# CHAPTER 2 Issue Category: Proposed Restoration Water Quality Standards (WQS) Provision Pages 4568 - 4652

Response to Public Comments Water Quality Standards for the State of Florida's Lakes and Flowing Waters

November 14, 2010

40 CFR Part 131 Docket #: EPA-HQ-OW-2009-0596

This document is part of a larger documentChapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

# VI - PROPOSED RESTORATION WATER QUALITY STANDARDS (WQS) PROVISION No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

# VI.Q.1 - PROPOSED RESTORATION WATER QUALITY STANDARDS (WQS) PROVISION QUESTION 1 Comment ID 0503.001.001

Author Name: Larson W. Organization: I am opposed to EPA's effort to establish "numeric nutrient criteria" for Florida waters for the following reasons:
1. Lack of Science. Most scientific method requires a base line. The effort to establish "restoration standards" implies we know the base line when in fact we do not know historical water quality before recorded history so the question becomes "restore to what level"? Most current regulations are aimed at non-degradation with targeted improvements. That should be sufficient. 

# Comment ID 0590.001.008

Author Name: Conner R. Organization: Lakeland Water Utilities (7) The Agency's method of establishing targets for interim water quality is inappropriate. The assumptions that (a) all water in Florida are impaired and (b) that all are equally remediable are both patently false. Targeting the average of present values and pre-Columbian estimates (plus atmospheric deposition) implies a 50% reduction is needed everywhere. Even if true, the State has two definite regions. One under Grizzell-Figg and the remainder outside of Grizzell-Figg. In truth the Grizzell-Figg regions have already achieved most of the 50% you will anticipate from everyone. 

# Comment ID 0691.001.005

Author Name: Tripp K. Organization: Save the Manatee Club I think it's really beneficial that the criteria you proposed have a restoration standard with benchmarks to be achieved

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over time. 

# Comment ID 0974.001.007

Author Name: Kollias L. Organization: Metropolitan Water Reclamation District of Greater Chicago 7. Page 4219 details a procedure by which EPA will allow Florida to develop long-term plans for the attainment of these strict nutrient standards. "Including such revised interim designated uses and criteria within the regulations could support efforts by Florida to formally establish enforceable long-term plans for different watersheds or stream reaches to attain the ultimate designated use and the associated criteria. At the same time, the State would be able to ensure that its WQS explicitly reflect the attainable designated uses and water quality criteria to be met at any given time, consistent with the CWA and implementing regulations." In the event that these nutrient water quality criteria become adopted in Florida, this will be an essential component of the process of achieving attainment . 

# Comment ID 1087-1.001.002

Author Name: Pearson S. Organization: City of Gainesville Public Works Department Comments on the Docket The proposal to add § 131.43 Florida to 40 CFR part 131 Subpart D - [Amended] was published in the Federal Register on Tuesday, January 26, 2010. The Department of Public Works (DPW) of the City of Gainesville has reviewed this publication and takes this opportunity to provide comment on; the eight questions posed in § VI. Proposed Restoration Water Quality Standards (WQS) Provision, the scheme of development for determining the regional categories of nutrient watersheds and ancillary issues germane to the topic. In support of these comments the DPW prepared a Case Study for Gainesville. It is the source of the numeric data presented herein and follows the first of the listed topics. Generally, DPW finds the WQS provision very useful element of the proposed rule making but as an agency with some ten years of experience in developing and implementing watershed restoration projects are obliged to offer our views on the particular questions raised in the section. The EPA questions as paraphrased by the author are italicized and the DPW comment follows. -Should EPA provide Florida with an explicit regulatory mechanism for directing state efforts to achieve incremental progress in a step-wise fashion, applicable to all sources, as a part of its WQS? Gainesville incorporated to become a city in 1869. In the intervening time to the present, 141 years, the nutrient loads developed that are being experienced today. We believe it will take many years to achieve the nutrient reduction goals contained in this proposal for three reasons. First, implementing watershed restoration on the slopes of the Cody Scarp is capital intensive. Second, the nutrient removal technology being currently employed is moderately efficient. Third, the

11/19/2010 02:48 PM EST 2-4569Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision opportunities for restoration basins through out the watersheds are few because development occupies many choice sites. The combination of these factors in the project Sweetwater Branch Watershed Management Master Plan presented below in the Case Study demonstrates restoration of water quality will take considerable time and resources. For the forgoing reasons DPW views the proposed 'step-wise fashion' as a desirable process to achieve the nutrient reduction goals established by the proposal. However, DPW believes that the imposition of an 'explicit' regulation and the implied inflexibility will tend to frustrate the regulatory staff at the state and the local entities charged with meeting the requirements. DPW suggests a guidance approach as an alternative. 

