposed regulations 

setting forth a revised or new water quality standard for the navigable waters involved in the following two situations: 

a) If a revised or new water quality standard submitted by such State under paragraph (3) of this subsection for such 

waters is determined by the Administrator not to be consistent with the applicable requirements of this Act, or 

b) In any case where the Administrator determines that a revised or new standard is necessary to meet the 

requirements of this Act. The Administrator shall promulgate any revised or new standard under this paragraph not later 

than ninety days after he publishes such proposed standards, unless prior to such promulgation, such State has 

adopted a revised or new water quality standards which the Administrator determines to be in accordance with this Act. 

(Emphasis added). CWA §303(c)(4)(a) and (b). 

On January 14,2009, the EPA purportedly determined under Section 303(c)(4)(b) that new or revised water quality 

standards in the form of numeric nutrient water quality criteria are necessary to meet the requirements of the Clean 

Water Act in the State of Florida.[1] In reaching this determination, the EPA found that Florida's reliance on a caseby11/19/2010 02:48 PM EST 2-1804
 
Chapter 2 - Comment Documents Background 

case site-specific data interpretation of its narrative nutrient criterion was insufficient to ensure protection of applicable 

designated uses.[2] EPA indicated it expected to propose numeric nutrient criteria for lakes and flowing waters within 12 

months, and for estuarine and coastal waters within 24 months, of the January 14, 2009 determination. However, the 

EPA failed to specifically identify how the State water quality standards failed to be consistent with the applicable 

requirements of the Clean Water Act. 

[1] Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4174,4175, 4181 

(proposed January 26, 2010)(to be codified at 40 CFR Part 131). 

[2] 1d. 

Comment ID 1773-1.001.030 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of Orlando Utilities Commission 

Furthermore, the EPA clearly exceeds its authority in imposing new numeric standards in watersheds where the DEP 

has already established site-specific numeric water quality standards. Nutrient standards have been adopted for a 

number of watersheds through the TMDL process. The EPA was provided with the opportunity to review the numeric 

standards and provide comments, but offered no indication that these criteria failed to meet the requirements of the Act. 

Therefore, absent a specific finding that each of these numeric criteria fails to meet the Act's requirements, the EPA 

may not impose the Proposed Rule on these water bodies pursuant to Clean Water Act Section 303(c)(4)(a) and (b). 

B. The Proposed Rule Exceeds the EPA's Authority Under the Clean Water Act 

As previously discussed, Section 303(c) of the Act directs states to adopt water quality standards for navigable 

waters[7] and requires the state water quality standards include the designated use or uses to be made of the waters 

and criteria that protect those uses. [8] EPA recognizes this limitation on authority in the Proposed Rule as follows: 

The Clean Water Act defines 'navigable waters' to mean 'the waters of the United States, including territorial seas'.[9] 

Whether a particular water body is a water of the United States is a water body-specific determination. Every water 

body that is a water of the United States requires protection under the CWA. 

Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4183 (proposed January 26, 

2010)(to be codified at 40 CFR Part 131). 

However, as written, the Proposed Rule ignores this limitation and applies to water bodies that are not navigable 

waters. The EPA provides that the "criteria in the Proposed Rule apply to lakes and flowing waters of the State of 

Florida." The Proposed Rule defines "lakes and flowing waters" to mean inland surface waters that have been classified 

by Florida as "Class I (Potable Water Supplies Use) or Class III (Recreation, Propagation and Maintenance of a 

Healthy, Well-Balanced Population of Fish and Wildlife Use) water bodies pursuant to Florida Administrative Code 

(F.A.C.) Rule 62-302.400, excluding wetlands, and which are predominantly fresh waters." [10] 

Assuming that Section 303(c)(4)(B) of the Act authorizes the Administrator to determine that a new or revised standard 

11/19/2010 02:48 PM EST 2-1805
 
Chapter 2 - Comment Documents Background 

is needed in the State of Florida, the Clean Water Act limits EPA's authority to promulgate this standard to navigable 

waters[11] The EPA must recognize and clarify that waters of the state which do not fall within the definition of 

navigable waters are not subject to the criteria limits of the Proposed Rule. 

"Navigable Waters" 

The constitutional basis for Congress' regulation of waters is the Commerce Clause. In Solid Waste Agency ofNorthern 

Cook County v. United States Army Corps of Engineers ("SWANCC"), 531 U.S. 159 (2001), the United States Supreme 

Court addressed the United States Army Corps of Engineers ("Corps") interpretation of the term "navigable waters" and 

provided a significant analysis regarding the expansiveness of the term. In SWANCC, the Supreme Court addressed 

the question of whether the term "navigable waters" under the Act extended to include intrastate waters used as habitat 

by migratory birds. Because the Supreme Court determined the Clean Water Act did not extend to these waters, it did 

not reach the second question presented of whether Congress could exercise such authority consistent with the 

Commerce Clause. SWANCC at 531 U.S. 166. 

In reaching its decision, the Supreme Court rejected the Corps use of the "Migratory Bird Rule" to assert jurisdiction 

over the site at issue. The Corps argued the Clean Water Act included nonnavigable, isolated intrastate waters based 

upon the presence of migratory birds that crossed state lines. However, the Supreme Court concluded that the 

"Migratory Bird Rule" is not fairly supported by the Clean Water Act. SWANCC at 531 U.S. 167. The Court held that to 

constitute "navigable waters" under the Act, a water or wetland must possess a "significant nexus" to waters that are or 

were navigable in fact or that could reasonably be so made. Id. 

The Supreme Court further elaborated on the importance of the word "navigable" in interpreting the statute. To hold that 

isolated ponds wholly located within the state were covered under the Act would assume that "the use of the word 

navigable in the statute...does not have any independent significance. SWANCC at 531 U.S. 172. The Supreme Court 

refused to agree "that Congress' separate definitional use of the phrase 'waters of the United States' constitutes a basis 

for reading the term "navigable waters" out of the statute." SWANCC at 531 U.S. 172. 

Furthermore, the Supreme Court recognized Congress' intent to "recognize, preserve, and protect the primary 

responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use 

(including restoration, preservation and enhancement) of land and water resources" and refused to encroach on state 

power. SWANCC at 531 U.S. 166-167. The Supreme Court found the Corps' rule extending the definition of "navigable 

waters" under the Clean Water Act to include intrastate waters used as habitat to migratory birds which cross state lines 

was not entitled to Chevron deference. SWANCC at 531 U.S. 172-173. The Supreme Court noted the concern that an 

agency interpretation of a statute exceeds limits of power granted by Congress is heightened where interpretation alters 

the federal-state framework by permitting federal encroachment upon a traditional state power. SWANCC at 531 U.S. 

172. "Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the 'Migratory Bird Rule' 

would result in a significant impingement of States' traditional and primary power over land and water use." SWANCC at 

531 U.S. 174 (citing Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30 (1994)). 

Similarly, with the Proposed Rule, the EPA is attempting to impinge upon the State's traditional power to regulate 

waters of the state that are not "navigable waters" as defined in the Clean Water Act or which do not have a significant 

nexus to navigable waters. The State of Florida is authorized to regulate waters within the state that are not otherwise 

considered "navigable waters" and has chosen to do so in the case of nutrients using a narrative standard. However, 

11/19/2010 02:48 PM EST 2-1806
 
Chapter 2 - Comment Documents Background 

many of these "nonnavigable" waters are designated by the State as Class I or Class III waters and would therefore 

become subject to the EPA's Proposed Rule. Because the Proposed Rule is a federally implemented rule and is not 

adopted by the State, the EPA's jurisdiction is limited to "navigable waters" and the Proposed Rule exceeds EPA's 

authority. 

The Supreme Court again addressed the definitions of the terms "navigable waters" and "waters of the United States" in 

Rapanos v. United States, 126 S. Ct. 2208 (2006). In Rapanos, which involved two consolidated cases, the United 

States brought civil enforcement proceedings against the Rapanos petitioners, who backfilled wetlands lying near 

ditches or man-made drains that eventually empty into traditional navigable waters without a permit. 

In perhaps what is the most direct explanation to date of what the term includes, the Supreme Court entered a fractured 

opinion wherein the plurality held the term "navigable waters" included "only those relatively permanent, standing or 

continuously flowing bodies of water 'forming geographic features' that are describe in ordinary parlance as 'streams,' 

'oceans, rivers, [and] lakes" and does not include "channels through which water flows intermittently or ephemerally, or 

channels that periodically provide drainage for rainfall. Rapanos at 126 S. Ct. 2221, 2225. The plurality emphasized that 

"navigable waters" are "continuously present, fixed bodies of water, as opposed to ordinarily dry channels through 

which water occasionally or intermittently flows." ld. at 2221. In distinguishing itself from Justice Kennedy's concurring 

opinion, the plurality found that "relatively continuous flow is a necessary condition for qualification as a [navigable] 

'water,' not an adequate condition." ld. at 2223. 

However, the Proposed Rule applies to all Class I or Class III waters of the State whether intermittent or continuously 

flowing. As such, the Proposed Rule applies to waters not included within the definition of "navigable waters." 

Furthermore, in applying this definition, the plurality specifically found the Corps had "stretched the term 'waters of the 

United States' beyond parody" when asserting jurisdiction over '''ephemeral streams,' 'wet meadows,' storm sewers and 

culverts, 'directional sheet flow during storm events,' drain tiles, man-made drainage ditches, and dry arroyos in the 

middle of the desert." Jd. In supporting its holding, the Supreme Court focuses on the Act's language itself, which 

"categorizes channels and conduits that typically carry intermittent flows of water separately from 'navigable waters,' by 

including them in the definition of 'point source. '" 

These definitions conceive of 'point sources' and 'navigable waters' as separate and distinct categories. ... The separate 

classification of "ditch[es], channel[s], and conduit[s]" -which are terms ordinarily used to describe the watercourses 

through which intermittent waters typically flow -shows that these are by and large not "waters of the United States." 

Id. The plurality addresses Justice Kennedy's argument that ditches, channels, conduits and the like "can all hold water 

intermittently," by pointing out that when such waters hold water permanently, they are referred to as "rivers," "creeks," 

or "streams." Id. The plurality goes on to hold 

It is also true that highly artificial, manufactured, enclosed conveyance systems-such as "sewage treatment plants," 

post, at 2243 (opinion of KENNEDY, J), and the "mains, pipes, hydrants, machinery, buildings, and other 

appurtenances and incidents of the city... "system of waterworks," ... Iikely do not qualify as "waters of the United 

States," despite the fact that they may contain continuous flows of water. 

Id. 

11/19/2010 02:48 PM EST 2-1807
 
Chapter 2 - Comment Documents Background 

In the Proposed Rule, the EPA appears to be stretching its jurisdiction beyond parody and ignoring this Supreme Court 

decision by attempting to regulate intermittent streams outside of South Florida, the canals in South Florida and other 

man-made drainage ditches that were constructed for flood control purposes. To allow the EPA to regulate these waters 

as "waters of the US" would stretch the outer limits of Congress's commerce power and raise difficult questions about 

the ultimate scope of that power. See Rapanos at 126 S. Ct 2224; SWANCC at 531 U.S. 173. 

In his concurring opinion, Justice Kennedy followed the decision in SWANCC and found that water can only be 

"navigable" under the Act if it possesses a significant nexus to waters that are or were navigable in fact. Rapanos at 

126 S. Ct 2236. Under this argument, absent a significant nexus in instances where there is no close connection 

between a nonnavigable water or wetland and a navigable water, jurisdiction under the Act is lacking. Id at 2241. 

Furthermore, a "mere hydrologic connection" would not necessarily be enough to meet the "significant nexus" test. Jd. 

at 2250-2251. 

In United States v. Robison, et ai, 505 F.3d 1208 (11 th Cir. 2007), the Eleventh Circuit Court of Appeals considered the 

Rapanos decision in detail in order to determine exactly how and to what extent the district court's "navigable water" 

instruction was erroneous. In Robison, the defendants appealed their district court sentence based on an allegation that 

the district court's jury charge that "navigable waters" include "any stream which may eventually flow into a navigable 

stream or river," and that such stream may be man-made and flow "only intermittently," was erroneous and not 

harmless error. Robison at 505 F.3d 1208. In reaching this decision, the Court adopted Justice Kennedy's "significant 

nexus" test as the governing rule of Rapanos and applied this test for purposes of determining whether the jury 

instruction on the definition of "navigable waters" was harmless error. Robison at 505 F.3d 1216. 

In attempt to provide further clarification to the EPA regions and the Corp districts implementing the Supreme Court 

decisions addressing the jurisdiction over waters of the United States under the Clean Water Act, the EPA issued a 

guidance memorandum.[12] In this memorandum, the EPA summarized the following key points: 

-The agencies will assert jurisdiction over the following waters: 

o Traditional navigable waters 

o Wetlands adjacent to traditional navigable waters 

o Non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries typically 

flow yearround or have continuous flow at least seasonally (e.g., typically three months) 

o Wetlands that directly abut such tributaries 

-The agencies will decide jurisdiction over the following waters based on a fact-specific analysis to determine whether 

they have a significant nexus with a traditional navigable water: 

o Non-navigable tributaries that are not relatively permanent 

o Wetlands adjacent to non-navigable tributaries that are not relatively permanent 

o Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary 

-The agencies generally will not assert jurisdiction over the following features: 

o Swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent or short duration 

flow) 

o Ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively 

11/19/2010 02:48 PM EST 2-1808
 
Chapter 2 - Comment Documents Background 

permanent flow of water 

-The agencies will apply the significant nexus standard as follows: 

o A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions 

performed by all wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and 

biological integrity of downstream traditional navigable waters 

o Significant nexus includes consideration of hydrologic and ecologic factors 

Thus, the EPA appears to be incorporating the plurality opinion in Rapanos and the "significant nexus" test of SWANCC 

in determining which waters are subject to the EPA's jurisdiction. As discussed throughout this analysis, the Proposed 

Rule disregards these limitations on the EPA's authority and includes all Class I or Class III waters in the State 

regardless of whether they meet the permanent flow or significant nexus tests. 

Groundwater 

Because groundwater is not included within the definition of navigable waters and is outside the scope of the Clean 

Water Act, the EPA is not authorized to regulate groundwater. Under the Proposed Rule, the EPA exceeds its authority 

under the Clean Water Act by directly and indirectly regulating groundwater. 

Springs are formed where groundwater meets the Earth's surface. The EPA must determine where the groundwater 

ends and the surface water spring begins. Similarly, certain rivers, streams and South Florida canals are nothing more 

than an expression of groundwater because they are cuts into the aquifer. For example, the Suwannee and Santa Fe 

rivers are streams which are spring fed and representations of groundwater. 

[7] CWA §303(c)(2)(a) (33 U.S.c. 1313(c)); Water Quality Standards for the State of Florida's Lakes and Flowing 

Waters, 75 Fed. Reg. 4183 (proposed January 26, 2010)(to be codified at 40 CFR Part 131). 

[8] 40 CFR 131. 

[9] Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4 183 (proposed January 

26, 2010)(to be codified at 40 CFR Part 131); CWA §502(7). 

[10] Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4180-4' 81 (proposed 

January 26, 2010O)(to be codified at 40 CFR Part 131). 

[11] 33 U.S.c. 1362(7) 

[12] Clean Water Act Jurisdiction Following the Us. Supreme Court's Decision in Rapanos v. United States & Cambell v. 

United States (June 5,2007). 

Comment ID 1778-1.001.016 

Author Name: Arrington D. 

Organization: Loxahatchee River District 

- Why has EPA chosen to publish numeric nutrient criteria only in Florida? 

11/19/2010 02:48 PM EST 2-1809
 
Chapter 2 - Comment Documents Background 

Comment ID 1782-1.001.007 

Author Name: Childs D. 

Organization: Hopping Green & Sams, P.A., on behalf of Florida Rural Water Association, Florida Water Environment 

Association Utility Council, and Florida Section of the American Water Works Association Utility Council 

In January 2009, Assistant Administrator Benjamin Grumbles anticipated that it would only take six months to set 

scientifically valid nutrient criteria at the levels at which Florida's flowing waters exhibit signs of nutrient impairment: 

EPA anticipates that six months will then be required to complete detailed analyses of the data to identify the 

relationships between nutrient causal variables, e.g. nitrogen and phosphorus, and key response variables, e.g., 

chlorophyll a, Secchi depth, periphyton, and dissolved oxygen (DO).[2] 

EPA thus initially represented that within half a year, by July 2009, it could use a cause and effect analysis to establish 

true numerical interpretations of Florida's existing narrative nutrient standard (i.e. affix numeric nutrient standards at the 

nutrient levels at which Florida water bodies will exhibit imbalances of naturally occurring populations of flora and 

fauna). 

Ten months later, however, EPA used less definitive terms when assuring Northern District Court of Florida Judge 

Hinkle that the agency could propose "protective criteria" within the strict timeframes of the Consent Decree. A sworn 

declaration of Denise Keehner of EPA's Office of Science and Technology stated: 

EPA is able and capable of proposing protective criteria for lakes, rivers, streams, and estuaries/coastal waters based 

on scientifically defensible methodologies, and appropriately taking into account current data and other information, as 

well as the state of the science.[3] 

By the time EPA issued its proposed rule in January 2010, the agency signaled a full retreat with respect to stream 

standards from Mr. Grumbles' prognostication a year earlier: 

...EPA analyzed stressor-response relationships in Florida streams based on available data, but...did not find sufficient 

scientific support for their use in the derivation of numeric nutrient criteria for Florida streams. More specifically, EPA 

was not able to demonstrate a sufficiently strong correlation between the biological response indicators...and TN or TP 

concentrations. ...[4] 

Thus, due to the self-imposed timeframes of the Consent Decree, EPA abandoned its attempt to proffer a numerical 

interpretation of Florida's narrative standard for Florida's streams. 

[2] EPA, Letter from EPA Assistant Administrator Benjamin Grumbles to FDEP Secretary Michael Sole, 9 (Jan. 14, 

2009) (emphasis added), hereinafter, Necessity Determination. 

[3] Florida Wildlife Federation v. EPA, Case No: 08-00324, Declaration of Denise Keehner, ¶ 5 (November 3, 2009). 

[4] 75 Fed. Reg. 4174, 

11/19/2010 02:48 PM EST 2-1810
 
Chapter 2 - Comment Documents Background 

Comment ID 1782-1.001.020 

Author Name: Childs D. 

Organization: Hopping Green & Sams, P.A., on behalf of Florida Rural Water Association, Florida Water Environment 

Association Utility Council, and Florida Section of the American Water Works Association Utility Council 

In crafting the CWA, Congress cast the states as the lead player; EPA assumes an oversight role. Congress codified its 

intent "to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and 

eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and 

water resources, and to consult with the Administrator in the exercise of his authority under this chapter. ..."[29] 

Congress gave the states "primary authority" in part because it was "[c]oncerned that federal promulgation would 

discourage state plans for water quality and 'would place in the hands of a single Federal official the power to establish 

zoning measures over to control the use of land within watershed areas' throughout the nation."[30] Further, Congress 

"recognize[d] that the States should have a significant role in protecting their own natural resources" and thus gave 

states "a strong voice in regulating their own pollution."[31] 

Consistent with the states' featured role, Congress only allows EPA to impose federal standards when EPA first 

conclusively determines such new standards are "necessary" for the state to comply with the CWA.[32] Such federal 

action is extraordinary. As EPA has itself noted, "Federal promulgation of State water quality standards should be a 

course of last resort. It is symptomatic of something awry with the basic statutory scheme."[33] 

[29] CWA § 101(b) (codified as amended at 33 U.S.C.A. § 1251(b) (2009)). 

[30] Miss. Comm'n on Natural Res. v. Costle, 625 F.2d 1269, 1272 (5th Cir. 1980) (citing H. Rep. 215, 89th Cong., 1st 

Sess., reprinted in (1965)). 

[31] Int'l Paper Co. v. Ouellette, 479 U.S. 481, 489 (1987). 

[32] CWA § 303(c)(4)(B). Despite the statutory requirement that EPA issue determinations only when determined to be 

necessary under the CWA, other EPA documents indicate that EPA considered nonstatutory factors in reaching its 

determination. Specifically, EPA issued the determination in an effort to promote the settlement of a lawsuit. See 

Memorandum from Luis Luna to Stephen Johnson, One-time Delegation of Authority for the Purpose of Determining 

Pursuant to Section 303(c)(4)(B) of the Clean Water Act Whether the State of Florida Needs New or Revised Water 

Quality Standards for Nutrients, (Dec. 22. 2008); State-EPA Nutrient Innovations Task Group, An Urgent Call to Action: 

Report of the State-EPA Nutrient Innovations Task Group, 30 (Aug. 2009) (identifying "EPA determinations to establish 

numeric standards in response to litigation" as an agency nutrient management strategy); see also, FWEA Utility 

Council, Notice of Intent to File Suit under § 505 of the Clean Water Act (Aug. 13, 2009). 

[33] EPA, Notice of Final Rule, Water Quality Standards; Establishment of Numeric Criteria for Priority Toxic Pollutants; 

States' Compliance, 57 Fed. Reg. 60848, at 60858 (Dec. 22, 1992). 

Comment ID 1782-1.001.051 

Author Name: Childs D. 

11/19/2010 02:48 PM EST 2-1811
 
Chapter 2 - Comment Documents Background 

Organization: Hopping Green & Sams, P.A., on behalf of Florida Rural Water Association, Florida Water Environment 

Association Utility Council, and Florida Section of the American Water Works Association Utility Council 

EPA has yet to demonstrate that Florida needs numeric nutrient standards, much less demonstrated that Florida's water 

quality standards program has gone "awry."[34] The January 2009 determination letter primarily justified EPA's decision 

on general assertions that such standards would improve the state's TMDL and NPDES programs. However, neither of 

EPA's "regulatory convenience" justifications withstands close scrutiny, particularly in light of the regulatory implications 

of EPA's proposed rule. EPA's proposed rule and subsequent workshop presentations backfilled EPA's rationale for 

federal involvement based on concerns regarding blue baby syndrome, bladder cancer, liver failure, red tide events, 

algal blooms, and generally declining water quality. Again, none of EPA's justifications survive close scrutiny. 

[34] EPA regulations specifically acknowledge that a narrative criterion is appropriate "where numerical criteria cannot 

be established." 40 CFR 131.11(b)(2). 

Comment ID 1782-1.001.052 

Author Name: Childs D. 

Organization: Hopping Green & Sams, P.A., on behalf of Florida Rural Water Association, Florida Water Environment 

Association Utility Council, and Florida Section of the American Water Works Association Utility Council 

In sum, when one peels away EPA's various spurious justifications for its proposed rule, all that is left is a progressive 

state water quality program; a lawsuit that led to a Consent Decree; a federal takeover of the state program; and claims 

by EPA that the takeover will benefit state environmental programs. EPA's claims of program benefits to environmental 

programs, however, are also severely flawed. 

Comment ID 1786-1.001.004 

Author Name: Kirk K. 

Organization: National Association of Clean Water Agencies 

Florida is a leader on this issue and, unfortunately, a legal challenge of the state's program has led to an aggressive 

schedule and use of criteria development procedures that largely ignore in-stream conditions and biological responses. 

Comment ID 1786-1.001.006 

Author Name: Kirk K. 

Organization: National Association of Clean Water Agencies 

New Approaches Needed for Addressing Nutrients 

11/19/2010 02:48 PM EST 2-1812
 
Chapter 2 - Comment Documents Background 

Developing meaningful numeric nutrient criteria, particularly for flowing streams, is complex because of the many 

factors involved and cannot be accelerated to meet the demands of court-ordered deadlines without sacrificing the 

careful analysis required to accurately characterize specific waterbody responses to nutrients. Doing so only leads to 

criteria that may not accurately reflect the actual biological conditions of the waterbodies they are designed to protect. 

Comment ID 1786-1.001.012 

Author Name: Kirk K. 

Organization: National Association of Clean Water Agencies 

EPA's Proposed Criteria Will Not Ensure Florida Waters Achieve CWA Goals 

Despite Florida's robust and functioning water quality based program, including EPA-approved narrative nutrient criteria 

implemented via the TMDL program, EPA issued a determination on January 14, 2009 (EPA 2009) that numeric 

nutrient criteria were needed to meet the goals of the CWA. EPA's authority to issue water quality standards in an 

authorized state is found in section 303(c)(4)(B) of the CWA, which authorizes EPA to issue regulations "setting forth a 

revised or new water quality standard" in any case where the Administrator of EPA determines that new standards are 

needed to meet the requirements of the Act. The criteria that EPA promulgates will become part of Florida's water 

quality standards sixty days after the final criteria are issued. NACWA believes that EPA's action is not warranted given 

the state's existing program and that EPA's action will in fact further complicate efforts in Florida to address nutrient 

over-enrichment. 

EPA's January 2009 letter indicates that the Agency had determined that numeric nutrient criteria "are necessary to 

facilitate and expedite the identification of all nutrient impaired waters in Florida; thereby providing necessary protection 

for the State's designated uses, as required by the CWA." EPA indicated that the reason for its determination was not 

Florida's failure to develop numeric nutrient criteria, but rather the procedure Florida had been following. Specifically, 

EPA was concerned that Florida's reliance on a case-by-case interpretation of its narrative nutrient criterion through its 

Impaired Waters Rule was taking too long to implement. In fact, when EPA made its determination, FDEP was already 

in the process of working with stakeholders in the state to develop numeric nutrient criteria. The speed with which 

Florida was making progress was the driving force behind this action, not the water quality needs of Florida. 

In its determination, EPA makes it clear that there is little flexibility in developing water quality criteria for nutrients, 

insisting that numeric values for TN and TP are essential components. 

Comment ID 1787-1.001.003 

Author Name: Spratt J. 

Organization: Florida Nursery, Growers and Landscape Association 

In response to the Environmental Protection Agency's proposed numeric nutrient criteria, water quality standards for the 

state of Florida's lakes and flowing waters, we submit the following comments in opposition to the rule. 

11/19/2010 02:48 PM EST 2-1813
 
Chapter 2 - Comment Documents Background 

The Environmental Protection Agency (EPA) determined on January 14, 2009 that numeric nutrient water quality 

standards for Florida's lakes, flowing waters, estuaries and coastal waters were necessary for the state to meet the 

requirements of the Clean Water Act. On January 26, 2010, the Agency announced in the Federal Register (FR Vol. 75 

No. 16, Tuesday, January 26, 2010, pp. 4173-4226) a proposed rule titled "Water Quality Standards for the State of 

Florida's Lakes and Flowing Waters." This rule proposes nitrogen (N) and phosphorus (P) numeric nutrient water quality 

criteria to protect the aquatic ecosystems within Florida's lakes, rivers, streams and canals. Additionally, it proposes 

regulations for Florida to develop restoration standards for impaired waters. The EPA plans to issue a final rule for lakes 

and flowing waters by October 15, 2010, and an additional rule for estuarine and coastal waters by October 15, 2011. 

This rule was developed as part of a settlement agreement between EPA and Earth Justice initiated at the end of the 

previous administration in Washington. 

Comment ID 1792-1.001.005 

Author Name: Putnam A. 

Organization: United States House of Representatives 

Once again, I urge EPA to work with the state officials in Florida who have spent a significant amount of time and public 

funds conducting the research and implementing the policies to protect Florida water bodies. It is only because of 

Florida's aggressive monitoring of water quality and data collection that EPA is able to propose numeric nutrient 

standards. Using state collected data to establish a methodology that is contrary to what state scientists would propose 

will have a chilling effect on cooperative efforts between other states and the EPA. Good government requires a 

collaborative approach. 

Comment ID 1797-1.001.004 

Author Name: Braswell S. 

Organization: Florida Farm Bureau 

The Environmental Protection Agency (EPA) is moving forward based on a timeline that is litigation-driven, and fails to 

allow for the adequate research and thorough evaluation of critical data. 

Comment ID 1797-1.001.009 

Author Name: Braswell S. 

Organization: Florida Farm Bureau 

Under Florida law, it is well established that unless a state agency adopts a federal standard by reference, the agency 

lacks authority to apply federal regulations.[16] It is unclear whether the FDEP will ultimately attempt to adopt the 

federal standard by reference. If the FDEP elects to adopt the proposed federal rule by reference, rule challenges will 

likely ensue under the Florida Administrative Procedure Act. Therefore, it should not be assumed that the State of 

11/19/2010 02:48 PM EST 2-1814
 
Chapter 2 - Comment Documents Background 

Florida will participate in the implementation of the EPA's proposed rule. 

States may choose to accept a delegation of responsibility from the EPA to implement certain parts of the CWA, most 

notably, the National Pollutant Discharge Elimination System (NPDES) program. The FDEP has accepted delegation of 

the NPDES program, but has no legal obligation to continue the implementation of that delegation. The EPA and 

Congress may provide incentives for the state to adopt regulatory programs and to implement federal regulations. 

However, the EPA's proposed rule does not change basic divisions of responsibility under the United States 

Constitution. As noted by the United States Supreme Court in New York v. United States[17]: 

"States are not mere political subdivisions of the United States. State governments are neither regional offices nor 

administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the 

Federal Government's most detailed organizational chart. . . . Whatever the outer limits of that sovereignty may be, one 

thing is clear: The Federal Government may not compel the States to enact or administer a federal regulatory 

program."[18] 

The EPA has acted on the erroneous legal presumption that the state will, or may, implement the proposed numeric 

nutrient criteria. 

[16] Fla. Stat. Ch. 403.8055 (2009) 

[17] New York v. United States, 505 U.S. 144, 188 (1992); see also Printz v. United States, 521 U.S. 898 (1997) 

[18] Id. 

Comment ID 1797-1.001.019 

Author Name: Braswell S. 

Organization: Florida Farm Bureau 

At the time the third party suit was filed, the EPA had explicitly approved the State of Florida's timeline and approach for 

the adoption of numeric nutrient criteria. With no explanation, the EPA changed its position and elected to adopt 

numeric nutrient criteria for the State of Florida as a federal mandate. 

Comment ID 1799-1.001.004 

Author Name: Clement D. 

Organization: Joshua Water Control District 

We understand that the development of numeric nutrient criteria is the result of a consent decree EPA has entered into 

that specifies deadlines for establishing such criteria. We are concerned that the timeframes set forth in the consent 

decree are too ambitious and have thus resulted in hastily formulated standards that are not scientifically sound. 

11/19/2010 02:48 PM EST 2-1815
 
Chapter 2 - Comment Documents Background 

Comment ID 1800-1.001.003 

Author Name: Gong S. 

Organization: CH2M HILL 

With these philosophical notes in mind, we offer the following key comments with the request that you integrate them 

with others submitted on behalf of Florida's stakeholders concerned with the EPA's proposed NNC. 

Schedule 

It is our understanding that EPA's schedule for NNC promulgation for inland freshwaters this year is driven by 

commitments made in a lawsuit settlement. This schedule driver is objectionable in that it has forced rule making 

activities to proceed at a pace that requires stakeholder involvement and input to occur after the fact in a timeconstrained review and comment mode instead of during NNC development. This approach and pace are contributing 

to stakeholder unrest and are likely to negatively impact EPA's relationship with members of the regulated community. 

Comment ID 1812-1.001.002 

Author Name: Stephens N. 

Organization: Florida Minerals and Chemistry Council Association 

EPA has failed to demonstrate the necessity for numeric nutrient criteria. The characterization of EPA's January 2009 

declaration as a necessity determination does not meet minimum standards for such a determination. This declaration 

was not supported by scientific analysis. A real necessity determination would have included a demonstration that 

numeric nutrient criteria were actually necessary to achieve clearly defined water quality objectives. EPA's proposal 

acknowledges that water quality objectives in Florida can, in fact, be achieved through continued implementation of 

Florida's Total Maximum Daily Load (TMDL) program. 

11/19/2010 02:48 PM EST 2-1816
 
Chapter 2 - Comment Documents Background 

Comment ID 1812-1.001.005 

Author Name: Stephens N. 

Organization: Florida Minerals and Chemistry Council Association 

EPA has abdicated its responsibility for well-reasoned, scientifically sound approaches to environmental protection to 

non governmental litigants. Development of environmental policy by litigation circumvents statutory authority and 

violates all pretense of open government. The settlement negotiations were in stark contrast to the open processes that 

are characteristic of Florida's regulatory programs. In this case, narrowly focused activist groups are determining EPA 

priorities and allocation of resources, rather than following its statutory guidance. 

EPA should dedicate the resources being misallocated to this process to supporting Florida's existing programs. 

Comment ID 1814-1.001.003 

Author Name: Stephens N. 

Organization: Manufacturers Association of Florida 

EPA has failed to demonstrate the necessity for numeric nutrient criteria. The characterization of EPA's January 2009 

declaration as a necessity determination does not meet minimum standards for such a determination. This declaration 

was not supported by scientific analysis. A real necessity determination would have included a demonstration that 

numeric nutrient criteria were actually necessary to achieve clearly defined water quality objectives. EPA's proposal 

acknowledges that water quality objectives in Florida can, in fact, be achieved through continued implementation of 

Florida's Total Maximum Daily Load (TMDL) program. 

Comment ID 1814-1.001.007 

Author Name: Stephens N. 

Organization: Manufacturers Association of Florida 

EPA has abdicated its responsibility for well-reasoned, scientifically sound approaches to environmental protection to 

non governmental litigants. Development of environmental policy by litigation circumvents statutory authority and 

violates all pretense of open government. The settlement negotiations were in stark contrast to the open processes that 

are characteristic of Florida's regulatory programs. In this case, narrowly focused activist groups are determining EPA 

priorities and allocation of resources, rather than following its statutory guidance. 

EPA should dedicate the resources being misallocated to this process to supporting Florida's existing programs. 

Comment ID 1834-2.001.001 

11/19/2010 02:48 PM EST 2-1817
 
Chapter 2 - Comment Documents Background 

Author Name: Bronson C. 

Organization: Florida Department of Agriculture and Consumer Services 

This statement is presented as background to the Florida Department of Agriculture and Consumer Service's technical 

comments on the proposed Water Quality Standards for the State of Florida's Lakes and Flowing Waters [EPA-HQ-OW2009-0596]. This statement is intended to provide the context for the comments and to preserve any and all objections 

to the rulemaking procedure and the justification for the rulemaking. On January 14,2009, EPA made a determination 

[1] that the Clean Water Act (CWA) required the agency to assert its authority under section 303(c)(4)(B) of the CWA to 

supersede the state's inherent authority to set its own water quality standards, and to impose standards developed by 

EPA. This Department has asserted and will continue to assert before the EPA and the federal courts that the 

determination was arbitrary and capricious and is therefore void. EPA has failed to provide any record in support of its 

determination, and several of the statements in the determination that purportedly support EPA's actions are inaccurate 

on their face. EPA has stated before the court that there is no record on which the determination is based. A challenge 

to the determination is still pending in federal court and the validity of this rulemaking is dependent upon the ultimate 

outcome of that court case, as well as the technical support provided for the rule itself. 

[1] Letter from Benjamin Grumbles to Michael Sole, referenced in the Federal Register Notice for the proposed rule at 

75FR4175. 

Comment ID 1834-2.001.007 

Author Name: Bronson C. 

Organization: Florida Department of Agriculture and Consumer Services 

While an exhaustive analysis of the Preamble statements is beyond the scope of this Preliminary Statement, the series 

of misstatements outlined here, and the lack of any official record to support the January 14,2009, detemlination, leads 

this Department to assert that the underlying justification for EPA to usurp the setting of state water quality standards for 

nutrients is invalid. 

Comment ID 1837-1.001.002 

Author Name: Brom M. 

Organization: PCS Administration, Inc., and White Springs Agricultural Chemicals, Inc. doing business as PCS Phosphate- White 

Springs 

• The inadequacy of the necessity determination renders the proposed rule invalid in its entirety. 

The requirement for a necessity determination as the predicate for proposal or adoption of water quality standards is 

fundamental to the Clean Water Act. There are sound policy reasons for this requirement, not the least of which is the 

focusing of public and private resources for achievement of actual environmental benefits. 

11/19/2010 02:48 PM EST 2-1818
 
Chapter 2 - Comment Documents Background 

The necessity determination process should include identification of water quality conditions which do not meet the 

goals of the Clean Water Act, sufficient assessment of those conditions to determine the cause, an analysis of the 

extent of the changes required in those causes to ameliorate the water quality conditions, and an evaluation of the 

ability of existing water quality standards and regulatory programs to ameliorate the conditions. Each of these steps 

should be supported by scientifically defensible methodologies to ensure that the resulting regulatory actions achieve 

the objectives of the Clean Water Act and do not cause the waste of public and private resources. The letter of January 

14, 2009 from Benjamin Grumbles upon which EPA relies as the necessity determination for this proposed rule fails in 

all those respects. 

Comment ID 1837-1.001.008 

Author Name: Brom M. 

Organization: PCS Administration, Inc., and White Springs Agricultural Chemicals, Inc. doing business as PCS Phosphate- White 

Springs 

• Neither EPA nor the State of Florida has justification for adoption of numeric nutrient criteria. 

As noted in the EPA proposal, FDEP, under pressure and direction from EPA, had engaged in its own regulatory 

process for adoption of numeric nutrient criteria. The positions described by PotashCorp, TFI, and others in opposition 

to EPA's proposed rule also apply to any similar effort by FDEP. EPA should not attempt to impose these criteria by 

indirect means on Florida or any other state. 

Comment ID 1877.001.006 

Author Name: Gornicki P. 

Organization: Florida Forestry Association 

We believe Florida is a national leader in protecting its waters from all forms of pollution, including nutrient. Businesses 

associated with all land uses (including forestry) have invested much time and large sums of money to protect healthy 

rivers and streams. Our State DEP is working to develop a scientifically defensible, site-specific numeric nutrient criteria 

that will protect and restore Florida water bodies in equitable and cost effective ways. We believe EPA should support 

these efforts rather than developing and mandating a separate approach. 

Comment ID 1878-1.001.002 

Author Name: Reese T. 

Organization: Attorney At Law et al. 

As we stated at EPA's public hearing in Tampa on April 14, 2010, we believe EPA's proposed numeric nutrient 

11/19/2010 02:48 PM EST 2-1819
 
Chapter 2 - Comment Documents Background 

standards are scientifically sound and economically reasonable numeric criteria considering Florida's nutrient 

degradation of Florida's waters in violation of Florida's Class III water quality standards and Florida's antidegradation 

policies. 

Comment ID 1885.001.008 

Author Name: Connor T. 

Organization: Office of the Executive Director, Sarasota County 

- EPA has proposed numeric nutrient criteria for freshwater lakes, freshwater streams, and clear spring runs in Florida. 

Comment ID 1885.001.016 

Author Name: Connor T. 

Organization: Office of the Executive Director, Sarasota County 

- Because EPA and DEP have fast-tracked the development of numeric nutrient criteria, Florida has benefited from 

increased study of nutrient concentrations, response variables and loading. Associations, agencies and governments 

are vigorously investigating the data and approaches to this issue. Genuine progress has been made. Unfortunately the 

self-imposed deadlines will arrive before the scientific studies are completed . When EPA institutes the rule progress 

towards good standards may stagnate. If that happens Florida w ill continue to struggle under a regime of poor water 

quality standards . A better outcome would be for EPA and DEP to continue to partner with stakeholders in the State to 

firnd the response variables to nutrient enrichment . The current effort is similar to setting a deadline for a cure for 

cancer and then calling the outcome a cure regardless of whether it works. It's the responsibility of EPA and DEP to find 

correct criteria and is unethical to push the burden onto individual pennittees to develop SSACs. 

Comment ID 1946.001.004 

Author Name: Sheppard M. 

Organization: 

Part II Continued 

Last night I was at a gathering where the discussion turned to the fact that the Florida Legislature at the urging of the 

fertilizer industry and traditional lawn care providers is on the verge of and by now may have passed House Bill 1446 

and Senate Bill 382. This would preempt Manatee County and all of Florida's counties (67) from having regulations to 

protect our rivers, lakes, retention ponds, estuaries, canals and the Gulf of Mexico from current and future fertilizer 

applications. There are many differing needs in various areas of Florida as EPA has noted in your plans. 

11/19/2010 02:48 PM EST 2-1820
 
Chapter 2 - Comment Documents Background 

Comment ID 1946.001.008 

Author Name: Sheppard M. 

Organization: 

When applicants come in to develop next to Lake Manatee, will the County or EPA have in place regulations that will 

protect Lake Manatee, the source of drinking water for about 280,000 people, from pollution originating in septic tanks 

and stormwater runoff from lawn care? 

Comment ID 2183.001.003 

Author Name: Urschel S. 

Organization: 

I would suggest that rather than taking the command and control tactic that is the Agency's normal approach, the EPA 

should instead set broad performance criteria for water quality that State's must meet and allow the State's to develop 

the regulatory standards, permits and procedures to best meet the established goals. 

Comment ID 2233-1.001.005 

Author Name: Kovach C. 

Organization: CF Industries 

A. The Unnecessary Necessity Determination 

Starting at the beginning, EPA's failure to defend the citizen's suit that started this process was untenable. Contrary to 

former Assistant Administrator Luna's memorandum of December 23, 2009, no legitimate reading of EPA's 1998 Clean 

Water Action Plan could lead anyone-especially a seasoned federal judge-to conclude that EPA had made a formal 

determination that numeric nutrient criteria were necessary for the State of Florida, or any other state, to remain in 

compliance with the Clean Water Act. 

Regardless of how EPA may try to justify its actions now, it is indisputable that: 1) but for the citizen's suit, EPA would 

not have generated the January 14, 2009 necessity determination; 2) the necessity determination was initiated and 

completed in a very short time period that included a number of federal holidays; and, 3) no new data or information 

suddenly lead (then) Administrator Johnson, or Mr. Grumbles as his designee, to any scientific epiphany regarding the 

condition of Florida waters that would justify federal promulgation of water quality criteria for the State. In September 

2007, EPA approved Florida's numeric nutrient criteria development plan which included a proposed schedule that 

extended well beyond January 2009. Mr. Luna's memorandum is unambiguous: "[m]aking such a determination could 

give EPA a basis to propose a settlement to the plaintiffs or to request that the court dismiss the case." 

11/19/2010 02:48 PM EST 2-1821
 
Chapter 2 - Comment Documents Background 

B. A False Premise 

EPA's January 14, 2009, determination notes that: 

Accurately determining, on a water-by-water basis for thousands of waters, the levels of nutrients that would "cause an 

imbalance in natural populations of aquatic flora and fauna" is a difficult, lengthy, and data intensive undertaking. This 

work involves performing detailed site-specific analyses of the receiving water and any other affected waters . If the 

State has not already completed this analysis for a particular water, it can be very difficult to accurately determine, the 

context and timeframe of the NPDES permitting process, the levels of nutrients that would "cause and imbalance of 

natural populations of aquatic flora and fauna" and process NPDES permit in a timely manner. For example, in some 

cases, adequate "cause and effect" data may take several years to collect and therefore may not be available for a 

particular water at the time of permitting .[1] 

This statement by EPA is critically important in that EPA admits that it takes considerable time to accurately interpret 

Florida's narrative nutrient criterion and establish a cause-and-effect relationship between nutrient levels and an 

"imbalance of natural populations of aquatic flora and fauna." However, as EPA's rule is proposedl EPA claims to have 

accomplished this very same task for all of Florida's several thousand surface waters in less time than it takes for an 

applicant to submit and the appropriate agency to fully process and issue an NPDES permit. 

Consequently the very premise of EPA's proposed rule is invalid. EPA cannot on the one hand acknowledge how 

difficult and time consuming it is to accurately interpret Florida's narrative nutrient criterion to derive meaningful numeric 

endpoints but on the other hand claim to have done just that in a matter of weeks. [2] As discussed in more detail 

herein, EPA was only able to meet its self induced court ordered deadline by substantially abandoning cause-and-effect 

notwithstanding that its own Science Advisory Board (SAB) and a panel appointed by the National Academy of 

Sciences have stressed the importance of establishing a strong cause and effect relationship when establishing water 

quality criteria and total maximum daily loads, respectively. 

[1] This language is repeated by EPA verbatim in its proposed rule. 75 Fed. Reg. 4182. 

