Vol. 77 Tuesday, 

No. 243 December 18, 2012 

Part II 

Environmental Protection Agency 

40 CFR Part 131 

Water Quality Standards for the State of Florida’s Estuaries, Coastal 

Waters, and South Florida Inland Flowing Waters; Water Quality Standards 

for the State of Florida’s Streams and Downstream Protection Values for 

Lakes: Remanded Provisions; Proposed Rules 


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74924 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[EPA–HQ–OW–2010–0222; FRL–9759–3] 

RIN 2040–AF21 

Water Quality Standards for the State 

of Florida’s Estuaries, Coastal Waters, 

and South Florida Inland Flowing 

Waters 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The U.S. Environmental 

Protection Agency (EPA or Agency) is 

proposing numeric water quality criteria 

to protect ecological systems, aquatic 

life, and human health from nitrogen 

and phosphorus pollution in estuaries 

and coastal waters within the State of 

Florida not covered by EPA-approved 

State rulemaking, and south Florida 

inland flowing waters. These proposed 

criteria apply to Florida waters that are 

designated as Class I, Class II, or Class 

III waters and they are intended to 

protect these designated uses as well as 

implement for the purposes of the Clean 

Water Act the State’s narrative nutrient 

provision at Subsection 62– 

302.530(47)(b), Florida Administrative 

Code (F.A.C.), which provides that ‘‘[i]n 

no case shall nutrient concentrations of 

a body of water be altered so as to cause 

an imbalance in natural populations of 

aquatic flora or fauna.’’ 

DATES: Comments must be received on 

or before February 19, 2013. Because of 

EPA’s obligation to sign a notice of final 

rulemaking on or before September 30, 

2013 under Consent Decree, the Agency 

regrets that it will be unable to grant any 

requests to extend this deadline. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OW–2010–0222, by one of the following 

methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: ow-docket@epa.gov. 

3. Mail to: Water Docket, U.S. 

Environmental Protection Agency, Mail 

code: 2822T, 1200 Pennsylvania Avenue 

NW, Washington, DC 20460, Attention: 

Docket ID No. EPA–HQ–OW–2010– 

0222. 

4. Hand Delivery: EPA Docket Center, 

EPA West Room 3334, 1301 

Constitution Avenue NW, Washington, 

DC 20004, Attention Docket ID No. 

EPA–HQ–OW–2010–0222. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OW–2010– 

0222. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

a docket facility. The Office of Water 

(OW) Docket Center is open from 8:30 

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

Friday, excluding legal holidays. The 

OW Docket Center telephone number is 

(202) 566–2426, and the Docket address 

is OW Docket, EPA West, Room 3334, 

1301 Constitution Avenue NW., 

Washington, DC 20004. The Public 

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

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

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744. 

FOR FURTHER INFORMATION CONTACT: 

Erica Fleisig, U.S. EPA Headquarters, 

Office of Water, Mailcode: 4305T, 1200 

Pennsylvania Avenue NW, Washington, 

DC 20460; telephone number: (202) 

566–1057; email address: 

fleisig.erica@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

supplementary information section is 

organized as follows: 

Table of Contents 

I. General Information 

A. Executive Summary 

B. Which water bodies are affected by this 

rule? 

C. What entities may be affected by this 

rule? 

D. What should I consider as I prepare my 

comments for EPA? 

E. How can I get copies of this document 

and other related information? 

II. Background 

A. Nitrogen and Phosphorus Pollution 

B. Statutory and Regulatory Background 

C. Water Quality Criteria 

D. EPA Determination Regarding Florida 

and Consent Decree 

E. EPA’s Rulemaking and Subsequent 

Litigation 

F. Florida Adoption of Numeric Nutrient 

Criteria and EPA Approval 

III. Proposed Numeric Criteria for Florida’s 

Estuaries, Coastal Waters, and South 

Florida Inland Flowing Waters 

A. General Information and Approaches 

B. Proposed Numeric Criteria for Estuaries 

C. Proposed Numeric Criteria for Coastal 

Waters 

D. Proposed Numeric Criteria for South 

Florida Inland Flowing Waters 

E. Applicability of Criteria When Final 

IV. Under what conditions will EPA either 

not finalize or withdraw these Federal 

standards? 

V. Alternative Regulatory Approaches and 

Implementation Mechanisms 

A. Designating Uses 

B. Variances 

C. Site-Specific Alternative Criteria 

D. Compliance Schedules 

VI. Economic Analysis 

A. Incrementally Impaired Waters 

B. Point Source Costs 

C. Non-Point Source Costs 

D. Governmental Costs 

E. Summary of Costs 

F. Benefits 

VII. Statutory and Executive Order Reviews 

A. Executive Orders 12866 (Regulatory 

Planning and Review) and 13563 

(Improving Regulation and Regulatory 

Review) 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132 (Federalism) 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

G. Executive Order 13045 (Protection of 

Children From Environmental Health 

and Safety Risks) 

H. Executive Order 13211 (Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use) 

I. National Technology Transfer 

Advancement Act of 1995 

J. Executive Order 12898 (Federal Actions 

To Address Environmental Justice in 


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1EPA has distinguished south Florida inland 

flowing waters as waters in the South Florida 

Nutrient Watershed Region (SFNWR). The SFNWR 

was defined previously in EPA’s final rule for lakes 

and flowing waters as the area south of Lake 

Okeechobee, the Caloosahatchee River watershed 

(including Estero Bay) to the west of Lake 

Okeechobee, and the St. Lucie watershed to the east 

of Lake Okeechobee. 

2FL Statute Section 373.4592 (1994) subsection 

(2) Definitions: (e) ‘‘Everglades Agricultural Area’’ 

or ‘‘EAA’’ means the Everglades Agricultural Area, 

which are those lands described in FL Statute 

Section 373.4592 (1994) subsection (15). FL Statute 

Section 373.4592 (1994) subsection (2) Definitions: 

(h) ‘‘Everglades Protection Area’’ means Water 

Conservation Areas 1 (which includes the Arthur R. 

Marshall Loxahatchee National Wildlife Refuge), 

2A, 2B, 3A, and 3B, and the Everglades National 

Park. 

3FFWCC. 2011. The economic impact of 

saltwater fishing in Florida. Florida Fish and 

Wildlife Conservation Commission. http:// 

myfwc.com/conservation/value/saltwater-fishing. 

Accessed December 2011. 

4FDEP. 2008. Chapter 5—Outdoor Recreation 

Demand and Need. In Outdoor Recreation in 

Florida, 2008: Florida’s Comprehensive Outdoor 

Recreation Plan, Final Draft. Florida Department of 

Environmental Protection, Division of Recreation 

and Parks, Tallahassee, FL. http:// 

www.dep.state.fl.us/parks/planning/forms/ 

SCORP5.pdf. Accessed December 2011. 

5FDEP. 2012. Integrated Water Quality 

Assessment for Florida: 2012 305(b) Report and 

303(d) List Update. (May 2012). Florida Department 

of Environmental Protection, Division of 

Environmental Assessment and Restoration, 

Tallahassee, FL. http://www.dep.state.fl.us/water/ 

docs/2012_integrated_report.pdf. Accessed August 

2012. 

Minority Populations and Low-Income 

Populations) 

I. General Information 

A. Executive Summary 

1. Purpose of the Regulatory Action 

The primary purpose of this rule is to 

propose numeric water quality criteria 

to protect ecological systems, aquatic 

life, and human health within the State 

of Florida from nitrogen and 

phosphorus pollution. The criteria 

proposed in this rule apply to certain 

estuaries and coastal waters within the 

State of Florida and south Florida 

inland flowing waters (e.g., rivers, 

streams, canals),1 with the exception of 

waters within the lands of the 

Miccosukee and Seminole Tribes, the 

Everglades Agricultural Area (EAA), and 

the Everglades Protection Area (EvPA).2

The criteria support implementation 

of pollution control programs 

authorized under the Clean Water Act 

(CWA). As part of a comprehensive 

program to restore and protect the 

Nation’s waters, Section 303(c) of the 

CWA directs states to adopt water 

quality standards for their navigable 

waters. CWA Section 303(c)(2)(A) and 

EPA’s implementing regulations at 40 

CFR 131 require that state water quality 

standards include the designated use 

(e.g. public water supply, propagation of 

fish and wildlife, recreational purposes) 

and criteria that protect those uses. 

Criteria may be numeric or narrative in 

form, but consistent with EPA 

regulations at 40 CFR 131.11(a)(1), such 

criteria ‘‘must be based on sound 

scientific rationale and must contain 

sufficient parameters or constituents to 

protect the designated use.’’ EPA 

regulations at 40 CFR 131.10(b) also 

provide that ‘‘[i]n designating uses of a 

water body and the appropriate criteria 

for those uses, the state shall take into 

consideration the water quality 

standards of downstream waters and 

ensure that its water quality standards 

provide for the attainment and 

maintenance of the water quality 

standards of downstream waters.’’ The 

CWA requires that any new or revised 

water quality standards developed by 

states be submitted to EPA for review 

and approval or disapproval, and 

authorizes the EPA Administrator to 

determine, even in the absence of a state 

submission, that a new or revised 

standard is needed to meet CWA 

requirements. 

Florida is known for its abundant and 

aesthetically beautiful natural resources, 

particularly its aquatic resources, which 

are very important to Florida’s 

economy. Florida’s coastal and 

estuarine waters play an especially 

important part in sustaining the 

environment and the economy in the 

State. For example, Florida’s saltwater 

sport fishing industry contributes over 

$5 billion to the State’s economy and 

more than 54,000 jobs annually; the 

State’s commercial saltwater fishing 

industry contributes over $1 billion and 

more than 10,000 jobs annually.3 In 

2007, nearly 11.3 million residents and 

46.3 million visitors participated in 

recreational saltwater beach activities in 

Florida. Nearly 3.5 million residents 

and approximately 1.4 million visitors 

used saltwater boat ramps, over 4.2 

million residents and about 3 million 

visitors participated in saltwater nonboat fishing, and over 2.6 million 

residents and almost 1 million visitors 

participated in canoeing and kayaking.4

However, nitrogen and phosphorus 

pollution has contributed to serious 

water quality degradation affecting these 

coastal and estuarine resources in the 

State of Florida, as well as other Florida 

waters. In the most recent Florida 

Department of Environmental Protection 

(FDEP) water quality assessment report, 

the Integrated Water Quality 

Assessment for Florida: 2012 305(b) 

Report and 303(d) List Update, FDEP 

describes widespread water quality 

impairment in Florida due to nitrogen 

and phosphorus pollution. FDEP’s 2012 

report identifies approximately 754 

square miles (482,560 acres) of estuaries 

(about 14 percent of assessed estuarine 

area) and 102 square miles (65,280 

acres) of coastal waters (about 1.6 

percent of assessed coastal waters) as 

impaired by nutrients. In addition, the 

same report indicates that 1,108 miles of 

rivers and streams (about 8 percent of 

assessed river and stream miles) and 

107 square miles (68,480 acres) of lakes 

(about 5 percent of assessed lake square 

miles) are impaired due to nutrient 

pollution.5

On January 14, 2009, EPA determined 

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

new or revised water quality standards 

(WQS) in the form of numeric nutrient 

water quality criteria are necessary to 

protect the designated uses that Florida 

has set for its Class I, Class II, and Class 

III waters. Subsequently, EPA entered 

into a Consent Decree with Florida 

Wildlife Federation, Sierra Club, 

Conservancy of Southwest Florida, 

Environmental Confederation of 

Southwest Florida, and St. Johns 

Riverkeeper, effective on December 30, 

2009, which established a schedule for 

EPA to propose and promulgate 

numeric nutrient criteria for Florida’s 

lakes, flowing waters, estuaries, and 

coastal waters. The Consent Decree also 

provided that if Florida submitted and 

EPA approved numeric nutrient criteria 

for any relevant waterbodies before the 

dates outlined in the schedule, EPA 

would no longer be obligated to propose 

or promulgate criteria for those 

waterbodies. 

On June 13, 2012, FDEP submitted 

new and revised WQS for review by the 

EPA pursuant to section 303(c) of the 

CWA. These new and revised WQS are 

set out primarily in Rule 62–302 of the 

F.A.C. [Surface Water Quality 

Standards]. FDEP also submitted 

amendments to Rule 62–303, F.A.C. 

[Identification of Impaired Surface 

Waters], which sets out Florida’s 

methodology for assessing whether 

waters are attaining State WQS. On 

November 30, 2012, EPA approved the 

provisions of these rules submitted for 

review that constitute new or revised 

WQS (hereafter referred to as the 

‘‘newly-approved State WQS’’). 

Among the newly-approved State 

WQS are numeric criteria for nutrients 

that apply to a set of estuaries and 

coastal marine waters in Florida. 

Specifically, these newly-approved 

State WQS apply to Clearwater Harbor/ 

St. Joseph Sound, Tampa Bay, Sarasota 

Bay, Charlotte Harbor/Estero Bay, Clam 

Bay, Tidal Cocohatchee River/Ten 

Thousand Islands, Florida Bay, Florida 


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6Clam Bay, Tidal Cocohatchee River/Ten 

Thousand Islands, Florida Bay, Florida Keys, and 

Biscayne Bay are collectively referred to in this 

proposed rule as ‘‘south Florida marine waters,’’ as 

these are the predominantly marine waters 

downstream of the South Florida Nutrient 

Watershed Region. 

7This area includes waters offshore of 

Apalachicola Bay, Alligator Harbor, Ochlockonee 

Bay, Big Bend/Apalachee Bay, Suwannee River, and 

Springs Coast. 

8EPA derived TN and TP criteria for coastal 

waters in the Big Bend Coastal region because 

mechanistic models were used in these areas. 

9 40 CFR 131.43(e) authorizes the derivation of 

Federal Site-Specific Alternative Criteria (SSAC) 

after EPA review and approval of applicant 

submissions of scientifically defensible criteria that 

meet the requirements of CWA section 303(c) and 

EPA’s implementing regulations at 40 CFR 131. 

10USEPA. 2000a. Nutrient Criteria Technical 

Guidance Manual: Lakes and Reservoirs. EPA–822– 

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

Office of Water, Washington, DC. 

USEPA. 2000b. Nutrient Criteria Technical 

Guidance Manual: Rivers and Streams. EPA–822– 

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

Office of Water, Washington, DC. 

USEPA. 2001. Nutrient Criteria Technical 

Guidance Manual: Estuarine and Coastal Marine 

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

Protection Agency, Office of Water, Washington, 

DC. 

USEPA. 2010. Using Stressor-Response 

Relationships to Derive Numeric Nutrient Criteria. 

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

Agency, Office of Water, Washington, DC. 

Keys, and Biscayne Bay.6 Under the 

Consent Decree, EPA is relieved of its 

obligation to propose numeric criteria 

for these waters. 

Finally, as described in EPA’s 

November 30, 2012 approval of 

Florida’s new or revised WQS, while 

EPA believes that the provisions 

addressing downstream protection will 

provide for quantitative approaches to 

ensure the attainment and maintenance 

of downstream waters consistent with 

40 CFR 131.10(b), the provisions 

themselves do not consist of numeric 

values. Because EPA is currently subject 

to a Consent Decree deadline to sign a 

rule proposing numeric downstream 

protection values (DPVs) for Florida by 

November 30, 2012, EPA is proposing 

numeric DPVs to comply with the 

Consent Decree. However, EPA has 

amended its January 2009 determination 

to specify that numeric criteria for 

downstream protection are not 

necessary and that quantitative 

approaches designed to ensure the 

attainment and maintenance of 

downstream water quality standards, 

such as those established by Florida, are 

sufficient to meet CWA requirements. 

As such, EPA will ask the court to 

modify the Consent Decree consistent 

with the Agency’s amended 

determination, i.e., to not require EPA to 

promulgate numeric DPVs for Florida. 

Accordingly, EPA approved the State’s 

downstream protection provisions 

subject to the district court modifying 

the Consent Decree to not require EPA 

to promulgate numeric DPVs for 

Florida. If the district court agrees to so 

modify the Consent Decree, EPA will 

not promulgate numeric DPVs for 

Florida. However, if the district court 

declines to so modify the Consent 

Decree, EPA would intend to 

promulgate numeric DPVs for Florida 

and would also expect to revisit its 

November 30, 2012 approval of the State 

Rule’s downstream protection 

provisions to modify or withdraw its 

approval. Therefore, EPA has also 

reserved its authority to do so in its 

approval document. 

A full description of all of EPA’s 

recent actions on Florida numeric 

nutrient criteria and related 

implications for EPA’s own rules can be 

found at http://water.epa.gov/lawsregs/ 

rulesregs/florida_index.cfm. 

EPA is proposing these numeric 

criteria in accordance with the terms of 

the January 14, 2009 determination, 

December 2009 Consent Decree, and 

subsequent revisions to that Consent 

Decree that require the EPA 

Administrator to sign this proposal by 

November 30, 2012 (discussed in more 

detail in Section II.D). EPA believes that 

the proposed criteria in this rule will 

assure protection of Florida’s existing 

designated uses and are based on sound 

and substantial scientific data and 

analyses. 

2. Summary of the Major Provisions of 

the Regulatory Action 

To develop these proposed numeric 

nutrient criteria for Florida’s estuaries, 

coastal waters, and south Florida inland 

flowing waters, the Agency conducted a 

detailed scientific analysis of the 

substantial amount of water quality data 

available from Florida’s extensive 

monitoring data set. 

EPA concluded that an approach 

using relevant biological endpoints and 

multiple lines of evidence including 

stressor-response analyses and 

mechanistic modeling was a strong and 

scientifically sound approach for 

deriving numeric nutrient criteria for 

estuaries, in the form of total nitrogen 

(TN), total phosphorus (TP) and 

chlorophyll a concentrations. EPA’s 

methodology and the resulting proposed 

estuarine numeric nutrient criteria are 

presented in more detail in Section III.B 

of this notice of proposed rulemaking. 

For coastal waters on the Atlantic and 

Gulf coasts of Florida, EPA is proposing 

to use a reference condition-based 

approach. EPA chose to use satellite 

remote sensing in all coastal areas of 

Florida except the Big Bend Coastal 

region. Using this approach, EPA 

developed chlorophyll a criteria from 

satellite remote sensing imagery and 

field data to calibrate the satellite 

remote sensing imagery. In the Big Bend 

Coastal region of Florida,7 where 

satellite remote sensing predictions of 

chlorophyll a were not possible due to 

reflectance that interferes with the 

remote sensing imagery in that area, 

EPA used mechanistic and statistical 

models to determine TN, TP, and 

chlorophyll a criteria for these coastal 

waters.8 EPA’s methodology and results 

for its proposed coastal criteria are 

presented in more detail in Sections 

III.B and III.C. 

EPA is proposing numeric nutrient 

criteria to ensure the attainment and 

maintenance of the water quality 

standards in downstream estuaries and 

south Florida marine waters pursuant to 

the provisions of 40 CFR 131.10(b). EPA 

examined a variety of modeling 

techniques and data to assess whether 

waters entering an estuary protect the 

water quality standards within the 

estuary. Accordingly, EPA is proposing 

an approach to derive TN and TP 

criteria expressed as downstream 

protection values (DPVs) at the points 

where inland flowing waters flow into 

estuaries, or marine waters in south 

Florida (referred to as ‘pour points’). 

These proposed DPVs apply to all 

flowing waters, including south Florida 

inland flowing waters (with the 

exception of waters within the lands of 

the Miccosukee and Seminole Tribes, 

EAA, and EvPA), that flow directly into 

estuaries or south Florida marine 

waters. EPA’s proposed approach for 

deriving DPVs at the pour points 

involves an evaluation of water quality 

in the downstream estuary, water 

quality conditions at the pour point, and 

selecting a method to derive the DPV 

values based on available data. The 

proposed approaches for deriving DPVs 

in flowing waters are presented in more 

detail in Sections III.B and III.D. 

Finally, EPA is proposing to extend 

the approach finalized in 40 CFR 

131.43(e) 9 to allow development of SiteSpecific Alternative Criteria (SSAC) for 

estuaries, coastal waters, and south 

Florida inland flowing waters. EPA’s 

rationale for extending these SSAC 

provisions is discussed in more detail in 

Section V.C. 

EPA has incorporated sound science, 

local expertise, and substantial Floridaspecific data throughout the 

development of these proposed numeric 

TN, TP, and chlorophyll a criteria. EPA 

relied upon peer-reviewed criteria 

development methodologies,10 relevant 

biological endpoints, and a substantial 


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11USEPA–SAB. 2011. Review of EPA’s draft 

Approaches for Deriving Numeric Nutrient Criteria 

for Florida’s Estuaries, Coastal Waters, and 

Southern Inland Flowing Waters. EPA–SAB–11– 

010. U.S. Environmental Protection Agency, 

Science Advisory Board, Washington, DC. 

12USEPA. 2010. Methods and Approaches for 

Deriving Numeric Criteria for Nitrogen/Phosphorus 

Pollution in Florida’s Estuaries, Coastal Waters, and 

Southern Inland Flowing Waters. U.S. 

Environmental Protection Agency, Office of Water, 

Washington, DC. 

13USEPA–SAB. 2011. Review of EPA’s draft 

Approaches for Deriving Numeric Nutrient Criteria 

for Florida’s Estuaries, Coastal Waters, and 

Southern Inland Flowing Waters. EPA–SAB–11– 

010. U.S. Environmental Protection Agency, 

Science Advisory Board, Washington, DC. 

14Subsection 62–302.530(47)(b), Florida 

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

case shall nutrient concentrations of a body of water 

be altered so as to cause an imbalance in natural 

populations of aquatic flora or fauna.’’ 

body of scientific analysis provided to 

EPA by FDEP, as well as other federal, 

State, and local partners such as the 

National Park Service; National Oceanic 

and Atmospheric Administration 

(NOAA); U.S. Geological Survey 

(USGS); Tampa Bay, Indian River 

Lagoon, Sarasota Bay and Charlotte 

Harbor National Estuary Programs; St. 

Johns River and South Florida Water 

Management Districts; and Florida 

International University. 

EPA sought feedback on the scientific 

defensibility of the approaches outlined 

in this proposed rule through a Science 

Advisory Board (SAB) review.11 The 

SAB assembled a group of eighteen 

expert panelists to review EPA’s 

Methods and Approaches for Deriving 

Numeric Criteria for Nitrogen/ 

Phosphorus Pollution in Florida’s 

Estuaries, Coastal Waters, and Southern 

Inland Flowing Waters.12 The SAB 

recommendations 13 strengthened the 

scientific basis of these proposed 

numeric nutrient criteria. A number of 

key interest groups presented their 

comments and views on the underlying 

science as part of the SAB review 

process. In addition, EPA met with 

several groups of stakeholders with 

local technical expertise to discuss 

potential approaches for deriving 

scientifically defensible numeric 

nutrient criteria. 

3. Costs and Benefits 

For the reasons presented in this 

notice, this is not an economically 

significant regulatory action under 

Executive Order 12866. Under the CWA, 

EPA’s promulgation of WQS establishes 

standards that the State of Florida 

implements through the National 

Pollutant Discharge Elimination System 

(NPDES) permit process for point source 

dischargers and may also result in new 

or revised requirements for nitrogen and 

phosphorus pollution treatment controls 

on other sources (e.g., agriculture, urban 

runoff, and septic systems) through the 

development of Total Maximum Daily 

Loads (TMDLs) and Basin Management 

Action Plans (BMAPs). As a result of 

this action, the State of Florida will 

need to ensure that permits it issues and 

Waste Load Allocations (WLAs) issued 

under TMDLs and BMAPs include any 

limitations on discharges and other 

sources necessary to comply with the 

standards established in the final rule. 

In doing so, the State will have 

considerable discretion and a number of 

choices associated with permit writing 

(e.g., relating to compliance schedules, 

variances, etc.) and flexibilities built 

into the TMDL and BMAP process for 

WLA assignment. While Florida’s 

implementation of the rule may 

ultimately result in new or revised 

permit conditions for some dischargers 

and WLA requirements for control on 

other sources, EPA’s action, by itself, 

does not establish any requirements 

directly applicable to regulated entities 

or other sources of nitrogen and 

phosphorus pollution. Additionally, 

Florida already has an existing narrative 

water quality criterion 14 which requires 

that nutrients not be present in estuaries 

and coastal waters in Florida or in south 

Florida inland flowing waters in 

concentrations that cause an imbalance 

in natural populations of flora and 

fauna. The proposed criteria in this rule 

are consistent with and serve to 

implement the State’s existing narrative 

nutrient provision. 

Although the proposed rule does not 

establish any requirements directly 

applicable to regulated entities or other 

sources of nutrient pollution, EPA 

developed an economic analysis to 

provide information on potential costs 

and benefits that may be associated with 

the State implementation requirements 

that may be necessary to ensure 

attainment of WQS. EPA conducted an 

analysis to estimate both the increase in 

the number of impaired waters that may 

be identified as a result of the proposed 

rule and the annual cost of CWA 

pollution control actions likely to be 

implemented by the State of Florida to 

assure attainment of applicable State 

water quality designated uses for these 

waters. It is important to note that the 

costs and benefits of pollution controls 

needed to attain water quality standards 

for nutrients for waters already 

identified as impaired by the State 

(including waters with TMDLs in place 

and without TMDLs in place) are not 

included in EPA estimates of the cost of 

the rule. EPA believes that these costs 

and benefits would be incurred in the 

absence of the current proposed rule 

and are therefore part of the baseline 

against which the costs and benefits of 

this rule are measured. EPA’s analysis is 

fully described in the document entitled 

Economic Analysis of Proposed Water 

Quality Standards for the State of 

Florida’s Estuaries, Coastal Waters, and 

South Florida Inland Flowing Waters 

(hereinafter referred to as the Economic 

Analysis), which can be found in the 

docket and record for this proposed 

rule. The final conclusion of this 

assessment is that the incremental costs 

associated with the proposed rule range 

between $239.0 million and $632.4 

million per year (2010 dollars) and total 

monetized benefits may be in the range 

from $39.0 to $53.4 million annually. 

EPA’s analysis describes additional 

benefits that could not be monetized. 

EPA has provided estimates of the 

annual costs and benefits; these exceed 

the $100 million threshold that defines 

an economically significant rule under 

section 3(f) of Executive Order 12866. 

However, EPA cautions that these 

estimates cannot be used to determine 

that this rule is economically 

significant. The direct effect of this rule 

is to provide Florida with a numeric 

articulation of its current narrative 

articulation of nutrients criteria, without 

affecting the resulting level of protection 

offered by the criteria. The estimates of 

costs and benefits here are indirect 

estimates (costs and benefits associated 

with controls for waters that would 

immediately be judged to be impaired 

due to numeric criteria) of the direct 

effects of this proposed rule (decreasing 

the time to implement TMDLs on 

impaired waters), and the relationship 

these indirect estimates bear to the true 

costs and benefits cannot be 

determined. 

B. Which water bodies are affected by 

this rule? 

EPA’s proposed rule applies to 

estuaries and coastal marine waters that 

have been classified by Florida as Class 

II (Shellfish Propagation or Harvesting) 

or Class III (Recreation, Propagation and 

Maintenance of a Healthy, WellBalanced Population of Fish and 

Wildlife), including tidal creeks and 

marine lakes, but excluding the 

estuarine and marine waters contained 

in Florida’s newly-approved State WQS. 

This proposed rule also applies to south 

Florida inland flowing waters that have 

been classified by Florida as Class I 

(Potable Water Supplies) or Class III 

water bodies pursuant to Section 62– 

302.400, F.A.C., excluding wetlands 

(e.g. sloughs in south Florida) and 

flowing waters within the lands of the 

Miccosukee and Seminole Tribes, EvPA, 


tkelley on DSK3SPTVN1PROD with 
74928 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

15 In this rule, EPA is interpreting the existing 

State narrative criterion under Subsection 62– 

302.530(47)(b), F.A.C. That criterion applies to 

Florida waters classified as Class I (Potable Water 

Supplies), Class II (Shellfish Propagation or 

Harvesting), and Class III Marine and Fresh 

(Recreation, Propagation and Maintenance of a 

Healthy, Well-Balanced Population of Fish and 

Wildlife). EPA is not aware of any marine waters 

that Florida has classified as Class I potable water 

supply. Therefore, for purposes of this rule, EPA is 

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

protect fish consumption, recreation, and the 

propagation and maintenance of a healthy, wellbalanced population of fish and wildlife in 

Florida’s Class II and III estuarine and coastal 

waters. 

16Class I waters also include an applicable nitrate 

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

protection of human health in drinking water 

supplies. The nitrate limit applies at the entry point 

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

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

17 ‘‘[i]n no case shall nutrient concentrations of a 

body of water be altered so as to cause an imbalance 

in natural populations of aquatic flora or fauna’’ 

18Class III limited waters include waters that 

support fish consumption; recreation or limited 

recreation; and/or propagation and maintenance of 

a limited population of fish and wildlife; see 

Chapter 62–302.400(1) F.A.C. for more details. 

19While CWA jurisdiction, and therefore EPA’s 

proposed criteria, extend only to three nautical 

miles from shore (CWA section 502(8)), Florida 

State jurisdiction extends beyond three nautical 

miles. Florida’s seaward boundary in Gulf of 

Mexico waters is 3 marine leagues (9 nautical miles) 

and in Atlantic waters is 3 nautical miles 

(Submerged Lands Act of 1953. http:// 

www.boem.gov/uploadedFiles/submergedLA.pdf; 

United States v. Florida, 363 U.S. 121 (1960)). 

Florida defines open coastal waters as ‘‘all gulf or 

ocean waters that are not classified as estuaries or 

open ocean waters.’’ Open ocean waters consist of 

‘‘all surface waters extending seaward from the 

most seaward natural 90-foot (15-fathom) isobath’’ 

(Subsection 62–303.200, F.A.C.). 

20FDEP. 2001. Chapter 2: Ecological Description. 

In: Everglades Phosphorus Criterion Technical 

Support Document. Part III: WCA–3/ENP. Florida 

Department of Environmental Protection, 

Everglades Technical Support Section. http:// 

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

pctsd/IIIChapter.2.pdf. Accessed January, 10, 2011. 

Doherty, S.J., C.R. Lane, and M.T. Brown. 2000. 

Proposed Classification for Biological Assessment 

of Florida Inland Freshwater Wetlands. Report to 

the Florida Department of Environmental 

Protection. Contract No. WM68 (Development of a 

Biological Approach for Assessing Wetland 

Function and Integrity). Center for Wetlands, 

University of Florida, Gainesville, FL. 

Ogden, J.C. 2005. Everglades ridge and slough 

conceptual ecological model. Wetlands 25(4):810– 

820. 

or EAA.15 Pursuant to Subsection 62– 

302.400(4), F.A.C., ‘‘Class I, II, and III 

surface waters share water quality 

criteria established to protect fish 

consumption, recreation and the 

propagation and maintenance of a 

healthy, well-balanced population of 

fish and wildlife.’’ 16 Florida currently 

has a narrative nutrient criterion at 

Subsection 62–302.530(47)(b), F.A.C.17

established to protect these three uses 

and EPA is numerically interpreting 

Florida’s narrative criterion for the 

purpose of protecting the Class I, II, and 

III surface waters for the purposes of the 

CWA in this proposed rulemaking. 

EPA is not proposing to change any of 

Florida’s water body classifications with 

this regulation. The proposed criteria in 

this regulation would only apply to 

water bodies that are currently classified 

by Florida as Class I, II, or III and not 

to water bodies with other 

classifications such as Class III limited 

waters 18 for which use attainability 

analyses (UAAs) and SSACs for 

nutrients have been established, or Class 

IV canals in Florida’s agricultural areas. 

EPA is defining estuary to be 

consistent with Florida’s definition of 

estuary in Section 62–303.200, F.A.C., 

where ‘‘estuary’’ shall mean 

‘‘predominantly marine regions of 

interaction between rivers and 

nearshore ocean waters, where tidal 

action and river flow mix fresh and salt 

water.’’ Such areas include bays, 

mouths of rivers, and lagoons that have 

been classified as Class II (Shellfish 

Propagation or Harvesting) or Class III 

(Recreation, Propagation and 

Maintenance of a Healthy, WellBalanced Population of Fish and 

Wildlife) water bodies pursuant to 

Section 62–302.400, F.A.C., excluding 

wetlands. 

EPA is defining coastal waters based 

on Florida’s definitions of open coastal 

waters and open ocean waters, taking 

into account that CWA jurisdiction 

extends to three nautical miles from 

shore.19 EPA’s definition of ‘‘coastal 

waters’’ is all marine waters that have 

been classified as Class II (Shellfish 

Propagation or Harvesting) or Class III 

(Recreation, Propagation and 

Maintenance of a Healthy, WellBalanced Population of Fish and 

Wildlife) water bodies pursuant to 

Section 62–302.400, F.A.C., extending 

to three nautical miles from shore that 

are not classified as estuaries. EPA’s 

proposed rule defines ‘‘marine waters’’ 

to mean surface waters in which the 

chloride concentration at the surface is 

greater than or equal to 1,500 milligrams 

per liter (mg/L). 

EPA is defining tidal creeks as 

relatively small coastal tributaries with 

variable salinity that lie at the transition 

zone between terrestrial uplands and 

the open estuary. For another subset of 

marine waters, marine lakes, EPA is 

proposing to use the definition of 

‘‘marine waters’’ and the definition of 

lakes included previously in Water 

Quality Standards for the State of 

Florida’s Lakes and Flowing Waters (40 

CFR 131.43) to define a marine lake as 

a slow-moving or standing body of 

marine water that occupies an inland 

basin that is not a stream, spring, or 

wetland. 

EPA previously defined ‘‘flowing 

waters’’ in Water Quality Standards for 

the State of Florida’s Lakes and Flowing 

Waters (40 CFR 131.43). A flowing 

water is defined as ‘‘a free-flowing, 

predominantly fresh surface water in a 

defined channel, and includes rivers, 

creeks, branches, canals, freshwater 

sloughs, and other similar water 

bodies.’’ Consistent with EPA’s 

definition in 40 CFR 131.43, EPA 

defines ‘‘canal’’ for this proposed rule to 

mean a trench, the bottom of which is 

normally covered by water with the 

upper edges of its two sides normally 

above water. Also as defined in 40 CFR 

131.43, ‘‘predominantly fresh waters’’ 

means surface waters in which the 

chloride concentration at the surface is 

less than 1,500 mg/L. EPA is not 

proposing criteria for areas currently 

managed by the State as wetlands (such 

as sloughs in south Florida), which are 

outside the scope of this rulemaking.20

C. What entities may be affected by this 

rule? 

Citizens concerned with water quality 

in Florida may be interested in this 

rulemaking. Entities discharging 

nitrogen or phosphorus to estuaries, 

coastal waters, and flowing waters in 

Florida could be indirectly affected by 

this rulemaking because water quality 

standards are used in determining 

National Pollutant Discharge 

Elimination System (NPDES) permit 

limits. Examples of categories and 

entities that may ultimately be affected 

are listed in the following table: 

Category Examples of potentially 

affected entities 

Industry .......... Industries discharging pollutants to estuaries, coastal 

waters and flowing waters 

in the State of Florida. 

Municipalities Publicly-owned treatment 

works discharging pollutants to estuaries, coastal 

waters and flowing waters 

in the State of Florida. 

Stormwater 

Management 

Districts.

Entities responsible for managing stormwater runoff in 

the State of Florida. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for entities that may be indirectly 

affected by this action. Other types of 

entities not listed in the table, such as 

non-point source contributors to 

nitrogen and phosphorus pollution in 

Florida’s waters, may be affected 

through implementation of Florida’s 

water quality standards program (e.g., 

through Basin Management Action 

Plans (BMAPs)). Any parties or entities 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74929 

21 Dubrovsky, N.M., K.R. Burow, G.M. Clark, J.M. 

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

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

T.M. Short, NE. Spahr, L.A. Sprague, and W.G. 

Wilber. 2010. The Quality of our Nation’s waters— 

Nutrients in the Nation’s Streams and 

Groundwater, 1992–2004. Circular 1350. U.S. 

Geological Survey, National Water Quality 

Assessment Program, Reston, VA. http:// 

water.usgs.gov/nawqa/nutrients/pubs/circ1350. 

Accessed December 2011. 

22Smith, V.H., S.B. Joye, and R.W. Howarth. 

2006. Eutrophication of freshwater and coastal 

marine ecosystems. Limnology and Oceanography 

51(1, part 2):351–355. 

Schindler, D.W. 2006. Recent advances in the 

understanding and management of eutrophication. 

Limnology and Oceanography 51(1, part2):356–363. 

23Nationally, only 27% of rivers and streams and 

less than 50% of lakes, reservoirs, and ponds have 

been assessed for impairment (USEPA. 2011. 

National Summary of State Information. U.S. 

Environmental Protection Agency, Watershed 

Assessment, Tracking & Environmental Results. 

http://iaspub.epa.gov/waters10/ 

attains_nation_cy.control. Accessed January 2012). 

24Bricker, S., B. Longstaff, W. Dennison, A. Jones, 

K. Boicourt, C. Wicks, and J. Woerner. 2007. Effects 

of Nutrient Enrichment in the Nation’s Estuaries: A 

Decade of Change. NOAA Coastal Ocean Program 

Decision Analysis Series No. 26. National Centers 

for Coastal Ocean Science, Silver Spring, MD. 

http://ccma.nos.noaa.gov/publications/ 

eutroupdate/Accessed January 2012. 

National Research Council. 2000. Clean Coastal 

Waters: Understanding and Reducing the Effects of 

Nutrient Pollution. Report prepared by the Ocean 

Study Board and Water Science and Technology 

Board, Commission on Geosciences, Environment 

and Resources, National Resource Council, 

Washington, DC. 

25National Academy of Sciences. 1969. 

Eutrophication: Causes, Consequences, Correctives. 

National Academy of Sciences, Washington, DC. 

conducting activities within Florida 

watersheds covered by this proposed 

rule, or who depend upon or contribute 

to the water quality of the estuaries, 

coastal waters, and flowing waters of 

Florida, may be affected by this rule. To 

determine whether your facility or 

activities may be affected by this action, 

you should examine this proposed rule. 

If you have questions regarding the 

applicability of this action to a 

particular entity, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

D. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. Do not submit 

confidential business information (CBI) 

to EPA through http:// 

www.regulations.gov or email. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date, and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

Commenters who submitted public 

comments or scientific information on 

the portions of EPA’s January 26, 2010 

proposed Water Quality Standards for 

the State of Florida’s Lakes and Flowing 

Waters (75 FR 4173) that are addressed 

in this proposal should reconsider their 

previous comments in light of the new 

information presented in this proposal 

and must re-submit their comments 

during the public comment period for 

this rulemaking to receive EPA 

response. 

E. How can I get copies of this document 

and other related information? 

1. Docket. EPA has established an 

official public docket for this action 

under Docket Id. No. EPA–HQ–OW– 

2010–0222. The official public docket 

consists of the document specifically 

referenced in this action, any public 

comments received, and other 

information related to this action. 

Although a part of the official docket, 

the public docket does not include CBI 

or other information whose disclosure is 

restricted by statute. The official public 

docket is the collection of materials that 

is available for public viewing at the 

OW Docket, EPA West, Room 3334, 

1301 Constitution Ave. NW., 

Washington, DC 20004. This Docket 

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

p.m., Monday through Friday, excluding 

legal holidays. The Docket telephone 

number is 202–566–2426. A reasonable 

fee will be charged for copies. 

2. Electronic Access. You may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

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

electronic version of the public docket 

is available through EPA’s electronic 

public docket and comment system, 

EPA Dockets. You may use EPA Dockets 

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

public comments, access the index 

listing of the contents of the official 

public docket, and to access those 

documents in the public docket that are 

available electronically. For additional 

information about EPA’s public docket, 

visit the EPA Docket Center homepage 

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

dockets.htm. Although not all docket 

materials may be available 

electronically, you may still access any 

of the publicly available docket 

materials through the Docket Facility 

identified in Section I.E(1). 

II. Background 

A. Nitrogen and Phosphorus Pollution 

1. What is nitrogen and phosphorus 

pollution? 

a. Overview of Nitrogen and Phosphorus 

Pollution 

Excess loading of nitrogen and 

phosphorus to surface water bodies and 

groundwater is one of the leading causes 

of water quality impairments in the 

United States.21 The problem extends to 

both fresh and marine waters,22 leading 

to over 15,000 nutrient pollution-related 

impairments in 49 states across the 

country—a figure that may substantially 

understate the problem as many waters 

have yet to be assessed.23 Estuaries and 

coastal waters are especially vulnerable 

to nitrogen and phosphorus pollution 

because they are the ultimate receiving 

waters for most major watersheds 

transporting nitrogen and phosphorus 

loadings from multiple upstream 

sources.24

The problem of nitrogen and 

phosphorus pollution is not new. Over 

forty years ago, a 1969 report by the 

National Academy of Sciences 25 noted 

that ‘‘[m]an’s activities, which introduce 

excess nutrients, along with other 


tkelley on DSK3SPTVN1PROD with 
74930 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

26National Research Council. 2000. Clean Coastal 

Waters: Understanding and Reducing the Effects of 

Nutrient Pollution. Report prepared by the Ocean 

Study Board and Water Science and Technology 

Board, Commission on Geosciences, Environment 

and Resources, National Resource Council, 

Washington, DC. 

27Perry, W.B. 2008. Everglades restoration and 

water quality challenges in south Florida. 

Ecotoxicology 17:569–578. 

28First, second, third, and fourth major causes of 

estuary impairments by impaired square miles are 

mercury in fish, DO, bacteria in shellfish, and fecal 

coliform, respectively. 

29FDEP. 2012. Integrated Water Quality 

Assessment for Florida: 2012 305(b) Report and 

303(d) List Update. (May 2012). Florida Department 

of Environmental Protection, Division of 

Environmental Assessment and Restoration, 

Tallahassee, FL. http://www.dep.state.fl.us/water/ 

docs/2012_integrated_report.pdf. Accessed August 

2012. 

30FDEP. 2012. Integrated Water Quality 

Assessment for Florida: 2012 305(b) Report and 

303(d) List Update. (May 2012). Florida Department 

of Environmental Protection, Division of 

Environmental Assessment and Restoration, 

Tallahassee, FL. http://www.dep.state.fl.us/water/ 

docs/2012_integrated_report.pdf. Accessed August 

2012. 

31FDEP. 2008. Integrated Water Quality 

Assessment for Florida: 2008 305(b) Report and 

303(d) List Update. Florida Department of 

Environmental Protection, Division of 

Environmental Assessment and Restoration, 

Tallahassee, FL. http://www.dep.state.fl.us/water/ 

docs/2008_Integrated_Report.pdf. Accessed July 

2011. 

32 IWR Run 40. Updated through February 2010. 

33State-EPA Nutrient Innovations Task Group. 

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

water.epa.gov/scitech/swguidance/standards/ 

criteria/nutrients/upload/ 

2009_08_27_criteria_nutrient_nitgreport.pdf 

Accessed May 2012. 

34U.S. Census Bureau. 2011. Population 

Distribution and Change: 2000 to 2010. http:// 

www.census.gov/prod/cen2010/briefs/c2010br01.pdf. Accessed July 2011. 

35SBEP. 2010. Numeric Nutrient Criteria for 

Sarasota Bay. Prepared for the Sarasota Bay Estuary 

pollutants, into lakes, streams, and 

estuaries, are causing significant 

changes in aquatic environments. The 

excess nutrients greatly accelerate the 

process of eutrophication. The pollution 

problem is critical because of increased 

population, industrial growth, 

intensification of agricultural 

production, river-basin development, 

recreational use of waters, and domestic 

and industrial exploitation of shore 

properties. Accelerated eutrophication 

causes changes in plant and animal 

life—changes that often interfere with 

use of water, detract from natural 

beauty, and reduce property values.’’ A 

2000 report by the National Research 

Council 26 concluded that ‘‘* * * 

scientists, coastal managers, and public 

decision-makers have come to recognize 

that coastal ecosystems suffer a number 

of environmental problems that can, at 

times, be attributed to the introduction 

of excess nutrients from upstream 

watersheds. The problems are caused by 

a complex chain of events and vary from 

site to site, but the fundamental driving 

force is the accumulation of nitrogen 

and phosphorus in fresh water on its 

way to the sea.’’ 

Florida has long struggled with 

nutrient pollution impacts to its surface 

and ground waters. Florida’s flat 

topography makes Florida particularly 

susceptible to nitrogen and phosphorus 

pollution because water moves more 

slowly over the landscape, allowing 

time for nitrogen and phosphorus 

pollution to accumulate in water bodies 

and cause eutrophication. Florida’s high 

rainfall levels contribute to increased 

run-off, and higher temperatures and 

sunlight contribute to eutrophication 

when excess nutrients are available.27

In FDEP’s 2012 Integrated Water 

Quality Assessment for Florida: 2012 

305(b) Report and 303(d) List Update, 

nutrient pollution is ranked as the fifth 

major cause of estuary impairments by 

impaired square miles 28 and the fifth 

major cause of impairments in coastal 

waters.29 FDEP documents nutrient 

pollution impairments in 754 square 

miles (482,560 acres) of estuaries (about 

14 percent of the estuarine area assessed 

by Florida) and 102 square miles 

(65,280 acres) of coastal waters (about 

1.6 percent of the assessed coastal 

waters).30

FDEP noted in its 2008 Integrated 

Water Quality Assessment for Florida: 

2008 305(b) Report and 303(d) List 

Update that nitrogen and phosphorus 

pollution poses several challenges in 

Florida. FDEP stated, ‘‘The close 

connection between surface and 

groundwater, in combination with the 

pressures of continued population 

growth, accompanying development, 

and extensive agricultural operations, 

present Florida with a unique set of 

challenges for managing both water 

quality and quantity in the future. After 

trending downward for 20 years, 

beginning in 2000 phosphorus levels 

again began moving upward, likely due 

to the cumulative impacts of non-point 

source pollution associated with 

increased population and development. 

Increasing pollution from urban 

stormwater and agricultural activities is 

having other significant effects.’’ 31

To better understand the nitrogen and 

phosphorus pollution problem in 

Florida, EPA looked at trends in the 

data Florida uses to create its Integrated 

Water Quality Reports,32 and found 

increasing concentrations of nitrogen 

and phosphorus compounds in Florida 

waters over the 12 year period from 

1996–2008. Florida’s Impaired Waters 

Rule (IWR) data indicate that levels of 

total nitrogen have increased 

approximately 20 percent from a statewide average of 1.06 mg/L in 1996 to 

1.27 mg/L in 2008 and average statewide total phosphorus levels have 

increased approximately 40 percent 

from an average of 0.108 mg/L in 1996 

to 0.151 mg/L in 2008. 

On a national scale, the primary 

sources of nitrogen and phosphorus 

pollution can be grouped into five major 

categories: (1) Urban and suburban 

stormwater runoff—sources associated 

with residential and commercial land 

use and development; (2) municipal and 

industrial wastewater discharges; (3) 

row crop agriculture and fertilizer use; 

(4) livestock production and manure 

management practices; and (5) 

atmospheric deposition resulting from 

nitrogen oxide emissions from fossil 

fuel combustion and ammonia 

emissions from row crop agriculture and 

livestock production. These sources 

contribute loadings of anthropogenic 

nitrogen and phosphorus to surface and 

groundwaters, and may cause harmful 

impacts to aquatic ecosystems and 

imbalances in the natural populations of 

aquatic flora and fauna.33

In general, the major sources of 

nitrogen and phosphorus pollution in 

Florida estuarine and coastal waters are 

the same as those found at the national 

scale: urban and suburban stormwater 

runoff, wastewater discharges, row crop 

agriculture, livestock production, and 

atmospheric deposition. As is the case 

with much of the southern United 

States, Florida’s population continues to 

grow, with Florida among the top ten 

fastest growing states.34 Florida’s 

population growth is concentrated in 

major cities and along the coast. As of 

2005, Florida’s highest population 

density was along its eastern coast; there 

has also been significant population 

expansion along the western coast from 

Tampa to the south. As populations 

grow, the increased nitrogen and 

phosphorus pollution resulting from 

increased urban stormwater runoff, 

municipal wastewater discharges, air 

deposition, and agricultural livestock 

activities and row-crop runoff can place 

increased stress on all ecosystems. 

In nearly half of the estuaries 

examined for this rulemaking, urban or 

stormwater runoff is a major contributor 

of nitrogen and phosphorus pollution. 

For example, a report issued in 2010 by 

the Sarasota Bay Estuary Program 

indicates that in Sarasota Bay, nutrients 

are primarily transported to the estuary 

by stormwater runoff, which is the 

predominant source in all segments of 

the estuary (42–60 percent of the total 

nitrogen load).35 Similarly, according to 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74931 

Program by Janicki Environmental, Inc. http:// 

www.sarasotabay.org/documents/SBEP–NNC-FinalReport.pdf. Accessed August 2011. 

36TBEP. No date. About the Tampa Bay Estuary 

Program, State of the Bay: Water and Sediment 

Quality. Tampa Bay Estuary Program. http:// 

www.tbep.org/tbep/stateofthebay/ 

waterquality.html. Accessed January 2012. 

37Exum, L.R., S.L. Bird, J. Harrison, and C.A. 

Perkins. 2005. Estimating and Projecting 

Impervious Cover in the Southeastern United 

States. EPA/600/R–05/061. U.S. Environmental 

Protection Agency, Office of Research and 

Development, Washington, DC. 

38Facilities with NPDES permits either discharge 

to surface waters or ground waters, using methods 

that include land application, beneficial reuse of 

reclaimed water, and deep well injection. USEPA. 

2011. Permit Compliance System Database. U.S. 

Environmental Protection Agency. http:// 

www.epa.gov/enviro/facts/pcs/customized.html. 

Accessed June 2011. 

There are also 34,508 dischargers covered under 

generic or general permits, which FDEP regulates 

based on categories of wastewater facilities or 

activities that involve the same or similar types of 

operations or wastes. 

39FDEP. 2011. General Facts and Statistics about 

Wastewater in Florida. Florida Department of 

Environmental Protection. http:// 

www.dep.state.fl.us/water/wastewater/facts.htm. 

Accessed January 2012. 

40FDEP. 2011. Wastewater Program. Florida 

Department of Environmental Protection. http:// 

www.dep.state.fl.us/water/wastewater/index.htm 

Accessed January 2012. 

41USEPA. 2003. EPA Voluntary National 

Guidelines for Management of Onsite and Clustered 

(Decentralized) Wastewater Treatment Systems. 

EPA–832–B–03–001. U.S. Environmental Protection 

Agency, Office of Water, Washington, DC. http:// 

www.epa.gov/owm/septic/pubs/ 

septic_guidelines.pdf. Accessed August 2011. 

42 Johansson, J.O.R., and H.S. Greening. 2000. 

Seagrass Restoration in Tampa Bay: A Resourcebased Approach to Estuarine Management. Chapter 

20 In: Seagrasses: Monitoring, Ecology, Physiology, 

and Management, ed. S.A. Bortone, pp. 279–293. 

CRC Press, Boca Raton, FL. 

43Caccia, V.G., and J.N. Boyer. 2007. A nutrient 

loading budget for Biscayne Bay, Florida. Marine 

Pollution Bulletin 54(7):994–1008. 

Caccia, V.G., and J.N. Boyer. 2005. Spatial 

patterning of water quality in Biscayne Bay, Florida 

as a function of land use and water management. 

Marine Pollution Bulletin 50(11):1416–1429. 

44Caccia, V.G., and J.N. Boyer. 2005. Spatial 

patterning of water quality in Biscayne Bay, Florida 

as a function of land use and water management. 

Marine Pollution Bulletin 50(11):1416–1429. 

45Caccia, V.G., and J.N. Boyer. 2007. A nutrient 

loading budget for Biscayne Bay, Florida. Marine 

Pollution Bulletin 54(7):994–1008. 