# Comment ID 1207.001.002

Author Name: Coutant S. Organization: I support the proposed E.P.A. rules and legislations to reduce the nutrient pollution, and I believe the regulatory -­ regulatory approach of restoration standards is a fair concept and should be taken seriously. 

# Comment ID 1217-2.001.009

Author Name: Voyles J. Organization: Mosaic Fertilizer LLC Also, EPA's proposed Restoration Water Quality Standards, while laudable in concept, appear unduly cumbersome. EPA should sharpen these rules in several respects (proposed below) and should refine this mechanism for flexibility so that it more closely tracks similar programs currently administered by the State of Florida. 

# Comment ID 1321.001.011

Author Name: St. John T. Organization: Nature Conservancy We would also support the establishment of adaptive management process for setting standards in a manner that strives for water quality improvements by the use or the creation of these restoration standards. The framework for developing the restoration standards for impaired waters should work to set control measures that protect aquatic life in lakes and flowing water, including canals within the state of Florida. The provision would also Florida to retain full aquatic life protection for its water bodies while establishing a transparent phased process that would result in planned implementation of enforceable measures and requirements to improve water quality over a specified time period to ultimately meet the long-term designated aquatic life use.

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# Comment ID 1331-1.001.018

Author Name: Aldstadt S. Organization: City of Pensacola Public Works C. A Restoration Water Quality Standard Could Be a Valuable Tool, But the Concept Proposed Needs Improvement For the first time, EPA proposes the use of a "restoration water quality standard" that recognizes the attainment of water quality standards in impaired waters may take many years to achieve. (75 Fed. Reg. at p. 4219.) Under the proposal, a state would retain its current designated use and adopt interim less stringent designated uses and numeric criteria.(Ibid.) The interim designated uses and numeric criteria would become part of the water quality standard on a sitespecific basis. (Ibid.) In addition, they would form the foundation for enforceable NPDES permit requirements and other control strategies during the prescribed timeframes. (Ibid.) The state would have to base the interim designated uses, interim numeric criteria and timeframe on a use attainability analysis (UAA) evaluation of what is attainable and by when. (Ibid.) 

# Comment ID 1331-1.001.019

Author Name: Aldstadt S. Organization: City of Pensacola Public Works San Bernardino appreciates EPA's efforts to develop a regulatory mechanism that would allow states to "achieve incremental progress in a stepwise fashion" in meeting water quality standards. (75 Fed.Reg. at p. 4219.) The concept of restoration standards could provide a valuable tool in giving states the flexibility to establish long-term plans for their waters while satisfying state and federal law and avoiding having to grant variances. As the proposed rule recognizes, some states rely upon the variance process to provide additional time to attain water quality standards. (Ibid.) However, the process has its limitations as variances "often lack specific milestones and a transparent set of expectations for the public, dischargers, and stakeholders." (Ibid.) Unfortunately, the restoration standard concept as proposed would place a significant and unreasonable burden on states and dischargers. The proposed rule would effectively require Florida to undertake a comprehensive UAA or set of UAAs for each interim milestone. As a result, the restoration standard process could be more complex, onerous and costly than the process used to change a designated use permanently. In turn, the restoration standard would be an infeasible option in many or most cases. 