[2]EPA issued its necessity determination on January 14, 2009 but on November 3, 2009, an EPA representative 

submitted a declaration to the U. S. District Court for the Northern District of Florida, under penalty of perjury, stating 

that "EPA is evaluating and considering a range of possible approaches and methodologies for developing nutrient 

criteria for Florida, including methods and approaches proposed by FDEP." Just 72 days later, a considerably shorter 

period than it takes to process an NPDES permit, EPA, Administrator Jackson signed the proposed rule setting numeric 

nutrient criteria for Florida's several thousand miles of streams and rivers and several thousand lakes in addition to 

nutrient loads and downstream protective values for most of Florida's major estuarine systems. Protesting that will take 

the: State of Florida too long to accurately derive numeric nutrient criteria for Florida waters, EPA claims to have 

accomplished the task in less than 90 days. Even if one assumes that EPA did start working to develop criteria for 

Florida waters soon after the January 14, 2009 necessity determination, EPA would have comnleted in less than a year 

the exact same task for all Florida waters that EPA claims the state might not be able to do over several years for a 

single water body, i e interpret Florida's narrative nutrient criterion to derive numeric endpoints. 

11/19/2010 02:48 PM EST 2-1822
 
Chapter 2 - Comment Documents Background 

Comment ID 2233-1.001.037 

Author Name: Kovach C. 

Organization: CF Industries 

• The determination was made as a result of a third-party law suit without a formal administrative record. 

Comment ID 2233-1.001.039 

Author Name: Kovach C. 

Organization: CF Industries 

1. Florida's Commitment Made Federal Intervention Unnecessary 

In 1998, EPA released its National Strategy for the Development of Regional Nutrient Criteria encouraging the states 

and tribes to establish numeric criteria for nutrients. EPA is on record confirming that his document was not intended to 

be a formal determination document that all states must develop numeric nutrient criteria to remain in compliance with 

the Clean Water Act. 

The Florida DEP began its initial post-strategy efforts to establish numeric nutrient criteria in the fall of 2001 resulting in 

the State of Florida Draft Numeric Nutrient Criteria Development Plan dated May 14, 2002. At a "kick off' meeting held 

on December 12, 2001, DEP's Eric Shaw presented a Power Point presentation, titled Nutrient Water Quality Criteria, 

which summarized the State of Florida's numerous attempts to establish numeric nutrient criteria the first of which 

(November 1970) predated the 1972 amendments to the Federal Water Pollution Control Act and pre-dated the formal 

establishment of EPA.[28] DEP and its predecessor agencies attempted to develop some form of numeric nutrient 

criteria in 1970, 1976, 1981 and 1994. 

DEP staff members attended an EPA Regional Technical Advisory Group (RTAG) meeting held in Atlanta May 14, 15 

and 16, 2002 at which they presented a Power Point presentation entitled Florida's Numeric Nutrient Criteria 

Development Plan which again set forth the chronology of the State's efforts to develop numeric nutrient criteria from 

1970 to 2000 and set forth the Department's plan to develop numeric criteria for nutrients in the new millennium. 

To implement its plan, DEP established a technical advisory committee (TAC) to assist in the development of Florida's 

numeric nutrient criteria. The TAC is comprised of experts in the field of water quality and includes EPA's Ed Decker, 

the Regional Nutrient Criteria Coordinator for EPA Region 4 based in Atlanta. Beginning with its first formal meeting on 

January 21,2003, the TAC has held over twenty meetings the latest of which was held April 7, 2010. The Florida DEP 

also held a number of workshops during the triennial review which included detailed discussions of its biological metrics 

like the SCl and its proposed N03 - N02 criterion for spring boils and vents. 

The May 2002 plan was formally submitted to EPA on December 31,2003, and approved by EPA Region 4 by letter 

dated July 7,2004. The plan was resubmitted in September of 2007, by which time the TAC had met sixteen times. EPA 

11/19/2010 02:48 PM EST 2-1823
 
Chapter 2 - Comment Documents Background 

approved the 2007 plan by letter dated September 28, 2007. 

On February 25, 2008, the TAC held its 17th meeting. On June 5th and 6th of 2008, an Estuary and Coastal Waters 

Nutrient Development Kick-off Meeting was held in St. Petersburg, Florida, at which nutrient issues affecting Florida's 

major bays and estuaries. were presented by water quality experts. 

Upon the release of EPA's January 14, 2009, letter-s-determining that numeric nutrient: criteria shall be proposed for 

Florida waters-DEP accelerated its already intense efforts. to develop numeric nutrient criteria. DEP proposed an 

ambitious schedule in an attempt to adopt numeric criteria for lakes and flowing waters before January 14,2010. 

Notwithstanding DEP's efforts, presentations at the May 5, 2009 TAC meeting highlighted a simple truth-neither the 

Florida DEP or EPA could establish defensible numeric nutrient criteria by the deadlines set in EPA's letter of January 

14,2009. 

[28] President Richard M. Nixon submitted Reorganization Plan Number 3, dated July 9, 1970 to Congress which 

received Congressional approval in September of 1970 resulting in the establishment of EPA on or about December 2, 

1970. See www.epa.gov/history/publicationslorigins6.htm. 

Comment ID 2233-1.001.042 

Author Name: Kovach C. 

Organization: CF Industries 

However, the Florida DEP was forced to suspend its efforts when EPA entered a consent decree with the Plaintiffs in 

the pending citizen suit committing EPA to propose criteria by January 14, 2010, for Florida lakes and streams. 

Notwithstanding that neither EPA nor the Florida DEP has developed a methodology for doing so, EPA nonetheless 

promulgated the proposed regional criteria to which these comments are directed. 

As this detailed history highlights, the Florida DEP was fully engaged in a significant and costly (approximately $20 

million dollars) effort to derive numeric nutrient criteria for Florida waters which has been derailed by EPA's litigation 

driven invasion of the State primacy guaranteed by the Clean Water Act. In no uncertain terms, the promulgation of the 

proposed criteria by EPA was anything but necessary. 

2. Litigation Strategy Not Water Quality Prompted the Necessity Determination 

The necessity determination is nothing more than an after the fact rationalization of a litigation strategy. As stated by 

EPA Assistant Administrator Luna in his memorandum of December 22, 2008, "[m]aking such a determination could 

give EPA a basis to propose a settlement to the plaintiffs or to request that the court dismiss the case." 

In response to a FOIA request submitted in May 2009, specifically requesting documents supporting the January 2009 

necessity determination, EPA responded with a small number of documents, primarily e-mails, and a 150-page privilege 

log listing 762 withheld documents claiming the deliberative process privilege for all but a handful that were withheld 

based upon the attorney-client privilege. It is important to emphasize that the FOIA request specifically asked for a copy 

11/19/2010 02:48 PM EST 2-1824
 
Chapter 2 - Comment Documents Background 

of the record supporting the necessity determination or, if there is no record, copies of the documents upon which EPA 

relied to make the determination. 

EPA advised that there is no record because the necessity determination is not finall agency action. However, the 

privilege log reveals that on January 13, 2009, at 5:43 p.m... the day before the January 14, 2009 determination 

document was completed, EPA legal. counsel at EPA headquarters in Washington, D.C., sent an e-mail to ten EPA 

Headquarters employees titled "Is a CWA 303(c)(4)(B) determination a final agency action subject to judicial review?" 

Administrator Johnson authorized Assistant: Administrator Grumbles to sign the necessity determination by 

memorandum dated. December 29, 2008. None of the entries in the privilege log show that any e-mails or copies of 

documents-withheld under the deliberative process privilege-were: forwarded to Mr. Grumbles. In short, although 

delegated the authority to make the determination, Mr. Grumbles was not part of the deliberative process; he signed 

the: January 14,2009, letter but seemingly had no part of its construction. 

Withheld document number WH-505, on page 95 of the privilege log and dated January 12, 2009, is an e-mail sent at 

4:32 that day titled: "FOR YOUR REVIEW: Transmittal memo for Ephraim to Ben for FL letter." The draft transmittal 

memo itself was withheld as privileged. It is clear that Mr. Grumbles made no careful contemplative decision as to 

striking Florida's existing narrative nutrient criterion from the books and initiating the: federal occupation of Florida's 

water quality standards program; the final version of the: letter was not even completed until the afternoon of January 

14,2009. 

Entry WH-583 at page 111 of the privilege log, confirms that at 12:43 on January 14" 2009, the determination for Florida 

waters was still in draft form. On that same date, EPA was trying to justify the determination-clearly after the fact. Log 

Entry WH-574 in titled "Florida Nutrients: Projected Increases" and identifies two attachments (both withheld): Projected 

Population Growth in Florida and Projected Agricultural Industry Growth in Florida. Entry WH-576 is entitled "Florida 

Nutrients: USGS Info" which is an e-mail sent at 9:43 on the morning of January 14, 2009, with two documents (both 

withheld): USGS Stations for Florida and USGS Data Analysis. Entry WH-582 is an email sent at 11:50 a.m., also on 

January 14th, entitled "Florida Nutrients: Impairments and TMDLs," to which an Excel spreadsheet was attached (but 

withheld from the FOIA request) entitled "Analysis of Impaired Waters in Florida." Privilege log entry WH-578 includes 

the most telling subject line: "Re: Q & A on the relationship of the litigation to the determination." That information was 

also withheld from the FOIA request. 

The necessity determination was not the product of a deliberative process by which the former Assistant Administrator 

met his burden of "marshalling conclusive evidence of 'necessity' for Federally promulgated water quality standards." 57 

Fed. Reg. 60848. Data were being reviewed by staff on the same day as the determination letter was issued, and it is 

clear that the former Assistant Administrator had no role in its analysis and no substantive role in making the 

determination. 

Entries in the privilege log confirm that EPA staffers were feverishly working to generate a necessity determination and 

settle the law suit before Assistant Administrator Grumbles received authorization to sign the January 14, 2009, letter 

and before Assistant Administrator Luna requested the one-time delegation from EPA Administrator Stephen Johnson. 

Revealing entries include the following: 

Original comment letter contains additional information in a table of documents that EPA refused to produce in 

response to the FOIA request. See original comment letter. 

11/19/2010 02:48 PM EST 2-1825
 
Chapter 2 - Comment Documents Background 

As evident from the description of the documents that EPA refused to produce in response to the FOIA request, EPA 

staff was planning its strategy to extricate the agency from the federal lawsuit before Assistant Administrator Grumbles 

received his one-time: authorization on December 30, 2008, which resulted in the January 14th letter, 11 working days 

later. EPA staff members were exchanging copies of a proposed press release on the same day as Administrator 

Johnson signed the delegation. As evident from entry WH-413 on page 77 of the privilege log, the determination was 

inextricably linkedl to the numeric nutrient criteria lawsuit. 

EPA's rush to construct a necessity determination to settle the lawsuit is clear from the: description of the documents 

EPA refused to release under the FOIA request; one can. only imagine the conclusions that might be drawn if the 

documents had not been withheld. The very length of the privilege log, and the nature of entries, highlights the 

clandestine nature of the effort. In fact, it was not until a day or so before the January 14, 2009 letter was finally 

provided to Mr. Grumbles that EPA legal staff started to raise concerns as to whether the necessity determination was 

fmal agency action. Since no 29 R4 is an abbreviation for EPA's Region 4 regional office located in Atlanta, Georgia; 

Florida is a "Region 4" state. record had been established, EPA had painted itself into a legal corner and would have no 

choice but to take the position that the determination was not final agency action. If the letter was final agency action, 

EPA would have failed to establish the proper record. If was not final agency action, EPA could argue that it need not 

keep a record (consistent with what actually transpired). When pressed for the basis for its January 14, 2009 necessity 

determination as part of a FOIA request, EPA claimed deliberative process privilege but even then it is clear that 

Assistant Administrator Grumbles-the EPA official with the specific authority to make the determination-was not a part of 

that deliberative process. 

More telling from the privilege log is what is absent. There are no entries indicating that Mr. Grumbles or EPA 

Headquarters staff received any new information, performed any new analyses or had any real technical basis for its 

determination. Indeed, bye-mail dated June 22, 2009, EPA forwarded a portion of its internal draft of a document titled 

"EPA Nutrient Criteria Technical Support Document for Florida Inland Waters," to water quality scientists at the Florida 

Department of Environmental Protection. Still in draft form some six months after the January 14, 2009, determination, 

Section 2.5, titled "Purpose of this Document," states: "This document consists of scientific information that is intended 

to support EPA's mandatory duty under CWA Section 303(c)(4)(B) that new or revised water quality standards for 

nutrients are needed for the State of Florida." Several months later EPA was still trying to assemble the technical basis 

for its necessity determination issue in January of 2009. 

As a litigation strategy, EPA staff and legal counsel decided that the best way to rid itself of the federal litigation, and 

whether the 1998 Clean Water Action Plan was a formaJl necessity determination, was to neutralize the issue by 

creating a "real" determination.. Over the course of a few days and several dozen e-mails in December 2008, and the 

first few days of 2009, EPA staff drafted the determination and then proceeded to request information from the State of 

Florida to justify their actions. The information EPA received from the State was not new information and up to the very 

day the determination was released-January 14, 2009-EPA staff members were exchanging e-mails with data and 

analysis so staff could attempt to perform Administrator Grumbles' duties under the: Clean Water Act after the fact. 

The January 14, 2009, determination was constructed as a means to orchestrate an end. As Assistant Administrator 

Luna explained in his memorandum seeking the one-time: delegation of authority to out-going Assistant Administrator 

Grumbles, "[mlaking such a determination could give EPA a basis to propose a settlement to the plaintiffs or to request 

that the court dismiss the case." 

11/19/2010 02:48 PM EST 2-1826
 
Chapter 2 - Comment Documents Background 

Comment ID 2233-1.001.047 

Author Name: Kovach C. 

Organization: CF Industries 

7. The Necessity Determination Was Not Necessary 

"Federal promulgation of State water quality standards should be a course of last resort. It is symptomatic of something 

awry with the basic statutory scheme." 57 Fed.Reg.. 60858. Not only was nothing awry in Florida, EPA had just 

approved Florida's amended plan for developing numeric nutrient criteria in the fall of 2007. On September 28,2007 

EPA approved Florida's numeric nutrient development plan; the January 14, 2009 letter effectively revoked that 

approval. In its September 28, 2007 letter, an EPA representative stated: 

At the end of 2007 (and we anticipate annually thereafter), EPA will use the Plan to evaluate Florida's progress and 

determine whether or not the State is likely to complete numeric nutrient criteria development and adoption within the 

agreed upon time frames. If the state has not met the milestones as scheduled in the plan., EPA will evaluate whether a 

federal promulgation would be appropriate. At thal~ time, the Administrator may choose to exercise his discretion under 

the CWA § 303(c)(4)(B) to determine that new or revised standards are necessary to meet the: requirements of the 

CWA, and accordingly may choose to promulgate water quality criteria for nutrients applicable to surface waters within 

Florida in. accordance with § 303. However, the revised Plan submitted by FDEP and: agreed to here makes this 

possibility unlikely at this time. (Emphasis added). 

The State did not abandon its plan, suspend its plan or prematurely submit deficient unsupportable numeric nutrient 

criteria to EPA forcing EPA to declare federal numeric nutrient criteria necessary for Florida.[32] Florida water quality 

did not suddenly get worse; EPA received no new data resulting in a sudden realization that numeric nutrient criteria 

were immediately required for Florida. The most objective scrutiny of the events occurring between September 2007 

and January 2009 point to a predominant precipitating factor: EPA was sued in August of 2008. 

EPA never performed the annual evaluation of Florida's progress at the end of 2008 but instead put the wheels in 

motion to generate the January 14, 2009, determination sometime in November of 2008. The memorandum from former 

Assistant Administrator 

Luna, dated December 18, 2008, speaks to water quality issues as items to be examined in the future to support the 

determination document that EPA staff wished to issue, because there was "some risk that the Court could agree with 

the plaintiffs" and such a ruling "could spur litigation in other states." These are not factors anticipated by Congress in 

formulating § 303(c)(4)(B).[33] 

[32] In defending a suit alleging that EPA had not promptly promulgated water quality standards for Arizona, the Court 

in Defenders of Wildlife v. Browner observed: "EPA focuses on the legislative history of the CWA which discusses the 

ideal federal-state regulatory balance and suggests that the Agency should work closely with states to obtain approved 

standards before acting to promulgate water quality standards for state waters." Citing, H.R.Rep. No. 911, 92d Cong., 

2d Sess. 105 (1972) reprinted in, I Cong.Res.Serv., 93d Congo 1st Sess., A Legislative History of the Water Pollution 

11/19/2010 02:48 PM EST 2-1827
 
Chapter 2 - Comment Documents Background 

Control Act Amendments of 1972 at 753, 792. Defenders of Wildlife v. Browner, 909 FSupp. 1342,1346 (Dist. Ariz. 

1995). 

[33] In fact, of 19 sentences making up the memorandum, only one sentence addresses Florida's water quality by 

referring to the litigants' allegations in their complaints. 

Comment ID 2233-1.001.065 

Author Name: Kovach C. 

Organization: CF Industries 

• The determination establishes an unfunded mandate only applicable to Florida, Florida utilities, utility ratepayers and 

the regulated community. 

• Most fundamentally, the factual basis EPA provides in its January 14, 2009, necessity determination is unsupported. 

Comment ID 2375.001.003 

Author Name: English G. 

Organization: South Indian River Water Control District 

We understand that the development of numeric nutrient criteria is the result of a consent decree EPA has entered into 

that specifies deadlines for establishing such criteria. We are concerned that the timeframes set forth in the consent 

decree are too ambitious and have thus resulted in hastily formulated standards that are not scientifically sound. 

Comment ID 2376.001.003 

Author Name: Baird L. 

Organization: Barron Water Control District 

We understand that the development of numeric nutrients criteria is the result of a consent decree EPA has entered 

into that specifies deadlines for establishing such criteria. We are concerned that the timeframes set forth in the consent 

decree are too ambitious and have thus resulted in hastily formulated standards that are not scientifically sound. 

Comment ID 2395.001.004 

Author Name: Hauck A. 

Organization: Council of Civic Associations 

CCA OBJECTIONS : First, Mr. Silva's proposal to Mr. Sole left the public out of the loop contrary to Administrator 

11/19/2010 02:48 PM EST 2-1828
 
Chapter 2 - Comment Documents Background 

Jackson's belief that the government's obligation is inform the public about water quality or actions to protect water 

quality or the need to improve transparency as the public can be the government's best ally. 

Comment ID 2395.001.006 

Author Name: Hauck A. 

Organization: Council of Civic Associations 

Third, Mr. Silva's proposal delays the nutrient criterion with another round of scientific review and another round of 

consultations with the State and another round of public hearings. This delay tactic and the separation of estuaries 

sounds political to us. 

Response 

Comment IDs: 0186-1.001.005, 0487-1.001.004, 0601.001.001, 0627.001.004, 0773.001.006, 0849.001.006, 0883.001.002, 

0895.001.016, 1301-1.001.003, 1333.001.002, 1416-1.001.021, 1473-1.001.022, 1786-1.001.004, 1786-1.001.006, 1797-1.001.004, 

1799-1.001.004, 1800-1.001.003, 1812-1.001.005, 1814-1.001.007, 1885.001.016, 2233-1.001.037, 2375.001.003, 2376.001.003 

Response: In response to the comments, EPA disagrees that EPA’s rulemaking is driven solely in response to litigation and that, 

therefore, the data and timeframe employed are not sufficient to support the derivation of scientifically defensible numeric nutrient 

criteria for Florida’s lakes and flowing waters. After careful analysis and discussions with Florida Department of Environmental 

Protection (FDEP), EPA determined that Florida’s reliance on a case-by-case interpretation of its narrative criterion in 

implementing its Clean Water Act programs was insufficient to ensure protection of applicable designated uses. As a result, on 

January 14, 2009 EPA determined that numeric nutrient criteria are necessary for Florida to meet the requirements of the Clean 

Water Act to have standards in place that protect applicable designated uses. Please refer to the preamble to the final rule, in 

particular sections II.A Nitrogen/Phosphorus Pollution and II.D Agency Determination Regarding Florida, for a detailed accounting 

of rationale and justification for EPA’s determination. On August 19, 2009 EPA entered into a Consent Decree with the Florida 

Wildlife Federation and four other environmental groups to settle litigation alleging that prior Agency actions and statements 

constituted a CWA section 303(c)(4)(B) determination that numeric nutrient water quality criteria were necessary to meet the 

requirements of the CWA in the State of Florida. That consent decree memorialized the proposal dates schedule EPA outlined in its 

January 2009 determination and included dates for finalizing criteria nine months after proposal, well beyond the 90 days 

envisioned by Congress in section 303(c)(4) of the CWA. Please also refer to the response to the comment group, Comment IDs: 

1301-1.001.003, 1416-1.001.010, 1416-1.001.012, 2233-1.001.005, 2233-1.001.042, 2233-1.001.047, located in this issue category. 

EPA notes that on June 7, 2010, EPA and Plaintiffs filed a joint notice with the Court extending the deadlines for promulgating 

numeric nutrient criteria for Florida's estuaries and coastal waters, flowing waters in south Florida (including canals), and the 

downstream protection values for flowing waters into estuaries and coastal waters. The new deadlines are November 14, 2011 for 

proposal and August 15, 2012 for publishing a final rule for these three categories. This will allow EPA time to have the 

methodologies for developing the criteria included in EPA's November 2011 rulemaking peer-reviewed by EPA’s Science Advisory 

Board. EPA also notes that the Agency’s proposed restoration water quality standard will not be finalized in this rulemaking. 

11/19/2010 02:48 PM EST 2-1829
 
Chapter 2 - Comment Documents Background 

Please refer to the preamble to the final rule, in particular section V.E Proposed Restoration Water Quality Standard, for 

clarification on EPA’s decision not to finalize EPA’s proposed restoration water quality standard. 

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

of Florida, which discusses the derivation of the numeric nutrient criteria, derived to account for the natural variability exhibited in 

Florida's lakes and flowing waters. EPA relied on an extensive amount of Florida-specific data and technical analyses to derive 

scientifically defensible numeric nutrient criteria consistent with the requirements of the Clean Water Act and EPA’s implementing 

regulations at 40 CFR part 131. EPA reminds commenters that the underlying methodologies for the Agency’s proposed numeric 

nutrient criteria for Florida’s rivers, streams, and lakes underwent scientific peer review. EPA followed the procedures outlined in 

its Peer Review Handbook (EPA/100/B-06/002) by having the specific methods EPA was considering to establish numeric nutrient 

criteria for Florida's lakes and flowing waters peer reviewed by five independent external experts in this field This independent, 

external peer review was completed in July 2009 and the results were made available through EPA’s docket for the proposed 

Florida nutrients rule (Peer Review Comments Final: External Peer Review of EPA’s Proposed Methods and Approaches for 

Developing Numeric Nutrient Criteria for Florida’s Inland Waters, EPA-HQ-OW-2009-0596-0010). EPA considered and 

responded to these peer review comments prior to proposal in January, 2010 (EPA Responses to External Peer Review of EPA, 

EPA-HQ-OW-2009-0596-0155). With regard to the Science Advisory Board (SAB)'s recent review of an EPA draft guidance 

document for states to use when deriving numeric nutrient criteria using stressor-response relationships: The SAB reviewed EPA’s 

draft technical guidance on Empirical Approaches for Numeric Nutrient Criteria Development. Stressor-response relationships are 

one of three general approaches that EPA recommends for states to use when deriving numeric nutrient criteria. EPA has 

previously published peer-reviewed general guidance documents that outline these three approaches. The SAB reviewed a 

supplemental guidance document that provided more detail on one of the three general approaches. EPA has used stressor-response 

approaches in this final rule and has benefited from the advice the SAB gave to EPA based on the SAB review of the Agency’s 

draft technical guidance on Empirical Approaches for Numeric Nutrient Criteria Development in September 2009. 

Regarding the request for a delayed effective date pertaining to the numeric nutrient criteria for Florida’s lakes and flowing waters 

finalized in this rule, please refer to the preamble to the final rule, section III.E Applicability of Criteria When Final. 

Comment IDs: 0549.001.001, 0620.001.006, 0675.001.009, 0679.001.006, 0706.001.001, 0720.001.003, 0724.001.002, 

0766.001.002, 0768.001.002, 0928.001.001, 0941.001.001, 0949.001.001, 0966.001.001, 0996.001.001, 1138.001.002, 

1179.001.004, 1216-1.001.005, 1301-1.001.014, 1317.001.008, 1329.001.007, 1329.001.008, 1416-1.001.004, 1700-1.001.008, 

1770-1.001.026, 1771-1.001.033, 1773-1.001.030, 1772-1.001.027, 1782-1.001.020 

Response: In response to the comments, EPA disagrees that the Agency’s action in Florida constitutes a violation of the U.S. 

Constitution or the statutory and regulatory powers bestowed on EPA to promulgate water quality standards in a state or states 

where EPA determines that new or revised water quality standards are necessary to meet the requirements of the CWA. In enacting 

CWA section 303(c)(4)(B), Congress authorized the Administrator of EPA to determine, in his/her discretion, that new or revised 

water quality standards are necessary to meet the requirements of the CWA, and for EPA to then "promptly" propose such standards 

and finalize them within 90 days of proposal. See CWA section 303(c)(4)(B). Thus EPA clearly has the statutory authority to 

promulgate water quality standards for a state or states where EPA determines that such standards are necessary to meet the 

requirements of the CWA. Furthermore, as noted in CWA section 303(c)(4), the water quality standards promulgated in today's 

11/19/2010 02:48 PM EST 2-1830
 
Chapter 2 - Comment Documents Background 

rule are "for the navigable waters involved". CWA section 502(7) defines "navigable waters" to mean "the waters of the United 

States, including the territorial seas". Thus EPA's determination and final rule only apply to navigable waters, i.e., waters of the 

United States. 

With regard to the comments about the consistency of EPA's action with the U.S. Constitution, specifically the 10th Amendment, 

the 10th Amendment provides the following: "The powers not delegated to the United States by the Constitution, nor prohibited by 

it to the States, are reserved to the States respectively, or to the people." As recognized in the comments, Congress enacted the 

CWA under authority of the Commerce Clause of the U.S. Constitution, which is contained in Section 8 of Article 1 and provides 

that "The Congress shall have Power ... (3) To regulate Commerce ... among the several States, and with the Indian Tribes". EPA 

disagrees with the comments suggesting that the rule is unconstitutional based on either the Tenth Amendment or the Commerce 

clause. Congressional enactment of the CWA was based on federal authority to regulate interstate commerce and the channels of 

commerce, i.e., the Commerce Clause. The Tenth Amendment has been interpreted as embodying the principles of federalism and 

"states' rights." Because CWA section 303 provides a state with the authority to take action first, subject to EPA review and 

approval and disapproval, and because EPA action under CWA 303(c)(3) does not commandeer the executive or legislative 

apparatus of a state, today's rule is not unconstitutional under the Tenth Amendment. 

Comment ID: 1885.01.008 

Response: In response to the comment, EPA acknowledges the comment, which provides summaries of the information presented 

in EPA’s proposed rule. 

Comment IDs: 0574.001.001, 0597.001.006, 0611.001.004, 0613.001.002, 0740.001.002, 0782.001.003, 0864.001.002, 

0901.001.004, 0998.001.001, 1080.001.005, 1116.001.003, 1197.001.010, 1245.001.001, 1319.001.004, 1325.001.006, 

1326.001.005, 1482-1.001.047, 1878-1.001.002, 1946.001.004 

Response: In response to the comments, EPA acknowledges the comments supportive of this rule to finalize numeric nutrient 

criteria for Florida's lakes and flowing waters that are scientifically defensible and protective of applicable designated uses 

consistent with the requirements of the Clean Water Act section 303(c) and EPA's implementing regulations at 40 CFR part 131. 

EPA believes it has done so with this rule. This final rule establishes numeric nutrient criteria, to be effective for purposes of the 

Clean Water Act, that are protective of Florida’s inland surface waters designated as Class I and Class III waters. As a result, 

promulgation of this rule serves to protect aquatic ecosystems, recreation in and on the water, and drinking water supplies from 

water quality degradation due to the negative impacts of nutrient pollution. Numeric nutrient criteria will create clear water quality 

goals and easily measurable quantitative baselines to support stronger collaboration and more effective partnerships with both point 

and nonpoint source dischargers of nitrogen/phosphorus pollution. 

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

of Florida, which discusses the derivation of the numeric nutrient criteria, derived to account for the natural variability exhibited in 

Florida's lakes and flowing waters. EPA relied on an extensive amount of Florida-specific data and technical analyses to derive 

scientifically defensible numeric nutrient criteria consistent with the requirements of the Clean Water Act and EPA’s implementing 

regulations at 40 CFR part 131. 

11/19/2010 02:48 PM EST 2-1831
 
Chapter 2 - Comment Documents Background 

Comment ID: 0623.001.008 

Response: Regarding the request for a delayed effective date pertaining to the numeric nutrient criteria for Florida’s lakes and 

flowing waters finalized in this rule, please refer to the preamble to the final rule, section III.E Applicability of Criteria When Final. 

Comment IDs: 0623.001.013, 0720.001.004, 0720.001.006, 1179.001.006, 1307.001.005 

Response: In response to the comments, EPA acknowledges the comments and concerns expressed in opposition to EPA's 

rulemaking to establish numeric nutrient criteria for Florida's lakes and flowing waters. EPA appreciates the comments and 

feedback received on this rule, however, the Agency disagrees that EPA should not proceed with finalizing the numeric nutrient 

criteria for Florida's lakes and flowing waters discussed in the preamble to this rule. 

The numeric nutrient criteria for Florida's lakes and flowing waters, finalized in this rule, are scientifically defensible and protective 

of applicable designated uses consistent with the requirements of the Clean Water Act section 303(c) and EPA's implementing 

regulations at 40 CFR part 131. This final rule establishes numeric nutrient criteria, which will be effective for purposes of the 

Clean Water Act, that are protective of Florida’s inland surface waters designated as Class I and Class III waters. As a result, 

promulgation of this rule serves to protect human health, aquatic ecosystems, recreation in and on the water, and drinking water 

supplies from water quality degradation due to the negative impacts of nitrogen/phosphorus pollution. Numeric nutrient criteria 

will create clear water quality goals and easily measurable quantitative baselines to support stronger collaboration and more 

effective partnerships with both point and nonpoint source dischargers of nitrogen/phosphorus pollution. 

EPA and Florida Department of Environmental Protection (FDEP) share a commitment to establish numeric nutrient criteria for 

Florida. Florida established the designated uses, which are applicable to Florida's waters, are consistent with the Clean Water Act, 

and are set to manage clean water program objectives for Florida’s waters affected by this final rule. The numeric nutrient criteria 

finalized as part of this rule establish levels necessary to support these uses. 

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

analysis of existing data, to address nutrient pollution problems in Florida. EPA will continue to collaborate with FDEP as the State 

implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for purposes of the Clean 

Water Act. EPA recognizes there will be complex issues involved in implementation of numeric nutrient criteria and looks forward 

to working with Florida as the State implements these federal criteria while it moves to adopt its own criteria in the future. 

Comment IDs: 0186-1.001.002, 0627.001.008, 0646.001.002, 0713.001.004, 0714.001.007, 1217-2.001.024, 1334.001.006, 1359­

1.001.004, 1359-1.001.047, 1359-1.001.054, 1372-1.001.003, 1416-1.001.011, 1473-1.001.010, 1473-1.01.022, 1474-1.001.026, 

1474-1.001.040, 1532-1.001.002, 1641-1.001.015, 1667-1.001.001, 1715-1.001.010, 1715-1.001.011, 1729.001.020, 1769­

1.001.004, 1778-1.001.016, 1782-1.001.007, 1782-1.001.020, 1782-1.001.051, 1782-1.001.052, 1786-1.001.012, 1812-1.001.002, 

1814-1.001.003, 1834-2.001.001, 1834-2.001.007, 1837-1.001.002, 2233-1.001.005, 2233-1.001.039, 2233-1.001.047, 2233­

11/19/2010 02:48 PM EST 2-1832
 
Chapter 2 - Comment Documents Background 

1.001.065, 2233.1.001.042 

Response: In response to the comments, EPA disagrees with commenters’ assertions that question the legal authority and scientific 

defensibility of EPA’s January 14, 2009 determination and promulgation of numeric nutrient criteria for Florida’s lakes and flowing 

waters. After careful analysis and discussions with Florida Department of Environmental Protection (FDEP), EPA determined that 

Florida’s reliance on a case-by-case interpretation of its narrative criterion in implementing its Clean Water Act programs was 

insufficient to ensure protection of applicable designated uses. As a result, on January 14, 2009 EPA determined that numeric 

nutrient criteria are necessary for Florida to meet the requirements of the Clean Water Act to have standards in place that protect 

applicable designated uses. Please refer to the preamble to the final rule, in particular sections II.A Nitrogen/Phosphorus Pollution 

and II.D Agency Determination Regarding Florida, for a detailed accounting of the rationale and justification for EPA’s 

determination. On August 19, 2009 EPA entered into a Consent Decree with the Florida Wildlife Federation and four other 

environmental groups to settle litigation alleging that prior Agency actions and statements constituted a CWA section 303(c)(4)(B) 

determination that numeric nutrient water quality criteria were necessary to meet the requirements of the CWA in the State of 

Florida. That consent decree memorialized the proposal dates schedule EPA outlined in its January 2009 determination and 

included dates for finalizing criteria nine months after proposal, well beyond the 90 days envisioned by Congress in section 

303(c)(4) of the CWA. Please also refer to the response to the comment group, Comment IDs: 1301-1.001.003, 1416-1.001.010, 

1416-1.001.012, 2233-1.001.005, 2233-1.001.042, 2233-1.001.047, located in this issue category. 

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

of Florida, which discusses the derivation of the numeric nutrient criteria, derived to account for the natural variability exhibited in 

Florida's lakes and flowing waters. EPA relied on an extensive amount of Florida-specific data and technical analyses to derive 

scientifically defensible numeric nutrient criteria consistent with the requirements of the Clean Water Act and EPA’s implementing 

regulations at 40 CFR part 131. EPA also reminds the commenter that the methods EPA used in its proposal went through an 

independent, external scientific peer review in July 2009. The results of this independent, peer review were made available through 

EPA’s docket (EPA-HQ-OW-2009-0596). 

Comment IDs: 1301-1.001.003, 1416-1.001.010, 1416-1.001.012, 2233-1.001.005, 2233-1.001.042, 2233-1.001.047 

Response: In response to the comments, EPA disagrees that the underlying reason for EPA’s January 14, 2009 determination was 

not based on water quality concerns in Florida. EPA’s January 14, 2009 determination reflected direct consultation with FDEP and 

careful evaluation of available data and analysis. It also was based on a long history of working with the State to develop numeric 

nutrient criteria and a conclusion, as detailed in the January 14, 2009 determination, that despite Florida’s efforts over the preceding 

years, it was clear that substantial water quality degradation from nutrient over-enrichment remained a significant challenge--one 

that would only worsen with continued population growth and environmental and land use changes 

(http://www.epa.gov/waterscience/standards/rules/fl-determination20090114.pdf). The July 2008 lawsuit brought by Florida 

Wildlife Federation et al. was not the sole reason for making the determination, but it did bring to EPA’s attention the frequency of 

algal blooms in Florida and their harmful effect on Florida’s water supplies, aquatic life, public health and recreational areas 

(Florida Wildlife Federation, Inc., et al. v. Jackson, et al., Case No. 4:08-cv-00345-RH-WCS (July 17, 2008). This suit caused EPA 

to evaluate Florida’s challenges with controlling nutrient over-enrichment with much more scrutiny than it had prior to then. 

FDEP’s October 2008 Integrated Report documented that approximately 1,000 miles of rivers and streams, 350,000 acres of lakes, 

11/19/2010 02:48 PM EST 2-1833
 
Chapter 2 - Comment Documents Background 

and 900 square miles of estuaries are impaired for nutrients (http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf). 

These values represent approximately 36% of assessed lake acres, 25% of assessed square miles of estuaries, and 16% of assessed 

river and stream miles that Florida has listed as impaired under the IWR, confirming the urgent need for EPA action to address the 

problem (http://www.epa.gov/waterscience/standards/rules/fl-determination20090114.pdf). Significant additional steps to control 

nutrient pollution in Florida were needed, and Florida’s narrative nutrient criterion alone was not sufficient to protect Florida’s 

waters. The development of TMDLs and water quality-based effluent limits in NPDES permits require highly technical, sitespecific analyses, and given the widespread nature of the nutrient challenges in the State, the State’s reliance on its narrative 

nutrient criterion was too resource intensive, time consuming, and less than effective in implementing Clean Water Act programs 

(http://www.epa.gov/waterscience/standards/rules/fl-determination20090114.pdf). 

EPA’s January 14, 2009 determination was a logical and reasonable step that EPA took after working with and supporting Florida 

for a number of years to develop numeric nutrient criteria. As noted above, the determination took into account the number of 

impairments, outlined in the State’s 2008 Integrated Report (http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf ), 

along with other data and information, the impediments to permitting and TMDL development caused by case-by-case translation 

of the narrative nutrient criterion, the sensitivity of the Florida environment to excess nutrients, the increasing pressures from land 

use and population growth, and the need to preserve non-impaired waters to maintain Florida’s water quality and associated 

benefits. In light of the reasons articulated above, the 2008 lawsuit was not the sole or even the main driver for EPA’s January 14, 

2009 determination. The delegation of authority from Administrator Stephen Johnson to Assistant Administrator Benjamin 

Grumbles was not the action that commenced the Agency’s process for doing the analysis and collecting the data to make a CWA 

section 303(c)(4)(B) determination; rather, it was an administrative step in the process to be completed before the determination 

was signed. The delegation memo signed by Assistant Administrator Luis Luna included an explanation of how the determination 

fit into the overall situation in Florida at the time, which included a recently-filed lawsuit. It would have been irresponsible to fail to 

inform the Administrator of related litigation and potential consequences associated with the action. 

In addition, EPA’s 2009 determination in Florida reflected a broader ongoing Agency focus on the need for states and authorized 

tribes to adopt nutrient criteria. EPA’s June 1998 National Strategy for the Development of Regional Nutrient Criteria (“1998 

Strategy”) laid out the urgency and expectations for states and authorized tribes to adopt nutrient criteria in order to better 

understand, identify and manage nutrient over-enrichment problems in surface waters (National Strategy for the Development of 

Regional Nutrient Criteria, June 1998, EPA 822-R-98-002, page 6). The 1998 Strategy, as well as EPA’s January 9, 2001 Federal 

Register notice announcing the publication of 17 Ecoregional Nutrient Criteria Documents and Geoff Grubbs’ November 14, 2001 

memo, stated that EPA would step in and promulgate nutrient water quality criteria if states had not made substantial progress 

toward this goal and if EPA determined that such criteria were necessary to meet the requirements of the Clean Water Act (Id; 66 

FR 1673-1674; 

http://water.epa.gov/scitech/swguidance/waterquality/standards/upload/2009_01_21_criteria_nutrient_nutrientswqsmemo.pdf). 

Data and information analyzed since EPA’s 2009 determination, such as nitrogen and phosphorus STORET data pulled from 

Florida’s Impaired Waters Rule, as well as recent reports of algal blooms, fish kills, and drinking water supply contamination, 

among other issues, confirm the magnitude and severity of nutrient over-enrichment and the urgent need for numeric nutrient 

criteria in the State of Florida. EPA refers commenters to sections II.A Nitrogen/Phosphorus Pollution and II.D of the preamble to 

the final rule, which details EPA's January 14, 2009 determination that Florida needs numeric nutrient water quality criteria to meet 

the requirements of the CWA. 

11/19/2010 02:48 PM EST 2-1834
 
Chapter 2 - Comment Documents Background 

Comment IDs: 0648.001.002, 0722.001.004, 0732.001.009, 0751.001.002, 0836.001.004, 0844.001.006, 1194.001.006, 

1250.001.002, 1307.001.003, 1310.001.003, 1370-1.001.076, 1792-1.001.005, 2183.001.003 

Response: In response to the comments, EPA agrees with comments that support continued collaboration between EPA, Florida, 

and affected stakeholders. EPA and Florida Department of Environmental Protection (FDEP) share a commitment to establish 

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

with the Clean Water Act, and are set to manage clean water program objectives for Florida’s waters affected by EPA's rule. The 

numeric nutrient criteria finalized as part of this rule establish levels necessary to support these uses. 

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

of Florida, which discusses the derivation of the numeric nutrient criteria, derived to account for the natural variability exhibited in 

Florida's lakes and flowing waters. EPA relied on an extensive amount of Florida-specific data and technical analyses to derive 

scientifically defensible numeric nutrient criteria consistent with the requirements of the Clean Water Act and EPA’s implementing 

regulations at 40 CFR part 131. EPA also reminds the commenter that the methods EPA used in its proposal went through an 

independent, external scientific peer review in July 2009. The results of this independent, peer review were made available through 

EPA’s docket (EPA-HQ-OW-2009-0596). 

EPA reminds the commenter that FDEP, independently from EPA, initiated its own State rulemaking process in the spring/summer 

of 2009 to adopt numeric nutrient water quality standards for Florida’s waters. FDEP held several public workshops on its draft 

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

the Florida Environmental Regulatory Commission, as had been previously scheduled. EPA will continue to collaborate with 

FDEP as the State implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for 

purposes of the Clean Water Act. FDEP retains the authority to move forward with its own rulemaking process at any time and 

EPA looks forward to working with Florida as the State implements these federal criteria while it moves to adopt its own criteria in 

the future. 

Comment IDs: 0664.001.002, 0727.001.002, 0810.001.001, 1370-1.001.031 

Response: In response to the comments, in terms of understanding how the numeric nutrient criteria finalized in this rule will affect 

restoration and implementation activities, plans, and programs already underway (such as the TMDL process, agricultural 

BMPs/BMAPs, fertilizer reductions, or the NPDES permitting process), these are cyclical processes that are monitored, reassessed 

and revisited on a regular basis to reflect new information, analysis, data or as in this case when new or revised water quality 

criteria are put in place to translate and provide numeric goals to support implementation and attainment of existing State 

designated water quality uses. Regular review and reevaluation of assessment, listing, TMDL, BMAP, and NPDES permit actions is 

a routine and ongoing part of any water quality program implementation process both to determine where progress has been made, 

to protect high quality waters, and to identify and prioritize impaired waters for further evaluation and appropriate action. 

Adjustments are then made consistent with meeting applicable WQS. Please refer to the preamble associated with this final rule, in 

particular section III.E Applicability of Criteria When Final for further discussion regarding implementation of the numeric nutrient 

criteria finalized in this rule and potential effects on existing programs. EPA reminds the commenter that EPA is promulgating 

11/19/2010 02:48 PM EST 2-1835
 
Chapter 2 - Comment Documents Background 

numeric nutrient criteria that translate Florida’s own existing nutrient narrative water quality standards into numeric values for 

Florida's lakes and flowing waters that are scientifically defensible and protective of applicable designated uses consistent with the 

requirements of the Clean Water Act section 303(c) and EPA's implementing regulations at 40 CFR part 131. This final rule 

establishes numeric nutrient criteria, which will be effective for purposes of the Clean Water Act, that are protective of Florida’s 

inland surface waters designated by FDEP as Class I and Class III waters. EPA reminds commenters that water quality criteria are 

derived to protect the applicable designated uses of waters. 

Under the Clean Water Act (CWA), Florida Department of Environmental Protection (FDEP) is the primary agency responsible for 

determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to 

FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. EPA has 

worked closely with the State, providing technical assistance, along with funding to the State to support sampling and analysis of 

existing data, to address nitrogen/phosphorus pollution problems in Florida. EPA will continue to collaborate with FDEP as the 

State implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for purposes of the 

Clean Water Act. EPA recognizes there will be complex issues involved in implementation of numeric nutrient criteria and looks 

forward to working with Florida as the State implements these federal criteria and adopts their own criteria in the future. 