46Eutrophication is the process by which a water 

body becomes enriched with organic material, 

which is formed by primary productivity (i.e., 

photosynthetic activity) and can be stimulated to 

harmful levels by the anthropogenic introduction of 

high concentrations of nutrients—particularly 

nitrogen and phosphorus (National Research 

Council. 2000. Clean Coastal Waters: 

Understanding and Reducing the Effects of Nutrient 

Pollution. Report prepared by the Ocean Study 

Board and Water Science and Technology Board, 

Commission on Geosciences, Environment and 

Resources, National Resource Council, Washington, 

DC. See also Nixon. SW. 1995. Coastal marine 

eutrophication: A definition, social causes, and 

future concerns. Ophelia 41:199–219.) 

47Cambridge, M.L., J.R. How, P.S. Lavery, and 

M.A. Vanderklift. 2007. Retrospective analysis of 

epiphyte assemblages in relation to seagrass loss in 

a eutrophic coastal embayment. Marine Ecology 

Progress Series 346:97–107. 

Frankovich, T.A., and J.W. Fourqurean. 1997. 

Seagrass epiphyte loads along a nutrient availability 

gradient, Florida Bay, USA. Marine Ecology 

Progress Series 159:37–50. 

Peterson, B.J., T.A. Frankovich, and J.C. Zieman. 

2007. Response of seagrass epiphyte loading to field 

manipulations of fertilization, gastropod grazing 

and leaf turnover rates. Journal of Experimental 

Marine Biology and Ecology 349(1):61–72. 

Howarth, R., D. Anderson, J. Cloern, C. Elfring, 

C. Hopkinson, B. Lapointe, T. Malone, N. Marcus, 

K.J. McGlathery, A. Sharpley, and D. Walker. 2000. 

Nutrient pollution of coastal rivers, bays, and seas. 

Issues in Ecology 7:1–15. 

Cloern, J.E. 2001. Our evolving conceptual model 

of the coastal eutrophication problem. Marine 

Ecology Progress Series 210:223–253. 

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

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

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

analysis of nitrogen and phosphorus limitation of 

primary production in freshwater, marine, and 

terrestrial ecosystems. Ecology Letters 10:1135– 

1142. 

Smith, V.H. 2006. Responses of estuarine and 

coastal marine phytoplankton to nitrogen and 

phosphorus enrichment. Limnology and 

Oceanography 51(1, part 2): 377–384. 

Continued 

the Tampa Bay Estuary Program, the 

largest source of nitrogen to Tampa Bay 

is also runoff (63 percent of total 

nitrogen loadings to Tampa Bay from 

1999–2003).36 Impervious land cover is 

a large driver of stormwater volume. In 

2005, one study estimated that 7 percent 

of Florida’s area had total impervious 

area greater than 20 percent, and of that, 

a quarter of that land had total 

impervious area greater than 40 percent. 

As Florida’s population grows, it is 

likely that the resulting expansion of 

impervious cover will cause increased 

harmful impacts on water quality in 

coastal areas, wetlands, and other 

aquatic ecosystems.37

Wastewater is also a significant 

contributor of nitrogen and phosphorus 

pollution. In Florida, there are 443 

domestic (not including septic systems) 

and industrial wastewater dischargers 

with individual NPDES permits.38 Of 

those facilities, 198 are classified as 

domestic (municipal) wastewater 

facilities, which treat sanitary 

wastewater or sewage from homes, 

businesses, and institutions. The other 

245 facilities are classified as industrial 

wastewater facilities. About one third of 

Florida’s population uses on-site sewage 

treatment and disposal (septic tanks) to 

treat wastewater.39

In Florida, fewer than a quarter of 

individually permitted domestic and 

industrial facilities are authorized to 

discharge to surface waters. The 

remaining permittees are authorized to 

discharge solely to groundwater through 

land-application, beneficial reuse of 

reclaimed water, or deep well injection. 

Domestic wastewater treatment facilities 

permitted by FDEP produce over 1.5 

billion gallons of treated effluent and 

reclaimed water per day, with a total 

treatment capacity of over 2.5 billion 

gallons per day. Eighteen percent of 

domestic wastewater treatment facilities 

have treatment capacities greater than 

500,000 gallons per day, whereas 73 

percent of domestic wastewater 

treatment facilities have capacities less 

than 100,000 gallons per day.40

Wastewater has been cited as 

contributing to negative impacts on 

water quality in some areas. On the east 

coast of Florida, septic systems 

contribute an estimated 1.5 million 

pounds of nitrogen per year to Florida’s 

Indian River Lagoon.41 There have been 

some successes in reducing the impact 

of wastewater on marine waters. In 

Tampa Bay, wastewater treatment plants 

were one of the major sources of 

nitrogen prior to the institution of 

tertiary nitrogen removal. This 

treatment has contributed to an 

improvement in Tampa Bay’s water 

quality.42

There have been a number of studies 

examining the sources of nitrogen and 

phosphorus pollution in waters across 

Florida. One area of study is Biscayne 

Bay, located on the southeast coast of 

Florida, adjacent to Miami. Nutrient 

pollution in the Bay comes from a 

number of key sources that vary 

geographically: stormwater runoff from 

urban areas, discharges from the Black 

Point Landfill and Sewage Treatment 

Plant, agricultural runoff from canals in 

the South Dade agricultural basin, and 

contaminated ground water.43 In the 

northern section of the Bay, there are 

inputs from five canals, a landfill, and 

urban runoff. The southern section of 

the Bay has a greater contribution from 

agricultural sources.44 In one study, 

researchers found that canals conveying 

waters from agricultural and urban areas 

contributed 88 percent and 66 percent 

of the Bay’s total dissolved inorganic 

nitrogen and total phosphorus loads, 

respectively.45

b. Adverse Impacts of Nitrogen and 

Phosphorus Pollution on Aquatic Life 

Nitrogen and phosphorus pollution in 

surface and ground waters degrade 

water quality and negatively impact 

aquatic life through processes associated 

with eutrophication.46 Eutrophication is 

a predictable, well-understood, and 

widely-documented biological process 

by which anthropogenic nitrogen and 

phosphorus pollution results in 

increased growth of algae (plankton and 

periphyton).47


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74932 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

Vitousek, P.M., J.D. Aber, R.W. Howarth, G.E. 

Likens, P.A. Matson, D.W. Schindler, W.H. 

Schlesinger, and D.G. Tilman. 1997. Human 

alteration of the global nitrogen cycle: Sources and 

consequences. Ecological Applications 7(3):737– 

750. 

Bricker, S.B., J.G. Ferreira, and T. Simas. 2003. 

An integrated methodology for assessment of 

estuarine trophic status. Ecological Modelling 

169(1):39–60. 

Bricker, S.B., B. Longstaff, W. Dennison, A. Jones, 

K. Boicourt, C. Wicks, and J. Woerner. 2008. Effects 

of nutrient enrichment in the nation’s estuaries: A 

decade of change. Harmful Algae 8(1):21–32. 

Boyer, J.N., C.R. Kelble, P.B. Ortner, and D.T. 

Rudnick. 2009. Phytoplankton bloom status: 

Chlorophyll a biomass as an indicator of water 

quality condition in the southern estuaries of 

Florida, USA. Ecological Indicators 9(6, 

Supplement 1):S56–S67. 

Hutchinson, G.E. 1961. The paradox of plankton. 

American Naturalist 95:137–145. 

Piehler, M.F., L.J. Twomey, N.S. Hall, and H.W. 

Paerl. 2004. Impacts of inorganic nutrient 

enrichment on phytoplankton community structure 

and function in Pamlico Sound, NC, USA. Estuarine 

Coastal and Shelf Science 61(2):197–209. 

Sanders, J.G., S.J. Cibik, C.F. D’Elia, and W.R. 

Boynton. 1987. Nutrient enrichment studies in a 

coastal plain estuary: changes in phytoplankton 

species composition. Canadian Journal of Fisheries 

& Aquatic Sciences 44:83–90. 

Parsons, T.R., P.J. Harrison, and R. Waters. 1978. 

An experimental simulation of changes in diatom 

and flagellate blooms. Journal of Experimental 

Marine Biology and Ecology 32:285–294. 

Paerl, H.W. 1988. Nuisance phytoplankton 

blooms in coastal, estuarine, and inland waters. 

Limnology and Oceanography 33(4):823–847. 

Harding, Jr., L.W. 1994. Long-term trends in the 

distribution of phytoplankton in Chesapeake Bay: 

roles of light, nutrients, and streamflow. Marine 

Ecology Progress Series 104:267–291. 

Richardson, K. 1997. Harmful or Exceptional 

Phytoplankton Blooms in the Marine Ecosystem. 

Advances in Marine Biology. 31:301–385. 

Hagy, J.D., J.C. Kurtz, and R.M. Greene. 2008. An 

Approach for Developing Numeric Nutrient Criteria 

for a Gulf Coast Estuary. U.S. Environmental 

Protection Agency, Office of Research and 

Development, National Health and Environmental 

Effects Research Laboratory, Research Triangle 

Park, NC., EPA 600R–08/004, 44 pp. 

48Paerl, H.W. 1988. Nuisance phytoplankton 

blooms in coastal, estuarine, and inland waters. 

Limnology and Oceanography 33(4):823–847. 

Anderson, D.M., P.M. Glibert, and J.M. 

Burkholder. 2002. Harmful algal blooms and 

eutrophication: Nutrient sources, composition, and 

consequences. Estuaries 25(4):704–726. 

Anderson, D.M., J.M. Burkholder, W.P. Cochlan, 

P.M. Glibert, C.J. Gobler, C.A. Heil, R.M. Kudela, 

M.L. Parsons, J.E.J. Rensel, D.W. Townsend, V.L. 

Trainer, and G.A. Vargo. 2008. Harmful algal 

blooms and eutrophication: Examining linkages 

from selected coastal regions of the United States. 

Harmful Algae 8(1):39–53. 

49Anderson, D.M., P.M. Glibert, and J.M. 

Burkholder. 2002. Harmful algal blooms and 

eutrophication: Nutrient sources, composition, and 

consequences. Estuaries 25(4):704–726. 

Paerl, H.W. 2002. Connecting atmospheric 

nitrogen deposition to coastal eutrophication. 

Environmental Science & Technology 36(15):323A– 

326A. 

Anderson, D.M., J.M. Burkholder, W.P. Cochlan, 

P.M. Glibert, C.J. Gobler, C.A. Heil, R.M. Kudela, 

M.L. Parsons, J.E.J. Rensel, D.W. Townsend, V.L. 

Trainer, and G.A. Vargo. 2008. Harmful algal 

blooms and eutrophication: Examining linkages 

from selected coastal regions of the United States. 

Harmful Algae 8(1):39–53. 

50Abbott, G.M., J.H. Landsberg, A.R. Reich, K.A. 

Steidinger, S. Ketchen, and C. Blackmore. 2009. 

Resource Guide for Public Health Response to 

Harmful Algal Blooms in Florida. FWRI Technical 

Report TR–14. Florida Fish and Wildlife 

Conservation Commission, Fish and Wildlife 

Research Institute, St. Petersburg, FL. http:// 

myfwc.com/research/redtide/task-force/reportspresentations/resource-guide-for-public-healthresponse-to-harmful-algal-blooms-in-florida/ 

Accessed June 2011. 

51 Dortch, Q., P. Glibert, E. Jewett, and C. Lopez. 

2008. Introduction. Chapter 1 In: HAB RDDTT 2 

National Workshop Report, A plan for Reducing 

HABs and HAB Impacts. eds. Q. Dortch, D.M. 

Anderson, D.L. Ayres, and P.M. Glibert, pp. 5–12. 

Woods Hole, MA. 

52WHOI. 2008. Marine Mammals. Woods Hole 

Oceanographic Institution. http://www.whoi.edu/ 

redtide/page.do?pid=14215. Accessed June 2011. 

WHOI. 2008. HAB Impacts on Wildlife. Woods 

Hole Oceanographic Institution. http:// 

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

Accessed June 2011. 

NOAA. 2011. Overview of Harmful Algal Blooms. 

National Oceanic and Atmospheric Administration, 

Center for Sponsored Coastal Ocean Research. 

http://www.cop.noaa.gov/stressors/ 

extremeevents/hab/default.aspx. Accessed June 

2011. 

53Thessen, A.E., and D.K. Stoecker. 2008. 

Distribution, abundance and domoic acid analysis 

of the toxic diatom genus Pseudo-nitzschia from the 

Chesapeake Bay. Estuaries and Coasts 31:664–672. 

54Bushaw-Newton, K.L., and K.G. Sellner. 1999. 

Harmful Algal Blooms. In: NOAA’s State of the 

Coast Report. National Oceanic and Atmospheric 

Administration, Silver Spring, MD. http:// 

oceanservice.noaa.gov/Web sites/retiredsites/ 

sotc_pdf/hab.pdf. Accessed June 2011. 

55MBARI. 2000, January 5. Molecular Probes Link 

Sea Lion Deaths to Toxic Algal Bloom. MBARI 

News and Information. Monterey Bay Aquarium 

Research Institute. http://www.mbari.org/news/ 

news_releases/2000/jan06_scholin.html. Accessed 

June 2011. 

56Waring G.T., E. Josephson, K. Maze-Foley, and 

P.E. Rosel, eds. 2010. Humpback Whale (Megaptera 

novaeangliae): Gulf of Maine Stock (December 

2009). In: U.S. Atlantic and Gulf of Mexico Marine 

Mammal Stock Assessments—2010, NOAA 

Technical Memorandum NMFS–NE–219. National 

Oceanic and Atmospheric Administration, National 

Marine Fisheries Service, Northeast Fisheries 

Science Center, Woods Hole, MA. http:// 

www.nefsc.noaa.gov/publications/tm/tm219/. 

Accessed January 2012. 

57Rensel, J.E.J. 2007. Fish kills from the harmful 

alga Heterosigma akashiwo in Puget Sound: Recent 

blooms and review. Prepared for National Oceanic 

and Atmospheric Administration, Center for 

Sponsored Coastal Ocean Research, by Rensel 

Associates Aquatic Sciences, Arlington, 

Washington, in cooperation with American Gold 

Seafoods, LLC. http://www.whoi.edu/ 

fileserver.do?id=39383&pt=2&p=29109. Accessed 

January 2012. 

58 Vitousek, P.M., J.D. Aber, R.W. Howarth, G.E. 

Likens, P.A. Matson, D.W. Schindler, W.H. 

Schlesinger, and D.G. Tilman. 1997. Human 

alteration of the global nitrogen cycle: Sources and 

consequences. Ecological Applications 7(3):737– 

750. 

Bricker, S.B., J.G. Ferreira, and T. Simas. 2003. 

An integrated methodology for assessment of 

estuarine trophic status. Ecological Modelling 

169(1):39–60. 

Bricker, S.B., B. Longstaff, W. Dennison, A. Jones, 

K. Boicourt, C. Wicks, and J. Woerner. 2008. Effects 

of nutrient enrichment in the nation’s estuaries: A 

decade of change. Harmful Algae 8(1):21–32. 

Boyer, J.N., C.R. Kelble, P.B. Ortner, and D.T. 

Rudnick. 2009. Phytoplankton bloom status: 

Chlorophyll a biomass as an indicator of water 

quality condition in the southern estuaries of 

Florida, USA. Ecological Indicators 9(6, 

Supplement 1):S56–S67. 

59FFWCC. 2003. Conserving Florida’s Seagrass 

Resources: Developing a Coordinated Statewide 

Management Program. Florida Fish and Wildlife 

Conservation Commission, Florida Marine Research 

Institute, St. Petersburg, FL. 

Nitrogen and phosphorus pollution 

increases algal growth that negatively 

impacts many aspects of ecological 

communities. As algae growth 

accelerates in response to nutrient 

pollution, there may be negative 

changes in algal species composition 

and competition among species, leading 

to harmful, adverse effects, such as the 

increased growth or dominance of toxic 

or otherwise harmful algal species.48

These harmful algal blooms (HABs) can 

contain undesirable species of diatoms, 

cyanobacteria, and dinoflagellates, 

which are known to generate toxins that 

are a threat to both aquatic life and 

recreational activities.49 Many nuisance 

taxa of algae are also less palatable to 

aquatic organisms that consume 

phytoplankton, so prolonged HABs can 

impact the food supply of the overall 

aquatic community. More than 100 HAB 

species have been identified in the 

United States.50

Marine and fresh waters of the United 

States are increasingly being negatively 

impacted by HABs.51 HAB toxins have 

been linked to illnesses and deaths of 

marine animals, including sea lions, 

turtles, fish, seabirds, dolphins, and 

manatees.52 Diatoms in HABs, such as 

Pseudo-nitzschia, produce domoic 

acid.53 Domoic acid has been shown to 

accumulate in the tissue of mussels, 

crabs, and fish, causing their predators 

to become ill or die.54 Domoic acid 

poisoning has been reported as the 

cause of death of humpback whales in 

the Gulf of Maine in 2003 and sea lions 

in California’s Monterey Bay during 

May and June of 1998.55 Other toxinproducing algal species that have been 

linked to harmful, adverse aquatic life 

impacts include Pfisteria piscicida, 

which produces several toxins that 

impact fish and humans 56 and the 

flagellate Heterosigma akashiwo which 

produces an ichthyotoxin that kills 

fish.57

Secondly, excessive algal growth as a 

result of nitrogen and phosphorus 

pollution reduces water clarity, 

resulting in reduced light availability for 

macrophytes and seagrasses.58

Seagrasses cover approximately 2.7 

million acres throughout the State and 

are a central ecological feature of 

Florida’s dynamic, highly productive 

marine ecosystems.59 A substantial 

body of scientific research has linked 

nitrogen and phosphorus pollution, and 


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60 Duarte, C.M. 1991. Seagrass depth limits. 

Aquatic Botany 40(4):363–377. 

61Boyer, J.N., C.R. Kelble, P.B. Ortner, and D.T. 

Rudnick. 2009. Phytoplankton bloom status: 

Chlorophyll a biomass as an indicator of water 

quality condition in the southern estuaries of 

Florida, USA. Ecological Indicators 9(6, 

Supplement 1):S56–S67. 

62 Dawes, C.J., R.C. Phillips, and G. Morrison. 

2004. Seagrass Communities of the Gulf Coast of 

Florida: Status and Ecology, Final Report. 

Technical Publication #03–04. Florida Fish and 

Wildlife Conservation Commission, Fish and 

Wildlife Research Institute, and the Tampa Bay 

Estuary Program, St. Petersburg, FL. 

Tomasko, D.A., C.A. Corbett, H.S. Greening, and 

G.E. Raulerson. 2005. Spatial and temporal 

variation in seagrass coverage in Southwest Florida: 

assessing the relative effects of anthropogenic 

nutrient load reductions and rainfall in four 

contiguous estuaries. Marine Pollution Bulletin 

50:797–805. 

Orth, R.J., T.J.B. Carruthers, W.C. Dennison, C.M. 

Duarte, J.W. Fourqurean, K.L. Heck Jr., A.R. Hughes, 

G.A. Kendrick, W.J. Kenworthy, S. Olyarnik, F.T. 

Short, M. Waycott, and S.L. Williams. 2006. A 

global crisis for seagrass ecosystems. Bioscience 

56:987–996. 

Burkholder, J.M., D.A. Tomasko, and B.W. 

Touchette. 2007. Seagrasses and eutrophication. 

Journal of Experimental Marine Biology and 

Ecology 350:46–72. 

Collado-Vides, L., V.G. Caccia, J.N. Boyer, and 

J.W. Fourqurean. 2007. Tropical seagrass-associated 

macroalgae distributions and trends relative to 

water quality. Estuarine, Coastal and Shelf Science 

73:680–694. 

63USGS. 2001. Seagrass Habitat In the Northern 

Gulf of Mexico: Degradation, Conservation, and 

Restoration of a Valuable Resource. 855–R–04–001. 

U.S. Geological Survey, Gulf of Mexico Habitat 

Program Team. http://gulfsci.usgs.gov/gom_ims/ 

pdf/pubs_gom.pdf. Accessed July 2011. 

64FFWCC. 2002. Florida’s Seagrass Meadows: 

Benefitting Everyone. Florida Fish and Wildlife 

Conservation Commission, St. Petersburg, FL. 

http://www.sarasotabay.org/documents/ 

seagrassbrochure.pdf. Accessed July 2011. 

65McPherson, B.F., and R.L. Miller. 1994. Causes 

of Light Attenuation in Tampa Bay and Charlotte 

Harbor, Southwestern Florida. Water Resources 

Bulletin 30(1):43–53. 

66Tomasko, D.A., D.L. Bristol, and J.A. Ott. 2001. 

Assessment of present and future nitrogen loads, 

water quality, and seagrass (Thalassia testudinum) 

depth distribution in Lemon Bay, Florida. Estuaries 

24(6A):926–938. 

67 Vitousek, P.M., J.D. Aber, R.W. Howarth, G.E. 

Likens, P.A. Matson, D.W. Schindler, W.H. 

Schlesinger, and D.G. Tilman. 1997. Human 

alteration of the global nitrogen cycle: Sources and 

consequences. Ecological Applications 7(3):737– 

750. 

68USEPA. 1999. The Ecological Condition of 

Estuaries in the Gulf of Mexico. EPA 620–R–98– 

004. U.S. Environmental Protection Agency, Office 

of Research and Development, National Health and 

Environmental Effects Research Laboratory, Gulf 

Ecology Division, Gulf Breeze, FL. 

69Conley, D., J. Carstensen, R. Vaquer-Sunyer, 

and C. Duarte. 2009. Ecosystem thresholds with 

hypoxia. Hydrobiologia 629(1):21–29. 

Conley, D.J., H.W. Paerl, R.W. Howarth, D.F. 

Boesch, S.P. Seitzinger, K.E. Havens, C. Lancelot, 

and G.E. Likens. 2009. Controlling Eutrophication: 

Nitrogen and Phosphorus. Science 323(5917):1014– 

1015. 

Diaz, R.J. 2001. Overview of hypoxia around the 

world. Journal of Environmental Quality 30(2):275– 

281. Diaz, R.J., and R. Rosenberg. 2008. Spreading 

dead zones and consequences for marine 

ecosystems. Science 321(5891):926–929. 

70Clement, C., S.B. Bricker and D.E. Pirhalla. 

2001. Eutrophic Conditions in Estuarine Waters. In: 

NOAA’s State of the Coast Report. National Oceanic 

and Atmospheric Administration, Silver Spring, 

MD. http://state-of-coast.noaa.gov/bulletins/html/ 

eut_18/eut.html. Accessed December 2011. 

71Bricker, S.B., J.G. Ferreira, and T. Simas. 2003. 

An integrated methodology for assessment of 

estuarine trophic status. Ecological Modelling 

169(1):39–60. 

Bricker, S.B., C.G. Clement, D.E. Pirhalla, S.P. 

Orlando, and D.R.G. Farrow. 1999. National 

Estuarine Eutrophication Assessment, Effects of 

Nutrient Enrichment in the Nation’s Estuaries. 

National Oceanic and Atmospheric Administration, 

National Ocean Service, Special Projects Office and 

the National Centers for Coastal Ocean Science. 

Silver Spring, MD. 

72USEPA. 2001. Nutrient Criteria Technical 

Guidance Manual, Estuarine and Coastal Marine 

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

Protection Agency, Office of Water, Washington, 

DC. 

73Howell, P., and D. Simpson. 1994. Abundance 

of marine resources in relation to dissolved oxygen 

in Long Island Sound. Estuaries 17(2):394–402. 

Kidwell, D.M., A.J. Lewitus, S. Brandt, E.B. 

Jewett, and D.M. Mason. 2009. Ecological impacts 

of hypoxia on living resources. Journal of 

Experimental Marine Biology and Ecology 

381(Supplement 1):S1–S3. 

subsequent reduced light availability, to 

seagrass decline. Excessive nutrient 

inputs increase phytoplankton biomass 

and thereby increase water column light 

attenuation, which limits the light 

available for seagrass photosynthesis. 

This results in reduced growth and 

increased mortality of seagrasses. In 

addition, nitrogen and phosphorus 

pollution can lead to excess growth of 

epiphytic algae on seagrasses that blocks 

the light available to seagrasses and 

affects seagrass growth.60 This reduction 

of seagrass communities, in turn, results 

in harmful, adverse impacts such as 

destabilization of sediments, which 

causes the release of more nutrients into 

the water column.61

The role that nitrogen and 

phosphorus pollution plays in the 

decline of seagrass has been studied 

extensively in Florida.62 In a report 

published by USGS in 2001, six of nine 

Florida estuaries located along the Gulf 

Coast showed declines in seagrass 

coverage, the predominant causes of 

which were nitrogen and phosphorus 

pollution, dredging, propeller scarring, 

hydrologic alterations, increased 

turbidity, and chronic light reduction.63

Florida Fish & Wildlife Conservation 

Commission has noted several areas of 

significant seagrass decline between 

1950 and 2000, including 72 percent 

loss in St. Joseph Sound, 43 percent loss 

in the northern section of Biscayne Bay 

near Miami, 40 percent loss in Tampa 

Bay, 30 percent loss in the Indian River 

Lagoon, and 29 percent loss in Charlotte 

Harbor. These losses coincided with 

population growth in these watersheds, 

and resulted from human activities such 

as fertilizer use in residential and 

agricultural areas and construction 

projects which contribute high levels of 

suspended sediments.64 Several studies 

have attributed declines in seagrass to 

excess chlorophyll a and phytoplankton 

in the water column which can increase 

light attenuation. One study conducted 

from 1989–1991 found that excess 

chlorophyll a caused light attenuation 

of 16 to 28 percent across Charlotte 

Harbor and Tampa Bay. In the same 

study, the authors noted an overall 

improvement in seagrass recolonization 

and areal cover in Hillsborough Bay and 

other parts of Tampa Bay starting in the 

late 1980s coinciding with decreased 

nutrient loading, which resulted in 

decreased concentrations of chlorophyll 

a and increased water clarity.65 A later 

study, which conducted sampling 

monthly between June 1998 and July 

1999, estimated that phytoplankton 

biomass contributed approximately 29 

percent of total water column light 

attenuation in Lemon Bay, Florida. The 

authors predicted a continuation in the 

potential decline of seagrasses with 

increased urbanization.66

Lastly, excessive algal growth also 

leads to low dissolved oxygen (DO) 

potentially creating hypoxic and anoxic 

conditions that cannot support aquatic 

life and thereby can change the balance 

of natural populations of aquatic fauna 

expected to occur.67 Hypoxia is 

typically defined as DO < 2 mg/L, and 

anoxia as DO < 0.1 mg/L.68 The cause 

and effect relationship between nitrogen 

and phosphorus pollution and marine 

hypoxia is clear and well documented 

in the scientific literature.69 Increased 

nitrogen and phosphorus inputs lead to 

excessive algal growth and organic 

matter loading to bottom waters. 

Bacterial decomposition of the organic 

matter consumes oxygen and depletes 

the water column of DO.70 In estuaries 

and coastal waters, low DO is one of the 

most widely reported consequences of 

nitrogen and phosphorus pollution and 

one of the best predictors of a range of 

biotic impairments.71 Low DO causes 

negative impacts to aquatic life ranging 

from mortality to chronic impairment of 

growth and reproduction.72 When 

nitrogen and phosphorus pollution 

creates adverse conditions that result in 

large hypoxic zones, substantial 

negative changes in fish, benthic, and 

plankton communities may occur.73

This includes avoidance of these areas 

by fish, mobile benthic invertebrates 

migrating from the hypoxic area, and 

fish kills in some systems when fish and 

other mobile aquatic organisms have 

nowhere to migrate away from the areas 


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74934 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

74Howell, P., and D. Simpson. 1994. Abundance 

of marine resources in relation to dissolved oxygen 

in Long Island Sound. Estuaries 17(2):394–402. 

Kidwell, D.M., A.J. Lewitus, S. Brandt, E.B. 

Jewett, and D.M. Mason. 2009. Ecological impacts 

of hypoxia on living resources. Journal of 

Experimental Marine Biology and Ecology 

381(Supplement 1):S1–S3. 

75Baker, S., and R. Mann. 1992. Effects of 

hypoxia and anoxia on larval settlement, juvenile 

growth, and juvenile survival of the oyster 

Crassostrea virginica. Biological Bulletin 

182(2):265–269. 

Baker, S., and R. Mann. 1994. Feeding ability 

during settlement and metamorphosis in the oyster 

Crassostrea virginica (Gmelin, 1791) and the effects 

of hypoxia on post-settlement ingestion rates. 

Journal of Experimental Marine Biology and 

Ecology 181(2):239–253. 

Baker, S.M., and R. Mann. 1994. Description of 

metamorphic phases in the oyster Crassostrea 

virginica and effects of hypoxia on metamorphosis. 

Marine Ecology Progress Series 104:91–99. 

Baustian, M., and N. Rabalais. 2009. Seasonal 

composition of benthic macroinfauna exposed to 

hypoxia in the northern Gulf of Mexico. Estuaries 

and Coasts 32(5):975–983. 

Breitburg, D. 2002. Effects of hypoxia, and the 

balance between hypoxia and enrichment, on 

coastal fishes and fisheries. Estuaries 25(4):767– 

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76 Kidwell, D.M., A.J. Lewitus, S. Brandt, E.B. 

Jewett, and D.M. Mason. 2009. Ecological impacts 

of hypoxia on living resources. Journal of 

Experimental Marine Biology and Ecology 

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77Breitburg, D. 2002. Effects of hypoxia, and the 

balance between hypoxia and enrichment, on 

coastal fishes and fisheries. Estuaries 25(4):767– 

781. 

78 Grove, M., and D.L. Breitburg. 2005. Growth 

and reproduction of gelatinous zooplankton 

exposed to low dissolved oxygen. Marine Ecology 

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79 Diaz, R.J., and R. Rosenberg. 2008. Spreading 

dead zones and consequences for marine 

ecosystems. Science 321(5891):926–929. 

80 Diaz, R.J., and R. Rosenberg. 2008. Spreading 

dead zones and consequences for marine 

ecosystems. Science 321(5891):926–929. 

Kemp, W.M., W.R. Boynton, J.E. Adolf, D.F. 

Boesch, W.C. Boicourt, G. Brush, J.C. Cornwell, T.R. 

Fisher, P.M. Glibert, J.D. Hagy, L.W. Harding, E.D. 

Houde, D.G. Kimmel, W.D. Miller, R.I.E. Newell, 

M.R. Roman, E.M. Smith, and J.C. Stevenson. 2005. 

Eutrophication of Chesapeake Bay: Historical trends 

and ecological interactions. Marine Ecology 

Progress Series 303:1–29. 

McCarthy, M., K. McNeal, J. Morse, and W. 

Gardner. 2008. Bottom-water hypoxia effects on 

sediment–water interface nitrogen transformations 

in a seasonally hypoxic, shallow bay (Corpus 

Christi Bay, TX, USA). Estuaries and Coasts 

31(3):521–531. 

Cai, W., X. Hu, W. Huang, M.C. Murrell, J.C. 

Lehrter, SE. Lohrenz, W. Chou, W. Zhai, J.T. 

Hollibaugh, Y. Wang, P. Zhao, X. Guo, K. 

Gundersen, M. Dai, and G. Gong.. 2011. 

Acidification of subsurface coastal waters enhanced 

by eutrophication. Nature Geoscience 4:766–770. 

81Conley, D.J., J. Carstensen, G. "rtebjerg, P.B. 

Christensen, T. Dalsgaard, J.L.S. Hansen, and A.B. 

Josefson. 2007. Long-term changes and impacts of 

hypoxia in Danish coastal water. Ecological 

Applications 17(sp5):S165–S184. 

Diaz, R.J., and R. Rosenberg. 2008. Spreading 

dead zones and consequences for marine 

ecosystems. Science 321(5891):926–929. 

82Snoeyink, V.L., and D. Jenkins. 1980. 

Oxidation-Reduction Reactions. Chapter 7 In: Water 

Chemistry, pp. 316–430. John Wiley and Sons, New 

York. 

83Anderson, D.M., ed. 1995. ECOHAB: The 

Ecology and Oceanography of Harmful Algal 

Blooms: A National Research Agenda. Woods Hole 

Oceanographic Institution, Woods Hole, MA. 

84Anderson, D.M., ed. 1995. ECOHAB: The 

Ecology and Oceanography of Harmful Algal 

Blooms: A National Research Agenda. Woods Hole 

Oceanographic Institution, Woods Hole, MA. 

85 Jacoby, C., B. Lapointe, and L. Creswell. No 

date. Are native and nonindigenous seaweeds 

overgrowing Florida’s east coast reefs? SGEF–156. 

Florida Sea Grant College Program. http:// 

nsgl.gso.uri.edu/flsgp/flsgpg01015.pdf. Accessed 

January 2012. 

Jacoby, C., and L. Walters. 2009. Can We Stop 

‘‘Killer Algae’’ from Invading Florida? (March 2009 

rev.) SGEF–155. Florida Sea Grant College Program. 

http://edis.ifas.ufl.edu/pdffiles/sg/sg07200.pdf. 

Accessed April 2012. 

86FFWCC. No date. Gambierdiscus toxicus. 

Florida Fish and Wildlife Conservation 

Commission. http://myfwc.com/media/202186/ 

g_toxicus_1054.pdf. Accessed January 2012. 

87FFWCC. No date. Blue-Green Algal Blooms in 

Coastal Florida; 1999, 2000, and 2002. Florida Fish 

and Wildlife Conservation Commission. http:// 

myfwc.com/research/redtide/archive/historicalevents/blue-green-algal-blooms-coastal-fl/. 

Accessed January 2012. 

88Butler, M.J., J.H. Hunt, W.F. Herrnking, M.J. 

Childress, R. Bertelsen, W. Sharp, T. Matthews, J.M. 

Field, and H.G. Marshall. 1995. Cascading 

disturbances in Florida Bay, USA: cyanobacteria 

blooms, sponge mortality, and implications for 

juvenile spiny lobsters Panulirus argus. Marine 

Ecology Progress Series 129:119–125. 

with low DO.74 This can result in 

negative changes to the benthic 

invertebrate community structure of 

estuaries and coastal areas, with 

increases of organisms more tolerant of 

low DO.75 Even intermittent hypoxia 

can cause shifts in the benthic 

assemblage to favor resistant or tolerant 

organisms, which are less desirable food 

sources, creating unbalanced benthic 

communities in the hypoxic zone 

because fish avoid the area.76 When 

hypoxia extends into shallow waters, it 

affects spawning and nursery areas for 

many important fish species by 

reducing the habitat available that 

protects smaller fish and aquatic 

organisms, especially juveniles, from 

predation.77 Hypoxia has been 

implicated in a recent increase and latesummer dominance of hypoxia-tolerant 

gelatinous zooplankton (jellyfish and 

ctenophores) in the Chesapeake Bay and 

other eastern estuaries.78 Reduced 

fishery production in hypoxic zones has 

been documented in the United States 

and worldwide.79

Hypoxia and anoxia in bottom waters 

result in anoxia in the surface 

sediments, which has geochemical 

consequences including acidification 

and release of toxic hydrogen sulfide, 

soluble reactive phosphorus, and 

ammonia.80 The sediment of hypoxic 

zones then becomes a potential source 

of nutrients that can increase the degree 

of eutrophication. Systems that have 

had persistent and chronic hypoxia 

often fail to recover quickly even after 

pollution loadings have been reduced.81

Reduced oxygen also affects a variety of 

other biogeochemical processes that can 

negatively impact water quality, such as 

the chemical form of metals in the water 

column.82

The harmful, adverse impacts of 

nitrogen and phosphorus pollution on 

aquatic life have been manifested 

throughout Florida. The State has been 

negatively impacted by algal blooms for 

many years. Red algae, Laurencia 

intricata and Spyridia filamentosa; 

brown algae, Dictyota sp. and 

Sargassum filipendula; and green algae, 

Enteromorpha sp., Codium 

isthmocladum, and Halimeda sp. grow 

in the Florida Bay area.83 At times their 

increased growth has threatened the 

commercially important fish, lobster, 

and shrimp nurseries in the area.84

Southern Palm Beach and northern 

Broward counties have been negatively 

impacted by algal mats made up of 

Caulerpa species since the 1990s. 

Caulerpa species can become overgrown 

or displace coral, other macroalgae, or 

sponges. Off Palm Beach County, dive 

operators and fishermen have reported 

large amounts of Caulerpa brachypus 

driving fish and lobster away from reefs. 

Researchers in Florida (e.g., Florida Sea 

Grant, University of Florida IFAS 

Extension, University of Central Florida, 

Tampa Bay Estuary Program) and 

nationally (e.g., National Sea Grant, 

NOAA) have noted the spread of a 

related green alga (Caulerpa taxifolia) 

along the California coast, which is 

illustrative of the potential for future 

further spread of C. brachypus in 

Florida coastal waters. California is 

spending millions to eradicate the C. 

taxifolia.85 Gambierdiscus toxicus (a 

ciguatoxin producer) is found from 

Palm Beach to the Dry Tortugas and 

Florida Bay and is suspected to have 

caused fish kills and disease events.86

Blooms of Lyngbya majuscula were 

reported in Charlotte Harbor, Cedar Key, 

Sebastian Inlet, Sarasota Bay, Tampa 

Bay, Terra Ceia Bay, Palma Sola, 

Manatee River, and northwest 

Bradenton in 1999, 2000, and 2002. 

Lyngbya majuscula can form sizeable, 

floating mats that emit foul odors.87 In 

1991, widespread and persistent blooms 

of cyanobacteria in Florida Bay 

coincided with massive sponge die-offs, 

which negatively impacted the behavior 

and abundance of populations of 

juvenile Caribbean spiny lobsters.88

Two Pseudo-nitzschia species found in 

Florida are P. calliantha, which was 

observed at bloom levels in the northern 

Indian River Lagoon, and P. 


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89Phlips, E.J., S. Badylak, M. Christman, J. 

Wolny, J. Brame, J. Garland, L. Hall, J. Hart, J. 

Lansberg, M. Lasi, J. Lockwood, R. Paperno, D. 

Scheidt, A. Staples, K. Steidinger. 2011. Scales of 

temporal and spatial variability in the distribution 

of harmful algae species in the Indian River Lagoon, 

Florida, USA. Harmful Algae 10:277–290. 

Phlips, E.J., S. Badylak, S. Youn, and K. Kelley. 

2004. The occurrence of potentially toxic 

dinoflagellates and diatoms in a subtropical lagoon, 

the Indian River Lagoon, Florida, USA. Harmful 

Algae 3(1):39–49. 

90Badylak, S., E.J. Phlips, P. Baker, J. Fajans, and 

R. Boler. 2007. Distributions of phytoplankton in 

Tampa Bay estuary, U.S.A. 2002–2003. Bulletin of 

Marine Science 80(2):295–317. 

Lopez, C.B., Q. Dortch, E.B. Jewett, and D. 

Garrison. 2008. Scientific Assessment of Marine 

Harmful Algal Blooms. Interagency Working Group 

on Harmful Algal Blooms, Hypoxia, and Human 

Health of the Joint Subcommittee on Ocean Science 

and Technology, Washington, DC. http:// 

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

habhrca/assess_12–08.pdf. Accessed April 2012. 

91 Fish kill in island canals appears over. 2011, 

June 2. Marconews.com –Marco Eagle. http:// 

www.marconews.com/news/2011/jun/02/dead-fishbad-smell-permeate-parts-island/?print=1. 

Accessed January 2012. 

92Patterson, S. 2010, July 23. St John’s River 

Looks Sick, Nelson says. The Florida Times Union. 

http://jacksonville.com/news/metro/2010–07–23/ 

story/st-johns-looks-sick-nelson-says. Accessed 

September 2010. 

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

River Churns Up Environmental Interest. The 

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

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

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

Found Floating Near Palm City as Lake Okeechobee 

Releases Continue. TCPalm. http:// 

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

October 2010. 

94Aubel, M., P. D’Aiuto, A. Chapman, D. 

Casamatta, A. Reich, S. Ketchen, and C. Williams. 

2006. Blue-Green Algae in St. Johns River, FL. 

Lakeline Summer 2006:40–45. 

95Abbott, G. M., J. H. Landsberg, A. R. Reich, K. 

A. Steidinger, S. Ketchen, and C. Blackmore. 2009. 

Resource Guide for Public Health Response to 

Harmful Algal Blooms in Florida. FWRI Technical 

Report TR–14. Florida Fish and Wildlife 

Conservation Commission, Fish and Wildlife 

Research Institute, St. Petersburg, FL. http:// 

myfwc.com/research/redtide/task-force/reportspresentations/resource-guide-for-public-healthresponse-to-harmful-algal-blooms-in-florida/. 

Accessed June 2011. 

http://www.lsjr.org/pdf/ 

ResourceGuide_FL_algal_blooms_2009.pdf. 

Accessed June 2011. 

96Pittman, C. 2009, June 26. Algae bloom one of 

largest in Tampa Bay history. St. Petersburg Times. 

http://www.tampabay.com/news/environment/ 

water/article1013322.ece. Accessed July 2010. 

97Tammen, K. 2011, April 20. It’s not even June 

and the June Grass is Back. Northwest Florida Daily 

News. http://www.nwfdailynews.com/news/grass39438-island-okaloosa.html. Accessed April 2011. 

98 Lee Closes a Water Plant; Blame Algae and 

Saltwater intrusion in Caloosahatchee. 2011, May 

19. CBS Wink News Now. http:// 

www.winknews.com/Local-Florida/2011–05–19/LeeCloses-a-Water-Plant-Blame-Algae-and-Salt-waterintrusion-in-Caloosahatchee. Accessed December 

2011. 

Lollar, K. 2011, June 6. Bacterial bloom stains 

waterway up to LaBelle. News-Press. http:// 

www.marconews.com/news/2011/jun/02/dead-fishbad-smell-permeate-parts-island/. Accessed June 

2011. 

Crisis in the Caloosahatchee: Algal blooms in 

local waters. 2011, June 8. Sanibel-Captiva Islander. 

http://sanibel-captiva-islander.com/page/ 

content.detail/id/511872/Crisis-in-theCaloosahatchee—Algal-blooms-in-localwaters.html?nav=5051. Accessed June 2011. 

Warning added for Lee County waters. 2011, June 

16. CBS Wink News Now. 

http://www.winknews.com/Local-Florida/2011– 

06–16/Warning-added-for-Lee-County-waters. 

Accessed June 2011. 

Cornwell, B. 2011, June 22. Algae Bloom doesn’t 

deter everyone. Fort Meyers Florida Weekly. 

http://fortmyers.floridaweekly.com/news/2011–06– 

22/Top_News/ 

Algae_bloom_doesnt_deter_everyone.html. 

Accessed June 2011. 

99Florida Today. 2011, July 18. Green algae 

killing fish, seagrass in northern Indian River 

Lagoon. 10 News WTSP—Tampa Bay. http:// 

www.wtsp.com/rss/article/201465/19/Green-algaekilling-fish-seagrass-in-northern-Indian-RiverLagoon. Accessed December 2011. 

100Reyes, R. 2011, August 31. Algae bloom 

continues to grow in Old Tampa Bay. Tampa Bay 

Online. http://www2.tbo.com/news/breaking-news/ 

2011/aug/31/1/algae-bloom-continues-to-grow-inold-tampa-bay-ar-254281/. Accessed December 

2011. 

Harwell, D. 2011, August 27. Tampa Bay algae 

bloom threatens the estuary’s fish. St. Petersburg 

Times. http://www.tampabay.com/news/ 

environment/water/tampa-bay-algae-bloomthreatens-the-estuarys-fish/1188284. Accessed 

August 2011. 

101Paerl, H.W. 1988. Nuisance phytoplankton 

blooms in coastal, estuarine, and inland waters. 

Limnology and Oceanography 33(4):823–847. 

Anderson, D.M., P.M. Glibert, and J.M. 

Burkholder. 2002. Harmful algal blooms and 

eutrophication: Nutrient sources, composition, and 

consequences. Estuaries 25(4):704–726. 

Anderson, D.M., J.M. Burkholder, W.P. Cochlan, 

P.M. Glibert, C.J. Gobler, C.A. Heil, R.M. Kudela, 

M.L. Parsons, J.E.J. Rensel, D.W. Townsend, V.L. 

Trainer, and G.A. Vargo. 2008. Harmful algal 

blooms and eutrophication: Examining linkages 

from selected coastal regions of the United States. 

Harmful Algae 8(1):39–53. 

pseudodelicatissima.89 Pseudo-nitzschia 

spp. has been observed in Tampa Bay 

since the 1960s. Pseudo-nitzschia spp. 

cause amnesic shellfish poisoning in 

humans and mortality of marine 

mammals and seabirds.90

In addition to being negatively 

indirectly impacted by algal toxins and 

decline of seagrass, aquatic life in 

Florida is directly impacted by hypoxia. 

In June 2011, a fish kill in Marco Island, 

Florida was attributed to low dissolved 

oxygen, resulting from a ‘‘mixed’’ bloom 

of non-toxic algae and diatoms.91 In 

2010, there were reports of algal blooms 

and fish kills in the St. Johns River.92

Spring releases of water from Lake 

Okeechobee into the St. Lucie Canal 

resulted in floating mats of toxic 

cyanobacteria, Microcystis aeruginosa, 

prompting Martin and St. Lucie county 

health departments to issue public 

health warnings.93 A large Microcystis 

bloom was documented in the Lower St. 

Johns River in 2005, covering a 100 mi 

(160 km) stretch from Jacksonville to 

Crescent City.94 Toxic cyanobacteria 

Anabaena circinalis and 

Cylindrospermopsis raciborskii have 

been implicated in fish kills in the 

Lower St. Johns River basin.95 In 

addition, in June 2009, a large algal 

bloom stretching more than 14 mi (23 

km) was documented in Tampa Bay. 

This was linked to surface water runoff 

of nutrients and pollutants (e.g., 

fertilizers, yard waste, animal feces) that 

were washed into the bay from recent 

heavy rains.96

Numerous algal blooms, some capable 

of producing toxins, foul odors, and fish 

kills, occurred in Florida coastal areas, 

estuaries, and canals in 2011. Green 

algae, known as June Grass, were found 

washing onto local beaches on Okaloosa 

Island. The algae adhere to swimmers, 

cover beaches and hinder fishing.97

In the Caloosahatchee River and 

estuary, high algae and salinity levels 

caused the Olga water treatment plant in 

Lee County to close in May 2011. 

Customers complained about unusual 

tastes and odors in their drinking water. 

The blue-green algae bloom significantly 

affected areas from the W.P. Franklin 

Lock and Dam, upstream through Alva 

and LaBelle, Florida. The bloom caused 

fish, bird and shellfish mortalities, and 

triggered the Lee County Health 

Department to issue warnings and 

advisories on water and fish 

consumption as well as swimming. 

Toxic blue-green algae species were 

identified in the bloom, including 

Anabaena, Oscillatoria and 

Aphanizomenon sp.98

The Indian River Lagoon also 

experienced large and prolonged algae 

blooms. High levels of green algae 

Resultor sp. were found from Titusville 

to Melbourne and covering the entire 

Banana River. The algae were thought to 

be responsible for killing hundreds of 

fish and inhibiting seagrass growth.99 A 

large rust-colored bloom of Pyrodinium 

bahamense formed in Old Tampa Bay in 

August 2011; the bloom stretched from 

Safety Harbor to the Howard Frankland 

Bridge and was thought to be caused by 

a combination of heat, rain, and 

fertilizer runoff.100

c. Adverse Impacts of Nitrogen and 

Phosphorus Pollution on Human Health 

As noted previously in section 

II.A.1.b, nitrogen and phosphorus 

pollution have been explicitly linked to 

changes in natural algal species 

composition including increased growth 

or dominance of toxic or otherwise 

harmful algal species.101 Toxins 

produced by HABs have been linked, 

through recreational exposure, to 

adverse human health impacts through 

ingestion of contaminated seafood, 


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District, Slovakia. Environmental Research 88:182– 

187. 117Fan, A.M., and V.E. Steinberg. 1996. Health 

implications of nitrate and nitrite in drinking water: 

An update on methemoglobinemia occurrence and 

reproductive and development toxicity. Regulatory 

Toxicology and Pharmacology 23(1 Pt 1):35–43. 

dermal reactions, and respiratory 

problems.102 Ingestion of seafood that is 

contaminated with toxins can cause 

gastrointestinal, neurological, 

cardiovascular, and hepatological 

illnesses. In some severe cases, 

ingestion of even a small amount of 

contaminated seafood can result in 

coma or death.103

Nitrogen and phosphorus pollution 

has been linked to human health 

impacts in Florida, primarily through 

illnesses associated with HABs. 

Although marine HABs occur naturally, 

increased nutrient loadings and 

pollution have been linked to increased 

occurrence of some types of HABs.104

Significant HAB-caused toxins that have 

been found in Florida’s marine waters 

include saxitoxins, brevetoxins, 

ciguatoxins, cyanotoxins, domoic acid, 

and okadaic acid.105

Ciguatoxins lead to Ciguatera fish 

poisoning (CFP), one of the most 

commonly reported food borne illnesses 

caused by a marine biotoxin in the 

United States,106 with 176 cases 

reported to U.S. poison centers in 2009 

(22 percent of the total reported cases of 

food poisoning from seafood toxins).107

Ciguatoxins are bioaccumulative, 

causing gastrointestinal, neurological, or 

cardiovascular symptoms that vary in 

intensity.108 In Florida, CFP poses a 

significant risk to public health.109 One 

estimate indicates that approximately 

1,300 cases of CFP (reported and 

unreported cases) occur annually in 

Florida.110 The Florida Department of 

Health (FDOH) reported 8 cases of CFP 

in 2005, 44 cases in 2006, 34 cases in 

2007, and 51 cases in 2008.111

Saxitoxins lead to paralytic shellfish 

poisoning (PSP), which occurs when 

humans eat shellfish contaminated with 

saxitoxins. These toxins affect the 

nervous system and in severe cases 

cause respiratory paralysis.112 Between 

January 2002 and May 2004, 28 cases of 

saxitoxin poisoning associated with 

puffer fish caught in Florida’s Indian 

River Lagoon (IRL) were reported. In 

2002, the Florida Fish and Wildlife 

Conservation Commission banned the 

commercial and recreational harvest of 

puffer fish in several water bodies in 

Florida and made that ban permanent in 

2004.113 Domoic acid, also produced by 

HABs, can also cause food poisoning, 

producing symptoms ranging from mild 

gastrointestinal discomfort to permanent 

brain damage and, in rare cases, 

death.114

In addition, elevated levels of nitrate, 

a byproduct of nitrogen pollution in 

surface waters, can cause public health 

concerns if the water is a drinking water 

source, where 115 nitrate is converted to 

harmful nitrite after ingestion.116 The 

primary human health concern with 

nitrates and nitrites in drinking water is 

methemoglobinemia, although adverse 

thyroid effects have been associated 

with elevated nitrates as well.117


tkelley on DSK3SPTVN1PROD with 
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118Manassaram, D.M., L.C. Backer, and D.M. 

Moll. 2006. A Review of Nitrates in Drinking Water: 

Maternal Exposure and Adverse Reproductive and 

Developmental Outcomes. Environmental Health 

Perspectives 114(3):320–327. FDEP. 2011. Drinking 

Water: Inorganic Contaminants. Florida Department 

of Environmental Protection. http:// 

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

inorg_con.htm. Accessed November 2011. 

119USEPA. 2007. Nitrates and Nitrites: TEACH 

Chemical Summary. U.S. Environmental Protection 

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

Nitrates_summary.pdf. Accessed May 2012. 

120 DeSimone, L.A., P.A. Hamilton, and R.J. 

Gilliom. 2009. Quality of Water from Domestic 

Wells in Principal Aquifers of the United States, 

1991–2004: Overview of Major Findings. Circular 

1332.U.S. Geological Survey, National Water 

Quality Assessment Program, Reston, VA. http:// 

water.usgs.gov/nawqa/studies/domestic_wells/ 

WaterWellJournalArticle_DeSimoneetal2009.pdf. 

Accessed November 2011. 

Spechler, R.M. 2010. Hydrogeology and 

Groundwater Quality of Highlands County, Florida. 

Scientific Investigations Report 2010–5097. U.S. 

Geological Survey, Reston, VA 

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

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

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

T.M. Short, NE. Spahr, L.A. Sprague, and W.G. 

Wilber. 2010. The Quality of our Nation’s Waters— 

Nutrients in the Nation’s Streams and 

Groundwater, 1992–2004. Circular 1350. U.S. 