# Comment ID 1331-1.001.020

Author Name: Aldstadt S. Organization: City of Pensacola Public Works

11/19/2010 02:48 PM EST 2-4571Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision The implementation of the restoration standard and consequences for not meeting interim goals also concerns San Bernardino. If a state does not meet an interim designated use and numeric criteria, the use and criteria that would have applied at the end of the restoration period would take immediate effect. (75 Fed.Reg. at p. 4220.) This is a significant and unreasonable consequence for POTWs, especially for those that took steps and spent resources to comply with the restoration standard. POTWs would need definite milestones based on actions implemented (e.g ., treatment technology installed and operated) rather than whether the numeric criteria are satisfied. POTWs would need assurance that failure to meet an interim or final goal will not result in the POTW being considered in noncompliance where it satisfied its implementation obligations. POTWs would also need assurance that if they install and operate technology required under the restoration standard, they would not have to make additional technological upgrades during the restoration period. Such technology may take years to install and be quite costly for ratepayers, taking years to decades to recover capital expenditures. 

# Comment ID 1350-1.001.015

Author Name: Schwartz J. Organization: American Forest & Paper Association G. Conclusion AF&PA appreciates EPA's discussion of potential mechanisms to provide flexibility in criteria implementation. We especially appreciate the Agency taking the time to develop the new concept of the "restoration standard." Unfortunately, several of the mechanisms are only available for a short time, so at best they provide a temprary reprieve before ultimate compliance with the EPA proposed criteria will be required. Others require significant documentation, data and information generation, and face numerous procedural hurdles. AF&PA believes, therefore, that these flexibility mechanisms are not likely to provide dischargers with relief from criteria ill-suited to a particular site. [14] See Coalition Comments, section III for additional discussion of implementation issues. [15] FAC 62-302.800, F.A.C. [16] § 403.201(2), Fla. Stat. [17] FAC 62-620.620(6) 

# Comment ID 1359-1.001.018

Author Name: Andes F. Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality Coalition G. Restoration Standards EPA also proposes a wholly new implementation option: restoration standards. 75 Fed. Reg. at 4219. The Coalition appreciates EPA's willingness to provide implementation flexibility, and believes the concept of restoration standards is appealing. However, the Coalition is concerned that the benefits of such standards will be illusory if applied as proposed by EPA. Further, if EPA adopts the State's proposal to allow water quality based effluent limitations derived from TMDLs to be SSAC (which the Coalition endorses), then the restoration standards proposed by EPA may not be necessary.

11/19/2010 02:48 PM EST 2-4572Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision In proposing a mechanism to establish restoration standards, EPA appears to suggest that variances cannot be used to provide relief to multiple dischargers and cannot be used beyond three years. Id. The FWQC asks EPA to acknowledge that Florida, like the states discussed above, can adopt a regulation creating state-wide or multiple-discharger variances that can be renewed and apply to multiple permit terms. In proposing a new implementation option, EPA should not be seen to limit the applicability of another. In essence, EPA is proposing that Florida go through both a use attainability and a TMDL analysis to develop restoration standards. The restoration standard would be a series of interim criteria based on a series of interim designated uses. Thus, the use attainability analysis to support restoration standards would be even more complex than one used to permanently change a designated use. 

# Comment ID 1370-1.001.079

Author Name: Hanson R. Organization: Orange County Utilities The proposed provision for restoration standards allows the State of Florida, at its discretion, to adopt restoration water quality standards where the designated use is currently unattainable as a result of nutrient pollution, but is attainable in the future. The designated use would be attained over phased time periods. 

# Comment ID 1431-1.001.033

Author Name: Levy K. Organization: Pinellas County Department of Environmental Management, Watershed Management Division Restoration Standards The value of the restoration standard provisions is unclear. Would this process require a new Use Attainability Analyses and associated SSAC every five years? This represents yet another financial burden on the local governments, when NPDES permits could be the vehicle to ensure long-term compliance through continuing TMDL implementation schedules and targets. 

# Comment ID 1433-1.001.014

Author Name: McIndoe J. Organization: Alabama Department of Environmental Management In addition, ADEM is supportive of the provision to allow for restoration water quality standards provided EPA articulates clearly what it considers to be an adequate demonstration of the six use attainability analysis (UAA) factors listed at 40 CFR Part 131.10(g). ADEM has found the development of UAAs to be a time- and resource-intensive undertaking and

11/19/2010 02:48 PM EST 2-4573Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision their cost should be included in the cost to implement these proposed criteria. 