Comment IDs: 0703.001.006, 0714.001.006, 0716.001.010, 0724.001.004, 0728.001.003, 0732.001.003, 0736.001.004, 

0738.001.002, 0748.001.002, 0955.001.005, 1008.001.004, 1301-1.001.017, 1304-1.001.034, 1370-1.001.027, 1474-1.001.026, 

1837-1.001.008, 1877.001.006 

Response: In response to the comments, EPA clarifies that under the Clean Water Act (CWA), Florida Department of 

Environmental Protection (FDEP) is the primary agency responsible for determining how to implement water quality programs in 

the State with oversight and support by EPA. As such, EPA defers to FDEP in administering applicable CWA programs consistent 

with the CWA and EPA’s implementing regulations. EPA will continue to collaborate with FDEP as the State implements the 

numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for purposes of the Clean Water Act. EPA 

recognizes there will be complex issues involved in implementation of numeric nutrient criteria and looks forward to working with 

Florida as the State implements these federal criteria and adopts their own criteria in the future. 

As discussed in EPA’s January 14, 2009 determination letter, Florida’s reliance on a case-by-case translation of its narrative 

nutrient criterion into numeric values is insufficient to ensure protection of applicable designated uses. The existence of numeric 

nutrient criteria, as being promulgated by EPA, will facilitate Florida’s efforts to identify all nutrient-impaired waters. Numeric 

nutrient criteria will also facilitate Florida’s efforts to establish TMDLs, BMAPs, and appropriate WQBELs in NPDES permits as 

necessary to adequately protect applicable designated uses. 

EPA reminds the commenter that FDEP, independently from EPA, initiated its own State rulemaking process in the spring/summer 

of 2009 to adopt numeric nutrient water quality standards for Florida’s waters. FDEP held several public workshops on its draft 

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

the Florida Environmental Regulatory Commission, as had been previously scheduled. EPA will continue to collaborate with 

FDEP as the State implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for 

purposes of the Clean Water Act. FDEP retains the authority to move forward with its own rulemaking process to submit proposed 

11/19/2010 02:48 PM EST 2-1836
 
Chapter 2 - Comment Documents Background 

standards, including a State SSAC process applicable to nutrients if the State wishes, to EPA for review under section 303(c) of the 

Clean Water Act. 

Comment IDs: 0714.001.004, 0770.001.007, 0947.001.003, 0947.001.012, 1797-1.001.019 

Response: In response to the comments, EPA’s and FDEP’s mutually-agreed upon numeric nutrient development plans, and the 

timeframes included in those plans, are not in opposition to EPA’s January 14, 2009 determination and EPA’s rulemaking. The 

mutually-agreed upon plan is a mechanism to help guide the process of criteria development. As circumstances change, the plan 

may be adjusted. The examination of facts that lead to EPA's determination and EPA's rulemaking responsibilities may lead to 

different timeframes. Please also refer to the response to the comment group, Comment IDs: 1301-1.001.003, 1416-1.001.010, 

1416-1.001.012, 2233-1.001.005, 2233-1.001.042, 2233-1.001.047, located in this issue category. 

Comment IDs: 0784.001.004, 1263,001,005, 1723-1.001.003, 1729.001.002 

Response: In response to the comments, EPA disagrees with commenters’ assertions that the Agency has not had adequate time to 

solicit information on and conduct thorough analyses of existing data in order to develop scientifically defensible numeric nutrient 

criteria applicable to Florida’s waters. EPA believes that the extended comment period resulting in a 90-day public comment 

period, in conjunction with the additional public meetings (resulting in a total of 13 public meetings held in 6 different cities 

throughout the State), with a further 30 days to comment on EPA’s August 3, 2010 supplemental notice, provided sufficient time 

and opportunity for all interested parties to perform a thorough review of the proposed regulation and provide meaningful public 

comment to EPA. EPA disagrees that the Agency’s Consent Decree deadline to finalize numeric nutrient criteria adversely affected 

EPA’s public comment process or impeded EPA’s thorough review, consideration, and analysis of the comments submitted. 

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

of Florida, which discusses the derivation of the numeric nutrient criteria, derived to account for the natural variability exhibited in 

Florida's lakes and flowing waters. EPA relied on an extensive amount of Florida-specific data and technical analyses to derive 

scientifically defensible numeric nutrient criteria consistent with the requirements of the Clean Water Act and EPA’s implementing 

regulations at 40 CFR part 131. EPA also reminds the commenter that the methods EPA used in its proposal went through an 

independent, external scientific peer review in July 2009. The results of this independent, peer review were made available through 

EPA’s docket (EPA-HQ-OW-2009-0596). 

Comment IDs: 0786.001.012, 1189.001.003 

Response: In response to the comments, EPA notes that the Agency’s proposed restoration water quality standard will not be 

finalized in this rulemaking. Please refer to the preamble to the final rule, in particular section V.E Proposed Restoration Water 

Quality Standard, for clarification on EPA’s decision not to finalize EPA’s proposed restoration water quality standard in this 

rulemaking. 

11/19/2010 02:48 PM EST 2-1837
 
Chapter 2 - Comment Documents Background 

Comment IDs: 0895.001.015, 1416-1.001.011 

Response: In response to the comments, EPA disagrees that the Agency failed to provide sufficient public comment opportunity in 

order to inform EPA’s final rule. EPA believes that the extended comment period resulting in a 90-day public comment period, in 

conjunction with the additional public meetings (resulting in a total of 13 public meetings held in 6 different cities throughout the 

State), with a further 30 days to comment on EPA’s August 3, 2010 supplemental notice, provided sufficient time and opportunity 

for all interested parties to perform a thorough review of the proposed regulation and provide meaningful public comment to EPA. 

EPA disagrees that the Agency’s Consent Decree deadline to finalize numeric nutrient criteria adversely affected EPA’s public 

comment process or impeded EPA’s thorough review, consideration, and analysis of the comments submitted. 

Under the Clean Water Act (CWA), Florida Department of Environmental Protection (FDEP) is the primary agency responsible for 

determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to 

FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. EPA has 

worked closely with the State, providing technical assistance, along with funding to the State to support sampling and analysis of 

existing data, to address nitrogen/phosphorus pollution problems in Florida. EPA will continue to collaborate with FDEP as the 

State implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for purposes of the 

Clean Water Act. EPA recognizes there will be complex issues involved in implementation of numeric nutrient criteria and looks 

forward to working with Florida as the State implements these federal criteria while it moves to adopt its own criteria in the future. 

Comment IDs: 0896-2.001.019, 1301-1.001.003, 1350-1.001.021, 1370-1.001.076, 1715-1.001.010, 1787-1.001.003 

Response: In response to comments, EPA notes that on June 7, 2010, EPA and Plaintiffs filed a joint notice with the Court 

extending the deadlines for promulgating numeric nutrient criteria for Florida's estuaries and coastal waters, flowing waters in south 

Florida (including canals), and the downstream protection values for flowing waters into estuaries and coastal waters. The new 

deadlines are November 14, 2011 for proposal and August 15, 2012 for publishing a final rule for these three categories. This will 

allow EPA time to have the methodologies for developing the criteria included in EPA’s November 2011 rulemaking peer-reviewed 

by EPA’s Science Advisory Board. EPA also notes that the Agency’s proposed restoration water quality standard will not be 

finalized in this rulemaking. Please refer to the preamble to the final rule, in particular section V.E Proposed Restoration Water 

Quality Standard, for clarification on EPA’s decision not to finalize EPA’s proposed restoration water quality standard in this 

rulemaking. 

Comment ID: 0900-1.001.001 

Response: In response to the comment, EPA notes that excess loadings of nitrogen and phosphorus, commonly referred to as 

nutrient pollution, are one of the most prevalent causes of water quality impairment in the United States. As a consequence, EPA 

has made protecting and restoring the nation’s waters from nutrient pollution a top priority. EPA's recent action in Florida, 

however, is specific to the circumstances in Florida and not necessarily an indicator of the Agency's future nutrient pollution 

strategy. EPA's national goal remains for states to adopt numeric standards for all waters in the state. States have flexibility to set 

11/19/2010 02:48 PM EST 2-1838
 
Chapter 2 - Comment Documents Background 

their priorities for the order in which they adopt numeric nutrient water quality standards. EPA will continue to encourage and work 

with states to adopt numeric water quality standards for all waters within the state. 

Comment ID: 1304-1.001.057 

Response: In response to the comment, EPA appreciates concerns expressed by the commenter but disagrees that there are 

fundamental flaws in EPA’s notice and public participation processes, errors in separate legal requirements for adoption of federal 

regulations, lack of necessary relief mechanisms for nutrients in Florida, including those to address site-specific circumstances, or 

lack of consideration of upstream states and dischargers. Please refer to responses included in this document at III.A.2.Q.2 to 

address the concerns raised by the commenter. Please refer to EPA’s preamble to the final rule, in particular section V Alternative 

Regulatory Approaches and Implementation Mechanisms and section V.C Site-Specific Alternative Criteria, which provides 

information on the federal site-specific alternative criteria procedure put in place by EPA. EPA clarifies that, consistent with the 

Agency’s implementing regulations at 40 CFR 131.10(b), upstream WQS must provide for the attainment and maintenance of 

downstream state water quality standards. 

Comment IDs: 1328.001.003, 1946.001.008 

Response: In response to the comments, EPA reminds the commenters that the Agency is promulgating this rule pursuant to a 

determination that EPA made on January 14, 2009, under section 303(c)(4)(B) of the Clean Water Act. The determination stated 

that numeric nutrient water criteria for Florida's lakes and flowing waters are necessary for the State of Florida to meet the 

requirements of Clean Water Act. EPA is promulgating numeric nutrient criteria that translate Florida’s own existing nutrient 

narrative water quality standards into numeric values for Florida's lakes and flowing waters that are scientifically defensible and 

protective of applicable designated uses consistent with the requirements of the Clean Water Act section 303(c) and EPA's 

implementing regulations at 40 CFR part 131. This final rule establishes numeric nutrient criteria, which will be effective for 

purposes of the Clean Water Act, that are protective of Florida’s inland surface waters designated by FDEP as Class I and Class III 

waters. EPA reminds commenters that water quality criteria are derived to protect the applicable designated uses of waters. 

Under the Clean Water Act (CWA), Florida Department of Environmental Protection (FDEP) is the primary agency responsible for 

determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to 

FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. EPA has 

worked closely with the State, providing technical assistance, along with funding to the State to support sampling and analysis of 

existing data, to address nitrogen/phosphorus pollution problems in Florida. EPA will continue to collaborate with FDEP as the 

State implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for purposes of the 

Clean Water Act. 

For a discussion of the potential cost to Florida, please also refer to the preamble of this final rule, specifically section VI. 

Economic Analysis, and EPA's “Economic Analysis of Final Water Quality Standards for Nutrients for Lakes and Flowing Waters 

in Florida,” located in the docket (docket ID: EPA-HQ-OW-2009-0956) for this rulemaking, for cost estimates associated with 

implementation of EPA's numeric nutrient criteria and the assumptions upon which those estimates are based. 

11/19/2010 02:48 PM EST 2-1839
 
Chapter 2 - Comment Documents Background 

Comment IDs: 1333.001.005, 1333.001.011 

Response: In response to the comments, EPA agrees that enforcement and compliance are an important element of any State water 

quality program. EPA reminds commenters that under the Clean Water Act (CWA), Florida Department of Environmental 

Protection (FDEP) is the primary agency responsible for determining how to implement water quality programs in the State with 

oversight and support by EPA. As such, EPA defers to FDEP in administering applicable CWA programs consistent with the CWA 

and EPA’s implementing regulations. EPA has worked closely with the State, providing technical assistance, along with funding to 

the State to support sampling and analysis of existing data, to address nitrogen/phosphorus pollution problems in Florida. EPA will 

continue to collaborate with FDEP as the State implements the numeric nutrient criteria finalized as part of this rule, which will be 

the effective criteria for purposes of the Clean Water Act. 

Comment IDs: 1362-1.001.008, 1473-1.001.029 

Response: In response to the comments, please refer to the preamble, in particular section II.D Agency Determination Regarding 

Florida for the Agency’s statutory and regulatory authority to establish numeric nutrient criteria for Florida’s waters. EPA agrees 

that the criteria in this final rule must meet the requirements of EPA’s implementing regulations at 40 CFR part 131. EPA disagrees 

that compliance with 40 CFR part 131 translates into a requirement for the Agency to establish site-specific criteria for all 

waterbodies based on a cause and effect relationship between nutrients and biological response. Please refer to the preamble, in 

particular section III. Numeric Criteria for Streams, Lakes, and Springs in the State of Florida, regarding the derivation of EPA’s 

criteria consistent with the requirements of CWA section 303(c) and 40 CFR part 131. EPA notes that the Agency's obligation is to 

protect the designated uses of different waterbodies, not to maintain natural background concentrations. EPA reminds commenters 

that water quality criteria are set to protect the designated uses of waters. Criteria are not set at levels based on whether they are 

affordable for dischargers to meet. If there is a demonstration that natural background exceeds the criterion for a particular water, 

then the water could be a candidate for a site-specific alternative criterion (SSAC) using the federal process outlined in the final 

rule. EPA agrees that models included in criteria derivation should be scientifically defensible in order to meet the regulatory 

requirement for criteria to be based on sound scientific rationale. EPA disagrees that criteria should only apply if the specific 

nutrient is affecting plant growth. The degree to which a particular nutrient limits plant growth varies in time and space, and control 

of one nutrient (e.g., phosphorus) necessarily will lead to a different nutrient limiting plant growth (e.g., nitrogen). Hence, 

appropriately protective criteria are required for both nutrients. EPA reminds the commenter that the Agency is promulgating 

numeric nutrient criteria that translate Florida’s own existing nutrient narrative water quality standards into numeric values for 

Florida's lakes and flowing waters that are scientifically defensible and protective of applicable designated uses consistent with the 

requirements of the Clean Water Act section 303(c) and EPA's implementing regulations at 40 CFR part 131. EPA’s rule 

establishes numeric nutrient criteria, which will be effective for purposes of the Clean Water Act, that are protective of Florida’s 

inland surface waters designated by FDEP as Class I and Class III waters. EPA clarifies that consistent with 40 CFR 131.10(b), 

upstream WQS must provide for the attainment and maintenance of downstream state water quality standards. As discussed in 

section VII. Statutory and Executive Order Reviews, the promulgation of water quality standards establishes standards that the State 

implements through the National Pollutant Discharge Elimination System permit process. The State has discretion in developing 

discharge limits, as needed to meet the standards. In terms of understanding how the numeric nutrient criteria in this final rule will 

11/19/2010 02:48 PM EST 2-1840
 
Chapter 2 - Comment Documents Background 

affect restorations and implementation activities, plans, and programs already underway (e.g., TMDLs, BMAPs), as is the case 

whenever a new or revised water quality standard is put in place, applicable programs must be reassessed in order to ensure that 

applicable WQS are met. Adjustments should then be made consistent with meeting applicable WQS. Please refer to the preamble 

to the final rule, in particular section III.E Applicability of Criteria When Final, for further discussion regarding implementation of 

the numeric nutrient criteria finalized in this rule and potential effects on existing programs. 

Under the Clean Water Act (CWA), Florida Department of Environmental Protection (FDEP) is the primary agency responsible for 

determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to 

FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. EPA has 

worked closely with the State, providing technical assistance, along with funding to the State to support sampling and analysis of 

existing data, to address nitrogen/phosphorus pollution problems in Florida. EPA will continue to collaborate with FDEP as the 

State implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for purposes of the 

Clean Water Act. 

For a discussion of the potential cost to Florida, please also refer to the preamble of this final rule, specifically section VI. 

Economic Analysis, and EPA's “Economic Analysis of Final Water Quality Standards for Nutrients for Lakes and Flowing Waters 

in Florida,” located in the docket (docket ID: EPA-HQ-OW-2009-0956) for this rulemaking, for cost estimates associated with 

implementation of EPA's numeric nutrient criteria and the assumptions upon which those estimates are based. 

Comment ID: 1530.001.013 

Response: In response to the comment, EPA appreciates the comment regarding the request to use existing TMDL targets as SSAC 

without submitting the targets to EPA for approval under section 303(c) of the Clean Water Act (CWA). Commenters have 

requested that nutrient targets developed through the TMDL process (existing FDEP nutrient TMDLs that have been approved by 

EPA) automatically serve as site-specific alternative numeric nutrient criteria. EPA agrees that TMDL targets have the potential to 

serve has SSAC. However, in light of the substantial information analyzed in conjunction with this rulemaking, and to ensure that a 

proper process of notice and comment is undertaken, EPA believes that the federal SSAC procedure in the final rule is the 

appropriate mechanism and means of incorporating TMDL targets into the federal WQS for Florida waters. 

In terms of understanding how EPA’s numeric nutrient criteria will affect restorations plans and implementation programs already 

underway (including BMAPs), some existing TMDLs translate the same portion of Florida’s narrative criterion, Rule 62­

302.530(47)(b) F.A.C., as EPA has translated to derive its numeric criteria, e.g., “no imbalance in natural populations of aquatic 

flora and fauna”. The permitting authority must ensure that any permit issuance or re-issuance include WQBELs that are as 

stringent as necessary to meet the promulgated numeric criteria, pursuant to CWA section 301(b)(1)(C) and 40 CFR 122.44(d)(1). 

These existing TMDLs will likely include information that is relevant and helpful in evaluating necessary discharge limitations, 

such as consideration of other sources of the pollutant and hydrodynamics of the waterbody. EPA recommends that existing 

TMDLs that are based on translation of Rule 62-302.530(47(b)) F.A.C., ("no imbalance in natural population of aquatic flora and 

fauna") undergo a two-part evaluation. The first step is to assess whether the waterbody is still, in fact, water quality-limited 

(impaired) using the new numeric WQC. If the waterbody is still water quality-limited, then a second evaluation should be 

conducted to determine whether the existing TMDL based on the narrative is sufficient to meet the new numeric criterion, and in 

11/19/2010 02:48 PM EST 2-1841
 
Chapter 2 - Comment Documents Background 

turn, whether or not it may be appropriate to revise the TMDL. The State may also wish to pursue submitting the TMDL water 

quality target derived by translating the narrative for determination as a federal SSAC. Other existing TMDLs translate another part 

of Florida’s narrative nutrient criterion, Rule 62-302.530(47)(a) F.A.C. This provision provides that nitrogen/phosphorus pollution 

shall be limited so as to prevent violation of another Florida WQS. Where a TMDL water quality target was developed as a 

translation of this part of Florida's narrative nutrient criterion (for example, that amount of nitrogen/phosphorus that would not 

cause excursions of Florida's dissolved oxygen WQS), the appropriate WQBEL is the more stringent result of applying the TMDL 

WLA or the promulgated numeric criteria. Please refer to the preamble associated with this final rule, in particular section III.E 

Applicability of Criteria When Final and section V.C Site-specific Alternative Criteria. 

Comment IDs: 1530.001.034, 1770-1.001.022, 1771-1.001.029, 1772-1.001.023, 1773-1.001.026 

Response: In response to the comments, EPA disagrees with the commenters’ assertion that EPA’s authority to promulgate numeric 

nutrient criteria in Florida is unsupported by the Clean Water Act, is therefore, unjustified and that the Agency failed to identify 

how the State’s WQS fail to be consistent with the CWA. EPA refers commenters to the preamble to the final rule, specifically 

section II.D discussing EPA's January 14, 2009 determination that Florida needs new or revised water quality standards in the form 

of numeric nutrient criteria in order to meet the requirements of the CWA. 

Comment ID: 1530.001.045 

Response: In response to the comment, EPA disagrees that this rule conflicts with EPA’s responsibilities under a previously courtadopted consent decree in Florida Wildlife Federation v. Browner. The 1999 consent decree requires EPA to establish TMDLs for 

waters on the State of Florida's 1998 list of impaired waters where the State fails to do so by dates certain. The 2009 consent decree 

requires EPA to establish numeric water quality criteria for nutrients for Florida's inland waters (excluding South Florida). Water 

quality criteria and TMDLs are not the same, even when both are in numeric form. Criteria are one component of water quality 

standards, which are developed for all navigable waters in a state, and where criteria are met, water quality "will generally protect 

the designated use." CWA 303(c)(2)(A); 40 CFR 131.3. Water quality criteria are designed to protect navigable waters from, 

among other things, becoming impaired, whereas TMDLs only become relevant once specific waterbodies already are impaired. 

The commenters' argument would have EPA wait until waters are impaired before figuring out the numeric target necessary to meet 

the state narrative nutrient criterion. Congress passed the CWA not only to "restore" the integrity of the nation's waters, but also to 

"maintain" it. CWA section 1251. The commenter's argument ignores the latter purpose. 

The commenter's argument also wrongly implies that having new numeric criteria will immediately affect permitted discharges. 

First, there is no reasonable expectation that water quality standards will always remain the same. The CWA contemplates that 

states will review their standards at least once every three years and will modify them or adopt new standards "as appropriate." 

CWA section 303(c)(1). Second, even where EPA's final criteria are different from the previously established TMDL target, EPA's 

final rule allows for any entity to submit such target (updated as appropriate) to EPA Region 4 for consideration as a site-specific 

alternative criterion. See 40 CFR 131.43(e). Even if such SSAC was not pursued, and a TMDL did need to be revised, the existing 

discharge permits do not automatically become invalid. Such permit limits must be consistent with the "assumptions and 

requirements" of any EPA-approved or EPA-established available wasteload allocation for that discharge. 40 CFR 

11/19/2010 02:48 PM EST 2-1842
 
Chapter 2 - Comment Documents Background 

122.44(d)(1)(vii)(B). Because the wasteload allocation is a particular share of the loading capacity, it is based upon assumptions 

about the relative loads that may be fairly apportioned to the different point and nonpoint sources discharging to the waterbody. 

Those assumptions about the relative share of the load do not become obsolete just because the absolute loading capacity may 

change. Even if the criteria become more stringent for a particular waterbody, permits, which would need limits as stringent as 

necessary to meet the new criteria, could still be developed consistent with the "assumptions" and relative "requirements" of the 

wasteload allocation for existing TMDLs without requiring the TMDLs' immediate revision. 

Comment ID: 1715-3.001.006 

Response: In response to the comment, the underlying methodologies for the Agency’s January 2010 proposed numeric nutrient 

criteria for Florida’s rivers, streams, and lakes underwent scientific peer review. EPA followed the procedures outlined in its Peer 

Review Handbook (EPA/100/B-06/002) by having the specific methods EPA was considering to establish numeric nutrient criteria 

for Florida's lakes and flowing waters peer reviewed by five independent external experts in this field This independent, external 

peer review was completed in July 2009 and the results were made available through EPA’s docket for the proposed Florida 

nutrients rule (Peer Review Comments Final: External Peer Review of EPA’s Proposed Methods and Approaches for Developing 

Numeric Nutrient Criteria for Florida’s Inland Waters, EPA-HQ-OW-2009-0596-0010). EPA considered and responded to these 

peer review comments prior to proposal in January, 2010 (EPA Responses to External Peer Review of EPA, EPA-HQ-OW-2009­

0596-0155). With regard to the Science Advisory Board (SAB)'s recent review of an EPA draft guidance document for states to use 

when deriving numeric nutrient criteria using stressor-response relationships: The SAB reviewed EPA’s draft technical guidance on 

Empirical Approaches for Numeric Nutrient Criteria Development. Stressor-response relationships are one of three general 

approaches that EPA recommends for states to use when deriving numeric nutrient criteria. EPA has previously published peerreviewed general guidance documents that outline these three approaches. The SAB reviewed a supplemental guidance document 

that provided more detail on one of the three general approaches. EPA has used stressor-response approaches in this final rule and 

has benefited from the advice the SAB gave to EPA based on the SAB review of the Agency’s draft technical guidance on 

Empirical Approaches for Numeric Nutrient Criteria Development in September 2009. 

Comment ID: 1769-1.001.008 

Response: In response to the comment, EPA disagrees that the Agency’s rule exceeds EPA’s authority under the Clean Water Act. 

See the preamble to the final rule, section II.D, regarding EPA's determination pursuant to CWA section 303(c)(4)(B) and the need 

to promptly propose and then finalize new or revised water quality standards subsequent to the determination. See also responses to 

comments in this section. 

Comment ID: 1797-1.001.009 

Response: In response to the comment, EPA disagrees with commenter’s assertion that EPA’s rule is in conflict with Florida law. 

As discussed below, Florida has the authority to implement federally-promulgated criteria. EPA’s numeric nutrient criteria for 

Florida’s lakes and flowing waters will be effective for Clean Water Act (CWA) purposes and will apply in addition to any other 

11/19/2010 02:48 PM EST 2-1843
 
Chapter 2 - Comment Documents Background 

existing CWA-effective criteria for Class I and Class III waters already adopted by the State and submitted to EPA (and for those 

adopted after May 30, 2000 and approved by EPA’s numeric nutrient criteria). FDEP retains the authority to move forward with its 

own rulemaking process at any time to establish state numeric nutrient criteria and to submit such criteria to EPA for review and 

approval under section 303(c) of the Clean Water Act. If FDEP does not adopt state numeric nutrient criteria, the Department 

retains authority to implement federally-promulgated criteria through the State's narrative or "free froms" criteria. According to a 

2005 letter from FDEP's General Counsel, these minimum water quality criteria for surface waters, set out at Rule 62-302.500, 

F.A.C., provide a vehicle for the Department to address EPA-promulgated criteria in CWA programs such as the NPDES program. 

Where EPA has promulgated a numeric criterion for a specific parameter, and Florida has not done so, FDEP has the authority to 

limit the discharge of the parameter pursuant to section 62-302.500, F.A.C. EPA's final rule contains a provision that allows for 

site-specific alternative criteria. See 40 CFR 131.43(e). EPA notes that FDEP retains the authority to move forward with its own 

rulemaking process at any time to establish a State SSAC process applicable to nutrients and may submit to EPA for review under 

section 303(c) of the Clean Water Act. 

Comment IDs: 2395.001.004, 2395.001.006 

Response: In response to the comment, the intent and objective underlying the Agency’s March 17, 2010 letter to Mike Sole 

announcing the Agency’s intention to delay the finalization of downstream protection values (DPVs) for Florida’s estuaries in order 

to allow for external peer review of the data and models being used was to keep the Secretary, FDEP and the public fully informed 

as to the status and next steps in the rulemaking process. In the January 2010 proposal, EPA indicated that it planned to finalize the 

DPVs for estuaries as part of the 2011 estuaries and coastal rulemaking, but retained the option to go final in 2010. As EPA 

indicated in the January proposal, this will facilitate coordination with the development of proposed estuarine and coastal water 

quality criteria. Any DPVs that EPA proposes in January 2011 will also be subject to review and public comment as part of that 

rulemaking process. We will work together with Florida DEP to ensure we have the best science and analyses to support developing 

water quality standards to protect downstream estuarine and coastal waters. Second, EPA will seek additional third party review of 

the scientific basis for water quality standards to protect downstream estuarine and coastal waters. 

EPA notes that on June 7, 2010, EPA and Plaintiffs filed a joint notice with the Court extending the deadlines for promulgating 

numeric nutrient criteria for Florida's estuaries and coastal waters, flowing waters in south Florida (including canals), and the 

downstream protection values for flowing waters into estuaries and coastal waters. The new deadlines are November 14, 2011 for 

proposal and August 15, 2012 for publishing a final rule for these three categories. This will allow EPA time to have the 

methodologies for developing the criteria included in EPA’s November 2011 rulemaking peer-reviewed by EPA’s Science 

Advisory Board. EPA also notes that the Agency’s proposed restoration water quality standard will not be finalized in this 

rulemaking. Please refer to the preamble to the final rule, in particular section V.E Proposed Restoration Water Quality Standard, 

for clarification on EPA’s decision not to finalize EPA’s proposed restoration water quality standard. 

II.D.2 - HISTORY OF NUTRIENT REGULATION IN FLORIDA 

Comment ID 0508-1.001.008 

Author Name: Wilson M. 

11/19/2010 02:48 PM EST 2-1844
 
Chapter 2 - Comment Documents Background 

Organization: Florida Chamber of Commerce 

Florida has spent over $20 million during the past decade understanding nutrient issues, and has more advanced data 

than any state in the nation, but even our Department of Environmental Protection has taken a deliberative approach on 

numeric nutrient criteria, devoid of artificial deadlines, because of the complexity of the issue. 

In fact, Florida is in the process of implementing our Total Maximum Daily Load (TMDL) program, a significant 

advancement in water protection that is the product of years of deliberation between stakeholders and experts across 

Florida. EPA's proposed rule, however, will put all of that work in jeopardy. Rather than forge ahead with an arbitrary 

new regulation that is lacking in scientific certainty and burdened by unrealistically high costs, EPA should embrace a 

policy of transparency that emphasizes getting these regulations right rather than getting them done quickly. 

Comment ID 0567.001.005 

Author Name: McAvoy G. 

Organization: University of Florida 

BMP's are relatively new and must be given a chance to work. Claims that Florida is not doing enough to clean up it's 

waters and calls for more regulation ignore the well known fact that there is a tremendous lag time in the response of 

natural systems to changes in environment. It may take decades or longer to see a significant response to the practices 

being implemented by growers over the past few years. As growers adopt BMP's they should not be penalized for 

legacy nutrients which may take decades to move through the system. 

Comment ID 0567.001.008 

Author Name: McAvoy G. 

Organization: University of Florida 

Florida is a national leader in protecting its waters from nutrient pollution. Agricultural businesses and local 

governments have invested millions to restore impaired watersheds and protect healthy rivers and streams. The State 

has worked hard to develop scientifically defensible numeric nutrient criteria that will protect and restore Florida water 

bodies in equitable and cost effective ways. This process must be allowed to proceed and EPA should support these 

efforts instead of singling out Florida for scientifically-flawed federal standards. 

Comment ID 0589.001.009 

Author Name: Foy J. 

Organization: StormwaterJ Engineering Inc. 

9. Although the State listing of Impaired Water was just published in final form, it hasn't gone through due process as 

11/19/2010 02:48 PM EST 2-1845
 
Chapter 2 - Comment Documents Background 

yet. It seems premature to utilize these State determinations prior to due process as the base for EPA's NNC. 

Comment ID 0589.001.024 

Author Name: Foy J. 

Organization: StormwaterJ Engineering Inc. 

9. The sequence of utilizing a determination of "Impairment" as the basis for establishing NNC before the base goes 

through due process appears to be out of order. No further explanation is warranted. 

Comment ID 0590.001.002 

Author Name: Conner R. 

Organization: Lakeland Water Utilities 

While we recognize there are areas in Florida's environment where improvement is clearly indicated, the City is against 

imposition of blanket criteria. The problems and the sources of problems are far too diverse for this approach. In 

specific, we oppose the Federal imposition of the Numerical Standards for the following reasons: 

(1) Florida has long been a leader in environmental management. Claiming the Federal action is due to the State's 

agencies dragging their feet is disingenuous when so many other states have barely begun to define their problems. 

Imposition of regional criteria (i.e. Grizzell-Figg) was done years ago as specific needs were identified. The 

environmental activities by the State have documented problems in Florida that remain obscured by lack of data 

elsewhere in the nation. The EPA's using this knowledge base to hijack the ongoing efforts at creating sound and 

scientifically supported regulations by the State of Florida is unwarrantable. 

On a common-sense basis, it is not right to initially target those who have already done the most. The EPA allows (by 

permit conditions) the routine discharge of untreated sewage into lakes and rivers across this nation at any time a rainfall event occurs. While I can't say overflows don't happen in Florida, they are permit violations and dealt with if 

repetitive. In many other States, permits are routinely issued with compliance values far above the requirements of 

Florida's DEP. 

Comment ID 0598.001.001 

Author Name: Grant R. 

Organization: City of Titusville 

Thank you for your interest in EPA's proposed nutrient criteria and the potential impacts to the City of Titusville. 

11/19/2010 02:48 PM EST 2-1846
 
Chapter 2 - Comment Documents Background 

Historically, the State of Florida has had a narrative water quality standard for nutrients (nitrogen and phosphorus) that 

required "nutrient concentrations that allow a balanced ecosystem". In January 2009, the U.S. Environmental Protection 

Agency (EPA) determined that the State's narrative standards do not meet the requirements of the federal Clean Water 

Act, and on January 14, 2010, released proposed numeric nutrient criteria for Florida's lakes, flowing waters, and 

canals. EPA intends to adopt those standards by October 2010 and adopt additional numeric standards for coastal 

waters and estuaries by October 2011. 

While the new criteria may require additional efforts on behalf of the City, we have already achieved significant progress 

toward improving the quality of our local water resources. Beginning in 1992, the City established a Stormwater Utility to 

mitigate flooding, improve water quality and manage the City's stormwater infrastructure and resources. To that end, the 

utility has developed and implemented several basin master plans and continues to implement capital improvements to 

mitigate flooding and enhance water quality. 

City staff are also actively participating the Florida Department of Environmental Protection's (FDEP) Basin 

Management Action Plan (BMAP) for the Indian River Lagoon. Through this process, the City is working closely with 

FDEP and other municipalities to implement projects that will be effective in meeting Total Maximum Daily Loads 

(TMDL) limits for nutrients. 

Comment ID 0613.001.006 

Author Name: Musgrove M. 

Organization: Florida Wildlife Federation 

We have absolutely got to get a grip on water quality in Florida. I say that knowing that many good, dedicated and 

credible scientists in state, regional and local agencies have been diligently working on the problems. The point is we 

must get some results. 

Comment ID 0613.001.010 

Author Name: Musgrove M. 

Organization: Florida Wildlife Federation 

Without specific goals, no changes are likely to be made and conditions will worsen - as they have in the 31 years since 

Florida began naming its "outstanding waters" and pretending to guarantee "no degradation" of those waters. 

Comment ID 0623.001.001 

Author Name: Null M. 

Organization: City of Green Cove Springs 

11/19/2010 02:48 PM EST 2-1847
 
Chapter 2 - Comment Documents Background 

Whereas the City's engaged Florida's DEP TMDL lower St. Johns River. 

Whereas a scientific research and detailed computer modeling conducted by the DEP and the St. Johns Water District 

to determine TMDLs in the Lower St. Johns River. 

Whereas there was a general consensus of most of the stakeholders that the limits established in the TMDL were 

based on sound science and most stakeholders were very satisfied that analysis of nutrient limits are protective of the 

fresh and marine sections of the St. Johns. 

Whereas TN and TP were both constituents in the Lower St. Johns River during the TMDL process; and whereas the 

City already is vesting in biological decree to go above and beyond the secondary standard in an effort to save the 

citizens of Green Cove Springs millions of dollars. 

Comment ID 0623.001.005 

Author Name: Null M. 

Organization: City of Green Cove Springs 

And whereas Assistant Administrator Grumples had no basis in fact to state that the TMDL program wasn't working 

without allow the stakeholders to fully implement the program. 

Comment ID 0623.001.011 

Author Name: Null M. 

Organization: City of Green Cove Springs 

And whereas the USEPA recommended the numeric nutrient in region seven, the region that includes the City. And 

whereas the USEPA recommended the numeric nutrient criteria for total phosphorous was .04 milligrams per liter, and 

for total nitrogen .9 milligrams per liter. 

Comment ID 0631.001.001 

Author Name: DeGrove B. 

Organization: 

Good morning. My name is Bruce DeGrove. I'm an environmental consultant speaking today on my own behalf. Your 

11/19/2010 02:48 PM EST 2-1848
 
Chapter 2 - Comment Documents Background 

dramatic pictures notwithstanding Florida's water quality has improved. Previously degraded water bodies are now 

healthy, successfully. This is due in large part to a change in regulatory structure where we have an impaired water rule 

and the requirement for total maximum daily loads and basic plan. Numeric nutrient criteria are a value appropriate for 

water bodies. Criteria too lax won't provide sufficient protection; criteria too stringent will be wastefully expensive and 

from the environmental prospective even harmful. Nutrients are not toxics. Nitrogen and phosphorous are necessary for 

all life. Nutrient are only pollutants when in excess. You are likely to hear a number of speakers over these three days 

speaking about the work of the estuary program. The estuary program has been focused in nitrogen loading at bay. 

However, this rule is generating concerns that the proposed downstream protective values can result in decreased 

productivity causing reduced fisheries and negative impacts that the bird communities that depend on. 

Comment ID 0634.001.002 

Author Name: Markey M. 

Organization: Gulf Power Company 

Please note that Florida has an existing water quality standard. It is called a narrative standard, and is like the nutrient 

standard in most other states. Despite the substantial growth that has occurred to Florida over the last few decades, 

there has been success under narrative nutrient standards. More specifically, ten years ago there was a federal consent 

requiring Florida to create TMDLs to clean up water bodies; Florida's narrative nutrient standards. These TMDLs have 

been created and are being implemented. Significantly, EPA specifically approved these nutrient TMDL as protective of 

Florida's waters. Several of Gulf Power's existing and future environmental planning positions are heavily based on 

Florida's existing narrative standards, the 1999 consent decree, Florida DEP's development from TMDLs, EPA's 

approval of TMDLs, also. I know that others in the regulated community are also moving forward with new projects 

based on the same approach. For example, Gulf Power has been working closely with the Emerald Coast Utility 

Authority, EPA Region 4, and DEP. We have finished permitting highly reclaimed wastewater, and the subsequent 

build-out of a new wastewater treatment system serving the community in Escambia County. This project will result in a 

very substantial reduction of up to 20 million gallons a day of surface water reductions, and very substantial reductions 

and nutrient loading to Pensacola Bay. It will be a win for the environment and all citizens in this area. Significantly, this 

partnership has been a component in obtaining funding for this very important water quality improvement project. The 

environmental analysis for permitting for Gulf Power, Emerald Coast has all been promised for the existing regulatory 

program that is utilizing Florida's existing narrative nutrient standards for the development of water body specific 

TMDLs. Another ongoing project is the Escambia Bay TMDL process wherein stakeholders have been working closely 

with DEP and EPA. The proposed EPA rule places a cloud of uncertainty on work today on that effort. I am sure this is 

not the intention of EPA's numeric nutrient criteria to do progressive reuse on pollutant reduction projects like the Gulf 

Power, EPA partnership, or the promising stakeholders associated with the Escambia Bay TMDL. But unless the 

proposed rules of carefully reconsider, these types of project may no longer be feasible. The current approach in Florida 

the narrative standards coupled with the standards of TMDLs has facilitated progressive and innovative partnerships 

and projects to reduce mass loadings of nutrients into Florida's water. Keep in mind, this TMDL process in Florida 

produces water specific and numeric end points that get implemented. Please carefully consider whether the much less 

flexible approach reflected in EPA's proposed regulation and strict concentration limits might in many cases actually 

hinder the type of progress that is being made and that we all want. Thank you for considering these comments. 

11/19/2010 02:48 PM EST 2-1849
 
Chapter 2 - Comment Documents Background 

Comment ID 0643.001.002 

Author Name: Poppell R. 

Organization: Florida House of Representatives Natural Resource Appropriations Committee 

And that's what Florida has been all about. Florida started years ago developing the TMDLs in conjunction with Florida 

DEP -- University of Florida Department of Agriculture -- and an entire myriad of businesses and individuals collectively 

working together to develop this along with best management practices. This has proven to be really a success story. 

Comment ID 0648.001.004 

Author Name: Castile C. 

Organization: 

As you know, we've been working on finding a nutrient criteria standard for all of Florida for a very long time. We 

appreciate all of your efforts, y'all's personal efforts for working with the Department of Environmental Protection over 

the years to come to nutrient criteria standards that would work for everyone. 

Comment ID 0675.001.003 

Author Name: Childs D. 

Organization: FWEA Utilities Council, the FSAWA Utility Council, and the Florida Rural Waters Association 

At the December, 2009 meeting of the Governor in cabinet, Secretary Sole of the Florida Department of Environmental 

Protection was asked whether nutrient problems were getting worse in Florida, and his response was, "I'm hugely 

confident that statement is not true." The Secretary is right. Floridians should be proud of the work that our state and 

local regulated industries and everyday Floridians have done to address the qualities of Florida's water. Florida's water 

quality programs are as numerous as they are successful. Just look at the sea grass in Tampa Bay, or visit the city of 

Tallahassee's ongoing $220 wastewater system upgrades to its agricultural reuse facilities. 

Comment ID 0676.001.003 

Author Name: Alves J. 

Organization: Florida Coordinating Group 

And I have a lot to talk about TMDLs, but I feel like I need to say a few things in response to the introduction. I sort of in 

all candor couldn't believe what I was hearing when you're talking about nitrates. Florida has a nitrate standard that 

applies in the groundwater, and it has a permit program, and the standard is rigorously enforced, and the permit 

program is very rigorously enforced. And you said that there are some nitrate violations in Florida. I don't doubt that 

11/19/2010 02:48 PM EST 2-1850
 
Chapter 2 - Comment Documents Background 

that's true. I have never heard that there's anything like a serious nitrate compliance problem in Florida. That would be 

news to me, because we have a very strong groundwater program. 

Comment ID 0678.001.009 

Author Name: Adams C. 

Organization: 

When a farmer claims he's doing BMPs, there's no way to verify it. Under the TMDL statute by simply claiming their 

BMPs are in place there's a presumption he meeting water quality standards, and there's an exemption from monitoring 

for compliance, so the chronic fertilization that results from this system is fertilizer abuse. 

Comment ID 0682.001.004 

Author Name: Armingeon N. 

Organization: St. Johns Waterkeeper 

You have heard a lot about the TMDL process, and I was one of the stakeholders until it came time to really calculate 

what it would take to produce a clean and healthy St. Johns River. When that number came out, approximately 60 

percent reduction in nutrient inflow. Those who used river in depose of waste products say we're not going to accept 

this. And through some trickery and chicanery a number was cooked up that the polluters accepted, but low and behold, 

violated state water quality standards. And my organization and the Clean Water Network of Florida challenged that 

TMDL, and we were successful. And the EPA stepped in and said we need to reduce nitrogen by 60 percent, but that 

wasn't good enough. Then DEP bent over backwards to establish something you've hear over and over today, site 

receive alternative criteria. 

Comment ID 0688.001.002 

Author Name: Knox M. 

Organization: Knox Nursery 

It was because Lake Apopka had cleaned itself and the state had cleaned Lake Apopka so much I had to go to 18 parts 

per million to get acid back in the soil. So guess what? Florida is doing it. Florida is working it and Florida, you know, I 

know that you mean -- well, but as president of the I didn't -- (inaudible) Thank you very much. 

Comment ID 0691.001.003 

Author Name: Tripp K. 

11/19/2010 02:48 PM EST 2-1851
 
Chapter 2 - Comment Documents Background 

Organization: Save the Manatee Club 

Of course, we when talk about manatees in Florida, springs are another important issue for us, and others in this room 

have touched on it tonight. We're in this room because we've identified a problem. We know our numeric nutrient 

standard is not working. We found a way to control the nutrient criteria but what we need now is the determination to 

implement and enforce this solution. Our state's legacy so far has been on sustainability, but we can change that, and 

we need to change that. As I thought about what I would say tonight, I wondered where would we be back 12 years ago 

in 1998 if we had put a numeric standard in place; what state would our waters be in. 

Comment ID 0695.001.001 

Author Name: Grane C. 

Organization: Marion County Water Conservation District 

When they're dealing large municipalities and huge corporate entities then you may need the regulation.But the citizens 

are working very, very hard and it seems to me it's on their back that the regulation falls. 

Comment ID 0709.001.002 

Author Name: Costello C. 

Organization: Sierra Club 

I hold here in my hand a stack of what is called a Guide to Environmentally Friendly Landscaping. It's put out by FDEP 

and IFAS periodically. This represents 16 years, since 1994. In each of these documents is contained 

recommendations for strong residential fertilizer management, much stronger than FDEP and IFAS promote during 

these -- or I should say IFAS promotes during these fertilizer management campaigns in different communities. What is 

really interesting is that in 2009, this past legislative session, after three years of the industry trying to preempt local 

control of fertilizer management in the state, a model ordinance was passed in this state legislature. That model 

ordinance is an FDEP model ordinance and is weaker than the recommendations that FDEP makes in its 16 years of 

publications. An example of the influence that the agrichemical industry has on FDEP. We do not have faith in FDEP in 

all instances and certainly not in this instance. So I want to make it clear that not everyone agrees with the previous 

speaker. 