Geological Survey, National Water Quality 

Assessment Program, Reston, VA. http:// 

water.usgs.gov/nawqa/nutrients/pubs/circ1350. 

Accessed May 2012. 

121FDEP. 2012. Chemical Data for 2004, 2005, 

2006, 2007, 2008, 2009, 2010, and 2011. Florida 

Department of Environmental Protection. http:// 

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

chemdata.htm. Accessed May 2012. 

122Southern Regional Water Program. 2010. 

Drinking Water and Human Health in Florida. 

http://srwqis.tamu.edu/florida/programinformation/florida-target-themes/drinking-waterand-human-health.aspx. Accessed May 2012. 

Obreza, T.A., and K.T. Morgan. 2008. Nutrition of 

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

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

pdffiles/SS/SS47800.pdf. Accessed May 2012. 

123 Dodds, W.K., W.W. Bouska, J.L. Eitzmann, T.J. 

Pilger, K.L. Pitts, A.J. Riley, J.T. Schloesser, and D.J. 

Thornbrugh. 2009. Eutrophication of U.S. 

Freshwaters: Analysis of Potential Economic 

Damages. Environmental Science and Technology 

43(1):12–19. 

124FFWCC. No Date. The Economic Impact of 

Saltwater Fishing in Florida. Florida Fish and 

Wildlife Conservation Commission. http:// 

myfwc.com/conservation/value/saltwater-fishing. 

Accessed December 2011. 

125FFWCC. No Date. Economic Impact of 

Outdoor Recreation. Florida Fish and Wildlife 

Conservation Commission. 

http://myfwc.com/conservation/value/outdoorrecreation. Accessed July 2011. 

126USFWS. 2008. 2006 National Survey of 

Fishing, Hunting, and Wildlife-Associated 

Recreation: Florida. FHW/06–FL. U.S. Fish and 

Wildlife Service. http://www.census.gov/prod/ 

2008pubs/fhw06-fl.pdf. Accessed July 2011. 

127 Gorte, R.W. 1994. The Florida Bay economy 

and changing environmental conditions. 94–435 

ENR, CRS Report for Congress, Congressional 

Research Service, The Library of Congress. 

128Anderson, D.M.. 2008. Hearing on ‘‘Harmful 

Algal Blooms: The Challenges on the Nation’s 

Coastlines’’. Woods Hole Oceanographic Institution. 

http://www.whoi.edu/page.do?pid=8916&tid=282&

cid=46007. Accessed December 2011. 

129USGS. 2001. Seagrass Habitat In the Northern 

Gulf of Mexico: Degradation, Conservation, and 

Restoration of a Valuable Resource. U.S. Geological 

Survey, Gulf of Mexico Habitat Program Team, 

855–R–04–001. http://gulfsci.usgs.gov/gom_ims/ 

pdf/pubs_gom.pdf. Accessed July 2011. 

Burkholder, J.M., D.A. Tomasko, and B.W. 

Touchette. 2007. Seagrasses and eutrophication. 

Journal of Experimental Marine Biology and 

Ecology 350:46–72. 

Waycott, M., C.M. Duarte, T.J.B. Carruthers, R.J. 

Orth, W.C. Dennison, S. Olyarnik, A. Calladine, 

J.W. Fourqurean, K.L. Heck, Jr., A.R. Hughes, G.A. 

Kendrick, W.J. Kenworthy, F.T. Short, and S.L. 

Williams. 2009. Accelerating loss of seagrasses 

across the globe threatens coastal ecosystems. 

Proceedings of the National Academy of Sciences 

of the United States of America 106(30):12377– 

12381. 

Continued 

Methemoglobinemia, or ‘‘blue baby 

syndrome,’’ as the name implies, most 

often affects infants less than six months 

old (although adults can also be 

affected) when the ingested nitrate is 

converted to nitrite in the body that 

prevents hemoglobin in the blood from 

delivering oxygen effectively throughout 

the body. Methemoglobinemia is an 

acute disease and symptoms can 

develop rapidly in infants, usually over 

a period of days. Symptoms include 

shortness of breath and blueness of the 

skin, and even death in severe cases.118

EPA developed a Maximum 

Contaminant Level (MCL) of 10 mg/L for 

nitrate in drinking water and an MCL of 

1 mg/L for nitrite.119 Nitrates are found 

in groundwater and wells in Florida, 

ranging from the detection limit of 0.02 

mg/L to over 20 mg/L. Elevated nitrate 

concentrations in groundwater are more 

common in rural agricultural areas 

which are often served by private wells. 

When nitrate occurs at concentrations 

greater than 1 mg/L, it is considered to 

be the result of human activities such as 

application of agricultural fertilizers, 

disposal of animal wastes, and use of 

septic tanks.120 Monitoring of Florida 

Public Water Supplies from 2004–2011 

indicates that exceedances of the nitrate 

MCL reported by drinking water plants 

in Florida ranged from 19–34 

annually.121 A study in the late 1980s 

conducted by Florida Department of 

Agriculture and Consumer Services 

(FDACS) and FDEP, analyzed 3,949 

shallow drinking water wells for 

nitrate.122 Nitrate was detected in 2,483 

wells (63%), with 584 wells (15%) 

above the MCL of 10 mg/L. 

d. Adverse Impacts of Nitrogen and 

Phosphorus Pollution on the Economy 

Excessive algal blooms result in a 

range of economic losses, including lost 

revenue from impacts to commercial 

fisheries, recreational fishing and 

boating trips, and tourism, as well as 

increased drinking water costs and 

reduced waterfront property values.123

More information concerning the costs 

and benefits of the numeric nutrient 

criteria proposed in this rule can be 

found in Section VI. 

The economic value of Florida’s 

marine recreational fisheries is higher 

than any other state in the country. 

Recreational fishing contributed over $5 

billion to Florida’s economy in 2006. In 

the 2008–2009 fiscal year, over 1 

million individuals bought a marine 

recreational fishing license, generating 

over $29 million in revenue.124

Similarly, Florida has one of the 

nation’s top producing commercial 

fisheries. In 2009, Florida’s harvest of 

the top five commercial species of fish 

and shellfish was worth more than $55 

million combined. In total, commercial 

fishing contributed more than $1 billion 

to the economy of Florida. Outdoor 

recreation in Florida (including 

wildlife-viewing, fishing, and water 

sports) generates $10.1 billion 

annually.125 In 2006, over 3 million 

Florida residents and 746,000 visitors 

participated in wildlife-viewing 

activities, for total retail sales of an 

estimated $3.1 billion.126

At the county level, Monroe County’s 

commercial tourism and fishing 

industries rely on finfish and shellfish 

from Florida Bay. Measurable economic 

losses associated with the changing 

environmental conditions of the Bay 

have occurred, primarily from the 

substantial decline in pink shrimp 

harvests due to loss of submerged 

aquatic vegetation (habitat), which was 

linked to nitrogen and phosphorus 

pollution as a contributing factor. From 

1986 through the early 1990s, 

employment in commercial fishing 

declined by about 10 percent, while 

income of individuals in the industry 

declined by $16 million. These losses 

coincided with massive seagrass die-offs 

in the Bay and blue-green algae 

blooms.127

HAB toxins can make seafood unsafe 

for human consumption, leading to an 

overall reduction in the amount of fish 

purchased due to the real or perceived 

threats of contamination.128 Potential 

economic impacts from nitrogen and 

phosphorus pollution in Florida include 

monetary losses due to depressed 

fisheries, tourism and property values, 

and elevated costs to address nutrient 

impacts (e.g., beach cleanup costs, HAB 

monitoring). 

Seagrass habitats are valuable 

components of Florida’s estuarine and 

coastal waters. FDEP has estimated that 

each acre of seagrass is worth $20,255 

per year, which would translate to a 

benefit of $44.6 billion statewide.129


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Short, F.T., B. Polidoro, S.R. Livingstone, K.E. 

Carpenter, S. Bandeira, J.S. Bujang, H.P. 

Calumpong, T.J.B. Carruthers, R.G. Coles, W.C. 

Dennison, P.L.A. Erftemeijer, M.D. Fortes, A.S. 

Freeman, T.G. Jagtap, A.H.M. Kamal, G.A. 

Kendrick, W.J. Kenworthy, Y.A. La Nafie, I.M. 

Nasution, R.J. Orth, A. Prathep, J.C. Sanciangco, B. 

van Tussenbroek, S.G. Vergara, M. Waycott, and J.C. 

Zieman. 2011. Extinction risk assessment of the 

world’s seagrass species. Biological 

Conservation144:1963–1971. 

Watson R.A., R.G. Coles, and W.J. Lee Long. 1993. 

Simulation estimates of annual yield and landed 

value for commercial penaeid prawns from a 

tropical seagrass habitat, Northern Queensland, 

Australia. Australian Journal of Marine and 

Freshwater Research 44:211–219. 

Carlson, P., and L. Yarbro. 2008. Seagrass 

Mapping and Monitoring: Big Bend and Beyond. 

Presented at Florida Water Resources Monitoring 

Council Meeting, St. Petersburg, FL, September 24– 

25, 2008. 

Costanza, R., R. d’Arge, R. de Groot, S. Farber, M. 

Grasso, B. Hannon, K. Limburg, S. Naeem, R.V. 

Neill, J. Paruelo, R.G. Raskin, P. Sutton, and M. van 

den Belt. 1997. The value of the world’s ecosystem 

services and natural capital. Nature 387:253–260. 

130FDEP. 2011. Celebrate Seagrass Awareness 

Month. Florida Department of Environmental 

Protection. http://www.dep.state.fl.us/coastal/news/ 

articles/2011/1103_Seagrass.htm. Accessed June 

2011. 

Scott, R. 2011. Seagrass Awareness Month. 

Proclamation by Governor Rick Scott of the State of 

Florida. Florida Department of Environmental 

Protection. http://www.dep.state.fl.us/coastal/

habitats/seagrass/awareness/Proclamation

_2011.pdf. Accessed June 2011. 

131USEPA. 2009. Determining an Estuary’s 

Economic Value. EPA–842F09001. U.S. 

Environmental Protection Agency, National Estuary 

Program, Washington, DC. http://water.epa.gov/

type/oceb/nep/upload/2009_05_28_estuaries

_inaction_Efficient_IndianRiver.pdf. Accessed July 

2011. 

132Larkin, S.L., and C.M. Adams. 2007. Harmful 

algal blooms and coastal business: economic 

consequences in Florida. Society & Natural 

Resources 20(9):849–859. 

133McCormick, B., R. Clement, D. Fischer, M. 

Lindsay, R. Watson. 2010. Measuring the Economic 

Benefits of America’s Everglades Restoration: An 

Economic Evaluation of Ecosystem Services 

Affiliated with the World’s Largest Ecosystem 

Restoration Project. Prepared for the Everglades 

Foundation, Palmetto Bay, FL, by Mather 

Economics, Roswell, GA. 

134Hoagland, P., D.M. Anderson, Y. Kaoru, and 

A.W. White. 2002. The economic effects of harmful 

algal blooms in the United States: estimates, 

assessment issues, and information needs. Estuaries 

25:819–837. 

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

a multifaceted approach to manage high 

sourcewater nitrate. Opflow June:20–22. 

136Taft, Jim, Association of State Drinking Water 

Administrators (ASDWA). 2009. Personal 

Communication. 

137Moershel, Philip, Oklahoma Water Resources 

Board (OWRB) and Mark Derischweiler, Oklahoma 

Department of Environmental Quality (ODEQ). 

2009. Personal Communication. 

The nearly 2.2 million acres of seagrass 

beds in Florida’s nearshore waters 

support fish and shellfish that are 

economically vital to commercial and 

recreational businesses in Florida.130

Some estuary experts have attempted to 

quantify the overall value of individual 

estuaries in Florida. For example, the 

Indian River Lagoon National Estuary 

Program estimated the total value of the 

Indian River Lagoon at $3.7 billion 

(2009 dollars). In the study, recreational 

and non-use values of the lagoon were 

estimated to increase by nearly $80 

million per year (2009 dollars) if there 

were a significant increase in the 

amount and diversity of wildlife in the 

lagoon, as well as increased water 

quality throughout the system from 

restoration and water quality 

improvement projects.131

According to a study on the impacts 

of HABs on beachfront tourismdependent businesses in the Ft. Walton 

Beach and Destin areas of Florida, HABs 

reduced restaurant and lodging 

revenues by $2.8 million and $3.7 

million per month, respectively, 

representing a 29 percent to 35 percent 

decline in average monthly revenues.132

A study by Mather Economics 

estimated the effects of water quality on 

real estate value in the South Florida 

Water Management District. The 

aggregate owner-occupied residential 

real estate value in the 16-county South 

Florida Water Management District is 

approximately $976 billion. If water 

quality (measured by dissolved oxygen 

levels) can be returned to 1970 levels as 

a result of restoring the Everglades (a 

potential 23.4 percent improvement in 

water quality), the study found that real 

estate values would increase by $16 

billion.133

In addition to negatively impacting 

Florida businesses, nitrogen and 

phosphorus pollution increases costs for 

beach cleanup, HAB monitoring, and 

wastewater treatment. For example, 

approximately $63,000 was spent 

annually from 1995–1997 to dispose of 

red seaweed and fish killed by HAB 

events that littered 17.5 miles of beach 

in Sarasota County.134

In addition, there are increased costs 

due to the need to treat polluted sources 

of drinking water. As an example of 

increased costs for drinking water 

treatment, in 1991, Des Moines (Iowa) 

Water Works constructed a $4 million 

ion exchange facility to remove nitrate 

from its drinking water supply. This 

facility was designed to be used an 

average of 35–40 days per year to 

remove excess nitrate levels at a cost of 

nearly $3,000 per day.135 In another 

example, Fremont, Ohio (a city of 

approximately 20,000) has experienced 

high levels of nitrate from its drinking 

water source, the Sandusky River, 

resulting in numerous drinking water 

use advisories. An estimated $15 

million is needed to build a reservoir 

(and associated piping) that will allow 

for selective withdrawal from the river 

to avoid elevated levels of nitrate and 

provide storage.136 By regulating 

allowable levels of chlorophyll a in 

Oklahoma drinking water reservoirs, the 

Oklahoma Water Resources Board 

estimated that the long-term cost 

savings in averted drinking water 

treatment for 86 systems would range 

between $106 million and $615 million 

if such regulations were 

implemented.137 These statistics are 

illustrative of what treatment to address 

nitrates and nitrites can cost. Any 

impacts in Florida would be sitespecific and might or might not be 

comparable to these numbers. 

B. Statutory and Regulatory Background 

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

1313(c)) directs states to adopt WQS for 

their navigable waters. CWA Section 

303(c)(2)(A) and EPA’s implementing 

regulations at 40 CFR 131 require, 

among other things, that state WQS 

include the designated use and criteria 

that protect those uses. EPA regulations 

at 40 CFR 131.11(a)(1) provide that 

states shall ‘‘adopt those water quality 

criteria that protect the designated use’’ 

and that such criteria ‘‘must be based on 

sound scientific rationale and must 

contain sufficient parameters or 

constituents to protect the designated 

use.’’ In addition, 40 CFR 131.10(b) 

provides that ‘‘[i]n designating uses of a 

water body and the appropriate criteria 

for those uses, the state shall take into 

consideration the water quality 

standards of downstream waters and 

ensure that its water quality standards 

provide for the attainment and 

maintenance of the water quality 

standards of downstream waters.’’ 

States are also required to review their 

water quality standards at least once 

every three years and, if appropriate, 

revise or adopt new standards (CWA 

section 303(c)(1)). Any new or revised 

water quality standards must be 

submitted to EPA for review and 

approval or disapproval (CWA section 

303(c)(2)(A) and (c)(3)). In addition, 

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

Administrator to determine, even in the 

absence of a state submission, that a 

new or revised standard is needed to 

meet CWA requirements. The EPA 

approved the State of Florida’s rules 

(which include criteria for certain 

estuaries and coastal marine waters) on 

November 30, 2012. The criteria 

proposed in this rulemaking protect the 

uses designated by the State of Florida 

and implement Florida’s narrative 

nutrient provision at Subsection 62– 

302.530(47)(b), F.A.C. for the purposes 

of the CWA. These criteria include 

numeric values that apply to Florida’s 


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138The criteria proposed in this rulemaking do 

not address or implement Florida’s narrative 

nutrient provision at Subsection 62–302.530(47)(a), 

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

remains in place as an applicable water quality 

standard for CWA purposes. 139USEPA. 1994. Water Quality Standards 

Handbook: Second Edition, Chapter 3—Water 

Quality Criteria. EPA–823–B–94–005a. U.S. 

Environmental Protection Agency, Office of Water, 

Washington, DC. 

USEPA 1991. Technical Support Document for 

Water Quality-based Toxics Control. Appendix D— 

Duration and Frequency. EPA/505/2–90–001. U.S. 

Environmental Protection Agency, Office of Water, 

Washington, DC. 

140USEPA. 2000a. Nutrient Criteria Technical 

Guidance Manual: Lakes and Reservoirs. EPA–822– 

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

Office of Water, Washington, DC. 

141USEPA. 2000b. Nutrient Criteria Technical 

Guidance Manual: Rivers and Streams. EPA–822– 

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

Office of Water, Washington, DC. 

142USEPA. 2001. Nutrient Criteria Technical 

Manual: Estuarine and Coastal Marine Waters. 

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

Agency, Office of Water, Washington, DC. 

143USEPA. 2000a. Nutrient Criteria Technical 

Guidance Manual: Lakes and Reservoirs. EPA–822– 

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

Office of Water, Washington, DC. 

144Pursuant to Subsection 62–302.400(4), F.A.C. 

estuaries and coastal waters not covered 

by the newly-approved State WQS, 

south Florida inland flowing waters, 

and DPVs to ensure the attainment and 

maintenance of the water quality 

standards of downstream estuaries.138

As explained more fully in Section I.A, 

EPA does not intend to finalize these 

DPVs if the district court modifies the 

Consent Decree consistent with EPA’s 

amended determination that numeric 

DPVs are not necessary to meet CWA 

requirements in Florida. 

C. Water Quality Criteria 

Water quality criteria include three 

components. The first component is 

‘‘magnitude,’’ the concentration of a 

pollutant that can be maintained over 

time in the ambient receiving water 

without adversely affecting the 

designated use that the criteria is 

intended to support. The second 

component is ‘‘duration,’’ or the time 

period over which exposure is averaged 

(i.e., the averaging period) to limit the 

time of exposure to elevated 

concentrations. This accounts for the 

variability in the quality of the ambient 

water due to variations of constituent 

inputs, flow, and other factors. The 

third component is ‘‘frequency,’’ or how 

often the magnitude/duration condition 

may be exceeded and still protect the 

designated use. Combining the criterionmagnitude with the duration and 

frequency prevents harmful effects from 

infrequent exceedances of the criterionmagnitude by ensuring compensating 

periods of time during which the 

concentration is below the criterionmagnitude. When criterion-magnitudes 

are exceeded for short periods of time or 

infrequently, aquatic life can typically 

recover; that is, the designated uses of 

the water body are typically protected. 

Designated uses are typically not 

protected when criterion-magnitudes 

are exceeded for longer periods of time 

(i.e., for longer than the specified 

duration) or more frequently (i.e., more 

often than the allowed frequency).139

Use of this magnitude-durationfrequency format allows for some 

exceedances of the criterion-magnitude 

concentrations while still protecting 

applicable designated uses, which is 

important for pollutants such as 

nitrogen and phosphorus because their 

concentrations can vary naturally in the 

environment. 

Under CWA section 304(a), EPA 

periodically publishes criteria 

recommendations for use by states in 

setting water quality criteria for 

particular parameters to protect 

recreational and aquatic life uses of 

waters. Where EPA has published 

recommended criteria, states have the 

option of adopting water quality criteria 

based on EPA’s CWA section 304(a) 

criteria guidance, section 304(a) criteria 

guidance modified to reflect sitespecific conditions, or other 

scientifically defensible methods (40 

CFR 131.11(b)(1)). 

For nitrogen and phosphorus 

pollution, EPA has published under 

CWA section 304(a) a series of peerreviewed, national technical approaches 

and methods for the development of 

numeric nutrient criteria for lakes and 

reservoirs,140 rivers and streams,141 and 

estuarine and coastal marine waters.142

EPA based the methodologies used to 

develop numeric nutrient criteria for 

Florida in this proposed regulation on 

these published guidance documents, 

which identify three scientifically 

defensible approaches for deriving 

nutrient criteria: (1) The reference 

condition approach derives criteria from 

observations collected in reference 

water bodies or during reference time 

periods; (2) the mechanistic modeling 

approach represents contaminant 

loadings, hydrodynamics, and impacts 

in aquatic systems using equations that 

represent physical and ecological 

processes, calibrated using site-specific 

data; and (3) the stressor-response 

approach estimates the relationship 

between nutrient concentrations and 

response measures related to a 

designated use of the water body. These 

three analytical approaches have been 

independently peer-reviewed and are 

appropriate for deriving scientifically 

defensible numeric nutrient criteria, 

taking into consideration the methodspecific data needs and available data. 

In addition to these approaches, 

consideration of established (e.g., 

published and peer-reviewed) nutrient 

response thresholds is also an 

acceptable approach for deriving 

criteria.143

The criteria proposed in this 

rulemaking implement Florida’s 

narrative nutrient provision at 

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

for the purposes of the CWA as numeric 

values that apply to, and protect, Class 

I, II, and III estuaries and coastal waters 

in Florida and south Florida inland 

flowing waters. In Florida, water quality 

criteria established for Class I, II, and III 

surface waters must protect ‘‘fish 

consumption, recreation and the 

propagation and maintenance of a 

healthy, well-balanced population of 

fish and wildlife.’’ 144 Florida’s existing 

narrative nutrient provision serves to 

protect Class I, II, and III waters from 

nitrogen and phosphorus pollution by 

requiring that ‘‘[i]n no case shall 

nutrient concentration of a body of 

water be altered so as to cause an 

imbalance in natural populations of 

aquatic flora or fauna.’’ 

After an extensive review of the latest 

scientific knowledge relating to the 

impacts of nutrient pollution on aquatic 

systems, EPA is proposing the use of 

three biological endpoints— 

maintenance of seagrasses, maintenance 

of balanced algal populations, and 

maintenance of aquatic life (fauna)—as 

the most sensitive to effectively derive 

numeric nutrient criteria that will 

protect Class I, II, and III designated 

uses from the harmful, adverse effects of 

nutrient pollution. The endpoint 

measures that EPA is proposing to use 

to determine the nutrient concentrations 

to protect these biological endpoints are 

light levels to maintain historic depth of 

seagrass colonization, chlorophyll a 

concentrations associated with balanced 

phytoplankton biomass, and sufficient 

DO to maintain aquatic life. Fish 

consumption relies on the presence of 

fish and aquatic life as well as the 

habitat that supports them, which in 

turn relies on seagrasses and limited 

occurrence of nuisance algal blooms. 

The protection of recreation (both 

fishing and swimming related uses) 

relies on the presence of fish and 

aquatic life as well as limited 

occurrence of nuisance algal blooms. 

Lastly, the protection of propagation 

and maintenance of a healthy, wellbalanced population of fish and wildlife 

relies on the presence of fish and 


tkelley on DSK3SPTVN1PROD with 
74940 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

145Case 4:08–cv–00324–RH–WCS, February 18, 

2012. 

146http://water.epa.gov/lawsregs/rulesregs/ 

florida_consent.cfm. 

aquatic life as well as the habitat that 

supports them. 

EPA’s January 14, 2009 determination 

addressed Florida’s narrative nutrient 

provision at Subsection 62– 

302.530(47)(b), F.A.C. As discussed 

earlier, EPA has proposed and 

promulgated criteria, in this and other 

proposals, to implement that provision, 

which provides that ‘‘[i]n no case shall 

nutrient concentrations of a body of 

water be altered so as to cause an 

imbalance in natural populations of 

aquatic flora or fauna. The criteria 

proposed in this rulemaking do not 

address or implement Florida’s 

narrative nutrient provision at 

Subsection 62–302.530(47)(a), F.A.C. 

which provides that ‘‘[t]he discharge of 

nutrients shall continue to be limited as 

needed to prevent violations of other 

standards contained in this chapter. 

Human-induced nutrient enrichment 

(total nitrogen or total phosphorus) shall 

be considered degradation in relation to 

the provisions of Sections 62–302.300, 

62–302.700, and 62–4.242, F.A.C.’’ 

Subsection 62–302.530(47)(a), F.A.C. 

remains in place as an applicable WQS 

for CWA purposes and could result in 

more stringent nitrogen and phosphorus 

limits than those proposed in this rule, 

where necessary to protect other 

applicable water quality standards in 

Florida. 

D. EPA Determination Regarding 

Florida and Consent Decree 

On January 14, 2009, EPA determined 

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

new or revised water quality standards 

in the form of numeric water quality 

criteria for nitrogen and phosphorus 

pollution are necessary to meet the 

requirements of the CWA in the State of 

Florida. EPA’s determination is 

available at the following Web site: 

http://water.epa.gov/lawsregs/rulesregs/ 

florida_consent.cfm. 

Subsequently, EPA entered into a 

Consent Decree with Florida Wildlife 

Federation, Sierra Club, Conservancy of 

Southwest Florida, Environmental 

Confederation of Southwest Florida, and 

St. Johns Riverkeeper, effective on 

December 30, 2009, which established a 

schedule for EPA to propose and 

promulgate numeric nutrient criteria for 

Florida’s lakes, springs, flowing waters, 

estuaries, and coastal waters, as well as 

downstream protection values (DPVs) to 

protect downstream lakes and estuaries. 

The Consent Decree provided that if 

Florida submitted and EPA approved 

numeric nutrient criteria for the relevant 

water bodies before the dates outlined 

in the schedule, EPA would no longer 

be obligated to propose or promulgate 

criteria for those water bodies. 

E. EPA’s Rulemaking and Subsequent 

Litigation 

On December 6, 2010, EPA published 

a rule finalizing numeric nutrient 

criteria for Florida’s lakes, springs, and 

flowing waters outside of the South 

Florida Nutrient Watershed Region (40 

CFR 131.43). The 2010 ‘‘inland waters 

rule’’ was previously scheduled to take 

effect on March 6, 2012, with the 

exception of one provision that allowed 

entities to submit Site-Specific 

Alternative Criteria (SSAC) effective 

February 4, 2011. The March 6, 2012 

effective date was subsequently 

extended on two occasions (77 FR 

13497 and 77 FR 39949) such that the 

current effective date of the rule is 

January 6, 2013. Concurrently with this 

proposal, EPA is issuing a separate 

proposed rule to stay the inland waters 

rule until November 15, 2013. For more 

information on the proposed stay rule, 

see http://water.epa.gov/lawsregs/ 

rulesregs/florida_inland.cfm. 

Following the publication of the 

inland waters rule, 12 cases were filed 

in the U.S. District Court for the 

Northern District of Florida challenging 

the rule. The cases, consolidated before 

Judge Robert Hinkle in the Tallahassee 

Division of the Northern District, were 

filed by environmental groups, Florida’s 

State Department of Agriculture, the 

South Florida Water Management 

District, and various industry/discharger 

groups. The challenges alleged that 

EPA’s determination and final inland 

waters rule were arbitrary, capricious, 

an abuse of discretion, and not in 

accordance with the law for a variety of 

reasons. Oral argument in the case was 

held on January 9, 2012 before Judge 

Hinkle. 

On February 18, 2012, the Court 

upheld EPA’s January 2009 

determination and the final numeric 

nutrient criteria for Florida’s lakes and 

springs, as well as the site-specific 

alternative criteria (SSAC) provisions 

and the provisions for calculating DPVs 

using either modeling or a default 

option for an impaired lake that is not 

attaining its numeric nutrient criteria.145

With regard to EPA’s numeric nutrient 

criteria for flowing waters (i.e., streams) 

and the default option to calculate DPVs 

for unimpaired lakes based on ambient 

stream nutrient concentrations at the 

point of entry to the lake, the Court 

found that EPA had not provided 

sufficient information in its final rule 

explaining why or how the criteria or 

DPV protect against harmful increases, 

as opposed to any increase, in nutrients. 

The Court observed that EPA’s scientific 

approach to deriving stream criteria 

(i.e., the reference condition approach), 

including the criteria’s duration and 

frequency components, ‘‘are matters of 

scientific judgment on which the rule 

would survive arbitrary-or-capricious 

review.’’ The Court also found, 

however, that EPA had not explained in 

sufficient detail how the stream criteria 

would prevent a ‘‘harmful increase in a 

nutrient level’’. In addition, the Court 

found that EPA had not explained in 

sufficient detail how exceedances of the 

default DPV for unimpaired lakes would 

lead to ‘‘harmful effects’’ in the 

downstream lake. Thus, the Court 

invalidated these two aspects of EPA’s 

final rule and remanded them to the 

Agency for further action. Concurrently 

with this proposal, EPA is issuing a 

separate proposed rule for Florida’s 

streams and DPVs for unimpaired lakes 

(Water Quality Standards for the State 

of Florida’s Streams and Downstream 

Protection Values for Lakes: Remanded 

Provisions). For more information on 

the proposed rule for the remanded 

provisions, see http://water.epa.gov/ 

lawsregs/rulesregs/florida_inland.cfm. 

On several occasions, the court 

granted EPA’s request to modify the 

deadlines in the December 2009 

Consent Decree.146 Under the revised 

Consent Decree, EPA is required to 

propose criteria for Florida’s estuaries, 

coastal waters, and south Florida inland 

flowing waters by November 30, 2012 

and to finalize such criteria by 

September 30, 2013. 

In accordance with the January 14, 

2009 determination, the December 30, 

2009 Consent Decree, and the 

subsequent modifications to the 

deadlines in the December 30, 2009 

Consent Decree, EPA is proposing in 

this notice numeric nutrient criteria for 

estuaries and coastal waters in the State 

of Florida, and south Florida inland 

flowing waters. This proposed rule 

satisfies EPA’s requirement to propose 

criteria for these three categories of 

Florida waters by November 30, 2012. 

F. Florida Adoption of Numeric Nutrient 

Criteria and EPA Approval 

On June 13, 2012, FDEP submitted 

new and revised WQS for review by the 

EPA pursuant to section 303(c) of the 

CWA. These new and revised WQS are 

set out primarily in Rule 62–302 of the 

F.A.C. [Surface Water Quality 

Standards]. FDEP also submitted 

amendments to Rule 62–303, F.A.C. 

[Identification of Impaired Surface 

Waters], which sets out Florida’s 

methodology for assessing whether 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74941 

waters are attaining State WQS. On 

November 30, 2012, EPA approved the 

provisions of these rules submitted for 

review that constitute new or revised 

WQS (referred to in this preamble as the 

‘‘newly-approved State WQS’’). 

Among the newly-approved State 

WQS are numeric criteria for nutrients 

that apply to a set of estuaries and 

coastal marine waters in Florida. 

Specifically, these newly-approved 

State WQS apply to Clearwater Harbor/ 

St. Joseph Sound, Tampa Bay, Sarasota 

Bay, Charlotte Harbor/Estero Bay, Clam 

Bay, Tidal Cocohatchee River/Ten 

Thousand Islands, Florida Bay, Florida 

Keys, and Biscayne Bay. Under the 

Consent Decree, EPA is relieved of its 

obligation to propose numeric criteria 

for these waters. 

III. Proposed Numeric Criteria for 

Florida’s Estuaries, Coastal Waters, and 

South Florida Inland Flowing Waters 

In this notice of proposed rulemaking, 

EPA is proposing numeric nutrient 

criteria to protect against harmful 

increases in nutrients, and therefore, 

protect the designated uses of the State 

of Florida’s Class I, II, and III waters, 

specifically Florida’s estuaries and 

coastal waters (excluding those 

contained in Florida’s newly-approved 

State WQS), and south Florida inland 

flowing waters. This proposed rule also 

includes downstream protection values 

(DPVs) to ensure the attainment and 

maintenance of WQS in downstream 

estuarine and south Florida marine 

waters. The proposed criteria and 

related provisions in this rule reflect a 

detailed consideration of the best 

available scientific research, data, and 

analyses related to the specific 

circumstances for deriving numeric 

nutrient criteria in the State of Florida. 

EPA’s actions are consistent with and 

support existing Florida WQS 

regulations. 

EPA proposes developing numeric 

nutrient criteria to restore and maintain 

the balance of natural populations of 

aquatic flora and fauna in Florida 

waters. The analytical process that EPA 

used to derive the proposed criteria 

consisted of several steps that included 

(1) classification of the water body 

systems, (2) subdividing water body 

systems into smaller segments that have 

similar chemical, physical, and 

biological features, (3) review and 

analysis of biological endpoints, and (4) 

application of one or more analytical 

methodologies. 

After accounting for the spatial 

coverage of Florida’s newly-approved 

State WQS, EPA grouped Florida’s 

remaining estuarine and coastal waters 

according to the natural geographic 

features of estuarine basins and their 

associated watersheds (classification). 

This resulted in 19 estuarine systems 

and three coastal systems. Next, EPA 

divided each resulting estuary and 

coastal system into segments on the 

basis of similar biological, chemical, 

and physical attributes (segmentation). 

Segmentation resulted in 89 estuarine 

segments among the 19 estuarine 

systems and 71 coastal segments among 

the three coastal systems. In the Big 

Bend region (Ochlockonee Bay to 

Springs Coast) EPA combined coastal 

waters with estuarine waters for 

analysis. The classification serves as an 

organizing framework for analyses, and 

the segmentation delineates areas in 

each estuary or coastal system where the 

numeric nutrient criteria apply. 

EPA is proposing to develop numeric 

nutrient criteria for Florida’s estuarine 

and coastal waters based on three 

biological endpoints that are sensitive to 

changes in nitrogen and phosphorus 

concentrations. These biological 

endpoints reflect the water quality 

conditions necessary to ensure 

protection of balanced populations of 

aquatic flora and fauna: (1) Maintenance 

of seagrasses (as measured by water 

clarity sufficient to maintain historic 

depth of seagrass colonization), (2) 

maintenance of balanced algal 

populations (as measured by 

chlorophyll a concentrations associated 

with balanced phytoplankton biomass), 

and (3) maintenance of aquatic life (as 

measured by levels of dissolved oxygen 

sufficient to maintain aquatic life). For 

each water body, EPA derived numeric 

nutrient criteria based on the most 

nutrient sensitive of the three endpoints 

and the sufficiency of data available in 

each segment. 

For each estuary and coastal system, 

one of three analytical approaches was 

used to derive numeric nutrient 

criteria—reference condition, stressorresponse (statistical modeling), and 

mechanistic modeling. In some cases, a 

secondary approach provided 

corroborating evidence for the results of 

the primary analytical methodology. 

EPA evaluated multiple lines of 

evidence to determine the analytical 

approach that was best suited for 

derivation of numeric nutrient criteria 

in each estuarine or coastal system. In 

general, and as discussed in more detail 

in later Sections of this proposed rule, 

the reference condition approach was 

applied when there were sufficient data 

available to characterize conditions that 

were representative of and protective of 

designated uses, the stressor-response 

approach was applied when there were 

sufficient data available to statistically 

quantify relationships between nutrient 

concentrations and the biological 

endpoints, and lastly, the mechanistic 

modeling approach was applied when 

there were sufficient data and 

information available to quantify the 

relationships between nutrient loads 

and the biological endpoints. 

For calculating DPVs for estuaries and 

south Florida marine waters, EPA is 

proposing four approaches for setting 

nitrogen and phosphorus protective 

levels in a hierarchy that reflects the 

data and scientific information 

available, including (1) water quality 

simulation modeling, (2) reference 

condition approach, (3) dilution models, 

and (4) the numeric nutrient criteria in 

the estuarine segment to which a 

freshwater stream or canal discharges. 

For south Florida EPA is proposing 

the use of downstream protection values 

(DPVs) to manage nitrogen and 

phosphorus pollution in the inland 

flowing waters and protect the water 

quality of estuaries and coastal waters 

downstream. As in estuarine and coastal 

systems, EPA followed a series of steps 

to derive criteria in south Florida inland 

flowing waters, including classification 

of water bodies, segmentation, review 

and analysis of biological endpoints, 

application of analytical methodologies, 

and development of DPVs. EPA defined 

south Florida inland flowing waters as 

inland predominantly fresh surface 

waters that have been classified as Class 

I or Class III, which encompasses the 

waters south of Lake Okeechobee, the 

Caloosahatchee River (including Estero 

Bay) watershed, and the St. Lucie 

watershed. EPA segmented south 

Florida waters by identifying 22 canal 

pour points that drain freshwater to 

each marine segment. To manage 

nitrogen and phosphorus pollution in 

the inland flowing waters and protect 

the water quality of estuaries and 

coastal waters downstream EPA then 

screened water quality data at each pour 

point to prevent the use of upstream 

water quality data that coincided with a 

documented downstream impact. EPA 

then calculated DPVs using the 

reference condition approach. 

In deriving scientifically sound 

numeric nutrient criteria for this 

proposed rulemaking, EPA relied on the 

local technical expertise of various 

scientific experts in Florida. EPA met 

and consulted with FDEP’s scientific 

and technical experts during the 

development of these numeric nutrient 

criteria as part of an ongoing 

collaborative process to analyze, 

evaluate, and interpret a substantial 

amount of Florida-specific data. EPA 

carefully evaluated the technical 

approaches and scientific analyses that 

FDEP presented as part of their draft 


tkelley on DSK3SPTVN1PROD with 
74942 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

147USEPA–SAB. 2011. Review of EPA’s Draft 

Approaches for Deriving Numeric Nutrient Criteria 

for Florida’s Estuaries, Coastal Waters, and 

Southern Inland Flowing Waters. EPA–SAB–11– 

010. U.S. Environmental Protection Agency, 

Science Advisory Board, Washington, DC. 

USEPA. 2010. Methods and Approaches for 

Deriving Numeric Criteria for Nitrogen/Phosphorus 

Pollution in Florida’s Estuaries, Coastal Waters, and 

Southern Inland Flowing Waters. U.S. 

Environmental Protection Agency, Office of Water, 

Washington, DC. 

148EPA response letter to SAB. http:// 

yosemite.epa.gov/sab/sabproduct.nsf/ 

fedrgstr_activites/ 

DCC3488B67473BDA852578D20058F3C9/$File/ 

EPA-SAB-11-010_Response_10-26-2011.pdf. 

Accessed May 2012. 

149Additional details are provided in a separate 

document, the Technical Support Document for 

U.S. EPA’s Proposed Rule for Numeric Nutrient 

Criteria for Florida’s Estuaries, Coastal Waters, and 

Southern Inland Flowing Waters (TSD); located at 

www.regulations.gov, Docket ID No. EPA–HQ–OW– 

2010–0222. 

150Florida’s IWR data are the chemical, physical 

and biological water quality data that FDEP uses to 

create its integrated reports. IWR Run 40. Updated 

through February 2010. FL IWR and STORET can 

be found at: http://www.dep.state.fl.us/WATER/ 

STORET/INDEX.HTM. 

151NOAA. 2007. NOAA’s Coastal Geospatial 

Data Project, Coastal Assessment Framework (CAF). 

NOAA/NOS Special Projects Office—Coastal 

Geospatial Data Project. Silver Spring, MD. http:// 

coastalgeospatial.noaa.gov/. Accessed May 2012. 

152USEPA. 2008. Handbook for Developing 

Watershed Plans to Restore and Protect Our Waters. 

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

Agency, Office of Water, Washington DC. 

153Telesh, I.V., and V.V. Khlebovich. 2010. 

Principal processes within the estuarine salinity 

gradient: A review. Marine Pollution Bulletin 61(4– 

6):149–155. 

154 Gregg, W.W., and NW. Casey. 2004. Global 

and regional evaluation of the SeaWiFS chlorophyll 

data set. Remote Sensing of Environment 93(4):463– 

479. 

approaches to develop numeric nutrient 

criteria for estuaries within the State. 

Finally, EPA also carefully considered 

substantial stakeholder input from 

twelve public hearings conducted by 

FDEP during 2010, in addition to 

working with scientists from several 

Florida National Estuary Programs 

(NEPs), Water Management Districts, 

universities, and other government 

agencies in Florida. 

To further ensure the best use of 

available data and scientific analyses for 

deriving criteria, the Agency submitted 

its potential methods and approaches 

for an independent, scientific peer 

review by EPA’s Science Advisory 

Board (SAB) in November 2010. The 

SAB reviewed the document entitled, 

Methods and Approaches for Numeric 

Nutrient Criteria for Nitrogen/ 

Phosphorus Pollution in Florida’s 

Estuaries, Coastal Waters, and Southern 

Inland Flowing Waters, and submitted 

their final recommendations to EPA in 

July 2011.147 The SAB agreed that a 

dual nutrient strategy to derive criteria 

for both nitrogen and phosphorus is 

warranted. The SAB also found that all 

of the approaches that EPA proposed for 

use in this rulemaking (i.e., reference 

condition, stressor-response, and 

mechanistic modeling) have utility and 

recommended that a combination of 

approaches be used where data and 

models are available. The SAB provided 

numerous recommendations to 

strengthen the application of the 

approaches to develop numeric nutrient 

criteria for Florida waters that EPA has 

used to refine the methods and 

approaches for deriving the criteria 

proposed in this rulemaking.148

Section III.A provides an overview of 

the technical elements used to support 

derivation of the numeric nutrient 

criteria proposed in this rulemaking for 

estuaries and coastal waters.149 The 

remainder of Section III specifically 

describes EPA’s proposed numeric 

nutrient criteria for estuaries (Section 

III.B), coastal waters (Section III.C), and 

south Florida inland flowing waters 

(Section III.D). Also included are 

proposed DPVs for estuaries (Section 

III.B) and south Florida marine waters 

(Section III.D). 

A. General Information and Approaches 

For each group of waters addressed in 

Section III, EPA is proposing to use 

system-specific approaches based on the 

classification and segmentation results 

for each system (described in detail in 

Sections III.B, III.C, and III.D) for the 

derivation of numeric nutrient criteria 

to ensure that the diversity of unique 

ecosystems found in each type of water 

body is taken into consideration. This 

system-specific approach allows the 

Agency to consider the physical, 

chemical, and biological characteristics 

of a particular water body and to select 

a scientifically defensible approach, 

considering the data and information 

available for each system. This section 

describes the technical approaches EPA 

employed to derive the proposed 

criteria and DPVs, including (1) data 

and segmentation, (2) biological 

endpoints, and (3) analytical 

methodologies. 

1. Data Sources and Segmentation 

(a) Estuaries 

Florida’s estuarine areas encompass 

approximately 1,950 square miles. EPA 

used the IWR Run 40 database 150 to 

identify available data from a range of 

sampling sites in Florida’s estuaries. To 

compute relationships between nutrient 

concentrations and chlorophyll a, EPA 

relied on measurements of Total 

Kjeldahl Nitrogen (TKN), TN, NitrateNitrite (NO3-NO2), TP, and chlorophyll 

a from the IWR Run 40 database. The 

resulting dataset included 180,814 water 

quality samples, collected at 13,648 

sites. The Agency also analyzed 

additional data submitted by local 

experts and organizations. 

The water quality and biological 

communities of an estuary are affected 

by multiple factors related to the shape 

and size of the estuary, its connections 

to the ocean, geology, climate, and 

watershed characteristics (e.g., 

watershed area and land use). Because 

each of these factors can vary from one 

system to another, causing the water 

quality and aquatic populations of flora 

and fauna in each estuary to be distinct, 

EPA proposes to classify 19 individual 

estuarine systems based on the natural 

geographic features of estuarine basins 

and their associated watersheds. This 

approach has been utilized previously 

in development of the NOAA Coastal 

Assessment Framework.151 This 

approach is also consistent with a 

watershed approach to water quality 

management, which EPA encourages as 

a way to integrate and coordinate efforts 

within a watershed in order to most 

effectively and efficiently assess 

conditions and implement controls.152

EPA is proposing to sub-divide each 

estuarine system into segments based on 

physical factors and long-term average 

salinity gradients. Estuaries are complex 

and dynamic systems that reflect the 

mixing of fresh and marine water, and 

different ecological zones correspond to 

differences in salinity within each 

estuary. The estuary segments are 

expected to have unique physical, 

chemical, and biological characteristics 

that may respond differently to nutrient 

inputs than other segments within the 

same estuary.153 EPA is proposing 

numeric nutrient criteria for 89 

individual segments in 19 estuaries. A 

detailed description and detailed maps 

of EPA’s proposed within-estuary 

segments are provided in the TSD 

(Volume 1: Estuaries, Section 1.3 and 

for each estuarine system in Section 2). 

(b) Coastal Waters 

There are substantial data available 

from satellite remote sensing that can be 

used in a scientifically defensible and 

reliable way in conjunction with 

available field monitoring data to derive 

numeric chlorophyll a criteria for 

coastal waters. Satellite remote sensing 

technologies have been widely used 154

to measure chlorophyll a in 

approximately 3,865 square miles of 

coastal waters in Florida. These 

technologies allow consistent and 


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155Campbell, J.W., J.M. Blaisdell, and M. Darzi. 

1995. Volume 32, Level-3 SeaWiFS Data Products: 

Spatial and Temporal Binning Algorithms. In: 

SeaWiFS Technical Report Series. eds. Hooker, S.B., 

E.R. Firestone, and J.G. Acker. NASA Technical 

Memorandum 104566, Vol. 32. National 

Aeronautics and Space Administration. Greenbelt, 

MD. 

156Heil, C.A., and K.A. Steidinger. 2009. 

Monitoring, management, and mitigation of Karenia 

blooms in the Eastern Gulf of Mexico. Harmful 

Algae 8:611–617. 

157USEPA–SAB. 2011. Review of EPA’s draft 

Approaches for Deriving Numeric Nutrient Criteria 

for Florida’s Estuaries, Coastal Waters, and 

Southern Inland Flowing Waters. EPA–SAB–11– 

010. U.S. Environmental Protection Agency, 

Science Advisory Board, Washington, DC. 

reliable monitoring of expansive areas of 

Florida’s coastline. 

The data EPA used to derive numeric 

chlorophyll a criteria for Florida’s 

coastal waters encompass a twelve year 

period of record (1998–2009). The 

length of this data record captures the 

long-term variability that has been 

observed in water quality within 

Florida’s coastal waters and allows EPA 

to take advantage of the available remote 

sensing data. To obtain chlorophyll a 

measurements from satellite remote 

sensing (chlRS-a), EPA processed data 

from over 1,000 8-day composites of 

remotely sensed images from satellite 

ocean color data. The eight-day binning 

period is a standard approach based on 

the satellite orbit repeat period of 16 

days for the Sea-viewing Wide Field-ofview Sensor (SeaWiFS) satellite.155 EPA 

also obtained field monitoring TN, TP, 

and chlorophyll a data from FDEP IWR 

Run 40, the Northeastern Gulf of Mexico 

Chemical Oceanography and 

Hydrography Study (NEGOM), the 

Ecology and Oceanography of Harmful 

Algal Blooms Research Program 

(ECOHAB), the Florida Fish and 

Wildlife Conservation Commission Fish 

and Wildlife Research Institute (FWRI), 

NOAA Oceanographic Data Center 

(NODC), Mote Marine Laboratory, and 

the SeaWiFS Bio-optical Archive and 

Storage System (SeaBASS). Field 

monitoring data included over 5,500 

chlorophyll a measurements, which 

were reduced to 1,947 measurements 

after screening for data quality, as 

described later in this proposed rule. 

EPA is not proposing to derive TN 

and TP criteria for Florida’s coastal 

waters due to lack of sufficient field 

monitoring data for TN and TP. 

Although it would be a more reliable 

indicator to include TN and TP in 

combination with chlorophyll a, EPA 

believes that the chlorophyll a criteria 

should protect these Florida waters 

because chlorophyll a can be a sensitive 

biological parameter that would serve as 

a signal to the State that nutrient 

pollution is creating an imbalance in the 

natural populations of aquatic flora and 

fauna in Florida’s coastal waters. Where 

EPA has not derived criteria for certain 

parameters in this proposed rule, due to 

insufficient scientific evidence to 

support a protective threshold for 

numeric nutrient criteria (e.g., TN and 

TP for the majority of Florida’s coastal 

waters), EPA or the State may consider 

deriving criteria in the future for those 

parameters. 

To ensure data quality, EPA screened 

available field monitoring data to find 

samples with, at a minimum, metadata 

for date, time, latitude, longitude, and 

chlorophyll a or light attenuation 

information. Where multiple samples of 

chlorophyll a at different depths 

existed, EPA selected the sample closest 

to the surface in order to provide a 

better comparison to the remotely 

sensed data. The monitoring sampling 

times were also compared to the 

satellite overpass times. EPA used 

samples falling within a plus or minus 

three hour time window to minimize 

variability between the sample time and 

satellite overpass time. EPA then 

compared the satellite chlRS-a data to 

the field monitored chlorophyll a data. 

From this assessment EPA determined 

that chlRS-a accurately represents 

chlorophyll a in coastal waters. 

For the purposes of deriving criteria 

for coastal waters using remote sensing 

data, EPA is proposing to exclude chlRSa measurements taken during known 

bloom events of Karenia brevis from the 

statistical distribution of coastal data. K. 

brevis is a dinoflagellate responsible for 

red tide. Satellites can detect K. brevis 

blooms when cell counts are above 

50,000 cells/L. EPA flagged coastal 

segments with cell counts greater than 

50,000 cells/L during an 8-day 

composite and did not include them in 

the chlRS-a distributions used in criteria 

derivation.156 In addition, the same 

segment was flagged one week prior to 

and after a bloom detection to provide 

a temporal buffer as blooms are 

transported along the coast. This 

proposed approach is consistent with 

recommendations from the Agency’s 

Science Advisory Board, which 

recommended EPA screen out these 

data points, as they are likely not 

representative of reference 

conditions.157 Analyses of cumulative 

distributions of chlRS-a show they are 

minimally affected by inclusion or 

removal of observations affected by K. 

brevis. 

EPA classified Florida’s coastal waters 

into three main areas: The Florida 

Panhandle, West Florida Shelf, and 

Atlantic Coast. These three coastal areas 

were subdivided into a total of 71 

segments based on FDEP’s Water Body 

Identification System (WBIDs), physical 

factors, the optical properties of the 

coastal areas, water quality 

characteristics, and the jurisdictional 

limits of the Clean Water Act (i.e., three 

nautical mile seaward limit). A detailed 

description of EPA’s data screening 

process and a map of the coastal waters 

are provided in the TSD (Volume 2: 

Coastal Waters, Section 1.3). 

(c) Request for Comment on Data and 

Segmentation 

EPA believes the proposed data and 

segmentation approaches provide a 

strong foundation for the derivation of 

numeric nutrient criteria that will 

protect the designated uses in Florida’s 

estuaries and coastal waters. EPA 

requests comment on all aspects of these 

approaches. Additionally, the Agency is 

soliciting additional relevant data and 

information to assist in the derivation of 

numeric nutrient criteria. Relevant data 

and information includes, but is not 

limited to: Monitoring data for DO, 

chlorophyll a, TN, TP, TKN, dissolved 

organic nitrogen, dissolved organic 

phosphorus, dissolved inorganic 

nitrogen, dissolved inorganic 

phosphorus, and NO3-NO2. EPA also 

invites comment on the timeframe of the 

data used to derive criteria for each of 

the water body types. In addition, EPA 

requests comment on excluding chlRS-a 

measurements taken during known 

bloom events of K. brevis from the 

statistical distribution of coastal data. 

EPA also solicits additional available 

scientific data and information that 

could be used in the derivation of 

numeric criteria for nitrogen and 

phosphorus in coastal waters. 

Even though waters were assigned to 

segments to ensure homogeneity of 

water quality across different locations 

within a segment, EPA recognizes that 

limited variability may still exist across 

locations within a given segment. EPA 

also solicits comment on and requests 

any additional available information 

regarding the ability of the proposed 

segmentation approaches to account for 

the unique water quality conditions that 

can be found in estuarine and coastal 

waters throughout the State. Finally, 

EPA is proposing to derive numeric 

nutrient criteria using a system-specific 

approach. EPA requests comment on the 

spatial scale of the proposed criteria and 

whether a broader spatial approach 

would be more appropriate. 

