Attachment E – 

Revisions to Phosphorus Rule per Attachment 2 of 60(b) Motion 
Attachment 2 – Revisions to Phosphorus Rule 

62-302.540 Water Quality Standards for Phosphorus Within the 

Everglades Protection Area. 

(1) Purpose and Scope. 

(a) The purpose of this rule is to implement the requirements of the

Everglades Forever Act by utilizing the powers and duties granted the Department under 

the Act and other applicable provisions of Chapter 373 and 403, F.S., to establish water 

quality standards for phosphorus, including a numeric phosphorus criterion, within the 

EPA.

(b) The water quality standards adopted by this rule include all of the following 

elements: 

1. A numerical interpretation of the Class III narrative nutrient criterion for 

phosphorus; and

2. Establishment of moderating provisions for permits authorizing discharges into 

the EPA in compliance with water quality standards, including the numeric

phosphorus criterion; and

3. A method for determining achievement of the numeric phosphorus 

criterion, which takes into consideration spatial and temporal variability, natural 

background conditions and confidence in laboratory results. 

(2) Findings. 

(a) The Legislature, in adopting the Everglades Forever Act, recognized that 

the EPA must be restored both in terms of water quantity and water quality. 

(b) Best Management Practices (BMPs) have reduced phosphorus loads from

the Everglades Agricultural Area to the EPA by more than twice the amount required by 

existing rules. Stormwater Treatment Areas (STAs) have reduced phosphorus 

concentrations to less than the goal of 50 ppb established in the Everglades Forever Act.

(c) While a significant percentage of the EPA currently meets the numeric

phosphorus criterion, further efforts are required to achieve the criterion in the remaining 

impacted areas of the EPA.

(d) Even as water quality continues to improve, restoration will be a long-term

process because of historic phosphorus accumulations found in sediments within

impacted areas. This phosphorus can diffuse back into the water column, a

phenomenon the Department recognizes as reflux.

(e) The Basin-Specific Feasibility Studies completed by the District

considered environmental factors, implementation cost, scheduling, and technical

factors in evaluating measures to reduce phosphorus levels entering the EPA. These 

studies and other information provided to the Commission show that:

1. At this time, chemical treatment technology is not cost-effective for treating

discharges entering the EPA and poses the potential for adverse environmental 

effects.

2. Optimization of the existing STAs, in combination with BMPs, is currently the 

most cost-effective and environmentally preferable means to achieve further

phosphorus reductions to the EPA, and to restore impacted areas. The 

effectiveness of such measures should be determined and maximized prior to 

requiring additional measures. Optimization shall take into consideration viable 

vegetative technologies, including Periphyton-based STAs that are found to be 

cost-effective and environmentally acceptable.

(f) The District and the Department recognize that STA and BMP optimization

requires a sustained commitment to construct, implement, stabilize and measure

phosphorus reduction benefits.
(g) The Comprehensive Everglades Restoration Plan (CERP) contains 

projects that will affect the flows and phosphorus levels entering the EPA. Achievement 

of water quality standards for water quality projects required under the Everglades 

Forever Act can be most effectively and efficiently attained when integrated with CERP 

projects. 

(h) The Long-Term Plan constitutes a comprehensive program to optimize the

STAs and BMPs to achieve further phosphorus reductions and thereby accomplish 

implementation of Best Available Phosphorus Reduction Technology (BAPRT).

(i) It is the intent of the Commission that implementation of this rule will fulfill 

commitments made by the State of Florida to restore and maintain water quality in the 

EPA, while, at the same time, fulfill the States obligations under the Settlement 

Agreement to achieve the long-term phosphorus concentration levels and discharge 

limits established in that Agreement for the Loxahatchee National Wildlife Refuge 

(Refuge) and the Everglades national Park (Park). 

(j) Establishment of the numeric phosphorus criterion, based upon analyses 

conducted primarily in freshwater open water slough systems, assumed that 

preservation of the balance of the native flora and fauna in these open water slough 

systems would protect other communities of native vegetation in the EPA. Further 

research should be conducted in other habitat types to further evaluate the natural 

variability in those habitat types. 