My last example is the influence on the legislature. There's a perfect example in this area. A state senator right now is 

working with the agrichemical industry in order to change the state statute passed last year creating the model 

ordinance for fertilizer management. They want to make it -- this particular senator wants to sponsor a bill to make it 

even more difficult, near impossible, for a community to manage their own residential fertilizer. That senator lives near a 

community that just passed a fertilizer ordinance that has a 25-foot buffer zone. The model has a three-foot buffer zone. 

Communities in that state senator's district want relief from this nutrient pollution. The agrichemical industry, its 

influence is onerous, is oppressive, and we thank you for being here and we are behind you 100 percent. Thank you 

very much. 

11/19/2010 02:48 PM EST 2-1852
 
Chapter 2 - Comment Documents Background 

Comment ID 0709.001.006 

Author Name: Costello C. 

Organization: Sierra Club 

Since 2005, three counties and enumerable communities, I believe right now there are 35 incorporated communities 

along the Gulf Coast that have very strong fertilizer ordinances that include a ban on nitrogen and phosphorous fertilizer 

application during the four rainy months. That was not without opposition, however there were only two opposition 

forces. Community support was overwhelming. The two opposition forces were a couple of people in IFAS and the 

agrichemical industry and their supporters. IFAS -- an example of the agrichemical influence on IFAS has been 

publicized in the St. Petersburg Times. We've been talking about it for a long time. 

Comment ID 0716.001.011 

Author Name: Coughenour F. 

Organization: Plant City 

The last two thoughts. Progress in the Tampa Bay area, I believe, is just a good example of DEP's programs and the 

national estuary programs' work around the area, but it's also, more importantly, I believe, indicative of the prevailing 

mentality in the municipal areas and the corporate mentality around the state. 

Comment ID 0719.001.003 

Author Name: Peterson E. 

Organization: Responsible Growth Management Coalition 

We've watched the degradation of our waterways being implemented through inappropriate manipulation of ineffective 

regulation. I understand that it was in 1978 when we first were challenged to accomplish this and, frankly, DEP just 

hasn't been able to cut it. And that's why EPA has been asked to come here to help and assist. They're in no way a 

punishment agency. They have come to help design and implement something that will help us accomplish something 

that we should have been accomplishing since '78. 

Comment ID 0727.001.003 

Author Name: Kelter M. 

Organization: Green Cove Springs 

This is a faulty assessment, given that it takes many years to design and construct capital improvements to make real 

11/19/2010 02:48 PM EST 2-1853
 
Chapter 2 - Comment Documents Background 

improvements to water quality that we so value in Florida. The assistant administrator needs to retract that letter of 

determination based on the fact that it was not based on current events. We're working on it. We're working on it hard. 

We're proud of what we're doing and I think we're going to have results. Give our program a chance to work. 

Comment ID 0731.001.004 

Author Name: Hartney M. 

Organization: Florida Fertilizer and Agrichemical Association 

Three things that we are doing that you haven't heard about today. And the reason that we're doing it is that FFAA 

members believe in nutrient stewardship. We believe in good water quality. After all, we live, work and play in this 

paradise, too. 

These are some of the things that are going on that I have not heard addressed today. There are over 1.9 million acres 

of agricultural production enrolled in state best management programs and we are working to up that number. The 

state's Urban Turf Rule 5E-1.003 took almost two years to develop. It was passed in December of 2007. It offered an 

opportunity for the next two years for the channels of trade to work their way through and it was fully implemented this 

summer. And what it did was reformulated every specialty turf product labeled for use in Florida by do-it-yourselfers. It 

changed what's in those 50-pounds-and-under bags, 49 pounds and under, so that all of those turf fertilizers are either 

zero phosphorous or low phosphorous. They contain less nitrogen. 

These new formulations take into account the research and to the agronomic needs of turf grass, environmental 

consequences and the realities of consumer behavior. They cover five major turf varieties. Three diverse regions are 

captured. And it's estimated that the changes in the products are going to result in a 65-to-70-percent reduction in 

phosphorous, a 20-to-25-percent reduction in nitrogen. Those are products available to the homeowner and you don't 

hear about that when urban fertilization practices are discussed. In addition, FFAA members are dedicated to sharing 

with growers in our communities four proven nutrient stewardship principles based on research developed by the 

International Plant Nutrition Institute. These are the four Rs, right source, right rate, right place, right time. They have 

been proven with science to be effective in minimizing adverse environmental impacts. 

Comment ID 0732.001.002 

Author Name: Fulford C. 

Organization: Congressman Adam Putnam 

For these reasons, Florida has done more than any other state to study nutrient pollution control, spending more than 

20 million to collect data. 

Comment ID 0736.001.003 

Author Name: Walkinshaw J. 

11/19/2010 02:48 PM EST 2-1854
 
Chapter 2 - Comment Documents Background 

Organization: Hillsborough River Watershed Alliance 

I have been involved with a number of processes having to do with TMDLs around the State of Florida in recent years. I 

think what has impressed me the most in those, especially on some of the bigger operations such as the in the Lower 

St. Johns River and in the Tampa Bay area, where you've been able to bring together a lot of different people 

representing a lot of different groups, who, again, don't always see eye to eye and have been able to sit down and 

through a cooperative process come up with solutions and plans to move forward on making water in Florida better. 

And I think we need to let that process continue. 

Comment ID 0736.001.006 

Author Name: Walkinshaw J. 

Organization: Hillsborough River Watershed Alliance 

Certainly I think -- and I commend the EPA for its action and in paying attention to what's going on here. I think there 

needs to be deadlines set. I think there needs to be monitoring of the processes. But I think when you see what has 

actually taken place here in Florida, and again getting beyond the science, just the cooperation, that people have come 

to the table and have been willing to compromise and have been willing to work together to solve these issues. 

Comment ID 0738.001.007 

Author Name: Stewart R. 

Organization: Florida Pulp and Paper Association 

The other thing I would like to mention is that EPA participated in the technical advisory committee for development of 

numeric nutrient criteria in Florida for a long time and I would like to say and agree with some of the other speakers that 

this rule should be deferred. We should back to Florida to adopt a rule. 

I will mention that there is a technical advisory committee meeting March 10th for numeric nutrients that I think EPA 

should participate in as well. Thank you. 

Comment ID 0740.001.007 

Author Name: Lee C. 

Organization: Audubon of Florida 

I'd like to say by way of background that my own involvement in -- professionally in the environmental arena goes back 

now going into my 39th year, and it is not lost on me, but the entire rubric of how water pollution control has evolved in 

the United States has always required federal intervention, going back to the interpretation of the 1899 Rivers and 

11/19/2010 02:48 PM EST 2-1855
 
Chapter 2 - Comment Documents Background 

Harbors Act, including the early days of the Federal Water Pollution Control Administration. If it were not for federal 

requirements, sometimes backed by the threat of withholding federal dollars from states that fail to comply, I am 

confident that not just in Florida, but in any state, we would still be seeing raw sewage being dumped into the waters of 

our state. The reality is that local officials are often far too close to the special interests that dominate the field in local 

political circles to get the job done without federal intervention. 

Comment ID 0744.001.007 

Author Name: Kovach C. 

Organization: CF Industries 

We've heard over the last few days from a number of scientists and stakeholders who have told the EPA that waters are 

improving across the state. I think there are a number of regulatory frameworks and programs that have demonstrated 

to be effective in that regard. And I think you have also heard some valid technical criticisms of the proposal today. I am 

not going to retread any ground because it's getting late and there's not a lot of time, but I would certainly echo the 

comments of the Tampa Bay Estuary Program, the Nitrogen Management Consortium. 

Comment ID 0750.001.005 

Author Name: Handley J. 

Organization: 

Certainly a lot of water is being consumed by our growing population. But we can coexist. We offer the water recharge 

and filtration areas. I implore you to consider sound science. I can't stand here as a biologist or a chemist. We are an 

animal scientist. But we certainly understand and implemented best management practices on a voluntary basis strictly 

to manage in an economic manner nutrient runoff. We understand that we need clean water and we are implementing 

BMPs. I applaud the work of the Department of Environmental Protection, the Florida Department of Agriculture, our 

water management districts. Certainly we push and pull and have strained relationship with some of those agencies, but 

we have worked in a collective manner. 

I challenge you to look at other states and see if anybody has collected the data, invested the money and has their 

industries moving in the same direction that we have. We have come a long, long way. Our state has grown 

tremendously in people population. 

Comment ID 0751.001.004 

Author Name: Grigsby W. 

Organization: 

And one thing we have learned is, they talked about the 12 years that nothing has been done, that's because the first 

11/19/2010 02:48 PM EST 2-1856
 
Chapter 2 - Comment Documents Background 

eight or nine of it was here, take this and love it. We didn't do it, you know. And now it's coming and we understand and 

we want to help. 

Comment ID 0757.001.004 

Author Name: Guest D. 

Organization: Earthjustice 

The TMBL process that you-all have heard so much about, we think it's fundamentally flawed in Florida. And the reason 

for it is that it's a stakeholder process, in that what happens is that the people who have an economic interest in it being 

higher, which is less protective, end up having a big say with what the number is, which is a little bit like having the 

Hell's Angels gang decide what the County sound ordinance is going to be. 

It's just not going to be right. Of course, it's not going to be right because it's the wrong people doing it. It's illustrated by 

the TMDL in St. Johns. The scientists said it should be one thing and then the stakeholders got together and decided 

that the load ought to be a whole lot higher. That's not science. The TMDL's are supposed to be science; not politics. 

And that's what we're here for. 

Comment ID 0759.001.004 

Author Name: Costello C. 

Organization: Sierra Club 

As I related this afternoon, there has been a successful movement along the Gulf Coast of this state to bring very strict 

residential fertilizer management ordinances to the communities that have experienced -- there's a myriad of them. 

Comment ID 0765.001.005 

Author Name: Murphy J. 

Organization: Gulf Restoration Network 

I just want to mention one other quick thing in the time that I have left. I always enjoys speaking at the same forum as 

Erica and we have very different opinions on the fertilizer ordinances, but I will say that a number of governments in 

Florida now, local governments, have passed strong local fertilizer ordinances. And they did that because they were 

tired of waiting for the State of Florida or other agencies to step in and do the right thing. 

So in response at the local level to save taxpayers money to protect their local economies, business leaders and 

political officials got together and made sure that these ordinances were passed. So communities ranging from Pinellas 

County in St. Pete all the way down the coast to Lee County have passed these ordinances, and we think that's a great 

reflection of the political will at the local level to make sure clean water is a priority. 

11/19/2010 02:48 PM EST 2-1857
 
Chapter 2 - Comment Documents Background 

Comment ID 0770.001.004 

Author Name: Wheeler B.
 

Organization: Tohopekaliga (Toho) Water Authority
 

One of the three considerations cited as a need for the accelerated numeric nutrient criteria schedule is the rapid 

growth and development in Florida. That should no longer be a consideration now that the State has experienced a net 

population loss over the last year. 

Comment ID 0770.001.008 

Author Name: Wheeler B.
 

Organization: Tohopekaliga (Toho) Water Authority
 

For the past several years, FDEP has been working diligently to develop numeric nutrient standards for Florida. In fact, 

in correspondence to DEP on several occasions, EPA commented on the FDEP process -- commented that the FDEP 

process was reasonable and the FDEP work is some of the most aggressive in the nation. 

Comment ID 0774.001.006 

Author Name: Carter K.
 

Organization: South Florida Water Management District
 

Finally, time. We remain hopeful EPA will forge its artificially established timelines to invest the time and thought 

necessary for proposing appropriate criteria for the State of Florida. 

Comment ID 0776.001.002 

Author Name: Click D. 

Organization: StormTech 

And I know that there's regulations in process right now through the Florida EPD, maybe partially driven by this. But I've 

been involved in that process and I have confidence in that process. 

I'm not so much saying that outsiders don't need to be in Florida. I'm not that protective. But I believe that in the State of 

Florida there's a lot of good citizens and a lot of good regulators that want to protect this state regardless of what 

somebody from another part of the country may say. 

11/19/2010 02:48 PM EST 2-1858
 
Chapter 2 - Comment Documents Background 

Comment ID 0776.001.004 

Author Name: Click D. 

Organization: StormTech 

And I think all of these things are being addressed by the Florida EPD in their new regulations. So I don't know all the -­

I've not read really very much at all about what's going on here with this proposal, and if the numbers are outrageous 

and not possible, then we all have to be realistic. 

But, again, I have the upmost confidence in the regulators in Florida to do the right thing. That's pretty much all I have. 

Thanks. 

Comment ID 0779.001.003 

Author Name: Collins C. 

Organization: 

I'm asking you to also not just blame agriculture, not just blame certain businesses, but to take this a little bit slower and 

start finding a way to make the regulatory systems in this state responsible, because that's what is really going on here. 

Quit blaming companies and everything until you know the real facts. I have no one to go to to look into this. DEP says, 

Go to St. Johns. St. Johns has an open permit violation on this. They say -- told some people that we had look into this 

for us, that it doesn't matter, that they're looking at the bigger picture. 

Comment ID 0786.001.008 

Author Name: Veaudry K. 

Organization: Florida Native Plant Society 

In 1998, the EPA required Florida to develop numeric nutrient standards. After over a decade of numeric standards 

development, there are still no standards in Florida. When EPA formally determined that nutrient criteria should be 

established for Florida, we wholeheartedly agree with this, and we support the EPA's efforts to bring numeric nutrient 

standards finally to Florida. The current narrative standard in Florida has been a failure at regulating pollutant sources. 

Comment ID 0796.001.009 

Author Name: Albergo N. 

Organization: HSA Engineers and Scientists 

In closing, and assuming you can successfully navigate through the myriad of technical criticisms of the agency's well11/19/2010 02:48 PM EST 2-1859
 
Chapter 2 - Comment Documents Background 

intentioned efforts, this is not so much a matter of if we need sign-based numeric nutrient standards, but how such 

standards will be implemented. Rules of this magnitude mandate due consideration of all the issues. And I guess my 

message is slow down. We all need more time to review the reliability, applicability, implementability and consequences 

of these rules. I thank you for your time and thoughtful consideration. 

Comment ID 0822.001.010 

Author Name: Hutchcraft M. 

Organization: King Ranch and Consolidated Citrus 

We think these standards don't take into consideration the benefit of best management practices, and we've heard a lot 

of discussion about that today. Our citrus groves are a part of the 500,000 acres of citrus groves that incorporate best 

management practices, including reducing the irrigation from the large gallon per acre walking guns down to very low 

gallonage emitters, also the reduction of fertilizer through variable rate technology. We think that these are important 

uses, and they're already in place. In fact, through best management practices and partnerships with large land owners, 

we think that there are instances where the water coming from Lake Okeechobee has 200 parts per billion total 

phosphorous, and we bring that onto our properties, and when it leaves our properties it has 70 parts per billion. 

Comment ID 0825.001.003 

Author Name: Wilson-Davis L. 

Organization: City of Boca Raton 

First and foremost, the presentation and data presented are misleading. Even though at the beginning it was pointed 

out the photos may be old, they are still misleading for those who just download them on the internet. The 15-year-old 

photo of Lake Apopka bears no relationship to the present day Florida. The photo predates Florida's TMDL program by 

four years and also predates substantial efforts to improve the water quality in that lake. Even the friends of Lake 

Apopka Web site states current data shows considerable improvements in decreased phosphorous levels, and recent 

reports indicate fishing has improved dramatically. 

Comment ID 0825.001.006 

Author Name: Wilson-Davis L. 

Organization: City of Boca Raton 

So I ask, do isolated events of violations of existing standards really justify new surface water quality criteria. 

Comment ID 0832.001.002 

11/19/2010 02:48 PM EST 2-1860
 
Chapter 2 - Comment Documents Background 

Author Name: Stewart R. 

Organization: Florida Pulp and Paper Association 

It's our interpretation of the proposed regulation that although the criteria or instream values for flowing waters and 

streams that, in fact, these will be necessary to implement as an end of pipe criteria, and the reason we say that is 

currently the Florida Administrative Procedure Act does not require or will not require -- it requires adoption of a 

standard prior to rule implementation, and I'm reading here, it also requires an agency to demonstrate the scientific 

validity of a rule if challenged, and DEP cannot likely do this. Florida DEP cannot implement a policy or standard without 

first adopting the rule, and if DEP attempts to adopt the rule and implement EPA's criteria, it will likely be challenged 

and permits not issued. So that's our interpretation. 

Comment ID 0839.001.007 

Author Name: Musgrove M. 

Organization: Florida Wildlife Federation 

If no specific goals are established, then conditions will rock on just as they have for 31 years since Florida labeled 

certain waters in the state as outstanding waters and promised no degradation, and unfortunately degradation has 

occurred and continues to occur. 

Comment ID 0853.001.002 

Author Name: Clark S. 

Organization: Cry of the Water 

We talked about BMP permits and how we really need these enforced, whether they're in the coastal areas or the inland 

areas. A lot of outfalls from - whether they're from air conditioning, you know, cooling towers to streams and lakes, 

some of them aren't even permitted. So I think we need more stringent permitting of them to get the enforcement of 

things that aren't, you know, captured under the process. 

Comment ID 0853.001.004 

Author Name: Clark S. 

Organization: Cry of the Water 

A new development right next to our condominium wants to -- it's just a piece of land and they want to build homes. But 

they don't want to do -- what do I have here. They don't want to get the permits and meet the BMPs for on-site store 

water retention. They haven't even built any houses yet, but they don't want to do it. And they say we don't need to 

follow those BMPs 'cause those are just suggestions. Nobody is making us do that. So standards for stormwater 

11/19/2010 02:48 PM EST 2-1861
 
Chapter 2 - Comment Documents Background 

treatment will give us, you know, a way to enforce these BMPs and not just make it a suggestion. It should be more 

mandatory. 

Comment ID 0878-1.001.004 

Author Name: Higginbotham A. 

Organization: Tampa Bay Estuary Program 

Water quality in Tampa Bay has shown remarkable recovery since the late 1970s, due to significant actions 

implemented by local governments, industries and citizens within the Tampa Bay watershed. Our wastewater treatment 

plants instituted advanced wastewater treatment (AWT) standards or full reuse starting in 1980, reducing nitrogen loads 

by 90% from these sources. More stringent statewide stormwater treatment for all new development was initiated in the 

mid-1980s, further reducing nutrients to Tampa Bay. In addition, over 240 nutrient reduction projects have been 

implemented by local, regional and state governments, industries, electric utilities and agricultural interests since 

initiation of the Consortium, reducing nutrient loads to the Bay by over 570 tons/yr since 1994, at a cost of over $430 

million. Due to these efforts, nutrient loads to the Bay are now less than half of what they were in the 1970s, despite 

an increase in population to about 2.5 million residents in the Tampa Bay region. The responses in the Bay are clearly 

and dramatically visible to our citizens and visitors alike. Water quality and clarity in the Bay has improved 

tremendously, seagrass acreage has increased to the highest levels observed since the 1950s and continues to 

increase at a rate of 500 acres per year, and economically-important fish and wildlife populations have been maintained 

since routine monitoring programs began in the 1990s. Regardless of temporary perturbations associated with El Niño 

episodes, hurricanes and other heavy rainfall events, Tampa Bay has seen consistent improvement in water quality and 

aquatic life through the combined efforts of this stakeholder-driven initiative and state legislation to improve wastewater 

and stormwater treatment. 

11/19/2010 02:48 PM EST 2-1862
 
Chapter 2 - Comment Documents Background 

Comment ID 0895.001.007 

Author Name: Commenter Anonymous 

Organization: 

Myth: Federal intervention is warranted because Florida has failed to act to protect its own water quality. 

Fact: The proposed federal restrictions on Florida are unfair precisely because they would punish a state that has been 

a national leader in protecting clean lakes and rivers through Florida's model Total Maximum Daily Loads program. For 

nearly 10 years, Florida's TMDL program has spent tens of millions of dollars to scientifically evaluate the quality of 

Florida's surface waters and promote the mechanisms necessary to clean up pollution. This process is lengthy and 

time-intensive because of the state's vast, varied and unique ecosystems - ranging from the Everglades and tropical 

mangrove estuaries in the South to cold springs, sinkholes and forest streams in the North. Florida deserves the 

opportunity to safeguard our own water supply through the existing TMDL program. This program uses painstaking 

scientific analysis to determine what water quality regulations are needed to protect specific local ecological areas, and 

the process is much preferable to Floridians than having our state's water policy written for us in a courtroom due to a 

lawsuit. 

Comment ID 0895.001.009 

Author Name: Commenter Anonymous 

Organization: 

Myth: Florida has not taken action to address excess nutrients in its water. 

Fact: Florida has already banned phosphate in detergents, become the national leader in reuse of reclaimed water and 

removed many discharges from surface waters . Florida was first in the nation to adopt comprehensive stormwaler 

regulations . Florida has the most aggressive and comprehensive agricultural nutrient controls in the nation with 2.1 

million acres implementing those controls. Florida has successfully restored Tampa Bay and Sarasota Bay and has 

greatly improved the quality in Lake Apopka, one of Florida's largest lakes. All of these efforts were made while 

Florida's population was doubling in the past couple of decades. 

Comment ID 0895.001.010 

Author Name: Commenter Anonymous 

Organization: 

It would be far more effective in terms of safeguarding our state's water resources if Florida were given the latitude to 

continue its existing TMDL program . This program uses painstaking scientific analysis to determine what water quality 

regulations are needed to protect specific local ecological areas. The process is much preferable to Floridians than 

11/19/2010 02:48 PM EST 2-1863
 
Chapter 2 - Comment Documents Background 

having our state's water policy written for us in a courtroom or at a desk in Washington due to a lawsuit. 

Comment ID 0895.001.019 

Author Name: Commenter Anonymous 

Organization: 

What is Florida doing now to protect water quality? 

It is a puzzling fact that these unfair proposed federal restrictions would punish Florida even though it's been a national 

leader in protecting clean lakes and rivers through its model Total Maximum Daily Loads program . For nearly 10 years, 

Florida's TMDL program has spent tens of millions of dollars to scientifically evaluate the quality of Florida's surface 

waters and promote the mechanisms necessary to clean up pollution. This process is lengthy and time-intensive 

because of the state's vast, varied and unique 

Comment ID 0895.001.021 

Author Name: Commenter Anonymous 

Organization: 

Myth: Florida has failed to adopt numeric standards for nutrients 

Fact: Florida has already established, by rule, numeric water quality standards for nutrients in major water bodies . 

These include the Everglades, which has the most stringent phosphorus criterion in the world. Numeric standards have 

also been set for 79 impaired waters through the Total maximum Daily Load Program (TMDL), and for many of the 47 

waters in the Surface Water Improvement and Management Program (SWIM). SWIM waters include all major lakes and 

estuaries on Florida. 

Comment ID 0897.001.004 

Author Name: Phillips J. 

Organization: Florida Public Employees for Environmental Responsibility 

Ineffectiveness of Florida's TMDL Program 

Industry and agriculture representatives have repeatedly raised the argument at the public hearings that Florida's TMDL 

Program has been successful at restoring Florida's impaired waters . They urge EPA to allow the program to simply 

exist as it is, arguing that the TMDL Program will resolve the nutrient impairment issue. This argument is fundamentally 

flawed on several counts . 

11/19/2010 02:48 PM EST 2-1864
 
Chapter 2 - Comment Documents Background 

Setting nutrient standards will assist in the cleanup of surface waters that are known to be impaired. Nutrients are a 

serious problem in Florida. Contrary to what the FDEP and other opponents of the rule now maintain, when the issue of 

dealing with impairment decisions was being litigated in 2001 the FDEP was clear in its stated concern. As an 

Administrative Law Judge stated in his Final Order on the TMDL Rule, 62-303, F.A.C. : 

164. As Mr. Frydenborg testified at the final hearing, nutrients are "probably the most widespread and pervasive cause 

of environmental disturbance in Florida" and they present "the biggest challenge [that needs to be] overcome in 

protecting aquatic systems." See also Rule 62-302.300(13), Florida Administrative Code ("The Department finds that 

excessive nutrients (total nitrogen and total phosphorus) constitute one of the most severe water quality problems 

facing the State."). 

165 . As noted above, nutrients are among the parameters for which water quality criteria have been established by the 

Department in Rule 62-302.530, Florida Administrative Code. The criterion for nutrients set forth in Subsection (48)(b) 

of the rule (which applies to all "water quality classifications") is a "narrative . . . criterion," as that term is used in 

Subsection (3)(c) of Section 403 .067, Florida Statutes. It is as follows: "In no case shall nutrient concentrations of a 

body of water be altered as to cause an imbalance of natural populations of aquatic flora or fauna." 

Paragraphs 164-165, Pages 158-159, Final Order [3] [4] 

Yet, while the nutrient problem is critical, the ability to identify such impaired water bodies in Florida is far from simple . 

In the same Final Order issued at the conclusion of the litigation over the adoption of Florida's TMDL Rule, the 

Administrative Law Judge made this observation, ironically in support of the use of narrative nutrient criteria. 

341 . Deciding whether "alternative, site-specific thresholds" should be used and, if so, what they should be, will involve 

the exercise of the Department's "best professional judgment," as will the determination as to how, in each case the 

Department is presented with a water placed on the "planning list for nutrient enrichment based on other information 

indicating an imbalance in flora or fauna," it should go about "verify[ing] the imbalance," as the Department will be 

required to do by Subsection (2) of proposed Rule 62-303 .450, Florida Administrative Code. In some instances, the 

Department will only need to thoroughly review the "other information" to "verify the imbalance." In other cases, where 

the "other information" is not sufficiently detailed, new "information" will need to be obtained . How the Department will 

proceed in a particular case will depend upon the specific circumstances of that case. 

Paragraph 341, Page 242, Final Order [5] In other words, the situation in Florida is now a jumbled mess, it is designed 

as such so that impairment decisions will take inordinate amounts of time and money with inordinate discretion in the 

hands of the FDEP . The FDEP, industry and agriculture endorse this process because it helps them. It does not, 

however, benefit the environment. 

Even visual observations of extreme algal growth do not, in Florida, count as evidence of nutrient impairment. In 2001 

when Florida DEP first adopted its TMDL Rule, 62-303, F.A.C ., a significant area of contention was the effectiveness of 

the narrative nutrient criteria in identifying whether a water body was impaired. FDEP's representatives testified at the 

hearing on that rule that red tides could not be considered as evidence of impairment. In other words, even evidence of 

toxic algae such as phisteria would not, by itself, be evidence of impairment. 62-303 .360(4), F.A.C. The AU rubberstamped their position.[6] 

11/19/2010 02:48 PM EST 2-1865
 
Chapter 2 - Comment Documents Background 

When assessing aquatic life-based water quality criteria the TMDL Rule doesn't allow data accumulated as a result of 

permit violations and/or spills or mixing zones to be considered as evidence of impairment. 62-303 .420 (5) F.A.C. 

Thus, if a facility is continually violating its permit and this is the source of data showing impairment the water segment 

will not be listed as impaired. Mixing zones are specifically excluded such that if the FDEP has permitted the mixing 

zone and it is causing impairment because of the FDEP's decision to allow the mixing zone the affected water body will 

not be labeled as impaired. 62-303.100 (2), F.A.C . Three years after adoption of the TMDL Rule, the FDEP issued a 

report on the status of Florida's water bodies. The report stated that 373 water bodies were impaired because of 

nutrients, by far the most of any other pollutant. [7] The report, entitled, Florida's Total Maximum Daily Load Program: 

the First S Years, A Report to the Legislature and Governor, acknowledged that Florida's narrative nutrient criteria was 

causing problems in determining impairment : 

The state's criteria for nutrients (nitrogen and phosphorous, for example) are narrative rather than numeric, which on 

occasion has led to differing interpretations by third parties on DEP's determination as to whether a water body is 

impaired by excessive nutrients. 

[3] Lane et. al. v. FDEP et al., Florida, Dept. of Administrative Hearings, Case No. : 01-1332RP, (May 13, 2002) 

[4] Russ Frydenborg is an FDEP employee working in the Bureau of Standards and Special Projects. 

[5] Lane et. al. v. FDEP et al., Florida, Dept. of Administrative Hearings, Case No. : 01-1332RP, (May 13, 2002) 

[6] Paragraph 242, Page 186, Final Order, Lane et. al. v. FDEP et al. 

[7] See, Report, page 6, http://www.dep.state .fl .us/water/tmdI/docs/2005TMDL Report final 2-25-05 .pdf 

Comment ID 0897.001.006 

Author Name: Phillips J. 

Organization: Florida Public Employees for Environmental Responsibility 

FDEP currently implements the narrative nutrient criterion on a site-specific basis. For example, FDEP will interpret the 

narrative criterion for permitting purposes or in response to the occurrence harmful and destructive algal blooms. 

Development of numeric nutrient criteria proactively addresses the discharge of excess nutrients and provides an early 

warning system for waters threatened by nutrients before it's too late. A plan for the derivation of numeric criteria was 

developed by DEP several years back and has been revised over time as new information has become available. A 

Technical Advisory Committee has been meeting on this issue since January 2003 and made considerable progress in 

addressing this technical complex issue and the natural variation in nutrients that exist throughout Florida. 

Comment ID 0897.001.008 

Author Name: Phillips J. 

Organization: Florida Public Employees for Environmental Responsibility 

The groups who argue for allowing TMDLs to supposedly remedy Florida's impaired waters do so for one overriding 

11/19/2010 02:48 PM EST 2-1866
 
Chapter 2 - Comment Documents Background 

reason-delay. They know that the very process of setting TMDLs is very time consuming. It is a decision-making 

process that allows industry to be heavily involved. Then, if industry cannot avoid the setting of a TMDL the same can 

be litigated for years, thus avoiding cleanup of the water bodies that they polluted . Time is money. 

The extended litigation delays also have an advantageous affect for industry because other sections of Florida's TMDL 

Rule restrict the use of data once it reaches a certain age, e.g. 62- 303 .450(1), F.A.C ., which limits data to five years 

of age. Thus, the longer such issues can be litigated the less likely it is for the water body to be listed as impaired. By 

comparison, once nutrient standards are set, the identification of water quality violations becomes clearer and less 

subject to litigation. 

The Need For Nutrient Standards Was Entirely Predictable 

Florida's water bodies were not degraded overnight. The degradation did not happen in secret . The fact is that it 

occurred gradually over time while Florida's state government, through the FDEP, watched and supposedly studied the 

problem. Careful study is an imperative . But the studies surrounding the issue of nutrients in Florida's have taken well 

over a decade. Florida's Legislature originally adopted § 403.067, Fla. Stat., in 1999, a statute that was substantially 

written by industry lawyers and approved by the FDEP. The same approach was taken with respect to the TMDL Rule 

cited herein . When the rule was challenged by environmental groups because of the obvious flaws contained therein, 

the FDEP defended the rule with the strong assistance once again of industry lawyers. [8] 

The marriage of FDEP and industry/agriculture did not end with the adoption of the TMDL Rule. While FDEP Secretary 

Sole initially took a position that numeric nutrient standards were needed,[9] he changed his position when EPA 

decided that it needed to move forward with adopting those standards.[10] Likewise, two former FDEP Secretaries, 

Virginia Wetherell [11] and Colleen Castille, signed on to an organization called Don't Tax Florida when EPA announced 

its intent to adopt nutrient standards for Florida. 

[8] One of the lawyers who represented FDEP in defending the TMDL Rule in 2001 was Winston K. Borkowski. Mr. 

Borkowski now works for Hopping Green & Sams, http://www.hy ,slaw.comilawyers/winston-k-borkowski .html , one of 

the main firms who represents industry and who is opposing the EPA promulgated rule. 

[9] January 16, 2009, FDEP Press Release, http://www.dep .state .fl .us/secretary/news/2009/01/01 16_Ol .htm 

[10] See, report by the Kansas Rural Water Association, October 16, 2009, wherein both Secretary Sole and Florida 

Agriculture Secretary Charles Bronson derided EPA's efforts. http://www.krwa.net/newsDB/MainAnnounce2 .asp?key_ 

532 

[11] Wetherell was the Secretary when the enabling statute, § 403.067, Fla. Stat., was drafted. Her successor, David 

Struhs, is now working for international Paper, a company that he was supposed to have been regulating while 

Secretary at FDEP. His successor was Colleen Castille. 

Comment ID 0898-1.001.004 

Author Name: Jones D. 

Organization: Putnam County Chamber of Commerce 

WHEREAS, Florida has been recognized as a national leader in water quality protection and restoration thanks to the 

11/19/2010 02:48 PM EST 2-1867
 
Chapter 2 - Comment Documents Background 

state's existing Total Maximum Daily Loads program, a program designed to protect clean lakes and rivers; and 

WHEREAS, for nearly 10 years, Florida's TMDL program has spent tens of millions of dollars to scientifically evaluate 

the quality of Florida's surface waters and promote the mechanisms necessary to clean up pollution; and 

Comment ID 0901.001.003 

Author Name: Brant T. 

Organization: American Health Trust, Inc. and Santa Fe Lake Dwellers Association 

The EPA stepped in because the Florida Department of Environmental Protection (DEP) was not adequately 

addressing this significant pollution problem. The narrative standards used in Florida provide that "in no case shall 

nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora 

or fauna.'' Based on the massive algal blooms we continue to experience on the St. Johns River, this requirement is 

clearly not being met. Florida has failed to adopt standards for over 10 years and no further delay should be accepted. 

Continued pollution of our waterways is not an acceptable alternative. 

Comment ID 0901.001.005 

Author Name: Brant T. 

Organization: American Health Trust, Inc. and Santa Fe Lake Dwellers Association 

The standards would be phased in over several years, allowing time for industries and communities to sufficiently 

comply. 

Comment ID 0906-1.001.004 

Author Name: Lackemacher P. 

Organization: Bay County Utility Services 

Timing: EPA's proposed NNC rule, in present form, does not allow for adequate time to perform proper value 

engineering, evaluating various alternatives, final design and construction for implementation. In short a minimum of a 

four (4) or five (5) year window is needed to properly accomplish these objectives. 

Comment ID 0914.001.003 

Author Name: Lackemacher P. 

11/19/2010 02:48 PM EST 2-1868
 
Chapter 2 - Comment Documents Background 

Organization: Bay County Utility Services 

Timing: EPA's proposed NNC rule, in present form, does not allow for adequate time to perform proper value 

engineering, evaluating various alternatives, final design and construction for implementation. In short a minimum of a 

four (4) or five (5) year window is needed to properly accomplish these objectives. 

Comment ID 0920.001.001 

Author Name: Boler B. 

Organization: 

My name is Bruce Boler. I am currently an ecologist with the National Park Service working on restoration of the 

Everglades. In the early 1990's I worked in the Water Quality Assessment Section of the Florida Department of 

Environmental Protection (FDEP) conducting assessments and assigning numeric loading rates to point source 

discharges. In 1997 I was promoted to Watershed Manager for FDEP in Southwest Florida. After three years in this 

position, I accepted a position with EPA in 2001 and resigned from EPA in 2003 due to EPA's support for a wetland 

assessment method that considers natural wetlands sources of pollution to receiving waters. 

While working as the Watershed Manager for the Florida Department of Environmental Protection (in Southwest 

Florida) in the 1990's, I identified declining water quality conditions in many of the basins in Lee and Collier counties 

due to nutrient (primarily nitrogen) enrichment. I received a substantial grant from EPA to determine if there was a 

correlation between declining water quality and the rapid development/loss of wetlands in this region. I set up a 

comprehensive water quality monitoring program at 26 sites in Lee and Collier counties and found a strong correlation 

between nutrient discharges from urban developments, declines in water quality, and loss of wetlands. 

In 1998, the Southwest Florida Environmental Impact Statement (SWFEIS) was initiated by the U.S. Army Corps of 

Engineers (Corps) "out of the concern whether the incremental (permit by permit) reviews were adequately addressing 

cumulative and secondary effects of the wetland fill in the rapidly growing Southwest Florida area" (SWFEIS, 2003). I 

was involved in the development of this report. The SWFEIS identified substantial wetland losses associated with rapid 

urban development and recommended more rigorous permitting criteria to protect wetlands. An important component of 

this recommendation in the SWFEIS was the recognition that there was a direct correlation between the rapid increase 

in Section 404 permits, subsequent urban development, and declining water quality conditions in streams, rivers, and 

estuaries in both counties. 

Under pressure from the environmental community, EPA decided to hire an environmental scientist to be stationed in 

Southwest Florida specifically to address problems identified through the SWFEIS. I chose to accept this position and 

began wading into the hundreds of section 404 wetland permit requests in early 2001. The controversial determination I 

made to slow down the rapid loss of wetlands and concurrent deterioration of receiving water bodies in this region was 

that permit applications with proposals to substantially fill wetlands without providing adequate nutrient removal (best 

management practices) should be denied. Critical to my recommendation for permit denial was also the determination 

that the substantial increase in nutrient runoff associated with these permit proposals were to water bodies identified as 

impaired on the State's 303(d) list. My objections were based on the determination that increases in nutrient loading to 

receiving waters identified as impaired on the 303(d) list would "cause or contribute to significant degradation of waters 

11/19/2010 02:48 PM EST 2-1869
 
Chapter 2 - Comment Documents Background 

of the U.S.", prohibited under Section 230.10(c) of the Clean Water Act. In addition, I provided published data that 

indicated that conventional storm water treatment practices approved by the State were incapable of meeting the 

State's Water Policy Goal of 80% reduction for TSS-removal efficiencies for nutrients (TN and P) were 30 and 50%, 

respectively. 

Even though I left EPA in the fall of 2003, I testified in 2007 as a water quality expert at two hearings where 

environmental groups challenged the issuance by the South Florida Water Management District (SFWMD) of permits 

for two developments that used what I considered to be a "wetlands pollute" method. I understand the Florida 

Department of Environmental Protection has signaled their intention to formally adopt this method. If adopted, this 

method will allow developers to get credit for reducing nutrient loading by filling in wetlands. In one proposed permit in 

2003, using this method (referred to as the Harvey Method), the developer could reduce the total nutrient discharge 

from their site by converting hundreds of acres of wetlands into two golf courses. Although this method was highly 

criticized in peer reviews, it is strongly supported by developers and state resource agencies. Establishing numeric 

nutrient criteria for receiving water bodies may be one way to prevent this Harvey method from accelerating the already 

rapid decline of both wetlands and water quality in Florida's receiving water bodies. 

The two hearings where I testified concerned the loss of nearly 1000 acres of wetlands. The total acres of wetlands 

impacts were appalling enough; however, the location of these impacts adjacent to Corkscrew Swamp Sanctuary, an 

Audubon Preserve with the largest colony of wood storks in the U.S., was even more alarming. Moreover, the 

Cocohatchee Slough had been identified in the Draft Southwest Florida Feasibility Study (CERP) and in the SWFEIS 

(2003) as a sensitive environmental area that should require more rigorous permit reviews and criteria for allowing 

urban or agricultural development. 

Comment ID 0930.001.003 

Author Name: Hall S. 

Organization: 

Florida currently does not have numeric water quality standards for nutrient pollution (Phosphorus and Nitrogen) as it 

does for other pollutants. Instead, our current nutrient standard is to not create "an imbalance of flora or fauna". 

Because this is an almost impossible standard to enforce, it has allowed nutrient pollution to increase and accumulate 

in our waters. As a result, more harmful algal blooms, fish kills and other manifestations of excessive nutrient pollution 

are becoming more frequent and severe. 

Comment ID 0945.001.001 

Author Name: Fields B. 

Organization: City of Winter Springs 

The City of Winter Springs has reviewed the Proposed Rule for Water Quality Standards for the State of Florida's Lakes 

and Flowing Waters as referenced above and we have the following comments : 

11/19/2010 02:48 PM EST 2-1870
 
 

Chapter 2 - Comment Documents Background 

1. The City of Winter Springs is located entirely within the Lake Jesup Basin. Lake Jesup has been verified by the 

Florida Department of Environmental Protection (FDEP) as impaired for nutrients and unionized ammonia. FDEP 

formally adopted a Total Maximum Daily Load (TMDL) for Lake Jesup in 2006 which identified the nutrient loading 

sources and required reductions to meet water quality standards for total phosphorous (TP) and total nitrogen (TN) 

within the Lake Jesup Basin . Over the past five years, the Lake Jesup Basin Stakeholders, including the City of Winter 

Springs, have prepared a comprehensive Basin Management Action Plan, or BMAP, to reduce the amount of nutrients 

that caused the verified impairment of Lake Jesup. The BMAP contains strategies to implement the Lake Jesup nutrient 

TMDL through reduction and prevention of pollutant discharges through various means, and the project types contained 

in the BMAP reflects the array of sources and stakeholder relationships that exist in this complex watershed . The Lake 

Jesup BMAP was endorsed in January 2010 by authorized representatives of the agencies and organizations 

comprising the Lake Jesup Basin Working Group, including the City of Winter Springs, and the BMAP is expected to be 

formally adopted by FDEP later this year. With this in mind, the City has the following comments regarding the 

Proposed Numeric Nutrient Criteria Rule: 

Comment ID 0965.001.004 

Author Name: Medintz M. 

Organization: 

From our prior practice experience, representing both regulators and the regulated community, we know that 

enforcement is significantly more effective when numeric standards are involved. Objections that numeric standards are 

too costly are really code for the recognition that numeric standards will actually be enforceable, perhaps for the first 

time in Florida. Moreover, numeric standards are the only way that citizens can measure whether the state enforcement 

authorities are doing their job, and hopefully hold them to account if they are not. 

Comment ID 0965.001.007 

Author Name: Medintz M. 

Organization: 

Unfortunately, if USEPA does not act there is solid evidence that the state will not only fail to act, but will interfere with 

real enforcement. In the last few days the Florida legislature has actually adopted a bill transferring authority for the 

adoption of fertilizer control measures to the Department of Agriculture and barring the counties from adopting more 

stringent ordinances. Thus, even those counties which try to limit fertilizer use will be barred from doing so. So much for 

the good faith of the state in dealing with the problem of nutrient pollution. Equally disappointing, we have recently 

been working on the comprehensive plan rewrite proposed by Charlotte County. The Charlotte Harbor National Estuary 

Program (CHNEP) proposed language for development setbacks along waterways to help prevent pollution from 

contaminated runoff. 

11/19/2010 02:48 PM EST 2-1871
 
Chapter 2 - Comment Documents Background 

Comment ID 0969.001.001 

Author Name: Schofield J. 

Organization: 

The issue of a quantitative measurement that will protect the lakes and flowing waters of the state of Florida is 

something long over due. While the state may say they want to police themselves the past actions over 125 years have 

shown that they have not taken this issue seriously. It may have been at one time information was nit available, the 

State of Florida lacked and did not know the extent of the problem. However over time it has been shown what 

problems excess nutrients in our waters have caused to Lake Okechobee and the Everglades. Dredging and 

reclamation of wet lands to lands for building and agriculture not only stopped or negatively affected the flow of water 

but the land use for agriculture in fact increased the increased of nitrate levels in our waters. 

Comment ID 1004.001.004 

Author Name: Moser W. 

Organization: Forest Utilities, Inc. 

5) Epa does not allow enough time to comply with the rule. 

Comment ID 1005.001.005 

Author Name: Heatherington K. 

Organization: Southwest Florida Regional Planning Council 

6. The Charlotte Harbor National Estuary Program (CHNEP) and Sarasota Bay National Estuary Program (SBNEP) are 

developing site specific Numeric Nutrient Criteria for the estuaries within the CHNEP and SBNEP Study Areas and that 

the information is scheduled to be available June 2010. The S WFRPC supports the development of site specific 

numeric nutrient criteria for the estuaries within the CHNEP and SBNEP Study Areas and support the utilization of 

these numeric nutrient criteria for southwest Florida. 

Comment ID 1013.001.002 

Author Name: Hibbard F. 

Organization: Clearwater City Council 

These projects have reduced nutrient loads to the Bay by over 750 tons / year since 1994, at a cost of over $ 430 

million. Due to these efforts nutrient loads to the Bay are now less than half of what they were in the 1970's, despite an 

11/19/2010 02:48 PM EST 2-1872
 
Chapter 2 - Comment Documents Background 

increase in population to about 2.5 million residents in the Tampa Bay region. The responses in the Bay are clearly and 

dramatically visible to our citizens and visitors alike. Water quality and clarity in the Bay has improved tremendously, 

seagrass acreage has increased to the highest levels observed since the 1950's and continues to increase at a rate of 

500 acres per year, and economically important fish and wildlife populations have been maintained since routine 

monitoring programs began in the late 1990's. 