2. Biological Endpoints 

When deriving numeric nutrient 

criteria, it is important to identify 

nutrient-sensitive biological endpoints 


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74944 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

158Ferdie, M., and J.W. Fourqurean. 2004. 

Responses of seagrass communities to fertilization 

along a gradient of relative availability of nitrogen 

and phosphorus in a carbonate environment. 

Limnology and Oceanography 49(6):2082–2094. 

Orth, R.J., T.J.B. Carruthers, W.C. Dennison, C.M. 

Duarte, J.W. Fourqurean, K.L. Heck, A.R. Hughes, 

G.A. Kendrick, W.J. Kenworthy, S. Olyarnik, F.T. 

Short, M. Waycott, and S.L. Williams. 2006. A 

global crisis for seagrass ecosystems. BioScience 

56(12):987–996. 

Doren, R.F., J.C. Trexler, A.D. Gottlieb, and M.C. 

Harwell. 2009. Ecological indicators for systemwide assessment of the greater everglades 

ecosystem restoration program. Ecological 

Indicators 9:S2–S16. 

Gibson, G.R., M.L. Bowman, J. Gerritsen, and B.D. 

Snyder. 2000. Estuarine and Coastal Marine Waters: 

Bioassessment and Biocriteria Technical Guidance. 

EPA 822–B–00–024. U.S. Environmental Protection 

Agency, Office of Water, Washington, DC. http:// 

water.epa.gov/scitech/swguidance/standards/

criteria/aqlife/biocriteria/upload/2009_

04_22_biocriteria_States_estuaries_estuaries.pdf. 

Accessed November 2011. 

159Orth, R.J., T.J.B. Carruthers, W.C. Dennison, 

C.M. Duarte, J.W. Fourqurean, K.L. Heck Jr., A.R. 

Hughes, G.A. Kendrick, W.J. Kenworthy, S. 

Olyarnik, F.T. Short, M. Waycott, and S.L. 

Williams. 2006. A global crisis for seagrass 

ecosystems. Bioscience 56(12):987–996. 160 Dennison, W.C. 1987. Effects of light on 

seagrass photosynthesis, growth, and depth 

distribution. Aquatic Botany 27:15–26. 

Dennison, W.C., R.J. Orth, K.A. Moore, J.C. 

Stevenson, V. Carter, S. Kollar, P.W. Bergstrom, and 

R.A. Batiuk. 1993. Assessing water quality with 

submersed aquatic vegetation. BioScience 43(2):86– 

94. 

Duarte, C.M. 1991. Seagrass depth limits. Aquatic 

Botany 40(4):363–377. 

Gallegos, C.L. 1994. Refining habitat requirements 

of submersed aquatic vegetation: Role of optical 

models. Estuaries 17(1):187–199. 

Gallegos, C.L., and W.J. Kenworthy. 1996. 

Seagrass depth limits in the Indian River Lagoon 

(Florida, USA): Application of an optical water 

quality model. Estuarine, Coastal and Shelf Science 

42(3):267–288. 

Gallegos, C.L. 2005. Optical water quality of a 

blackwater river estuary: the Lower St. Johns River, 

Florida, USA. Estuarine, Coastal and Shelf Science 

63(1–2):57–72. 

Steward, J.S., R.W. Virnstein, L.J. Morris, and E.F. 

Lowe. 2005. Setting seagrass depth, coverage, and 

light targets for the Indian River Lagoon system, 

Florida. Estuaries and Coasts 28(6):923–935. 

161Ferdie, M., and J.W. Fourqurean. 2004. 

Responses of seagrass communities to fertilization 

along a gradient of relative availability of nitrogen 

and phosphorus in a carbonate environment. 

Limnology and Oceanography 49(6):2082–2094. 

Orth, R.J., T.J.B. Carruthers, W.C. Dennison, C.M. 

Duarte, J.W. Fourqurean, K.L. Heck, A.R. Hughes, 

G.A. Kendrick, W.J. Kenworthy, S. Olyarnik, F.T. 

Short, M. Waycott, and S.L. Williams. 2006. A 

global crisis for seagrass ecosystems. BioScience 

56(12):987–996. 

162 Dennison, W.C., R.J. Orth, K.A. Moore, J.C. 

Stevenson, V. Carter, S. Kollar, P.W. Bergstrom, and 

R.A. Batiuk. 1993. Assessing water quality with 

submersed aquatic vegetation. BioScience 43(2):86– 

94. 

Duarte, C.M. 1991. Seagrass depth limits. Aquatic 

Botany 40(4):363–377. 

Gallegos, C.L. 1994. Refining habitat requirements 

of submersed aquatic vegetation: Role of optical 

models. Estuaries 17(1):187–199. 

Steward, J.S., R.W. Virnstein, L.J. Morris, and E.F. 

Lowe. 2005. Setting seagrass depth, coverage, and 

light targets for the Indian River Lagoon system, 

Florida. Estuaries and Coasts 28(6):923–935. 

163 Janicki, A.J., and D.L. Wade. 1996. Estimating 

critical external nitrogen loads for the Tampa Bay 

estuary: An empirically based approach to setting 

management targets. Technical Publication 06–96. 

relevant to particular estuarine and 

coastal systems. These biological 

endpoints serve as sensitive measures to 

identify protective concentrations of 

TN, TP, and chlorophyll a that, in turn, 

will support balanced natural 

populations of aquatic flora and fauna 

and protect the State’s designated uses. 

EPA conducted an extensive evaluation 

of available scientific literature to select 

appropriate biological endpoints, 

reviewing over 800 documents. From 

this review of the latest scientific 

knowledge, EPA has determined that 

maintenance of seagrasses, maintenance 

of balanced algal populations, and 

maintenance of aquatic life are three 

sensitive biological endpoints, which 

can be measured by water clarity (as it 

relates to light levels sufficient to 

maintain historic depth of seagrass 

colonization), chlorophyll a, and DO, 

respectively, and appropriately used in 

derivation of numeric nutrient criteria 

that protect the State’s designated uses 

from harmful increases in nitrogen and 

phosphorus concentrations. The 

selection of these biological endpoints 

was based upon their scientific 

defensibility; sensitivity to harmful, 

adverse effects caused by the pollutants 

nitrogen and phosphorus; and the 

sufficiency of data available for each. 

EPA derived TN, TP, and chlorophyll 

a criteria to: (1) Maintain water clarity 

to achieve seagrass depth of 

colonization targets, (2) reduce the risk 

of phytoplankton blooms, and (3) 

maintain dissolved oxygen 

concentrations sufficient for balanced, 

natural aquatic life in Florida’s estuaries 

and coastal waters. As set out more fully 

in the following discussion, these three 

biological endpoints provide a 

scientifically defensible basis upon 

which to derive numeric nutrient 

criteria that protect balanced natural 

populations of aquatic flora and fauna 

over the full range of estuarine and 

coastal conditions across Florida; waters 

that achieve these endpoints support 

designated uses. 

(a) Maintenance of Seagrasses 

EPA selected the maintenance of 

seagrasses, as measured by water clarity 

to maintain historic depth of seagrass 

colonization, as one biological endpoint 

and corresponding endpoint measure to 

derive numeric nutrient criteria for 

estuaries. Healthy populations of 

seagrasses serve as widely recognized 

indicators of biological integrity in 

estuarine systems and, in turn, of 

balanced natural populations of aquatic 

flora and fauna.158

Because of the unique conditions that 

are created within seagrass 

communities, populations of other 

aquatic floral and faunal species benefit 

from the presence and abundance of 

seagrasses.159 For example, seagrasses 

act as nurseries for many species by 

providing refuge from predators. 

Seagrasses also improve water quality 

by trapping suspended sediments, 

preventing sediment resuspension, and 

retaining nutrients. Florida’s NEPs and 

FDEP have also used endpoints based 

on seagrasses to derive their 

recommended estuarine criteria because 

of seagrass sensitivity to nutrient 

pollution. 

Seagrass communities depend on a 

variety of physical, chemical, and 

biological conditions to thrive. Among 

these, adequate underwater light 

availability (as measured by water 

clarity) is one critical factor for seagrass 

health. The relationship between water 

clarity and the depth to which 

seagrasses grow, known as the depth of 

colonization, has been welldocumented.160 When seagrasses 

receive sufficient sunlight, seagrass 

biomass remains constant or increases 

over time. Conversely, when incoming 

light is blocked by substances in the 

water column, such as phytoplankton, 

suspended solids, or color, seagrass 

growth slows or stops. Studies on 

seagrasses have documented the 

relationship of nutrient pollutionrelated accelerated algal growth to 

declines in available light and 

subsequent declines in seagrass 

communities.161 Since the area within 

an estuary available for seagrass growth 

is partially a function of the total area 

with enough sunlight at sufficient 

depths to sustain growth, as water 

clarity decreases and reduces the 

amount of sunlight that can reach the 

seagrasses, the available area for 

seagrass growth also decreases. Hence, 

the greater the water clarity (and 

associated available light), the deeper 

the water that can support seagrass 

communities and, therefore, the greater 

the extent of seagrass coverage. 

EPA reviewed studies that empirically 

assessed the relationship between 

seagrass growth and available light 162

and is proposing that, for Florida, when 

an average value of 20 percent of the 

sunlight that strikes the water’s surface 

(incident light) reaches the bottom of 

the water column (to the depth of 

seagrass colonization), sufficient light is 

available to maintain seagrasses. A 

similar value has been used in previous 

nutrient management efforts in 

Florida.163


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Prepared for Tampa Bay National Estuary Program, 

St. Petersburg, FL, by Coastal Environmental, Inc., 

St. Petersburg, FL. 

165Hughes, A.R., S.L. Williams, C.M. Duarte, K.L. 

Heck, Jr., and M. Waycott. 2009. Associations of 

concern: declining seagrasses and threatened 

dependent species. Frontiers in Ecology and the 

Environment 7(5):242–246. 

166Hughes, A.R., S.L. Williams, C.M. Duarte, K.L. 

Heck, Jr., and M. Waycott. 2009. Associations of 

concern: declining seagrasses and threatened 

dependent species. Frontiers in Ecology and the 

Environment 7(5):242–246. 

Orth, R.J., T.J.B. Carruthers, W.C. Dennison, C.M. 

Duarte, J.W. Fourqurean, K.L. Heck, A.R. Hughes, 

G.A. Kendrick, W.J. Kenworthy, S. Olyarnik, F.T. 

Short, M. Waycott, and S.L. Williams. 2006. A 

global crisis for seagrass ecosystems. BioScience 

56(12):987–996. 

FFWCC. 2003. Conserving Florida’s Seagrass 

Resources: Developing a Coordinated Statewide 

Management Program. Florida Fish and Wildlife 

Conservation Commission, Florida Marine Research 

Institute. St. Petersburg, FL. 

167Boyer, J.N., C.R. Kelble, P.B. Ortner, and D.T. 

Rudnick. 2009. Phytoplankton bloom status: 

Chlorophyll a biomass as an indicator of water 

quality condition in the southern estuaries of 

Florida, USA. Ecological Indicators 9s:S56–S67. 

Hagy, J.D., J.C. Kurtz, and R.M. Greene. 2008. An 

approach for developing numeric nutrient criteria 

for a Gulf coast estuary. EPA 600R–08/004. U.S. 

Environmental Protection Agency, Office of 

Research and Development, National Health and 

Environmental Effects Research Laboratory, Gulf 

Breeze, FL. 

Bricker, S.B., C.G. Clement, D.E. Pirhalla, S.P. 

Orlando, and D.R.G. Farrow. 1999. National 

Estuarine Eutrophication Assessment. Effects of 

Nutrient Enrichment in the Nation’s Estuaries. 

National Oceanic and Atmospheric Administration, 

National Ocean Service, Special Projects Office and 

the National Centers for Coastal Ocean Science, 

Silver Spring, MD. 

See Section B.3 in Appendix B of USEPA. 2010. 

Methods and Approaches for Deriving Numeric 

Criteria for Nitrogen/Phosphorus Pollution in 

Florida’s Estuaries, Coastal Waters, and Southern 

Inland Flowing Waters. U.S. Environmental 

Protection Agency, Office of Water, Washington, 

DC. 

168Wetzel, R.G. 2001. Limnology: Lakes and River 

Ecosystems. 3rd ed. Academic Press, San Diego, CA. 

Kalff, J. 2002. Limnology: Inland Water 

Ecosystems. Prentice-Hall, Inc., Upper Saddle River, 

New Jersey. 

169Elser, J.J., M.E.S. Bracken, E.E. Cleland, D.S. 

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

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

analysis of nitrogen and phosphorus limitation of 

primary production in freshwater, marine, and 

terrestrial ecosystems. Ecology Letters 10:1135– 

1142. 

Smith, V.H. 2006. Responses of estuarine and 

coastal marine phytoplankton to nitrogen and 

phosphorus enrichment. Limnology and 

Oceanography 51(1 part 2):377–384 

170Hauxwell, J., C. Jacoby, T. Frazer, and J. 

Stevely. 2001. Nutrients and Florida’s Coastal 

Waters: The Links Between People, Increased 

Nutrients and Changes to Coastal Aquatic Systems. 

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

Grant College Program, University of Florida, 

Gainesville, FL. http://edis.ifas.ufl.edu/pdffiles/SG/ 

SG06100.pdf. Accessed June 2011. 

NOAA. 2011. Overview of Harmful Algal Blooms. 

National Oceanic and Atmospheric Administration, 

Center for Sponsored Coastal Research. http:// 

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

default.aspx. Accessed June 2011. 

EPA is also proposing that protecting 

and maintaining water clarity sufficient 

to support an appropriate depth of 

colonization provides the greatest 

protection of balanced natural 

populations of aquatic flora and fauna 

since maintenance of seagrass habitat is 

critical to ecosystem conditions. EPA 

used available historical seagrass 

coverage data (including the earliest 

available, generally 1940–1960, or more 

recent, 1992) to compute the historical 

maximum depth of seagrass 

colonization as a reference. In all cases 

the most recent (2000–2010) seagrass 

coverage was also evaluated to 

determine existing depth of 

colonization, and to relate this value to 

existing water quality. To compute 

seagrass depth of colonization, EPA 

overlaid seagrass coverage data and 

bathymetric data compiled by NOAA 

using a Geographic Information 

System.164 EPA then used the data on 

seagrass coverage to determine the 

maximum depths that seagrasses have 

been able to grow in each estuary, where 

applicable (this approach was not used 

in some estuaries in Florida that do not 

have historical evidence of seagrass 

colonization), in order to identify a 

reference point for a healthy level of 

seagrass colonization. Because seagrass 

habitats support a rich array of 

biological uses,165 EPA is proposing to 

derive numeric nutrient criteria to 

maintain a comparable depth of seagrass 

colonization to the reference level (i.e. 

seagrasses growing at the deepest 

observed depth of colonization) to 

ensure protection of balanced natural 

populations of aquatic flora and fauna. 

EPA chose to use the historical 

maximum observed depth, and resulting 

areal coverage, because increasing 

nutrients beyond the point that is 

protective of maximum coverage of 

seagrass is likely to cause a decline in 

seagrass coverage. Because a wide 

variety of organisms rely on healthy 

seagrass communities, a decrease in 

seagrass coverage to levels below the 

maximum observed depth will result in 

a decline in overall system health and 

biodiversity.166 EPA calculated a water 

clarity target that would ensure 20% 

percent of incident light at the surface 

would be able to reach the reference 

depth of colonization. Finally, EPA used 

this water clarity target to derive 

numeric criteria for TN, TP, and 

chlorophyll a to support balanced 

natural populations of aquatic flora and 

fauna. (More detail on the importance of 

seagrass can be found in the TSD, 

Volume 1: Estuaries, Section 1.2.1). 

(b) Maintenance of Balanced Algal 

Populations 

Based upon EPA’s extensive review of 

current scientific literature, EPA 

selected maintenance of balanced algal 

populations, as measured by the 

chlorophyll a concentrations associated 

with balanced phytoplankton biomass, 

as the second biological endpoint and 

corresponding endpoint measure to 

derive numeric nutrient criteria for 

estuaries and coastal waters. The 

maintenance of balanced algal 

populations is an important sensitive 

biological endpoint because of its 

responsiveness to nutrient enrichment, 

integral role in aquatic food webs, wellestablished use as an integrative 

measure of aquatic ecosystem condition, 

and correlation with changes in floral 

composition and subsequent faunal 

response.167 Chlorophyll a is the 

endpoint measure of balanced algal 

populations, and has a long history of 

use in aquatic ecology as a measure of 

phytoplankton biomass and 

production.168 Elevated chlorophyll a 

concentrations resulting from nutrient 

pollution-enhanced algal growth and 

accumulation are a well-documented 

symptom of eutrophication and the 

harmful, adverse impacts of nitrogen 

and phosphorus pollution across the 

nation, and specifically in Florida (refer 

to Section II.A for additional 

information).169 In most of Florida’s 

coastal and estuarine waters, healthy 

biological communities depend on 

balanced natural populations of algae 

because algae are integral components 

of aquatic food webs and aquatic 

nutrient cycling.170

Elevated chlorophyll a concentrations 

resulting from nitrogen and phosphorus 

pollution alter the trophic state of 

estuarine and coastal waters and 

increase the frequency and magnitude of 

algal blooms. EPA evaluated the 

available scientific literature to 

determine chlorophyll a concentrations 

indicative of phytoplankton blooms 

associated with imbalance in natural 

populations of aquatic flora and fauna. 

Published reports on chlorophyll a 

concentrations in estuarine waters 

across the nation, including Florida 

estuaries, reflect the range of natural 

trophic states and enrichment. These 

studies suggest that low algal bloom 

conditions are defined as maximum 

chlorophyll a concentrations less than 

or equal to 5 mg/L, medium bloom 

conditions are defined as maximum 

chlorophyll a concentrations from 

greater than 5 to 20 mg/L, high bloom 

conditions are defined as maximum 

chlorophyll a concentrations from 

greater than 20 to 60 mg/L, and 

hypereutrophic conditions are defined 

by maximum bloom concentrations 


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74946 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

171Bricker, S.B., J.G. Ferreira, and T. Simas. 2003. 

An integrated methodology for assessment of 

estuarine trophic status. Ecological Modelling 

169(1):39–60. 

172 Glibert, P.M., C.J. Madden, W. Boynton, D. 

Flemer, C. Heil, and J. Sharp, eds. 2010. Nutrients 

in Estuaries: A Summary Report of the National 

Estuarine Experts Workgroup, 2005–2007. Report to 

U.S. Environmental Protection Agency, Office of 

Water, Washington DC. 

173OECD. 1982. Eutrophication of Waters: 

Monitoring, Assessment and Control. Organisation 

for Economic Cooperation and Development, Paris, 

France. 

Painting, S.J., M.J. Devlin, S.J. Malcolm, E.R. 

Parker, D.K. Mills, C. Mills, P. Tett, A. Wither, J. 

Burt, R. Jones, and K. Winpenny. 2007. Assessing 

the impact of nutrient enrichment in estuaries: 

susceptibility to eutrophication. Marine Pollution 

Bulletin 55:74–90. 

Painting, S.J., M.J. Devlin, S.I. Rogers, D.K. Mills, 

E.R. Parker, and H.L. Rees. 2005. Assessing the 

suitability of OSPAR EcoQOs for eutrophication vs. 

ICES criteria for England and Wales. Marine 

Pollution Bulletin 50:1569–1584. 

Tett, P., R. Gowen, D. Mills, T. Fernandes, L. 

Gilpin, M. Huxham, K. Kennington, P. Read, M. 

Service, M. Wilkinson, and S. Malcolm. 2007. 

Defining and detecting undesirable disturbance in 

the context of marine eutrophication. Marine 

Pollution Bulletin 55:282–297. 

174Bricker, S.B., J.G. Ferreira, and T. Simas. 2003. 

An integrated methodology for assessment of 

estuarine trophic status. Ecological Modelling 

169(1):39–60. 

175 Diaz, R.J. 2001. Overview of hypoxia around 

the world. Journal of Environmental Quality 

30(2):275–281. 

Diaz, R.J., and R. Rosenberg. 2008. Spreading 

dead zones and consequences for marine 

ecosystems. Science 321(5891):926–929. 

176 Vincent, A.M., J. Flippin, E. Leppo, and J.D. 

Hagy III. Dissolved oxygen requirements of Floridaresident saltwater species applied to water quality 

criteria development. In review. 

USEPA. 2000. Ambient Aquatic Life Water 

Quality Criteria for Dissolved Oxygen (Saltwater): 

Cape Cod to Cape Hatteras. EPA–822–R–00–012. 

U.S. Environmental Protection Agency, Office of 

Water, Washington DC. 

177USEPA. 2010. Methods and Approaches for 

Deriving Numeric Criteria for Nitrogen/Phosphorus 

Pollution in Florida’s Estuaries, Coastal Waters, and 

Southern Inland Flowing Waters. U.S. 

Environmental Protection Agency, Office of Water, 

Washington, DC. 

above 60 mg/L.171 Two Florida estuaries, 

Florida Bay and Pensacola Bay, were 

analyzed as a part of a larger NOAA 

national survey of estuaries. The authors 

reported the average chlorophyll a 

concentrations were 20 mg/L or less for 

seven of ten large estuaries nationally, 

and were especially low for Florida Bay 

(8 mg/L) and Pensacola Bay (10 mg/L).172

Other literature regarding 

phytoplankton blooms indicated similar 

results.173

Chlorophyll a concentrations 

associated with hypereutrophic 

conditions (>60 mg/L) reflect a trophic 

state that is unnatural for Florida 

estuaries. While some estuaries in the 

State are more productive than others, 

high chlorophyll a concentrations (20 to 

60 mg/L) also do not appear to reflect 

balanced conditions in Florida, 

especially given observed ranges in 

Florida. Concentrations of chlorophyll a 

in this high range are associated more 

frequently with loss of seagrass and a 

shift of algal populations to 

monoculture or, in other words, a loss 

in the balance of diverse populations of 

aquatic flora.174 Moreover, this 

concentration range was also associated 

with conditions where other uses, 

including recreation, are adversely 

affected. Based on the range of 

chlorophyll a concentrations indicative 

of natural algal bloom conditions 

characteristic of Florida estuaries, as 

well as the literature on concentrations 

associated with harmful, adverse 

conditions for estuarine biota and other 

use support, EPA is proposing a 

chlorophyll a concentration of 20 mg/L 

as the water quality target to define a 

nuisance algal bloom. Thus, estuarine 

waters with chlorophyll a 

concentrations that exceed this water 

quality target threshold are indicative of 

imbalanced populations of aquatic flora 

and fauna (More detail regarding EPA’s 

analysis can be found in the TSD, 

Volume 1: Estuaries, Section 1.2.2). 

EPA also considered the available 

scientific research described in this 

section to establish an allowable 

frequency of occurrence of 

phytoplankton blooms, represented by 

chlorophyll a levels greater than 20 mg/ 

L, to further define this endpoint 

measure. EPA is proposing a value of 

10% as an allowable frequency of 

occurrence of phytoplankton blooms, 

that is, chlorophyll a measurements 

may not exceed 20 mg/L more than 10% 

of the time. This frequency is also 

consistent with current nutrient 

management practices in Florida, such 

as those utilized in approved Florida 

TMDLs. 

(c) Maintenance of Aquatic Life 

EPA selected maintenance of aquatic 

life, as measured by the sufficiency of 

dissolved oxygen (DO) to maintain 

aquatic life, as a third biological 

endpoint and corresponding endpoint 

measure to derive numeric nutrient 

criteria for estuaries. DO concentrations 

are a well-known indicator of the health 

of estuarine and coastal biological 

communities. Aquatic animals 

including fish, benthic 

macroinvertebrates, and zooplankton 

depend on adequate levels of DO to 

survive and grow. These levels may 

differ depending on the species and life 

stage of the organism (e.g., larval, 

juvenile, and adult).175

To derive the DO endpoint, EPA 

conducted an analysis of the dissolved 

oxygen requirements of sensitive 

species in Florida using the Virginian 

Province dissolved oxygen evaluation 

procedure.176 This analysis derives DO 

levels that protect both larval 

recruitment and growth for aquatic 

organisms. EPA used the results of this 

analysis to determine the dissolved 

oxygen water quality targets considered 

for numeric nutrient criteria 

development that would protect 

sensitive aquatic species in Florida 

estuaries. EPA is proposing that 

satisfying three different DO 

requirements in Florida’s estuarine 

waters would meet the needs of resident 

sensitive aquatic species, and thus 

support the maintenance of aquatic life. 

These requirements are an 

instantaneous DO concentration of 4.0 

mg/L, a daily average DO concentration 

of 5.0 mg/L, and a bottom water average 

DO concentration of 1.5 mg/L. Both the 

instantaneous minimum of 4.0 mg/L 

and the daily average of 5.0 mg/L are 

spatial averages over the water column 

for each estuarine segment. These 

values and interpretations are consistent 

with existing Florida DO criteria 

(Subsection 62–302.530(30), F.A.C.) and 

FDEP’s assessment procedures 

(Subsection 62–303.320(5), F.A.C.). 

(More detail on both the existing Florida 

DO criteria and EPA’s analysis can be 

found in the TSD, Volume 1: Estuaries, 

Sections 1.2.3 and 1.4.1). 

(d) Other Endpoints Considered by EPA 

EPA considered, but is not proposing 

to use, the following nutrient-sensitive 

biological endpoints: (1) Harmful algal 

blooms (HABs), (2) coral, (3) epiphytes, 

(4) macroinvertebrate and fish indices, 

(5) macroalgae, (6) Spartina marshes 

(salt-marshes), and (7) the Eastern oyster 

(Crassostrea virginica). EPA did not 

select these biological endpoints 

because there was an absence of 

sufficient data to quantify the link 

between measurements of these 

endpoints and nitrogen and phosphorus 

concentrations. Additional details on 

these alternative endpoints are provided 

in Appendix B in the Methods and 

Approaches for Deriving Numeric 

Criteria for Nitrogen/Phosphorus 

Pollution in Florida’s Estuaries, Coastal 

Waters, and Southern Inland Flowing 

Waters.177

(e) Request for Commerce on Endpoints 

EPA believes that maintenance of 

seagrasses, maintenance of balanced 

algal populations, and maintenance of 

aquatic life are the three most 

appropriate nutrient-sensitive biological 

endpoints to use to derive numeric 

nutrient criteria to ensure that nutrient 

concentrations in a body of water 


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178USEPA. 2000a. Nutrient Criteria Technical 

Guidance Manual: Lakes and Reservoirs. EPA–822– 

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

Office of Water, Washington, DC. 

USEPA. 2000b. Nutrient Criteria Technical 

Guidance Manual: Rivers and Streams. EPA–822– 

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

Office of Water, Washington, DC. 

Stoddard, J.L., D.P. Larsen, C.P. Hawkins, R.K. 

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

expectations for the ecological condition of streams: 

The concept of reference condition. Ecological 

Applications 16:1267–1276. 

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

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

for consistency in a national assessment: The 

challenges of applying a reference-condition 

approach at a continental scale. Journal of the North 

American Benthological Society 27:860–877. 

USEPA. 2001. Nutrient Criteria Technical 

Manual: Estuarine and Coastal Marine Waters. 

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

Agency, Office of Water, Washington, DC. 

USEPA–SAB. 2011. Review of EPA’s draft 

Approaches for Deriving Numeric Nutrient Criteria 

for Florida’s Estuaries, Coastal Waters, and 

Southern Inland Flowing Waters. EPA–SAB–11– 

010. U.S. Environmental Protection Agency, 

Science Advisory Board, Washington, DC. 

179 Geometric means were used for averages in the 

reference condition, statistical modeling, and 

mechanistic modeling approaches because 

concentrations were log-normally distributed. 

180OSPAR Commission. 2005. Common 

Procedure for the Identification of the 

Eutrophication Status of the OSPAR Maritime Area 

(Reference Number: 2005–3). OSPAR Commission, 

London. 

Ferreira, J.G., J.H. Andersen, A. Borja, S.B. 

Bricker, J. Camp, M.C. da Silva, E. Garce ́s, A–S. 

Heiskanen, C. Humborg, L. Ignatiades, C. Lancelot, 

A. Menesguen, P. Tett, N. Hoepffner, and U. 

Claussen. 2011. Overview of eutrophication 

indicators to assess environmental status within the 

Continued 

protect balanced natural populations of 

aquatic flora and fauna, and in turn 

support designated uses. EPA requests 

comment regarding the biological 

endpoints and endpoint measures 

selected. EPA also solicits additional 

scientific information on other 

appropriate endpoints that can be used 

to protect fish consumption, recreation, 

and the propagation and maintenance of 

a healthy, well-balanced population of 

fish and wildlife in Florida’s Class II 

and III estuarine and coastal waters. 

3. Analytical Methodologies 

EPA used three analytical approaches 

to derive TN, TP, and chlorophyll a 

numeric nutrient criteria for different 

types of waters in Florida. In most of 

Florida coastal waters, EPA is proposing 

to use a reference condition approach 

that utilizes data from waters that 

support balanced natural populations of 

aquatic flora and fauna to derive 

numeric nutrient criteria. In Florida 

estuaries (including some coastal waters 

in the Big Bend Coastal region), EPA is 

proposing to use statistical and 

mechanistic models to determine 

protective concentrations of TN, TP, and 

chlorophyll a linked to biological 

endpoints. Where sufficient data were 

not available to apply statistical models 

(i.e., stressor-response approach) in all 

segments in an estuary, EPA used 

mechanistic model predictions to derive 

criteria. In these instances, EPA 

analyzed the available stressor-response 

analysis as a second line of evidence, in 

segments where the data were available. 

(a) Reference Condition Approach 

EPA is proposing to use the reference 

condition approach to derive numeric 

nutrient criteria in coastal waters that 

support balanced natural populations of 

aquatic flora and fauna. EPA is 

proposing this approach to derive 

numeric chlorophyll a criteria for 

Florida’s coastal waters because the 

scientific data and information available 

were insufficient to establish accurate 

quantifiable relationships between TN 

and TP concentrations and harmful, 

adverse effects due to the limited TN 

and TP data available. Therefore, EPA is 

proposing to rely upon the reference 

condition approach to identify numeric 

chlorophyll a criteria concentrations 

that protect the designated uses, and 

avoid any adverse change in natural 

populations of aquatic flora or fauna in 

Florida’s coastal waters. 

The reference condition approach, 

which has been well documented, peer 

reviewed, and developed in a number of 

different contexts,178 is used to derive 

numeric nutrient criteria that are 

protective of applicable designated uses 

by identifying numeric nutrient criteria 

concentrations occurring in leastdisturbed, healthy coastal waters that 

are supporting designated uses. 

To derive the proposed numeric 

nutrient criteria using the reference 

condition approach, EPA first selected 

reference conditions in Florida’s coastal 

waters where the Agency was confident 

that designated uses are protected. EPA 

reviewed available monitoring 

information, peer-reviewed literature, 

and technical reports to ensure that, 

where applicable, seagrass beds are 

healthy, DO is adequate for sensitive 

species, phytoplankton biomass is 

balanced, and that any other 

information relating to the ecosystem 

indicates that the waters are supporting 

balanced natural populations of aquatic 

flora and fauna. EPA also removed data 

during periods of temporary known 

human disturbances (e.g., bridge and 

roadway construction) where natural 

populations were temporarily affected. 

Finally, EPA reviewed CWA section 

303(d) listings, and removed data 

associated with impairment listings for 

chlorophyll a, dissolved oxygen, and 

nutrients, as well as data from coastal 

segments adjacent to CWA section 

303(d) impaired estuary waters, such 

that the resulting data would reflect 

unimpaired conditions. EPA only 

removed data from the period of 

impairment. The result of this rigorous 

analysis was a set of reference waters 

that, although not pristine, reflected 

healthy conditions that were supporting 

designated uses, and thus free from 

harmful, adverse effects on natural 

populations of aquatic flora and fauna 

due to nutrient pollution. EPA has 

confidence that these reference waters 

are supporting designated uses and 

balanced natural populations of flora 

and fauna, and has confidence that if 

the criteria are attained or maintained at 

the concentrations that are among the 

highest observed in these waters, then 

designated uses and natural populations 

of aquatic flora and fauna will be 

protected in coastal waters. Further 

details regarding data screening can be 

found in the TSD (Volume 2: Coastal 

Waters, Section 1.4). 

After selecting the reference waters, 

EPA calculated the annual geometric 

mean concentrations of chlorophyll a 

for each year of the data record and for 

each segment.179 EPA then calculated a 

normal distribution based on the annual 

geometric mean chlorophyll a 

concentrations. From this distribution, 

which represents the population of 

water quality observations in each 

segment, EPA selected the 90th 

percentile as the applicable criteria for 

each segment. EPA selected the 90th 

percentile as an appropriate 

concentration to specify the criterionmagnitude because the Agency is 

confident that the distribution reflects 

minimally-impacted, biologically 

healthy reference conditions, which 

support the State’s Class II and III 

designated uses. The use of the 90th 

percentile of chlorophyll a is also 

supported by several eutrophication 

assessment frameworks in Europe and 

the U.S, such as the Oslo-Paris 

Commission ‘‘Common Procedure’’ 

(OSPAR), Water Framework Directive of 

the EU, Assessment of Estuarine 

Trophic Status in the US, and the 

Marine Strategy Framework Directive 

used by the European Commission, 

which identify the 90th percentile as 

representative of a chlorophyll a 

concentration above which 

eutrophication is considered 

ecologically problematic or where an 

undesirable disturbance to aquatic life 

and water quality from eutrophication 

are highly likely to appear.180 For 


tkelley on DSK3SPTVN1PROD with 
74948 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

European Marine Strategy Framework Directive. 

Estuarine, Coastal and Shelf Science 93(2):117–131. 

Bricker, S.B., J.G. Ferreira, and T. Simas. 2003. 

An integrated methodology for assessment of 

estuarine trophic status. Ecological Modelling 

169:39–60. 

European Commission. 2003. Common 

Implementation Strategy for the Water Framework 

Directive (2000/60/EC): Guidance Document No. 5, 

Transitional and Coastal Waters-Typology, 

Reference Conditions and Classification Systems. 

European Commission, Working Group 2.4— 

COAST, Office for Official Publications of the 

European Communities, Luxembourg. 

181USEPA. 2010. Using stressor-response 

relationships to derive numeric nutrient criteria. 

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

Agency, Office of Water, Office of Science and 

Technology, Washington, DC. 

182 D’Avanzo, C., and J.N. Kremer. 1994. Diel 

Oxygen Dynamics and Anoxic Events in an 

Eutrophic Estuary of Waquoit Bay, Massachusetts. 

Estuaries and Coasts 17(1B):131–139. 

183 Dennison, W.C. 1987. Effects of light on 

seagrass photosynthesis, growth, and depth 

distribution. Aquatic Botany 27:15–26. 

184 Gallegos, C.L. 2005. Optical water quality of a 

blackwater river estuary: the Lower St. Johns River, 

Florida, USA. Estuarine, Coastal and Shelf Science 

63(1–2):57–72. 

185USEPA. 2001. Nutrient Criteria Technical 

Manual: Estuarine and Coastal Marine Waters. 

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

Agency, Office of Water, Washington, DC. 

further information on the use of the 

reference approach see the TSD 

(Volume 2, Coastal Waters, Section 

1.5.1). 

EPA chose not to select the extreme 

upper end of the distribution (95th or 

100th percentile). This is because these 

highest observed annual average 

concentrations (i.e., 95th or 100th 

percentile) have rarely been observed at 

any reference site and are most likely to 

be heavily influenced by extreme event 

factors (e.g., hurricanes, droughts). Thus 

these highest observed concentrations 

could be outliers that are not 

representative of conditions that would 

typically support designated uses and 

natural populations of aquatic flora and 

fauna. Therefore, EPA has less 

confidence that such highest observed 

concentrations would continue to be 

supportive of designated uses and 

natural populations of aquatic flora and 

fauna if maintained in all coastal waters 

at all times. 

Alternatively, the selection of a much 

lower percentile, such as a 

representation of the central tendency of 

the distribution (i.e., 50th percentile), 

would not be appropriate because it 

would imply that half of the conditions 

observed at reference sites would not 

support designated uses and natural 

populations of aquatic flora and fauna, 

when EPA’s analysis indicates that they 

do. By setting the criteria at the 90th 

percentile of the reference condition 

distribution, EPA believes the 

designated uses, i.e., natural 

populations of aquatic flora and fauna, 

will be protected when these 

concentrations are attained for the 

majority of coastal water segments. For 

those coastal water segments that are 

shown to accommodate or require 

higher or lower concentrations, the 

SSAC provision is provided in EPA’s 

proposed rule as discussed in Section 

V.C. 

(b) Statistical Modeling 

EPA evaluated the data available for 

each estuary segment in terms of 

temporal and spatial representativeness 

to establish whether there were 

sufficient data to use a statistical model. 

Where enough monitoring data in 

estuaries were available, EPA developed 

statistical models (i.e., stressor-response 

relationships) 181 that quantified 

relationships between TN, TP, 

chlorophyll a, and the selected endpoint 

measures (i.e., water clarity to maintain 

maximum depth of seagrass 

colonization and chlorophyll a 

concentrations associated with balanced 

phytoplankton biomass). There were not 

enough temporally-resolved DO 

monitoring data, particularly in predawn hours when dissolved oxygen 

concentrations are typically lower than 

during that day,182 in any of the 

estuaries to permit the use of statistical 

models to derive criterion values 

associated with sufficient DO to support 

aquatic life. Where the available 

endpoints were shown to be sufficiently 

sensitive, EPA used these relationships 

to calculate TN, TP, and chlorophyll a 

concentrations that achieved the 

selected water quality targets for these 

endpoints, which serve as measures of 

balanced natural populations of aquatic 

flora and fauna. 

To determine chlorophyll a 

concentrations supportive of the water 

clarity depth target to achieve the 

healthy seagrass endpoint in a segment, 

EPA estimated the relationship between 

annual geometric mean chlorophyll a 

concentrations and annual geometric 

mean water clarity for each segment. 

Then, EPA computed the chlorophyll a 

criterion as the chlorophyll a 

concentration that was associated with 

the water clarity target. In other words, 

the chlorophyll a criterion was 

determined such that the water quality 

target for water clarity was achieved on 

an annual average basis.183 In some 

segments, increased annual geometric 

mean chlorophyll a concentrations were 

not associated with decreased annual 

geometric mean water clarity, possibly 

because other factors, such as 

suspended sediment or colored 

dissolved organic material, more 

strongly affected water clarity.184 In 

these segments, EPA determined that 

the water clarity endpoint was not 

sufficiently sensitive to increased 

chlorophyll a, and therefore, this 

endpoint was not used to derive a 

chlorophyll a criterion, and associated 

TN and TP criteria in that segment. 

EPA also used stressor-response 

relationships to derive chlorophyll a 

criteria to maintain balanced algal 

populations. To this end, EPA used 

logistic regression to estimate the 

relationship between annual geometric 

mean chlorophyll a concentrations and 

the probability of any single chlorophyll 

a measurement exceeding EPA’s 

proposed water quality target of 20 mg/ 

L during the year. Then, EPA derived a 

chlorophyll a criterion from this 

relationship by selecting the annual 

geometric mean chlorophyll a 

concentration that ensured that any 

single chlorophyll a measurement 

would not exceed 20 mg/L more than 

10% of the time. 

After calculating chlorophyll a 

candidate criteria values necessary to 

meet the water quality targets for the 

two biological endpoints for which data 

were available (maintenance of 

seagrasses and maintenance of balanced 

algal populations), in each water body 

segment, EPA selected the more 

stringent of the two as the proposed 

criterion for that segment to ensure that 

the proposed chlorophyll a criterion 

would protect both endpoints. 

To calculate TN and TP criteria 

associated with the chlorophyll a 

criterion, EPA estimated the 

relationship between annual geometric 

mean TN and TP concentrations and 

annual geometric mean chlorophyll a 

concentrations for each segment. EPA 

then used these relationships to 

compute the TN and TP concentrations 

that were required to maintain average 

chlorophyll a concentrations at the 

chlorophyll a criterion. In some estuary 

segments, increased TN or TP 

concentrations were not associated with 

increased chlorophyll a concentrations, 

possibly because of differences in the 

proportion of TP or TN that was 

composed of biologically unavailable 

forms of phosphorus or nitrogen, or 

because of unique physical or 

hydrological characteristics of the 

estuary segment.185 In these segments, 

EPA determined that chlorophyll a 

concentrations were not sufficiently 

sensitive to increases in TN or TP 

concentrations, and therefore, this 

approach was not used to derive criteria 

for these segments. 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74949 

186USEPA. 2010. Using Stressor-response 

Relationships to Derive Numeric Nutrient Criteria. 

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

Agency, Office of Water, Washington, DC. 

187Wolfe, S.H. 2007. An Inventory of 

Hydrodynamic, Water Quality, and Ecosystem 

Models of Florida Coastal and Ocean Waters. 

Florida Department of Environmental Protection, 

Tallahassee, Florida. 

188USEPA. 2011. Loading Simulation Program in 

C++ (LSPC). http://www.epa.gov/athens/wwqtsc/ 

html/lspc.html. Accessed December 2011. 

189USEPA. 2011. Environmental Fluid Dynamics 

Code (EFDC). http://www.epa.gov/athens/wwqtsc/ 

html/efdc.html. Accessed December 2011. 

190USEPA. 2011. Water Quality Analysis 

Simulation Program (WASP). http://www.epa.gov/ 

athens/wwqtsc/html/wasp.html. Accessed 

December 2011. 

191USEPA. 2010. Methods and Approaches for 

Deriving Numeric Criteria for Nitrogen/Phosphorus 

Pollution in Florida’s Estuaries, Coastal Waters, and 

Southern Inland Flowing Waters. U.S. 

Environmental Protection Agency, Office of Water, 

Washington, DC. 

192USEPA–SAB. 2011. Review of EPA’s draft 

Approaches for Deriving Numeric Nutrient Criteria 

for Florida’s Estuaries, Coastal Waters, and 

Southern Inland Flowing Waters. EPA–SAB–11– 

010. U.S. Environmental Protection Agency, 

Science Advisory Board, Washington, DC. 

193USEPA–SAB. 2011. Review of EPA’s draft 

Approaches for Deriving Numeric Nutrient Criteria 

for Florida’s Estuaries, Coastal Waters, and 

Southern Inland Flowing Waters. EPA–SAB–11– 

010. U.S. Environmental Protection Agency, 

Science Advisory Board, Washington, DC. 

In instances where one of the 

endpoints was not sufficiently sensitive 

to increases in TN or TP concentrations 

the relationship of the other endpoint to 

TN or TP was examined. If both 

endpoints were insensitive to TN or TP, 

then the statistical models were not 

used to derive candidate criteria for the 

particular nutrient. 

In a limited number of estuary 

segments, EPA found that the TN, TP, 

or chlorophyll a concentrations that 

were associated with achieving the 

water quality targets for the biological 

endpoints were outside (greater than or 

less than) the range of TN, TP, or 

chlorophyll a concentrations observed 

in the available data for the estuary. In 

other words, in these situations, using 

statistical models to derive numeric 

nutrient criteria would require EPA to 

extrapolate the TN, TP, and chlorophyll 

a relationships beyond the range of 

available data. Because of the 

uncertainty inherent in conducting such 

extrapolations, EPA is proposing instead 

to set numeric nutrient criteria derived 

from these statistically modeled 

relationships at the 90th percentile or 

10th percentile limit of the distribution 

of available data instead of deriving 

criteria outside the range of data 

observations.186 For example, if the 

statistically modeled value for TP 

associated with achieving all water 

quality targets to meet the biological 

endpoints in an estuary segment was 

less than the 10th percentile of annual 

average values of TP observed in that 

segment, EPA is proposing to set the 

criterion value at the 10th percentile of 

annual average values of TP. This 

approach defines criterion values that 

maintain balanced natural populations 

of aquatic flora and fauna within the 

limits of available data and is consistent 

with EPA’s reasoning for the selection of 

the 90th percentile when using the 

reference condition approach. EPA 

requests comment on whether to 

extrapolate stressor-response 

relationships beyond the range of 

available data. For further information 

on the use of statistical modeling 

approach, see the TSD (Volume 1: 

Estuaries, Section 1.4.2 and Appendix 

B). 

(c) Mechanistic Modeling 

EPA also quantified relationships 

between nitrogen and phosphorus loads 

and the three biological endpoints using 

a coupled system of watershed models 

and estuarine hydrodynamic and water 

quality models. These models simulated 

the physical, chemical, and biological 

processes in a watershed-estuarine 

system. EPA first used the watershed 

models to develop estimates of TN, TP, 

and freshwater inputs to the estuary. 

Next, EPA used the estuarine 

hydrodynamic and water quality models 

to simulate estuarine water quality 

responses to the watershed inputs, 

including changes in estuarine TN, TP, 

and chlorophyll a concentrations, water 

clarity, and DO. Then, EPA utilized 

these models to determine 

concentrations of TN and TP that would 

protect the most nutrient-sensitive 

biological endpoint to derive the 

numeric nutrient criteria. 

To select the appropriate models, EPA 

developed an inventory of watershed 

and estuary models that have been 

applied previously to estuaries in 

Florida, including models developed by 

FDEP.187 Based on the results of the 

review, EPA selected the Loading 

Simulation Program in C++ (LSPC) 188 to 

simulate freshwater flows and nutrient 

loading from watersheds, the 

Environmental Fluid Dynamics Code 

(EFDC) 189 to simulate estuarine 

hydrodynamics, and the Water Quality 

Analysis Simulation Program 

(WASP) 190 to simulate estuarine water 

quality.191

LSPC can continuously simulate the 

hydrologic and water quality processes 

on pervious and impervious land 

surfaces, in streams, and in well-mixed 

impoundments throughout the 

watershed and can provide daily 

estimates of stream flow, TN, and TP 

concentrations entering the estuary. In 

addition, LSPC is publicly available and 

has been peer reviewed.192 LSPC has 

been successfully applied for water 

quality management purposes to many 

watersheds throughout the southeastern 

United States and Florida. Therefore, 

EPA is proposing to apply the LSPC 

model to the watersheds in Florida 

outside of the South Florida Nutrient 

Watershed Region. 

EFDC and WASP have been applied 

in conjunction to simulate 

hydrodynamics and water quality 

(respectively) for many water quality 

management projects throughout the 

southeastern United States and Florida. 

EFDC and WASP are also publicly 

available and have undergone peer 

review.193 Based on the extensive use of 

these models for similar applications 

and their acceptance in the scientific 

community, EPA is proposing to use the 

EFDC and WASP models to derive 

numeric nutrient criteria for Florida’s 

estuaries. 

For estuaries where monitoring data 

were insufficient to calculate criteria 

using the statistical models, EPA 

mechanistically modeled the conditions 

in each system and corresponding 

watershed that occurred from 2002– 

2009 using all available, screened data. 

EPA evaluated data over the historic 

period of record and is proposing to use 

2002 through 2009 as a representative 

modeling period because complete, 

continuous flow and water quality data 

were available. This period also reflects 

the range of hydrology and meteorology 

observed over the historic period of 

record across the Florida estuaries. 

EPA then used relationships between 

TN, TP, and biological endpoints 

quantified by the mechanistic models to 

derive numeric nutrient criteria. That is, 

EPA determined the concentrations of 

TN and TP that were associated with 

meeting all biological endpoints in each 

segment. 

Because estuaries differ in their 

physical, chemical, and hydrological 

characteristics, EPA expected that 

differences would exist in the degree to 

which different biological endpoints 

respond to changes in nutrient 

concentration. For example, in certain 

estuaries, high concentrations of colored 

dissolved organic material (CDOM) 

occur naturally and reduce water 

clarity. Because of the influence of 

CDOM in these estuarine systems, 

changes in TN, TP, and chlorophyll a 

are not strongly associated with changes 

in water clarity. In these systems, the 

water clarity endpoint does not appear 

to be sensitive to changes in nutrients, 


tkelley on DSK3SPTVN1PROD with 
74950 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

194USEPA. 2001. Nutrient Criteria Technical 

Manual: Estuarine and Coastal Marine Waters. 

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

Agency, Office of Water, Washington, DC. Glibert, 

P.M., C.J. Madden, W. Boynton, D. Flemer, C. Heil, 

and J. Sharp, eds. 2010. Nutrients in Estuaries: A 

Summary Report of the National Estuarine Experts 

Workgroup, 2005–2007. Report to U.S. 

Environmental Protection Agency, Office of Water, 

Washington DC. 

and therefore, the water clarity endpoint 

does not provide useful information for 

the purposes of deriving numeric 

nutrient criteria in these systems. In 

each estuarine system, EPA used output 

from mechanistic models and available 

monitoring data to evaluate the 

sensitivity of each endpoint measure to 

changes in nutrients. This analysis was 

used to determine which endpoints 

were most critical to determine 

protective nutrient concentrations. 

Endpoints that were found to be 

insensitive to changes in nutrient 

concentrations in a particular estuarine 

system were not considered further in 

deriving numeric nutrient criteria for a 

system. Numeric nutrient criteria for 

each system were based on the modeled 

scenario in which the remaining 

endpoint measures were met during the 

modeled period, calculated as annual 

geometric means for each year during 

the modeled period. Criteria were 

calculated using the 90th percentile of 

the annual geometric means from the 

modeled years for the model scenario 

meeting all appropriate endpoints. EPA 

selected the 90th percentile to account 

for natural variability in the data to 

represent the upper bound of conditions 

supporting designated uses. The 

selection of the 90th percentile is 

appropriate for the same reasons as 

when using the reference condition 

approach. For further information on 

the use of the mechanistic modeling 

approach, see the TSD (Volume 1: 

Estuaries, Section 1.4.1). 

(d) Request for Comment on Analytical 

Methodologies 

EPA believes that the three proposed 

analytical methodologies used in 

combination result in numeric nutrient 

criteria that are supportive of balanced 

natural populations of aquatic flora and 

fauna, and thus protect Class II and III 

estuarine and coastal waters in the State 

of Florida from nutrient pollution. 

These analytical methodologies utilized 

the latest scientific knowledge, nutrient 

sensitive endpoints, and the best 

available data. The Agency requests 

comment on the application of the 

proposed methodologies and whether 

these methodologies are appropriate to 

derive criteria protective of designated 

uses in Florida’s estuaries and coastal 

waters. Specifically, EPA is soliciting 

comment and any scientific information 

on the use of these approaches in areas 

where there may be other factors present 

in addition to nutrients that may also 

affect the three biological endpoints by 

attenuating light in similar ways as 

chlorophyll a (e.g., colored dissolved 

organic matter (CDOM) or suspended 

sediments). EPA is also requesting 

comment on the procedures used to 

screen data to identify reference 

conditions that are supporting balanced 

natural populations of aquatic flora and 

fauna. 

B. Proposed Numeric Criteria for 

Estuaries 

1. Introduction 

EPA is proposing to use a systemspecific approach to derive numeric 

nutrient criteria for estuaries to ensure 

that the unique physical, chemical, and 

biological characteristics of each 

estuarine ecosystem are taken into 

consideration.194

2. Proposed Numeric Criteria (Estuaries) 

EPA is proposing numeric TN, TP, 

and chlorophyll a criteria for 89 discrete 

segments within 19 estuarine systems in 

Florida (Table III.B–1). These include 

Class II and III waters under Florida law 

(Section 62–302.400, F.A.C.); EPA did 

not find any Class I estuarine waters in 

Florida. The 19 estuaries include seven 

systems in the Florida Panhandle 

region, four systems in the Big Bend 

region, and eight systems along the 

Atlantic coast. Maps showing the 

locations of these estuarine systems and 

EPA’s proposed within-estuary 

segments are provided in the TSD 

(Volume 1: Estuaries, Section 1.3 and 

Section 2). 