(k) The Commission has received substantial testimony regarding mercury 

and its impact on the EPA. The Commission encourages all interested parties to 

continue research efforts on the effects of mercury. 

(l) The Commission finds that this rule must incorporate a flexible approach

towards the application of the numeric phosphorus criterion for phosphorus in order to 

guide the implementation of phosphorus reductions in the Everglades Protection Area.

Chapter 403, F.S., the Everglades Forever Act and U.S. Environmental Protection 

Agency regulations set forth at 40 CFR Part 131 include general policies that authorize 

such flexibility under appropriate circumstances, including those described in 

subparagraphs (c) through (h) and (k) above. The Commission has exercised this 

authority by including in this rule both a numeric interpretation of the phosphorus 

criterion and the various other standard setting provisions of this rule, including the 

permitting and moderating provisions.

(3) Definitions. 

(a) “Best Available Phosphorus Reduction Technology” (BAPRT) shall be as

defined by s. 373.4592(2)(a), F.S. BMPs shall maintain and, where practicable, improve 

upon the performance of urban and agricultural source controls in reducing overall 

phosphorus levels. Agricultural BMPs within the Everglades Agricultural Area and the C139 Basin shall be in accordance with Rules 40E-61 and 40E-63, F.A.C. STA 

phosphorus reductions shall be improved through implementation of optimization 

measures as defined by s. 373.4592(2)(l), F.S. BAPRT may include measures intended 

to reduce phosphorus levels in discharges from a single basin or sub-basin, or a 

program designed to address discharges from multiple basins.

(b) “Long-Term Plan” shall be as defined by Section 373.4592(2)(j), F.S.

(c) The “Everglades Protection Area” or “EPA” shall mean Water 

Conservation Areas 1 (Refuge), 2A, 2B, 3A and 3B, and the Everglades National Park. 

(d) “Impacted Areas” shall mean areas of the EPA where total phosphorus 

concentrations in the upper 10 centimeters of the soils are greater than 500 mg/kg. 

(e)“District” shall mean the South Florida Water Management District. 

(f) “Optimization” shall be as defined by Section 373.4592(2)(l), F.S.
(g)“Settlement Agreement” shall mean the Settlement Agreement entered in 

Case No. 88-1886-Civ-Hoeveler, United States District Court for the Southern District of 

Florida, as modified by the Omnibus Order entered in the case on April 27, 2001. 

(h) “Technology-based effluent limitation” or “TBEL” shall be defined in

Section 373.4592(2)(p), F.S.

(i) “Unimpacted Areas” shall mean those areas which are not “Impacted 

Areas”. 

(4) Phosphorus Criterion. 

(a) The numeric phosphorus criterion for Class III waters in the EPA shall be 

a long-term geometric mean of 10 ppb, but shall not be lower than the natural conditions 

of the EPA, and shall take into account spatial and temporal variability. Achievement of 

the criterion shall be determined by the methods in this subsection. Exceedences of the 

provisions of the subsection shall not be considered deviations from the criterion if they 

are attributable to the full range of natural spatial and temporal variability, statistical 

variability inherent in sampling and testing procedures or higher natural background 

conditions. 

(b) Water Bodies. 

Achievement of the phosphorus criterion for waters in the EPA shall be 

determined separately in impacted and unimpacted areas in each of the following 

waterbodies: Water Conservation Areas 1, 2 and 3, and the Everglades National Park. 

(c) Achievement of Criterion in Everglades National Park. 

Achievement of the phosphorus criterion in the Park shall be based on the methods as 

set forth in Appendix A of the Settlement Agreement unless the Settlement Agreement is 

rescinded or terminated. If the Settlement Agreement is no longer in force, achievement 

of the criterion shall be determined based on the method provided for the remaining 

EPA. 

For the Park, the Department shall review data from inflows into the park at locations 

established pursuant to Appendix A of the Settlement Agreement and shall determine 

that compliance is achieved if the Department concludes that phosphorus concentration 

limits for inflows into the Park do not result in a violation of the limits established in 

Appendix A. 