Comment ID 1020.001.004 

Author Name: Williams C. 

Organization: 

Florida is a national leader in protecting its waters from the nutrient pollution. This is why 30 percent of the nation's 

water quality data is from Florida. 

Comment ID 1024.001.005 

Author Name: Fuller M. 

Organization: 

We think that the numerical standards will give measurable targets. When you've got measurable targets -- the 

regulated industry, the people -- they're composed of very bright people, a lot of -- a lot of good people in the agriculture 

community, but we need to set those goals so that we can meet them, and I think they can -- I think they can harness 

their experience and knowledge on the land to build upon, not -- this is not in conflict with the work that's been done 

previously. It seems to us that this would -- this would complement this by setting specific goals and objectives. We 

think that fertilizer -- the -- several speakers have talked about fertilizer ordinances, smart fertilizer application. We think 

that could be done. Get minimum -- minimum effective dose, minimum effective dose at the roots of the plants. It 

doesn't do anybody any good when it gets in the waterways. 

Comment ID 1030.001.002 

Author Name: Ayech B. 

Organization: 

The State of Florida has not taken any steps to adopt a rule, which we've been working on for the last three or four or 

five or six or seven or 20 years. 

Comment ID 1050.001.002 

Author Name: Cooper J. 

11/19/2010 02:48 PM EST 2-1873
 
Chapter 2 - Comment Documents Background 

Organization: 

It's quite clear to me that if commonsense limits on nutrient and phosphate pollution, like you're now proposing, were 

set into place years ago, we wouldn't be experiencing the many harmful pollution problems we have today. We're 12 

years past the 1998 deadline, as Commissioner Judah pointed out. The state has failed to solve it. We need your help 

because only you can get the job done. Our state can't do it and they won't do it because the lobbyists have them and 

they will not listen to us. 

Florida support and the nutrient pollution, my county, Charlotte County, nearby Sarasota and Lee Counties have all 

enacted great fertilizer ordinances, only to find out that Tallahassee is now trying to bend the rules and say that we don't 

listen to the people's will for a small percentage of profits from big businesses like the phosphate industry and the ag 

industry. That's unacceptable. 

Comment ID 1075.001.002 

Author Name: Judah R. 

Organization: Lee County Board of County Commissioners 

I'm here to support your efforts. 

And I have to tell you that, as you well know, back in 1998 the EPA sent letters to the Florida Department of 

Environmental Protection, mandating that the state implement a numeric nutrient rule. Quite frankly, the state legislature 

has ignored the EPA. They've abdicated their responsibility to the state of Florida, and what we have is evidence of that 

neglect. We have a deteriorating and destroyed ecosystem in Lake Apopka, in Lake Trafford, in Lake Okeechobee, 

Florida Bay, the Everglades. Our own Caloosahatchee River is an impaired water body. It was deemed by the American 

Rivers Association a few short years ago as one of the most impaired water bodies in the entire nation. 

Comment ID 1089.001.005 

Author Name: Giles G. 

Organization: 

I mean, you have 27 of them that you're regulating. Most of them are in the United States -- I mean, in Florida. Ours, 

Charlotte Harbor National Estuary Program, is on a maintenance program, and that's the way we want to stay. So if we 

can keep the Peace River and the Myakka River from any further pollution, you will be doing a great honor to this whole 

peninsula. And as long as we have water, we'll have trees. With trees, it's canopy. Canopy prevents peninsulas from 

becoming deserts. 

Comment ID 1095.001.003 

11/19/2010 02:48 PM EST 2-1874
 
Chapter 2 - Comment Documents Background 

Author Name: Riles J. 

Organization: 

Through work -- through working with the NRCS, SWFMD, DEP, we as farmers and ranchers have proven that we can 

keep our environment healthy with no further regulations. Prove to note would be the work done on the Shell Creek and 

Prairie Creek watersheds management plans, in which our company was an original stakeholder. We also work closely 

with the trade associations, the water management district, and Fnext, along with NRCS and Farm Service Agency, 

which we used best management practices. 

All these programs have been effective in keeping the balance between commercial agriculture and the natural 

environment that is so crucial to the preservation of Florida. 

Comment ID 1101.001.004 

Author Name: Williamson M. 

Organization: 

As a producer in the watershed of the Tampa Bay Estuary, I think that the work has been -- that has been done by all 

parties over the last ten years shows the commitment that these parties have to clean water. I think there is no doubt 

that the bay has improved and is still improving. 

Comment ID 1103.001.005 

Author Name: Alexander J. 

Organization: Alico, Inc. 

The third point relates to the agreements reached in 2004 and '7 to develop and implement the numeric nutrient criteria 

for Florida. This was between the DEP and the EPA. Sufficient time has not been spent to evaluate the information and 

procedures already developed. The development didn't come out of EPA until 2001. Only nine years have expired -­

transpired since then, during which written agreements were agreed upon and entered into between the state and the 

Feds. What I say, Where is the EPA's word, its bond, that which we refer to as the full faith and credit of the United 

States? How lasting will be the next agreement reached with the EPA? If we can change this easily, how long with the 

next last? 

Comment ID 1119.001.004 

Author Name: Weeks T. 

Organization: 

11/19/2010 02:48 PM EST 2-1875
 
Chapter 2 - Comment Documents Background 

There have been about 42 local communities in Florida who have passed fertilizer management ordinances, and they 

have had huge public support in the face of very well organized and well financed opposition from the agrochemical 

industry, some of whom I recognize here today. 

Every time, the public outpouring of support was just enormous. People want control of their water bodies, they want to 

clean up the waters in Florida, and they are trying to find some low-cost ways to do that and take control into their own 

hands. 

Every year up in Tallahassee we are having to fight back agrochemical industry who is trying to preempt local control of 

the fertilizer industry. Every year we have defeated them. We will do so again this year. 

Comment ID 1141.001.006 

Author Name: Coe J. 

Organization: 

The F.P.D.S. permit program is supposed to self-check itself. Florida is not checking. Florida doesn't care. I have 

document after document of e-mail right here from Hillsborough County E.P.C. and individuals in Tallahassee that say, 

"Oh, well, we can't enforce it." 

How can you not enforce something that you are regulated to enforce? Therefore, I would ask that you do put these 

stringent guidelines in place; at the same time, review items that's already happened. 

Comment ID 1151.001.001 

Author Name: McElwain A. 

Organization: 

Thank you very much, Andrew McElwain. You have heard from me before, so I will not repeat anything I have said, but 

I did want to note in terms of references to the state process and that it had been moving along and was going to result 

in industry standards without E.P.A. intervention. 

One, I would note that the state-wide stormwater rule has been in limbo now for 18 months. There is no plan to submit it 

to legislature this session, so it will go into next session, and who knows then. So again, the State is not in a position to 

move regulatory measures such as this forward. 

In addition, the legislature is actually going in the opposite direction. A House committee has passed a bill to repeal all 

local fertilizer ordinances, and that's expected to be passed by the House this session. Whether the Senate will take it 

up, I'm not aware of. 

11/19/2010 02:48 PM EST 2-1876
 
Chapter 2 - Comment Documents Background 

Comment ID 1153.001.005 

Author Name: Ghent R. 

Organization: CF Industries 

In conclusion, Tampa Bay has managed to effectively reduce nutrient levels in the largest estuary in the state by 

effectively implementing best management practices, stressing cooperation through public/private partnership, and 

working hard to develop a scientifically-sound T.M.D.L. approach. 

Nobody cares more about Florida's water quality than Floridians. Over 30 percent of the national water quality data is 

from Florida. We have been working hard to protect our rivers, streams, and estuaries, and businesses invested 

millions of dollars to restore impaired watersheds and protect healthy rivers and streams. 

The State has worked hard to develop scientifically-defensible numeric nutrient criteria that will protect Florida waters in 

equitable and cost-effective ways. E.P.A. should support these efforts instead of imposing these standards on Florida 

and only Florida. 

We will be submitting written comments, and thank you for your consideration. 

Comment ID 1162.001.003 

Author Name: Arvanitas P. 

Organization: 

Second thing is permitting. We used to have five-year permits that gave industry users in Florida that go before the 

D.E.P. water management boards five-year permits. They -- of course, it's easier to review them. You know, if they are 

in noncompliance, there was a shorter period. 

Since Grunwald in January 2009 sent that little D.E.P. Sole letter, you know, announcing we are going to do pre-Jeb, 

which is point and non-point source of pollution, all of a sudden, the state legislature gave the system, and Senator 

Alexander decided 50 are permanent. Okay. And then, of course, our non-friendly environmental governor signed it into 

law last year. 

Well, from the other document that you have, it's a December 2006 document, in it Mike Sole has argued with staff, 

they are arguing about a Department of -- Department of Interior discussion about the consent order. 

And, of course, the Department of Interior had a problem with permitting, you know, allowing five years to argue 

compliance under NEPA law, the magna carta of the environmental law. 

And the last thing that D.E.P. offers, says he wants to be able to defend Castile's changes with a straight face before 

the E.P.A., but he cannot as a current -- as it currently stands with E.P.A. director Castile's changes. 

11/19/2010 02:48 PM EST 2-1877
 
Chapter 2 - Comment Documents Background 

So I feel the D.E.P. might be gaming the system, and our state legislature is helping out big business with the 50-year 

permits. You'll need to bring a big stick to beat them all up in Florida. 

Comment ID 1164-1.001.012 

Author Name: Baer W. 

Organization: City of Altamonte Springs Public Works and Utilities 

The City is an active participant in the Lake Jessup and Wekiva River Basin Management Action Plans (BMAPs). 

Although these processes can be time consuming, we feel they are an appropriate means of addressing nutrient 

loading to basins allowing stakeholders the ability to evaluate the myriad of inputs to the basin and encouraging 

participation in regional treatment systems. The BMAP process also allows stakeholders to forecast nutrient reduction 

projects and budget accordingly for them. 

Comment ID 1175.001.004 

Author Name: Rohrer K. 

Organization: 

House Bill 1445, presented by the Florida Natural Resources Appropriations Committee, granted the Department of 

Agriculture and Consumer Services sole authority to regulate the sale and use of commercial fertilizer. This means that 

local laws already on the books are no longer valid, to highly extractive industries' benefit, agriculture and phosphate 

mining, both of which contribute heavy residual pollution to the environment and consume massive quantities of fresh 

water. 

Senate Bill 550, presented by the Committee on Environmental Preservation and Conservation, deals with multiple 

water issues. This legislation includes important positive inputs, that include an expanded definition of pollution to 

include nutrients when their concentrations in water bodies cause imbalances in the ecosystem, and it directs the DEP 

to create nutrient -- numeric nutrient criteria for the state that will fulfill the USEPA mandate under the federal Clean 

Water Act. However, the proposed new language includes the statement -- and I paraphrase slightly -- Page 10, Line 

285 that of bill, "To protect water resources and to meet current and future needs with abundant water." This language 

once again reenforces the concept of consume rather than conserve. 

Comment ID 1176.001.004 

Author Name: Tilton A. 

Organization: Johnson Engineering, Inc. 

Maybe it's just my misunderstanding, but I haven't seen what the implementation period is going to be, and maybe it's 

clear in the document and I just haven't found it. I just would encourage an implementation period similar to the TMDL 

11/19/2010 02:48 PM EST 2-1878
 
Chapter 2 - Comment Documents Background 

process, over a five to 15-year time period, so that -- we don't need to wait until year 14, if it's a 15-year period. We 

need to work towards it, but a lot of these things take several years to get a permit to build after it's designed, and then 

to put it in place, and get things running. 

Comment ID 1198.001.008 

Author Name: Worley K. 

Organization: 

I've been around the state a long time, and I have seen the ramifications of what can happen if we sit back and do 

nothing. And unfortunately, we're feeling the impact of neglecting our waterways. I would like to remind you all of an 

example where, because we waited too long to respond to water quality declines that we knew were there, we're all 

paying the price. 

Comment ID 1198.001.009 

Author Name: Worley K. 

Organization: 

Over the years, we have seen the results of not doing anything in places like Ever- -- the Everglades, Lake Tafford was 

mentioned, and various other water bodies I have heard mentioned here today. 

Comment ID 1211-1.001.004 

Author Name: Threet J. 

Organization: Alico, Inc. 

On the second point, those of us who work in Agriculture in South Florida have made tremendous progress in reducing 

nutrients, both Nitrogen and Phosphorus, discharged from our properties over the past fifteen years. We have gone 

from the accusation of being "the Problem" to becoming a major part of "the Solution". We invite your inspection of our 

properties and facilities that, in cooperation with the FDEP and the South Florida Water Management District, are 

making significant strides in the reduction of nutrients. We HAVE made progress. We understand the problem and are 

committed to doing even more, but we request that you let the FDEP continue its work to establish numeric nutrient 

criteria based on science and local knowledge in accordance with the Clean Water Act, without specific dictation from 

Washington. 

Comment ID 1211-1.001.008 

Author Name: Threet J. 

11/19/2010 02:48 PM EST 2-1879
 
Chapter 2 - Comment Documents Background 

Organization: Alico, Inc. 

The third point relates to the agreements already reached in 2004 and 2007 to develop and implement the numeric 

nutrient criteria for Florida. Sufficient time has not been spent to evaluate the information and procedures already 

developed. EPA developed guidance in the development of numeric nutrient criteria in 2000-01. Only nine years have 

transpired since, during which written agreements were entered into between the FDEP and EPA. Where is EPA's 

"word", its bond, that which we refer to as "the full faith and credit of the United States Govermnent"? How lasting will 

be, the next agreement reached with the EPA? What am I requesting of the EPA: 1) We want you to work WITH US 

to accomplish the purposes and goals of the Clean Water Act of 1972. 

Comment ID 1219.001.003 

Author Name: Taylor J. 

Organization: 

Science -- scientific and economic justification for protecting and nurturing these resources have been known and 

amply demonstrated for more than 60 years. 

Unfortunately, measures to ensure their permanence have been thwarted by contrary economic and political interests 

that have historically promoted resource exploitation over resource preservation and management. 

I am most grateful to the Sierra Club, Earth Justice, and Allied Organizations for forcing E.P.A. and Florida Department 

of Environmental Protection to develop water quality guidelines now under consideration. 

Comment ID 1228.001.002 

Author Name: Montelione L. 

Organization: 

The application of these nutrients, these materials, have been in industries that have not changed for many years. In 

construction practices, we have seen a -- with hurricane standards, we have seen many codes and changes along the 

way over these years, but in agriculture and landscaping, we haven't really seen much. 

So the practices are out there. Best management practices are -- have been developed and there are other ways and 

other alternatives. So I would just like to say that some industries need to be guided along when we find out that there 

are better ways of doing things. 

Comment ID 1238.001.003 

Author Name: King H. 

11/19/2010 02:48 PM EST 2-1880
 
Chapter 2 - Comment Documents Background 

Organization: 

When I think of the D.E.P. and their actions, there are three events that surface to the top of my concerns. The Peace 

River cumulative impact study was the brainchild of the D.E.P., and it did show that surface water quality was reduced 

due to agriculture, phosphate mining, and urbanization. However, the report failed to consider the effects of the entire 

Peace River watershed down in Charlotte Harbor, which, of course, is where I live. In addition, the specific criteria of 

adverse impacts were set at such a high level that those impacts could hardly be exceeded. The Horse Creek water 

monitoring program is another example of poor monitoring as samples are taken a long distance above the site of 

where the water withdrawals occur. 

Comment ID 1240.001.002 

Author Name: Nurse K. 

Organization: 

You probably know, the legislature is -- the phosphate industry is working with legislature to reverse our fertilizer 

ordinances. I would give them a better than 50/50 chance of make -- of doing that. 

Comment ID 1240.001.005 

Author Name: Nurse K. 

Organization: 

I know that our own land development regulations have -- have required all new development to capture all the runoff 

for at least 15 years in our city, but it will still take a long time before that catches up. Our largest lake, we -- you know, 

we cleaned up, took us a few years, about 25 million dollars. There is a -- the second biggest lake in the county is being 

done now, it's a similar cost. So there are a lot of -- a lot of things that are -- that are on the up side that are -- that 

some are -- are only beginning to have the positive impact. 

Comment ID 1241.001.003 

Author Name: Latvala S. 

Organization: Pinellas County 

Pinellas County is committed to working with E.P.A. and F.D.E.P. to develop water quality standards that are protective 

of our environment. The changes seen in Tampa Bay since the 1970s are due to adaptive management strategies by 

the state and local stakeholders to restore and preserve the bay. 

Those actions include compliance with the Grizzle-Figg Act, improved stormwater regulations, stakeholder nutrient 

reduction projects and programs, and strong local policies like the fertilizer ordinance that was just mentioned, which 

11/19/2010 02:48 PM EST 2-1881
 
Chapter 2 - Comment Documents Background 

alone is estimated to remove 84 tons of nitrogen from the bay. 

As Karl mentioned, there is people in Tallahassee as we speak trying to get legislation passed that would overturn that 

ordinance. It is imperative that ordinances like that the local government passes need to be able to stay in force. 

We know what it can do, and 84 tons is a lot of nitrogen to help in this cleanup process. And it's a very inexpensive, 

mostly done through public education. 

Comment ID 1243.001.005 

Author Name: Murphy J. 

Organization: Gulf Restoration Network 

And I think that while you've heard speakers today talk about the improvements in water quality that have taken place in 

Florida since, say, the 1970s, I would argue that it's too little, too slow, and is definitely not the sort of improvement that 

I think we should hang our hat on as a state. If this is the best we can do, then we are in serious trouble in Florida. And 

I don't think we would advocate for recreating a wheel that was working, but we feel like the wheel isn't turning, and 

there has got to be something better. 

Comment ID 1245.001.004 

Author Name: Compton P. 

Organization: 

So the E.P.A. did help with that, because the State had no clue that there is anything wrong with a little bit of poison 

getting into our waterways. The E.P.A. helped with that. And we did come up with a solution. That problem has gone 

away. A better way -- there is a better way of doing these things, and there is a better way of taking care of these 

things. 

Comment ID 1245.001.009 

Author Name: Compton P. 

Organization: 

I've been living on this water for 19 years. The State of Florida was told in 1998 to get on the stick and get with it. We've 

been waiting for a long time. The state of Florida has more data than any other state. That's fine. The State of Florida 

should work with you and come up with the best numbers. Let's have the process move forward so that one day, 

hopefully while I'm still around, I'll be able to go swimming in that river. 

11/19/2010 02:48 PM EST 2-1882
 
Chapter 2 - Comment Documents Background 

Comment ID 1246.001.011 

Author Name: Adams C. 

Organization: 

Local ordinances and education about the effects of fertilizer use are feasible and they encourage public participation in 

helping improve the quality of our waters. I've heard claims that B.M.P.'s by farmers and large animal operations are 

currently working. The problem is there is no way to verify these claims. Under Florida's T.M.D.L. statute, by simply 

claiming that B.M.P.s are in place, there is a presumption of meeting water quality standards and then an exemption for 

monitoring. 

Comment ID 1250.001.004 

Author Name: Roth R. 

Organization: Florida Chamber of Commerce 

To recap, environmental groups sued E.P.A. to force Floridians to spend unknown millions of dollars in an attempt to 

meet unachievable standards.

 I might ascertain that the biggest challenge facing mankind today is this: We must continue to develop new technology 

to feed a growing population of 6 billion plus people with limited resources while protecting the environment and 

creating jobs. 

How about a real-world solution? Let's look at a South Florida environmental success story. I farm in Palm Beach 

County in the Everglades agriculture area. 

Under the Everglades Forever Act, which was passed in 1994, the growers are mandated to reduce their phosphorus 

runoff, their annual discharge of phosphorus runoff by 25 percent per year. And for 15 years, the farmers have reduced 

their discharge by over 50 percent each year. 

Why is this program successful? The following reasons. Four years of scientific research by the agricultural industry 

prior to implementation. The regulated industry and the regulator worked together to develop a matrix of options for 

each grower to implement to be in compliance. 

Third, mandatory agricultural privilege tax included tax credits for meeting and exceeding reduction goals. Fourth, the 

industry was regulated as a total basin, which gives the farmers more choices for their -- for their crop production. 

Again, this program is successful because it is incentive based, relies on site-specific, scientifically-based solution, and 

the goals are cost effective and achievable. 

Comment ID 1263.001.002 

11/19/2010 02:48 PM EST 2-1883
 
Chapter 2 - Comment Documents Background 

Author Name: Rooks L. 

Organization: 

The changes that we've seen, we recognize the -- that water is a -- is a pristine quality that we all need. We've worked 

in agriculture with the D.E.P., the different water management districts, the Florida Department of Agriculture and its 

water ag policy division, the University of Florida with its recommendations for fertilization and -- and -- and spraying, 

followed their recommendations for those, to develop a -- a best management practices for our agricultural industries 

across the state. 

Comment ID 1263.001.004 

Author Name: Rooks L. 

Organization: 

I'm asking E.P.A. to look into the standards that we have developed, our industry, agriculture has developed, the work 

that the cities and the counties are doing for their stormwater. 

Comment ID 1266.001.002 

Author Name: Morrissey J. 

Organization: Pinellas County 

And the recent history of Florida, at least in the last 20 years, has been one of continuing water quality improvement, 

and this has occurred even though Florida has been under tremendous population pressures. I moved here 20 years 

ago, and the population in the state I think has doubled in that 20 years. And the water quality improvements, you know, 

arguably have been in fits and starts, and often uneven as it's gone from piece to piece in the state, but it has been a 

record of continued improvement. 

Comment ID 1296-1.001.003 

Author Name: Drew H. 

Organization: Wood Cellulose Manufacturing 

The Fenholloway River was historically classified for industrial use - a Class V designation in Florida. When Buckeye 

acquired this facility in 1993, it made a commitment to eliminate the Fenholloway River's industrial use designation. 

Buckeye also committed to the actions necessary to attain a fishable and swimmable designation - a Class III 

designation in Florida - and the associated water quality standards. Since the early 1990's, Buckeye has supported 

several extensive studies, including a $3 million dollar multi-year Use Attainability Analysis (UAA). The UAA identified a 

combination of viable technological changes - collectively known as the Fenholloway River Project - that would allow 

11/19/2010 02:48 PM EST 2-1884
 
Chapter 2 - Comment Documents Background 

the reclassification of the Fenholloway River and the attainment of Class III water quality standards. On March 29, 

1995, Buckeye and the Florida Department of Environmental Protection (FDEP) entered into a legally binding 

agreement known as the Fenholloway River Agreement which established a schedule for the filing of necessary permit 

applications for the implementation of the UAA findings. As a result, the State of Florida reclassified the stream as a 

Class III fishable and swimmable stream on December 31, 1997. This action established new designated uses and 

water quality objectives for the Fenholloway River. Buckeye initiated projects to attain Class III water quality standards 

with its acquisition of the facility. Final improvements necessary to achieve the standards will be completed as part of 

the next National Pollution Discharge Elimination System (NPDES) permit to be issued by FDEP. 

Comment ID 1296-1.001.015 

Author Name: Drew H. 

Organization: Wood Cellulose Manufacturing 

An important finding of the UAA included the need for additional nutrient studies as other improvements were made. As 

a result ofthese studies, a Total Maximum Daily Load (TMDL) for nutrients was developed for the Fenholloway River. 

This process was initiated in 1998 and culminated in a collaborative effort by EPA Region 4, FDEP and Buckeye. EPA 

Region 4 approved and finalized the TMDL in February 2009. 

Comment ID 1298-1.001.002 

Author Name: Gastesi R. 

Organization: Board of County Commissioners, County of Monroe 

Promulgation of Rules for Coastal Waters and Estuaries: 

The County in collaboration with other stakeholders (cities, agencies, and utilities) and the FOEP developed 

comprehensive reasonable assurance plans for all areas of the County to meet identified water quality targets for our 

waters. These plans included specific numeric targets and the actions required to achieve nutrient load reductions 

required to meet those target levels. These plans were aggressive, challenging, and based on all available scientific 

data. These plans have been adopted and are in the process of submittal to EPA for approval when this rulemaking 

process commenced. The County remains committed to the proposed plans and recommends that EPA adopt the 

targets in the proposed rules directly, or as Site Specific Alternative Criteria ("SSAC"), for Monroe County waters due to 

the significant science serving as their basis. 

Comment ID 1301-1.001.002 

Author Name: Hodge R. 

Organization: Southeast Milk Incorporated 

11/19/2010 02:48 PM EST 2-1885
 
Chapter 2 - Comment Documents Background 

BACKGROUND 

First off, we need to provide for the record the background that lead up to EPA taking the course of action and "high 

jacking" the State of Florida's efforts to tackle the complex issue of nutrient interaction with the environment through the 

conveyance of water. Through the Florida Department of Environmental Protection (DEP), the Florida Department of 

Agriculture and Consumer Services (FDACS) and its water management districts, Florida has established robust 

standards and enacted programs to support water quality. Working through the Total Maximum Daily Load (TMDL) 

process and establishment of Best Management Practices, great progress was and continues to be made to establish 

"water bodylbasin specific" standards above and beyond the already stringent narrative standard. As of 2009, Florida 

had adopted 135 nutrient TMDLs with an additional 39 pending for adoption. This process has been guided by 

"stakeholder groups" that allowed all parties impacted by these regulations to provide guidance and assure 

implementation. In addition, for a number of years, the DEP has been working with a Technical Advisory Committee 

(TAC), comprised of state water quality experts representing a wide array of interests, on the establishment of numeric 

nutrient criteria. 

This is a technically complex undertaking given the variability of Florida's water resources and the fact that it is difficult 

to establish direct causal links between the levels of nutrients (phosphorus and nitrogen, naturally occurring elements 

that are necessary for biologic well-being) and imbalances of fish and plant communities, especially when many other 

factors come into play with respect to the health of an ecosystem. EPA, in fact, has acknowledged the difficulty in 

establishing numeric standards for nutrients in its 1998 "National Strategy for the Development of Regional Nutrient 

Criteria." 

Comment ID 1301-1.001.016 

Author Name: Hodge R. 

Organization: Southeast Milk Incorporated 

• The rule fails to give proper weight to prior management decisions, such as TMDLs and NPDES effluent limits. 

Comment ID 1304-1.001.004 

Author Name: Stewart J. 

Organization: Florida Pulp and Paper Association Environmental Affairs, Inc. 

The Agency must also recognize the limitations of Florida statute and regulation, in that, even if Florida begins 

rulemaking to provide for proper implementation of the standards, the Agency must provide adequate time for these 

standards to become effective. 

Comment ID 1307.001.002 

Author Name: Godbold J. 

11/19/2010 02:48 PM EST 2-1886
 
Chapter 2 - Comment Documents Background 

Organization: Florida Farm Bureau 

And there is a water problem in the state of Florida. I don't think any of us will argue with this. I think that we need to 

relook at maybe our approach we're using and look at the value of some of the educational programs, some of the 

BMPs, the programs that's worked in Suwannee County so well with the volunteer cooperation of the farmers and Farm 

Bureau and Department of Agriculture and other agencies. 

Comment ID 1309.001.002 

Author Name: Steinbrecher P. 

Organization: JEA 

My comments today are focused on a very narrow area: Florida's existing numeric nutrient standards, the solution that 

is already under way to each of the pictures that you showed earlier today. We do have a problem and we absolutely 

must address that in Florida. 

Comment ID 1309.001.003 

Author Name: Steinbrecher P. 

Organization: JEA 

As you know, numerous total maximum daily loads, or TMDLs, for nutrients have been developed for Florida's waters, 

including nutrient TMDLs applicable to the lower St. Johns River basin, where you happen to physically be today. These 

nutrient TMDLs have already water body specific numeric end points, and these nutrient TMDLs have been approved 

by EPA, very specifically approved as restoring and protecting Florida's waters from nutrient impairment. These TMDLs 

are being implemented right now under Florida's progressive program in a manner that goes well beyond what is 

required by the federal Clean Water Act. 

Here in the lower St. Johns River basin, I am pleased to report to you that wastewater treatment facilities are very close, 

within 10 percent of meeting their freshwater TMDL allocations for both total phosphorus and total nitrogen as a result 

of that program. With respect to meeting the marine TMDL allocation for total nitrogen, we're over halfway there. This 

TMDL as well was just adopted in 2007. 

Comment ID 1310.001.002 

Author Name: Smith J. 

Organization: 

Farmers have been cooperative. We have endeavored to cooperate with land grant university, water management 

district, Natural Resources Conservation Service, Department of Environmental Protection, and other governing bodies. 

11/19/2010 02:48 PM EST 2-1887
 
Chapter 2 - Comment Documents Background 

Such collaborative efforts or labors have yielded benefits both economically and environmentally to my farm, to my 

community, and my state. We have entered into such projects as test wells in production areas, benchmark farms 

collecting rainfall data and irrigation amounts, numerous evaluations that cover crop influences on erosion, soil building 

and crop quality, collection of yield data on various fertilizer rates, including the use of the slow release he fertilizers, the 

construction of a prototype state of the art chemical mixing and storage facility, voluntary construction of a water 

retention area for over 90 areas of field runoff, and a variety of studies in different cultivars and property responses to 

fertilizer rates, environmental stresses and yields. We were in the forefront of the establishment of the Best 

Management Practices, working intimately with authorities on the matter of installing water control devices, leveling 

land, protecting sensitive areas, maximizing the use of irrigation water, and limiting the timely application of fertilizer. 

Comment ID 1311.001.005 

Author Name: Long A. 

Organization: 

The Suwannee system has been plagued with water quality problems for many years; however, neither Florida 

policymakers nor the Florida Department of Environmental Protection has taken substantive action to halt the decline 

despite the Clean Water Act. Even now the Total Maximum Daily Load Basin Management Action Plan consists of 

voluntary Best Management Practices, and that's according to a Basin Management Action Plan meeting that I went to. 

Comment ID 1318.001.005 

Author Name: Larson T. 

Organization: 

The TMDL process is broken. It's got too many opportunities for influence or -- or disregard of apparent facts. I want my 

children and their children to experience the full beauty of Florida. I want to be able to canoe from my back yard into the 

estuaries that make the Intercoastal Waterway here in the region so fine. And I want to see the creatures that should be 

in those waters. I want to be able to eat that fish without concern. I want to be able to have life be full and rich in Florida. 

And we need these numeric nutrient standards in order to assure that future. 

Thank you very much. 

Comment ID 1320.001.002 

Author Name: Johns C. 

Organization: 

Basically, I'd like to say that the emphasis that the science exists and my primary concern is that if this gets done, that 

you-all pay attention to the work that's been done in the past 25 to 30 years in this area, in the area of nutrient runoff. 

11/19/2010 02:48 PM EST 2-1888
 
Chapter 2 - Comment Documents Background 

And I know to a lot of people it may seem like it's been feet dragging or a good old boy network of, you know, people 

trying to get by, but really in that time a lot has been done. Science has been advanced immeasurably on identifying the 

problem, which sources and how to effectively deal with these problems. And that's -- that's essentially it. 

Comment ID 1320.001.003 

Author Name: Johns C. 

Organization: 

Another -- one other note. Just with respect to the BMPs, I know that they're somewhat blind because it's obviously that 

we haven't been -- they haven't been effectively working, but to me it represents kind of a collaborative process 

between ag and the regulatory agencies and the universities to come -- to find effective solutions to these problems. 

And it's pretty much an adaptive management process that's been ongoing, and we're just now getting to the point 

where we're starting to see -- the science has finally kind of caught up with what we're trying to accomplish and we're 

able to accomplish a lot more effectively to protect our waters. And just because it hasn't appeared to have been 

working as fast as many people would like, I don't see that as a reason to scrap the -- scrap the process. There's a lot 

of good information that's brought us, and it's actually solved problems in several areas. 

Comment ID 1323.001.003 

Author Name: Reynolds G. 

Organization: First Coast Manufacturers Association 

As you know, there are three nutrient TMDLs specifically applicable to the lower St. Johns River. These TMDLs have 

specific numeric end points. So it's not specific numeric end points that we object to. It's a little bit of the science. 

Comment ID 1323.001.004 

Author Name: Reynolds G. 

Organization: First Coast Manufacturers Association 

Under Florida's progressive TMDL legislation, these TMDLs are being implemented in a manner that goes far beyond 

what is required by the Clean Water Act. I'm pleased to report and have heard from other speakers that because of the 

TMDLs and over a decade's worth of work, that there are significant nutrient reductions happening because of the 

projects being implemented across this area. We are concerned, though, that if the rule goes forward as stated, that the 

projects that are in progress to clean up the nutrients' delivery to the watershed will be stifled and stopped. 

Comment ID 1326.001.003 

11/19/2010 02:48 PM EST 2-1889
 
Chapter 2 - Comment Documents Background 

Author Name: Gramford N. 

Organization: 

Florida law is currently not specific enough and it only requires that nutrient levels not upset the natural balance of 

plants and animals in a waterway. The state has not moved with certainty or swiftness in setting these water -- water 

quality standards. I'm going to try to see if I can state this and just get out quicker. Instead, our state wants to approve 

the new stream classification system. There are people who are in position of responsibility and they're not doing 

anything, at least it doesn't appear to be so. We really need your assistance to come and help. 

Comment ID 1332.001.004 

Author Name: Story V. 

Organization: 

I want you to know that I spent the last week in Tampa Bay. I was fortunate to have a vacation, and I've been going 

there for over 40 years and the water quality in Tampa Bay is good. It is much better than it was 10 to 15, 20 years ago. 

I think that the State of Florida,along with a lot of local municipalities, and all kinds of people have cooperated to make 

that a much nicer place to live and to fish and to do all the things that we enjoy doing. 

Comment ID 1333.001.004 

Author Name: Hauck A. 

Organization: Council of Civic Associations 

"The effect of the amended EFA, the Everglades Forever Act, is to replace the phosphorus criterion with an escape 

clause that allows noncompliance. The amended Everglades Forever Act changes Florida water quality standards by 

authorizing continuing violations. The rule is layered with avoidance mechanisms, and the EFA has condoned a de 

facto moratorium on compliance." A numeric phosphorus criterion for the Everglades was established over a decade 

ago, and yet the Everglades still receives in excess of 100 tons of phosphorus per year, based on EPA's own studies. 

EPA Region 4 water managers have repeatedly refused to make the State of Florida incorporate enforceable discharge 

limits into the National Pollutant Discharge Elimination System permits for storm water treatment areas. 

Comment ID 1339.001.006 

Author Name: Speed Sr. D. 

Organization: Douglas Speed & Associates 

I've also presented this information to the agricultural secretary twice. Both times we got no reply. Mr. King, it's been 

presented to your department twice in the last two years, with no reply. So I can understand the frustration of the people 

11/19/2010 02:48 PM EST 2-1890
 
Chapter 2 - Comment Documents Background 

in this audience who say, "Wait, this problem has been around. Why aren't we doing something about it?" The problem 

is what you're proposing are regulations and restrictions. Well, (inaudible) didn't work and this is not going to work 

because the problem is here in communities that have very strict restrictions on application rates. That's it, gentlemen. 

The science is there to solve this problem, and it would save all of us a lot of money. 

Comment ID 1340.001.006 

Author Name: Price J. 

Organization: Rayonier 

To further protect water quality from pollution associated with forestry operations, the 1972 Clean Water Act required all 

states to develop and implement forestry Best Management Practices that, among other things, specifically address 

fertilization. Florida BMPs limit the application rates of fertilizer during the tree growth cycle and mandate the 

establishment of protective buffer zones along waterways to prevent runoff in forestry operations. Fertilizer in any form 

is specifically banned within these zones. All forest operations on both public and private land, and that includes 

Rayonier, are subject to regular BMP compliance audits by the Florida Division of Forestry. The most recent audit 

showed 100 percent compliance with nutrient control practices. 

Comment ID 1348-1.001.008 

Author Name: Vick J. 

Organization: Gulf Power Company 

Please note that data for the State of Florida have indicated that there have been significant decreases in nutrients such 

as phosphorous. According to information that EPA apparently relied on, phosphorus levels fell approximately 50% 

during a 25 year period extending from 1980 through 2005. [1] This was a period during which the population of Florida 

doubled in size. 

In addition to this declining trend in phosphorus concentrations since the early 1980s, substantial ongoing efforts in 

many Florida water bodies under the existing narrative nutrients criterion are resulting to demonstrable improvements to 

the water quality of some of Florida's most prominent surface waters. 

[1] FDEP, Integrated Water Quality Assessment for Florida: 2008 305(b) Report and 303(d) List Update, 33 (Oct. 2008), 

available at http://www/dep.state.fl.us/water/docs/2008_Integrated_Report.pdf. 

Comment ID 1348-1.001.015 

Author Name: Vick J. 

Organization: Gulf Power Company 

11/19/2010 02:48 PM EST 2-1891
 
Chapter 2 - Comment Documents Background 

In conclusion, Gulf submits that the existing narrative nutrient standard in Florida has been successful in reducing 

nutrient loads to our water bodies. It is similar to the nutrient standard in most other states, and Florida has been a 

national leader in implementing the narrative standard to achieve reductions in discharges of nutrients. Despite the 

substantial growth that occurred in Florida over the past few decades, there have been significant reductions in 

nutrients concentrations. Given Florida's success in controlling discharges of nutrients, and given the lack of a sound 

scientific basis for the proposed NNC, Gulf Power requests that EPA consider abandoning this rulemaking effort. 

11/19/2010 02:48 PM EST 2-1892
 
Chapter 2 - Comment Documents Background 

Comment ID 1352-1.001.025 

Author Name: Herr M. 

Organization: Polk County 

6. Healthy water bodies are those water bodies meeting their designated uses. Nutrient chemistry alone is not a reliable 

indicator that in-system productivity adversely impacts designated uses. 

Although the current narrative standard used by the State of Florida may not meet the legal requirement of a numeric 

standard, it is useful when evaluating the designated uses of waters. Narrative standards allow for describing if a 

designated use is being met based on achieving a healthy, well balanced ecosystem that also supports recreational 

uses. Many lakes and streams in Florida are meeting their designated use for Class III water bodies, even though they 

are listed as impaired based on current water quality standards. 

The proposed numeric nutrient criteria will simply result in more surface waters, including our pristine and Outstanding 

Florida Waters, being listed as impaired despite the fact that they are currently meeting their designated uses. Many 

impaired waters throughout Polk County appear to be meeting their designated uses based upon the high rate at which 

they are utilized by a variety of user groups. The EPA should consider alternative methodologies to evaluate how 

designated uses are being met to supplement nutrient criteria (i.e. "portfolio" type assessments of waters as opposed to 

considering only nutrient chemistry). 

Comment ID 1359-1.001.048 

Author Name: Andes F. 

Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality Coalition 

2. Florida's existing program protects water quality. 

The State of Florida currently has a narrative water quality criterion for nutrients: "In no case shall nutrient 

concentrations of a body of water be altered as to cause an imbalance in natural populations of aquatic flora or fauna." 

Florida Administrative Code (FAC) 62-302-530(47)(b). Florida currently implements this criterion on a site-specific basis 

in the context of taking action to improve water quality through limitations in NPDES permits, TMDLs, the development 

of Basin Management Action Plans, and in identifying impaired waters. In doing so, the State identifies the level of 

nutrients that would cause an imbalance and then translates that level into site-specific numeric targets. 

Comment ID 1359-1.001.049 

Author Name: Andes F. 

11/19/2010 02:48 PM EST 2-1893
 
 

 

 

Chapter 2 - Comment Documents Background 

Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality Coalition 

To identify whether an imbalance exists, FAC 62-303.350 requires the State to evaluate site-specific data on the trophic 

state, chlorophyll a values, and other information such as algal blooms, excessive macrophyte growth, and the state of 

submerged aquatic vegetation. While the Florida regulations include thresholds for nutrient impairment based on 

response variables, impairment is confirmed with a site-specific bioassessment. Further, Florida law requires data 

reasonably demonstrating the pollutant causing the impairment and how the pollutant is associated with the observed 

biological effect. FAC 62-303-430. 

Comment ID 1359-1.001.050 

Author Name: Andes F. 

Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality Coalition 

Employing this approach, Florida is able to establish nutrient criteria that are "necessary to protect the [designated] 

uses," in compliance with 40 C.F.R. 131.2. Further, under this approach, the State's nutrient criteria are based on 

"sound scientific rationale," in compliance with 40 C.F.R. 131.11(a). Narrative standards also have not prevented 

Florida from developing successful total maximum daily loads for nutrients. In fact, Florida has developed 135 nutrient 

TMDLs with an additional 39 pending adoption. Florida's approach has been praised by the SAB: We agree with the 

statement in the Florida Department of Environmental Protection's letter of September 4, 2009 (letter from Daryll 

Joyner, Florida Department of Environmental Protection to Thomas Armitage, Designated Federal Officer, EPA Science 

Advisory Board Staff Office) indicating that the "most scientifically defensible strategy for managing nutrients within the 

range of uncertainty is to verify a biological response prior to taking a management action." This risk/performancebased approach to setting nutrient criteria is evident not only in Florida's program, but also in those developed by 

California and Maine (Florida Department of Environmental Protection, 2009; Maine Department of Department of 

Environmental Protection, 2009; McLaughlin and Sutula, 2007). Those risk-based linkages are not addressed in either 

the Guidance or EPA's Nutrient Criteria Technical Guidance documents for Rivers (2000), Lakes/Reservoirs (2000), 

and Estuaries (2001). Draft SAB Report, at 6. 

Comment ID 1368-1.001.013 

Author Name: Waters D. 

Organization: City of Miami Department of Public Works 

pg. 9 "EPA determined that Florida's reliance on a case-by-case interpretation of its narrative nutrient criterion in 

implementing an otherwise comprehensive water quality framework of enforceable accountability was insufficient to 

ensure protection of applicable designated uses." Is the problem actually the fact that the narrative criteria must be 

interpreted on a case-by-case basis, or that Florida is not providing adequate funding and other resources in order to 

implement the narrative criteria? 

11/19/2010 02:48 PM EST 2-1894
 
Chapter 2 - Comment Documents Background 

Comment ID 1370-1.001.039 

Author Name: Hanson R. 

Organization: Orange County Utilities 

5. Extend the schedule for developing and establishing the final numeric nutrient criteria to allow further refinement of 

the proposed criteria. The criteria could be refined and made more applicable by creating more watershed nutrient 

regions within the state, and by establishing seasonal limits considering streamflow, temperature, and rainfall. 

Comment ID 1370-1.001.062 

Author Name: Hanson R. 

Organization: Orange County Utilities 

This memorandum summarizes the existing Total Maximum Daily Loads (TMDLs) and Basin Management Action Plans 

(BMAPs) that affect existing Orange County water reclamation facilities (WRFs) with surface water discharges. These 

include the Northwest and the Eastern WRFs. 

Comment ID 1416-1.001.005 

Author Name: Alves J. 

Organization: Florida Electric Power Coordinating Group, Inc. 

A states' reliance on narrative criteria is not an inherent indication that there is "something awry" with its water quality 

standards justifying EPA's "course of last resort." To the contrary, narrative criteria are long-recognized as an important 

and highly effective regulatory tool because numeric criteria "cannot reasonably be expected to anticipate all the water 

quality issues arising from every activity that can affect the States' hundreds of individual waterbodies." PUD No.1 of 

Jefferson County v. City of Washington Dep't of Ecology, 511 U.S. 700, 717 (1994). It is precisely for this reason that 

"neither the Act itself nor the regulations require that any numeric criteria be established. Water quality criteria may be, 

and often are, totally narrative." Env'l Defense Fund v. Costle, 657 F.2d 275,288 (D.C. Cir. 1981). 

Comment ID 1416-1.001.007 

Author Name: Alves J. 

Organization: Florida Electric Power Coordinating Group, Inc. 

But first we will look at the rationale that EPA published a year later, in the January 26, 2010 Federal Register. 