In some areas a gap may exist between 

maps used by Florida and EPA to show 

where criteria apply. In areas where a 

gap exists between EPA’s proposed 

criteria and Florida’s numeric criteria, 

EPA proposes that Florida’s numeric 

criteria from the adjacent estuary or 

marine segment apply (see Section 62– 

302.532, F.A.C. for values). EPA 

proposes that Florida’s criteria from the 

northernmost segment of Clearwater 

Harbor/St Joseph Sound (Subsection 

62–302.532(a)1., F.A.C.) apply to the 

waters between that segment and the 

southernmost segment of EPA’s Springs 

Coast estuary system. EPA proposes that 

Florida’s numeric criteria from the 

northernmost segment of Biscayne Bay 

(Subsection 62–302.532(h)5., F.A.C.) 

apply to the waters of the intercoastal 

waterway between that segment and the 

southernmost segment of EPA’s Lake 

Worth Lagoon estuary system. 

In other areas a gap may exist within 

estuaries covered by Florida’s numeric 

criteria. In these areas, EPA proposes 

that Florida’s criteria from the adjacent 

estuary or marine segment to the south 

apply to that gap. EPA proposes that 

Florida’s criteria from (1) the upper 

Lemon Bay segment (Subsection 62– 

302.532(d)2., F.A.C.) apply to the 

segment between the upper Lemon Bay 

segment and the Dona/Roberts Bay 

segment (Subsection 62–302.532(d)1., 

F.A.C.), (2) the Tidal Cocohatchee River 

segment (Subsection 62–302.532(e)1., 

F.A.C.) apply to the waters between the 

Tidal Cocohatchee River segment and 

the Estero Bay segment (Subsection 62– 

302.532(d)9., F.A.C.), (3) the Clam Bay 

segment (Subsection 62–302.532(j)., 

F.A.C.) apply between the Clam Bay 

segment and the Tidal Cocohatchee 

River segment (Subsection 62– 

302.532(e)1., F.A.C.), and (4) the Naples 

Bay segment (Subsection 62– 

302.532(e)4., F.A.C.) apply to the 

segment between the Naples Bay 

segment and the Clam Bay Segment 

(Subsection 62–302.532(j)., F.A.C.). For 

further information regarding the 

derivation and protectiveness of 

Florida’s criteria, see http:// 

water.epa.gov/lawsregs/rulesregs/ 

florida_index.cfm. 

TABLE III.B–1—EPA’S PROPOSED NUMERIC CRITERIA FOR FLORIDA’S ESTUARIES

[In geographic order from northwest to northeast] 

Segment Segment ID 

Proposed Criteria 

TN* 

(mg/L) 

TP* 

(mg/L) 

Chl-a* 

(μg/L) 

Perdido Bay: 

Upper Perdido Bay ................................................................................... 0101 0.59 0.042 5.2 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74951 

TABLE III.B–1—EPA’S PROPOSED NUMERIC CRITERIA FOR FLORIDA’S ESTUARIES—Continued 

[In geographic order from northwest to northeast] 

Segment Segment ID 

Proposed Criteria 

TN* 

(mg/L) 

TP* 

(mg/L) 

Chl-a* 

(μg/L) 

Big Lagoon ............................................................................................... 0102 0.26 0.019 4.9 

Central Perdido Bay ................................................................................. 0103 0.47 0.031 5.8 

Lower Perdido Bay ................................................................................... 0104 0.34 0.023 5.8 

Pensacola Bay: 

Blackwater Bay ......................................................................................... 0201 0.53 0.022 3.9 

Upper Escambia Bay ................................................................................ 0202 0.43 0.025 3.7 

East Bay ................................................................................................... 0203 0.50 0.021 4.2 

Santa Rosa Sound ................................................................................... 0204 0.34 0.018 4.1 

Lower Escambia Bay ................................................................................ 0205 0.44 0.023 4.0 

Upper Pensacola Bay ............................................................................... 0206 0.40 0.021 3.9 

Lower Pensacola Bay ............................................................................... 0207 0.34 0.020 3.6 

Santa Rosa Sound ................................................................................... 0208 0.33 0.020 3.9 

Santa Rosa Sound ................................................................................... 0209 0.36 0.020 4.9 

Choctawhatchee Bay: 

Eastern Choctawhatchee Bay .................................................................. 0301 0.47 0.025 8.1 

Central Choctawhatchee Bay ................................................................... 0302 0.36 0.019 3.8 

Western Choctawhatchee Bay ................................................................. 0303 0.21 0.012 2.4 

St. Andrews Bay: 

East Bay ................................................................................................... 0401 0.31 0.014 4.6 

St. Andrews Sound ................................................................................... 0402 0.14 0.009 2.3 

Eastern St. Andrews Bay ......................................................................... 0403 0.24 0.021 3.9 

Western St. Andrews Bay ........................................................................ 0404 0.19 0.016 3.1 

Southern St. Andrews Bay ....................................................................... 0405 0.15 0.013 2.6 

North Bay 1 .............................................................................................. 0406 0.22 0.012 3.7 

North Bay 2 .............................................................................................. 0407 0.22 0.014 3.7 

North Bay 3 .............................................................................................. 0408 0.21 0.016 3.4 

West Bay .................................................................................................. 0409 0.23 0.022 3.8 

St. Joseph Bay: 

St. Joseph Bay ......................................................................................... 0501 0.25 0.018 3.8 

Apalachicola Bay: 

St. George Sound ..................................................................................... 0601 0.53 0.019 3.6 

Apalachicola Bay ...................................................................................... 0602 0.51 0.019 2.7 

East Bay ................................................................................................... 0603 0.76 0.034 1.7 

St. Vincent Sound ..................................................................................... 0605 0.52 0.016 11.9 

Apalachicola Offshore .............................................................................. 0606 0.30 0.008 2.3 

Alligator Harbor: 

Alligator Harbor ......................................................................................... 0701 0.36 0.011 2.8 

Alligator Offshore ...................................................................................... 0702 0.33 0.009 3.1 

Alligator Offshore ...................................................................................... 0703 0.33 0.009 2.9 

Ochlockonee Bay+: 

Ochlockonee-St. Marks Offshore ............................................................. 0825 0.79 0.033 2.7 

Ochlockonee Offshore .............................................................................. 0829 0.47 0.019 1.9 

Ochlockonee Bay ..................................................................................... 0830 0.66 0.037 1.8 

St. Marks River Offshore .......................................................................... 0827 0.51 0.022 1.7 

St. Marks River ......................................................................................... 0828 0.55 0.030 1.2 

Big Bend/Apalachee Bay+: 

Econfina Offshore ..................................................................................... 0824 0.59 0.028 4.6 

Econfina .................................................................................................... 0832 0.55 0.032 4.4

Fenholloway .............................................................................................. 0822 1.15 0.444 1.9 

Fenholloway Offshore ............................................................................... 0823 0.48 0.034 10.3 

Steinhatchee-Fenholloway Offshore ........................................................ 0821 0.40 0.023 4.1 

Steinhatchee River ................................................................................... 0819 0.67 0.077 1.0 

Steinhatchee Offshore .............................................................................. 0820 0.34 0.018 3.5 

Steinhatchee Offshore .............................................................................. 0818 0.39 0.032 4.8 

Suwannee River+: 

Suwannee Offshore .................................................................................. 0817 0.78 0.049 5.2 

Springs Coast+: 

Waccasassa River Offshore ..................................................................... 0814 0.38 0.019 3.9 

Cedar Keys ............................................................................................... 0815 0.32 0.019 4.1 

Crystal River ............................................................................................. 0812 0.35 0.013 1.3 

Crystal-Homosassa Offshore .................................................................... 0813 0.36 0.013 2.1 

Homosassa River ..................................................................................... 0833 0.47 0.032 1.9 

Chassahowitzka River .............................................................................. 0810 0.32 0.010 0.7 

Chassahowitzka River Offshore ............................................................... 0811 0.29 0.009 1.7 

Weeki Wachee River ................................................................................ 0808 0.32 0.010 1.6 

Weeki Wachee Offshore ........................................................................... 0809 0.30 0.009 2.1 

Pithlachascotee River ............................................................................... 0806 0.50 0.022 2.4 

Pithlachascotee Offshore ......................................................................... 0807 0.32 0.011 2.5 


tkelley on DSK3SPTVN1PROD with 
74952 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

TABLE III.B–1—EPA’S PROPOSED NUMERIC CRITERIA FOR FLORIDA’S ESTUARIES—Continued 

[In geographic order from northwest to northeast] 

Segment Segment ID 

Proposed Criteria 

TN* 

(mg/L) 

TP* 

(mg/L) 

Chl-a* 

(μg/L) 

Anclote River ............................................................................................ 0804 0.48 0.037 4.7 

Anclote Offshore ....................................................................................... 0805 0.31 0.011 3.2 

Anclote Offshore South ............................................................................ 0803 0.29 0.008 2.6 

Clearwater Harbor/St. Joseph Sound: See Section 62–302.532(1)(a) F.A.C. 

Tampa Bay: See Section 62–302.532(1)(b) F.A.C. 

Sarasota Bay: See Section 62–302.532(1)(c) F.A.C. 

Charlotte Harbor/Lemon Bay: See Section 62–302.532(1)(d) F.A.C. 

Lake Worth Lagoon/Loxahatchee: 

North Lake Worth Lagoon ........................................................................ 1201 0.55 0.067 4.7 

Central Lake Worth Lagoon ..................................................................... 1202 0.57 0.089 5.3 

South Lake Worth Lagoon ....................................................................... 1203 0.48 0.034 3.6 

Lower Loxahatchee .................................................................................. 1301 0.68 0.028 2.7 

Middle Loxahatchee ................................................................................. 1302 0.98 0.044 3.9 

Upper Loxahatchee .................................................................................. 1303 1.25 0.072 3.6 

St. Lucie: 

Lower St. Lucie ......................................................................................... 1401 0.58 0.045 5.3 

Middle St. Lucie ........................................................................................ 1402 0.90 0.120 8.4 

Upper St. Lucie ......................................................................................... 1403 1.22 0.197 8.9 

Indian River Lagoon: 

Mosquito Lagoon ...................................................................................... 1501 1.18 0.078 7.5 

Banana River ............................................................................................ 1502 1.17 0.036 5.7 

Upper Indian River Lagoon ...................................................................... 1503 1.63 0.074 9.2 

Upper Central Indian River Lagoon .......................................................... 1504 1.33 0.076 9.2 

Lower Central Indian River Lagoon .......................................................... 1505 1.12 0.117 8.7 

Lower Indian River Lagoon ...................................................................... 1506 0.49 0.037 4.0 

Halifax River: 

Upper Halifax River .................................................................................. 1601 0.75 0.243 9.4 

Lower Halifax River .................................................................................. 1602 0.63 0.167 9.6 

Guana, Tolomato, Matanzas, Pellicer: 

Upper GTMP ............................................................................................ 1701 0.77 0.144 9.5 

Lower GTMP ............................................................................................ 1702 0.53 0.108 6.1 

Lower St. Johns River: 

Lower St. Johns River .............................................................................. 1801 0.75 0.095 2.5 

Trout River ................................................................................................ 1802 1.09 0.108 3.6 

Trout River ................................................................................................ 1803 1.15 0.074 7.7 

Nassau River: 

Lower Nassau ........................................................................................... 1901 0.33 0.113 3.2 

Middle Nassau .......................................................................................... 1902 0.40 0.120 2.4 

Upper Nassau ........................................................................................... 1903 0.75 0.125 3.4 

St. Marys River: 

Lower St. Marys River .............................................................................. 2002 0.27 0.045 3.0 

Middle St. Marys River ............................................................................. 2003 0.44 0.036 2.7 

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

phaeophytin a, has been subtracted from the uncorrected chlorophyll a measurement. 

* For a given water body, the annual geometric mean of TN, TP, or chlorophyll a, concentrations shall not exceed the applicable criterion concentration more than once in a three-year period. + In these four areas (collectively referred to as the ‘‘Big Bend region’’), coastal and estuarine waters are combined. Criteria for the Big Bend 

region apply to the coastal and estuarine waters in that region. 

(a) Summary of Approaches (Estuaries) 

(1) Proposed Approach (Estuaries) 

In estuaries where sufficient 

monitoring data were available to 

statistically quantify relationships 

between TN, TP, chlorophyll a, and 

biological endpoints, and the endpoints 

available to derive criteria were shown 

to be sufficiently sensitive (i.e., 

Choctawhatchee Bay; St. Joseph Bay; 

Suwannee River; Indian River Lagoon; 

Halifax River; and the Guana, Tolomato, 

Matanzas, and Pellicer (GTMP) 

estuarine system), statistical models 

were used to derive the proposed 

numeric nutrient criteria. In three of the 

estuaries, Choctawhatchee Bay, St. 

Joseph Bay, and Indian River Lagoon, 

there were sufficient available data for 

water clarity associated with historic 

depth of seagrasses, and chlorophyll a 

concentrations associated with balanced 

phytoplankton biomass targets, and 

these biological endpoints were 

sensitive to changes in nutrients in most 

segments, so proposed criteria were 

derived that were protective of these 

endpoints. In the Suwannee River, the 

water clarity endpoint was not sensitive 

to changes in nutrients, so proposed 

criteria were derived that were 

protective of the chlorophyll a target 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74953 

195FDEP. 2006. Site Specific Alternative 

Dissolved Oxygen Criterion to Protect Aquatic Life 

in the Marine Portions of the Lower St. Johns River 

Technical Support Document. Appendix L In: 

FDEP. 2008. TMDL Report: Total Maximum Daily 

Load for Nutrients for the Lower St. Johns River. 

Florida Department of Environmental Protection, 

Tallahassee, FL. 

associated with balanced phytoplankton 

biomass. In the Halifax River and 

GTMP, seagrass has not been 

historically present, so the proposed 

criteria were derived that are protective 

of the chlorophyll a target associated 

with balanced phytoplankton biomass. 

In all other estuaries mechanistic 

models were used to quantify the 

relationship between nutrient loads and 

biological endpoints. EPA then used the 

models to derive proposed numeric 

nutrient criteria that protect the 

endpoints. For each estuary, the 

endpoints that were shown to be 

sufficiently sensitive to nutrient changes 

above non-anthropogenic nutrient levels 

were used, as described in Section 

III.A.3.c. The endpoints for each of the 

estuaries where mechanistic models 

were used to derive criteria are noted in 

the following discussion. 

In Perdido Bay, Apalachicola Bay, 

three segments in Lake Worth Lagoon/ 

Loxahatchee (Lake Worth Lagoon, 

segments 1201, 1202, and 1203), and St. 

Lucie, all three biological endpoints 

were found to be sensitive to changes to 

nutrients, and so proposed criteria were 

derived that were protective of historic 

depth of seagrasses (water clarity), 

chlorophyll a concentrations associated 

with balanced phytoplankton biomass, 

and dissolved oxygen concentrations 

sufficient to maintain aquatic life. 

In St. Andrews Bay, 2 segments in the 

Springs Coast (Anclote River/Anclote 

Offshore, segments 0804 and 0805) and 

3 segments in Lake Worth Lagoon/ 

Loxahatchee (Lower, Middle, and Upper 

Loxahatchee, segments 1301, 1302, and 

1303), dissolved oxygen concentrations 

were found to be insensitive to changes 

in nutrients. Proposed criteria were 

derived that were protective of historic 

depth of seagrasses (water clarity) and 

chlorophyll a concentrations associated 

with balanced phytoplankton biomass. 

In Pensacola Bay, 3 segments in 

Ochlockonee Bay (Ochlockonee-St. 

Marks Offshore/Ochlockonee Offshore/ 

Ochlockonee Bay, segments 0825, 0829, 

and 0830), and 4 segments in Big Bend/ 

Apalachee Bay (Econfina/Econfina 

Offshore, segments 0824, 0832; 

Steinhatchee-Fenholloway Offshore, 

segment 0821; Steinhatchee Offshore, 

segment 0818), and 1 segment in 

Springs Coast (Anclote Offshore South, 

segment 0803), water clarity was found 

to be insensitive to changes in nutrients. 

In Alligator Harbor and 2 segments in 

Springs Coast (Waccasassa River 

Offshore/Cedar Keys, segments 0814, 

0815), there was not enough available 

information to derive seagrass depth 

targets. As a result, the proposed criteria 

were derived to be protective of water 

quality targets for chlorophyll a 

concentrations associated with balanced 

phytoplankton biomass and dissolved 

oxygen concentrations sufficient to 

maintain aquatic life. 

In 2 segments in Ochlockonee Bay (St. 

Marks Offshore/St. Marks River, 

segments 0827, 0828), 2 segments in Big 

Bend/Apalachee Bay (Steinhatchee 

River/Steinhatchee Offshore, segments 

0819, 0820), and 2 segments in Springs 

Coast (Pithlachascotee River/ 

Pithlachascotee Offshore, segments 

0806, 0807), dissolved oxygen and water 

clarity were both found to be insensitive 

to changes in nutrients. In 2 segments in 

Big Bend/Apalachee Bay (Fenholloway/ 

Fenholloway Offshore, segments 0822, 

0823) and 7 segments in Springs Coast 

(Crystal River/Crystal-Homosassa 

Offshore/Homosassa River, segments 

0812, 0813, 0833; Chassahowitzka 

River/Chassahowitzka Offshore, 

segments 0810, 0811; and Weeki 

Wachee/Weeki Wachee Offshore, 

segments 0808, 0809), dissolved oxygen 

was found to be insensitive to changes 

in nutrients and there was not enough 

available information to derive seagrass 

depth targets. In Nassau River and St. 

Marys River, dissolved oxygen was 

found to be insensitive to changes in 

nutrients and seagrass has not been 

historically present. For all of these 

estuaries, proposed criteria were 

derived that were protective of 

chlorophyll a concentrations associated 

with balanced phytoplankton biomass. 

In the Lower St. Johns River, seagrass 

has not been historically present, so 

proposed criteria were derived that were 

protective of chlorophyll a associated 

with balanced phytoplankton biomass 

and dissolved oxygen concentrations 

sufficient to maintain aquatic life. For 

this system, EPA used the dissolved 

oxygen from the Site-Specific 

Alternative Criteria, developed by FDEP 

and adopted for the marine portion of 

the Lower St. Johns River, as an 

additional DO endpoint with which to 

derive the proposed criteria to support 

dissolved oxygen concentrations 

sufficient to maintain aquatic life.195

This DO criterion, adopted as a water 

quality standard specific to this system, 

was used as an alternative target to the 

daily water column average DO 

concentration of 5.0 mg/L. 

EPA considered several alternative 

approaches for deriving estuarine 

numeric nutrient criteria, including 

approaches proposed by the St. Johns 

River Water Management District for 

estuaries within their jurisdiction 

(Lower St. Johns River, Mosquito 

Lagoon, Tolomato-Matanzas estuary, 

Halifax River estuary, Indian River 

Lagoon, and Banana River). While some 

of these approaches segmented Florida’s 

estuaries differently than the 

segmentation approach EPA is 

proposing, all the alternative 

approaches used multiple biological 

endpoints and analytical methods to 

determine the health of each system and 

derive criteria. EPA solicits comments 

on the alternative approaches described 

in more detail in the following sections. 

Additional details on these approaches 

are provided in the TSD (Volume 1: 

Estuaries, Section 2). 

(2) Alternative for St. Johns River Water 

Management District Waters 

The St. Johns River Water 

Management District (SJRWMD) 

submitted proposed approaches to EPA 

for several estuaries within their 

jurisdiction. These included the St. 

Johns River, Mosquito Lagoon, 

Tolomato-Matanzas estuary, Halifax 

River estuary, Indian River Lagoon, and 

Banana River. In general, SJRWMD 

proposed a weight of evidence approach 

employing several analytical techniques 

to derive numeric nutrient criteria for 

each of the systems. The following 

paragraphs outline the methods 

proposed for each of these systems. 

The SJRWMD has proposed the use of 

the values for TN, TP, and chlorophyll 

a for the Lower St. Johns River (LSJR) 

that have already been developed as 

part of an existing TMDL to support 

designated uses in the river. The LSJR 

is defined as the main stem segments of 

the river between the juncture with the 

Ocklawaha River and the river mouth at 

Mayport, with the marine portion 

occurring between Julington Creek and 

the mouth. A SSAC was developed for 

DO in the marine portion of the river. 

It was approved by EPA in 2006 and is 

in effect as a WQS. The TMDL contains 

TN and TP protective loads in the 

freshwater portion of the LSJR and a TN 

protective load in the saline portion of 

the LSJR. These loads are set at a level 

necessary to achieve the marine DO 

SSAC and protect the statewide 

standard for DO in the freshwater 

section. The TMDL also contains a 

water quality target for chlorophyll a 

that is intended to implement the State’s 

narrative nutrient criterion. 

Similar to the modeling approach 

proposed by EPA for Florida estuaries, 

TN, TP, and chlorophyll a criteria were 

derived for the LSJR using linked 

watershed, hydrodynamic, and water 


tkelley on DSK3SPTVN1PROD with 
74954 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

196Steward, J.S., and E.F. Lowe. 2010. General 

empirical models for estimating nutrient load limits 

for Florida’s estuaries and inland waters. Limnology 

and Oceanography 55(1):433–445. Dettmann, E.H. 

2001. Effect of water residence time on annual 

export and denitrification of nitrogen in estuaries: 

A model analysis. Estuaries 24(4):481–490. 197Steward J.S., R.V. Virnstein, L.J. Morris, and 

E.F. Lowe. 2005. Setting Seagrass Depth, Coverage, 

and Light targets for the Indian River Lagoon 

system, Florida. Estuaries 6:923–935. 

198Steward, J.S., and E.F. Lowe. 2010. General 

empirical models for estimating nutrient load limits 

for Florida’s estuaries and inland waters. Limnology 

and Oceanography 55(1):433–445. Dettmann, E.H. 

2001. Effect of water residence time on annual 

export and denitrification of nitrogen in estuaries: 

A model analysis. Estuaries 24:481–490. 

quality models. Non-point nutrient 

inputs from the watershed to the river 

were determined for each sub-basin in 

the LSJR using the Pollutant Load 

Screening Model (PLSM), estimates of 

atmospheric deposition, and estimates 

of loading from tributaries and 

upstream. Within the river, 

hydrodynamics were modeled using the 

Environmental Fluid Dynamics Code 

(EFDC) model and water quality 

processes were modeled using the U.S. 

Army Corps of Engineers Quality 

Integrated Compartment Model (CE– 

QUAL–ICM), Version 2. The models 

were calibrated for the period from 

January 1, 1995 to November 30, 1998. 

TMDL model scenarios were assessed 

on an annual basis to determine if 

chlorophyll a levels exceeded the 

chlorophyll a threshold of 40 mg/L less 

than 10% of the time that was set as the 

water quality target to prevent 

undesirable shifts in algal community 

composition. 

For Mosquito Lagoon, a suite of five 

approaches are considered to develop a 

weight of evidence by which numeric 

nutrient criteria can be developed. 

These approaches are based upon one of 

three relationships: (1) The link between 

nutrients, phytoplankton growth (as 

shown by chlorophyll a), and the 

trophic state of a system; (2) the link 

between nutrients, phytoplankton 

growth (as shown by chlorophyll a), the 

effects of phytoplankton on light 

attenuation in the water column, and 

the light requirements of seagrasses; or 

(3) the connection between TP and 

harmful algal bloom (HAB) occurrence. 

The first and primary approach uses a 

reference period from 2004–2008 to 

calculate annual median and maximum 

wet season medians of chlorophyll a, 

TN, and TP. The reference time period 

was selected because the TN, TP, and 

chlorophyll a observed during that 

period were low, the rainfall amounts 

during that period were representative 

of typical rainfall over time, and the 

Trophic State Index value for that time 

period was greater than 50, which is 

considered to be ‘‘good’’ (mesotrophy to 

oligo-mesotrophy). 

The second approach draws upon an 

optical model linking chlorophyll a to 

previously established light attenuation 

targets as a way to predict annual 

median chlorophyll a in southern 

Mosquito Lagoon that would be 

protective of seagrass and serve as a 

basis for criteria derivation. A third 

approach derives a TP level that 

corresponds to minimum ‘‘bloom’’ 

levels of the dinoflagellate Pyrodinium 

bahamense, the common HAB species 

seen primarily in the southern Lagoon. 

A fourth line of evidence applied to the 

Mosquito Lagoon is multivariate 

geometric mean function regression 

models relating TN and TP to 

chlorophyll a on an annual basis and 

during the wet season. The final method 

is based on two general nutrient 

models.196 Targets for chlorophyll a are 

set based on the reference period 

mentioned earlier for the north and 

central segments and the optical model 

for the southern segments. The reference 

method is used to derive the TN, TP, 

and chlorophyll a criteria for the 

Mosquito Lagoon with the other four 

methods providing supporting evidence. 

Two criteria magnitudes for TN, TP, and 

chlorophyll a are presented; one an 

annual median value and the other a 

wet season (July-September) median 

value. 

The approaches used for the Indian 

River Lagoon (IRL) and Banana River 

Lagoon (BRL) are similar to those used 

for Mosquito Lagoon. The approaches 

are based upon a weight of evidence 

relying on two general ecological 

relationships: (1) The link between 

nutrients, phytoplankton growth (as 

shown by chlorophyll a), and the 

trophic state of a system; and (2) the 

link between nutrients, phytoplankton 

growth (as shown by chlorophyll a), the 

effects of phytoplankton on light 

attenuation in the water column, the 

light requirements of seagrasses, and the 

previously established depth limit for 

seagrasses. The influence of TP on HAB 

events is also discussed as an ancillary 

line of evidence. As a first line of 

evidence loading limits are derived 

based on analyses done for TMDLs in 

2009. The loading limits were 

established using regression models that 

regress seagrass depth limit targets 

against loading of TN and TP.197 The 

second method used annual medians of 

data from reference segments that meet 

desired depth thresholds established by 

the TMDL analyses. The third approach 

relies upon an optical model similar to 

the one described earlier for the 

Mosquito Lagoon using data from 1996– 

2007. A model was built for each of the 

sub-lagoons: The BRL, North IRL, and 

Central IRL (divided into Sebastian and 

South Central reaches). An optical 

model is in development for the North 

Central reach. The fourth approach also 

applies two general models to data 

specific to the IRL and BRL.198 Where 

the Dettmann (2001) model could not be 

used to predict TN concentrations, a 

TN:TP ratio for the given sublagoon was 

applied to the TP limit to calculate TN 

limits. The fifth approach relies upon 

the relationship between HAB 

occurrence and TP concentrations. 

Targets for chlorophyll a are presented 

as a range of values established using 

the optical model approach and the 

reference segment approach. Proposed 

TN and TP loading criteria are based on 

the loading limits established using the 

TMDL analyses. Primary proposed TN 

and TP criteria concentrations are 

calculated based on the reference 

segment method. Alternate criteria are 

proposed using a convergence of the 

concentrations calculated by the 

reference segment method and general 

models. Two criteria magnitudes are 

proposed, one for an annual median and 

the other for a wet season (June– 

October) monthly maximum. 

The SJRWMD proposed criteria for 

the Tolomato and Matanzas Estuary 

(TME) using a weight of evidence 

approach and methods similar to those 

used in the other estuaries. TN and TP 

concentrations and chlorophyll a target 

concentrations are based on an 

approach that analyzes water quality 

and estimated current loading during a 

reference period from 2000–2009. The 

period of reference was selected based 

on a desirable TSI score (<50), rainfall 

amounts typical of average conditions, 

and completeness of the data record. 

Criteria magnitudes are proposed as an 

annual median or mean and a maximum 

wet season (June–September) median or 

mean. The reference period approach of 

criteria derivation for the TME is 

supported by an additional line of 

evidence using regression analyses of 

chlorophyll a versus TN and TP. Target 

chlorophyll a values are based on the 

reference period analyses. The general 

nutrient models of Steward and Lowe 

(2010) and Dettmann (2001) are also 

used as an additional method by which 

to estimate loading limits and 

concentrations associated with those 

limits. 

The SJRWMD also derived proposed 

criteria for the Halifax River Estuary. 

SJRWMD derived criteria using three 

methods. The first is a reference 

condition based on the period from 

2000–2008. This period is selected 

because of the low TN levels compared 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74955 

199Boynton, W.R., J.D. Hagy, L. Murray, C. 

Stokes, and W.M. Kemp. 1996. A comparative 

analysis of eutrophication patterns in a temperate 

coastal lagoon. Estuaries 19(2B):408–421. 

to the previous decade, the low 

chlorophyll a concentrations which are 

consistent with chlorophyll a targets 

established for other estuaries 

throughout the State, and the ‘‘good’’ 

trophic status shown by TSI values less 

than 50. Concentrations are calculated 

using annual median concentrations 

and maximum wet-season median 

concentrations (as the highest monthly 

values from July–September) of TN, TP, 

and chlorophyll a. Simple linear 

regressions are used as a second line of 

evidence to calculate TN and TP criteria 

based on chlorophyll a targets 

established by the reference period 

calculations. The general nutrient 

models of Steward and Lowe (2010) and 

Dettmann (2001) are used as a final 

method by which to estimate loading 

limits and concentrations associated 

with those limits. Proposed loading and 

concentration criteria for the North 

Halifax River Estuary are based on the 

loading and concentration estimates of 

the general nutrient models, with 

estimates of loadings from wastewater 

treatment facilities in the estuary 

removed to represent reference 

conditions. The current estimated 

concentrations (ca. 2004) of TN and TP 

based on the reference approach are 

proposed as criteria for the South 

Halifax River Estuary. Target 

chlorophyll a values for both segments 

are calculated using the reference period 

approach. 

EPA is also considering the use of 

approaches outlined in Steward et al. 

(2005) to derive criteria in Indian River 

Lagoon. In particular EPA is considering 

using the depth of colonization within 

reference segments as ‘‘upper 

restoration depths’’ and the highest 

value observed for a specific segment as 

a minimum target for that segment. For 

more information regarding the 

derivation of these criteria, please see 

the TSD (Volume 1: Estuaries, Sections 

2.18.9 (Indian River Lagoon), 2.19.9 

(Halifax River), 2.20.9 (GTMP), and 

2.21.9 (St Johns River)). 

(3) Request for Comment on Proposed 

and Alternative Approaches 

EPA believes that the proposed 

approach for each estuarine system is 

appropriate, scientifically defensible, 

and results in numeric nutrient criteria 

that protect the State’s designated uses 

to ensure that nutrient concentrations of 

a body of water support balanced 

natural populations of aquatic flora and 

fauna. EPA requests comment on this 

system-specific approach and the 

resulting numeric nutrient criteria. EPA 

also solicits additional available 

scientific information that can be used 

to derive numeric nutrient criteria to 

provide protection of fish consumption, 

recreation, and the propagation and 

maintenance of a healthy, well-balanced 

population of fish and wildlife and 

protect Florida’s Class II and III 

estuarine waters from nitrogen and 

phosphorus pollution. 

In addition, EPA requests comment 

on the alternative approaches developed 

by the St. Johns River Water 

Management District for waters under 

their jurisdiction. Specifically, EPA 

requests comment on the scientific 

defensibility of these approaches, as 

well as whether application of these 

approaches will result in numeric 

nutrient criteria that will protect Class 

II and III estuarine waters in the State 

of Florida. EPA also requests comment 

on promulgating the alternative criteria 

in lieu of EPA’s proposed criteria. 

(b) Proposed Criteria Duration and 

Frequency (Estuaries) 

Aquatic life water quality criteria 

include magnitude, duration, and 

frequency components. For EPA’s 

proposed TN, TP, and chlorophyll a 

criteria for estuarine waters, the 

criterion-magnitude values (expressed 

as concentrations) are provided in Table 

III.B–1, the criterion-duration (or 

averaging period) is specified as annual, 

and the criterion-frequency is specified 

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

excursion frequency of the annual 

geometric mean. EPA is proposing a 

criteria-duration of one year, in which 

sampled nutrient concentrations are 

summarized as annual geometric means 

to be consistent with the data set used 

to derive these criteria, which relied on 

either annual average nutrient 

concentrations or annual nutrient 

loading to the water body. EPA’s 

proposed excursion frequency of nomore-than-once-every-three-years is 

intended to minimize negative effects 

on designated uses as it will allow water 

bodies enough time to recover from 

occasionally elevated levels of nitrogen 

and phosphorus concentrations.199

These duration and frequency 

components of the criteria are identical 

to those finalized in EPA’s rule for 

Florida’s lakes and flowing waters (40 

CFR section 131.43), which will add 

consistency to the implementation of 

these criteria with those established in 

the previous rulemaking for upstream 

waters. Finally, the 3-year evaluation 

period provides a sufficient 

representation of average water body 

characteristics in the majority of cases, 

because it balances both short-term and 

long-term variation, while not imposing 

undue monitoring expectations. EPA 

requests comment on the frequency and 

duration components of these criteria 

and whether the three components of 

the criteria (magnitude, duration, and 

frequency) taken in combination will 

ensure protection of the designated uses 

of these waters. 

(c) Proposed DPVs (Estuaries) 

EPA is proposing a procedure to 

establish numeric TN and TP criteria for 

streams in Florida to protect the 

downstream estuarine water bodies that 

ultimately receive nitrogen and 

phosphorus pollution from these 

streams. These numeric nutrient 

criteria, which EPA refers to as 

Downstream Protection Values, or 

DPVs, would apply at each stream’s 

point of entry into the downstream 

water, referred to as the pour point. 

However, as explained more fully in 

Section I.A, EPA does not intend to 

finalize these DPVs if the district court 

modifies the Consent Decree consistent 

with EPA’s amended determination that 

numeric DPVs are not necessary to meet 

CWA requirements in Florida. EPA 

selected the pour point as the location 

to apply DPVs because the downstream 

waters respond to the nutrient inputs 

from the pour point, and all 

contributions from the network of 

flowing waters above this point affect 

the water quality at the pour point. If 

the DPV is not attained at the point of 

entry into the estuary, then the 

collective set of streams in the upstream 

watershed does not attain the DPV, for 

purposes of CWA section 303(d). 

The Agency is proposing a 

hierarchical procedure that includes 

four approaches for setting TN and TP 

DPVs. EPA’s intention in proposing the 

four approaches is to provide a range of 

methods for the State to derive TN and 

TP DPVs that reflect the data and 

scientific information available. Water 

quality modeling is the most rigorous 

and most data-demanding method, and 

will generally result in the most refined 

DPVs. Water quality modeling is EPA’s 

preferred method for establishing DPVs 

and is listed first in the hierarchy. It is 

followed by less rigorous methods that 

are also less data-demanding. Using a 

procedure from a lower tier of the 

hierarchy requires less data, but also 

generally results in more stringent DPVs 

to account for the uncertainties 

associated with these less refined 

procedures. The methods available to 

derive DPVs should be considered in 

the following order: 

1. Water quality simulation models to 

derive TN and TP values, 


tkelley on DSK3SPTVN1PROD with 
74956 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

200 65 FR 24641, 24648 (April 27, 2000). 

2. Reference condition approach 

based on TN and TP concentrations at 

the stream pour point, coincident in 

time with the data record from which 

the downstream receiving estuary 

segment TN and TP criteria were 

developed using the same data quality 

screens and reference condition 

approach, 

3. Dilution models based on the 

relationship between salinity and 

nutrient concentration in the receiving 

segment, and 

4. The TN and TP criteria from the 

receiving estuary segment to which the 

freshwater stream discharges, in cases 

where data are too limited to apply the 

first three approaches. 

All four approaches are briefly 

described in the following discussion. A 

more detailed description of the 

approaches, as well as the TN and TP 

DPVs that result from using each of the 

approaches, is provided in the technical 

support document (Volume 1: Estuaries, 

Section 1.6). 

EPA believes that the first approach, 

the use of water quality simulation 

models, is the most refined method to 

define a DPV at the stream’s pour point 

that will support balanced natural 

populations of aquatic flora and fauna 

in the downstream estuary. This 

approach may be appropriate when 

water quality simulation models are 

available, such as in the estuarine 

systems where mechanistic models were 

used to derive criteria. The modeled 

nutrient loads entering the estuaries that 

result in attainment of the biological 

endpoints within the estuaries can be 

used to derive DPVs by computing the 

annual geometric mean TN and TP 

concentrations that correspond with the 

modeled loads at the pour point of each 

stream for each of the years 2002 

through 2009. Because EPA used 

coupled watershed and estuarine 

models to establish the estuary criteria 

(in some locations), EPA is confident 

that the watershed modeling provides 

concentrations that are protective of 

corresponding estuarine biological 

endpoints. Therefore EPA selected the 

90th percentile from the distribution of 

annual geometric means of modeled 

loads as the DPV to be consistent with 

the use of the 90th percentile used to 

derive the criteria protective of the 

estuary using the mechanistic models 

(Volume 1: Estuaries, Section 1.6). 

EPA is proposing the second DPV 

approach, a reference condition 

approach, for estuarine systems where 

water quality simulation models are not 

available, and where a reference 

condition approach is used to derive 

estuary TN, TP, and chlorophyll a 

criteria. Since the downstream estuary 

is supporting balanced natural 

populations of aquatic flora and fauna 

during the reference condition period, 

the nutrient loads passing through the 

pour points into the estuary during that 

same period should be protective of the 

estuary. Therefore, EPA believes it 

would be appropriate in these cases to 

derive reference condition-based DPVs 

using water quality data at the pour 

point of the freshwater streams, 

coincident in time with the data record 

from which EPA derived the 

downstream estuary segment TN and TP 

criteria. EPA proposes that the same 

data screens and reference condition 

approach be applied to the pour point 

data as were applied to the estuary data 

when deriving DPVs using this 

approach. This will prevent deriving a 

DPV using upstream water quality data 

that coincided with a documented 

downstream impact (e.g., CWA section 

303(d) listing for nutrients in the estuary 

segment) and ensure mathematical 

consistency between the DPVs and 

estuarine criteria. 

EPA is proposing the third DPV 

approach for estuarine systems where 

water quality simulation models are not 

available. For example, this approach 

may be appropriate in the Indian River 

Lagoon, the Halifax River, and the 

GTMP estuarine systems where EPA 

used statistical models to derive the 

criteria protective of the estuary. In 

these areas, EPA believes it would be 

appropriate to derive DPVs using 

dilution models based on the 

relationship between salinity and 

nutrient concentration. The concept is 

that the tidal mixing or dilution can be 

estimated from the estuarine salinity. By 

plotting observed estuarine TN or TP 

versus the estuarine salinity and fitting 

a linear regression, the TN or TP at 

various levels of salinity can be 

determined. This regression model can 

then be used to determine the TN or TP 

concentration at the pour point that will 

ensure attainment and maintenance of 

the estuarine numeric nutrient criteria 

concentration. The TN and TP DPV for 

the inflowing canal or stream can be 

determined from the point on the 

regression line having the same salinity 

as the pour point, which is by definition 

2.7 psu. 

EPA’s fourth proposed approach for 

establishing DPVs is to apply the 

downstream receiving estuary segment 

TN and TP criteria as shown in Table 

III.B–1 to the pour point as the DPVs. 

This is the simplest approach and may 

be appropriate where data are too 

limited to apply the first three 

approaches. As noted in Table III.B–1, 

Florida derived numeric nutrient 

criteria for Clearwater Harbor, Tampa 

Bay, Sarasota Bay, and Charlotte Harbor 

estuaries that can be found in Section 

62–302.532(a)-(d), F.A.C. Therefore, the 

applicable DPVs for those four estuaries 

would be Florida’s estuary criteria in 

Section 62–302.532(a)-(d), F.A.C. if 

using this fourth proposed approach for 

establishing DPVs. 

EPA believes the proposed 

approaches for deriving DPVs establish 

a decision-making framework that is 

binding, clear, predictable, and 

transparent. Therefore, EPA is 

proposing that DPVs derived using these 

approaches do not require EPA approval 

under Clean Water Act section 303(c) to 

take effect.200 A DPV calculated under 

options 2, 3, and 4 may be more 

stringent than a DPV calculated using a 

water quality model. These alternative 

options are intended to ensure that 

water quality standards are not only 

restored when found to be impaired, but 

are maintained when found to be 

attained, consistent with the CWA. 

Higher levels of TN and/or TP may be 

allowed in watersheds where it is 

demonstrated that such higher levels 

will fully protect the estuary’s WQS. To 

the extent that it is determined that the 

alternative option DPVs for a given 

estuary are over-protective, applying a 

water quality model as set out in EPA’s 

option 1 would result in a more refined 

definition of the DPV for that estuary. 

EPA believes that these proposed 

approaches to establish DPVs are 

appropriate, scientifically defensible, 

and result in numeric values that will 

ensure the attainment and maintenance 

of the downstream estuarine criteria. 

EPA requests comment on these 

approaches. EPA also requests comment 

on the alternative approach of finalizing 

the numeric TN and TP DPVs that EPA 

calculated using these approaches (as 

provided in Volume 1: Estuaries, 

Section 1.6 of the technical support 

document) in place of the proposed 

approaches. Finally, EPA solicits 

additional available scientific 

information that can be used to ensure 

attainment and maintenance of the 

downstream estuarine criteria. 

Commenters who submitted comments 

or scientific information related to DPVs 

for estuaries during the public comment 

period for EPA’s proposed inland waters 

rule (75 FR 4173) should reconsider 

their previous comments in light of the 

new information presented in this 

proposal and must re-submit their 

comments during the public comment 

period for this rulemaking to receive 

EPA response. 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74957 

201EPA did not establish chlorophyll a criteria for 

freshwater streams due to lack of available 

approaches to interpret existing data to infer 

scientifically supported thresholds for these 

nutrient-specific response variables in Florida 

streams. 

(d) Proposed Approach and Criteria for 

Tidal Creeks 

Tidal creeks are relatively small 

coastal tributaries that lie at the 

transition zone between terrestrial 

uplands and the open estuary. They are 

small sub-estuaries that exhibit a wide 

range of salinities typical of larger 

estuaries, but on a smaller scale. Tidal 

creeks are important spawning and 

nursery areas for aquatic life in adjacent 

estuary and coastal systems. They 

typically receive freshwater flow from 

streams and groundwater, similar to 

estuaries, but have less developed 

drainage systems. Alternatively, some 

tidal creeks are dominated by 

mangroves and other wetland vegetation 

with no freshwater stream inputs, and 

serve as conduits for tidal water to enter 

and leave wetland areas. Water quality 

and biological conditions are different 

in tidal creeks compared to estuarine 

systems due to relatively small drainage 

areas, narrow stream channels, shallow 

depths, and the influence of adjacent 

marsh and mangrove habitats. 

EPA reviewed the available scientific 

information and has determined that 

there are insufficient data and research 

at this time to develop separate numeric 

nutrient criteria specifically for tidal 

creeks. EPA, therefore, proposes to 

apply the TN and TP criteria developed 

for either the adjacent freshwater or 

estuarine segments to each tidal creek in 

Florida, depending on the tidal creek’s 

salinity levels. If the mean chloride 

concentration of the tidal creek is < 

1,500 mg/L, EPA proposes to apply the 

TN and TP criteria from the adjacent 

freshwater segment (as defined in 40 

CFR 131.43).201 If the mean chloride 

concentration of the tidal creek is > 

1,500 mg/L, EPA proposes to apply the 

chlorophyll a, TN, and TP criteria from 

the adjacent estuary segment (as defined 

in Section III.B of this proposed 

rulemaking). Alternatively, EPA 

requests comment on applying the more 

stringent of the two sets of criteria, 

freshwater or estuarine, to tidal creeks 

with varying salinity levels. For more 

information please see the TSD (Volume 

1: Estuaries, Section 3.1). 

As a second alternative option, EPA 

could use the mean salinities for each 

tidal creek to interpolate TN and TP 

concentrations between freshwater and 

estuarine criteria from adjacent 

freshwater and estuarine segments. TN 

and TP vary predictably along a salinity 

gradient, allowing for this interpolation 

where salinity data are available. The 

calculation EPA could use for this 

interpolation is provided in the TSD 

(Volume 1: Estuaries, Section 3.1). 

EPA believes that the proposed 

approach for tidal creeks is appropriate, 

scientifically defensible, and results in 

numeric nutrient criteria that protect the 

State’s designated uses and ensure that 

nutrient concentrations of a body of 

water support balanced natural 

populations of aquatic flora and fauna. 

EPA requests comment on the proposed 

option and the alternative. EPA also 

requests additional available scientific 

information that can be used to provide 

protection for fish consumption, 

recreation, and the propagation and 

maintenance of a healthy, well-balanced 

population of fish and wildlife to 

protect Florida’s tidal creeks from 

nitrogen and phosphorus pollution. 

(e) Proposed Approach and Criteria for 

Marine Lakes 

Marine lakes are coastal lakes and 

ponds with groundwater or intermittent 

surface water connections to marine 

water. They do not have a permanent 

surface connection to tidal waters. They 

are small and shallow, and generally 

round or elliptical in shape, as they 

were formed from depressions that 

became isolated from marine waters by 

sand and dune formation. Some marine 

lakes are stratified by a salinity gradient 

where a freshwater layer at the surface 

is separated from a denser saline layer 

below. Similar to inland lakes, marine 

lakes in Florida are generally 

oligotrophic under undisturbed 

conditions with low nitrogen and 

phosphorus concentrations and low 

productivity. Their oligotrophic nature 

and stratification make them susceptible 

to the adverse effects of nitrogen and 

phosphorus pollution. EPA analyzed the 

data from over 50 marine lakes in 

Florida and found that chlorophyll a 

responded to TN and TP in a similar 

fashion, based on color and alkalinity, 

as freshwater inland lakes. Details and 

supporting documentation are provided 

in the TSD (Volume 1: Estuaries, 

Section 3.2). 

EPA is proposing to apply the criteria 

developed for freshwater inland lakes in 

EPA’s December 6, 2010 rulemaking for 

Florida’s lakes and flowing waters (40 

CFR 131.43) to protect the designated 

uses in marine lakes since marine lakes 

have a similar trophic condition 

expectation and chlorophyll a response 

to nutrient concentrations. The criteria 

EPA proposes to apply to marine lakes 

are those found in 40 CFR 131.43 and 

replicated in Table III.B–2. 

TABLE III.B–2—EPA’S PROPOSED NUMERIC CRITERIA FOR FLORIDA’S MARINE LAKES

Long term average lake color a and alkalinity EPA final 

Chl-a b,*μg/L 

EPA final TN and TP criteria 

[Range] 

TN 

mg/L 

TP 

mg/L 

Colored lakes c ..................................................................................................... 20 1.27 [1.27–2.23] 0.05 [0.05–0.16] 

Clear lakes, high alkalinity d ................................................................................. 20 1.05 [1.05–1.91] 0.03 [0.03–0.09] 

Clear lakes, low alkalinity e .................................................................................. 6 0.51 [0.51–0.93] 0.01 [0.01–0.03] 

aPlatinum-cobalt units (PCU) assessed as true color free from turbidity. 

b Chl-a is defined as corrected chlorophyll, or the concentration of chl-a remaining after the chlorophyll degradation product, phaeophytin a, has 

been subtracted from the uncorrected chl-a measurement. c Long-term color > 40 PCU and alkalinity > 20 mg/L CaCO3. d Long-term color ≤ 40 PCU and alkalinity > 20 mg/L CaCO3. e Long-term color ≤ 40 PCU and alkalinity ≤ 20 mg/L CaCO3

* For a water body, the annual geometric mean of chl-a, TN or TP concentrations shall not exceed the applicable criterion concentration more 

than once in a three-year period. 


tkelley on DSK3SPTVN1PROD with 
74958 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

EPA believes that the proposed 

approach for marine lakes is 

appropriate, scientifically defensible, 

and results in numeric nutrient criteria 

that protect the State’s designated uses 

and ensure that nutrient concentrations 

of a body of water support balanced 

natural populations of aquatic flora and 

fauna. EPA requests comment on the 

proposed approach. EPA also solicits 

additional available scientific 

information that can be used to provide 

protection for fish consumption, 

recreation, and the propagation and 

maintenance of a healthy, well-balanced 

population of fish and wildlife to 

protect Florida’s marine lakes from 

nitrogen and phosphorus pollution. 

C. Proposed Numeric Criteria for 

Coastal Waters 

1. Introduction 

EPA is defining coastal waters in this 

proposed rulemaking as marine waters 

that start at the land margin and extend 

up to three nautical miles from shore, 

with chloride concentrations greater 

than 1,500 mg/L, excluding estuaries. 

Unlike estuaries, which are typically 

highly influenced by freshwater flows 

and can be organized within 

boundaries, coastal waters are less 

confined, with open connections to 

ocean waters, and have localized 

influences from freshwater sources near 

the estuary/coastal boundary (i.e., 

estuary pass). 

EPA is proposing to derive 

chlorophyll a criteria for coastal waters 

using satellite remote sensing, where 

possible. This approach is possible for 

all coastal waters except those in the Big 

Bend Coastal region. In the Big Bend 

Coastal region (waters offshore of 

Apalachicola Bay, Alligator Harbor, 

Ochlockonee Bay, Big Bend/Apalachee 

Bay, Suwannee River, and Springs 

Coast), seagrass beds and CDOM export 

from rivers confound interpretation of 

satellite data and derivation of chlRS-a. 

EPA’s proposed approach and criteria 

for the Big Bend Coastal region is 

discussed in Section III.B. 

2. Proposed Numeric Criteria (Coastal 

Waters) 

EPA is proposing numeric 

chlorophyll a criteria, as measured by 

remotely sensed numeric chlorophyll a 

(chlRS-a), for 71 segments in three 

coastal regions of Florida classified as 

Class III waters under Florida law 

(Section 62–302.400, F.A.C.). A map 

showing the locations of the coastal 

segments can be found in the TSD 

(Volume 2: Coastal Waters, Section 1.3). 

EPA’s proposed coastal criteria are 

listed in Table III.C–1. 

TABLE III.C–1—EPA’S PROPOSED NUMERIC CRITERIA FOR FLORIDA’S COASTAL WATERS

Coastal region Coastal 

segment+ Approximate location ChlorophyllRS - a1* 

(mg/m3) 

Panhandle ............................................................... 1 Alabama border ...................................................... 2.41 

2 Pensacola Bay Pass .............................................. 2.57 

3 ................................................................................. 1.44 

4 ................................................................................. 1.16 

5 ................................................................................. 1.06 

6 ................................................................................. 1.04 

7 ................................................................................. 1.14 

8 Choctawhatchee Bay Pass .................................... 1.23 

9 ................................................................................. 1.08 

10 ................................................................................. 1.09 

11 ................................................................................. 1.11 

12 ................................................................................. 1.18 

13 ................................................................................. 1.45 

14 St. Andrews Bay Pass ........................................... 1.74 

15 St. Joseph Bay Pass .............................................. 2.75 

16 ................................................................................. 2.39 

17 Southeast St. Joseph Bay ..................................... 3.47 

West Florida Shelf .................................................. 18 ................................................................................. 3.96 

19 Tampa Bay Pass .................................................... 4.45 

20 ................................................................................. 3.37 

21 ................................................................................. 3.25 

22 ................................................................................. 2.95 

23 ................................................................................. 2.79 

24 ................................................................................. 2.98 

25 ................................................................................. 3.24 

26 Charlotte Harbor ..................................................... 4.55 

27 ................................................................................. 4.22 

28 ................................................................................. 3.67 

29 ................................................................................. 4.16 

30 ................................................................................. 5.70 

31 ................................................................................. 4.54 

32 ................................................................................. 4.03 

33 Fort Myers .............................................................. 4.61 

Atlantic Coast .......................................................... 34 Biscayne Bay ......................................................... 0.92 

35 ................................................................................. 0.26 

36 ................................................................................. 0.26 

37 ................................................................................. 0.24 

38 ................................................................................. 0.21 

39 ................................................................................. 0.21 

40 ................................................................................. 0.20 

41 ................................................................................. 0.20 

42 ................................................................................. 0.21 

43 ................................................................................. 0.25 

44 ................................................................................. 0.57 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74959 

202NOTE: SeaWiFS was replaced by MODIS and 

MERIS satellite generated data. EPA has developed 

an approach that can utilize any new satellite data 

sources for ongoing assessment purposes. 