(d) Achievement of the Criterion in WCA-1, WCA-2 and WCA-3. 

1. Achievement of the criterion in unimpacted areas in each WCA shall be 

determined based upon data from stations that are evenly distributed and located 

in freshwater open water sloughs similar to the areas from which data were 

obtained to derive the phosphorus criterion. Achievement of the criterion shall be 

determined based on data collected monthly from the network of monitoring 

stations in the unimpacted area. The water body will have achieved the criterion 

if the five year geometric mean averaged across all stations is less than or equal 

to 10 ppb. In order to provide protection against imbalances of aquatic flora or 

fauna, the following provisions must also be met: 

a. The annual geometric mean average across all stations is less than or 

equal to 10 ppb for three of five years; and 

b. The annual geometric mean averaged across all stations is less than or 

equal to 11 ppb; and 

c. The annual geometric mean at all individual stations is less than or 

equal to 15 ppb. Individual station analyses are representative of only that 

station. 

2. Achievement of the criterion shall be determined based on data collected 

monthly from the network of monitoring stations in the impacted area. Impacted 
Areas of the water body will have achieved the criterion if the five year geometric 

mean averaged across all stations is less than or equal to 10 ppb. In order to 

provide protection against imbalances of aquatic flora or fauna, the following 

provisions must also be met: 

a. The annual geometric mean averaged across all stations is less than or 

equal to 10 ppb for three of five years; and 

b. The annual geometric mean averaged across all stations is less than or 

equal to 11 ppb; and 

c. The annual geometric mean at all individual stations is less than or 

equal to 15 ppb. Individual station analyses are representative of only that 

station. 

If these limits are not met, no action shall be required, provided that the net

improvement or hydropattern restoration provisions of subsection (6) below are met.

Notwithstanding the definition of Impacted Area in subsection (3), individual stations in 

the network shall be deemed to be unimpacted for purposes of this rule if the five-year 

geometric mean is less than or equal to 10 ppb and the annual geometric mean is less 

than or equal to 15 ppb. 

(e) Adjustment of Achievement Methods. 

The Department shall complete a technical review of the achievement methods 

set forth in this subsection at a minimum of five year intervals and will report to the ERC 

on changes as needed. Data will be collected as necessary at stations that are evenly 

distributed and representative of major natural habitat types to further define the natural 

spatial and temporal variability and natural background of phosphorus concentrations in 

the EPA. As a part of the review, the Department may propose amendments to the 

achievement method provisions of this rule to include: (1) a hydrologic variability 

algorithm in a manner similar to the Settlement Agreement; and (2) implementing 

adjustment factors that take into account water body specific variability, including the 

effect of habitat types. The hydrologic variability evaluation shall be based on data from 

at least one climatic drought cycle and data reflecting the average interior stage of the 

water body on the dates of sample collection. 

(f) Data Screening. Data from each monitoring station shall be evaluated 

prior to being used for the purposes of determining achievement of the criterion. Data 

shall be excluded from calculations for the purpose of determining achievement of the 

criterion if such data: 

1. Do not comply with the requirements of Chapter 62-160, F.A.C.; or 

2. Are excluded through the screening protocol set forth in the Data 

QualityScreening Protocol; or 

3. Were collected from sites affected by extreme events such as fire, flood, 

drought or hurricanes, until normal conditions are restored; or 

4. Where affected by localized activities caused by temporary human or 

natural disturbances such as airboat traffic, authorized (permitted or exempt) 

restoration activities, alligator holes, or bird rookeries. 

5. Were sampled in years where hydrologic conditions (e.g. rainfall amount, 

water levels and water deliveries) were outside the range that occurred during 

the period (calendar years 1978-2001) used to set the phosphorus criterion. 

(5) Long-Term Compliance Permit Requirements for Phosphorus Discharges into 

the EPA. 

(a) In addition to meeting all other applicable permitting criteria, an applicant

must provide reasonable assurance that the discharge will comply with state water 

quality standards as set forth in this section.
(b) Discharges into the EPA shall be deemed in compliance with state water 

quality standards upon a demonstration that: 

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

criterion set forth in this rule; or 

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

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

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

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

(c) Discharges into the Park must not result in a violation of the concentration 

limits established for the Park in Appendix A of the Settlement Agreement as 

determined through the methodology set forth in paragraph (4). 