EPA acknowledged in the Federal Register that Florida has spent over $20 million collecting and analyzing data related 

11/19/2010 02:48 PM EST 2-1895
 
Chapter 2 - Comment Documents Background 

to nutrients and biological health in Florida waters. EPA also conceded that Florida "is one of the few states that has in 

place a comprehensive framework of accountability that applies to both point and nonpoint sources and provides the 

enforceable authority to address nutrient reductions in impaired waters based upon the establishment of site-specific 

total maximum daily loads ...." Additionally, EPA referred to Florida's regulatory nutrient accountability system as an 

"impressive synthesis of technology-based standards, point source control authority, and authority to establish 

enforceable controls for nonpoint source activities." 75 Fed. Reg. at 4175,4181,4182. 

So why would EPA invoke its "course of last resort" against a national leader in assessing and controlling nutrient 

pollution? What had gone awry? 

Comment ID 1416-1.001.009 

Author Name: Alves J. 

Organization: Florida Electric Power Coordinating Group, Inc. 

Additionally, EPA's justification for requiring NNC in Florida - - again, the "course of last resort" - -was based on the 

concept of administrative convenience: Reliance on a narrative criterion to derive NPDES permit limits, assess water 

bodies for listing purposes, and establish TMDL targets can often be a difficult, resourceintensive, and time-consuming 

process that entails conducting case-by-case analyses to determine the appropriate numeric target value based on a 

site-specific translation of the narrative criterion. 75 Fed. Reg. at 4175, 4181. As will be explained below, EPA's 

rationale for the necessity determination consists of a series of mistakes. Still, the "why" question remains: Why would 

EPA over-reach in such an obvious manner in an effort to justify a necessity determination applicable to Florida? 

Comment ID 1416-1.001.014 

Author Name: Alves J. 

Organization: Florida Electric Power Coordinating Group, Inc. 

In addition to this declining trend in phosphorus concentrations since the early 1980s, substantial ongoing efforts in 

Florida under the existing narrative nutrients criterion are resulting to demonstrable improvements to the water quality of 

some of Florida's most prominent surface waters. Of the many examples available to prove this point, three will be 

provided here: Lake Apopka, Tampa Bay, and the Lower St. Johns River. 

Nutrient Reductions in Lake Apopka 

This example is chosen for this comment letter because EPA's presentation (attempting to explain why NNC are 

needed) during three public workshops in Florida February 2010 included a 1995 photograph of Lake Apopka. The 

fourth largest lake in Florida, Lake Apopka is in Orange County and Lake County. EPA's photograph showed Lake 

Apopka covered in a dense algal bloom, and EPA asserted (apparently without irony) that its proposed NNC is justified 

in part based on a 15 year old photograph depicting nutrient impairment of Lake Apopka. 

11/19/2010 02:48 PM EST 2-1896
 
Chapter 2 - Comment Documents Background 

Of course, EPA's outdated snapshot predated Florida's TMDL program by five years, and since then much has been 

accomplished under Florida's existing narrative nutrient standard by the St. Johns River Water Management District 

(SJRWMD) and other Florida stakeholders to recover the lake. As SJRWMD recently explained: 

Historically, Lake Apopka was clear, densely vegetated, and well known for its sports fishery. SJRWMD is currently 

restoring thousands of acres of muck farms, adjacent to Lake Apopka and the Ocklawaha chain of lakes, to aquatic and 

wetland habitat. These activities include removing internal and external nutrient loads, restoring wetland and river 

habitats, and managing water levels to mimic the natural hydrologic cycle (FDEP 2001). After years of decline, 

SJRWMD restoration efforts appear to be improving water quality in the lake. Basinwide, these efforts appear to be 

paying off, as the Ocklawaha Basin has the highest percentage of improving stream and lake sites when compared to 

the other basins.[5] (Emphasis added.) 

The SJRWMD further stated in the same report that phosphorus levels have been reduced by 56% and water clarity 

has improved by 54% over earlier high levels. Additionally, recent photographs provided in the SJRWMD report show 

very healthy conditions in Lake Apopka.[6] 

Instead of misleading Floridians regarding the current state of Lake Apopka during the public hearings in Florida, EPA 

should have commended SJRWMD and other Florida stakeholders for their extraordinary efforts in recovering this lake. 

The real story on Lake Apopka is that since 1995 substantial progress is being achieved under Florida's narrative 

nutrients criterion. The NNC are not necessary to restore Lake Apopka. 

Nutrient Reductions in Tampa Bay 

As explained in great detail in the comment letter submitted to EPA in early March, 2010 by the Tampa Bay Nitrogen 

Management Consortium, water quality in the Tampa Bay estuary has improved dramatically since the 1970s, when 

almost 50% of the bay's seagrass populations died off as a result of insufficient light and poor water quality.[7] Thanks 

to efforts of stakeholders in Tampa Bay area, the once-nutrient degraded waters of Tampa Bay now regularly meet 

accepted water quality thresholds and support 30,000 acres of seagrass -- more than at any time measured since the 

1950s. Tampa Bay is the largest open-water estuary in Florida, encompassing 400 square miles of open water, and a 

2,200 square mile drainage basin; it is fed by over 100 tributaries and is surrounded by a major metropolitan area that 

has seen significant population growth. 

The success in limiting nitrogen impacts into Tampa Bay, and the impressive recovery of that system, all accomplished 

under an EPA-approved TMDL and Florida's narrative nutrients standard, verify that federal NNC are not necessary for 

Tampa Bay. 

Nutrient Reductions in the Lower St. Johns River 

On January 18, 2008 EPA approved FDEP's TMDL for the Lower St. Johns River (LSJR), and on October 10, 2008 

FDEP enacted a Basin Management Action Plan (BMAP) to implement that TMDL. EPA's approval of the TMDL 

signified EPA's concurrence that all designated uses of the LSJR would be protected. Such protection is especially 

ensured when one takes into account Florida's "impressive synthesis" of TMDL implementation mechanisms. 75 Fed. 

Reg. 4175. 

11/19/2010 02:48 PM EST 2-1897
 
Chapter 2 - Comment Documents Background 

The geographical area addressed by this TMDL and BMAP is that portion of the St. Johns River that flows between the 

mouth of the Ocklawaha River, its largest tributary, and the Atlantic Ocean, encompassing a 2,750-square-mile 

drainage area. Major centers of population within this geographical area include Palatka, a city with a population of 

10,700 near the southern entrance to the river basin; Green Cove Springs, a city with a population of 4,700 at the 

midpoint of the river basin; and the very substantial Jacksonville metropolitan area, with a population of over one 

million, in the northern portion of the river basin. 

So how is the LSJR TMDL and BMAP implementation process working so far? 

During the first year since the LSJR BMAP was adopted, three publicly-owned treatment works (POTW) projects, three 

municipal storm sewer system (MS4) projects, and six non-MS4 (stormwater) projects were completed in the freshwater 

portion of the LSJR. The achievements from these efforts include: 4,409.8 kglyr phosphorus reduction and 27,919.5 

kg/yr nitrogen reductions. In the marine section, ten MS4 projects and three non-MS4 projects were completed for total 

results of 4,678 kg/yr in nitrogen reductions. These total efforts, during just the first year of implementation of the BMAP, 

demonstrate that the TMDL and BMAP are being actively implemented and that significant load reductions already have 

occurred, with more expected in the coming years. In addition to the load reductions described in this paragraph, 

several LSJR stakeholders made substantial progress in reducing nutrient discharges and meeting their allocations by 

reducing discharges of nutrients prior to FDEP's official adoption of the BMAP. 

Once again, nutrient pollutant loading in a very significant Florida waterbody is being substantially decreased, not 

increased. Because substantial nutrients reductions are being achieved in the LSJR under Florida's narrative nutrients 

standard, once again we see that federal NNC are not necessary for the LSJR. 

Many more examples are available, based on information on file with EPA or otherwise readily available. The bottom 

line is that nothing is "awry" in Florida and there is no legitimate basis for EPA to invoke the "course of last resort." 

[5] SJRWMD, 2004 Status & Trends in Water Quality at Selected Sites in the St. Johns River Water Management 

District, at 36 (Technical Publication SJ2006-6) (2006) [hereinafter Status & Trends] available at 

http://sjr.state.fl.us/technicalreports/pdfsITP/SJ2006-6.pdf. 

[6] SJRWMD, Lake Apopka, Water Quality Improvements, North Shore Restoration, available at 

http://sjr.state.fl.us/publications/pdfs/fs_lapopka.pdf. 

[7] Tampa Bay Nitrogen Management Consortium, Comments and Request Regarding the Development of 

Protective Loads for the Tampa Bay Estuary as It Relates to Establishing Numeric Nutrient Criteria for Lakes, Flowing 

Waters and Estuaries in Florida (March 4, 2010), available at 

http://www.tbeptech.org/attachments/074_FINAL_NMC_Response_NNC_03082010.pdf. 

Comment ID 1416-1.001.018 

Author Name: Alves J. 

Organization: Florida Electric Power Coordinating Group, Inc. 

11/19/2010 02:48 PM EST 2-1898
 
Chapter 2 - Comment Documents Background 

Second, EPA apparently forgot to consider that the "difficult, resource-intensive, and time-consuming process that 

entails conducting case-by-case analyses to determine the appropriate numeric target value...based on the narrative 

criterion" (75 Fed. Reg. 4181) has already been accomplished under several dozen EPA-approved nutrient TMDLs in 

Florida (and also under hundreds of Level II WQBELs under Rule 62-650, F.A.c.). It would be extremely inconvenient 

for all of this scientific and site-specific work to be replaced suddenly by federal numeric criteria derived from generic 

statistical constructs. EPA's necessity determination is completely dysfunctional insofar as it applies to EPA-approved 

nutrients TMDLs or to waters that currently are the subject of ongoing efforts to develop such TMDLs. 

Comment ID 1418-1.001.005 

Author Name: Dickerson J. 

Organization: JEA 

EPA acknowledged in the Federal Register that Florida has been a national leader in water quality control by spending 

over $20 million collecting and analyzing nutrients and biological health data in Florida waters. EPA also affirmed that 

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

and nonpoint sources and provides the enforceable authority to address nutrient reductions in impaired waters based 

upon the establishment of site-specific total maximum daily loads...." Additionally, EPA referred to Florida's regulatory 

nutrient accountability system as an "impressive synthesis of technology-based standards, point source control 

authority, and authority to establish enforceable controls for nonpoint source activities." 75 Fed. Reg. at4175, 4181,82. 

Comment ID 1418-1.001.009 

Author Name: Dickerson J. 

Organization: JEA 

EPA Should Uphold Florida's Existing Nutrient TMDLs 

One of EPA's primary criticisms of Florida's approach to regulating nutrients is as follows: "Reliance on a narrative 

criterion to derive NPDES permit limits, assess water bodies for listing purposes, and establish TMDL targets can often 

be a difficult, resource-intensive, and time-consuming process that entails conducting case-by-case analyses to 

determine the appropriate numeric target value based on a site-specific translation of the narrative criterion." 75 Fed. 

Reg. at 4175, 4181. These efforts are "resource intensive" primarily from the regulatory agency side. The resources 

needed to evaluate a water body such as the LSJR and set valid, science-based standards is a very small fraction of 

the public resources that later get spent to meet the regulatory target that is set. 

Comment ID 1445-1.001.001 

Author Name: Lewis T. 

Organization: Florida Association of Special Districts 

11/19/2010 02:48 PM EST 2-1899
 
Chapter 2 - Comment Documents Background 

On behalf of the Florida Association of Special Districts ("FASD") and its statewide membership, Lewis, Longman & 

Waiker, P.A., provides the following comments concerning the U.S. Environmental Protection Agency's ("EPA") 

proposed rule establishing numeric nutrient criteria for Florida surface waters. FASD has represented the interests of 

independent and dependent special districts in the state since 1976. Special districts are limited purpose governmental 

units administratively separated from county, municipal, or state government. Special districts provide the permanent 

administrative structure for financing, and maintain services or infrastructure traditionally provided by local government 

when the local government is unable or unwilling to provide the necessary service or capital improvements. 

In Florida, there are approximately 94 special water control or improvement districts that have the legislatively 

expressed purpose of managing water resources, encompassing well over a million acres of land that are managed for 

flood control and water supply. Several of the water control and improvement districts were created in the early 1900' s 

for the purpose of stimulating development throughout Florida via drainage and flood control. Approximately 60 of the 

94 special districts manage water resources within the South Florida Coastal Plain Ecoregion (basically, everything 

south of Lake Okeechobee). FASD represents 39 of the special districts that provide invaluable flood control and water 

supply services for urban and agricultural land uses. 

The public services provided by water control districts are most evident in South Florida where they operate and 

maintain extensive canal systems and water management facilities that dominate the hydrology of South Florida, 

provide critical water supply, and prevent flooding throughout South Florida. For example, we have attached a map 

depicting the water control districts within just one county, Palm Beach County, Florida. A simple review of the map 

shows just how intertwined the water control districts' canal systems are with Palm Beach County's landscape. Water 

control districts are not isolated features; instead they are dominant features in the South Florida landscape whereby 

the health of the communities being served/protected is directly related to the continued and uninterrupted flood 

control/water supply operations provided by these special districts. 

All of the water control districts and improvement districts that manage Florida's water resources have one common 

origin; they were all legislatively created for the express purpose of flood control and/or water supply. They were not 

created for water quality treatment or environmental enhancement. Their primary, legislatively mandated purpose is, 

flood protection and water supply. These special districts, although they encompass over a million acres, have limited 

revenue sources that are based solely on the flood protection/water supply benefits they provide. These special districts 

were not created to implement water treatment activities and thus lack the assessment authority to fund such 

operations. 

Because they were created solely for flood control/water supply purposes, the district's water management systems 

(canals, etc.) were usually constructed in grid system with little or no littoral zone. In essence, they were constructed as 

a complex plumbing system to control water levels so that the surrounding areas could be utilized for urban 

development, agricultural activities and other human uses. They were not designed to mimic natural flowing systems. 

Consequently, they were not designed to provide for natural attenuation of nutrients and were not designed to 

accommodate water treatment facilities or structures. 

Comment ID 1462-1.001.003 

Author Name: Helfrich C. 

11/19/2010 02:48 PM EST 2-1900
 
Chapter 2 - Comment Documents Background 

Organization: City of Boca Raton Utility Services 

First and foremost, the presentation and data presented are misleading, even though it was pointed out the photos may 

be old, they are misleading especially for those who receive the presentation electronically or other means that did not 

attend a public hearing. 

The 15-year old photo of Lake Apopka bears no relationship to present day Florida. The photo predates Florida's Total 

Maximum Daily Load (TMDL) program by four years and also predates the substantial efforts to improve water quality in 

Lake Apopka Even the Friends of US3/010112 2 Lake Apopka website states "Current data shows considerable 

improvements in decreased phosphorus levels and recent reports indicate fishing has improved dramatically." 

Comment ID 1473-1.001.012 

Author Name: Herz W. 

Organization: The Fertilizer Institute 

2. Florida's existing water quality protection program is successful. 

The state of Florida currently has a narrative water quality criterion for nutrients: "In no case shall nutrient 

concentrations of a body of water be altered as to cause an imbalance in natural populations of aquatic flora or fauna." 

Florida Administrative Code (FAC) 62-302-530(47)(b). Florida currently implements this criterion on a site-specific basis 

in the context of taking action to improve water quality through limitations in NPDES permits, TMDLs, the development 

of Basin Management Action Plans, and in identifying impaired waters. In doing so, the state identifies the level of 

nutrients that would cause an imbalance and then translates that level into site-specific numeric targets. 

To identify whether an imbalance exists, FAC 62-303.350 requires the State to evaluate site specific data on the trophic 

state, chlorophyll a values, and other information such as algal blooms, excessive macrophyte growth, and the state of 

submerged aquatic vegetation. While the Florida regulations include thresholds for nutrient impairment based on 

response variables, impairment is confirmed with a site-specific bioassessment. Further, Florida law requires data 

reasonably demonstrating the pollutant causing the impairment and how the pollutant is associated with the observed 

biological effect. FAC 62-303-430. 

Employing this approach, Florida is able to establish nutrient criteria that are "necessary to protect the [designated] 

uses," in compliance with 40 C.F.R. 131.2. Further, under this approach, the state's nutrient criteria are based on 

"sound scientific rationale," in compliance with 40 C.F.R. 131.11(a). 

Narrative standards also have not prevented Florida from developing successful total maximum daily loads for nutrients. 

In fact, Florida has developed 135 nutrient TMDLs with an additional 39 pending adoption. 

Florida's approach has been praised by the SAB: 

We agree with the statement in the Florida Department of Environmental Protection's letter of September 4, 2009 (letter 

from Daryll Joyner, Florida Department of Environmental Protection to Thomas Armitage, Designated Federal Officer, 

11/19/2010 02:48 PM EST 2-1901
 
Chapter 2 - Comment Documents Background 

EPA Science Advisory Board Staff Office) indicating that the "most scientifically defensible strategy for managing 

nutrients within the range of uncertainty is to verify a biological response prior to taking a management action." This 

risk/performance-based approach to setting nutrient criteria is evident not only in Florida's program, but also in those 

developed by California and Maine (Florida Department of Environmental Protection, 2009; Maine Department of 

Department of Environmental Protection, 2009; McLaughlin and Sutula, 2007). Those risk-based linkages are not 

addressed in either the Guidance or EPA's Nutrient Criteria Technical Guidance documents for Rivers (2000), 

Lakes/Reservoirs (2000), and Estuaries (2001). 

Draft 2010 SAB, at 6. 

Comment ID 1482-1.001.010 

Author Name: Hecker J. 

Organization: Conservancy of Southwest Florida 

Since the State of Florida is not protecting its wetlands adequately from nutrient pollution and actually has policies 

incentivizing the use of natural wetlands for the disposal of untreated I partially treated agricultural runoff and 

stormwater, the EPA needs to set numeric nutrient criteria for Florida's wetlands. Additionally, FDEP has implemented 

the Harper methodology, which purports natural wetlands to have a positive net annualized average nutrient load rather 

than a net nutrient reduction value (for more information - see latter section relating to how the proposed criteria would 

be undermined by the proposed Statewide Stormwater Rule). Setting numeric nutrient criteria for wetlands would 

ensure that they are being adequately protected from eutrophication just as other fresh receiving waterbodies are. 

Comment ID 1530.001.009 

Author Name: Aschauer Jr. F. 

Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority 

B. The Proposed Rule Lauds Florida's TMDL Program, Then Summarily Dismisses its Results. 

The Proposed Rule cites Florida's TMDL program as a positive example in several places: 

Moreover, Florida is one of the few states that has in place a comprehensive framework of accountability that applies to 

both point and nonpoint sources and provides the enforceable authority to address nutrient reductions in impaired 

waters based upon the establishment of site specific total maximum daily loads (TMDLs). (p. 4175) 

The determination recognized that Florida has a proactive and innovative program to address nutrient pollution through 

a strategy of comprehensive National Pollutant Discharge Elimination System (NPDES) permit regulations, Basin 

Management Action Plans (BMAPs) for implementation ofTMDLs. (p. 4181) 

When developing TMDLs, as it does when determining reasonable potential and deriving limits in the permitting context, 

11/19/2010 02:48 PM EST 2-1902
 
Chapter 2 - Comment Documents Background 

Florida translates the narrative nutrient criterion into a numeric target that the State determines is necessary to meet its 

narrative criterion and protect applicable designated uses. This process also involves a site-specific analysis to 

determine the nutrient levels that would "cause an imbalance in natural populations of aquatic flora or fauna" in a 

particular water. Each time a site specific analysis is conducted to determine what the narrative criterion means for a 

particular water body in developing a TMDL, the State takes site specific considerations into account and devises a 

method that works with the available data and information. (p. 4182) 

Comment ID 1530.001.011 

Author Name: Aschauer Jr. F. 

Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority 

C. Replacement of Approved TMDL Targets is Directly Contrary to the Objectives of the Proposed Rule. 

EPA's determination for requiring numeric nutrient criteria for Florida, as described in the Proposed Rule, states: 

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 use of the narrative nutrient criterion alone and the resulting 

delays that it entails do not ensure protection of applicable designated uses for the many State waters that are either 

unimpaired and need protection or have been listed as impaired and require loadings reductions. EPA determined that 

numeric nutrient water quality criteria would strengthen the foundation for identifying impaired waters, establishing 

TMDLs, and deriving water quality-based effluent limits in NPDES permits, thus providing the necessary protection for 

the State's designated uses in its waters. In addition, numeric nutrient criteria will support the State's ability to effectively 

partner with point and nonpoint sources to control nutrients, thus further providing the necessary protection for the 

designated uses of the State's water bodies. (p. 4182) 

This justification cites the following reasons for requiring numeric nutrient criteria. 

• Strengthen the foundation for identifying impaired waters, 

• Strengthen the foundation for establishing TMDLs 

• Strengthen the foundation for deriving water quality-based effluent limits in NPDES permits 

Comment ID 1530.001.036 

Author Name: Aschauer Jr. F. 

Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority 

X. SECTION II.D. OF THE PROPOSED RULE, TITLED AGENCY DETERMINATION REGARDING FLORIDA, IS 

MISLEADING AND MUST BE REDRAFTED AND REPROPOSED TO PROVIDE ADEQUATENOTICE AND 

COMMENT. 

11/19/2010 02:48 PM EST 2-1903
 
Chapter 2 - Comment Documents Background 

In the section related to the EPA determination that Florida needed numeric criteria, EPA states, at page 4182: "For 

example, in some cases, adequate data may take several years to collect and therefore, may not be available for a 

particular water at the time of permitting issuance or re-issuance." This statement seems to indicate EPA's preference 

to issue permits with inadequate data. EPA needs to clarify that this is the Agency's preference. Later in the same 

section, EPA states, "Even when a listing is made, however, development of a TMDL is then generally required to 

support issuance of a permit or development of a BMAP." This is not clear. Does EPA believe a TMDL is always 

"required" before a permit can be developed? 

Comment ID 1564-1.001.009 

Author Name: Williams G. 

Organization: Florida Rural Water Association 

Rushing in a new rule without affording the time to identify its consequences is again a certain recipe for disaster or at 

the least a missed opportunity for using the water resource for its best public benefit. 

Regardless of how Florida residents were snared in the environmental controversy that resulted in the proposed EPA 

nutrient discharge limits, the rule unfairly targets and adversely affects the smaller communities. To rush into 

implementation of a comprehensive and extremely costly environmental rule change as a result of a lawsuit from an 

indirectly affected environmental agency does not make sense. These small Florida communities were not even aware 

of this lawsuit or the EPA agreement, yet they will be the ones that will assume the costs of this ruling. 

Small Florida communities are directly and adversely affected by this new rule and compliance with this rule may be 

impossible or at best economically unreasonable. The Florida Department of Environmental Protection has provided 

Florida Rural Water Association with the technical guidance necessary to protect Florida surface water bodies in the 

past. Florida's total maximum daily load (TMDL) program is a nationally recognized, extensive, and scientifically 

defensible program providing increasing levels of environmental protection of the State's surface waters. Unlike 

Florida's TMDLs, which were scientifically developed to protect the unique characteristics of individual water bodies, 

EPA's proposed numeric nutrient criteria were developed to avoid litigation and do not address specific stream 

conditions. 

Comment ID 1615-1.001.002 

Author Name: Dinneen J. 

Organization: Volusia County Public Works 

Volusia County is committed to restoring the health of the St. Johns River, into which the majority of our fresh surface 

waters discharge. This commitment has been demonstrated through the County's active participation in the Phase II 

Municipal Separate Storm Sewer System (MS4) Program administered by the Florida Department of Environmental 

Protection. 

11/19/2010 02:48 PM EST 2-1904
 
Chapter 2 - Comment Documents Background 

Comment ID 1617-1.001.001 

Author Name: Ammerman D. 

Organization: Florida Water Environment Association and WateReuse Florida 

Over the last 30 years municipalities and counties in the State of Florida have invested millions of dollars in the 

implementation of beneficial water reuse projects. In over 470 treatment plants throughout the State domestic 

wastewaters are treated to a level appropriate for use in place of potable water supplies for urban and agricultural 

irrigation, cooling water make-up and numerous other non-potable applications. 

Comment ID 1617-1.001.003 

Author Name: Ammerman D. 

Organization: Florida Water Environment Association and WateReuse Florida 

Based on the results of the 2007 reuse inventory, Florida is now reusing over 660 million gallons per day of reclaimed 

water. This volume exceeds that of any other state, including California, and our reuse projects serve as examples to 

others considering creation of programs to recycle this critical water resource. It is important to note that the State's 

water reuse program also provides a means of recycling nutrients when used as irrigation. 

The Florida Water Environment Association (FWEA) and WateReuse Florida support protecting and restoring our 

surface waters through scientifically derived numeric nutrient criteria (NNC). However, we believe that such standards 

should be established on a case-by-case basis for impaired waters, using sound science, under a reasonable time 

frame, and with economically achievable limits. Moreover, the numeric limits should be established in conjunction with 

Florida's existing Total Maximum Daily Load program and similar nutrient control programs. 

Comment ID 1640.001.002 

Author Name: Pugh T. 

Organization: Source, Inc. 

Photographic Evidence - While seemingly compelling photo evidence of excessive nitrogen and phosphorus in various 

Florida water bodies were presented, action has been taken by State and local authorities to reduce or eliminate further 

recurrences. The management of Lake Okeechobee is under several agencies, State and Federal with conflicting 

management plans. Consequently, water is often released when it should have been better to have been held, leading 

to downstream consequences. 

Comment ID 1641-1.001.003 

11/19/2010 02:48 PM EST 2-1905
 
Chapter 2 - Comment Documents Background 

Author Name: Littrell J. 

Organization: Okaloosa County Water & Sewer System 

Florida certainly is not unique to nutrient enrichment in their surface waters, despite diligent regulatory efforts. OCWS is 

nearing completion of a $73 million program to upgrade its 3 wastewater treatment facilities to provide nutrient removal 

processes. These improvements were not required by the Florida Department of Environmental Protection (FDEP) but 

will provide a tremendous improvement to regional water quality. Okaloosa County favors these types of initiatives over 

the punitive measures EPA is proposing. 

EPA acknowledges that Florida maintains a successful water quality protection program and their proposal states that 

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

point and non point sources and provides the enforceable authority to address nutrient reductions in impaired waters 

upon the establishment of site specific total maximim daily loads (TMDLs)". Despite this statement, the EPA, in its 

proposal, glaringly discounts Florida's efforts to lead the nation in implementing a successful water quality protection 

program; even though Florida is acknowledged to be one of the few states that has committed the necessary resource. 

Instead of bowing to unreasonable external pressures, EPA should stand firm and allow Florida the opportunity to 

develop water quality standards within the framework of the Florida Statutes, and the Florida Administrative Codes. 

Instead, EPA is taking what essentially is an enforcement action against the State of Florida for having done an 

outstanding job. 

Comment ID 1647-1.001.004 

Author Name: Kates K. 

Organization: Florida Fruit and Vegetable Association 

General Discussion 

We all recognize the obvious importance of having clean water, especially here in the state of Florida. It is fundamental 

to the health of our unique ecosystems and to the health and wellbeing of every person fortunate enough to reside in or 

visit this state. Additionally, those who live and work in Florida are not ignorant to the pivotal role that clean water plays 

within our vital tourism and agriculture industries. Florida is, and has been, the forerunner when it comes to acquiring 

water quality data and researching, developing and implementing strategies and techniques to improve and protect our 

abundant lakes, rivers, streams and springs. Florida has accumulated more data describing its water quality than any 

other state in the Union (Obreza et al. 2010). In addition to Florida's multiple government agencies, academic 

institutions and private industries that have helped fund, create and have contributed to the state's vast database on 

water quality, citizen groups, such as LAKEWATCH, have also volunteered their time and efforts to ensure the 

protection of our unique water bodies. Florida LAKEWATCH and its roughly 2000 members currently provide water 

samples for more than 600 lakes, 130 near shore coastal sites, 125 river sites and 5 springs, making the group one of 

the nation's premier volunteer water monitoring programs (Canfield et al. 2009). This group's involvement in water 

quality is an exemplary example of and underscores Florida's diligence and commitment to preserving and protecting 

our lakes and flowing waters. Along with the Florida Department of Environmental Protection (FDEP), the Florida 

Department of Agriculture and Consumer Services (FDACS), and their respective Total Maximum Daily Load (TMDL) 

11/19/2010 02:48 PM EST 2-1906
 
Chapter 2 - Comment Documents Background 

and agricultural Best Management Practices (BMP) programs, it would be an extremely daunting task to argue 

convincingly that the state of Florida and its agricultural community have been complacent or remiss when it comes to 

the protection of our most valuable natural resource, our water. 

Comment ID 1671-3.001.039 

Author Name: Brooks J. 

Organization: Florida Department of Environmental Protection 

The most recent (2007) compliance survey report states, "For the 2007 Survey, no sites scored below 83% in overall 

BMP implementation. Eighty-two percent of the sites scored 100% implementation for all BMPs. The range of 

compliance scores was 83% to 100%, and the statewide average for overall BMP compliance was 98.6%, a decrease 

from 99.1% in 2005. The statewide average compliance for the period of record is 94% and a total of 6,195 individual 

forestry operations have been surveyed since 1981." 

Comment ID 1671-3.001.109 

Author Name: Brooks J. 

Organization: Florida Department of Environmental Protection 

I must be further noted that the State of Florida has a very established and active program to foster implementation 

Best Management Practices in agricultural activities. FDEP has included in our comment submission maps displaying 

the coverage of implemented BMPs across the State and our State adopted BMP manuals. 

Comment ID 1729.001.021 

Author Name: Fugett A. 

Organization: 

25. EPA cannot justify this rule by trying to scare the public into thinking that these rules are being implemented to 

protect the public from red tide events, bladder cancer, or "Blue Baby Syndrome." There has been no evidence that 

current nutrient levels in Florida's water bodies cause any of these incidents. 

Comment ID 1769-1.001.007 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of City of Cocoa 

In fact, the EPA recognized that the challenge of nutrient pollution has been a top priority of the State and that Florida is 

11/19/2010 02:48 PM EST 2-1907
 
Chapter 2 - Comment Documents Background 

one of the few states that has in place a comprehensive framework of accountability that applies to both point and 

nonpoint sources and provides the enforceable authority to address nutrient reductions in impaired waters based upon 

the establishment of site-specific total maximum daily loads.[4] It is well known that the DEP was in the process of 

developing its own set of numeric nutrient criteria prior to the EPA's January 14,2009 determination. In fact, much of the 

science and data collected by the DEP in preparation for setting its own numeric nutrient standards was relied upon by 

EPA in proposing its criteria. 

The Clean Water Act places primary reliance for developing water quality standards on the states.[5]" The Act only 

authorizes the EPA to step in when the states have failed to fulfill their duties under the statute. [6] Florida fulfilled its 

obligations by imposing a narrative nutrient standard that established site-specific numeric criteria on a case-bycase 

basis. The mere fact that this process is time consuming and complex is not a sufficient reason for the EPA's 

determination that the State was not fulfilling its duties under the Act. If anything, the time and attention spent on 

determining the appropriate numeric standards is furthering the Act's purpose of protecting these waters; whereas, the 

EPA's approach of arbitrarily assigning scientifically unsupported standards on a region wide basis fails to achieve the 

Act's goals. 

Moreover, the EPA's solution to the problem created by the fact that most of the State's water bodies will not be able to 

achieve these standards is to request the regulated public, like Cocoa, to apply for site specific alternative criterion 

("SSAC"). This solution results in the same problem that the EPA claims it is solving through the Proposed Rule, which 

is the development of the criteria on a time constraining case-by-case basis. 

[4] Id. 

[5] Sierra Club v. Hankinson, 939 F.Supp. 865 (N.D. Ga. 1996). 

[6] Id. 

Comment ID 1770-1.001.025 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of Plant City 

In fact, the EPA recognized that the challenge of nutrient pollution has been a top priority of the State and that Florida is 

one of the few states that has in place a comprehensive framework of accountability that applies to both point and 

nonpoint sources and provides the enforceable authority to address nutrient reductions in impaired waters based upon 

the establishment of site-specific total maximum daily loads. [4] It is well known that in response to the EPA requirement 

to develop numeric nutrient criteria, the DEP was in the process of developing its own set of numeric nutrient criteria 

prior to the EPA's January 14, 2009 determination. In fact, much of the science and data collected by the DEP in 

preparation for setting its own numeric nutrient standards was relied upon by EPA in proposing its criteria. 

The Clean Water Act places primary reliance for developing water quality standards on the states.[5] The Act only 

authorizes the EPA to step in when the states have failed to fulfill their duties under the statute.[6] Florida fulfilled its 

obligations by imposing a narrative nutrient standard that established site-specific numeric criteria on a case-bycase 

basis. The mere fact that this process is time consuming and complex is not a sufficient reason for the EPA's 

determination that the State was not fulfilling its duties under the Act. If anything, the time and attention spent on 

11/19/2010 02:48 PM EST 2-1908
 
Chapter 2 - Comment Documents Background 

determining the appropriate numeric standards is furthering the Act's purpose of protecting these waters; whereas, the 

EPA's approach of arbitrarily assigning scientifically unsupported standards on a region wide basis fails to achieve the 

Act's goals. 

Moreover, during discussions with EPA at public meetings, the EPA's solution to the problem created by the fact that 

most of the State's water bodies will not be able to achieve these standards is to request the regulated public, like Plant 

City, apply for site specific alternative criterion ("SSAC"). This solution results in the same problem that the EPA claims 

it is solving through the Proposed Ru1e, which is the development of the criteria on a time constraining case-by-case 

basis. 

[4] Id. 

[5] Sierra Club v. Hankinson, 939 F.Supp. 865 (N.D. Ga. 1996). 

[6] Id. 

Comment ID 1771-1.001.032 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of Seminole County 

In fact, the EPA recognized that the challenge of nutrient pollution has been a top priority of the State and that Florida is 

one of the few states that has in place a comprehensive framework of accountability that applies to both point and 

nonpoint sources and provides the enforceable authority to address nutrient reductions in impaired waters based upon 

the establishment of site-specific total maximum daily loads.[4] It is well known that the DEP was in the process of 

developing its own set of numeric nutrient criteria prior to the EPA's January 14, 2009 determination. In fact, much of 

the science and data collected by the DEP in preparation for setting its own numeric nutrient standards was relied upon 

by EPA in proposing its criteria. 

The Clean Water Act places primary reliance for developing water quality standards on the states.[5] The Act only 

authorizes the EPA to step in when the states fail to fulfill their duties under the statute.[6] Florida fulfilled its obligations 

by imposing a narrative nutrient standard that established site-specific numeric criteria on a case-by-case basis. The 

mere fact that this process is time consuming and complex is not a sufficient reason for the EPA's determination that 

the State was not fulfilling its duties under the Act. If anything, the time and attention spent on determining the 

appropriate numeric standards is furthering the Act's purpose of protecting these waters; whereas, the EPA's approach 

of arbitrarily assigning scientifically unsupported standards on a region wide basis fails to achieve the Act's goals. 

Moreover, the EPA's solution to the problem created by the fact that most of the State's water bodies will not be able to 

achieve these standards is to request the regulated public, like Seminole, to apply for site specific alternative criterion 

("SSAC"). This solution results in the same problem that the EPA claims it is solving through the Proposed Rule, which 

is the development of the criteria on a time constraining case-by case basis. 

[4] Id. 

[5] Sierra Club v. Hankinson, 939 F.Supp. 865 (N.D. Ga. 1996). 

11/19/2010 02:48 PM EST 2-1909
 
Chapter 2 - Comment Documents Background 

[6] Id. 

Comment ID 1772-1.001.026 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of City of Titusville 

In fact, the EPA recognized that the challenge of nutrient pollution has been a top priority of the State and that Florida is 

one of the few states that has in place a comprehensive framework of accountability that applies to both point and 

nonpoint sources and provides the enforceable authority to address nutrient reductions in impaired waters based upon 

the establishment of site-specific total maximum daily loads.[4] It is well known that the DEP was in the process of 

developing its own set of numeric nutrient criteria prior to the EPA's January 14, 2009 determination. In fact, much of 

the science and data collected by the DEP in preparation for setting its own numeric nutrient standards was relied upon 

by EPA in proposing its criteria. 

The Clean Water Act places primary reliance for developing water quality standards on the states.[5] The Act only 

authorizes the EPA to step in when the states have failed to fulfill their duties under the statute.[6] Florida fulfilled its 

obligations by imposing a narrative nutrient standard that established site-specific numeric criteria on a case-bycase 

basis. The mere fact that this process is time consuming and complex is not a sufficient reason for the EPA's 

determination that the State was not fulfilling its duties under the Act. If anything, the time and attention spent on 

determining the appropriate numeric standards is furthering the Act's purpose of protecting these waters; whereas, the 

EPA's approach of arbitrarily assigning scientifically unsupported standards on a region wide basis fails to achieve the 

Act's goals. 

Moreover, the EPA's solution to the problem created by the fact that most of the State's water bodies will not be able to 

achieve these standards is to request the regulated public, like Titusville, to apply for site specific alternative criterion 

("SSAC"). This solution results in the same problem that the BPA claims it is solving through the Proposed Rule, which 

is the development of the criteria on a time constraining case-by-case basis. 

[4] Id. 

[5] Sierra Club v. Hankinson, 939 F.Supp. 865 (N.D. Ga. 1996). 

[6] Id. 

Comment ID 1773-1.001.029 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of Orlando Utilities Commission 

In fact, the EPA recognized that the challenge of nutrient pollution has been a top priority of the State and that Florida is 

one of the few states that has in place a comprehensive framework of accountability that applies to both point and 

11/19/2010 02:48 PM EST 2-1910
 
Chapter 2 - Comment Documents Background 

nonpoint sources and provides the enforceable authority to address nutrient reductions in impaired waters based upon 

the establishment of site-specific total maximum daily loads.[4] It is well known that the DEP was in the process of 

developing its own set of numeric nutrient criteria prior to the EPA's January 14, 2009 determination. In fact, much of 

the science and data collected by the DEP in preparation for setting its own numeric nutrient standards was relied upon 

by EPA in proposing its criteria. 

The Clean Water Act places primary reliance for developing water quality standards on the states.[5] The Act only 

authorizes the EPA to step in when the states fail to fulfill their duties under the statute.[6] Florida fulfilled its obligations 

by imposing a narrative nutrient standard that established site-specific numeric criteria on a case-by-case basis. The 

mere fact that this process is time consuming and complex is not a sufficient reason for the EPA's determination that 

the State was not fulfilling its duties under the Act. If anything, the time and attention spent on determining the 

appropriate numeric standards is furthering the Act's purpose of protecting these waters; whereas, the EPA's approach 

of arbitrarily assigning scientifically unsupported standards on a region wide basis fails to achieve the Act's goals. 

Moreover, the EPA's solution to the problem created by the fact that most of the State's water bodies will not be able to 

achieve these standards is to request the regulated public, like OUC, to apply for site specific alternative criterion 

("SSAC"). This solution results in the same problem that the EPA claims it is solving through the Proposed Rule, which 

is the development of the criteria on a time constraining case-by-case basis. 

[4] Id 

[5] Sierra Club v. Hankinson, 939 F.Supp. 865 (N.D. Ga. 1996). 

[6] Id 

Comment ID 1775.001.001 

Author Name: Roddenberry S. 

Organization: 

I appreciate the opportunity to comment on the proposed rule and possible affect on our State.

 1. Florida's Professional, Managerial and Technical DEP people have superior skills, understanding and are 

scientifically focused toward each of the state diverse ecosystems and locations that present challenges for potable 

water and residual treatment processes. The FDEP is the responsible party for safe quality standards that fit our needs 

and protects our environment. Furthermore, it's unique and various ecosystems ought not to be categorized under the 

methodology being considered by the EPA proposed NNC rule for Florida.

 2. Our state already has an excellent water program, including FDEP's proven 

TMDL program, and these programs should not be compromised by proposed rule. 

Comment ID 1777-2.001.003 

11/19/2010 02:48 PM EST 2-1911
 
Chapter 2 - Comment Documents Background 

Author Name: Blanchard B. 

Organization: Florida Department of Transportation 

2. The rules proposed do not outline in sufficient detail how the criteria are to be implemented. Of specific concern is 

how these criteria will be enforced spatially within any waterbody, i.e. will these criteria be an any time any where, endof-pipe standard, or will they be dealt with more on a waterbody wide basis. Historically, under the TMDL program, 

EPAs use of Eco-region specific reference criteria was on a more waterbody wide basis through assessment of nutrient 

concentrations at downstream points within a watershed rather than looking at the concentration of each discharge to 

the watershed segment. The determination of this component of enforcement will have significant implications upon the 

cost of implementation. Given the nature of nutrients as a natural substance rather than a toxin, it is recommended to 

utilize a more waterbody type of approach for implementation. 

Comment ID 1782-1.001.021 

Author Name: Childs D. 

Organization: Hopping Green & Sams, P.A., on behalf of Florida Rural Water Association, Florida Water Environment 

Association Utility Council, and Florida Section of the American Water Works Association Utility Council 

V. Florida's nutrient water quality is not getting worse 

At a December 2009 meeting of the Governor and Cabinet, FDEP Secretary Sole was asked whether assertions that 

nutrient problems are getting worse in Florida were true, and his response was: "I am hugely confident that statement is 

not true."[35] The Secretary is right. Floridians should be proud of the work that their state, local governments, regulated 

industries, and everyday citizens have done to address the quality of Florida's waters. The fruits of Floridians' labors 

can clearly be seen in the following 2008 chart of phosphorus trends in 3,300 of Florida's 

surface waters: [36] 

Original comment letter contains additional information in the chart on page 12 of the pdf regarding phosphorus trends 

over time. See original comment letter. 

In addition to this general declining trend in phosphorus since the early 1980s,[37] substantial efforts in Florida are 

leading to dramatic improvements to the water quality of some of Florida's most prominent surface waters: Lake 

Apopka, Tampa Bay, and Sarasota Bay. 

[35] FDEP Secretary Michael Sole, Florida Governor and Cabinet December 8, 2009 Board Meeting, Official Transcript 

at http://www.myflorida.com/myflorida/cabinet/mart.html. 

[36] FDEP, Integrated Water Quality Assessment for Florida: 2008 305(b) Report and 303(d) List Update, 33 (Oct. 

2008) (notations omitted), available at http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf. 

[37] Secretary Sole represented in December 2009 that the slight uptick in Phosphorus levels observed in the 2004­

2005 timeframe was related to the abnormal hurricane season during those years. In fact, it is likely that the precipitous 

decline in phosphorus pollution in the late 1990's was due at least in part to the severe drought Florida experienced 

11/19/2010 02:48 PM EST 2-1912
 
Chapter 2 - Comment Documents Background 

during this time. This drought concluded abruptly with the 2004 hurricane season, and Florida has returned to more 

"normal" weather patterns. 

Comment ID 1782-1.001.022 

Author Name: Childs D. 

Organization: Hopping Green & Sams, P.A., on behalf of Florida Rural Water Association, Florida Water Environment 

Association Utility Council, and Florida Section of the American Water Works Association Utility Council 

Lake Apopka 

EPA's presentation during public workshops in February included a 1995 picture of Lake Apopka. This picture showed 

Lake Apopka covered in a dense algal bloom, and the clear assertion was that EPA's proposed numeric nutrient 

standards could be justified based in part on the nutrient impairment of Lake Apopka. It is unreasonable to draw any 

relevant conclusions from a 15-year old picture of Lake Apopka. 

As a threshold matter, isolated pictures of Lake Apopka and a handful of other Florida surface waters cannot 

conceivably justify statewide imposition of numeric nutrient criteria. In the words of Dr. Garrett Hardin in his 

groundbreaking 1968 article, The Tragedy of the Commons: 

"One picture is worth a thousand words," said an ancient Chinese; but it may take 10,000 words to validate it. It is as 

tempting to ecologists as it is to reformers in general to try to persuade others by the way of the photographic shortcut. 