TABLE III.C–1—EPA’S PROPOSED NUMERIC CRITERIA FOR FLORIDA’S COASTAL WATERS—Continued 

Coastal region Coastal 

segment+ Approximate location ChlorophyllRS - a1* (mg/m3) 

45 St. Lucie Inlet ......................................................... 1.08 

46 ................................................................................. 1.42 

47 ................................................................................. 1.77 

48 ................................................................................. 1.55 

49 ................................................................................. 1.44 

50 ................................................................................. 1.53 

51 ................................................................................. 1.31 

52 ................................................................................. 1.40 

53 ................................................................................. 1.80 

54 Canaveral Bight ...................................................... 2.73 

55 ................................................................................. 2.33 

56 ................................................................................. 2.28 

57 ................................................................................. 2.06 

58 ................................................................................. 1.92 

59 ................................................................................. 1.76 

60 ................................................................................. 1.72 

61 ................................................................................. 2.04 

62 ................................................................................. 1.92 

63 ................................................................................. 1.86 

64 ................................................................................. 1.95 

65 ................................................................................. 2.41 

66 ................................................................................. 2.76 

67 ................................................................................. 2.80 

68 ................................................................................. 3.45 

69 Nassau Sound ........................................................ 3.69 

70 ................................................................................. 3.78 

71 Georgia border ....................................................... 4.22 

1 ChlorophyllRS-a is remotely sensed calculation of chlorophyll a concentrations. 

* For a given water body, the annual geometric mean of the chlorophyll a concentration shall not exceed the applicable criterion concentration 

more than once in a three-year period. +Please see TSD for location of Coastal Segments (Volume 2: Coastal Waters, Section 1.3). 

As discussed in Section III.A.1.b, EPA 

is not proposing TN and TP criteria for 

Florida’s coastal waters. 

(a) Summary of Approaches 

(1) Proposed Approach (Coastal Waters) 

EPA conducted a comprehensive 

review of water body-specific water 

quality and impairment information as 

detailed in Section III.A.3.a. EPA 

determined through this review that at 

most times, Florida coastal waters 

appear to be supporting balanced 

natural populations of aquatic flora and 

fauna. EPA removed data from criteria 

computations in the limited instances 

where the Agency found that coastal 

waters were listed on the State’s CWA 

section 303(d) list to ensure the 

resulting dataset was representative of 

times and locations that these waters 

were supporting balanced natural 

populations of aquatic flora and fauna. 

Therefore, EPA is proposing to use a 

reference condition approach using data 

collected from satellite remote sensing 

of chlorophyll a. 

To derive proposed criteria for coastal 

areas, EPA chose to use chlRS-a 

measurements from the SeaWiFS 

satellite because it had the longest and 

earliest historical record.202 From the 

satellite measurements, screened to 

reflect conditions supportive of 

balanced natural populations of flora 

and fauna, EPA calculated criteria as the 

90th percentile of the annual geometric 

means of chlRS-a values over the 1998– 

2009 period in each coastal segment 

(For a discussion of EPA’s selection of 

the 90th percentile to derive the 

proposed coastal criteria, see Section 

III.A.3.a and the TSD (Volume 2: Coastal 

Waters)). 

(b) Request for Comment on Proposed 

Approach 

EPA believes that the proposed 

approach for coastal waters is 

appropriate, scientifically defensible, 

and results in numeric nutrient criteria 

that protect the State’s designated uses 

and ensure that nutrient concentrations 

of a body of water support balanced 

natural populations of aquatic flora and 

fauna. EPA requests comment on this 

approach and the resulting numeric 

nutrient criteria. EPA also solicits 

additional available scientific 

information that can be used to provide 

protection of fish consumption, 

recreation and the propagation and 

maintenance of a healthy, well-balanced 

population of fish and wildlife and 

protect Florida’s Class III coastal waters 

from nitrogen and phosphorus 

pollution. 

(c) Proposed Criteria Duration and 

Frequency (Coastal Waters) 

For EPA’s proposed chlorophyll a 

criteria for coastal waters, the criterionmagnitude values (expressed as 

concentrations) are provided in Table 

III.C–1, the criterion-duration (or 

averaging period) is specified as annual, 

and the criterion-frequency is specified 

as no-more-than-once-every-three-years. 

EPA is proposing a criteria-duration of 

one year, in which sampled chlorophyll 

a concentrations are summarized as 

annual geometric means, to be 

consistent with the data set used to 

derive these criteria, which relied on 

annual average concentrations. EPA’s 

proposed excursion frequency of nomore-than-once-every-three-years is 

intended to minimize negative effects 

on designated uses as it will allow water 

bodies enough time to recover from 

occasionally elevated chlorophyll a 


tkelley on DSK3SPTVN1PROD with 
74960 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

203Boynton, W.R., J.D. Hagy, L. Murray, C. 

Stokes, and W.M. Kemp. 1996. A comparative 

analysis of eutrophication patterns in a temperate 

coastal lagoon. Estuaries 19(2B):408- 421. 

204 Miccosukee Tribe of Indians of Fla., et al. v. 

U.S. EPA, No. 1:04-cv-21448 ASG, 2008 WL 

2967654 (S.D. Fla. July 29, 2008). 

concentrations.203 These duration and 

frequency components of the criteria are 

identical to those finalized in EPA’s rule 

for Florida’s lakes and flowing waters 

(40 CFR 131.43), which will add 

consistency to the implementation of 

these criteria with those established in 

the previous rulemaking. Finally, the 3- 

year evaluation period provides a 

sufficient representation of average 

water body characteristics in the 

majority of cases, because it balances 

both short-term and long-term variation, 

while not imposing undue monitoring 

expectations. EPA requests comment on 

the frequency and duration components 

of these criteria and whether the three 

components of the criteria (magnitude, 

duration and frequency) taken in 

combination will ensure protection of 

the designated uses of these waters. 

D. Proposed Numeric Criteria for South 

Florida Inland Flowing Waters 

1. Proposed Numeric Criteria (South 

Florida Inland Flowing Waters) 

For purposes of this proposal, EPA is 

defining ‘‘south Florida inland flowing 

waters’’ as inland predominantly fresh 

surface waters that have been classified 

as Class I or Class III in the South 

Florida Nutrient Watershed Region, 

which encompasses the waters south of 

Lake Okeechobee, the Caloosahatchee 

River (including Estero Bay) watershed, 

and the St. Lucie watershed. This area 

contains more than 1,700 miles (2,736 

km) of canals, dikes, and levees that 

control the movement of freshwater in 

south Florida. Some of the significant 

land management units within south 

Florida include the Everglades 

Agricultural Area, the Loxahatchee 

National Wildlife Refuge (Water 

Conservation Area 1), Water 

Conservation Areas 2 and 3, Big Cypress 

National Preserve, Everglades National 

Park, Biscayne Bay National Park, and 

the Florida Keys National Marine 

Sanctuary. A map showing this region is 

provided in the TSD (Volume 3: South 

Florida Inland Flowing Waters, Section 

3). 

EPA is proposing that TN and TP 

DPVs be derived using the approaches 

outlined in Section III.D.2 for 22 pour 

points in south Florida, outside of the 

Everglades Protection Area (EvPA) and 

Everglades Agricultural Area (EAA), 

where inland flowing waters discharge 

into south Florida marine waters 

(Biscayne Bay, Florida Bay, and marine 

waters on the southeast and southwest 

coasts). For south Florida, EPA is 

proposing the use of DPVs to manage 

nitrogen and phosphorus pollution in 

the inland flowing waters and protect 

the water quality of estuaries and 

coastal waters downstream. Therefore, 

the applicable numeric nutrient criteria 

for south Florida inland flowing waters, 

outside the lands of the Miccosukee and 

Seminole Tribes, EvPA, and the EAA, 

would consist solely of the south 

Florida marine water DPVs. The 

calculated DPVs using the approaches 

in Section III.D.2 for the 22 pour points 

are presented in the TSD (Volume 3: 

South Florida Inland Flowing Waters, 

Section 2). 

The proposed approaches to derive 

DPVs that EPA is proposing for south 

Florida inland flowing waters do not 

apply to flowing waters (canals) within 

the EvPA or the EAA. There is an 

existing TP criterion of 0.010 mg/L (10 

ppb) that currently applies to the 

marshes and adjacent canals within the 

EvPA (Section 61–302.540, F.A.C.). EPA 

approved that TP criterion in 2005 as 

protective of the waters in the EvPA. 

EPA’s approval was upheld by the U.S. 

District Court in Miccosukee Tribe of 

Indians of Florida, et al. v. U.S. EPA.204

For this proposal, EPA has determined 

that the existing TP criterion continues 

to be protective of the designated uses 

of the flowing waters in the EvPA and 

that no additional numeric nutrient 

criteria are necessary at this time for the 

EvPA. While the existing TP criterion 

does not apply directly to the flowing 

waters of the EAA, EPA has also 

determined that the TP criterion will 

serve to be protective of the designated 

uses of the flowing waters in the EAA. 

Most of the water flowing from the EAA 

currently passes through stormwater 

treatment areas (STAs) that have been 

specifically constructed to remove 

phosphorus from the water before it 

enters the EvPA. The waters discharging 

from the STAs are subject to CWA 

discharge permits that must include 

limits as stringent as necessary to meet 

the 10 ppb TP criterion in the EvPA. 

Efforts to reduce phosphorus upstream 

of the STAs (i.e., in the EAA) are 

currently underway to ensure the water 

discharged from the STAs will meet the 

TP criterion in the EvPA. Based on the 

combination of the actions that will be 

necessary to ensure that waters from the 

EAA do not cause an impairment of the 

downstream waters in the EvPA, EPA 

has determined that the existing TP 

criterion is the only numeric nutrient 

criterion that is necessary to protect the 

flowing waters of the EAA as well as the 

EvPA. Development of water quality 

standards for the EvPA and restoration 

actions within the EAA to attain the TP 

criterion have been and remain subject 

to the oversight of two federal district 

courts. EPA believes its decision not to 

propose additional numeric nutrient 

criteria for these areas is appropriate 

given the ongoing restoration efforts in 

the Everglades. For further information 

about ongoing EPA and FDEP actions 

related to Everglades restoration see: (1) 

http://www.epa.gov/aboutepa/states/ 

fl.html, and (2) http:// 

depnewsroom.wordpress.com/hottopics/everglades/. 

2. Proposed DPVs (South Florida) 

EPA is proposing a procedure to 

establish numeric TN and TP criteria for 

south Florida inland flowing waters to 

protect the downstream marine waters 

that ultimately receive nitrogen and 

phosphorus pollution from upstream 

sources. However, as explained more 

fully in Section I.A, EPA does not 

intend to finalize these DPVs if the 

district court modifies the Consent 

Decree consistent with EPA’s amended 

determination that numeric DPVs are 

not necessary to meet CWA 

requirements in Florida. Like the DPVs 

that EPA is proposing to protect 

estuaries in Florida, EPA is proposing 

the DPVs for south Florida inland 

flowing waters that will apply at each 

stream or canal’s point of entry into the 

downstream south Florida marine 

water. If the DPV is not attained at the 

pour point into the applicable marine 

water segment, then the collective set of 

flowing waters, including canals, in the 

upstream watershed does not attain the 

DPV, for purposes of CWA section 

303(d). 

The Agency is proposing a 

hierarchical procedure that includes 

four approaches for setting TN and TP 

DPVs. These are the same approaches 

EPA is proposing for the State to derive 

DPVs for Florida estuaries to reflect the 

data and scientific information 

available. The methods available to 

derive DPVs should be considered in 

the following order: 

1. Water quality simulation models to 

derive TN and TP values, 

2. Reference condition approach 

based on TN and TP concentrations at 

the stream pour point, coincident in 

time with the data record from which 

the downstream receiving marine water 

segment TN and TP criteria were 

developed using the same data quality 

screens and reference condition 

approach, 

3. Dilution models based on the 

relationship between salinity and 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74961 

205 65 FR 24641, 24647 (April 27, 2000). 

nutrient concentration in the receiving 

segment, and 

4. The TN and TP criteria from the 

receiving marine water segment to 

which the freshwater stream discharges, 

in cases where data are too limited to 

apply the first three approaches. 

EPA’s intention in proposing the four 

approaches is to provide a range of 

methods for deriving TN and TP DPVs 

that reflect the degree of data and 

scientific information available. Water 

quality modeling is the most rigorous 

and most data-demanding method, and 

will generally result in the most refined 

DPVs. Water quality modeling is EPA’s 

preferred method for establishing DPVs 

and is listed first in the hierarchy. Due 

to the highly modified and managed 

canal systems in south Florida, EPA did 

not develop mechanistic models for the 

region, however, EPA is including the 

option for use if mechanistic models are 

developed for south Florida in the 

future. EPA’s lead approach for 

calculating DPVs in south Florida is the 

reference condition approach. This 

approach is followed by less rigorous 

methods that are also less datademanding. Using a procedure from a 

lower tier of the hierarchy requires less 

data, but also generally results in more 

stringent DPVs to account for the 

uncertainties associated with these less 

refined procedures. 

All four approaches are briefly 

described in the following discussion. A 

more detailed description of the 

approaches, as well as the TN and TP 

DPVs that result from using the lead 

approach, the reference condition 

approach, is provided in the technical 

support document (Volume 3: South 

Florida Inland Flowing Waters, Section 

2). 

EPA believes that the first approach, 

the use of water quality simulation 

models, is the most refined method to 

define a DPV at the stream’s pour point 

that will support balanced natural 

populations of aquatic flora and fauna 

in the downstream marine water. This 

approach may be appropriate when 

water quality simulation models are 

available, such as in the estuarine 

systems where mechanistic models were 

used to derive the criteria protective of 

the estuary. 

EPA is proposing the second DPV 

approach, the reference condition 

approach, where a reference condition 

approach is used to derive TN, TP, and 

chlorophyll a criteria in the downstream 

marine water, as the lead approach for 

calculating DPVs in south Florida. 

Florida derived numeric nutrient 

criteria for TN, TP, and chlorophyll a in 

south Florida marine waters using a 

‘‘Maintain Healthy Conditions 

Approach,’’ which derives criteria 

reflective of ambient water quality 

conditions (Section 62–302.532, F.A.C.). 

This approach is akin to EPA’s reference 

condition approach, which is designed 

to develop numeric nutrient criteria that 

are protective of applicable designated 

uses by identifying numeric nutrient 

criteria concentrations occurring in 

least-disturbed waters that are 

supporting designated uses. Since the 

downstream marine water is supporting 

balanced natural populations of aquatic 

flora and fauna during the reference 

condition period, the nutrient loads 

passing through the pour points into the 

marine water during the same period 

should be protective of the marine 

water. Therefore, EPA believes it would 

be appropriate in these cases to derive 

reference condition-based DPVs using 

water quality data at the pour point of 

the freshwater streams, coincident in 

time with the data record from which 

the downstream marine water segment 

TN and TP criteria were derived. EPA 

proposes that water quality data used to 

calculate DPVs at each pour point be 

screened to prevent the use of upstream 

water quality data that coincided with a 

documented downstream impact. This 

will prevent deriving a DPV using 

upstream water quality data that 

coincided with a documented 

downstream impact (e.g., CWA section 

303(d) listing for nutrients in the marine 

water segment) and ensure 

mathematical consistency between the 

DPVs and marine water criteria. 

The third DPV approach is also 

available for south Florida marine 

systems where water quality simulation 

models are not available. In these areas, 

EPA believes it would be appropriate to 

derive DPVs using dilution models 

based on the relationship between 

salinity and nutrient concentration. The 

concept is that the tidal mixing or 

dilution can be estimated from the 

marine water salinity. By plotting 

observed marine water TN or TP versus 

the marine water salinity and fitting a 

linear regression, the TN or TP at 

various levels of salinity can be 

determined. This regression model can 

then be used to determine the TN or TP 

concentration at the pour point 

associated with the average marine 

water salinity that will ensure the 

attainment and maintenance of the 

marine water numeric nutrient criteria 

concentration. 

EPA’s fourth approach for 

establishing DPVs is to apply the 

downstream receiving marine water 

segment TN and TP criteria to the pour 

point as the DPVs. This is the simplest 

approach and may be appropriate where 

data are too limited to apply the first 

three approaches. Florida derived 

numeric nutrient criteria for south 

Florida marine waters that can be found 

in Section 62–302.532(e)–(h), F.A.C. 

Therefore, the applicable DPVs for those 

south Florida marine waters would be 

Florida’s criteria in Section 62– 

302.532(e)–(h), F.A.C. if using this 

fourth proposed approach for 

establishing DPVs. 

EPA believes the proposed 

approaches for deriving DPVs establish 

a decision-making framework that is 

binding, clear, predictable, and 

transparent. Therefore, EPA is 

proposing that DPVs derived using these 

approaches do not require EPA approval 

under Clean Water Act section 303(c) to 

take effect.205 A DPV calculated under 

options 2, 3, and 4 may be more 

stringent than a DPV calculated using a 

water quality model. These alternative 

options are intended to ensure that 

water quality standards are not only 

restored when found to be impaired, but 

are maintained when found to be 

attained, consistent with the CWA. 

Higher levels of TN and/or TP may be 

allowed in watersheds where it is 

demonstrated that such higher levels 

will fully protect the marine water’s 

WQS. To the extent that it is determined 

that the alternative option DPVs for a 

given marine water are over-protective, 

applying a water quality model as set 

out in EPA’s option 1 would result in a 

more refined definition of the DPV for 

that marine water. 

EPA believes that these proposed 

approaches to establish DPVs are 

appropriate, scientifically defensible, 

and result in numeric values that will 

ensure the attainment and maintenance 

of the downstream south Florida marine 

water criteria. EPA requests comment 

on these approaches. EPA also requests 

comment on the alternative approach of 

finalizing the numeric TN and TP DPVs 

that EPA calculated using these 

approaches (as provided in Volume 3: 

South Florida Inland Flowing Waters, 

Section 2 of the technical support 

document) in place of the proposed 

approaches. Finally, EPA solicits 

additional available scientific 

information that can be used to ensure 

attainment and maintenance of the 

downstream south Florida marine water 

criteria. Commenters who submitted 

comments or scientific information 

related to DPVs for estuaries during the 

public comment period for EPA’s 

proposed inland waters rule (75 FR 

4173) should reconsider their previous 

comments in light of the new 

information presented in this proposal 

and must re-submit their comments 


tkelley on DSK3SPTVN1PROD with 
74962 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

206Havens, K.E. and W.W. Walker. 2002. 

Development of a total phosphorus concentration 

goal in the TMDL process for Lake Okeechobee, 

Florida (USA). Lake and Reservoir Management 

18(3):227–238. 

during the public comment period for 

this rulemaking to receive EPA 

response. 

(a) Alternative Approach (South Florida 

Inland Flowing Waters) 

As an alternative to EPA’s proposed 

DPV-only approach for south Florida 

inland flowing waters, EPA developed 

protective instream TN and TP criteria 

for Class I and III flowing waters 

(including canals and streams) in three 

inland subregions in south Florida 

(Biscayne, Palm Beach, and West) that 

are outside the lands of the Miccosukee 

and Seminole Tribes, EAA, and EvPA. 

EPA’s alternative criteria for south 

Florida inland flowing waters are listed 

in Table III.D–1. 

TABLE III.D–1—EPA’S ALTERNATIVE

NUMERIC CRITERIA FOR SOUTH

FLORIDA’S INLAND FLOWING WATERS

Subregion TN 

(mg/L) 

TP 

(mg/L) 

Biscayne ........................... 2 0.052 

Palm Beach ...................... 2 0.052 

West .................................. 2 0.052 

EPA defined the boundaries of these 

three subregions based on patterns in 

geology/soils, hydrology, and 

vegetation. EPA compiled data for these 

subregions from IWR Run 40 and the 

South Florida Water Management 

District’s DBHydro database. EPA 

screened the data to include freshwater 

locations and Class III waters, resulting 

in 4,758 daily averages with matched 

chl-a, TN, and TP data. 

Next, EPA chose to evaluate algal 

biomass, as indicated by chlorophyll a 

concentrations, as a sensitive endpoint 

for numeric nutrient criteria 

development. Nutrient pollution can 

increase biomass of primary producers, 

especially algae, and have subsequent 

negative impacts on recreation and 

aquatic life. The application of algal 

biomass as an endpoint for criteria 

derivation in south Florida inland 

flowing waters, including canals, might 

be appropriate given the following 

observations: (1) Flow in these water 

bodies is frequently reduced, leading to 

long residence times; (2) canopy cover 

is reduced both naturally and through 

manipulation, reducing light limitation; 

and (3) nutrient concentrations are 

elevated. Because both average 

chlorophyll a concentrations and 

instantaneous chlorophyll a 

concentrations (e.g. bloom conditions) 

can impact recreation and aquatic life, 

EPA chose to derive TN and TP criteria 

to reduce the likelihood of increased 

nuisance algal blooms by relating 

maximum chlorophyll a to average 

annual chlorophyll concentrations. EPA 

defined nuisance algal bloom conditions 

as concentrations above 30 mg/L using 

trophic state boundaries, user 

perception studies, and observed 

impacts. EPA evaluated existing 

scientific literature on the frequency of 

occurrence of chlorophyll a levels, and 

selected a 10 percent occurrence of 

nuisance algal blooms as the maximum 

allowable frequency to prevent 

impairment of recreation and aquatic 

life in the three south Florida inland 

subregions.206

EPA then used statistical models to 

derive TN and TP criteria to limit the 

frequency of occurrence of nuisance 

algal blooms in these waters, defined by 

chlorophyll a concentrations above 30 

mg/L. The resulting TN and TP criteria 

represent the annual geometric mean of 

TN and TP concentrations from flowing 

waters in each of the three subregions 

that are associated with a 10 percent or 

lower frequency of nuisance algal bloom 

occurrence. If EPA were to finalize this 

alternative approach instead of EPA’s 

lead approach, these TN and TP criteria 

would apply throughout the flowing 

waters in each of the three subregions, 

not just at the pour points. If criteria are 

calculated using this alternative 

approach, DPVs for protecting 

downstream south Florida marine 

waters will still be calculated using the 

hierarchical approach in Section III.D.2, 

unless, as described more in Section I.A, 

the district court modifies the Consent 

Decree consistent with EPA’s amended 

determination that numeric DPVs are 

not necessary to meet CWA 

requirements in Florida. Additional 

details on this alternative approach are 

provided in the TSD (Volume 3: South 

Florida Inland Flowing Waters, Section 

3). 

(b) Request for Comment on Proposed 

and Alternative Approaches 

EPA believes that the proposed 

approach for south Florida inland 

flowing waters is appropriate, 

scientifically defensible, and results in 

the protection of south Florida inland 

flowing waters. EPA requests comment 

on this approach. EPA also solicits 

additional available scientific 

information that can be used to provide 

protection of fish consumption, 

recreation and the propagation and 

maintenance of a healthy, well-balanced 

population of fish and wildlife in south 

Florida’s Class I and III inland flowing 

waters from nitrogen and phosphorus 

pollution. 

In addition, EPA requests comment 

on the alternative approach of deriving 

instream criteria for south Florida 

inland flowing waters outside of the 

lands of the Miccosukee and Seminole 

Tribes, EvPA, and EAA. Specifically, 

EPA requests comment on the scientific 

defensibility of this alternative approach 

as well as whether application of this 

approach will result in numeric nutrient 

criteria that protect the State’s 

designated uses and ensure that nutrient 

concentrations of a body of water 

support balanced natural populations of 

aquatic flora and fauna. 

Commenters who submitted 

comments or scientific information 

related to numeric nutrient criteria for 

south Florida inland flowing waters 

during the public comment period for 

EPA’s proposed inland waters rule (75 

FR 4173) should reconsider their 

previous comments in light of the new 

information presented in this proposal 

and must re-submit their comments 

during the public comment period for 

this rulemaking to receive EPA 

response. 

F. Applicability of Criteria When Final 

EPA proposes that the numeric 

nutrient criteria for Florida’s estuaries, 

coastal waters, and south Florida inland 

flowing waters described in this rule be 

effective for CWA purposes 60 days 

after EPA publishes final criteria, and 

apply in addition to any other criteria 

for Class I, II, or Class III waters already 

adopted by the State and submitted to 

EPA (and for those adopted after May 

30, 2000, approved by EPA). EPA 

requests comment on this proposed 

effective date. 

Additionally, EPA also requests 

comment on the alternative of a delayed 

effective date, such as the 15-month 

delayed effective date that EPA 

promulgated in the final inland waters 

rule. EPA subsequently further extended 

the effective date of the 2010 rule to 

allow time for FDEP to finalize and EPA 

to review Florida’s own numeric 

nutrient criteria rulemaking and reduce 

any administrative confusion and 

inefficiency that should occur if Federal 

criteria took effect while FDEP was 

finalizing or EPA was reviewing the 

State rulemaking. Florida’s newlyapproved State WQS include a schedule 

for future State rulemaking whereby 

they will develop numeric nutrient 

criteria for additional estuaries by June 

30, 2013 and again by June 30, 2015. If 

Florida is on schedule toward adoption 

of protective and approvable standards 

for their additional waters, EPA may 

consider delaying the effective date of 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74963 

its final rule to after June 30, 2015 to 

allow time for Florida to finalize and 

EPA to review the State’s numeric 

nutrient criteria. 

For water bodies that Florida has 

designated as Class I, II, and III, any 

final EPA numeric nutrient criteria will 

be applicable CWA water quality 

criteria for purposes of implementing 

CWA programs including permitting 

under the NPDES program, as well as 

monitoring and assessment, and 

establishment of TMDLs. The proposed 

criteria in this rule, when finalized, 

would be subject to Florida’s general 

rules of applicability to the same extent 

as are other State-adopted and/or 

federally-promulgated criteria for 

Florida waters. Furthermore, states have 

discretion to adopt general policies that 

affect the application and 

implementation of WQS (40 CFR 

131.13). There are many applications of 

criteria in Florida’s water quality 

programs. Therefore, EPA believes that 

it is not necessary for purposes of this 

proposed rule to enumerate each of 

them, nor is it necessary to restate any 

otherwise generally applicable 

requirements. 

It is important to note that no existing 

TMDL for waters in Florida will be 

rescinded or invalidated as a result of 

finalizing this proposed rule, nor will 

this proposed rule when finalized have 

the effect of withdrawing any prior EPA 

approval of a TMDL in Florida. Neither 

the CWA nor EPA regulations require 

TMDLs to be completed or revised 

within any specific time period after a 

change in water quality standards 

occurs. TMDLs are typically reviewed as 

part of states’ ongoing water quality 

assessment programs. Florida may 

review TMDLs at its discretion based on 

the State’s priorities, resources, and 

most recent assessments. NPDES 

permits are subject to five-year permit 

cycles, and in certain circumstances are 

administratively continued beyond five 

years. In practice, States often prioritize 

their administrative workload in 

permits. This prioritization could be 

coordinated with TMDL review. 

Because current nutrient TMDLs were 

established to protect Florida’s waters 

from the effects of nitrogen and 

phosphorus pollution, the same goal as 

EPA’s numeric nutrient criteria, the 

Agency believes that, absent specific 

new information to the contrary, it is 

reasonable to presume that basing 

NPDES permit limits on those TMDLs 

will result in effluent limitations as 

stringent as necessary to meet the 

federal numeric nutrient criteria. 

IV. Under what conditions will EPA 

either not finalize or withdraw these 

Federal standards? 

Under the CWA, Congress gave states 

primary responsibility for developing 

and adopting water quality standards for 

their navigable waters (CWA section 

303(a)–(c)). On June 13, 2012, FDEP 

submitted new and revised WQS for 

review by the EPA pursuant to section 

303(c) of the CWA. On November 30, 

2012, EPA approved the provisions of 

these rules submitted for review that 

constitute new or revised WQS (see 

Section II.F for additional information). 

Florida continues to have the option to 

adopt and submit to EPA numeric 

nutrient criteria for any of the State’s 

Class I, Class II, and Class III waters that 

are not covered in their June 13, 2012 

submission to EPA, consistent with 

CWA section 303(c) and implementing 

regulations at 40 CFR 131. Although 

EPA is proposing numeric nutrient 

criteria for Florida estuaries, coastal 

waters, and south Florida inland 

flowing waters, if EPA approves criteria 

that are legally effective under Florida 

law for any other waters covered in this 

proposed rule as fully satisfying the 

CWA before publication of the final 

rulemaking, EPA will not proceed with 

the final rulemaking for those waters. 

Also, EPA will not proceed with final 

rulemaking for numeric DPVs, provided 

that the district court modifies the 

Consent Decree consistent with EPA’s 

amended determination that numeric 

DPVs are not necessary to meet CWA 

requirements in Florida (see Section I.A 

for more information). 

Pursuant to 40 CFR 131.21(c), if EPA 

finalizes this proposed rule, EPA’s 

promulgated WQS become applicable 

WQS for purposes of the CWA on their 

effective date unless or until EPA 

withdraws those federally-promulgated 

WQS. Withdrawing the Federal 

standards for the State of Florida would 

require rulemaking by EPA pursuant to 

the requirements of the Administrative 

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

would undertake such a rulemaking to 

withdraw the Federal criteria if and 

when Florida adopts and EPA approves 

numeric nutrient criteria that fully meet 

the requirements of section 303(c) of the 

CWA and EPA’s implementing 

regulations at 40 CFR 131. If Florida 

adopts and EPA approves nutrient 

criteria that meet these requirements for 

a subset of waters, EPA would withdraw 

the Federal standards for that subset of 

waters. 

V. Alternative Regulatory Approaches 

and Implementation Mechanisms 

A. Designating Uses 

Under CWA section 303(c)(2)(A), 

states shall adopt designated uses after 

taking ‘‘into consideration the use and 

value of water for public water supplies, 

protection and propagation of fish, 

shellfish, and wildlife, recreation in and 

on the water, agricultural, industrial and 

other purposes including navigation.’’ 

Designated uses ‘‘shall be such as to 

protect the public health or welfare, 

enhance the quality of water and serve 

the purposes of [the CWA].’’ (CWA 

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

at 40 CFR 131.3(f) defines ‘‘designated 

uses’’ as ‘‘those uses specified in water 

quality standards for each water body or 

segment whether or not they are being 

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

function of, or activity in, waters of the 

United States that requires a specific 

level of water quality to support it. In 

other words, designated uses are a 

state’s concise statements of its 

management objectives and 

expectations for individual surface 

waters. 

In the context of designating uses, 

states often work with stakeholders to 

identify a collective goal for their waters 

that the state intends to strive for as it 

manages water quality. States may 

evaluate the attainability of these goals 

and expectations to ensure they have 

designated appropriate uses (40 CFR 

131.10(g)). EPA’s regulations at 40 CFR 

131 interpret and implement CWA 

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

require that states adopt designated uses 

that provide water quality for the 

protection and propagation of fish, 

shellfish, and wildlife and for recreation 

in and on the water (referred to as uses 

specified in section 101(a)(2) of the Act), 

wherever attainable (40 CFR 131.2; 

131.5(a)(4); 131.6(a),(f); 131.10(g),(j)). 

Where states do not designate uses 

specified in 101(a)(2) of the Act, or 

remove such uses, they must 

demonstrate that the uses are not 

attainable consistent with the use 

attainability analysis (UAA) provisions 

of 40 CFR 131.10, specifically 131.10(g). 

A state may remove protection for a use 

specified in CWA section 101(a)(2) if it 

can show, based on a UAA consistent 

with 131.10, that the use is not 

attainable. States may include waters 

located in the same watershed in a 

single UAA, provided that there is sitespecific information to show how each 

individual water fits into the group in 

the context of any single UAA and how 

each individual water meets the 

applicable requirements of 40 CFR 


tkelley on DSK3SPTVN1PROD with 
74964 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

207 In re Bethlehem Steel Corporation, General 

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

28245 (E.P.A. G.C.)). USEPA. 1994. Water Quality 

Standards Handbook: Second Edition. EPA–823–B– 

94–005a. U.S. Environmental Protection Agency, 

Office of Water, Washington, DC. 

208See 40 CFR 131.33(a)(3), 40 CFR 131.34(c), 40 

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

CFR 131.40(c). 

131.10(g) for removing or modifying a 

use. 

EPA’s proposed numeric nutrient 

criteria for estuaries, coastal waters, and 

south Florida inland flowing waters will 

apply to those waters designated by 

Florida as Class I (Potable Water 

Supplies), Class II (Shellfish 

Propagation or Harvesting), and Class III 

(Recreation, Propagation and 

Maintenance of a Healthy, WellBalanced Population of Fish and 

Wildlife). If Florida removes the Class I, 

Class II, and/or Class III designated use 

for any particular water body ultimately 

affected by this rule such that it is no 

longer designated as either Class I, II, or 

III, and EPA approves such a removal 

because it is consistent with CWA 

section 303(c) and regulations at 40 CFR 

131, then the federally-promulgated 

numeric nutrient criteria would not 

apply to that water body. Only the water 

quality criteria associated with the 

revised designated use would apply to 

that water body. 

B. Variances 

A variance may be described as a 

time-limited designated use and criteria 

that target a specific pollutant(s), 

source(s), water body(ies) and/or water 

body segment(s). Variances constitute 

new or revised water quality standards 

subject to the procedural and 

substantive requirements applicable to 

removing a designated use.207 Thus, 

EPA may only approve a variance if it 

is based on the same factors, set out at 

40 CFR 131.10(g), that are required to 

revise a use specified in CWA section 

101(a)(2) through a UAA. 

Typically, variances are time-limited, 

but may be renewed. Temporarily 

modifying the designated use for a 

particular water body through a 

variance process allows a state to 

identify an interim designated use and 

associated criteria to serve as the basis 

for NPDES permit limits and 

certifications under CWA section 401 

during the term of the variance while 

maintaining the designated use and 

associated criteria as the ultimate goal. 

A state should seek a variance instead 

of removing or revising the designated 

use where the state believes the 

designated use and associated criteria 

can be attained at some point in the 

future. By maintaining the designated 

use, and associated criteria, and by 

specifying a point in the future when 

the designated use will be fully 

applicable in all respects, the state 

ensures that further progress will be 

made in improving water quality and 

attaining the ultimate goal. 

A variance may be written to address 

a specific geographic area, a specific 

pollutant or pollutants, and/or a specific 

discharger. All other applicable water 

quality standards not specifically 

modified by the variance, including any 

other criteria adopted to protect the 

designated use, remain applicable. State 

variance procedures, as part of state 

water quality standards, must be 

consistent with the substantive 

requirements of 40 CFR 131. Each 

variance must be submitted to EPA as a 

revised water quality standard for 

review and approval or disapproval 

pursuant to CWA section 303(c). 

For purposes of this proposal, EPA is 

proposing criteria that apply to use 

designations that Florida has already 

established. EPA believes that the State 

continues to have sufficient authority 

under 131.10 to grant variances under 

its variance procedures to Class I, Class 

II or Class III uses and associated 

criteria. For this reason, EPA is not 

proposing a Federal variance procedure. 

C. Site-Specific Alternative Criteria 

Site-specific alternative criteria 

(SSAC) are alternative values to 

otherwise applicable water quality 

criteria that would be applied on a 

watershed, area-wide, or water bodyspecific basis that meet the regulatory 

test of protecting the water’s designated 

use, having a basis in sound science, 

and ensuring the protection and 

maintenance of downstream water 

quality standards. SSAC may be more or 

less stringent than the otherwise 

applicable criteria. In either case, 

because the SSAC must protect the same 

designated use and must be based on 

sound science according to the 

requirements of 40 CFR 131.11(a), there 

is no need to modify the designated use 

or conduct a UAA. A SSAC may be 

appropriate when additional scientific 

data and analyses can bring increased 

precision or accuracy to expressing the 

concentration of a water quality 

parameter that is protective of the 

designated use. 

In EPA’s 2010 rulemaking for 

Florida’s lakes and flowing waters 

outside of the South Florida Nutrient 

Watershed Region, EPA promulgated a 

procedure whereby EPA’s Region 4 

Regional Administrator may establish a 

SSAC after making available the 

proposed SSAC and supporting 

documentation for public comment (40 

CFR 131.43(e)). This procedure became 

effective for CWA purposes on February 

4, 2011. Under this provision, any 

entity, including the State, can submit a 

proposed Federal SSAC directly to EPA 

for the Agency’s review and assessment 

as to whether an adjustment to the 

applicable Federal numeric nutrient 

criteria is warranted. The Federal SSAC 

process is separate and distinct from the 

State’s SSAC processes in its water 

quality standards. 

The current Federal SSAC procedure 

allows EPA to determine that a revised 

site-specific chlorophyll a, TN, TP, or 

nitrate+nitrite numeric criterion should 

apply in lieu of the generally applicable 

criteria promulgated in the final rule for 

Florida’s lakes and flowing waters 

where that SSAC is demonstrated to be 

protective of the applicable designated 

use(s). The promulgated procedure 

provides that EPA will solicit public 

comment on its determination. Because 

EPA’s rule established this procedure, 

implementation of this procedure does 

not require withdrawal of the associated 

federally-promulgated criteria for the 

Federal SSAC to be effective for 

purposes of the CWA. EPA has 

promulgated similar procedures for 

EPA’s granting of variances and SSACs 

in other federally-promulgated water 

quality standards.208

As outlined in 40 CFR 131.43(e) and 

in the draft ‘‘Technical Assistance for 

Developing Nutrient Site-Specific 

Alternative Criteria in Florida’’ (June 

2011), the process for obtaining a 

Federal SSAC includes the following 

steps. First, an entity seeking a SSAC 

compiles the supporting data, conducts 

the analyses, develops the expression of 

the criterion, and prepares the 

supporting documentation 

demonstrating that alternative numeric 

nutrient criteria are protective of the 

applicable designated use. The ‘‘entity’’ 

may be the State, a city or county, a 

municipal or industrial discharger, a 

permittee, a consulting firm acting on 

the behalf of a client, or any other 

individual or organization. The entity 

requesting the SSAC bears the burden of 

demonstrating that any proposed SSAC 

meets the requirements of the CWA and 

EPA’s implementing regulations, 

specifically 40 CFR 131.11. Second, if 

the entity is not the State, the entity 

must provide notice of the proposed 

SSAC to the State, including all 

supporting documentation so that the 

State may provide comments on the 

proposal to EPA. Third, EPA’s Region 4 

Regional Administrator will evaluate 

the technical basis and protectiveness of 

the proposed SSAC and decide whether 

to publish a public notice and take 


tkelley on DSK3SPTVN1PROD with 
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209Hanlon, Jim. USEPA Office of Wastewater 

Management. 2007, May 10. Memorandum to 

Alexis Stauss, Director of Water Division EPA 

Region 9, on ‘‘Compliance Schedules for Water 

Quality-Based Effluent Limitations on NPDES 

Permits.’’ 

comment on the proposed SSAC. The 

Regional Administrator may decide not 

to publish a public notice and instead 

return the proposal to the entity 

submitting the proposal, with an 

explanation as to why the proposed 

SSAC application did not provide 

sufficient information for EPA to 

determine whether it meets CWA 

requirements or not. If EPA solicits 

public comment on a proposed SSAC, 

upon review of comments, the Regional 

Administrator may determine that the 

Federal SSAC is or is not appropriate to 

account for site-specific conditions and 

make that determination publicly 

available together with an explanation 

of the basis for the decision. 

Since the SSAC provision in EPA’s 

2010 rule became effective, numerous 

entities have contacted EPA regarding a 

possible interest in obtaining a federal 

SSAC. However, following discussions 

with EPA, it became clear that a 

different water quality standards 

mechanism, such as a designated use 

change or variance, would be more 

appropriate in their particular situation. 

On March 9, 2011, EPA received a SSAC 

request from a pulp and paper mill that 

discharges to the Fenholloway River. 

Since the SSAC was derived from data 

in a nearby reference stream, the 

Econfina River, the TN and TP SSAC 

were requested to apply to both the 

Econfina and Fenholloway Rivers. 

Additional information was submitted 

by the requestor during 2011 and 2012 

to address questions posed by EPA. At 

this time, EPA does not have sufficient 

information to move forward with 

proposing or establishing the TP or TN 

SSAC for the Fenholloway and Econfina 

Rivers. 

EPA believes that there is benefit in 

extending this procedure for EPA 

adoption of Federal SSAC that will 

adjust the numeric nutrient criteria 

proposed in this rule. EPA is therefore 

proposing that a similar procedure 

promulgated in 40 CFR 131.43(e) apply 

to estuaries, coastal waters, and south 

Florida inland flowing waters. EPA 

requests comment on the following 

proposed application of the SSAC 

procedure. 

To successfully develop a Federal 

SSAC for a given estuary, coastal water, 

or south Florida inland flowing water, a 

thorough analysis is necessary that 

indicates how the alternative 

concentration of TN, TP, or chlorophyll 

a supports both the designated use(s) of 

the water body itself, and provides for 

the attainment and maintenance of the 

WQS of downstream water bodies, 

where applicable. This analysis should 

have supporting documentation that 

consists of examining indicators of 

longer-term response to multiple 

stressors, such as seagrass health, as 

well as indicators of shorter-term 

response specific to nitrogen and 

phosphorus pollution, such as 

chlorophyll a concentrations associated 

with balanced phytoplankton biomass 

or sufficient dissolved oxygen to 

maintain aquatic life. 

EPA is proposing seven approaches 

for developing SSAC for estuaries, 

coastal waters, and south Florida inland 

flowing waters that are similar to the 

four approaches EPA finalized in the 

2010 rule for Florida’s lakes and flowing 

waters. The first five proposed 

approaches are replicating the 

approaches EPA used to develop 

estuary, tidal creek, marine lake, coastal, 

and south Florida inland flowing water 

criteria, respectively, and applying these 

methods to a smaller subset of waters or 

water body segments. To understand the 

necessary steps in this analysis, 

interested parties should refer to the 

complete documentation of these 

approaches in the Technical Support 

Document for this proposed rule. 

The sixth proposed approach for 

developing SSAC is to conduct a 

biological, chemical, and physical 

assessment of water body conditions. A 

detailed description of the supporting 

rationale must be included in the 

documentation submitted to EPA. The 

components of this approach could 

include, but are not limited to, 

evaluation of: seagrass health, presence 

or absence of native flora and fauna, 

chlorophyll a concentrations or 

phytoplankton density, average daily 

dissolved oxygen fluctuation, organic 

versus inorganic components of total 

nitrogen, habitat assessment, and 

hydrologic disturbance. This approach 

could apply to any water body type, 

with specific components of the 

analysis tailored for the situation. 

The proposed seventh approach for 

developing SSAC is a general provision 

for using another scientifically 

defensible approach that is protective of 

the designated use. This provision 

allows applicants to make a complete 

demonstration to EPA using methods 

not otherwise described in the rule or its 

statement of basis, consistent with 40 

CFR 131.11(b)(1)(iii). This approach 

could potentially include use of 

mechanistic models or other data and 

information. 

D. Compliance Schedules 

A compliance schedule, or schedule 

of compliance, refers to ‘‘a schedule of 

remedial measures included in a 

‘permit,’ including an enforceable 

sequence of interim requirements * * * 

leading to compliance with the CWA 

and regulations.’’ (40 CFR 122.2, CWA 

section 502(17)). In an NPDES permit, 

Water Quality-Based Effluent 

Limitations (WQBELs) are effluent 

limits based on applicable water quality 

standards for a given pollutant in a 

specific receiving water (NPDES Permit 

Writers Manual, EPA–833–B–96–003, 

December, 1996). EPA regulations 

provide that schedules of compliance 

may only be included in permits if they 

are determined to be ‘‘appropriate’’ 

given the circumstances of the discharge 

and are to require compliance ‘‘as soon 

as possible’’ (40 CFR 122.47).209

Florida has adopted a regulation 

authorizing compliance schedules. That 

regulation, Subsection 62–620.620(6), 

F.A.C., is not affected by this proposed 

rule. The complete text of the Florida 

rules concerning compliance schedules 

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

gateway/RuleNo.asp?ID=62-620.620. 

Florida is, therefore, authorized to grant 

compliance schedules, as appropriate, 

under its rule for WQBELs based on 

EPA’s federally-promulgated numeric 

nutrient criteria. 

VI. Economic Analysis 

The CWA provides a comprehensive 

framework for the protection and 

restoration of the health of the Nation’s 

waters. EPA determined in 2009 that 

addressing the significant number of 

Florida waters impaired by nitrogen and 

phosphorus required the establishment 

of numeric nutrient criteria as part of 

Florida water quality standards adopted 

under the CWA. State implementation 

of numeric nutrient criteria in the 

proposed rule may result in an 

incremental level of controls needed for 

compliance with CWA programs, or 

require them sooner than would occur 

under current CWA programs. These 

controls include new or revised 

National Pollutant Discharge 

Elimination System (NPDES) permit 

conditions for point source dischargers 

and controls on other sources of 

nitrogen and phosphorus (e.g., 

agriculture, urban runoff, and septic 

systems) through the development of 

Total Maximum Daily Loads (TMDLs) 

and Basin Management Action Plans 

(BMAPs). 

EPA conducted an analysis to 

estimate both the increase in the 

number of impaired waters that may be 

identified as a result of the proposed 

rule, and the potential annual cost of 

CWA pollution control actions likely to 


tkelley on DSK3SPTVN1PROD with 
74966 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

be implemented by the State of Florida 

and private parties to assure attainment 

of applicable State water quality 

designated uses. It is important to note 

that the costs of pollution controls 

needed to attain water quality standards 

for nutrients for waters already 

identified as impaired by the State 

(including waters with and without 

TMDLs in place) are not included in 

EPA estimates of the cost of the rule. 

EPA’s analysis is fully described in the 

document entitled Economic Analysis of 

Proposed Water Quality Standards for 

the State of Florida’s Estuaries, Coastal 

Waters, and South Florida Inland 

Flowing Waters (hereinafter referred to 

as the Economic Analysis), which can 

be found in the docket and record for 

this proposed rule. This analysis shows 

that the incremental costs associated 

with the proposed rule range between 

$239.0 million and $632.4 million per 

year (2010 dollars) and monetized 

benefits may be in the range from $39.0 

to $53.4 million annually. 

1. NRC Review of Phase 1 Cost 

Estimates 

On December 6, 2010 EPA published 

a final rule to set numeric nutrient 

criteria for lakes and streams in Florida 

designed to protect those waters for 

their State-designated uses, such as 

swimming, fishing, or as drinking water 

sources (Phase 1 rule). EPA developed 

an economic analysis to provide the 

public with information on potential 

costs and benefits that may be 

associated with Florida’s 

implementation of EPA’s rule. EPA’s 

estimate of the annual costs of that rule 

ranged from $135.5 to $206.1 million; 

stakeholder estimates of the same cost 

categories ranged from $8 to $13 billion 

annually. While these costs are not 

directly related to today’s proposed rule, 

EPA determined that an independent 

peer review of its economic analysis for 

the Phase 1 rule would provide 

important information on the disparity 

between EPA’s cost estimates and those 

of some stakeholders, and would be 

helpful to inform and improve its 

analysis of today’s proposed rule. 

Accordingly, EPA requested the 

National Research Council (NRC) of the 

National Academies to review EPA’s 

economic analysis for the Phase 1 rule. 

The NRC Committee completed its 

‘‘Review of the EPA’s Economic 

Analysis of Final Water Quality 

Standards for Nutrients for Lakes and 

Flowing Waters in Florida’’ in June. The 

Committee was charged with reviewing 

and commenting on three specific areas: 

(1) EPA’s assumption that only newly 

impaired waters should be analyzed, 

(2) EPA’s decision to estimate costs 

associated only with sources affecting 

newly impaired waters, by sector, and 

(3) EPA’s assumptions about levels of 

control by point and nonpoint sources, 

including the use of variances and other 

flexibilities for more cost-effective 

approaches and whether to implement 

reverse osmosis and other stringent 

control technologies. 

NRC answered the first charge, 

agreeing with EPA’s assumption that 

only newly impaired waters should be 

analyzed. NRC also addressed the 

second charge, but took exception with 

EPA’s approach to not estimating costs 

for unassessed waters or for septic 

systems affecting impaired springsheds. 

NRC also suggested that EPA 

underestimated the affected acres in 

agriculture. The Committee did not offer 

specific suggestions for how to compute 

the increased acreage that should be 

analyzed. However, on the cost side, 

they suggest including costs associated 

with installation of regional treatment 

systems on agricultural lands. 

As for the third charge, the Committee 

largely addressed this by examining the 

details of EPA’s unit costs, including 

comments suggesting ways in which 

EPA underestimated or overestimated 

costs. The Committee did not directly 

address EPA’s assumptions regarding 

the use of SSACs, variances and use 

designations, except to propose an 

alternative cost estimating framework 

based on predicting the future time path 

of waters progressing through the stages 

of listing as impaired, TMDL 

development, and BMAP 

implementation, with and without the 

rule. The Committee generally 

concluded that EPA’s cost estimates 

were likely too low, while the 

stakeholder estimates were too high. 

In response to the NRC review, EPA 

has attempted to incorporate many of 

the recommendations and suggestions 

made throughout the NRC report 

including: Using the HUC–12 watershed 

unit of analysis; analyzing potential 

costs for unassessed waters that could 

be incrementally impaired; analyzing 

costs for each industrial plant rather 

than extrapolating the results from a 

small sample; reviewing actual 

experience from existing TMDLs to 

identify BMPs sufficient to meet 

numeric targets; considering permeable 

reactive barriers for septic systems and 

their installation costs; and considering 

uncertainty in government 

expenditures. EPA has addressed these 

recommendations and suggestions in 

this analysis of costs for the coastal and 

estuary criteria. 

The NRC Committee also described an 

approach for EPA to consider in 

analyzing the impacts of its numeric 

nutrients criteria rules by tracing out 

two time-paths of costs and benefits: 

one time-path for the baseline and one 

reflecting the proposed rule. The costs 

and benefits of the proposed rule could 

then be analyzed as the present value of 

the difference in the two time-paths of 

costs and benefits, respectively. To 

execute this approach, EPA would need 

to model not just its projection of the 

eventual controls that would be 

implemented under the proposed rule, 

but its predictions of the prioritization 

of watersheds that Florida would adopt 

to determine the timing of controls. NRC 

suggested that EPA could engage 

external stakeholders in a collaborative 

process to determine a collective set of 

assumptions to use as part of this 

analytical approach (or at least to 

‘‘isolate and possibly reconcile’’ areas of 

disagreement). EPA acknowledges the 

merit of this approach, and notes that it 

is consistent with EPA’s intent that its 

numeric nutrients criteria simply 

interpret Florida’s current narrative 

nutrient criterion, by providing the 

often time-consuming first step of the 

science-based modeling necessary for 

developing a TMDL. The ultimate effect 

of the EPA’s proposal would be to 

improve the efficiency and effectiveness 

of Florida’s WQS program with regard 

to nutrients. However, given the 

exigencies of the consent decree and the 

timing of the NRC review, EPA 

determined that it was not possible to 

adopt the NRC’s alternative approach 

for this proposal. The NRC’s alternative 

approach was presented as a finding, 

rather than a recommendation, because 

the NRC acknowledged that time and 

budget constraints might render this 

approach unworkable for the current 

rule. 

Considering the exigencies, EPA took 

the approach of estimating costs and 

benefits for a representative future year, 

using current water quality data as a 

basis for projecting what incremental 

water quality controls would need to be 

implemented during this future year to 

meet the new criteria. An approach that 

compares two complete future timepaths (with and without the proposed 

rule) requires taking the difference 

between those two time-paths, 

discounting over time, and summing in 

order to express the impacts in present 

value terms. In contrast, EPA’s approach 

identifies waters that would be newly 

identified as impaired and the controls 

that would be needed to meet the new 

criteria. EPA then annualizes the costs 

of these controls over an appropriate 

time horizon. As such, the two 

approaches are not directly comparable. 


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Nonetheless, EPA believes its approach 

sheds light on the costs and benefits 

associated with its numeric nutrients 

criteria rules and complies with the 

Executive Order requirements for 

conducting economic analysis of 

regulations. As noted above, EPA has 

made significant changes to its approach 

to address the NRC recommendations 

that are applicable to it. 