(d) Discharge limits for permits allowing discharges into the EPA shall be

based upon TBELs established through BAPRT and shall not require water quality 

based effluent limitations through 2016. Such TBELs shall be applied as effluent 

limitations as defined in Rule 62-302.200(10), F.A.C.

(6) Moderating Provisions. The following moderating provisions are

established for discharges into or within the EPA as a part of state water quality

standards applicable to the phosphorus criterion set forth in this rule:

(a) Net Improvement in Impacted Areas.

1. Until December 31, 2016, discharges into or within the EPA shall be

permitted using net improvement as a moderating provision upon a 

demonstration by the applicant that:

a. The permittee will implement, or cause to be implemented, BAPRT, as

defined by s. 373.4592(2)(a), F.S., and further provided in this section, 

which shall include a continued research and monitoring program 

designed to reduce outflow concentrations of phosphorus; and

b. The discharge is into or within an impacted area.

2. BAPRT shall use an adaptive management approach based on the best

available information and data to develop and implement incremental 

phosphorus reduction measures with the goal of achieving the phosphorus 

criterion. BAPRT shall also include projects and strategies to accelerate 

restoration of natural conditions with regard to populations of native flora or 

fauna.

3. For purposes of this rule, the Long-Term Plan shall constitute BAPRT. The

planning goal of the Long-Term Plan is to achieve compliance with the criterion 

set forth in subsection (4) of this rule. Implementation of BAPRT will result in net 

improvement in impacted areas of the EPA. The Initial Phase of the Long-Term 

Plan shall be implemented through 2016. Revisions to the Long-Term Plan shall 

be incorporated through an adaptive management approach including a Process 

Development and Engineering component to identify and implement incremental 

optimization measures for further phosphorus reductions.

4. The Department and the District shall propose amendments to the Long-Term 

Plan as science and environmental conditions warrant. The Department shall 

approve all amendments to the Long-Term Plan.

5. As part of the review of permit applications, the Department shall review

proposed changes to the Long-Term Plan identified through the Process

Development and Engineering component of the Long-Term Plan to evaluate 

changes necessary to comply with this rule, including the numeric phosphorus 

criterion. Those changes which the department deems necessary to comply with 
this rule, including the numeric phosphorus criterion, shall be included as 

conditions of the respective permit or permits for the structures associated with 

the particular basin or basins involved. Until December 31, 2016, such permits 

shall include technology-based effluent limitations consistent with the Long-Term 

Plan.

(b) Hydropattern Restoration. Discharges into or within unimpacted areas of

the EPA shall be permitted for hydropattern restoration purposes upon a demonstration 

by the applicant that:

1. The discharge will be able to achieve compliance with the requirements of

paragraph (6)(a)1.a. above;

2. The environmental benefits of establishing the discharge clearly outweigh the 

potential adverse impacts that may result in the event that phosphorus levels in 

the discharge exceed the criterion; and

3. The discharge complies with antidegradation requirements.

(c) Existing Moderating Provisions. Nothing in this rule shall eliminate the

availability of moderating provisions that may otherwise exist as a matter of law, rule or 

regulation.

(7) Document Incorporated By Reference. The following document is 

referenced elsewhere in this Section and is hereby incorporated by reference: 

Data Quality Screening Protocol, dated July 15, 2004. 

(8) Contingencies. In the event any provision of this rule is challenged in any 

proceeding, the Commission shall immediately by notified. In the event any provision of 

this rule: (a) is determined to be invalid under applicable law; or (b) is disapproved by the 

U.S. Environmental Protection Agency under the Clean Water Act, the Department shall 

bring the matter back before the Commission at the earliest practicable date for 

reconsideration. 

Specific Authority 373.043, 373.4592, 403.061 FS. Law Implemented 373.016, 373.026, 

373.4592, 403.021(11), 403.061, 403.201 FS. History – New 7-15-04, Amended 5-25-

05.