But the essence of an argument cannot be photographed: it must be presented rationally - in words.[38] 

The epilogue to EPA's 1995 snapshot of Lake Apopka proves Dr. Hardin's point. The picture predates Florida's TMDL 

program by five years and fails to acknowledge the good work of the St. Johns River Water Management District 

(SJRWMD) and other Florida stakeholders to recover the lake. As SJRWMD recently explained 

Historically, Lake Apopka was clear, densely vegetated, and well known for its sports fishery. SJRWMD is currently 

restoring thousands of acres of muck farms, adjacent to Lake Apopka and the Ocklawaha chain of lakes, to aquatic and 

wetland habitat. These activities include removing internal and external nutrient loads, restoring wetland and river 

habitats, and managing water levels to mimic the natural hydrologic cycle (FDEP 2001). After years of decline, 

SJRWMD restoration efforts appear to be improving water quality in the lake. Basinwide, these efforts appear to be 

paying off, as the Ocklawaha Basin has the highest percentage of improving stream and lake sites when compared to 

the other basins.[39] 

The SJRWMD further reports that phosphorus levels have been reduced by 56% and water clarity has improved by 

54% over earlier high levels.[40] Additionally, recent pictures provided by the SJRWMD paint a very different picture 

than those shown by EPA at its public workshops.[41] 

Instead of misleading Floridians regarding the current state of Lake Apopka, EPA should commend SJRWMD and other 

Florida stakeholders for their extraordinary efforts in recovering this lake. 

11/19/2010 02:48 PM EST 2-1913
 
Chapter 2 - Comment Documents Background 

[38] Garrett Hardin, The Tragedy of the Commons, SCIENCE (Dec. 13, 1968). 

[39] SJRWMD, 2004 Status and Trends in Water Quality at Selected Sites in the St. Johns River Water Management 

District, at 50. 

[40] SJRWMD, Lake Apopka, Water Quality Improvements, North Shore Restoration, available at 

http://sjr.state.fl.us/publications/pdfs/fs_lapopka.pdf. 

[41] Id. 

Comment ID 1782-1.001.024 

Author Name: Childs D. 

Organization: Hopping Green & Sams, P.A., on behalf of Florida Rural Water Association, Florida Water Environment 

Association Utility Council, and Florida Section of the American Water Works Association Utility Council 

Sarasota Bay 

Similar to Tampa Bay, water restoration efforts in Sarasota Bay have resulted in substantial water quality and aquatic 

habitat improvements. The Sarasota Bay Estuary Program provides the following top ten list of program 

accomplishments: 

1. Fifty percent reduction in nitrogen loading inputs to the Bay since 1988 resulting in significant improvements in water 

quality and water clarity 

2. Creation or enhancement of 5,500 acres of seagrasses 

3. Restoration and enhancement of 250 acres of intertidal wetland habitat 

4. Establishment of the first oyster re-colonization project for the Bay 

5. Creation of 20 new ecological parks around the Bay 

6. Manufacture and deployment of 2500 artificial reef modules 

7. Creation and continued promotion of the Gulf Coast Heritage Trail to provide public access to points of historical, 

cultural and environmental interest around the Bay 

8. Establishment of a Special District within the State of Florida to manage Bay resources 

9. Implementation of a comprehensive public education program including PIER, Sarasota Bay Buddies and Florida 

Yards & Neighborhoods 

10. Provide outdoor and ecological education opportunities for approximately 6200 local school children since 2004.[44] 

The Sarasota Bay Estuary Program has accomplished these objectives in spite of the dramatic population growth in the 

Bay Area:[45] 

Original comment letter contains additional information in the figure on page 15 of the pdf regarding Total Nitrogen 

Concentrations in Big Sarasota Bay and population increase. See original comment letter. 

These nutrient trends clearly undercut the EPA's repeated assertions in the proposed rule's preamble that population 

growth necessarily equates to increases in nutrient concentrations in surface waters.[46] 

The water quality enhancements to Sarasota Bay are due in no small part to the efforts of the wastewater treatment 

11/19/2010 02:48 PM EST 2-1914
 
Chapter 2 - Comment Documents Background 

community in the Bay area. Wastewater treatment utilities have invested in advanced wastewater treatment systems, 

reclaimed water beneficial reuse programs, and septic-to-sewer programs.[47] 

[44] Sarasota Bay Estuary Program, SBEP Accomplishments, available at 

http://www.sarasotabay.org/aboutsbepaccomplishments.html. 

[45] Sarasota Bay Estuary Program, State of the Bay 2006, 10 (2006), available at 

http://www.sarasotabay.org/pdfs/StateOfTheBay_06.pdf. 

[46] 75 Fed. Reg. at 4175, 4180, 4181. 

[47] Sarasota Bay Estuary Program, State of the Bay 2006, 11-12 (2006), available at 

http://www.sarasotabay.org/pdfs/StateOfTheBay_06.pdf. 

Comment ID 1782-1.001.025 

Author Name: Childs D. 

Organization: Hopping Green & Sams, P.A., on behalf of Florida Rural Water Association, Florida Water Environment 

Association Utility Council, and Florida Section of the American Water Works Association Utility Council 

VI. EPA cannot justify its federal takeover of Florida's nutrient water quality standards program on periodic red tide 

events 

The preamble to EPA's proposed rule includes ad nauseam citations to red tide events in Florida as justification for its 

proposed numeric nutrient criteria; however, EPA fails to acknowledge that the prevailing scientific opinion is that 

onshore activities in Florida do not cause such events. 

"Red tide" is the common name for high concentrations of the harmful marine alga Karenia brevis, one of many types of 

Harmful Algal Blooms (HABs).[48] It is sometimes assumed that red tide events are anthropogenic water nutrient 

loadings, which lead to eutrophication.[49] Perceptions of increased bloom frequency are partially attributable to 

increased scientific awareness and detection capabilities, which have increased significantly in recent years.[50] 

It is well known that in many instances, HABs are caused by natural factors such as circulation, upwelling relaxation, 

and river flow.[51] These are substantially implicated with red tides in Florida, where a number of natural factors interact 

to cause blooms of Karenia brevis.[52] Of course Karenia blooms can be natural, as evidenced by reports of Spanish 

explorers in the 1500s, (and as documented more carefully as early as the 1840s).[53] 

There is little consensus on the exact mechanisms causing Karenia blooms. The theory with the most support has been 

developed at length by Stumpf et al. They found that Karenia blooms develop even when the nutrients on the west 

Florida shelf are low.[54] Summer winds push water and nutrients from the Mississippi River plume onto the west 

Florida shelf, where fall upwelling pushes these concentrations onshore, resulting in blooms.[55] Thermal fronts in the 

winter can reintensify the blooms.[56] Stumpf et al. find that the nutrient loads found in some of these studies from 

Florida rivers are an unlikely source of growth of Karenia blooms.[57] Even at the maximum nutrient loads these rivers 

might provide, currents probably disperse them too quickly to cause blooms.[58] These loads are quite small and short 

11/19/2010 02:48 PM EST 2-1915
 
Chapter 2 - Comment Documents Background 

in duration compared to the nutrients from the Mississippi River.[59] 

No other study has yet been able to integrate available data into a cognizable theory. Researchers have not been able 

to otherwise identify nutrient sources adequate to support high-density growth of the Karenia species.[60] This explains 

why Karenia blooms are less frequent off the Texas coast -- because Texas rarely has upwelling -- even though nutrient 

loads are often higher there.[61] This conclusion also is considered more satisfactory than previous natural cause 

theories, such as that dust deposition indirectly causes Karenia blooms is inadequate to completely explain historic 

blooms.[62] 

Even the studies that have concluded that there could be a relationship between nutrient-rich runoff and Karenia 

blooms recognized the limitations of such conclusions. For example, Vargo et al. found that "a combination of sources 

is required to maintain populations...," and "[i]dentifying nutrient sources, primarily nitrogen (N) and phosphorus (P), 

sufficient to support high biomass blooms ... has remained problematic."[63] In another study, Olascoaga et al. 

summarized the various theories of Karenia bloom development and found two nearshore nutrient sources near the 

bloom they studied, which "were inferred" to be its cause.[64] However, they admitted that current technology makes 

"the early stage of the development of HABs" quite difficult to detect, "which makes it quite difficult to test [any of these] 

theories."[65] 

EPA has already acknowledged, in other contexts, the state of the science on this issue. It sponsored, and its scientist 

participated in, a "roundtable discussion to develop a consensus on the relationship between eutrophication and 

[HABs]."[66] The consensus recognized the complex interactions causing HABs and the need for individualized study of 

the many organisms causing HABs.[67] There were few comments in this consensus concerning red tides in Florida, 

but the comments that were made are revealing. One pointed to evidence that Karenia blooms have natural sources. 

Another pointed to the very unusual circumstances leading to a Synechoccus blue-green algae blooms in Florida Bay, 

none of which were attributable to normal runoff.[68] 

This scientific literature demonstrates that EPA cannot justify its federal takeover of Florida's nutrient water quality 

program based on red tide events. Simply stated, there is no reasonable expectation that numeric nutrient criteria are 

necessary or appropriate to eliminate or reduce red tide events in Florida. 

[48] R.H. Pierce & M.S. Henry, Harmful Algal Toxins of the Florida Red Tide (Karenia brevis): Natural Chemical 

Stressors in South Florida Coastal Ecosystems, 17 Ecotoxicology 623, 623 (2008). 

[49] Kevin G. Sellner et al., Harmful Algal Blooms: Causes, Impacts & Detection, 30 J. Ind. Microbiology & 

Biotechnology 383, 383 (2003). See, e.g., Pierce & Henry at 629 (speculating that "human activities" generate the 

nutrients necessary for Karenia blooms, but providing no evidence, in a study that focused on the effects of the blooms, 

rather than their causes). 

[50] Donald M. Anderson, Approaches to Monitoring, Control, and Management of Harmful Algal Blooms, 52 Ocean & 

Coastal Mgmt. 342, 343 (2009).. 

[51] Id. 

[52] Sellner et al. at 387-88. 

[53] Pierce & Henry at 623-24 (citing numerous scientific and historical sources). See also Richard P. Stumpf, 

Hydrodynamic Accumulation of Karenia off the West Coast of Florida, 28 Continental Shelf Research 189, 203 (2008) 

11/19/2010 02:48 PM EST 2-1916
 
Chapter 2 - Comment Documents Background 

(citing P.M. d'Anghiera, De Orbe Novo, The Eight Decades of Peter Martyer D'Anghera (1912). 

[54] Id. at 189. 

[55] Id. 

[56] Id. 

[57] Id. at 209. 

[58] Id. 

[59] Id. 

[60] Id. at 190, 207. 

[61] Id. at 191, 209. 

[62] Id. at 209-10 (discussing theory posited in J.J. Walsh, Red Tides in the Gulf of Mexico: Where, When, and Why?, 

111 J. Geophysical Research C11003 (2006)). 

[63] Id (recognizing that Karenia blooms occur frequently and persist for months on the West Florida Shelf, which is 

oligotrophic). 

[64] M.J. Olascoaga et al., Tracing the Early Development of Harmful Algal Blooms on the West Florida Shelf with the 

Aid of Lagrangian Coherian Structures, 113 J. Geophysical Res. C12014 (2008). 

[65] Id. at C12016. 

[66] J. Heisler et al., Eutrophication and Harmful Algal Blooms: A Scientific Consensus, 8 Harmful Algae 3, 3 (2008). 

[67] See id. at 3-8. 

[68] Id. 

Comment ID 1784-1.001.034 

Author Name: Cunningham T. 

Organization: Gainesville Regional Utilities 

XII. Conclusions and Summary: FDEP currently regulates Utilities in the State of Florida through the NPDES and TMDL 

programs. These programs require point source discharges to meet stringent rules that are protective of streams, lakes, 

and downstream waters. These programs are site specific and based on sound science to protect the environment. 

Comment ID 1786-1.001.003 

Author Name: Kirk K. 

Organization: National Association of Clean Water Agencies 

The developments in Florida are particularly troubling given the scope and level of sophistication of the program that is 

already in place there. Florida is an authorized state under the Clean Water Act (CWA) and has adopted narrative water 

quality standards for nutrients that have been approved by EPA. Though perhaps not at a pace that satisfied all 

stakeholders, the Florida Department of Environmental Protection (FDEP) had made tremendous progress in 

developing and implementing total maximum daily loads (TMDLs), with meaningful controls for point and nonpoint 

sources, based on its narrative standards and using site-specific numeric targets. FDEP had also initiated an effort to 

develop numeric nutrient criteria for the state. 

11/19/2010 02:48 PM EST 2-1917
 
Chapter 2 - Comment Documents Background 

Comment ID 1787-1.001.004 

Author Name: Spratt J. 

Organization: Florida Nursery, Growers and Landscape Association 

We all recognize the obvious importance of having clean water, especially here in the state of Florida. It is fundamental 

to the health of our unique ecosystems and to the health and wellbeing of every person fortunate enough to reside in or 

visit this state. Additionally, those who live and work in Florida are not ignorant to the pivotal role clean water plays in 

our economic stability, and standard of life we expect for this and future generations. Florida continues to be the 

forerunner when it comes to acquiring water quality data and researching, developing and implementing strategies and 

techniques to improve and protect our abundant lakes, rivers, streams and springs. Florida has accumulated more data 

describing its water quality than any other state in the Union. In addition, the Florida Department of Environmental 

Protection (FDEP), the Florida Department of Agriculture and Consumer Services (FDACS), and their respective Total 

Maximum Daily Load (TMDL) and agricultural Best Management Practices (BMP) programs underscore the extent to 

which state of Florida and its agricultural community continue to provide the gold-standard for the protection of our most 

valuable natural resource, our water. 

Comment ID 1790-1.001.002 

Author Name: Rota M. 

Organization: Gulf Restoration Network 

1. The development of numeric nutrient criteria is warranted and necessary in Florida's waters. 

Nutrient pollution is a major pollutant in Florida's waters, from springs to rivers to lakes to estuaries. While Florida has a 

narrative standard, murky springs, green rivers, and polluted estuaries demonstrate the fact that narrative standards 

alone are not enough to stem the tide of nutrient pollution in Florida's waters. In fact nutrient pollution is a major 

pollution issue throughout the Gulf South. 

Comment ID 1796-1.001.003 

Author Name: Mizrahi C. 

Organization: National Potato Council 

We believe that the State of Florida has been a leader in protecting their water resources. The state has spent 

significant time and resources over the past decades to monitor and research the health of its waters and gain an 

intimate understanding of the diverse ecosystem it contains. Both the Florida Department of Environmental Protection's 

program to monitor and manage Total Maximum Daily Load (TMDL) and the Florida Department of Agriculture's Best 

Management Practices (BMP) program are aggressive, effective measure to improve water quality. Most importantly 

11/19/2010 02:48 PM EST 2-1918
 
Chapter 2 - Comment Documents Background 

these programs are implemented based on assessments of local conditions and the input of local growers who are the 

actual stewards of the resource. 

The FDEP has conducted site-specific studies in order to best preserve that diverse ecosystem rather than applying a 

broad standard that does not take into account the existence of phenomena such as naturally oligotrophic lakes. 

Comment ID 1797-1.001.002 

Author Name: Braswell S. 

Organization: Florida Farm Bureau 

Over the past decade, Floridians have spent over 20 million dollars evaluating water quality and putting in place 

scientifically reviewed practices that are effective in improving the state's surface waters. Florida leads the nation in the 

amount of water quality data collected and protections adopted to preserve or enhance the quality of our state's waters. 

The agricultural community has been a key player in the state's evaluation process, encouraging the development and 

implementation of Best Management Practices (BMP) which have made positive impacts on Florida's water quality. 

Agricultural producers need clean water and support a science-based effort to further protect Florida's waters. 

Comment ID 1797-1.001.006 

Author Name: Braswell S. 

Organization: Florida Farm Bureau 

Florida Farm Bureau Federation has several concerns with the EPA's proposed numeric nutrient criteria for the State of 

Florida. 

I.� Florida's Significant Efforts to Date to Preserve and Enhance the Quality of the State's Waters 

In the proposed rule, the EPA has failed to recognize previous efforts in Florida to reduce nutrient impairment through 

the successful implementation of the Impaired Waters Rule (62-303, Florida Administrative Code), the Total Maximum 

Daily Load (TMDL) program, the BMP program, and Basin Management Action Plans (BMAP). 

a.� Background Information on Florida's Total Maximum Daily Load (TMDL) Program and the role of Agriculture 

Florida's TMDL program began in 1999 with the Legislature's passage of the Florida Watershed Restoration Act.[1] 

Under Section 303(d) of the Federal Clean Water Act[2] (CWA) and Florida Statutes, TMDLs must be developed for all 

waters that are not meeting their designated uses and are defined as "impaired waters." 

Florida's TMDL program is site-specific and transparent, allowing for stakeholder participation. The TMDL process has 

been successful and continues to apply the best available science. The pace at which the TMDL program has 

proceeded has been criticized - however, critics fail to recognize that it will take time to correct what took years to 

11/19/2010 02:48 PM EST 2-1919
 
Chapter 2 - Comment Documents Background 

create. 

As part of the state's TMDL program, the Florida Department of Agriculture and Consumer Services (FDACS) may 

develop and adopt by rule interim measures necessary to achieve the level of pollution reduction established by the 

Florida Department of Environmental Protection (FDEP) for agricultural pollutant sources.[3] Where BMPs are adopted 

by rule, the FDEP shall verify, at representative sites, their effectiveness in achieving TMDL pollutant reduction 

allocations. The FDEP shall use best professional judgment in making the initial verification that BMPs are reasonably 

expected to be effective, and shall notify the FDACS of initial verification prior to the rule adoption, as applicable. The 

adopted measures may be implemented by those responsible for agricultural pollutant sources, with the assistance of 

the FDEP, the FDACS, and the state's water management districts. Implementation of rule-adopted BMPs or other 

measures initially verified by the FDEP to be effective, or verified to be effective by monitoring at representative sites, 

provides a presumption of compliance with state water quality standards for those pollutants addressed by the 

practices.[4] 

b.� Background Information on Florida's Agricultural Best Management Practices (BMP) Program 

Florida's agricultural BMP program has been a national leader. Agricultural BMPs are practical, cost-effective actions 

that agricultural producers can take to reduce the amount of pesticides, fertilizer, animal waste, and other pollutants 

entering our water resources. BMPs are designed to benefit water quality while maintaining or even enhancing 

agricultural production. Implementing BMPs benefits both the farmer and the environment, and demonstrates 

agriculture's commitment to water resource protection.[5] 

The FDACS, in conjunction with the University of Florida/Institute of Food and Agricultural Sciences (UF/IFAS), 

develops BMPs with the involvement of stakeholders and the approval of the FDEP. Florida law provides for farmers to 

reduce their impacts to water quality through the voluntary implementation of BMPs adopted by the FDACS. Agricultural 

BMPs are required by law in areas of the state where the FDEP develops a BMAP that includes agriculture. Agricultural 

BMPs are also required by law in the Lake Okeechobee Watershed.[6] 

Agricultural BMPs are implemented by proactive farmers who submit to the FDACS a Notice of Intent (NOI) to 

implement specific BMPs contained in an FDACS BMP Manual[7] or rule. In certain areas of the state, farmers develop 

site-specific conservation plans that contain the appropriate BMPs. 

Several entities provide technical and educational assistance to farmers implementing BMPs, including but not limited 

to: the FDACS Office of Agricultural Water Policy, the UF/IFAS, the Water Management Districts, the Soil and Water 

Conservation Districts, and the Resource Conservation and Development Councils. 

Steps are being taken to develop a "Quality Assurance" program which will allow the FDACS to follow up with farmers 

statewide and ensure that BMPs are being implemented properly. In addition, the FDACS Office of Agricultural Water 

Policy, the FDEP, the water management districts, and the UF/IFAS have been collecting data to monitor the 

effectiveness of BMPs in protecting water quality. 

The FDACS Office of Agricultural Water Policy has spent approximately $55 million on cost-share for agricultural 

operations statewide since the Watershed Restoration Act and Lake Okeechobee Protection Act programs began in 

1999 and 2000 respectively. Following, is a chart that includes a breakdown of the total enrolled acres. As of January 

11/19/2010 02:48 PM EST 2-1920
 
Chapter 2 - Comment Documents Background 

2010, over 1.9 million acres of agricultural land has been enrolled in an agricultural BMP. It is estimated that 

approximately 1.4 million acres of the total acreage is irrigated. 

Original comment letter contains additional information in the table on page 4 of the pdf titled Total Acres Enrolled in the 

FDACS Office of Agricultural Water Policy Best Management Practices, as of January 2010 from Florida Farm Bureau 

Federation. See original comment letter. 

c. Background Information on Florida's Basin Management Action Plans (BMAP) and the role of Agriculture 

Florida has also implemented BMAPs throughout the state. When a BMAP is established, non-point source agricultural 

dischargers included in a BMAP must either implement appropriate BMPs established by the FDACS, or conduct water 

quality monitoring prescribed by the FDEP or a water management district.[8] Failure to implement BMPs or prescribed 

water quality monitoring may subject the nonpoint source discharger to FDEP or water management district 

enforcement.[9] 

[1] Fla. Stat. Ch. 403.067 (2009) 

[2] Federal Water Pollution Control Act, 33 U.S.C. § 1313(d) (2002). 

[3] Fla. Stat. Ch. 403.067(7)(c) (2009) 

[4] Id. 

[5] http://www.floridaagwaterpolicy.com/AtaGlance.html 

[6] Id. 

[7] To view FDACS BMP Manuals, visit: http://www.floridaagwaterpolicy.com/BestManagementPractices.html. 

[8] Fla. Stat. Ch. 404.067(7)(b) (2009). 

[9] Id. 

Comment ID 1797-1.001.024 

Author Name: Braswell S. 

Organization: Florida Farm Bureau 

Prior to the EPA's proposed numeric nutrient criteria, regulation of nutrient loads was generally made with site-specific 

data analyses or mechanistic modeling.[48] 

[48] Id. at 1. 

Comment ID 1834-1.001.003 

Author Name: Bronson C. 

Organization: Florida Department of Agriculture and Consumer Services 

11/19/2010 02:48 PM EST 2-1921
 
Chapter 2 - Comment Documents Background 

From reports I have received about the public hearings on this proposal, EPA officials that conducted the meetings 

expressed surprise about the level of concern raised by Florida agricultural producers. It appears that the basis for this 

lack of appreciation by EPA of the magnitude of the impact of the proposal originates in the limitations of the Federal 

Clean Water Act regulatory authority with respect to agricultural runoff, limitations that do not exist under Florida's 

comprehensive statutory program for implementing the Total Maximum Daily Load (TMDL) program. In fact, under this 

program agricultural producers have demonstrated their commitment to water quality protection by embracing Florida's 

science based agricultural Best Management Practices, which are adopted by FDACS rule, and developed in 

cooperation with FDEP and the University of Florida/Institute for Food and Agricultural Science. 

Comment ID 1834-2.001.004 

Author Name: Bronson C. 

Organization: Florida Department of Agriculture and Consumer Services 

EPA cited a concern with nitrate in wells (75FR4179). The statement specifically cites the Central Florida Ridge as the 

location of the vast majority (519 of 584) of wells in the state that were found to have nitrates in excess of the 10 mg/l 

drinking water standard. Since those violations were detected, all of the farms in the Ridge have implemented Best 

Management Practices. Recently, FDEP has confirmed that their monitoring data show that there have been no 

drinking water violations in the area[2]. In the Lake Okeechobee watershed, a concerted effort has been made to 

implement BMPs with the result that of the 1.75 million acres in agriculture in the watershed, 1.2 million acres are now 

under BMPs. As noted in the FDACS economic analysis the proposed new standards will require the implementation of 

additional Typical BMPs as well as on-farm water treatment and retention facilities. With regard to the expansion of 

"canals and ditches," agricultural water management systems are required to obtain permits from the water 

management districts. These permits regulate both the quantity and quality of water leaving a farm. 

Based on the assertion of rapid population growth and agricultural expansion, EPA states that nutrient overenrichment 

of waters in the state "is likely to worsen," despite the recognition that Florida has "a proactive and innovative program 

to address nutrient pollution." The preamble cites FDEP's 2008 Integrated Water Quality Assessment for Florida in 

support of its assertion, but fai Is to recognize that the same report shows that since the mid- 1980s, there has been a 

more than fifty percent decrease in phosphorus levels in state waters. 

[2] Letter from DEP regarding Central Florida Ridge 

Comment ID 1837-1.001.017 

Author Name: Brom M. 

Organization: PCS Administration, Inc., and White Springs Agricultural Chemicals, Inc. doing business as PCS Phosphate- White 

Springs 

Completion of the work described in this letter and in the comments by others is not likely to be properly accomplished 

by the October 2010 scheduled promulgation of the rule. The Agency should consider extending that schedule to allow 

11/19/2010 02:48 PM EST 2-1922
 
Chapter 2 - Comment Documents Background 

sufficient time for that work. 

PotashCorp appreciates the opportunity to comment on this proposal. 

Comment ID 1878-1.001.003 

Author Name: Reese T. 

Organization: Attorney At Law et al. 

I. General Comments 

The Clean Water Act (CWA) requires Florida's water quality standards to not only protect designated uses, the 

standards must also provide anti-degradation protection against further degradation. 

Over the past 7 years EPA has unreasonably delayed its duty to promulgate numeric nutrient standards, and to revise 

Florida's antidegradation policy and implementation criteria to protect Florida's Outstanding Florida Waters (OFWs)[1] 

and "existing uses" from the degradation that is currently occurring,[2] degradation which the CWA mandates be 

prohibited by the CWA's antidegradation criteria.[3] This unreasonable EPA delay has occurred even though EPA's 

2003 Section 303(d) list of impaired waters in Florida has documented the nutrient related degradation of OFWs. EPA 

must respond to this degradation of Florida's waters in violation of the CWA and Florida's water quality standards 

(WQS) by adopting numeric nutrient standards, promulgating revised antidegradation implementation criteria for 

Florida, and pursuant to Section 303(d) of the CWA assessing and identifying waters which have been degraded in 

violation of Florida's water quality standards. Florida's current NPDES MS4 permitting program which implements 

Florida's WQSs, including Florida's antidegradation standards, fails to contain effluent limitations which protect OFWs 

and existing uses of shellfish harvesting from degradation, and fall to properly protect and restore Section 303(d) 

impaired waters. EPA's numeric nutrient standards cannot rely upon Florida's current NPDES MS4 as part of the 

restoration criteria and process for implementing EPA's proposed numeric nutrient standards. 

These deficiencies in Florida's WQSs and implementation program[4] must be assessed in EPA's proposed numeric 

nutrient standard. Specifically, Florida's argument that existing Dissolved Oxygen (D.O.) levels are natural is in most 

situations in Florida factually inaccurate. Current Florida D.O. conditions are reflecting illegal degradation of Florida's 

water quality conditions by anthropocentic activities since Florida's antidegradation policies went into effect in March of 

1979.[5] EPA's numeric nutrient standard must not be based upon such degradation that has occurred in violation of 

Florida's antidegradation policies which the CWA required Florida to adopt. We contend the CWA does not allow any 

degradation of Florida's water quality and EPA's proposed numeric nutrient standard must be based upon protecting the 

undegraded Florida water quality in 1975 and 1979, not 2010 degraded conditions.[6] 

[1] Florida's OFW antidegradation WQS adopted the existing ambient water quality for each parameter in the OFW. 

[2] The ongoing degradation of OFW is unquestionably established by existing Florida water quality information. 

[3] The CWA provides that state WQSs must include an antidegradation policy, which is a "policy requiring state 

standards be sufficient to maintain existing beneficial uses of navigable waters, preventing further degradation." PUD 

11/19/2010 02:48 PM EST 2-1923
 
Chapter 2 - Comment Documents Background 

No. 1 of Jefferson County v. Wash. Dept. of Ecology, 511 U.S. 700, 705-706 (1994). See, Kentucky Waterways Alliance 

v. Johnson, 540 F.3d 466, 471 (6th Cir. 2008); ManaSota-88 v. Tidwell , 896 F.2d 1318, 1320 (11th Cir. 1986). The 

EPA regulations implementing the CWA require each state to "develop and adopt a statewide antidegradation policy 

and identify the methods for implementing such policy." 40 C.F.R. 131.12(a). 

[4] See, Davis v. Jackson, Middle District of Florida Case No. 8:09-cv-1070-T17-TBM. 

[5] Florida's antidegradation policies for Tier I existing uses dates back to November 28, 1975. 

[6] The CWA unquestionably prohibit states from allowing stormwater discharges by general permit exception to cause 

more than a de minimis degradation of Tier II existing ambient water quality. Kentucky Waterways Alliance, Supra at 

481-88, 491-93, and fn 12 to Judge Clay's opinion. We agree with Judge Clay and "question whether such de minimus 

exceptions should even be allowed under Tier II." See, 40 C.F.R. Section 131.12(a)(2). Florida's OFWs are Tier II plus 

(Tier 2.5) antidegradation WQS standards. 

Comment ID 1878-1.001.004 

Author Name: Reese T. 

Organization: Attorney At Law et al. 

CWA Antidegradation Requirements 

The CWA antidegradation policy has its roots in the Water Quality Act of 1965, and the 1987 amendment to the CWA 

expounded upon the CWA's antidegradation policy by mandating that WQSs must include an antidegradation policy, 

which is a "policy requiring state standards be sufficient to maintain existing beneficial uses of navigable waters, 

preventing further degradation."(e.s.). PUD No. 1, Supra at 705-706. See also, ManaSota-88, Supra at 1320. 

Antidegradation policy is a major and critical element of a state's water WQSs. See, Raymond Profitt Foundation, Supra 

at 1091. 

EPA regulations implementing the CWA require each state to "develop and adopt a statewide antidegradation policy 

and identify the methods for implementing such policy." See, 40 C.F.R. 131.12(a). The EPA regulations provide that 

"the antidegradation policy and implementation methods [of states] shall at a minimum be consistent with" federal 

antidegradation regulations in 40 C.F.R. 131.12 which consists of three levels of water quality protection: Tier I, Tier II, 

and Tier III." See, 40 C.F.R. 131.12; Kentucky Waterways Alliance, Supra at 471. The state antidegradation policy must 

"be sufficient to maintain existing beneficial uses of navigable waters, preventing further degradation." (e.s.). PUD No. 

1, Supra at 705-706. Section 1313(d)(4)(B) mandates that WQSs, effluent limitations, and permitting standards for 

discharges must be consistent with the antidegradation policy established by Section 1313. See, Kentucky Waterways 

Alliance, Supra at 483. 

Florida's antidegradation policy is set forth in Fla.Admin.Code R. 62-4.242 and 62-302.700. The major component of 

Florida's antidegradation policy is the category of OFW water bodies. The designation of a water body as an OFW in 

Fla.Admin.Code R. 62-302.700(9) is in addition to the water body's designated use classification as either a Class I, 

Class II, or Class III water body and provides the additional water quality protect preventing further degradation. See, 

11/19/2010 02:48 PM EST 2-1924
 
Chapter 2 - Comment Documents Background 

Fla.Admin.Code R. 62-302.400(10). 

Fla.Admin.Code R. 62-4.242(2)(a)(2)(b) states that "[t]he existing ambient water quality within the Outstanding Florida 

Water will not be lowered as a result of the proposed activity or discharge....". (e.s.). Florida's regulations define the 

term OFW "existing ambient water quality" in Fla.Admin.Code R. 62-4.242(2)( c) as follows. 

"( c) For purposes of this section the term ‘existing ambient water quality' shall mean (based upon the best scientific 

information available) the better water quality of either (1) that which could be expected to have existed for the baseline 

year of an Outstanding Florida Water designation or (2) that which existed during the year prior to the date of a permit 

application. It shall include daily, seasonal, and other cyclic fluctuations, taking into consideration the effects of 

allowable discharges for which Department permits were issued or applications for such permits were filed and 

complete on the effective date of designation." (e.s.). 

Florida's OFW WQS provides that "[n]o degradation of water quality, other than that allowed in Rule 62-4.242(2) and 

(3), F.A.C, is permitted in [OFWs] ....not withstanding any other Department rules that allow water quality lowering." 

Fla.Admin.Code R. 62-302.700(1). Florida's IWR and Florida's NPDES MS4 permitting criteria (a part of Florida's 

antidegradation implementation methodology) are currently illegally allowing the degradation of the water quality of 

OFWs. See, footnote 6 above. 

EPA's proposed numeric nutrient standard cannot use such Florida WQS implementation as part of the numeric nutrient 

standard. EPA's proposed restoration provisions of the proposed numeric nutrient standard must: (1) require all 

variances issued for an NPDES permittee demonstrate reasonable progress towards attaining standards based upon 

Florida's antidegradation policies and include a plan for doing so, and a requirement those milestones be incorporated 

as conditions in the NPDES permit and a method for reopening permits with variances if they are administratively 

extended; (2) an explicit reference to the requirement to meet the antidegradation policy; and (3) an absolute prohibition 

against any new discharges or recommencing dischargers or existing dischargers for load increases. 

Comment ID 1893.001.001 

Author Name: Waite S. 

Organization: 

It's been 38 years since the clean water act was enacted. It is clear Florida's narrative standards, the do it yourself 

rules, were a decided flop. Too bad it took a lawsuit to finally make the E.P.A. turn the corner and implement the 

numeric nutrient standards. The pollution problems are horrendous. 

Comment ID 1919-1.001.006 

Author Name: Standridge K. 

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

11/19/2010 02:48 PM EST 2-1925
 
Chapter 2 - Comment Documents Background 

3. Contrary to FDEP's claims the State of Florida has not successfully regulated away nutrient pollution. 

Earthjustice also wishes to address claims made by FDEP and its opponents in the lawsuit that a trend chart of total 

phosphorus concentrations in Florida waters on page x and page 34 (and described on page ix) of FDEP's 2008 

Integrated Report proves that Florida has successfully regulated away its nutrient problem. That chart shows a dramatic 

increase in phosphorus pollution in the early eighties, a dramatic decrease in phosphorus pollution until 2000, and a rise 

in phosphorus pollution since 2000. As explained in the report, that chart represents the annual averages of all surface 

water quality stations found in Florida STORET which were first averaged by waterbody-approximately 2,200 streams, 

lakes, and estuaries for each year. However, as set forth below, Florida did not have a water quality monitoring system 

that allowed for statistically accurate mapping of trends until Florida's Status Network monitoring system went into place 

in 2004. 

A short history of Florida's water quality monitoring is required. Shortly after passage of the Clean Water Act in 1972, 

Florida became very active in monitoring water quality. However, by the early 1980s, FDEP had abandoned its 

monitoring program. Some parts of the abandoned program (i.e., specific monitoring stations) were picked up by local 

and regional authorities, and the two authorities who did the most in this regard were Hillsborough County and the 

Suwannee River Water Management District, the two areas of the state with very high naturally occurring phosphate 

concentrations in surface waters.[12] As a result of these changes, prior to the mid-1990's only 20-25% of state waters 

were assessed for EPA's 305(b) report and those that were assessed were heavily weighted to stations in the state's 

two phosphate regions.[13] It was not until 2004, when Florida adopted its Status Network at the urging of EPA, that 

FDEP had the ability to "to answer questions of statewide concern, for example, ‘what are the concentrations of 

nutrients in Florida's surface waters?' and ‘are these concentrations changing over time?'" See FDEP 2008 Integrated 

Report at p. 123. Therefore, the total phosphorus "trend" graph in FDEP's 2008 Integrated Report, which is based on 

limited and highly skewed data, is not a reliable indicator of either statewide total phosphorus surface water 

concentrations or of a statewide "trend" of those concentrations over time. 

[12] Appendix 9: Section on State Monitoring Programs for FDEP’s 1996 305(b) Report; Appendix 10: Map of FDEP 

Map of Statewide Phosphorus Concentrations from FDEP’s TSD (2009). 

[13] Appendix 11: FDEP Powerpoint on Status Network Development. 

Comment ID 1919-1.001.015 

Author Name: Standridge K. 

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

Florida's TMDL statute which is widely touted by opponents of the rule as the solution to the nutrient problem (rather 

than development of numeric criteria) is similarly ineffective. As the official IFAS publication states, under the TMDL 

statute, farmers that implement BMPs developed by the Department of Agriculture receive a presumption of water 

quality compliance with no monitoring requirement. The adoption of numeric nutrient TMDLs will not change that fact. 

Furthermore, while Florida law requires the development of TMDLs, nothing requires the state to actually implement 

them. 

11/19/2010 02:48 PM EST 2-1926
 
Chapter 2 - Comment Documents Background 

A good example is the proposed TMDL for the North Prong of the Alafia River.[37] The phosphorus levels in the point 

source discharges from phosphate companies and sewage utilities can be as high as 20,000 parts per billion [38] and 

the phosphorus levels in the River itself are as high as 9,700 parts per billion "ppb" (9.7 mg/L).[39] The proposed TP 

concentration in the TMDL is 415 ppb. [40] In the implementation section, the proposed TMDL discloses that the FDEP 

may or may not implement a Basin Management Plan to reach the TMDL, that implementation may be postponed 

indefinitely, and that any implementation scheme is dependent on working out an arrangement with the "stakeholders."[41] This is not the equivalent of a numeric water quality standard that will be an enforceable permit limit in a 

state-issued NPDES permit. 

[37] Appendix 26: TMDL for the North Prong of the Alafia River. 

[38] The document expresses the concentration as 20 milligrams per liter, which equals 20,000 micrograms per liter or 

20,000 parts per billion. 

[39] Appendix 25 at p.17, 32. 

[40] Id. at p.35. 

[41] Id. at p. 37-38. 

Comment ID 1930.001.005 

Author Name: Congdon L. 

Organization: 

Your work is especially important because right now the Florida legislature is considering bills that have sections that do 

not let localities set fertilizer content standards higher than the state limit that is more concerned about turf quality than 

water quality. I understand that your requirements would prevail over the state ones. Last year 54 cities and Sarasota 

County on the southwest coast of Florida forbade nitrogen and phosphorus fertilizer being put on lawns and landscapes 

from June 1 to Sept. 30. WE HAD NO TROUBLE WITH RED TIDE LAST YEAR since the nitrogen and phosphorus that 

feed the blue algae which the red algae (karena brevis) eat were greatly reduced. I think they had a little trouble south 

of Ft. Myers which had no fertilizer ordinances. Those ordinances save our health and our economy. If the state forbids 

them, we have only you in the federal government to turn to for help. Please don't let us down. 

Comment ID 2029.001.002 

Author Name: Coe J. 

Organization: 

Historically we can see the lack of progress. In 1992 the Florida Department of Environmental Protection released 

desist and assist order to all Mobile pressure washer operations while they reviewed the Clean Water Act and ways to 

protect the water of the State. The order was dropped pending the release of Best Management Practices. In 2003 The 

FDEP released Program guidance Memo OWM-03-02 (appendix 1) dated July 18th 2003 on pages 10 and 12 that 

clearly state pollutants from truck washing have an effect on waters of the state. In July of 2008 I met with several 

member of FDEP in Tallahassee at their office (appendix 2) as can be seen by the sign in sheet included. At that time 

11/19/2010 02:48 PM EST 2-1927
 
 

Chapter 2 - Comment Documents Background 

BMP'S had not been completed or released some 16 years after the fact. At the same time as the meeting in 

Tallahassee I forwarded a copy of the documents I took with me to the meeting and forwarded a copy to the USEPA. I 

received a letter from Cesar A. Zapata Chief Water Programs Enforcement Section (appendix 3) that made clear of the 

plan of action. lllicit discharges are taking place and appropriate actions should be taken. In 2009 I made several 

complaints to the state hot line and investigations were completed by the Hillsborough county Environmental Protection 

Commission (HCEPC) with no enforcement actions taken based on deminus impact and BPJ. However we continue to 

have closures of public waters because of pollution. In 2010 we are discussing the numeric water quality standards 

under the consent order when if the regulations of the Clean Water Act had been followed the entire time we would not 

have a need for the new requirements of the order. 

Comment ID 2030-1.001.010 

Author Name: Long A. 

Organization: 

The Suwannee system has been plagued with water quality problems for many years. However, neither Florida Policy 

Makers nor Florida's Department of Environmental Protection have taken substantive action to halt the decline-despite 

the Clean Water Act. Even now, the Total Maximum Daily Load Basin Management Action Plans consist of voluntary 

Best Management Practices. Look less blue because No SAV 

Comment ID 2233-1.001.043 

Author Name: Kovach C. 

Organization: CF Industries 

3. EPA Has Bypassed Notice-And-Comment Rulemaking 

The August 2009 consent decree was the ultimate product of the litigation strategy and not the result of the Assistant 

Administrator meeting his burden of "marshalling conclusive evidence of 'necessity' for Federally promulgated water 

quality standards." 57 Fed. Reg. 60848. Because the consent decree forces EPA to promulgate a rule, the: notice-andcomment rulemaking process-for which these comments are submitted-is, at: best, a formality in that EPA must 

establish criteria even if information provided in comments would lead the agency to declare that statewide or regional 

criteria cannot be: established at this time. 

The deadline for freshwater criteria is October 15, 2010. The deadline for marine and. estuarine criteria is October 15, 

2011. By agreeing to deadlines by which notices of final rulemaking must issued-regardless of what is presented to 

EPA during the comment: period after the proposed rules have been published-EPA has relinquished its regulatory 

authority and foreclosed the agency from changing its position in light of data and. testimony that may very well demand 

that EPA reconsider its criteria development: efforts. A consent decree that foretells the results of the notice and 

comment rulemaking process is facially invalid. See Administrative Procedure Act, 5 U.S.c. § 553(c) (requiring EPA to 

consider "relevant matter[s] presented" during the comment period and. including in the rules "a concise general 

11/19/2010 02:48 PM EST 2-1928
 
Chapter 2 - Comment Documents Background 

statement of their basis and purpose"). 

EPA, pursuant to the § 553(c) of the Administrative Procedure Act (APA), must provide: a "'concise general statement 

of ... basis and purpose'" for its rule that "respond[s] in a. reasoned manner to [comments] that raise significant 

problems" with the rule. Reytblatt v. U.S. Nuclear Regulatory Commn., 105 F.3d 715, 722 (D.C. Cir. 1997). This 

requirement is intended to provide "an adequate safeguard against arbitrary decisionmaking." United States v. Nova 

Scotia Food Prods. Corp., 568 F.2d 240, 252-53 (2d Cir. 1977) (citing Industrial Union Dept., AFL-CIO v. Hodgon, 499 

F.2d 467 (D.C. Cir. 1974); Kennecott Copper Corp. v. EPA, 462 F.2d 846 (D.C. Cir. 1972); Automotive Parts & 

Accessories Assn. v. Boyd, 407 F.2d 330 (D.C. Cir. 1968». Additionally, EPA must not have an "unalterably closed 

mind" when responding to these comments. Ass'n of National Advertisers, Inc., v. Federal Trade Commission, 627 F.2d 

1151, 1170 (D.C. Cir. 1979) cert denied 447 U.S. 921 (1980) (discussing the standard for disqualifying a decision maker 

during a rulemaking proceeding). 

By agreeing to deadlines by which it will issue notices of final rulemaking, EPA has made plain its intention to establish 

numeric nutrient criteria for Florida regardless of the merit of comments made after the publication of the proposed 

rules. In other words, EPA has made plain that it is approaching the development of numeric nutrient criteria for Floridaa process with severe implications for taxpayers, publicly owned utilities, industry and agriculture within the State-with 

its decision made and will not be swayed by any meritorious comments. EPA has made plain, for example, that it will 

not be swayed by comments that raise scientific infeasibility as a barrier to the rule, comments that raise the specter of 

economic ruin for Florida if the rule is adopted, or comments that argue that the Florida's current narrative standard-if 

properly enforced-is already equipped to deal with the extreme examples of nutrient over-enrichment upon which 

Plaintiffs rely. If comments made during the notice and comment rulemaking process will not at least provide for the 

possibility that EPA will reconsider its scientifically indefensible approach to developing numeric nutrient criteria, EPA 

will have bypassed the notice and comment rulemaking process. 