2. Baseline for Cost Analysis 

EPA is promulgating numeric nutrient 

criteria to supplement the State of 

Florida’s current narrative nutrient 

criteria. The incremental impacts of the 

proposed rule are the potential costs 

and benefits associated with 

implementation of the proposed 

numeric criteria, including DPVs, for 

estuaries, coastal waters, and south 

Florida inland flowing waters, above 

and beyond the costs associated with 

State implementation of its current 

narrative nutrient criterion. The 

baseline incorporates requirements 

associated with restoration of already 

identified impaired waters, including 

waters for which TMDLs are approved 

and waters for which TMDLs are not yet 

developed. Because the numeric 

nutrients criteria proposed here 

interpret Florida’s existing narrative 

criterion, which is also the basis for 

existing TMDLs, the analysis assumes 

that these TMDLs would be adopted as 

site-specific criteria. Thus, there would 

be no additional costs or benefits 

associated with the proposed rule for 

these waters. The baseline for this 

analysis also includes EPA’s previously 

promulgated numeric nutrient criteria 

for Florida’s lakes and flowing waters. 

For waters that the State of Florida 

has already identified as impaired but 

for which it has not yet developed 

TMDLs, EPA expects that the effect of 

this proposed rule will be to shorten the 

time and reduce the resources necessary 

for the State of Florida to develop 

TMDLs and BMAPs. For waters that the 

State of Florida has developed TMDLs, 

EPA has looked at the proposed criteria 

to compare these to the target loadings 

in the TMDLs and has not found a 

consistent pattern of existing TMDLs 

being either more or less stringent than 

would be required to meet the criteria 

proposed in this rule. For already 

impaired waters and waters already 

under a TMDL, EPA assumed that no 

additional controls on nonpoint sources 

to these waters would be needed as a 

consequence of this rule. However, 

there may be an incremental impact of 

the proposed rule for any point source 

dischargers to these waters that have or 

may receive waste load allocations for 

just one nutrient pollutant if those 

waters are not attaining criteria for the 

other as a result of this proposed rule. 

These costs are included in this 

economic analysis. 

For waters not currently impaired 

under the baseline, EPA uses current 

water quality measurements to predict 

which waters would be deemed 

unimpaired as a result of the proposed 

rule (and therefore need not be analyzed 

for nonpoint source control costs). EPA 

acknowledges that these conditions 

could change in the future. To the 

extent that the experience in 

implementation of the proposed rule 

deviates from these specific 

assumptions about the baseline, EPA’s 

estimates of the costs and benefits may 

be under- or overestimated. See Section 

2 of the Economic Analysis for a full 

description of the baseline. EPA 

requests comment on its assumptions 

regarding the baseline. 

3. Incremental Costs 

The likely effect of this proposed rule 

will be the assessment and 

identification of additional waters that 

are impaired and not meeting the 

numeric water quality criteria in the 

proposed rule. The incremental impact 

of the proposed rule includes the costs 

for controls on point and nonpoint 

sources, developing and implementing 

TMDLs to attain the proposed criteria, 

and the monetary value (benefits) of the 

resulting potential increase in water 

quality. The economic analysis 

describes these potential incremental 

impacts of the proposed rule. It is 

important to note that EPA took care not 

to include costs for the estuarine and 

coastal marine waters contained in 

Florida’s newly-approved State WQS. 

To develop these estimates, EPA first 

assessed State control requirements 

associated with current water quality, 

existing impaired waters, and existing 

TMDLs, as well as existing regulations 

specific to estuaries, coastal waters and 

south Florida inland flowing waters (the 

baseline). EPA then identified the costs 

and benefits associated with additional 

pollution controls to meet EPA’s 

proposed numeric criteria, beyond 

pollution controls currently needed or 

in place. To estimate incremental costs 

to municipal and industrial dischargers, 

EPA gathered publicly available facility 

information and data on potential 

control technologies, and used Florida 

Department of Environmental Protection 

(FDEP) point source implementation 

procedures to estimate the change in 

WQBELs and treatment controls that 

could result from the proposed rule. 

EPA assessed potential non-point source 

control costs by using publicly available 

information and data to determine land 

uses near waters that would likely be 

identified as impaired under the 

proposed rule. EPA used current FDEP 

data on stormwater controls and Florida 

Department of Agricultural and 

Consumer Services (FDACS) manuals to 

estimate costs of implementing 

stormwater and agricultural best 

management practices (BMPs) to attain 

the proposed numeric criteria. EPA also 

estimated the potential costs associated 

with upgrades of homeowner septic 

systems and potential government costs 

of developing additional TMDLs for 

water identified as impaired under this 

rule. Finally, EPA qualitatively and 

quantitatively described and estimated 

some of the potential benefits of 

complying with the new water quality 

standards. Although it is difficult to 

predict with certainty how the State of 

Florida will implement these new water 

quality standards, the result of this 

analysis represent EPA’s best estimates 

of costs and benefits of the State of 

Florida’s likely actions to implement 

this proposed rule. 

A. Incrementally Impaired Waters 

Compared to current conditions, 

potentially incrementally impaired 

waters are those waters that exceed 

EPA’s proposed criteria for which FDEP 

has not already developed a TMDL or 

listed as impaired for nutrients. To 

estimate incremental costs associated 

with attainment of criteria, EPA first 

removed any waters for which the State 

of Florida has already determined to be 

impaired or established a TMDL and/or 

BMAP, because it considers these 

waters part of the baseline for this 

analysis. BMAPs are iterative and are 

updated on a continual basis until the 

TMDL targets are met. EPA assumes that 

controls will be implemented through 

these mechanisms until the TMDLs are 

met. Although additional costs to 

address baseline impairments may be 

needed in the future (after this rule is 

promulgated), EPA does not believe that 

these costs should be attributed to this 

proposed rule, but are instead part of 

the baseline. As discussed above, the 

State of Florida is not required to revise 

any existing TMDL as a result of this 

rule, and WQBELs in NPDES permits 

that are consistent with an existing EPA 

approved TMDL meet the requirements 

of the CWA. TMDL nutrient criteria 

have been shown to be both more 

stringent and less stringent when 

compared to criteria under this 

proposed rule and EPA has provided 

SSACs as a mechanism to approve the 

standards in existing TMDLs and 

BMAPs. Thus, EPA does not anticipate 

that this rule will result in increased 

nonpoint source controls costs for 


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210WBID is a waterbody identification number 

assigned by Florida, in order to delineate the 

boundaries of Florida’s waters. 

watersheds that already have an EPAapproved TMDL. 

After excluding waters already 

identified as impaired under Florida’s 

existing narrative criteria, EPA next 

identified estuarine and coastal 

segments that do not meet the numeric 

criteria of this proposed rule. EPA then 

assumed identified waterbodies 

(WBIDs 210) that overlap those segments 

may be identified as incrementally 

impaired. EPA then identified the 

watersheds that contain or surround, in 

the case of coastal waters, those 

incrementally impaired WBIDs. 

EPA analyzed FDEP’s database of 

ambient water quality monitoring data 

and compared monitoring data for each 

segment with EPA’s proposed criteria 

for TN and TP to identify incrementally 

impaired waters. EPA compiled the 

most recent five years of monitoring 

data and determined if there was 

sufficient data available to calculate 

more than one annual geometric mean 

in a consecutive three year period. With 

sufficient data, EPA calculated the 

annual geometric mean for each 

segment identified by EPA segment 

boundaries, and identified waters as 

incrementally impaired if they exceeded 

the applicable criteria in this proposed 

rule. The results of this analysis are 

shown in Table VI(A). 

TABLE VI(A)(1)—NUMBER OF WBIDS SUMMARY OF DATA ANALYSIS FOR PROPOSED CRITERIA 1

Criteria type Baseline 

impaired 2

Not currently impaired 

under the baseline 

Total 

Data available 3

Data not 

available 

Coastal ............................................................................................................................. 0 5 68 73 

Estuaries .......................................................................................................................... 42 121 95 258 

Total .......................................................................................................................... 42 126 163 331 

Source: FDEP IWR run 44. 

1 Represents number of WBIDs, based on 10% of WBID area overlapping segments for which EPA is proposing numeric nutrient criteria. 2On 303(d) list as impaired for nutrients or covered under a nutrient-related TMDL. EPA did not assess these waters further for attainment of 

the proposed criteria. 3WBIDs in segments for which at least two geometric means in a consecutive three year period can be calculated based on having at least 

four samples in a given year, with one sample in winter and summer. 

Controls may also be needed to meet 

the proposed criteria in a portion of the 

163 WBIDs for which EPA does not 

have data if subsequent data would 

indicate impairment. These 163 WBIDs 

are variously located in the same 

watersheds as WBIDs that are baseline 

impaired or incrementally impaired by 

this proposed rule, or in watersheds 

either with no known impaired WBIDs 

or for which none of the WBIDs have 

sufficient data to determine impairment 

status. Without additional information 

about these waters, EPA determined the 

number of impaired-though-unassessed 

waters as a range. As a low estimate, it 

is possible that none of the unassessed 

waters would be impaired. Given the 

targeting scheme for Florida’s IWR data, 

these unassessed waters likely have a 

lower probability of impairment than 

assessed waters, and zero represents the 

lower bound. For the high end of the 

range, EPA considered a proportional 

impairment rate of assessed waters. The 

impairment rate of unassessed waters 

may be anywhere in between. 

While helpful in establishing the 

number of waterbodies that may be 

incrementally impaired, the assumption 

of proportional impairment does not 

produce information on location needed 

to estimate associated costs. The 

majority of unassessed waters lie along 

the coast and in close proximity to 

baseline impaired and impaired 

assessed waters. Hence, for this 

analysis, EPA assumed that impairment 

in unassessed waters would most likely 

be near baseline impairments and 

impaired assessed waters, since the 

loads causing impairment in these 

assessed waters could also affect the 

downstream unassessed waters. For 

coastal waters and south Florida waters, 

EPA used GIS to locate waters within or 

adjacent to the same watersheds 

associated with baseline impairments 

and impaired assessed waters. For 

estuaries, the number of unassessed 

waters estimated to be impaired (based 

on the assumption of proportional 

impairment) would not fit within the 

same watersheds associated with 

baseline impairments and impaired 

assessed waters. Therefore, EPA used 

GIS analysis to identify a buffer around 

the watersheds associated with baseline 

impairments and impaired assessed 

waters that would just include the 

estimated number of impaired 

unassessed waters. EPA found that a 

buffer size of 0.7 miles encompassed the 

estimated number of impaired 

unassessed waters. A smaller buffer 

(e.g., 0.5 mile) would not include 

enough unassessed waters. A larger 

buffer (e.g., 1 mile) would include too 

many unassessed waters. EPA then used 

this 0.7 mile buffer to identify the 

associated incremental watersheds that 

may need nonpoint source controls. 

EPA has estimated the acres of various 

land uses within these watersheds and 

reported as the upper bound in the 

Additional Unassessed Water column of 

Table VI(A)(2). 


tkelley on DSK3SPTVN1PROD with 
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211U.S. EPA, 2008, ‘‘Municipal Nutrient Removal 

Technologies Reference Document. Volume 1— 

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

212Florida Department of Environmental 

Protection (FDEP). 2006a. TMDL Protocol. Version 

6.0. Task Assignment 003.03/05–003. 

TABLE VI(A)(2)—SUMMARY OF LAND USE IN INCREMENTALLY IMPAIRED WATERSHEDS FOR THE ANALYSIS OF COSTS

UNDER THE PROPOSED RULE

[Acres] 

Land use type Assessed waters 1 Additional unassessed 

water 2 Total 

Agriculture ................................................................................................ 15,312 0–22,828 15,312–38,140 

Communications and Utilities .................................................................. 3,337 0–3,315 3,337–6,652 

Forest ....................................................................................................... 199,432 0–256,137 199,432–455,569 

Industrial .................................................................................................. 2,025 0–6,703 2,025–8,729 

Other ........................................................................................................ 9,276 0–11,306 9,276–20,582 

Transportation Corridors .......................................................................... 9,177 0–3,636 9,177–12,813 

Urban ....................................................................................................... 128,787 0–86,508 128,787–215,295 

Water ....................................................................................................... 220,728 0–102,615 220,728–323,343 

Wetlands .................................................................................................. 196,545 0–322,355 196,545–518,899 

Total .................................................................................................. 784,619 0–815,403 784,619–1,600,022 

1Total acreage of 12-digit HUC watersheds surrounding the incrementally impaired WBIDs based on sufficient data, excluding watersheds for 

which EPA has already estimated a need for controls. 2Acreage surrounding potential incrementally impaired unassessed waters not associated with baseline impairment or incremental impairment 

under the proposed rule based on sufficient data. 

The costs associated with the 

additional controls that would be 

necessary in the watersheds not already 

included in the cost analysis because of 

known incremental impaired waters 

will be included in the remainder of this 

section. 

B. Point Source Costs 

Point sources of wastewater must 

have a National Pollution Discharge 

Elimination System (NPDES) permit to 

discharge into surface waters. EPA 

identified point sources potentially 

discharging nitrogen and phosphorus to 

estuaries, coastal waters, and south 

Florida inland flowing waters by 

evaluating the Integrated Compliance 

Information System-National Pollutant 

Discharge Elimination System (ICIS– 

NPDES) database. EPA identified all 

facilities with any permitted discharge 

to estuarine, coastal, and south Florida 

inland flowing waters with an existing 

effluent limit or monitoring requirement 

for nitrogen or phosphorus, as well as 

those with the same industry code as 

any point source with an identified 

nutrient monitoring requirement. This 

analysis identified 121 point sources as 

having the potential to discharge 

nitrogen and/or phosphorus. Table VI(B) 

summarizes the number of point sources 

with the potential to discharge nitrogen 

and/or phosphorus. 

TABLE VI(B)—NPDES-PERMITTED WASTEWATER DISCHARGERS POTENTIALLY AFFECTED BY PROPOSED RULE

Discharger Category Major 

Dischargers a

Minor 

Dischargers b Total 

Municipal Wastewater .................................................................................................................. 53 31 84 

Industrial Wastewater .................................................................................................................. 19 18 37 

Total ...................................................................................................................................... 72 49 121 

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

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

1. Municipal Waste Water Treatment 

Plant (WWTP) Costs 

EPA considered the costs of known 

nitrogen and phosphorus treatment 

options for municipal WWTPs. Nitrogen 

and phosphorus removal technologies 

that are available can reliably attain 

annual average total nitrogen (TN) 

concentration of approximately 3.0 mg/ 

L or less and annual average total 

phosphorus (TP) concentration of 

approximately 0.1 mg/L or less.211 EPA 

considered wastewater treatment to 

these concentrations to be the target 

levels for the purpose of this analysis. 

The NRC suggested that there is 

uncertainty associated with this 

assumption because dischargers to 

impaired waters typically receiving 

WQBELs equal to the numeric water 

quality criteria (NRC, 2012; p. 48). 

However, procedures for determining 

appropriate WQBELs include an 

evaluation of effluent quality and 

assimilative capacity of the receiving 

water. Specifically for nutrients, EPA 

found no implementation evidence in 

Florida to support the assumption that 

the criteria would be adopted as end-ofpipe limits. Instead, based on the State 

of Florida protocol 212 and the examples 

from existing nutrient TMDLs, EPA 

assumed for this analysis that state 

implementation of the proposed rule 

will not result in criteria end-of-pipe 

effluent limitations for municipal 

WWTPs. 

The NPDES permitting authority 

determines the need for WQBELs for 

point sources on the basis of 

determining their reasonable potential 

to exceed water quality criteria. To 

determine reasonable potential on a 

facility-specific basis, data such as 

instream nutrient concentrations and 

low flow conditions would be 

necessary. However, because most 

WWTPs are likely to discharge nutrients 

at concentrations above applicable TN 

and/or TP criteria, EPA assumed that all 

WWTPs have reasonable potential to 

exceed the numeric criteria. The NRC 

supported this assumption. 

For municipal wastewater, EPA 

estimated costs to reduce effluent 


tkelley on DSK3SPTVN1PROD with 
74970 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

213Treatment using reverse osmosis also requires 

substantial amounts of energy and creates disposal 

issues as a result of the large volume of concentrate 

generated. 

214Florida Department of Environmental 

Protection (FDEP). 2009. Wastewater Facility 

Information: Wastewater Facility Regulation 

(WAFR) database. http://www.dep.state.fl.us/water/ 

wastewater/facinfo.htm. Accessed June 2009. 

215USEPA. 2008. Municipal Nutrient Removal 

Technologies Reference Document. Volume 1— 

Technical Report. EPA 832–R–08–006. U.S. 

Environmental Protection Agency, Office of 

Wastewater Management, Municipal Support 

Division. 

216Estimated capital costs annualized at 7% over 

20 years, plus estimated annual O&M. 

concentrations to 3 mg/L or less for TN 

and 0.1 mg/L or less for TP using 

advanced biological nutrient removal 

(BNR). Although reverse osmosis and 

other treatment technologies may have 

the potential to reduce nitrogen and 

phosphorus concentrations even further, 

EPA believes that implementation of 

reverse osmosis applied on such a large 

scale has not been demonstrated.213 The 

NRC supported this assumption (NRC, 

2012; p. 46) but said that in some 

instances, treatment to levels beyond 

the controls of advanced BNR would be 

required (NRC, 2012; p. 48). Such levels 

have not been required for WWTPs by 

the State of Florida in the past, 

including for those WWTPs under 

TMDLs with nutrient targets comparable 

to the criteria in this proposed rule. EPA 

believes that should state-of-the-art BNR 

technology, together with other readily 

available and effective physical and 

chemical treatment (including chemical 

precipitation and filtration), fall short of 

compliance with permit limits 

associated with meeting the new 

numeric nutrient criteria, then it is 

reasonable to assume that entities would 

first seek out alternative compliance 

mechanisms such as reuse, site-specific 

alternative criteria, variances, and 

designated use modifications. In 

addition, under a TMDL, FDEP could 

allocate greater load reductions to 

nonpoint sources based on baseline 

contributions and existing controls, thus 

resulting in fewer reductions required 

from point source dischargers. EPA 

acknowledges that if its assumptions 

about the availability of reuse, SSACs, 

variances and designated use changes 

are incorrect, then the costs presented 

here are underestimates. 

To estimate compliance costs for 

WWTPs, EPA identified current WWTP 

treatment capabilities using FDEP’s 

Wastewater Facility Regulation (WAFR) 

database, and information obtained from 

NPDES permits and/or water quality 

monitoring reports. Table VI(B)(1) 

summarizes EPA’s best estimate of the 

number of potentially affected 

municipal WWTPs that may require 

additional treatment for nitrogen and/or 

phosphorus to meet the numeric criteria 

supporting State designated uses. 

TABLE VI(B)(1)—SUMMARY OF POTENTIAL FOR ADDITIONAL NUTRIENT CONTROLS FOR MUNICIPAL WASTEWATER

TREATMENT PLANTS a

Discharge type 

Number of dischargers 

Additional 

reduction in 

TN and TPa

Additional 

reduction in 

TN only b

Additional 

reduction in 

TP only c

No 

incremental 

controls 

needed d

Total 

Major .................................................................................... 7 0 22 22 51 

Minor .................................................................................... 17 0 1 10 28 

Total .............................................................................. 24 0 23 32 79 

Source: Based on treatment train descriptions in FDEP’s Wastewater Facility Regulation database 214 and permits, WLAs in TMDLs and existing regulations, assuming dischargers would have to install advanced BNR for compliance under the rule. a Includes dischargers without treatment processes capable of achieving the target levels or existing WLA for TN and TP, or for which the 

treatment train description is missing or unclear. b Includes dischargers with chemical precipitation only. 

c Includes dischargers with Modified Ludzack-Ettinge (MLE), four-stage Bardenpho, and BNR specified to achieve less than 3 mg/L, or those 

with WLA under a TMDL for TN only. d Includes dischargers with anaerobic-anoxic oxidation (A2/O), modified Bardenpho, modified University of Cape Town (UCT), oxidation ditches, 

or other BNR coupled with chemical precipitation, those with WLAs under a TMDL for both TN and TP, those discharging to waters on the 

303(d) list for nutrients or DO, and those ocean dischargers covered under the Grizzle-Figg Act that will cease discharge completely by 2025. 

An EPA study provides unit cost 

estimates for BNR for various TN and 

TP performance levels.215 To estimate 

costs for WWTPs, EPA used the average 

capital and average operation and 

maintenance (O&M) unit costs for 

technologies that achieve an annual 

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

or 0.1 mg/L or less for TP. NRC noted 

that these unit costs were significantly 

lower than those estimated by the 

Florida Water Environment Association 

Utility Council (FWEAUC) and 

suggested to verify the unit costs against 

FWEAUC’s unit costs. Multiplying these 

unit costs by facility flow reported in 

EPA’s PCS database, EPA estimated that 

total costs could be approximately $44.1 

million per year (2010 dollars).216

EPA also conducted a sensitivity 

analysis to address the potential for 

dischargers under TMDLs that establish 

WLAs for TN or TP (and not both 

pollutants), such that incremental costs 

could be required under the proposed 

rule to control the other pollutant. The 

results of this analysis suggest a range 

of additional costs from $3.6 million to 

$5.6 million annually (see section 5.3 of 

the Economic Analysis). Thus, 

estimated total cost could range from 

approximately $47.7 million to $49.7 

million per year. 

2. Industrial Point Source Costs 

Incremental costs for industrial 

dischargers are likely to be facilityspecific and depend on process 

operations, existing treatment trains, 

and composition of waste streams. EPA 

identified 36 industrial dischargers 

potentially affected by the proposed 

rule. Of those, 4 are subject to an 

existing nutrient TMDL, and 4 discharge 

to waters currently listed as impaired. 

As with WWTPs, EPA assumed that 

costs to industrial dischargers under an 

existing nutrient TMDL with WLAs for 

both nitrogen and phosphorus and costs 

at facilities discharging to currently 

impaired waters are not attributable to 

this proposed rule because those costs 

would be incurred absent the rule 

(under the baseline). 

To estimate potential costs to the 

remaining 28 potentially affected 

industrial facilities (Table VI(B)(2)), EPA 

used effluent data for flows, TN, and TP 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74971 

217Treatment using reverse osmosis also requires 

substantial amounts of energy and creates disposal 

issues as a result of the large volume of concentrate 

that is generated. 

from Discharge Monitoring Reports in 

EPA’s ICIS–NPDES database and other 

information in NPDES permits to 

determine whether or not they have 

reasonable potential to cause or 

contribute to an exceedance of the 

proposed criteria in this proposed rule. 

Because the numeric nutrient criteria 

are annual geometric means, EPA 

assumed that any discharger with an 

average TN or TP concentration greater 

than the proposed criterion would have 

reasonable potential. For those facilities 

with reasonable potential, EPA further 

analyzed their effluent data and 

estimated potential revised water 

quality based effluent limits (WQBELs) 

for TN and TP. If the data indicated that 

the facility would not be in compliance 

with the revised WQBEL, EPA estimated 

the additional nutrient controls those 

facilities would likely implement to 

allow receiving waters to meet 

designated uses and the costs of those 

controls. Although reverse osmosis and 

other treatment technologies have the 

potential to reduce nitrogen and 

phosphorus concentrations even further, 

EPA believes that implementation of 

reverse osmosis applied on such a large 

scale has not been demonstrated as 

likely or necessary.217 If BNR or other 

more conventional cost-effective 

treatment technologies would not meet 

the revised WQBELs, EPA believes it is 

reasonable to assume that entities would 

first seek out other available compliance 

mechanisms such as reuse, site-specific 

alternative criteria, variances, and 

designated use modifications. In 

addition, under a TMDL FDEP could 

allocate greater load reductions to 

nonpoint sources based on baseline 

contributions resulting in fewer 

reductions from point source 

dischargers. 

Using this method, EPA estimated 

that the potential costs for industrial 

dischargers could be approximately 

$15.2 million annually (2010 dollars). 

Note that a number of the dischargers 

would not incur incremental costs, 

while others would incur costs of 

implementing controls such as chemical 

precipitation, filtration, and/or BNR. 

NRC said that the use of similar unit 

costs for industrial flows as EPA had 

used for municipal waste water 

treatment facilities did not capture the 

higher costs associated with lower flows 

and therefore industrial costs are 

underestimated. The source EPA used to 

find unit costs included plant costs with 

low flows that EPA was able to compare 

to plant costs with high flows, as NRC 

suggested. EPA found no pattern for 

higher or lower costs and therefore did 

not change its unit costs. The NRC also 

suggested EPA should include costs for 

flow equalization at some industrial 

facilities. EPA does not have enough 

flow data to estimate flow equalization 

costs, but did use the 90th percentile 

flows as the basis for costs for 

dischargers with variable flows (see Cost 

Calculations for Industrial Dischargers). 

EPA considers the use of the 90th 

percentile flow together with an 

allowance for contingencies to provide 

sufficient costs allowance to cover the 

cost of equalization should that be 

necessary at individual facilities. 

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

Industrial category Total number 

of facilities 

Number of 

facilities 

with costs b

Total annual 

costs 

(million 

2010$/yr) 

Chemicals and Allied Products .................................................................................................... 1 0 $0.0 

Electric Services .......................................................................................................................... 8 2 0.5 

Food ............................................................................................................................................. 2 1 0.2 

Mining .......................................................................................................................................... 0 0 0.0 

Other ............................................................................................................................................ 14 1 0.0 

Pulp and Paper ............................................................................................................................ 3 3 14.5 

Total ...................................................................................................................................... 28 7 15.2 

a May not add due to rounding. 

b In most cases, only a few facilities are projected to incur costs; others do not. 

C. Non-Point Source Costs 

To estimate the potential incremental 

costs associated with controlling 

nitrogen and phosphorus pollution from 

non-point sources, EPA identified land 

areas near incrementally impaired 

waters using GIS analysis. EPA 

identified the 12-digit hydrologic units 

(HUC–12s) in Florida that contain, or in 

the case of coastal waters, surround an 

incrementally impaired WBID (WBIDs 

are GIS polygons for water assessment), 

and excluded those HUC–12s that are 

included in the baseline or cost analysis 

for in the Inland Rule. EPA then 

identified all the 12-digit HUCs that 

drain to any remaining unassessed 

WBIDs that may become incrementally 

impaired should they be assessed in the 

future. EPA then identified land uses in 

these HUCs using GIS analysis of data 

obtained from the State of Florida. By 

using the HUC–12 delineation, EPA has 

addressed the NRC recommendation 

that EPA use the more refined HUC–12 

delineation instead of the larger HUC– 

10 delineation. 

1. Costs for Urban Runoff 

EPA’s GIS analysis indicates that 

urban land (excluding land for 

industrial uses covered under point 

sources) accounts for approximately 

128,800 acres to 215,300 acres of the 

land near incrementally impaired 

waters. EPA’s analysis indicates that 

urban runoff is already regulated on a 

portion of this land under EPA’s 

stormwater program requiring 

municipal separate storm sewer system 

(MS4) NPDES permits. Florida has a 

total of 27 large (Phase I) permitted 

MS4s serving greater than 100,000 

people and 132 small (Phase II) 

permitted MS4s serving fewer than 

100,000 people. MS4 permits generally 

do not have numeric nutrient limits, but 

instead rely on implementation of BMPs 

to control pollutants in stormwater to 

the maximum extent practicable. Even 

those MS4s in Florida discharging to 

impaired waters or under a TMDL 

currently do not have numeric limits for 

any pollutant. 

In addition to EPA’s stormwater 

program, several existing State rules are 

intended to reduce pollution from urban 

runoff and were included in the 

baseline for EPA’s proposed rule. For 


tkelley on DSK3SPTVN1PROD with 
74972 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

218FDEP. 2010. FDEP Review of EPA’s 

‘‘Preliminary Estimate of Potential Compliance 

Costs and Benefits Associated with EPA’s Proposed 

Numeric Nutrient Criteria for Florida’’: Prepared 

January 2010 by the Environmental Protection 

Agency. Florida Department of Environmental 

Protection, Division of Environmental Assessment 

and Restoration. 

219Florida Geographic Data Library, 2009. 

220FDEP. 2010. ‘‘Appendix 3: Cost Analysis for 

Municipal Discharge using 30 Year Annualization 

and Florida MS4 Numeric Nutrient Criteria Cost 

Estimation,’’ In: FDEP Review of EPA’s ‘‘Preliminary 

Estimate of Potential Compliance Costs and 

Benefits Associated with EPA’s Proposed Numeric 

Nutrient Criteria for Florida’’: Prepared January 

2010 by the Environmental Protection Agency. 

Florida Department of Environmental Protection, 

Division of Environmental Assessment and 

Restoration. 

221NRC (2009) does not provide the discount rate, 

useful life, or annual O&M costs it uses to estimate 

annual costs. 

example, Florida’s Urban Turf Fertilizer 

rule (administered by FDACS) requires 

a reduction in the amount of nitrogen 

and phosphorus that can be applied to 

lawns and recreational areas. Florida’s 

1982 stormwater rule (Chapter 403 of 

Florida statues) requires stormwater 

from new development and 

redevelopment to be treated prior to 

discharge through the implementation 

of BMPs. The rule also requires that 

older systems be managed as needed to 

restore or maintain the beneficial uses of 

waters, and that water management 

districts establish and implement other 

stormwater pollutant load reduction 

goals. In addition, the ‘‘Water Resource 

Implementation Rule’’ (Chapter 62–40, 

F.A.C.) establishes that stormwater 

design criteria adopted by FDEP and the 

water management districts shall 

achieve at least 80% reduction of the 

average annual load of pollutants that 

cause or contribute to violations of 

water quality standards (95% reduction 

for outstanding natural resource waters). 

This rule sets design criteria for new 

development that is not based on 

impairment status of downstream 

waters. For NPDES permits, reasonable 

potential exists for any effluent 

concentrations above the criteria even if 

the water is attaining standards. 

Therefore, EPA assumed that post-1982 

developed land already has controls to 

meet 80% reductions and only older 

developed land would need an 

incremental level of control. The rule 

also states that the pollutant loadings 

from older stormwater management 

systems shall be reduced as necessary to 

restore or maintain the designated uses 

of waters. As the proposed numeric 

nutrients criteria interpret the existing 

narrative criterion, EPA assumes any 

such reductions requiring costs are not 

a consequence of the proposed criteria. 

The NRC suggested that existing State 

rules are not being fully complied with 

and EPA should not consider them to be 

part of the baseline. EPA’s assumption 

of compliance with the 1982 

Stormwater Rule is based on FDEP’s 

economic analysis indicating that post1982 development would not need 

additional controls. Given the State’s 

cyclical monitoring schedule, existing 

ambient monitoring data may not yet 

fully reflect nutrient reductions because 

the rule has only been in effect since 

July 2009. Other controls that target the 

quantity of stormwater runoff from lowdensity residential land may not be as 

cost effective as the Urban Turf 

Fertilizer Rule. Thus, EPA did not 

estimate an incremental level of control 

to be needed for low-density residential 

land. 

Identifying water as impaired under 

the proposed rule could result in 

changes to MS4 NPDES permit 

requirements for urban runoff, so that 

Florida waters meet the proposed 

criteria. However, the combination of 

additional pollution controls required 

will likely depend on the specific 

nutrient reduction targets, the controls 

already in place, and the relative 

amounts of nitrogen and phosphorus 

pollution contained in urban runoff at 

each particular location. Because 

stormwater programs are usually 

implemented using an iterative 

approach—with the installation of 

controls followed by monitoring and reevaluation—estimating the complete set 

of pollution controls required to meet a 

particular water quality target would 

require detailed site-specific analysis. 

Although it is difficult to predict the 

complete set of potential additional 

stormwater controls that may be 

required to meet the numeric criteria 

that supports State designated uses in 

incrementally impaired waters, EPA 

estimated potential costs for additional 

treatment by assessing the amount of 

urban land that may require additional 

stormwater controls. FDEP has 

previously assumed that all urban land 

developed after adoption of Florida’s 

1982 stormwater rule would be in 

compliance with the Phase 1 rule and 

EPA believes it is reasonable to make a 

similar assumption for this proposed 

rule.218 Using this assumption, EPA 

used GIS analysis of land use data 

obtained from the State of Florida 219 to 

identify the amount of remaining urban 

land located near incrementally 

impaired waters. For Phase I MS4s, EPA 

used a range of acres with 46,700 acres 

as the upper bound and zero acres as the 

lower bound, because Phase I MS4 

urban areas already must implement 

controls to the ‘‘maximum extent 

practicable.’’ As such, these 

municipalities may not need to achieve 

additional reductions if existing 

requirements are already fully 

implemented. EPA similarly estimated 

ranges of acreage needing stormwater 

controls for Phase II MS4 areas, and 

non-MS4 urban areas. GIS analysis of 

land use data indicates that land in 

Phase II MS4 and non-MS4 urban areas 

are low density residential. For the 

urban land that is not low density 

residential, some additional structural 

BMPs may be necessary to comply with 

EPA’s numeric nutrient criteria. Because 

nutrient reductions from low density 

residential land under the existing 

Urban Turf Fertilizer Rule are likely 

sufficient, and the State of Florida 

asserts that urban land developed after 

1982 (77.9% of urban land) would not 

need additional controls for compliance 

with EPA’s numeric nutrient criteria, 

EPA estimated that approximately 

27,700 to 43,100 acres of Phase II MS4 

urban land and 19,600 to 28,900 acres 

of urban land outside of MS4 areas may 

require additional stormwater controls 

to meet EPA’s numeric nutrient criteria. 

The actual acreage may be somewhere 

within the range. Using this procedure, 

EPA estimated that 47,300 to 118,700 

acres may require additional stormwater 

controls. 

The cost of stormwater pollution 

controls can vary widely. FDEP tracks 

the cost of stormwater retrofit projects 

throughout the State that it has provided 

grant funding for.220 EPA estimated 

control costs based on the average unit 

costs, $19,300, across all projects from 

FDEP (2012c) to account for the mix of 

project types likely to be installed based 

on their current prevalence in grant 

funding throughout the state. The NRC 

suggested that higher pollutant removals 

may be obtained by more advanced 

stormwater control measures such as 

bioretention or other vegetated 

infiltration, which may be more costly 

than the current set of FDEP-funded 

projects. NRC (2009) indicates annual 

per-acre costs could range from $300 per 

acre to $3,500 per acre.221 EPA does not 

have the necessary information to 

exactly compare this source with EPA’s 

average unit costs of $19,300, but 

believes EPA’s unit costs are captured 

within the higher end of the range. 

Given that the costs may be comparable 

to the NRC suggested projects and the 

retrofit data is specific to projects that 

Florida has already implemented 

therefore making them more likely to be 

implemented for future projects, EPA 

continues to use costs from the Florida 

specific retrofit project data. 


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EPA multiplied the average capital 

costs per acre ($19,300) of the FDEP 

projects by the number of acres 

potentially requiring controls to 

estimate the potential incremental 

stormwater capital costs associated with 

the proposed rule. EPA then used 

FDEP’s estimate of operation and 

maintenance (O&M) costs (at 5% of 

capital costs), and annualized capital 

costs using FDEP’s discount rate of 7% 

over 20 years. This analysis indicates 

that urban runoff control costs could 

range from approximately $131.9 

million to $330.9 million. Table VI(C)(2) 

summarizes these estimates. 

TABLE VI(C)(1)—ESTIMATED INCREMENTAL URBAN STORMWATER COSTS

Urban land type 

Estimated acres 

potentially needing 

controls 1

Capital costs 

(million $) 2

O&M costs 

(million $/yr) 3

Annual costs 

(million $/yr) 4

MS4 Phase I Urban ......................................................... 0–46,700 $0–$901.4 $0–$45.1 $0.0–$130.2 

MS4 Phase II Urban ........................................................ 27,700–43,100 534.0–832.8 26.7–41.6 77.1–120.3 

Non-MS4 Urban ............................................................... 19,600–28,900 379.2–557.5 19.0–27.9 54.8–80.5 

Total .......................................................................... 47,300–118,700 913.2–2,291.7 45.7–114.6 131.9–330.9 

1Phase I MS4s range represents implementation of BMPs to the MEP resulting in compliance with EPA’s rule or controls needed on all pre1982 developed land that is not low density residential; Phase II MS4s and urban land outside of MS4s represent controls needed on all pre1982 developed land that is not low density residential. Assumes that up to 46% of land associated with unassessed waters would require controls. 2 Represents acres needing controls multiplied by median unit costs of stormwater retrofit costs from FDEP (2010b). 

3 Represents 5% of capital costs. 

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

2. Agricultural Costs 

EPA’s GIS analysis of land use 

indicates that agriculture accounts for 

about 15,312 to 38,140 acres of land 

near incrementally impaired waters. 

This differs substantially from the 

Inland Rule where over 800,000 acres of 

agricultural land use were identified in 

watersheds draining to potentially 

incrementally impaired WBIDs, because 

agriculture is a much more prevalent 

land use inland than near the coast. 

Agricultural runoff can be a source of 

nitrogen and phosphorus to estuaries, 

coastal waters and south Florida inland 

flowing waters through the application 

of fertilizer to crops and pastures and 

from animal wastes. For waters 

impaired by nitrogen and phosphorus 

pollution, the 1999 Florida Watershed 

Restoration Act established that 

agricultural BMPs should be the 

primary instrument to implement 

TMDLs. Thus, additional waters 

identified by the State as impaired 

under the proposed rule may result in 

State requirements or provisions to 

reduce the discharge of nitrogen and/or 

phosphorus to incrementally impaired 

waters through the implementation of 

BMPs. The NRC suggested that for Phase 

I, the incremental agricultural land area 

identified was likely underestimated. 

EPA addressed this finding by including 

land area associated with potentially 

impaired unassessed waters in this 

analysis. 

EPA estimated the potential costs of 

additional agricultural BMPs by 

evaluating land use data. BMP programs 

designed for each type of agricultural 

operation and their costs were taken 

from a study of agricultural BMPs to 

help meet TMDL targets in the 

Caloosahatchee River, St. Lucie River, 

and Lake Okeechobee watersheds. Three 

types of BMP programs were identified 

in this study. The first program, called 

the ‘‘Owner Implemented BMP 

program,’’ consists of a set of BMPs that 

land owners might implement without 

additional incentives. The second 

program, called the ‘‘Typical BMP 

program,’’ is the set of BMPs that land 

owners might implement under a 

reasonably funded cost share program or 

a modest BMP strategy approach. The 

third program, called the ‘‘Alternative 

BMP program,’’ is a more expensive 

program designed to supplement the 

‘‘Owner Implemented BMP program’’ 

and ‘‘Typical BMP program’’ if 

additional reductions are necessary. 

The BMPs in the ‘‘Owner 

Implemented BMP Program’’ and 

‘‘Typical BMP Program’’ are similar to 

the BMPs verified as effective by FDEP 

and adopted by FDACS. EPA did not 

find BMPs in the ‘‘Alternative BMP 

Program’’ similar to the BMPs in the 

FDACS BMP manual, despite the NRC 

suggestion that the ‘‘Alternative BMP 

Program’’ would be needed to meet 

NNC. EPA has also found no indication 

that the ‘‘Alternative BMP Program,’’ 

which includes edge-of-farm stormwater 

chemical treatment, has been 

implemented through TMDLs to meet 

water quality standards for nutrients in 

watersheds with significant 

contributions from agriculture (e.g., 

Lake Okeechobee). EPA also found that 

TMDLs cite the Florida Department of 

Agriculture and Consumer Services’ 

(FDACS) BMP manual as a source of 

approved BMPs. Therefore, for purposes 

of this analysis, EPA believes it is 

reasonable to assume that nutrient 

controls for agricultural sources are best 

represented by the combination of the 

‘‘Owner Implemented BMP Program’’ 

and ‘‘Typical BMP Program’’ and not 

the more stringent ‘‘Alternative BMP 

Program’’ controls. This assumption 

corroborates EPA’s intent for the 

nutrient criteria to provide the same 

level of protection as Florida’s narrative 

criteria. 

Table VI(C)(2) summarizes the 

potential incremental costs of BMPs on 

agricultural lands in the watersheds of 

incrementally impaired estuaries, 

coastal waters and south Florida inland 

flowing waters for each agricultural 

category. This analysis indicates that 

incremental agricultural costs resulting 

from the proposed numeric nutrient 

criteria may be estimated at $0.3—$0.7 

million per year. 


tkelley on DSK3SPTVN1PROD with 
74974 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

222FDOH. 2010. Bureau of Onsite Sewage GIS 

Data Files. Florida Department of Health, Division 

of Environmental Health. http:// 

www.doh.state.fl.us/Environment/programs/EhGis/ 

EhGisDownload.htm. 

TABLE VI(C)(2)—POTENTIAL INCREMENTAL AGRICULTURAL BMP COSTS

Agricultural category 

Area potentially needing 

controls 

(acres) a

‘‘Owner implemented 

BMP Program’’ plus 

’’Typical BMP Program’’ 

Unit Costs 

(2010$/ac/yr) b

Total ‘‘Owner Implemented BMP Program’’ 

and ’’Typical BMP 

Program’’ costs 

(2010$/yr) 

Animal Feeding ............................................................................ 20–39 $18.56 $400–$700 

Citrus ............................................................................................ 0 156.80 $0 

Fruit Orchards c ............................................................................ 0–7 156.80 $0–$1,100 

Cow Calf Production, Improved Pastures ................................... 1,115–4,568 15.84 $17,700–$72,400 

Cow Calf Production, Rangeland and Wooded Pasture ............. 1,145–1,995 4.22 $4,800–$8,400 

Cow Calf Production, Unimproved Pastures ............................... 299–1,346 4.22 $1,300–$5,700 

Cropland and Pasture Land (general) d ....................................... 10,195–18,467 27.26 $277,900–$503,300 

Dairies .......................................................................................... 0 334.40 $0 

Field Crop (Hayland) Production ................................................. 479–1,397 18.56 $8,900–$25,900 

Horse Farms ................................................................................ 34–123 15.84 $500–$1,900 

Ornamental Nursery .................................................................... 4–8 70.00 $300–$600 

Floriculture e ................................................................................. 0 70.00 $0 

Row Crop ..................................................................................... 228–246 70.40 $16,100–$17,300 

Sod/Turf Grass ............................................................................ 0 35.20 $0 

Other Areas f ................................................................................ 565–1,069 18.56 $10,500–$19,800 

Total g .................................................................................... 14,085–29,265 ........................................ $338,300–$657,200 

Note: Detail may not add to total due to independent rounding. a. Low end of range represents acres associated with impaired assessed waters assuming none of the unassessed waters would be impaired 

under the proposed rule; high end of range represent low end plus controls on the watersheds associated with impaired unassessed waters (estimated based on proportional impairment to assessed waters) for which EPA has not already identified a need for controls for baseline or impaired assessed waters. Based on GIS analysis of land use data from five water management districts (for entire State) b. Cost estimates from SWET (2008); representative of 2010 prices (personal communication with D. Bottcher, 2010). c.Owner/typical BMP unit costs based on costs for citrus crops. d.Owner/typical BMP unit costs based on average costs for improved pastures, unimproved/wooded pasture, row crops, and field crops. e.Owner/typical BMP unit costs based on costs for ornamental nurseries. f. Includes FLUCCS Level 3 codes 2230, 2400, 2410, and 2540. 

g.Excludes land not in production. 

3. Septic System Costs 

Some nutrient reductions from septic 

systems may be necessary for 

incrementally impaired waters to meet 

the numeric nutrient criteria in this 

proposed rule. Several nutrient-related 

TMDLs in Florida identify septic 

systems as a significant source of 

nitrogen and phosphorus pollution. 

Some of the ways to address pollution 

from septic systems may include greater 

use of inspection programs and repair of 

failing systems, upgrading existing 

systems to advanced nutrient removal, 

installation of decentralized cluster 

systems where responsible management 

entities would ensure reliable operation 

and maintenance, and connecting 

households and businesses to 

wastewater treatment plants. Because of 

the cost, time, and issues associated 

with new wastewater treatment plant 

construction, EPA assumed that the 

most likely strategy to reduce nutrient 

loads from septic systems would be to 

upgrade existing conventional septic 

systems to advanced nutrient removal 

systems. 

Septic systems in close proximity to 

surface waters are more likely to 

contribute nutrient loads to waters than 

distant septic systems. Florida 

Administrative Code provides that in 

most cases septic systems should be at 

least 75 feet from surface waters (F.A.C. 

64e-6.005(3)). In addition, many of 

Florida’s existing nutrient-related 

TMDLs identify nearby failing septic 

systems as contributing to nutrient 

impairments in surface waters. 

For this economic analysis, EPA 

assumed that some septic systems 

located near incrementally impaired 

waters may be required to upgrade to 

advance nutrient removal systems. 

However, the distance that septic 

systems can be safely located relative to 

these surface waters depends on a 

variety of site-specific factors. Because 

of this uncertainty, EPA assumed that 

septic systems located within 500 feet of 

any water (based on land use types) in 

watersheds containing or, in the case of 

coastal waters, surrounding 

incrementally impaired estuaries, 

coastal waters or south Florida inland 

flowing waters may need to be upgraded 

from conventional to advanced nutrient 

removal systems. The NRC agreed with 

the 500-ft threshold, but found that the 

exclusion of septic systems in 

springsheds is a deficiency of EPA’s 

analysis. This proposed rule does not 

include criteria for springsheds. 

EPA used GIS analysis of data 

obtained from the Florida Department of 

Health 222 that provides the location of 

active septic systems in the State to 

identify the potentially affected septic 

systems. This analysis yielded 5,952 to 

10,784 active septic systems that may be 

affected by the proposed rule. 

EPA evaluated the cost of upgrading 

existing septic systems to advanced 

nutrient removal systems. The NRC also 

recommended that EPA consider 

permeable reactive barriers (PRB) in 

their technology costs and take into 

account any additional Florida-specific 

costs related to septic system upgrades 

(e.g., performance-based treatment 

systems, under Florida regulations, need 

to be designed by Florida licensed 

professional engineers). EPA included 

this technology in the cost analysis, 

resulting in the range of upgrade capital 

costs from $3,300 to $8,800 per system. 

See the Economic Analysis for further 

detail. For O&M costs, EPA relied on a 

study that compared the annual costs 

associated with various septic system 

treatment technologies including 

conventional onsite sewage treatment 

and disposal system and fixed film 

activated sludge systems. Based on this 

study, EPA estimated the incremental 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74975 

223Chang, N., M. Wanielista, A. Daranpob, F. 

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

S. Debusk. 2010. Onsite Sewage Treatment and 

Disposal Systems Evaluation for Nutrient Removal. 

FDEP Project #WM 928. Report Submitted to 

Florida Department of Environmental Protection, by 

Stormwater Management Academy, Civil, 

Environmental, and Construction Engineering 

Department, University of Central Florida. 

224USEPA. 2001. The National Costs of the Total 

Maximum Daily Load Program (Draft Report). EPA– 

841–D–01–003. U.S. Environmental Protection 

Agency, Office of Water, Washington DC. 

225EPA did not adjust these estimates to account 

for potential reductions in resources required to 

develop TMDLs given that scientifically based 

numeric targets were developed as part of this 

proposed rule. Costs for these TMDLs are thus 

likely to be an overestimate. 

O&M costs for an advanced system to be 

$650 per year.223 In addition, 

homeowners would also incur a 

biennial permit fee of $100 (or $50 per 

year) for the upgraded system. Thus, 

based on annual O&M costs of $700 and 

annualizing capital costs at 7% over 20 

years, total annual costs could range 

from approximately $1,000 to $1,500 for 

each upgrade. EPA estimated the total 

annual costs of upgrading septic 

systems by multiplying this range of 

unit costs with the number of systems 

identified for upgrade. Using this 

method, total annual costs for upgrading 

septic systems in incrementally 

impaired watersheds could range from 

$6.0 million to $16.2 million. 

D. Governmental Costs 

The proposed rule may result in the 

identification of incrementally impaired 

waters that would require the 

development of additional TMDLs. As 

the principal State regulatory agency 

implementing water quality standard, 

FDEP may incur costs associated with 

developing additional TMDLs. EPA’s 

analysis identified 95 (based on the 

analysis of assessed waters) to 183 

(including potentially impaired 

unassessed waters) incrementally 

impaired waters (WBIDs). 

Because current TMDLs for estuaries 

and coastal waters in Florida include an 

average of approximately four WBIDs 

each, EPA estimates that the State of 

Florida may need to develop and adopt 

approximately 24 to 46 additional 

TMDLs. The NRC recommended 

applying Florida-specific TMDL 

development costs from a FDEP report 

detailing FDEP TMDL program costs. 

EPA used a range of costs from a 2001 

EPA study that found the cost of 

developing a TMDL at different levels of 

aggregation and the Florida-specific 

TMDL cost estimates are within this 

range of costs.224, 225 For this analysis, 

EPA used the estimates for a single 

cause of impairment and adjusted the 

costs to account for the possibility that 

a TMDL may need to address more than 

one pollutant (because most of the 

incrementally impaired waters in EPA’s 

analysis exceeded the criteria for more 

than one pollutant). Under this 

assumption, EPA estimated the average 

TMDL cost to be approximately $47,000 

($28,000 on average for one pollutant, 

plus $6,000 on average for the other 

pollutant and adjusted to 2010 dollars). 

EPA also estimated unit costs based on 

the high end of typical TMDL 

development costs, plus an additional 

$6,000 for the second nutrient. 

Escalating to 2010 dollars, the high 

range of TMDL development cost of 

$212,000. For 24 to 46 TMDLs, total 

costs for incremental TMDL 

development could be $1.1 million to 

$10.2 million. 

FDEP currently operates its TMDL 

schedule on a five-phase cycle that 

rotates through Florida’s five basins 

over five years. Under this schedule, 

completion of TMDLs for high priority 

waters will take 9 years; it will take an 

additional 5 years to complete the 

process for medium priority waters. 

Assuming all the incremental 

impairments are high priority and FDEP 

develops the new TMDLs over a 9-year 

period, annual costs could be $0.1 to 

$1.1 million. 

Should the State of Florida submit 

current TMDL targets as Federal site 

specific alternative criteria (SSAC) for 

EPA review and approval, EPA believes 

it is reasonable to assume that 

information used in the development of 

the TMDLs will substantially reduce the 

time and effort needed to provide a 

scientifically defensible justification for 

such applications. If EPA’s assumption 

is incorrect and there were to be 

increased costs for the SSAC process, 

EPA expects that such cost 

underestimation would be cancelled out 

by continuing to include the costs of 

developing the scientifically based 

numeric targets for new TMDLs. Thus, 

EPA did not separately analyze any 

incremental costs associated with SSAC. 

Similarly, state and local agencies 

regularly monitor TN and TP in ambient 

waters. These data are the basis for the 

extensive IWR database maintained by 

the State of Florida. Because Florida is 

currently monitoring TN, TP, and 

chlorophyll-a concentrations in many 

waters, EPA assumed that the rule is 

unlikely to have a significant impact on 

costs related to water quality monitoring 

activities. 

E. DPVs 

EPA is proposing several options for 

DPVs. For this analysis, EPA assumed 

that the DPVs equal the numeric 

nutrient criteria for the segment to 

which the stream discharges. If the State 

of Florida were to choose any of the 

other three proposed options for DPVs, 

then these costs may be over- or 

underestimated. To estimate whether 

the DPVs are being met, EPA used the 

same minimum data requirements (e.g., 

four data points in one year with at least 

one data point each in summer and 

winter seasons) and attainment criteria 

(no more than one exceedance in a 

three-year period) for evaluating the 

criteria. EPA used data from estuary 

pour points from any station within 500 

feet of and within the same WBID as the 

pour point. For south Florida pour 

points EPA did not use the data from 

the technical report, but used all data 

from the WBID in which the pour point 

is located to assess impairment. 

For this analysis, EPA assumed that 

any WBID containing a pour point 

exceeding the criteria would be 

designated as impaired. EPA then 

identified the watersheds that contain or 

surround, in the case of coastal waters, 

those incrementally impaired WBIDs. 

See Appendix G of the economic 

analysis for more information. 

TABLE VI(E). SUMMARY OF POTENTIAL

INCREMENTAL COSTS ASSOCIATED

WITH DPVS

Source category 

Total potential 

incremental 

annual cost 

($/year) 

Municipal Wastewater .......... $29.4–$29.6 

Industrial Dischargers ........... $0.0 

Urban Stormwater ................ $9.5–$185.1 

Agriculture ............................. $0.5–$0.9 

Septic Systems ..................... $2.0–$3.0 

Government/Program Implementation 1 ........................ $0.0–$0.1 

Total ............................... $41.4–$218.6 

1. Assuming 3 TMDLs for 13 WBIDs (approximately 4 WBIDs per TMDL) over a 9-year 

period. 