# Comment ID 1464-1.001.025

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. D. EPA's Eight Requirements for Restoration Standards EPA sets out eight requirements for the development of restoration standards for Florida nutrients. Fed. Reg. 3220; proposed 40 C.F.R. § 141.43(g)(1)-(8). Subject to our belief that the Restoration Standards proposal is unnecessary, we support all eight of these requirements.
1. Demonstration for Interim Uses. We support using the UAA provisions to establish interim designated uses. Without those provisions, EPA's proposal would be inconsistent with the CWA. 2. Ultimate Designated Uses. We support the specification of the highest attainable designated uses and associated criteria that will apply at the end of the phased use period and that these uses are consistent with CWA Sec. 101(a)(2) uses.



# Comment ID 1464-1.001.046

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. 5. Geographic Extent. We agree with EPA that the standards must be explicit as to the geographic extent of application and that they must ensure protection of downstream water quality and downstream uses. 6. Use Designation Requirements. We agree with EPA that the public process must meet existing requirements and that interim uses cannot be 14 less than existing uses or the source control requirements of 40 C.F.R. § 131.10(h)(2). 7. Immediate Effectiveness of Ultimate Uses and Criteria. We support the use of an immediate effectiveness provision that would revert standards to the ultimate uses and criteria. 8. 303(d) Listings Based on Ultimate Standards. As explained elsewhere in these comments, we support EPA's proposal that 303(d) listings remain based on the ultimate designated uses and associated criteria rather than on any interim uses and criteria. 

# Comment ID 1474-1.001.023

Author Name: Herz W. Organization: The Fertilizer Institute

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G. Restoration Standards. EPA also proposes a wholly new implementation option: restoration standards. 75 Fed. Reg. at 4219. TFI appreciates EPA's willingness to provide implementation flexibility, and believes the concept of restoration standards is beneficial. However, as described in the NPRM, TFI does not believe that this is an option that will be used. Further, if EPA adopts the State's proposal, which TFI endorses, to allow water quality based effluent limitations derived from TMDLs to be SSAC, then the restoration standards proposed by EPA will not be necessary. 

# Comment ID 1482-1.001.017

Author Name: Hecker J. Organization: Conservancy of Southwest Florida F Restoration Water Quality Standards Provide Necessaw Flexibility for Attainment but Should be Applied Only Where Necessary and Such as to Ensure Hiqhest Desiqnated Use Attained in a Timely Manner A novel feature of the proposal is the provision allowing Florida to adopt "Restoration Water Quality Standards." This allows the state to create a phased plan to attain fishable/swimmable uses in no more than twenty years. The restoration standards should be based on highest attainable designated use that will ultimately be attained (which must be at least consistent with the CWA goals from § 101(a)(2)), along with criteria necessary to protect that use. Next, the state should set interim criteria "that will result in maximum feasible progress toward" that ultimate designated use. Then time periods should be established for each phase, but take no longer than 20 years to attain the ultimate designated use. We support that if the interim phase goals are not met, the Restoration Water Quality Standards are void and the ultimate designated use and criteria immediately become the use and criteria applicable to that waterway. Furthermore, we support the waters covered by a Restoration Water Quality Standard still be considered impaired for purposes of the 303(d) list until the ultimate designated use is attained. 

# Comment ID 1482-1.001.018

Author Name: Hecker J. Organization: Conservancy of Southwest Florida G The Alternative Requlatorv Approaches Discussed in the Preamble and Proposed as Part of the Draft Rule Do Not Satisfv the Requirements of the Clean Water Act. The preamble for the draft nutrient criteria (Section VI) discusses redesignating uses, variances, and site-specific criteria, and the draft rule, itself, incorporates some of these alternative regulatory approaches. FDEP is currently proposing some of these approaches as changes to FDEP rules, including changes to water quality standards. Instead of prejudging these proposed FDEP rule changes as part of the nutrient criteria proposal, EPA should wait until FDEP

11/19/2010 02:48 PM EST 2-4575Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision conducts the public rulemaking process and requests EPA approval of those finalized rule changes and amended water quality standards. The proposed numeric nutrient criteria should be the focus of the EPA adoption, not general changes in Florida's water quality standards procedures. 