Furthermore, while it may be argued that § 303(c)(4) of the Clean Water Act mandates the notices of final rulemaking 

be published within ninety (90) days of EPA proposing the criteria, Congress could not have intended that EPA finalize 

criteria that the agency decides are scientifically indefensible during notice and comment rulemaking.[30] If a member of 

the public or a stakeholder reveals a fatal flaw between the time a criterion is proposed and then finalized, the Clean 

Water Act cannot be read to require the promulgation of the invalid criterion. Similarly, EPA cannot agree to a consent 

decree that contracts away its regulatory authority and commits the agency to fmalize proposed criteria, no matter what 

data or information is provided during rulemaking. 

As discussed, EPA's own Science Advisory Board told EPA that establishing a causeand- effect relationship is crucial to 

establishing meaningful numeric nutrient criteria. EPA has committed to finalizing a rule by October 15, 2010, 

notwithstanding its own SAB advising the agency that its current guidance for developing criteria is insufficient. 

[30] "The Administrator shall promulgate any revised or new standard under this paragraph not later than ninety days 

after he publishes such proposed standards, unless prior to such promulgation, such state has adopted a revised or 

new water quality standard which the Administrator determines to be in accordance with this chapter." 33 U.S.c. § 

1313(c)(4); CWA § 303(c)(4). 

Comment ID 2233-1.001.068 

11/19/2010 02:48 PM EST 2-1929
 
Chapter 2 - Comment Documents Background 

Author Name: Kovach C. 

Organization: CF Industries 

State's methods are working 

The well documented and developed methods Florida uses for monitoring, assessment and water quality management 

is not surpassed by any other state or by the USEPA itself. In fact, as noted above, Florida's approach at regulating 

impaired waters through their TMDL program has received acclaim from the NAS. 

Examples: 

a) Tampa Bay - Nutrient management in the Tampa Bay watershed has been an ongoing effort by both the State, 

USEPA and local stakeholders for over three decades. The improvement in water quality is evidenced by dramatic 

decreases in nitrogen loading and the subsequent responses in numerous indicators throughout the system, most 

notably decreases in algal biomass (as demonstrated by chlorophyll a decreases) and increases in seagrass coverage 

in the majority of the system. These water quality improvements have been detailed by the Tampa Bay Nitrogen 

Management Consortium (TBNMC) (2010) in comments submitted to the USEPA under this docket on 8 March 2010 

(EPA-HQ-OW-2009-0596-0606.1). SER agrees with the Consortium's conclusion that "existing loads to the major bay 

segments of Tampa Bay provide for the full aquatic life protection and support for all designated uses in the estuary and 

are therefore within its assimilative capacity for nutrients". SER concurs with the TBNMC that the USEPA shoulld adopt 

their recommended loads as the protective nutrient loads for the Tampa Bay estuary, rather than USEPA's more 

generally developed criteria. A sample of the data presented by the TBNMC is presented in Figure 1. 

Original comment letter contains additional information in Figure 3. Example of population growth in Tampa Bay 

watershed relative to changes in Chlorophyll a in Tampa Bay, contradicting USEPA's claim that the IWR process is not 

working. Source: TBNMC Comments to USEPA EPAHQ- OW-2009-0596-0606.1. See original comment letter. 

b) St Johns River - The TMDL approach for the Lower St. Johns River has resulted in comprehensive basin wide 

reductions under the plan and significant progress is being made at reducing loads (Lower St. Johns River Executive 

Committee, 2010). An example of the load reductions to date (2009) is presented in Figure 4 for the wastewater 

discharge or point SOUrCE! loads. MS4,For municipal separate stormwater systems (s) the target load reduction for 

total phosphorus in the TMDL has already been achieved. The load reduction for total nitrogen has been more 

challenging, and while SOmE! reductions have occurred, sources of total nitrogen from extensive wetlands seem to be 

slowing progress for that parameter. The Lower St. Johns is another example that negates the USEPA's contention that 

no progress is being made in protecting Florida's waters. 

Original comment letter contains additional information in Figure 4. Load reduction for Total Phosphorus and Total 

Nitrogen in wastewater program segments. See original comment letter. 

These are just two large watershed examples that demonstrate that the State has made remarkable strides in 

successfully addressing eutrophication and has a comprehensive program in place to protect the designated uses of 

waters within the State. SER believes the claims and implications made by USEPA and others that all of the States 

waters are imperiled is unfounded, and further that the development of invalid numeric nutrient criteria will actually 

11/19/2010 02:48 PM EST 2-1930
 
Chapter 2 - Comment Documents Background 

damage the ongoing progress that the state has made in curbing the impacts from nutrient pollution. 

Comment ID 2429-1.001.004 

Author Name: Arvanitas P. 

Organization: 

Permitting 

We had five-year permits for Industrial users in Florida. The plan for a water permit is submitted to the DEP and water 

management boards. After a five-year permit was issued, then the company was expected to be in compliance, and 

shorter time period of five years allowed the vigilant review of permits in case of pollution, spillage and so forth. Last 

year, because of the January 2009 letter to DEP Director Mike Sole from Grumwaldt, the Industry and our business 

friendly GOP led State Legislature and Senator Alexander passed 50 YEAR water permits for Industry titled Senate Bill 

2080. And of course, our NON-friendly environmental Governor Charlie Cist signed it into law. (Exhibit B- titled Senator 

Alexander and Governor Crist's water management 2009 bill) 

Mike Sole in documents said very strongly his concern about the thought of a permit being revoked. It will never happen 

under his watch. It has never happened in the past. And now, the Governor's Crist's signing of the Water District 

Management law allows not only a 50 year permit, but Water Directors ONLY are allowed to give instant approval. 

When a company notifies the state DEP of pollution and/ or noncompliance, they now would have a remedial time 

period that puts the state taxpayers at risk for financial clean up. Because once a permit is issued, it is the God given 

right of the Company. We have been fighting all over the state for enforcement to come first and not big business. 

In the work product responding to DOI and DOJ lawsuits concerning Florida's enforcement of the Clean Water act and 

other lawsuits, between Mike Sole and staff dated December 1, 2006 , there is a discussion of the Dept of Interior 

arguing about the state's implementation of the 1992 Consent Decree in the nature of enforcement of the Clean water 

Act. The last paragraph, from notes of David Crowley, Chip Merriam, and Greg Munson, I wish to paraphrase for you. 

The DOI is arguing that after an Industry User is in violation of the Clean Water act, the state allows a remedy of 5 

years to argue compliance under the NEPA law-the magma carter for environmental law. The last DEP author says he 

wants to be able to defend this with "a straight face before the EPA," but cannot, as it currently stands with DEP 

Diirector Castille' changes. I enter it as an Exhibit and will have my comments in the federal register (Exhibit C-DEP 

state responses to federal comments -2006) 

Response 

Comment IDs: 0508-1.001.008, 0567.001.005, 0589.001.009, 0589.001.024, 0590.001.002, 0623.001.005, 0623.001.011, 

0631.001.001, 0643.001.002, 0675.001.003, 0695.001.001, 0727.001.003, 0732.001.002, 0738.001.007, 0770.001.004, 

0776.001.004, 0779.001.003, 0825.001.003, 0825.001.006, 0895.001.007, 0895.001.009, 0895.001.019, 0897.001.004, 

0897.001.006, 0898-1.001.004, 1103.001.005, 1211-1.001.008, 1240.001.005, 1323.001.003, 1348-1.001.008, 1348-1.001.015, 

1352-1.001.025, 1359-1.001.048, 1359-1.001.049, 1359-1.001.050, 1368-1.001.013, 1416-1.001.005, 1416-1.001.007, 1416­

11/19/2010 02:48 PM EST 2-1931
 
Chapter 2 - Comment Documents Background 

1.001.009, 1416-1.001.014, 1418-1.001.005, 1418-1.001.009, 1462-1.001.003, 1473-1.001.012, 1530.001.036, 1641-1.001.003, 

1647-1.001.004, 1671-3.001.039, 1671-3.001.109, 1729.001.021, 1769-1.001.007, 1775.001.001, 1782-1.001.021, 1782-1.001.022, 

1786-1.001.003, 1787-1.001.004, 1796-1.001.003, 1797-1.001.002, 1797-1.001.006, 1834-1.001.003, 1834-2.001.004, 1919­

1.001.006, 1919-1.01.015, 2233-1.001.068, 2429-1.001.004 

Response: EPA thanks commenters for the information provided regarding FDEP’s existing programs for nutrient management in 

Florida and implementation concerns related to EPA’s promulgation of its numeric nutrient criteria. In terms of understanding how 

EPA’s numeric nutrient criteria will affect restoration and implementation activities, plans, and programs already underway (such as 

the TMDL process, agricultural BMPs/BMAPs, fertilizer reductions, or the NPDES permitting process), these are cyclical processes 

that are monitored, reassessed and revisited on a regular basis to reflect new information, analysis, data or as in this case when new 

or revised water quality criteria are put in place to translate and provide numeric goals to support implementation and attainment of 

existing state designated water quality uses. Regular review and reevaluation of assessment, listing, TMDL, BMAP, and NPDES 

permit actions is a routine and ongoing part of any water quality program implementation process both to determine where progress 

has been made, to protect high quality waters, and to identify and prioritize impaired waters for further evaluation and appropriate 

action. Adjustments are then made consistent with meeting applicable WQS. Please refer to the preamble associated with this final 

rule, in particular section III.E Applicability of Criteria When Final for further discussion regarding implementation of the numeric 

nutrient criteria finalized in this rule and potential effects on existing programs. 

EPA disagrees with commenters’ assertions that question the legal authority and scientific defensibility of EPA’s January 14, 2009 

determination and subsequent promulgation of numeric nutrient criteria for Florida’s lakes and flowing waters. After careful 

analysis and discussions with Florida Department of Environmental Protection (FDEP), EPA determined that Florida’s reliance on a 

case-by-case interpretation of its narrative criterion in implementing its Clean Water Act programs was insufficient to ensure 

protection of applicable designated uses. As a result, on January 14, 2009 EPA determined that numeric nutrient criteria are 

necessary for Florida to meet the requirements of the Clean Water Act to have standards in place that protect applicable designated 

uses. Please refer to the preamble, in particular sections II.A Nitrogen/Phosphorus Pollution and II.D EPA Determination 

Regarding Florida and EPA’s Rulemaking, for a detailed accounting of the rationale and justification for EPA’s determination. On 

August 19, 2009 EPA entered into a Consent Decree with the Florida Wildlife Federation and four other environmental groups to 

settle litigation alleging that prior Agency actions and statements constituted a CWA section 303(c)(4)(B) determination that 

numeric nutrient water quality criteria were necessary to meet the requirements of the CWA in the State of Florida. That consent 

decree memorialized the proposal dates schedule EPA outlined in its January 2009 determination and included dates for finalizing 

criteria nine months after proposal, well beyond the 90 days envisioned by Congress in section 303(c)(4) of the CWA. 

Please refer to the preamble to the final rule, in particular Section III. Numeric Criteria for Streams, Lakes, and Springs in the State 

of Florida, which discusses the derivation of the numeric nutrient criteria, derived to account for the natural variability exhibited in 

Florida's lakes and flowing waters. EPA relied on an extensive amount of Florida-specific data and technical analyses to derive 

scientifically defensible numeric nutrient criteria consistent with the requirements of the Clean Water Act and EPA’s implementing 

regulations at 40 CFR part 131. EPA also reminds the commenter that the methods EPA used in its proposal went through an 

independent, external scientific peer review in July 2009. The results of this independent, peer review were made available through 

EPA’s docket (EPA-HQ-OW-2009-0596). 

Under the Clean Water Act (CWA), Florida Department of Environmental Protection (FDEP) is the primary agency responsible for 

11/19/2010 02:48 PM EST 2-1932
 
Chapter 2 - Comment Documents Background 

determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to 

FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. EPA has 

worked closely with the State, providing technical assistance, along with funding to the State to support sampling and analysis of 

existing data, to address nitrogen/phosphorus pollution problems in Florida. Numeric nutrient criteria will create clear water quality 

goals and easily measurable quantitative baselines to support stronger collaboration and more effective partnerships with both point 

and nonpoint source dischargers of nitrogen/phosphorus pollution. EPA will continue to collaborate with FDEP as the State 

implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for purposes of the Clean 

Water Act. EPA recognizes there will be complex issues involved in implementation of numeric nutrient criteria and looks forward 

to working with Florida as the State implements these federal criteria while it moves to adopt its own criteria in the future. 

Comment IDs: 0567.001.008, 0770.001.008, 0776.001.002, 0895.001.021, 1153.001.005, 1263.001.004, 1309.001.002, 1617­

1.001.003, 1770-1.001.025, 1771-1.001.032, 1772-1.001.026, 1773-1.001.029, 1797-1.001.024 

Response: EPA clarifies to commenters that, as discussed the Agency's determination letter, Florida’s reliance on a case-by-case 

translation of its narrative nutrient criterion into numeric values was insufficient to ensure protection of applicable designated uses. 

By establishing numeric nutrient criteria, Florida can expedite and expand the process needed to assure protection against 

nitrogen/phosphorus pollution that is degrading many of the State’s waters. The existence of numeric nutrient criteria that are 

applicable to Florida inland surface waters designated as Class I and/or Class III waters facilitates Florida’s efforts to establish 

TMDLs and appropriate WQBELs in NPDES permits and develop BMAPs as necessary to adequately protect applicable designated 

uses. Numeric nutrient criteria will also facilitate Florida’s efforts to identify nutrient-impaired waters. 

The numeric nutrient criteria finalized in this rule are derived to account for the natural variability exhibited in Florida's lakes and 

flowing waters. EPA relied on an extensive amount of Florida-specific data and technical analyses to derive scientifically 

defensible numeric nutrient criteria. Florida established the designated uses which are applicable to Florida's waters, are consistent 

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

numeric nutrient criteria in this final rule establish limits necessary to support these State designated uses. As noted in the preamble 

of the final rule, Section V.C Site-Specific Alternative Criteria, an alternative to the numeric nutrient criteria promulgated by EPA 

may be warranted to account for site-specific conditions. SSAC may be appropriate when additional scientific consideration can 

bring added precision or accuracy to express the necessary level or concentration of a water quality parameter that is protective of 

the applicable designated use for a particular waterbody. The numeric nutrient criteria finalized in this rule are the effective criteria 

for purposes of the CWA until alternative criteria are approved by EPA. 

EPA will continue to collaborate with FDEP as the State implements the numeric nutrient criteria finalized as part of this rule, 

which will be the effective criteria for purposes of the Clean Water Act. Please refer to the preamble associated with this final rule, 

in particular Section II.D EPA Determination Regarding Florida and EPA’s Rulemaking, regarding the justification and rationale 

for EPA’s January 14, 2009 determination. 

EPA reminds the commenter that FDEP, independently from EPA, initiated its own State rulemaking process in the spring/summer 

of 2009 to adopt numeric nutrient water quality standards for Florida’s waters. FDEP held several public workshops on its draft 

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

11/19/2010 02:48 PM EST 2-1933
 
Chapter 2 - Comment Documents Background 

the Florida Environmental Regulatory Commission, as had been previously scheduled. EPA will continue to collaborate with 

FDEP as the State implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for 

purposes of the Clean Water Act. FDEP retains the authority to move forward with its own rulemaking process at any time and 

EPA looks forward to working with Florida as the State implements these federal criteria while it moves to adopt its own criteria in 

the future. 

Comment IDs: 0598.001.001, 0623.001.001, 0634.001.002, 0678.001.009, 0682.001.004, 0731.001.004, 0736.001.003, 

0750.001.005, 0757.001.004, 0822.001.010, 0853.001.002, 0853.001.004, 0895.001.010, 0945.001.001, 1164-1.001.012, 

1238.001.003, 1246.001.011, 1250.001.004, 1263.001.002, 1296-1.001.003, 1296-1.001.015, 1301-1.001.002, 1301-1.001.016, 

1307.001.002, 1309.001.003, 1310.001.002, 1320.001.003, 1323.001.003, 1323.001.004, 1340.001.006, 1370-1.001.062, 1416­

1.001.018, 1530.001.009, 1530.001.011, 1615-1.001.002, 1617-1.001.001, 1617-1.001.003, 1640.001.002, 1777-2.001.003, 1784­

1.001.034 

Response: EPA thanks commenters for the information provided regarding FDEP’s existing programs for nutrient management in 

Florida and implementation concerns related to EPA’s promulgation of its numeric nutrient criteria. In terms of understanding how 

EPA’s numeric nutrient criteria will affect restoration and implementation activities, plans, and programs already underway (such as 

the TMDL process, agricultural BMPs/BMAPs, fertilizer reductions, or the NPDES permitting process), these are cyclical processes 

that are monitored, reassessed and revisited on a regular basis to reflect new information, analysis, data or as in this case when new 

or revised water quality criteria are put in place to translate and provide numeric goals to support implementation and attainment of 

existing State designated water quality uses. Regular review and reevaluation of assessment, listing, TMDL, BMAP, and NPDES 

permit actions is a routine and ongoing part of any water quality program implementation process both to determine where progress 

has been made, to protect high quality waters, and to identify and prioritize impaired waters for further evaluation and appropriate 

action. Adjustments are then made consistent with meeting applicable WQS. Please refer to the preamble associated with this final 

rule, in particular Section III.E Applicability of Criteria When Final for further discussion regarding implementation of the numeric 

nutrient criteria finalized in this rule and potential effects on existing programs. 

EPA reminds commenters that the Agency is promulgating this rule pursuant to a determination EPA made on January 14, 2009, 

under section 303(c)(4)(B) of the Clean Water Act. The Agency is promulgating numeric nutrient criteria that translate Florida’s 

own existing nutrient narrative water quality standards into numeric values for Florida's lakes and flowing waters that are 

scientifically defensible and protective of applicable designated uses consistent with the requirements of the Clean Water Act 

Section 303(c) and EPA's implementing regulations at 40 CFR part 131. Please refer to the preamble associated with this final rule, 

in particular sections II.A Nitrogen/Phosphorus Pollution and II.D EPA Determination Regarding Florida and EPA’s Rulemaking, 

for the justification and rationale regarding EPA’s January 14, 2009 determination. 

This rule establishes numeric nutrient criteria, which will be effective for purposes of the Clean Water Act, that are protective of 

Florida’s inland surface waters designated by FDEP as Class I and Class III waters. The preamble to the final rule discusses the 

derivation of the numeric nutrient criteria, derived to account for the natural variability exhibited in Florida's lakes and flowing 

waters. EPA relied on an extensive amount of Florida-specific data and technical analyses to derive scientifically defensible 

numeric nutrient criteria. 

11/19/2010 02:48 PM EST 2-1934
 
Chapter 2 - Comment Documents Background 

Nonetheless, the water quality standards program is equipped to recognize and respond with flexibility in cases where affordable 

technology is insufficient to meet water quality targets. If the facilities receive end-of-pipe limits based on criteria that are below 

the level of treatment of biological nutrient removal, they would most likely examine the following alternatives: (1) the lakes 

criteria adjustment procedure (2) site-specific alternative criteria, (3) variances, (4) compliance schedules, or (5) UAAs and 

resulting changes to designated uses. In the case that nonpoint source contributions are the limiting factor in a water meeting the 

new criteria, the same alternatives would apply subsequent to implementation of reasonable and cost-effective best management 

practices according to Florida State procedures. Water quality standards, and EPA’s rule specifically, do not specify how to achieve 

protective levels. The State may use existing (or propose in the future) regulatory relief mechanisms that allow implementation 

flexibility where demonstrated to be appropriate. See the preamble to the finale rule, in particular section V. Alternative Regulatory 

Approaches and Implementation Mechanisms, which describes the tools the State has at its disposal to exercise flexibility such that 

the rule is not a "one-size-fits-all" rule. In response to comments regarding the potential cost to Florida, EPA refers commenters to 

the preamble of this final rule, specifically Section VI. Economic Analysis, and EPA's “Economic Analysis of Final Water Quality 

Standards for Nutrients for Lakes and Flowing Waters in Florida,” located in the docket (docket ID: EPA-HQ-OW-2009-0956) for 

this rulemaking for cost estimates associated with implementation of EPA's numeric nutrient criteria and the assumptions upon 

which those estimates are based, 

Under the Clean Water Act (CWA), Florida Department of Environmental Protection (FDEP) is the primary agency responsible for 

determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to 

FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. EPA has 

worked closely with the State, providing technical assistance, along with funding to the State to support sampling and analysis of 

existing data, to address nitrogen/phosphorus pollution problems in Florida. EPA will continue to collaborate with FDEP as the 

State implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for purposes of the 

Clean Water Act. EPA recognizes there will be complex issues involved in implementation of numeric nutrient criteria and looks 

forward to working with Florida as the State implements these federal criteria while it moves to adopt its own criteria in the future. 

EPA agrees that enforcement and compliance are an important element of any State water quality program, but notes that these 

criteria, and water quality standards generally, are not independently enforceable. In other words, until these criteria are reflected 

through NPDES permit limits or other legally binding norms, they are not by themselves independently enforceable. 

Comment IDs: 0613.001.006, 0613.001.010, 0648.001.004, 0691.001.003, 0709.001.002, 0709.001.006, 0718.001.006, 

0719.001.003, 0740.001.007, 0751.001.004, 0759.001.004, 0765.001.005, 0786.001.008, 0839.001.007, 0897.001.008, 

0901.001.003, 0930.001.003, 0965.001.004, 0965.001.007, 0969.001.001, 1024.001.005, 1030.001.002, 1050.001.002, 

1075.001.002, 1119.001.004, 1141.001.006, 1151.001.001, 1162.001.003, 1175.001.004, 1198.001.008, 1198.001.009, 

1219.001.003, 1228.001.002, 1240.001.002, 1243.001.005, 1245.001.004, 1245.001.009, 1307.001.002, 1311.001.005, 

1318.001.005, 1326.001.003, 1790-1.001.002, 1893.001.001, 1930.001.005, 2029.001.002, 2030-1.001.010 

Response: EPA appreciates comments on this final rule promulgating numeric nutrient criteria for Florida's lakes and flowing 

waters that are scientifically defensible and protective of applicable designated uses consistent with the requirements of the Clean 

Water Act Section 303(c) and EPA's implementing regulations at 40 CFR part 131. This final rule establishes numeric nutrient 

criteria, to be effective for purposes of the Clean Water Act, that are protective of Florida’s inland surface waters designated as 

11/19/2010 02:48 PM EST 2-1935
 
Chapter 2 - Comment Documents Background 

Class I and Class III waters. As a result, promulgation of this rule serves to protect aquatic ecosystems, recreation in and on the 

water, and drinking water supplies from water quality degradation due to the negative impacts of nitrogen/phosphorus pollution. 

Numeric nutrient criteria will create clear water quality goals and easily measurable quantitative baselines to support stronger 

collaboration and more effective partnerships with both point and nonpoint source dischargers of nitrogen/phosphorus pollution. 

Please refer to the preamble to the final rule, in particular Section III. Numeric Criteria for Streams, Lakes, and Springs in the State 

of Florida, which discusses the derivation of the numeric nutrient criteria, derived to account for the natural variability exhibited in 

Florida's lakes and flowing waters. EPA relied on an extensive amount of Florida-specific data and technical analyses to derive 

scientifically defensible numeric nutrient criteria consistent with the requirements of the Clean Water Act and EPA’s implementing 

regulations at 40 CFR part 131. 

Under the Clean Water Act (CWA), Florida Department of Environmental Protection (FDEP) is the primary agency responsible for 

determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to 

FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. EPA will 

continue to collaborate with FDEP as the State implements the numeric nutrient criteria finalized as part of this rule, which will be 

the effective criteria for purposes of the Clean Water Act. EPA recognizes there will be complex issues involved in implementation 

of numeric nutrient criteria and looks forward to working with Florida as the State implements these federal criteria while it moves 

to adopt its own criteria in the future. 

Comment IDs: 0631.001.001, 0716.001.011, 0744.001.007, 0878-1.001.004, 1005.001.005, 1013.001.002, 1089.001.005, 

1101.001.004, 1298-1.001.002, 1782-1.001.024 

Response: EPA notes that on June 7, 2010, EPA and Plaintiffs filed a joint notice with the Court extending the deadlines for 

promulgating numeric nutrient criteria for Florida's estuaries and coastal waters, flowing waters in south Florida (including canals), 

and the downstream protection values for flowing waters into estuaries and coastal waters. The new deadlines are November 14, 

2011 for proposal and August 15, 2012 for publishing a final rule for these three categories. This will allow EPA time to hold a 

public peer review by EPA’s Scientific Advisory Board of the scientific methodologies for estuarine and coastal criteria, flowing 

waters in south Florida, and downstream protection values for estuaries and coastal waters. 

Please refer to the preamble for clarification on EPA’s decision not to finalize EPA’s proposed restoration water quality standard. 

Comment ID: 0676.001.003 

Response: EPA appreciates the comment regarding Florida’s current nitrate standard for groundwater and compliance with this 

standard. Please refer to the preamble associated with this final rule, in particular section II. Background, for information regarding 

adverse impacts associated with nitrate exceedances in drinking water in Florida. 

Comment IDs: 0688.001.002, 1020.001.004, 1095.001.003, 1266.001.002, 1320.001.002, 1332.001.004, 1339.001.006, 

11/19/2010 02:48 PM EST 2-1936
 
Chapter 2 - Comment Documents Background 

0736.001.006, 1241.001.003 

Response: EPA acknowledges the comments and concerns expressed in opposition to EPA's rulemaking to establish numeric 

nutrient criteria for Florida's lakes and flowing waters. EPA appreciates the comments and feedback received on this rule, however, 

the Agency disagrees that EPA should not proceed with finalizing and promulgating the numeric nutrient criteria for Florida's lakes 

and flowing waters discussed in the preamble to this final rule. 

In this final rule, EPA is promulgating numeric nutrient criteria that translate Florida’s own existing nutrient narrative water quality 

standards into numeric values for Florida's lakes and flowing waters that are scientifically defensible and protective of applicable 

designated uses consistent with the requirements of the Clean Water Act Section 303(c) and EPA's implementing regulations at 40 

CFR part 131. EPA’s rule establishes numeric nutrient criteria, which will be effective for purposes of the Clean Water Act, that 

are protective of Florida’s inland surface waters designated by FDEP as Class I and Class III waters. As a result, promulgation of 

this rule serves to protect human health, aquatic ecosystems, recreation in and on the water, and drinking water supplies from water 

quality degradation due to the negative impacts of nitrogen/phosphorus pollution. Numeric nutrient criteria will create clear water 

quality goals and easily measurable quantitative baselines to support stronger collaboration and more effective partnerships with 

both point and nonpoint source dischargers of nitrogen/phosphorus pollution. 

EPA and Florida Department of Environmental Protection (FDEP) share a commitment to establish numeric nutrient criteria for 

Florida. Florida established the designated uses that are applicable to Florida's waters, are consistent with the Clean Water Act, and 

are set to manage clean water program objectives for Florida’s waters affected by this final rule. The numeric nutrient criteria 

finalized in this rule establish limits necessary to support these uses. 

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

analysis of existing data, to address nitrogen/phosphorus pollution problems in Florida. EPA will continue to collaborate with 

FDEP as the State implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for 

purposes of the Clean Water Act. FDEP retains the authority to move forward with its own rulemaking process at any time and 

EPA looks forward to working with Florida as the State implements these federal criteria while it moves to adopt its own criteria in 

the future. 

Comment IDs: 0774.001.006, 1564-1.001.009 

Response: EPA disagrees that EPA’s rulemaking is driven solely in response to litigation and therefore, the data and timeframe 

employed are not sufficient to support the derivation of scientifically defensible numeric nutrient criteria for Florida’s lakes and 

flowing waters. After discussions with Florida Department of Environmental Protection (FDEP) and careful evaluation of available 

information, EPA determined that Florida’s reliance on a case-by-case interpretation of its narrative criterion in implementing its 

Clean Water Act programs was insufficient to ensure protection of applicable designated uses. As a result, on January 14, 2009 

EPA determined that numeric nutrient criteria are necessary for Florida to meet the requirements of the Clean Water Act to have 

standards in place that protect applicable designated uses. Please refer to the preamble, in particular sections II.A 

Nitrogen/Phosphorus Pollution and II.D EPA Determination Regarding Florida and EPA’s Rulemaking, for a detailed accounting of 

the rationale and justification for EPA’s determination. On August 19, 2009 EPA entered into a Consent Decree with the Florida 

11/19/2010 02:48 PM EST 2-1937
 
Chapter 2 - Comment Documents Background 

Wildlife Federation and four other environmental groups to settle litigation alleging that prior Agency actions and statements 

constituted a CWA section 303(c)(4)(B) determination that numeric nutrient water quality criteria were necessary to meet the 

requirements of the CWA in the State of Florida. That consent decree memorialized the proposal dates schedule EPA outlined in its 

January 2009 determination and included dates for finalizing criteria nine months after proposal, well beyond the 90 days 

envisioned by Congress in section 303(c)(4) of the CWA. Please also refer to the response to the comment group, Comment IDs: 

1301-1.001.003, 1416-1.001.010, 1416-1.001.012, 2233-1.001.005, 2233-1.001.042, 2233-1.001.047, located in issue category 

II.D.1. 

EPA notes that on June 7, 2010, EPA and Plaintiffs filed a joint notice with the Court extending the deadlines for promulgating 

numeric nutrient criteria for Florida's estuaries and coastal waters, flowing waters in south Florida (including canals), and the 

downstream protection values for flowing waters into estuaries and coastal waters. The new deadlines are November 14, 2011 for 

proposal and August 15, 2012 for publishing a final rule for these three categories. This will allow EPA time to have the 

methodologies for developing the criteria included in EPA’s November 2011 rulemaking peer-reviewed by EPA’s Science 

Advisory Board. EPA also notes that the Agency’s proposed restoration water quality standard will not be finalized in this 

rulemaking. Please refer to the preamble for clarification on EPA’s decision not to finalize EPA’s proposed restoration water 

quality standard. 

Please refer to the preamble of the final rule, which discusses the derivation of the numeric nutrient criteria, derived to account for 

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

and technical analyses to derive scientifically defensible numeric nutrient criteria consistent with the requirements of the Clean 

Water Act and EPA’s implementing regulations at 40 CFR 131. EPA also reminds the commenter that the methods EPA used in its 

proposal went through an independent, external scientific peer review in July 2009. The results of this independent, peer review 

were made available through EPA’s docket for the proposed rule (EPA-HQ-OW-2009-0596). 

The numeric nutrient criteria finalized in this rule for Florida’s lakes and flowing waters will be effective for Clean Water Act 

(CWA) purposes and will apply in addition to any other existing CWA-effective criteria for Class I and Class III waters already 

adopted by the State and submitted to EPA (and for those adopted after May 30, 2000 and approved by EPA). EPA is promulgating 

this rule pursuant to a determination that EPA made on January 14, 2009, under section 303(c)(4)(B) of the Clean Water Act. The 

determination stated that numeric nutrient water criteria for Florida's lakes and flowing waters are necessary for the State of Florida 

to meet the requirements of Clean Water Act section 303(c). Please refer to the final preamble, in particular sections II.D and III.E. 

Comment IDs: 0796.001.009, 1370-1.001.039, 1837-1.001.017 

Response: EPA disagrees with commenters’ assertions that the Agency has not had adequate time to solicit information on and 

conduct thorough analyses of existing data in order to develop scientifically defensible numeric nutrient criteria applicable to 

Florida’s waters. EPA believes that the extended comment period resulting in a 90-day public comment period, in conjunction with 

the additional public meetings (resulting in a total of 13 public meetings held in 6 different cities throughout the State), with a 

further 30 days to comment on EPA’s August 3, 2010 supplemental notice, provided sufficient time and opportunity for all 

interested parties to perform a thorough review of the proposed regulation and provide meaningful public comment to EPA. EPA 

disagrees that the Agency’s Consent Decree deadline to finalize numeric nutrient criteria adversely affected EPA’s public comment 

11/19/2010 02:48 PM EST 2-1938
 
Chapter 2 - Comment Documents Background 

process or impeded EPA’s thorough review, consideration, and analysis of the comments submitted. 

Please refer to the preamble to the final rule, which discusses the derivation of the numeric nutrient criteria, derived to account for 

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

and technical analyses to derive scientifically defensible numeric nutrient criteria consistent with the requirements of the Clean 

Water Act and EPA’s implementing regulations at 40 CFR part 131. EPA also reminds the commenters that the methods EPA used 

in its proposal went through an independent, external scientific peer review in July 2009. The results of this independent, peer 

review were made available through EPA’s docket (EPA-HQ-OW-2009-0596). 

Under the Clean Water Act (CWA), Florida Department of Environmental Protection (FDEP) is the primary agency responsible for 

determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to 

FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. EPA has 

worked closely with the State, providing technical assistance, along with funding to the State to support sampling and analysis of 

existing data, to address nitrogen/phosphorus pollution problems in Florida. Numeric nutrient criteria will create clear water quality 

goals and easily measurable quantitative baselines to support stronger collaboration and more effective partnerships with both point 

and nonpoint source dischargers of nitrogen/phosphorus pollution. EPA will continue to collaborate with FDEP as the State 

implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for purposes of the CWA. 

EPA recognizes there will be complex issues involved in implementation of numeric nutrient criteria and looks forward to working 

with Florida as the State implements these federal criteria and adopts their own criteria in the future. 

Comment ID: 0832.001.002 

Response: EPA disagrees with commenter’s assertion that this final rule is in conflict with Florida law. The numeric nutrient 

criteria for Florida’s lakes and flowing waters finalized in this rule will be effective for Clean Water Act (CWA) purposes and will 

apply in addition to any other existing CWA-effective criteria for Class I and Class III waters already adopted by the State and 

submitted to EPA (and for those adopted after May 30, 2000 and approved by EPA’s numeric nutrient criteria). FDEP retains the 

authority to move forward with its own rulemaking process at any time to establish state numeric nutrient criteria and to submit 

such criteria to EPA for review and approval under section 303(c) of the Clean Water Act. If FDEP does not adopt state numeric 

nutrient criteria, the Department retains authority to implement federally-promulgated criteria through the State's narrative or "free 

froms" criteria. According to a 2005 letter from FDEP's General Counsel, these minimum water quality criteria for surface waters, 

set out at rule 62-302.500, F.A.C., provide a vehicle for the Department to address EPA-promulgated criteria in CWA programs 

such as the NPDES program. Where EPA has promulgated a numeric criterion for a specific parameter, and Florida has not done 

so, FDEP has the authority to limit the discharge of the parameter pursuant to section 62-302.500, F.A.C. Please refer to Section 

V.C Site-Specific Alternative Criteria in the preamble of this final rule for a discussion of the federal SSAC process and its 

applicability in Florida. This procedure allows any entity, including the State, to submit a proposed federal SSAC directly to EPA 

for the Agency’s review and assessment as to whether an adjustment to the applicable federal numeric criteria is appropriate and 

warranted. The federal SSAC process is separate and distinct from the State’s SSAC processes in its WQS. EPA notes that FDEP 

retains the authority to move forward with its own rulemaking process at any time to establish a state SSAC process applicable to 

nutrients and may submit to EPA for review under section 303(c) of the Clean Water Act. 

11/19/2010 02:48 PM EST 2-1939
 
Chapter 2 - Comment Documents Background 

Comment IDs: 0901.001.005, 0906-1.001.004, 0914.001.003, 1004.001.004, 1176.001.004, 1304-1.001.004 

Response: The numeric nutrient criteria for Florida’s lakes and flowing waters finalized in this rule will be effective for Clean 

Water Act (CWA) purposes and will apply in addition to any other existing CWA-effective criteria for Class I and Class III waters 

already adopted by the State and submitted to EPA (and for those adopted after May 30, 2000 and approved by EPA). EPA is 

promulgating this rule pursuant to a determination that EPA made on January 14, 2009, under section 303(c)(4)(B) of the Clean 

Water Act. The determination stated that numeric nutrient water criteria for Florida's lakes and flowing waters are necessary for the 

State of Florida to meet the requirements of Clean Water Act section 303(c). Please refer to the preamble associated with the final 

rule, in particular sections II.A, II.D, and III.E. 

Under the Clean Water Act (CWA), Florida Department of Environmental Protection (FDEP) is the primary agency responsible for 

determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to 

FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. EPA will 

continue to collaborate with FDEP as the State implements the numeric nutrient criteria finalized as part of this rule, which will be 

the effective criteria for purposes of the Clean Water Act. 

Comment ID: 0920.001.001 

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

Comment IDs: 1211-1.001.004, 1445-1.001.001 

Response: EPA notes that on June 7, 2010, EPA and Plaintiffs filed a joint notice with the Court extending the deadlines for 

promulgating numeric nutrient criteria for Florida's estuaries and coastal waters, flowing waters in south Florida (including canals), 

and the downstream protection values for flowing waters into estuaries and coastal waters. The new deadlines are November 14, 

2011 for proposal and August 15, 2012 for publishing a final rule for these three categories. This will allow EPA time to have the 

methodologies for developing the criteria included in EPA’s November 2011 rulemaking peer-reviewed by EPA’s Science 

Advisory Board. 

Comment ID: 1333.001.004 

Response: This comment is outside the scope of this rulemaking. 

Comment ID: 1482-1.001.010 

Response: EPA appreciates the comment, however, these comments are outside the scope of EPA’s rule to establish numeric 

11/19/2010 02:48 PM EST 2-1940
 
Chapter 2 - Comment Documents Background 

nutrient criteria for Florida’s lakes and flowing waters. As indicated in the preamble of this rule and consistent with the terms of 

EPA’s consent decree, EPA’s January 14, 2009 determination did not apply to wetlands, and as a result, Florida’s wetlands will not 

be addressed in this rulemaking or EPA’s forthcoming rulemaking involving estuarine and coastal waters. 

Comment ID: 1769-1.001.007 

Response: EPA clarifies to commenters that, as mentioned in its determination letter, Florida’s reliance on a case-by-case 

translation of its narrative nutrient criterion into numeric values was insufficient to ensure protection of applicable designated uses. 

The existence of numeric nutrient criteria that are applicable to Florida inland surface waters designated as Class I and Class III 

waters facilitates Florida’s efforts to establish TMDLs and appropriate WQBELs in NPDES permits as necessary to adequately 

protect applicable designated uses. Numeric nutrient criteria will also facilitate Florida’s efforts to identify nutrient-impaired 

waters. EPA will continue to collaborate with FDEP as the State implements the numeric nutrient criteria finalized as part of this 

rule, which will be the effective criteria for purposes of the Clean Water Act. FDEP retains the authority to move forward with its 

own rulemaking process at any time and EPA looks forward to working with Florida as the State implements these federal criteria 

while it moves to adopt its own criteria in the future. 

As noted in the preamble to the final rule, Section V.C, Site-Specific Alternate Criteria, an alternative to the numeric nutrient 

criteria promulgated by EPA may be warranted to account for site-specific conditions. SSAC may be appropriate when additional 

scientific consideration can bring added precision or accuracy to express the necessary level or concentration of a water quality 

parameter that is protective of the designated use. SSAC would only become the effective criteria upon a positive determination by 

the Regional Administrator, consistent with EPA’s implementing regulations at 40 CFR 131.43(e). 

Comment ID: 1782-1.001.025 

Response: EPA disagrees with the commenter’s assertion that the Agency is justifying its January 14, 2009 determination and 

subsequent federal rulemaking on periodic red tide events. First, the determination and the preamble to this federal rulemaking 

have provided a number of well-documented human health, environmental, ecological and economic impacts, both direct and 

indirect, attributed to nitrogen and phosphorus pollution throughout the state. In addition to published scientific literature, EPA 

provided data from FDEP's 2008 Integrated Report impaired waters listing and an assessment of the State's water quality control 

programs. Moreover, EPA also cited as rationale the resource- and time-intensive translation of its narrative criteria, and other 

ways that nutrient criteria can help improve and streamline listing and permitting. 

Second, the commenter focuses on the discussion of periodic red-tides on the marine organism, Karenia brevis. EPA is aware that 

Karenia brevis is an important, bloom-forming organism affecting state coastal and estuarine waters with many deleterious impacts.

 EPA is also aware that there are many questions remaining about the cause and dynamics of these blooms, and the relative 

importance of anthropogenic sources of nutrients in fueling these blooms, versus the natural processes. Nevertheless, this is only 

one example of a harmful algal bloom (HAB) that occurs and impacts the State. The criteria in this final rule address a much 

broader range of adverse nitrogen/phosphorus pollution aquatic and human health impacts. For example, there is a large amount of 

published scientific studies on cyanobacterial (blue-green algal) blooms and macroalgal blooms that affect fresh water systems 

11/19/2010 02:48 PM EST 2-1941
 
Chapter 2 - Comment Documents Background 

(e.g., springs) and bay waters across the entire state. These and many other reports have demonstrated clear links between 

phosphorus and nitrogen pollution. Unlike with Karenia brevis blooms, there is strong evidence that ties the occurrence, extent and 

severity of such blooms to anthropogenic sources of nutrients, both in the lab and in the field. 

Comment IDs: 1878-1.001.003, 1878-1.001.004 

Response: These comments are outside the scope of this rulemaking. 

Comment ID: 2233-1.001.043 

Response: EPA disagrees with the assertion that EPA has bypassed its notice and comment commitment with this rulemaking and 

that the Agency’s final numeric nutrient criteria were decided at the time of the proposal and, therefore, did not take into 

consideration the comments, data, analyses, and information submitted in response to the proposed rule. Please refer to the 

preamble to the final rule for a discussion of the derivation of EPA’s final numeric nutrient criteria, the scientific basis for this 

derivation, and how comments received during the 90-day public comment period, in addition to the 13 public meetings held in six 

different cities in Florida, as well as comments received on the subsequent August 3, 2010 supplemental notice, informed and 

influenced EPA’s final rule. Please also refer to this entire Response to Comments Document to read EPA’s responses to the 

comments submitted on this rule. EPA notes that the Consent Decree entered into by EPA and FWF reflected EPA's planned 

proposal dates for inland criteria and estuarine/coastal criteria (as reflected in EPA's January 14, 2009 determination), and, as 

mentioned above, the latter proposal date (for estuarine/coastal criteria) was extended by the parties to November 14, 2011 in order 

to allow for SAB review. Regarding the promulgation dates in the Consent Decree, each of the two promulgation dates falls nine 

months after the respective proposal, well beyond the 90 days contemplated by Congress in CWA section 303(c)(4) ("The 

Administrator shall promulgate any revised or new standard under this paragraph not later than ninety days after he publishes such 

proposed standards, unless, prior to such promulgation, such State has adopted a revised or new water quality standard which the 

Administrator determines to be in accordance with this chapter.") 

EPA believes that the extended comment period resulting in a 90-day public comment period, in conjunction with the additional 

public meetings (resulting in a total of 13 public meetings held in 6 different cities throughout the State), with a further 30 days to 

comment on EPA’s August 3, 2010 supplemental notice, provided sufficient time and opportunity for all interested parties to 

perform a thorough review of the proposed regulation and provide meaningful public comment to EPA. 

Based upon comments and new data and information received during the public comment phase of the January 2010 proposed rule, 

on August 3, 2010 EPA published a supplemental notice of data availability and request for comment related to the Agency’s 

January 26, 2010 notice of proposed rulemaking. In its supplemental notice, EPA solicited comment on a revised regionalization 

approach for streams, additional information and analysis on least-disturbed sites as part of a modified benchmark distribution 

approach, and additional options for developing downstream protection values (DPVs) for lakes. EPA did not solicit additional 

comment on any other provisions of the January 2010 proposal. Responses to comments submitted during the public comment 

period associated with the supplemental notice are also included in this Comment Response Document. 

11/19/2010 02:48 PM EST 2-1942
 
Chapter 2 - Comment Documents Background 

On October 8, 2010, EPA filed an unopposed motion with the Court requesting that the deadline for signing the final rule be 

extended to November 14, 2010. The Court granted EPA's motion on October 27, 2010. EPA used this additional time to review 

and confirm that all comments were fully considered. Consequently, EPA disagrees that the Agency’s Consent Decree deadline to 

finalize numeric nutrient criteria adversely affected EPA’s public comment process or impeded EPA’s thorough review, 

consideration, and analysis of the comments submitted in order to inform EPA’s promulgation of numeric nutrient criteria. 

11/19/2010 02:48 PM EST 2-1943