### 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 rul e 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 C hapter 373 and 403, F.S., to establish water quality standards for phosphorus, incl uding 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. Establishme nt 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 (BMP s) 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 p hosphorus 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 w ater 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 ph osphorus 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 en vironmental

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

most cost

- effective and environmentally pref erable means to achieve further phosphorus reductions to the EPA, and to restore impacted areas. The

effective ness 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 environmenta lly 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 phos phorus 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 P hosphorus 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 imple mentation 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 u nder 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 pract icable, improve upon the performance of urban and agricultural source controls in reducing overall phosphorus levels. Agricultural BMPs within the Everglades Agricultural Area and the C

139 Basin shall be in accordance with Rules 40E

- 61 and 40E

- 63, F.A.C. STA phosphorus reductions shall be improved th rough 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 d esigned 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) “Optimizat ion” 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 spatia l 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 cons idered 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. ImpactedAreas of the water body will have achieved t he 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 acti on shall be required, provided that the net improvement or hydropattern restoration pr ovisions 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 activi ties 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 EP A 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, 20 16, 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 managemen t 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 o f 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 manag ement 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 sci ence 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 withthis rule, including the nume ric 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 limitati ons 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 t o 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 moderati n g provisions that may otherwise exist as a matter of law, rule or regulat ion.

(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.