# Comment ID 1482-1.001.038

Author Name: Hecker J. Organization: Conservancy of Southwest Florida To strengthen the Restoration Standards provision, they should be limited in application to only an individual waterbody at a time, and not apply to other types of pollutants other than nutrients. Once Restoration Standards are put in place, there should be no new or expanded discharges into that waterbody. Furthermore, the first phase of the restoration standards only requiring "cost-effective and reasonable BMPs for nonpoint sources" should be revised to require "the BMPs that are necessary to meet the interim criteria in the first phase" - otherwise it's illogical. EPA must necessitate that FL require more than minimum BMPs, instead identifying the BMPs necessary to meet the interim criteria. These changes would strengthen the proposed Restoration Standards provision to provide additional effectiveness while maintaining the warranted flexibility. 

# Comment ID 1530.001.026

Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority Restoration WQS is a totally new concept and seems to be a combination of a compliance schedule and a UAA. EPA has not provided any guidance for the use of this approach, so it is difficult to determine how this will fit with the other more established tools. This is why it is important for EPA to document how the process should work and allow time for public comment to ensure that resources are not wasted as issues associated with the process are identified and resolved. 

# Comment ID 1530.001.028

Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority B. Florida's existing BMAP and reasonable assurance plan assessment already provide the information needed to establish the Restoration WQS. Florida has completed and EPA has accepted a number of TMDLs as well as BMAPs and reasonable assurance plans. Each of these generates a data set that can be applied to the nutrients issue.

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# Comment ID 1530.001.044

Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority B. Section VI Proposed Restoration Water Ouality Standards (WOS) Provision. Above, CCUA has proposed certain language which it believes would clarify the Proposed Rule. Indeed, CCUA has proposed the BMAPs be used to govern the development of Restoration WQS.[11] Even if the EPA accepts CCUA's proposed language, the section on Proposed Restoration WQS still suffers from several maladies, which are discussed herein below. As noted earlier, WQS are comprised of three parts: (1) the designated use, (2) criteria to protect the use and (3) an antidegradation policy (see 40 CFR 131.10-131.12 ). This section is designed to provide a methodology for creating new WQS for waters of the state of Florida. Looking at Florida's current WQS, specifically the designated use, the preamble to this Proposed Rule notes: The criteria proposed in this rulemaking apply to lakes and flowing waters of the State of Florida. EPA's proposal defines "lakes and flowing waters" to mean inland surface waters that have been classified by Florida as Class I (Potable Water Supplies Use) or Class III (Recreation, Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish and Wildlife Use) water bodies pursuant to Florida Administrative Code (F.A.C.) Rule 62-302.400, excluding wetlands, and which are predominantly fresh waters. The one limitation on any designated use is that it cannot be made less stringent than the water body's existing use. An existing use is defined, at 40 CFR 13I.3(e), as "those uses actually attained in the water body on or after November 28,1975, whether or not they are included in the water quality standards." The preamble only briefly addresses existing uses and provides no process for determining whether the existing uses of any water bodies, for which a Restoration WQS has been proposed, will present an issue with regard to, or hinder, the implementation of a Restoration WQS. Existing uses are a very complicated issue and CCUA would benefit greatly from an explanation of how existing uses would be addressed in the context of Restoration WQS. Thus far, guidance on this issue is very limited. Indeed, EPA in the 1983 Water Quality Standards Handbook has provided: ... two definitions for an existing use. First, an existing use can be defined as fishing, swimming or other uses that have actually occurred since November 28, 1975. The second definition of an existing use is that the water quality of a water body is suitable to allow the use to be attained-unless there are physical problems, such as substrate or flow that prevent use attainment. The Water Quality Standards Regulation, in turn, requires state anti-degradation policies to protect existing water quality. [12] EPA's position is that an existing use finding can be made either where the use is or has been "actually attained" or where the water quality necessary to support the use is in place even if the use, itself, is not currently established, as long as other factors would not prohibit the use. The "other factors" caution is important in understanding EPA's position