F. Summary of Costs 

Table VI(F) summarizes EPA’s 

estimates of potential incremental costs 

associated with additional State and 

private sector activities to meet the 

numeric criteria supporting State 

designated uses. Note, these total costs 

include costs associated with 

unassessed waters. Because of 

uncertainties in the pollution controls 

ultimately implemented by the State of 

Florida, actual costs may vary 

depending on the site-specific source 

reductions needed to meet the new 

numeric criteria. 


tkelley on DSK3SPTVN1PROD with 
74976 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

226Crist, C. 2010. Seagrass Awareness Month. 

Proclamation by the Governor Charlie Crist of the 

State of Florida. Florida Department of 

Environmental Protection. 

227NOEP. 2006. Coastal Economy Data. National 

Ocean Economics Program. 

www.oceaneconomics.org/Market/coastal/ 

coastalEcon.asp. 

228 Johns, G.M., V.R. Leeworthy, F.W. Bell, and 

M.A. Bonn. 2001. Socioeconomic Study of Reefs in 

SoutheastFlorida. Final Report prepared by Hazen 

and Sawyer, Hollywood, FL, for Broward County, 

Palm Beach County, Miami-Dade County, Monroe 

County, Florida Fish and Wildlife Conservation 

Commission, and National Oceanic and 

Atmospheric Administration. 

TABLE VI(F)—SUMMARY OF POTENTIAL

ANNUAL COSTS 1 (2010 DOLLARS) 

Sector Annual Cost 

(millions) 2

Municipal Wastewater ........ $44.1–$49.7 

Industrial Dischargers ......... $15.2 

Urban Stormwater .............. $131.9–$330.9 

Agriculture ........................... $0.3–$0.7 

Septic Systems ................... $6.0–$16.2 

Government/Program Implementation (TMDLs) .... $0.1–$1.1 

Downstream Protection Values .................................. $41.4–$218.6 

Total ............................. $239.0—$632.4 

1. Includes costs for assessed, unassessed, 

and DPVs. 2. Low end of range represents estimated 

costs under the assumption that none of the 

unassessed waters would be impaired under 

the proposed rule; high end of range represents costs associated with the assumption 

of proportional impairment of unassessed 

waters. 

EPA also calculated the potential 

costs to Florida households. Given the 

uncertainty regarding the magnitude of 

the estimated costs ultimately borne by 

households, EPA sought to minimize 

that uncertainty with a selective though 

matched set of potential costs and 

potentially affected households. 

Although GIS analysis could be used to 

overlay maps of affected populations 

and facilities with incrementally 

impaired watersheds, a simpler more 

direct approach is to assume that all 

households in Florida are either served 

by a wastewater treatment plant or 

septic system, and pay taxes that would 

support implementation programs 

conducted by the State. In addition, 

because the sector with the largest costs 

is urban stormwater, EPA decided to 

include this sector as well. Thus, EPA 

decided to look at the total costs of the 

two rules across all households in 

Florida. Also, given the cost-passthrough of agriculture costs and 

industrial costs to consumers outside 

the State of Florida, EPA did not 

consider them for the estimate of 

average costs per households in Florida. 

Therefore, EPA also calculated the total 

costs for municipal wastewater and 

stormwater controls, septic upgrades, 

and government/program 

implementation costs for both the 

proposed rule and the Inland rule and 

compared this sum to the total number 

of households in the State. This may 

underestimate actual household costs if 

some costs are not borne equally by 

households statewide, but instead are 

concentrated within the watersheds for 

which controls are needed. EPA’s total 

estimated annual cost for compliance 

with this proposed rule, and the Inland 

rule, represents $44 to $108 per 

household per year for both rules across 

all households in Florida. This equals 

$3.60 to $9 per month per household in 

Florida. Please refer to Section 13 in the 

Economic Analysis for more 

information. 

EPA also considered whether the 

potential costs of this proposed rule 

could result in employment impacts. 

Environmental regulations can both 

increase and decrease employment, and 

whether the net effect is positive or 

negative depends on many factors. See 

Chapter 13 of the Economic Analysis for 

further discussion. 

G. Benefits 

Since elevated concentrations of 

nutrients in surface waters can result in 

adverse ecological effects, human health 

impacts, and negative economic 

impacts, EPA expects the proposed 

numeric nutrient criteria to result in 

significant ecological, human health, 

and economic benefits to Florida. For 

example, excess nutrients in water can 

cause eutrophication, which can lead to 

harmful (sometimes toxic) algal blooms, 

loss of rooted plants, and decreased 

dissolved oxygen. In turn, these results 

can lead to adverse impacts on aquatic 

life, fishing, swimming, wildlife 

watching, camping, and drinking water. 

Excess nutrients can also cause: 

nuisance surface scum, reduced food for 

herbivorous wildlife, fish kills, 

alterations in fish communities, and 

unsightly shorelines that can decrease 

property values. Excessive nutrient 

loads can also lead to harmful algal 

blooms (HABs), which can cause a range 

of adverse human health effects 

including dermal, gastrointestinal, 

neurological, and respiratory problems, 

and in severe cases, may even result in 

fatalities. 

Nutrient impairment is currently a 

major concern for many bays, estuaries, 

and coasts within the United States, and 

is particularly severe for many Florida 

waters. FDEP’s 2010 report identifies 

approximately 569 square miles 

(364,160 acres) of estuaries (about 23 

percent of assessed estuarine area) and 

102 square miles (65,280 acres) of 

coastal waters (about 1.5 percent of 

assessed coastal waters) as impaired by 

nutrients. These impairments may have 

a significant impact on the value of 

environmental goods and services 

provided by the affected waterbodies. 

For example, the losses of submerged 

aquatic vegetation resulting from 

eutrophication can have significant 

economic impacts. In 2009, Florida 

seagrass communities supported an 

estimated harvest of $23 million for just 

six species of commercial fish and 

shellfish.226

In Florida’s environment and 

economy, the tourism-focused goods 

and services provided by its bays, 

estuaries, and coastal waters are 

particularly valuable. The tourism 

industry of Florida’s nearshore counties 

contributes approximately $12.4 billion 

(2004 dollars) to the State’s economy 

annually.227 Coral reefs are especially 

important contributors to Florida’s 

tourism sector. Reef-related recreational 

expenditures on activities such as 

snorkeling, scuba diving, fishing, and 

glass bottom boating in four counties in 

southeastern Florida for a one year 

period in 2000–2001 totaled $5.4 

billion.228

The proposed rule will help reduce 

nitrogen and phosphorus concentrations 

in Florida’s estuaries, coastal waters and 

south Florida inland flowing waters. In 

turn, this reduction will improve 

ecological function and prevent further 

degradation that can result in 

substantial economic benefits to Florida 

citizens. EPA’s economic analysis 

document describes in detail many of 

the potential benefits associated with 

meeting the numeric criteria in the 

proposed rule for nitrogen and 

phosphorus, including reduced human 

health risks, ecological benefits and 

functions, improved recreational 

opportunities, aesthetic enhancements 

and others. 

1. Monetized Benefits Estimates 

Reducing nutrient concentrations will 

increase services provided by water 

resources to recreational users. For 

example, some coastal waters that are 

not usable for recreation may become 

available following implementation of 

the rule, thereby expanding recreation 

options for residential users and 

tourists. Other waters that are available 

for recreation can become more 

attractive for users by making 

recreational trips more enjoyable. 

Individuals may also take trips more 

frequently if they enjoy their 

recreational activities more. In addition 

to recreational improvements, the 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74977 

proposed rule is expected to generate 

nonuse benefits from bequest, altruism, 

and existence motivations. Individuals 

may value the knowledge that water 

quality is being maintained, ecosystems 

are being protected, and populations of 

individual species are healthy, 

independently from any use value. 

EPA used a benefits transfer function 

based on meta-analysis of surface water 

valuation studies to estimate both use 

and nonuse benefits from improvements 

in surface water. This approach is based 

on the method used to quantify 

nonmarket benefits in the 2009 

Environmental Impact and Benefits 

Assessment for Final Effluent 

Guidelines and Standards for the 

Construction and Development Category 

(EPA, 2009), also used in the economic 

analysis of the Inland Rule. The 

approach quantifies benefits based on 

reach-specific baseline water quality 

and the estimated change in pollutant 

concentrations. The approach translates 

reductions in nutrients into an indicator 

of overall water quality (via a ‘‘water 

quality ladder,’’ or WQL) and values 

these improvements in terms of 

household willingness to pay (WTP) for 

the types of uses (e.g., as fishing and 

swimming) that are supported by 

different water quality levels. 

EPA calculated the baseline WQL 

scores for incrementally affected waters 

by comparing the water quality 

observations to criteria. For coastal 

waters, only Chl-a criteria are 

applicable, and for these waters, EPA 

estimated baseline WQL scores based on 

Chl-a exceedances only. For other 

marine waters, EPA developed estimates 

of baseline water quality based on 

comparing the water quality 

observations to the applicable criteria in 

the following order: (1) Exceedances of 

proposed TN criteria; (2) exceedances of 

proposed TP criteria; and (3) 

exceedances of proposed Chl-a criteria. 

The baseline WQL score is based on the 

percent exceedance of the applicable 

criterion value. EPA assumes all 

incrementally impaired waters will 

meet the proposed criteria and 

estimated the potential changes for each 

waterbody. EPA estimated that up to 

163 unassessed WBIDs may be 

incrementally impaired, but water 

quality data for these waters are not 

available. To estimate the potential 

benefits associated with these 

potentially impaired unassessed waters, 

EPA estimated the same percent 

exceedance of the potentially impaired 

assessed waters. Because EPA’s 

estimates of monetized benefits only 

reflect the water quality improvements 

for WBIDs, and not HUC–12s, these 

potential benefits are underestimated 

and should not be directly compared to 

costs, which include HUC–12 costs. 

EPA then estimated monetized benefit 

values of these water quality 

improvements using benefits transfer 

based on a meta-regression of 45 studies 

that value water quality improvements 

in surface waters. Using the metaanalysis EPA estimated a household 

WTP function with independent 

variables that characterize (1) the 

underlying study and methodology 

used, (2) demographic and other 

characteristics of the surveyed 

populations, (3) geographic region and 

scale, and (4) resource characteristics 

and improvements. More details on the 

meta-analysis can be found in the 

Economic Analysis. 

Using this function, EPA derived 

household WTP estimates for both full 

time and part time residents of the State. 

EPA estimated that seasonal residents 

live in the State for approximately four 

months of the year; therefore EPA 

weighted household WTP values for 

seasonal residents by one third. EPA 

then weighted household WTP 

estimates by the percentage of State 

water miles that are expected to 

improve. EPA estimated total benefits 

by multiplying the weighted household 

WTP value with the total number of 

benefiting households. EPA estimated 

the number of full time residents by 

dividing the total State population by 

average household size for the State as 

provided by the U.S. Census Bureau’s 

2010 American Community Survey 

(U.S. Census Bureau, 2010). The number 

of part-time households in Florida is 

based on Smith and House (2006), who 

used survey data to estimate the 

number, timing, and duration of 

temporary moves to Florida at peak 

seasons. EPA used the Smith and House 

(2006) results and U.S. Census Bureau 

(2010) statistics on household size to 

estimate the number of part-time 

households in Florida. Total monetized 

benefits, including monetized benefits 

of unassessed waters, may be in the 

range from $39.0 million to $53.4 

million annually, as shown in Table 

VI(F). The range reflects EPA’s 

assumptions regarding the location of 

unassessed waters that might be 

incrementally impaired. 

Because EPA’s estimates of monetized 

benefits only reflect use and nonuse 

values associated with water quality 

improvements to Florida residents (full 

and part time), these potential benefits 

are likely underestimated compared to 

costs. The population considered in the 

benefits analysis of the rule does not 

include households outside of Florida 

that may also hold values for water 

resources in the State of Florida. Even 

if per household values for out-of-State 

residents are small, they may be 

significant in the aggregate if these 

values are held by a substantial number 

of out-of-State households. EPA notes 

that four times as many out-of-State and 

foreign tourists visit the State’s saltwater 

beaches each year as State residents do. 

Not including out-of-State residents in 

the analysis is likely to result in an 

underestimation of the total benefits of 

improved water quality. Although these 

monetized benefits estimates do not 

account for all potential economic 

benefits arising from the proposed rule, 

they help to demonstrate the economic 

importance of restoring and protecting 

Florida waters from the impacts of 

nitrogen and phosphorus pollution. 

TABLE VI(F)—POTENTIAL ANNUAL STATE BENEFITS ASSOCIATED WITH THE PROPOSED CRITERIA INCLUDING UNASSESSED

WATERS (2010 DOLLARS) 

WTP estimate Average benefit 

per mile 1

Total benefits 

(millions) 2

Lower 5% Bound ......................................................................................................................................... $8,200 $17.2–$23.6 

Mean ............................................................................................................................................................ 18,500 $39.0–$53.4 

Upper 95% Bound ....................................................................................................................................... 34,500 $72.5–$99.4 

1Total benefits divided by 2,102 incrementally impaired assessed miles. 

2Benefits per mile times the number of incrementally impaired miles; based on between 2,102 and 2,882 potentially improved miles. The low 

end of the range represents assessed waters only, and the high end of the range includes unassessed waters. 


tkelley on DSK3SPTVN1PROD with 
74978 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

229A ‘‘Federal mandate’’ does not include 

conditions of Federal assistance and generally does 

not include duties arising from participation in a 

voluntary Federal program. 

VII. Statutory and Executive Order 

Reviews 

A. Executive Orders 12866 (Regulatory 

Planning and Review) and 13563 

(Improving Regulation and Regulatory 

Review) 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action.’’ 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011) and any changes made 

in response to OMB recommendations 

have been documented in the docket for 

this action. This proposed rule does not 

establish any requirements directly 

applicable to regulated entities or other 

sources of nitrogen and phosphorus 

pollution. Moreover, existing narrative 

water quality criteria in State law 

already require that nutrients not be 

present in waters in concentrations that 

cause an imbalance in natural 

populations of flora and fauna in 

estuaries and coastal waters in Florida 

and in south Florida inland flowing 

waters. 

B. Paperwork Reduction Act 

This action does not impose any 

direct new information collection 

burden under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. Actions to implement these 

standards may entail additional 

paperwork burden. Burden is defined at 

5 CFR 1320.3(b). This action does not 

include any information collection, 

reporting, or record-keeping 

requirements. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this action on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise that is independently owned 

and operated and is not dominant in its 

field. 

Under the CWA water quality 

standards program, states must adopt 

water quality standards for their waters 

and must submit those water quality 

standards to EPA for review and 

approval or disapproval; if the Agency 

disapproves a state standard and the 

state does not adopt appropriate 

revisions to address EPA’s disapproval, 

EPA must promulgate standards 

consistent with the statutory and 

regulatory requirements. EPA also has 

the authority to promulgate water 

quality standards in any case where the 

Administrator determines that a new or 

revised standard is necessary to meet 

the requirements of the CWA. State 

standards approved by EPA (or EPApromulgated standards) are 

implemented through various water 

quality control programs including the 

NPDES program, which limits 

discharges to navigable waters except in 

compliance with an NPDES permit. The 

CWA requires that all NPDES permits 

include any limits on discharges that are 

necessary to meet applicable water 

quality standards. 

Thus, under the CWA, EPA’s 

promulgation of water quality standards 

establishes standards that the State of 

Florida implements through the NPDES 

permit process. The State has discretion 

in developing discharge limits, as 

needed to meet the standards. This 

proposed rule does not itself establish 

any requirements that are applicable to 

small entities. As a result of this action, 

the State of Florida will need to ensure 

that permits it issues include any 

limitations on discharges necessary to 

comply with the standards established 

in the final rule. In doing so, the State 

will have a number of choices 

associated with permit writing (e.g., 

relating to compliance schedules, 

variances, etc.). While Florida’s 

implementation of the rule may 

ultimately result in new or revised 

permit conditions for some dischargers, 

including small entities, EPA’s action, 

by itself, does not impose any of these 

requirements on small entities; that is, 

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

rule will not have a significant 

economic impact on a substantial 

number of small entities. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on state, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

that include a ’’Federal mandate’’ that 

may result in expenditures to state, 

local, and Tribal governments, in the 

aggregate, or to the private sector, of 

$100 million or more in any one year. 

A ‘‘Federal mandate,’’ is any provision 

in federal statute or regulation that 

would impose an enforceable duty on 

State, local or Tribal governments or the 

private sector.229 Before promulgating 

an EPA rule for which a written 

statement is needed under section 202, 

section 205 of the UMRA generally 

requires EPA to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

most cost-effective or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205(a) do not apply when they are 

inconsistent with law. Moreover, 

section 205(b) allows EPA to adopt an 

alternative other than the least costly, 

most cost-effective or least burdensome 

alternative if the Administrator 

publishes with the final rule an 

explanation of why that alternative was 

not adopted. Before EPA establishes any 

regulatory requirements that may 

significantly or uniquely affect small 

governments, including Tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

This proposed rule contains no 

Federal mandates (under the regulatory 

provisions of Title II of the UMRA) for 

state, local, or Tribal governments or the 

private sector. As these water quality 

criteria are not self-implementing, EPA’s 

proposed rule does not regulate or affect 

any entity. Because this proposed rule 

does not regulate or affect any entity, it 

therefore is not subject to the 

requirements of sections 202 and 205 of 

UMRA. 

EPA determined that this proposed 

rule contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74979 

Moreover, water quality standards, 

including those promulgated here, 

apply broadly to dischargers and are not 

uniquely applicable to small 

governments. Thus, this proposed rule 

is not subject to the requirements of 

section 203 of UMRA. 

E. Executive Order 13132 (Federalism) 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. EPA’s authority 

and responsibility to promulgate 

Federal water quality standards when 

state standards do not meet the 

requirements of the CWA is well 

established and has been used on 

various occasions in the past. The 

proposed rule would not substantially 

affect the relationship between EPA and 

the States and Territories, or the 

distribution of power or responsibilities 

between EPA and the various levels of 

government. The proposed rule would 

not alter Florida’s considerable 

discretion in implementing these water 

quality standards. Further, this 

proposed rule would not preclude 

Florida from adopting water quality 

standards that EPA concludes meet the 

requirements of the CWA, either before 

or after promulgation of the final rule, 

which would eliminate the need for 

Federal standards. Thus, Executive 

Order 13132 does not apply to this 

proposed rule. 

Although section 6 of Executive Order 

13132 does not apply to this action, EPA 

communicated with the State of Florida 

to discuss the Federal rulemaking 

process. In the spirit of Executive Order 

13132, and consistent with EPA policy 

to promote communications between 

EPA and State and local governments, 

EPA specifically solicits comment on 

this proposed rule from State and local 

officials. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

Subject to the Executive Order 13175 

(65 FR 67249, November 9, 2000) EPA 

may not issue a regulation that has tribal 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by Tribal governments, or 

EPA consults with tribal officials early 

in the process of developing the 

proposed regulation and develops a 

tribal summary impact statement. EPA 

has concluded that this action may have 

tribal implications. However, the rule 

will neither impose substantial direct 

compliance costs on tribal governments, 

nor preempt Tribal law. 

In the State of Florida, there are two 

Indian tribes, the Seminole Tribe of 

Florida and the Miccosukee Tribe of 

Indians of Florida, with flowing waters. 

Both tribes have been approved for 

treatment in the same manner as a state 

(TAS) status for CWA sections 303 and 

401 and have federally-approved water 

quality standards in their respective 

jurisdictions. These tribes are not 

subject to this proposed rule. However, 

this rule may impact the tribes because 

the numeric criteria for Florida will 

apply to waters adjacent to the tribal 

waters. 

EPA consulted with Tribal officials 

early in the process of developing this 

regulation to permit them to have 

meaningful and timely input into its 

development. At a consultation 

teleconference held on March 1, 2012, 

EPA summarized the available 

information regarding this proposed 

rule, and requested comments on the 

proposal and its possible effects on 

tribal waters. Information relevant to 

this proposed action and the related 

Tribal consultation is posted on the EPA 

Tribal Portal site at http://www.epa.gov/ 

tribal/consultation/index.htm. EPA 

specifically solicits additional comment 

on this proposed rule from tribal 

officials. 

G. Executive Order 13045 (Protection of 

Children From Environmental Health 

and Safety Risks) 

This action is not subject to EO 13045 

(62 FR 19885, April 23, 1997) because 

it is not economically significant as 

defined in EO 12866, and because the 

Agency believes that this rule will result 

in the reduction of environmental 

health and safety risks that could 

present a disproportionate risk to 

children. 

H. Executive Order 13211 (Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use) 

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

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

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

have a significant adverse effect on the 

supply, distribution, or use of energy. 

I. National Technology Transfer 

Advancement Act of 1995 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

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

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

J. Executive Order 12898 (Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations) 

Executive Order (EO) 12898 (Feb. 16, 

1994) establishes Federal executive 

policy on environmental justice. Its 

main provision directs Federal agencies, 

to the greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 

proposed rule does not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it would afford a greater level 

of protection to both human health and 

the environment if these numeric 

nutrient criteria are promulgated for 

Class I, Class II and Class III waters in 

the State of Florida. 

List of Subjects in 40 CFR Part 131 

Environmental protection, Water 

quality standards, Nitrogen and 

phosphorus pollution, Nutrients, 

Florida. 

Dated: November 30, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, EPA proposes to amend 40 

CFR part 131 as follows: 

PART 131—WATER QUALITY 

STANDARDS 

1. The authority citation for part 131 

continues to read as follows: 


tkelley on DSK3SPTVN1PROD with 
74980 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

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

Subpart D—[Amended] 

2. Section 131.45 is added to read as 

follows: 

§ 131.45 Water Quality Standards for the 

State of Florida’s Estuaries, Coastal Waters, 

and South Florida Inland Flowing Waters 

(a) Scope. This section promulgates 

numeric criteria for nitrogen and 

phosphorus pollution for Class I, Class 

II, and Class III waters in the State of 

Florida. This section also contains 

provisions for site-specific alternative 

criteria. 

(b) Definitions.—(1) Canal means a 

trench, the bottom of which is normally 

covered by water with the upper edges 

of its two sides normally above water. 

(2) Coastal water means all marine 

waters that have been classified as Class 

II (Shellfish Propagation or Harvesting) 

or Class III (Recreation, Propagation and 

Maintenance of a Healthy, WellBalanced Population of Fish and 

Wildlife) water bodies pursuant to 

Section 62–302.400, F.A.C., extending 

to three nautical miles from shore that 

are not classified as estuaries. 

(3) Estuary means predominantly 

marine regions of interaction between 

rivers and nearshore ocean waters, 

where tidal action and river flow mix 

fresh and salt water. Such areas include 

bays, mouths of rivers, and lagoons that 

have been classified as Class II 

(Shellfish Propagation or Harvesting) or 

Class III (Recreation, Propagation and 

Maintenance of a Healthy, WellBalanced Population of Fish and 

Wildlife) water bodies pursuant to 

Section 62–302.400, F.A.C., excluding 

wetlands. 

(4) Everglades Agricultural Area 

(EAA) means those lands described in 

Florida Statute Section 373.4592 (1994) 

subsection (15). 

(5) Everglades Protection Area (EvPA) 

means Water Conservation Areas 1 

(which includes the Arthur R. Marshall 

Loxahatchee National Wildlife Refuge), 

2A, 2B, 3A, and 3B, and the Everglades 

National Park. 

(6) Inland flowing waters means 

inland predominantly fresh surface 

water streams that have been classified 

as Class I (Potable Water Supplies) or 

Class III (Recreation, Propagation and 

Maintenance of a Healthy, WellBalanced Population of Fish and 

Wildlife) water bodies pursuant to 

Section 62–302.400, F.A.C., excluding 

wetlands (e.g., sloughs). 

(7) Marine Lake means a slow-moving 

or standing body of marine water that 

occupies an inland basin that is not a 

stream, spring, or wetland. 

(8) Predominantly fresh waters means 

surface waters in which the chloride 

concentration at the surface is less than 

1,500 milligrams per liter. 

(9) Predominantly marine waters 

means surface waters in which the 

chloride concentration at the surface is 

greater than or equal to 1,500 milligrams 

per liter. 

(10) South Florida inland flowing 

waters means inland flowing waters in 

the South Florida Nutrient Watershed 

Region, which encompasses the waters 

south of Lake Okeechobee, the 

Caloosahatchee River (including Estero 

Bay) watershed, and the St. Lucie 

watershed. 

(11) State means the State of Florida, 

whose transactions with the U.S. EPA in 

matters related to 40 CFR 131.45 are 

administered by the Secretary, or 

officials delegated such responsibility, 

of the Florida Department of 

Environmental Protection (FDEP), or 

successor agencies. 

(12) Stream means a free-flowing, 

predominantly fresh surface water in a 

defined channel, and includes rivers, 

creeks, branches, canals, freshwater 

sloughs, and other similar water bodies. 

(13) Surface water means water upon 

the surface of the earth, whether 

contained in bounds created naturally 

or artificially or diffused. Water from 

natural springs shall be classified as 

surface water when it exits from the 

spring onto the Earth’s surface. 

(14) Tidal creek means a relatively 

small coastal tributary with variable 

salinity that lies at the transition zone 

between terrestrial uplands and the 

open estuary. 

(c) Criteria for Florida Waters. 

(1) Criteria for Estuaries. 

The applicable total nitrogen (TN), 

total phosphorus (TP), and chlorophyll 

a criteria for estuaries are shown in 

Table 1. 

TABLE 1—EPA’S NUMERIC CRITERIA FOR FLORIDA’S ESTUARIES

[In geographic order Northwest to Northeast] 

Segment Segment ID 

Proposed Criteria 

TN* 

(mg/L) 

TP* 

(mg/L) 

Chl-a* 

(μg/L) 

Perdido Bay: 

Upper Perdido Bay ................................................................................... 0101 0.59 0.042 5.2 

Big Lagoon ............................................................................................... 0102 0.26 0.019 4.9 

Central Perdido Bay ................................................................................. 0103 0.47 0.031 5.8 

Lower Perdido Bay ................................................................................... 0104 0.34 0.023 5.8 

Pensacola Bay: 

Blackwater Bay ......................................................................................... 0201 0.53 0.022 3.9 

Upper Escambia Bay ................................................................................ 0202 0.43 0.025 3.7 

East Bay ................................................................................................... 0203 0.50 0.021 4.2 

Santa Rosa Sound ................................................................................... 0204 0.34 0.018 4.1 

Lower Escambia Bay ................................................................................ 0205 0.44 0.023 4.0 

Upper Pensacola Bay ............................................................................... 0206 0.40 0.021 3.9 

Lower Pensacola Bay ............................................................................... 0207 0.34 0.020 3.6 

Santa Rosa Sound ................................................................................... 0208 0.33 0.020 3.9 

Santa Rosa Sound ................................................................................... 0209 0.36 0.020 4.9 

Choctawhatchee Bay: 

Eastern Choctawhatchee Bay .................................................................. 0301 0.47 0.025 8.1 

Central Choctawhatchee Bay ................................................................... 0302 0.36 0.019 3.8 

Western Choctawhatchee Bay ................................................................. 0303 0.21 0.012 2.4 

St. Andrews Bay: 

East Bay ................................................................................................... 0401 0.31 0.014 4.6 

St. Andrews Sound ................................................................................... 0402 0.14 0.009 2.3 

Eastern St. Andrews Bay ......................................................................... 0403 0.24 0.021 3.9 


tkelley on DSK3SPTVN1PROD with 
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TABLE 1—EPA’S NUMERIC CRITERIA FOR FLORIDA’S ESTUARIES—Continued 

[In geographic order Northwest to Northeast] 

Segment Segment ID 

Proposed Criteria 

TN* 

(mg/L) 

TP* 

(mg/L) 

Chl-a* 

(μg/L) 

Western St. Andrews Bay ........................................................................ 0404 0.19 0.016 3.1 

Southern St. Andrews Bay ....................................................................... 0405 0.15 0.013 2.6 

North Bay 1 .............................................................................................. 0406 0.22 0.012 3.7 

North Bay 2 .............................................................................................. 0407 0.22 0.014 3.7 

North Bay 3 .............................................................................................. 0408 0.21 0.016 3.4 

West Bay .................................................................................................. 0409 0.23 0.022 3.8 

St. Joseph Bay: 

St. Joseph Bay ......................................................................................... 0501 0.25 0.018 3.8 

Apalachicola Bay: 

St. George Sound ..................................................................................... 0601 0.53 0.019 3.6 

Apalachicola Bay ...................................................................................... 0602 0.51 0.019 2.7 

East Bay ................................................................................................... 0603 0.76 0.034 1.7 

St. Vincent Sound ..................................................................................... 0605 0.52 0.016 11.9 

Apalachicola Offshore .............................................................................. 0606 0.30 0.008 2.3 

Alligator Harbor: 

Alligator Harbor ......................................................................................... 0701 0.36 0.011 2.8 

Alligator Offshore ...................................................................................... 0702 0.33 0.009 3.1 

Alligator Offshore ...................................................................................... 0703 0.33 0.009 2.9 

Ochlockonee Bay +: 

Ochlockonee-St. Marks Offshore ............................................................. 0825 0.79 0.033 2.7 

Ochlockonee Offshore .............................................................................. 0829 0.47 0.019 1.9 

Ochlockonee Bay ..................................................................................... 0830 0.66 0.037 1.8 

St. Marks River Offshore .......................................................................... 0827 0.51 0.022 1.7 

St. Marks River ......................................................................................... 0828 0.55 0.030 1.2 

Big Bend/Apalachee Bay +: 

Econfina Offshore ..................................................................................... 0824 0.59 0.028 4.6 

Econfina .................................................................................................... 0832 0.55 0.032 4.4

Fenholloway .............................................................................................. 0822 1.15 0.444 1.9 

Fenholloway Offshore ............................................................................... 0823 0.48 0.034 10.3 

Steinhatchee-Fenholloway Offshore ........................................................ 0821 0.40 0.023 4.1 

Steinhatchee River ................................................................................... 0819 0.67 0.077 1.0 

Steinhatchee Offshore .............................................................................. 0820 0.34 0.018 3.5 

Steinhatchee Offshore .............................................................................. 0818 0.39 0.032 4.8 

Suwannee River +: 

Suwannee Offshore .................................................................................. 0817 0.78 0.049 5.2 

Springs Coast +: 

Waccasassa River Offshore ..................................................................... 0814 0.38 0.019 3.9 

Cedar Keys ............................................................................................... 0815 0.32 0.019 4.1 

Crystal River ............................................................................................. 0812 0.35 0.013 1.3 

Crystal-Homosassa Offshore .................................................................... 0813 0.36 0.013 2.1 

Homosassa River ..................................................................................... 0833 0.47 0.032 1.9 

Chassahowitzka River .............................................................................. 0810 0.32 0.010 0.7 

Chassahowitzka River Offshore ............................................................... 0811 0.29 0.009 1.7 

Weeki Wachee River ................................................................................ 0808 0.32 0.010 1.6 

Weeki Wachee Offshore ........................................................................... 0809 0.30 0.009 2.1 

Pithlachascotee River ............................................................................... 0806 0.50 0.022 2.4 

Pithlachascotee Offshore ......................................................................... 0807 0.32 0.011 2.5 

Anclote River ............................................................................................ 0804 0.48 0.037 4.7 

Anclote Offshore ....................................................................................... 0805 0.31 0.011 3.2 

Anclote Offshore South ............................................................................ 0803 0.29 0.008 2.6 

Lake Worth Lagoon/Loxahatchee: 

North Lake Worth Lagoon ........................................................................ 1201 0.55 0.067 4.7 

Central Lake Worth Lagoon ..................................................................... 1202 0.57 0.089 5.3 

South Lake Worth Lagoon ....................................................................... 1203 0.48 0.034 3.6 

Lower Loxahatchee .................................................................................. 1301 0.68 0.028 2.7 

Middle Loxahatchee ................................................................................. 1302 0.98 0.044 3.9 

Upper Loxahatchee .................................................................................. 1303 1.25 0.072 3.6 

St. Lucie: 

Lower St. Lucie ......................................................................................... 1401 0.58 0.045 5.3 

Middle St. Lucie ........................................................................................ 1402 0.90 0.120 8.4 

Upper St. Lucie ......................................................................................... 1403 1.22 0.197 8.9 

Indian River Lagoon: 

Mosquito Lagoon ...................................................................................... 1501 1.18 0.078 7.5 

Banana River ............................................................................................ 1502 1.17 0.036 5.7 

Upper Indian River Lagoon ...................................................................... 1503 1.63 0.074 9.2 

Upper Central Indian River Lagoon .......................................................... 1504 1.33 0.076 9.2 

Lower Central Indian River Lagoon .......................................................... 1505 1.12 0.117 8.7 

Lower Indian River Lagoon ...................................................................... 1506 0.49 0.037 4.0 


tkelley on DSK3SPTVN1PROD with 
74982 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

TABLE 1—EPA’S NUMERIC CRITERIA FOR FLORIDA’S ESTUARIES—Continued 

[In geographic order Northwest to Northeast] 

Segment Segment ID 

Proposed Criteria 

TN* 

(mg/L) 

TP* 

(mg/L) 

Chl-a* 

(μg/L) 

Halifax River: 

Upper Halifax River .................................................................................. 1601 0.75 0.243 9.4 

Lower Halifax River .................................................................................. 1602 0.63 0.167 9.6 

Guana, Tolomato, Matanzas, Pellicer: 

Upper GTMP ............................................................................................ 1701 0.77 0.144 9.5 

Lower GTMP ............................................................................................ 1702 0.53 0.108 6.1 

Lower St. Johns River: 

Lower St. Johns River .............................................................................. 1801 0.75 0.095 2.5 

Trout River ................................................................................................ 1802 1.09 0.108 3.6 

Trout River ................................................................................................ 1803 1.15 0.074 7.7 

Nassau River: 

Lower Nassau ........................................................................................... 1901 0.33 0.113 3.2 

Middle Nassau .......................................................................................... 1902 0.40 0.120 2.4 

Upper Nassau ........................................................................................... 1903 0.75 0.125 3.4 

St. Marys River: 

Lower St. Marys River .............................................................................. 2002 0.27 0.045 3.0 

Middle St. Marys River ............................................................................. 2003 0.44 0.036 2.7 

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

phaeophytin a, has been subtracted from the uncorrected chlorophyll a measurement. 

* For a given water body, the annual geometric mean of TN, TP, or chlorophyll a, concentrations shall not exceed the applicable criterion concentration more than once in a three-year period. + In these four areas (collectively referred to as the ‘‘Big Bend region’’), coastal and estuarine waters are combined. Criteria for the Big Bend 

region apply to the coastal and estuarine waters in that region. 

(2) Criteria for Tidal Creeks. 

The applicable total nitrogen (TN), 

total phosphorus (TP), and chlorophyll 

a criteria for predominantly marine tidal 

creeks are shown in § 131.45(c)(1), Table 

1. The applicable TN and TP criteria for 

predominantly freshwater tidal creeks 

are shown in Table 2. 

TABLE 2—EPA’S NUMERIC CRITERIA

FOR FLORIDA’S PREDOMINANTLY

FRESHWATER TIDAL CREEKS

Nutrient watershed 

region 

Instream protection 

value criteria 

TN 

(mg/L) * 

TP 

(mg/L) * 

Panhandle West a ..... 0.67 0.06 

Panhandle East b ...... 1.03 0.18 

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

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

TABLE 2—EPA’S NUMERIC CRITERIA

FOR FLORIDA’S PREDOMINANTLY

FRESHWATER TIDAL CREEKS—Continued 

Nutrient watershed 

region 

Instream protection 

value criteria 

TN 

(mg/L) * 

TP 

(mg/L) * 

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

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

on the NOAA coastal, estuarine, and fluvial 

drainage areas with modifications to the 

NOAA drainage areas in the West Central and 

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

Document. aPanhandle West region includes: Perdido 

Bay Watershed, Pensacola Bay Watershed, 

Choctawhatchee Bay Watershed, St. Andrews 

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

Apalachee Bay Watershed, and Econfina/ 

Steinhatchee Coastal Drainage Area. c North Central region includes the Suwannee River Watershed. 

dWest Central region includes: Peace, 

Myakka, Hillsborough, Alafia, Manatee, Little 

Manatee River Watersheds, and small, direct 

Tampa Bay tributary watersheds south of the 

Hillsborough River Watershed. ePeninsula region includes: Waccasassa 

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

Coastal Drainage Area, small, direct Tampa 

Bay tributary watersheds west of the 

Hillsborough River Watershed, Sarasota Bay 

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

Watershed, Caloosahatchee River Watershed, 

Estero Bay Watershed, Kissimmee River/Lake 

Okeechobee Drainage Area, Loxahatchee/St. 

Lucie Watershed, Indian River Watershed, 

Daytona/St. Augustine Coastal Drainage Area, 

St. Johns River Watershed, Nassau Coastal 

Drainage Area, and St. Marys River Watershed. 

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

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

(3) Criteria for Marine Lakes. 

The applicable total nitrogen (TN), 

total phosphorus (TP) and chlorophyll a 

criteria for marine lakes are shown in 

Table 3. 

TABLE 3—EPA’S NUMERIC CRITERIA FOR FLORIDA’S MARINE LAKES

Long term average lake color a and alkalinity EPA final Chl-a b,*

μg/L 

EPA final TN and TP criteria 

[range] 

TN 

mg/L 

TP 

mg/L 

Colored lakes c ..................................................................................................... 20 1.27 

[1.27–2.23] 

0.05 

[0.05–0.16] 


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TABLE 3—EPA’S NUMERIC CRITERIA FOR FLORIDA’S MARINE LAKES—Continued 

Long term average lake color a and alkalinity EPA final Chl-a b,*

μg/L 

EPA final TN and TP criteria 

[range] 

TN 

mg/L 

TP 

mg/L 

Clear lakes, high alkalinity d ................................................................................. 20 1.05 

[1.05–1.91] 

0.03 

[0.03–0.09] 

Clear lakes, low alkalinity e .................................................................................. 6 0.51 

[0.51–0.93] 

0.01 

[0.01–0.03] 

aPlatinum-cobalt units (PCU) assessed as true color free from turbidity 

b Chl-a is defined as corrected chlorophyll, or the concentration of chl-a remaining after the chlorophyll degradation product, phaeophytin a, has 

been subtracted from the uncorrected chl-a measurement. c Long-term color > 40 PCU and alkalinity > 20 mg/L CaCO3 d Long-term color ≤ 40 PCU and alkalinity > 20 mg/L CaCO3 e Long-term color ≤ 40 PCU and alkalinity ≤ 20 mg/L CaCO3

* For a water body, the annual geometric mean of chl-a, TN or TP concentrations shall not exceed the applicable criterion concentration more 

than once in a three-year period. 

(4) Criteria for Coastal Waters. The applicable chlorophyll a criteria 

for coastal waters are shown in Table 4. 

TABLE 4—EPA’S NUMERIC CRITERIA FOR FLORIDA’S COASTAL WATERS

Coastal region Coastal 

segment + Approximate location ChlorophyllRS-a 1* (mg/m3) 

Panhandle ............................................................... 1 Alabama border ...................................................... 2.41 

2 Pensacola Bay Pass .............................................. 2.57 

3 ................................................................................. 1.44 

4 ................................................................................. 1.16 

5 ................................................................................. 1.06 

6 ................................................................................. 1.04 

7 ................................................................................. 1.14 

8 Choctawhatchee Bay Pass .................................... 1.23 

9 ................................................................................. 1.08 

10 ................................................................................. 1.09 

11 ................................................................................. 1.11 

12 ................................................................................. 1.18 

13 ................................................................................. 1.45 

14 St. Andrews Bay Pass ........................................... 1.74 

15 St. Joseph Bay Pass .............................................. 2.75 

16 ................................................................................. 2.39 

17 Southeast St. Joseph Bay ..................................... 3.47 

West Florida Shelf .................................................. 18 ................................................................................. 3.96 

19 Tampa Bay Pass .................................................... 4.45 

20 ................................................................................. 3.37 

21 ................................................................................. 3.25 

22 ................................................................................. 2.95 

23 ................................................................................. 2.79 

24 ................................................................................. 2.98 

25 ................................................................................. 3.24 

26 Charlotte Harbor ..................................................... 4.55 

27 ................................................................................. 4.22 

28 ................................................................................. 3.67 

29 ................................................................................. 4.16 

30 ................................................................................. 5.70 

31 ................................................................................. 4.54 

32 ................................................................................. 4.03 

33 Fort Myers .............................................................. 4.61 

Atlantic Coast .......................................................... 34 Biscayne Bay ......................................................... 0.92 

35 ................................................................................. 0.26 

36 ................................................................................. 0.26 

37 ................................................................................. 0.24 

38 ................................................................................. 0.21 

39 ................................................................................. 0.21 

40 ................................................................................. 0.20 

41 ................................................................................. 0.20 

42 ................................................................................. 0.21 

43 ................................................................................. 0.25 

44 ................................................................................. 0.57 

45 St. Lucie Inlet ......................................................... 1.08 

46 ................................................................................. 1.42 


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74984 Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 

TABLE 4—EPA’S NUMERIC CRITERIA FOR FLORIDA’S COASTAL WATERS—Continued 

Coastal region Coastal 

segment + Approximate location ChlorophyllRS-a 1* (mg/m3) 

47 ................................................................................. 1.77 

48 ................................................................................. 1.55 

49 ................................................................................. 1.44 

50 ................................................................................. 1.53 

51 ................................................................................. 1.31 

52 ................................................................................. 1.40 

53 ................................................................................. 1.80 

54 Canaveral Bight ...................................................... 2.73 

55 ................................................................................. 2.33 

56 ................................................................................. 2.28 

57 ................................................................................. 2.06 

58 ................................................................................. 1.92 

59 ................................................................................. 1.76 

60 ................................................................................. 1.72 

61 ................................................................................. 2.04 

62 ................................................................................. 1.92 

63 ................................................................................. 1.86 

64 ................................................................................. 1.95 

65 ................................................................................. 2.41 

66 ................................................................................. 2.76 

67 ................................................................................. 2.80 

68 ................................................................................. 3.45 

69 Nassau Sound ........................................................ 3.69 

70 ................................................................................. 3.78 

71 Georgia border ....................................................... 4.22 

1 ChlorophyllRS-a is remotely sensed calculation of chlorophyll a concentrations. 

* For a given water body, the annual geometric mean of the chlorophyll a concentration shall not exceed the applicable criterion concentration 

more than once in a three-year period. +Please see TSD for location of Coastal Segments (Volume 2: Coastal Waters, Section 1.3). 

(5) Criteria for South Florida Inland 

Flowing Waters. 

The applicable criteria for south 

Florida inland flowing waters that flow 

into downstream estuaries include the 

downstream protection value (DPV) for 

total nitrogen (TN) and total phosphorus 

(TP) derived pursuant to the provisions 

of § 131.45(c)(6). These criteria are not 

applicable to waters within the lands of 

the Miccosukee and Seminole Tribes, 

the Everglades Protection Area (EvPA), 

or the Everglades Agricultural Area 

(EAA). 

(6) Criteria for Protection of 

Downstream Estuaries and South 

Florida marine waters. (i) A downstream 

protection value (DPV) for stream 

tributaries that flow into a downstream 

estuary or south Florida marine water 

(i.e., downstream water) is the allowable 

concentration of total nitrogen (TN) 

and/or total phosphorus (TP) applied at 

the point of entry into the downstream 

water. The applicable DPV for any 

stream flowing into a downstream water 

shall be determined pursuant to 

paragraphs (c)(6)(ii), (iii), (iv), or (v) of 

this section. The methods available to 

derive DPVs should be considered in 

the order listed. Contributions from 

stream tributaries upstream of the point 

of entry location must result in 

attainment of the DPV at the point of 

entry into the downstream water. If the 

DPV is not attained at the point of entry 

into the downstream water, then the 

collective set of streams in the upstream 

watershed does not attain the DPV, 

which is an applicable water quality 

criterion for the water segments in the 

upstream watershed. The State or EPA 

may establish additional DPVs at 

upstream tributary locations that are 

consistent with attaining the DPV at the 

point of entry into the downstream 

water. The State or EPA also have 

discretion to establish DPVs to account 

for a larger watershed area (i.e., include 

waters beyond the point of reaching 

water bodies that are not streams as 

defined by this rule). 

(ii) In instances where available data 

and/or resources provide for use of a 

scientifically defensible and protective 

system-specific application of water 

quality simulation models with results 

that protect the designated uses and 

meet all applicable numeric nutrient 

criteria for the downstream water, the 

State or EPA may derive the DPV for TN 

and TP from use of a system-specific 

application of water quality simulation 

models. The State or EPA may designate 

the wasteload and/or load allocations 

from a TMDL established or approved 

by EPA as DPV(s) if the allocations from 

the TMDL will protect the downstream 

water’s designated uses and meet all 

applicable numeric nutrient criteria for 

the downstream water. 

(iii) When the State or EPA has not 

derived a DPV for a stream pursuant to 

paragraph (c)(6)(ii) of this section, and 

where a reference condition approach is 

used to derive the downstream water’s 

TN, TP and chlorophyll a criteria, then 

the State or EPA may derive the DPV for 

TN and TP using a reference condition 

approach based on TN and TP 

concentrations from the stream pour 

point, coincident in time with the data 

record from which the downstream 

receiving water segment TN and TP 

criteria were developed, and using the 

same data screens and reference 

condition approach as were applied to 

the downstream water’s data. 

(iv) When the State or EPA has not 

derived a DPV pursuant to paragraph 

(c)(6)(ii) or (c)(6)(iii) of this section, then 

the State or EPA may derive the DPV for 

TN and TP using dilution models based 

on the relationship between salinity and 

nutrient concentrations. 

(v) When the State or EPA has not 

derived a DPV pursuant to paragraph 

(c)(6)(ii), (c)(6)(iii), or (c)(6)(iv) of this 

section, then the DPV for TN and TP is 

the applicable TN and TP criteria for the 

receiving segment of the downstream 

water as described in § 131.45(c)(1), or 

as described in Section 62–302.532(a)– 

(h), F.A.C. for downstream waters where 

EPA-approved State criteria apply. 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 243 / Tuesday, December 18, 2012 / Proposed Rules 74985 

(vi) The State and EPA shall maintain 

a record of DPVs they derive based on 

the methods described in paragraphs 

(c)(6)(ii), (iii), (iv), and (v) of this 

section, as well as a record supporting 

their derivation, and make such records 

available to the public. The State and 

EPA shall notify one another and 

provide a supporting record within 30 

days of derivation of DPVs pursuant to 

paragraphs (c)(6)(i), (ii), (iii), (iv), or (v) 

of this section. DPVs derived pursuant 

to these paragraphs do not require EPA 

approval under Clean Water Act § 303(c) 

to take effect. 

(d) Applicability. (1) The criteria in 

paragraphs (c)(1) through (6) of this 

section apply to certain Class I, Class II, 

and Class III waters in Florida, and 

apply concurrently with other 

applicable water quality criteria, except 

when: 

(i) State water quality standards 

contain criteria that are more stringent 

for a particular parameter and use; 

(ii) The Regional Administrator 

determines that site-specific alternative 

criteria apply pursuant to the 

procedures in paragraph (e) of this 

section; or 

(iii) The State adopts and EPA 

approves a water quality standards 

variance to the Class I, Class II, or Class 

III designated use pursuant to § 131.13 

that meets the applicable provisions of 

State law and the applicable Federal 

regulations at § 131.10. 

(2) The criteria established in this 

section are subject to the State’s general 

rules of applicability in the same way 

and to the same extent as are the other 

Federally-adopted and State-adopted 

numeric criteria when applied to the 

same use classifications. 

(e) Site-specific Alternative Criteria. 

(1) The Regional Administrator may 

determine that site-specific alternative 

criteria shall apply to specific surface 

waters in lieu of the criteria established 

in paragraph (c) of this section. Any 

such determination shall be made 

consistent with § 131.11. 

(2) To receive consideration from the 

Regional Administrator for a 

determination of site-specific alternative 

criteria, an entity shall submit a request 

that includes proposed alternative 

numeric criteria and supporting 

rationale suitable to meet the needs for 

a technical support document pursuant 

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

entity shall provide the State a copy of 

all materials submitted to EPA, at the 

time of submittal to EPA, to facilitate 

the State providing comments to EPA. 

Site-specific alternative criteria may be 

based on one or more of the following 

approaches. 

(i) Replicate the process for 

developing the estuary criteria in 

paragraph (c)(1) of this section. 

(ii) Replicate the process for 

developing the tidal creek criteria in 

paragraph (c)(2) of this section. 

(iii) Replicate the process for 

developing the marine lake criteria in 

paragraph (c)(3) of this section. 

(iv) Replicate the process for 

developing the coastal criteria in 

paragraph (c)(4) of this section. 

(v) Replicate the process for 

developing the south Florida inland 

flowing water criteria in paragraph (c)(5) 

of this section. 

(vi) Conduct a biological, chemical, 

and physical assessment of water body 

conditions. 

(vii) Use another scientifically 

defensible approach protective of the 

designated use. 

(3) For any determination made under 

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

Regional Administrator shall, prior to 

making such a determination, provide 

for public notice and comment on a 

proposed determination. For any such 

proposed determination, the Regional 

Administrator shall prepare and make 

available to the public a technical 

support document addressing the 

specific surface waters affected and the 

justification for each proposed 

determination. This document shall be 

made available to the public no later 

than the date of public notice issuance. 

(4) The Regional Administrator shall 

maintain and make available to the 

public an updated list of determinations 

made pursuant to paragraph (e)(1) of 

this section as well as the technical 

support documents for each 

determination. 

(5) Nothing in this paragraph (e) shall 

limit the Administrator’s authority to 

modify the criteria in paragraph (c) of 

this section through rulemaking. 

(f) Effective date. This section is 

effective [date 60 days after publication 

of final rule]. 

[FR Doc. 2012–30117 Filed 12–17–12; 8:45 am] 

BILLING CODE P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[EPA–HQ–OW–2009–0596; FRL#9678–6] 

RIN 2040–AF39 

Water Quality Standards for the State 

of Florida’s Streams and Downstream 

Protection Values for Lakes: 

Remanded Provisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA or Agency) is proposing a 

rule that addresses an order by the U.S. 

District Court for the Northern District 

of Florida from February 18, 2012, 

which remanded to EPA two portions of 

its numeric water quality standards for 

nutrients in Florida that were 

promulgated and published on 

December 6, 2010. For this proposal, 

EPA is re-proposing the same numeric 

nutrient criteria for total nitrogen (TN) 

and total phosphorus (TP) for Florida 

streams not covered by EPA-approved 

State rulemaking, as included in EPA’s 

final rule, with further explanation of 

how the proposed numeric streams 

criteria will ensure the protection of the 

Florida’s Class I and III designated uses. 

EPA is also proposing default 

approaches available for use when 

modeling cannot be performed to derive 

downstream protection values (DPVs) 

that will ensure the attainment and 

maintenance of the numeric nutrient 

criteria that protect Florida’s lakes. The 

default approaches would be applicable 

to streams that flow into unimpaired 

lakes, but could also be used for streams 

that flow into impaired lakes. 

DATES: EPA will accept public 

comments on this proposed rule until 

February 1, 2013. Because of EPA’s 

obligation to sign a notice of final 

rulemaking on or before August 31, 

2013 under Consent Decree, the Agency 

regrets that it will be unable to grant any 

requests to extend this deadline. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OW–2009–0596, by one of the following 

methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: ow-docket@epa.gov. 

3. Mail to: Water Docket, U.S. 

Environmental Protection Agency, Mail 

code: 2822T, 1200 Pennsylvania Avenue 

NW., Washington, DC 20460, Attention: 

Docket ID No. EPA–HQ–OW–2009– 

0596. 

4. Hand Delivery: EPA Docket Center, 

EPA West Room 3334, 1301 

Constitution Avenue NW., Washington, 

DC 20004, Attention Docket ID No. 

EPA–HQ–OW–2009–0596. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OW–2009– 

0596. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 


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