11/19/2010 02:48 PM EST 2-4577Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision on existing uses. In making an existing use determination, there is a link between the use and water quality. The use must have been actually attained in the past, is now attained or is attainable. Water quality, alone, is an insufficient basis for making an existing use finding if there are other factors that would rrohibit establishment of the use regardless of the quality of the water at a site.[13] This proposed rule will provide numeric criteria to protect uses in two categories established by the state of Florida: Class I (Potable Water Supplies Use) or Class III (Recreation, Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish and Wildlife Use) This specific provision of the Proposed Rule, establishing Restoration WQS, would provide a process to change these designated uses and provide criteria to protect the use during the restoration period. The section is not easy to understand due to the use of terminology in the wrong context and the lack of supporting documentation for many of the ideas presented. The following provides questions and comments related to parts of this section where issues were seemingly presented without proper clarification and/or without adequate regulatory support. Given the numerous problems with this section, this section must be re-drafted with all questions addressed and re-proposed so adequate notice and comment are provided, and the minimum requirements for notice and comment under the Administrative Procedures Act are met. The preamble to the Proposed Rule in this section provides a significant amount of very general information, but does not address the very difficult issue of existing uses. Specifically, how will an existing use determination be made for these designated uses for which a Restoration WQS has been proposed? Would the fact that a water body is not currently meeting the nitrogen criteria proposed here mean the water body is not "Actually Attaining" the existing use or could not attain the existing use of Potable Water Supplies? Also, given an existing use is defined based on the date of November 28, 1975, will Florida be required to provide documentation of the condition of each water body dating back to 1975 in order to ensure the presence of absence of an existing use? These very simple, yet very important, issues must be fully addressed before EPA can promulgate this Proposed Rule in final form. It is also not entirely clear how this process would be conducted. On page 4219, EPA states, "This approach would provide the State of Florida with the flexibility to adopt revised designated uses and criteria under a set of specific regulatory requirements." Does this mean that when Florida promulgates Restoration WQS for a water body, EPA would revoke the federally promulgated nutrient criteria for that water body? This section of the preamble to the Proposed Rule also includes a number of mistakes and statements that need further clarification. On page 4219 of the preamble, EPA states: These interim designated uses and criteria and the applicable timeframes would all be incorporated into the State WQS on a site-specific basis, as would be any other designated use change or adoption of site-specific criteria. There is no provision for "interim designated uses" in the regulations or the statute, therefore EPA must explain how they arrived at this approach. Later on page 4219, EPA states:

11/19/2010 02:48 PM EST 2-4578Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision Restoration WQS would provide in the Federal regulations the framework for authorizing the State of Florida to adopt restoration WQS for nutrients .... As noted earlier, WQS are made up of three parts, one of which is criteria to protect the use. Therefore, it is not clear how there can be "restoration WQS for nutrients." The theoretical purpose of this Proposed Rule overall is to establish numeric criteria for nutrients, so is EPA's intent to establish WQS for criteria? Or perhaps EPA meant to state, "restoration water quality criteria for nutrients" and was simply inaccurate or inartful with its terminology. However, on page 4221, EPA states, "To develop restoration WQS for numeric nutrient criteria." So, perhaps EPA's intent is to have WQS for criteria regardless of the fact the regulations require criteria to be a part of the WQS, and if that is the case, then this would require significantly more explanation. Whatever the reason, EPA must re-draft and re-propose this section so the general public can comment on the correct issue. Also on page 4219, EPA states: In this notice, EPA proposes restoration WQS as a clear regulatory pathway for the State of Florida to adjust the Class I and Class III designated uses .... This not actually "clear" because EPA has provided no explanation of how this process is supported by the existing regulations or the statute. EPA must provide a detailed analysis of how this can be done under the existing regulatory framework.

[11] More specifically, CCUA has proposed that section 131.43(g) should be amended to include a subparagraph (9) which reads: (9) In cases where EPA has approved Florida Basin Management Action Plans (BMAPs) and/or reasonable assurance plans, these will be deemed to be equivalent to a Restoration Water Quality Standard under this section. The following is a list of waters already covered by BMAPS or reasonable assurance plans and therefore are approved as restoration WQS. Lower St. Johns River Tributaries - December 2009 Hillsborough River Basin - October 2009 Lower St. Johns River - October 2008 Long Branch - May 2008 Orange Creek - May 2008 Upper Ocklawaha - August 2007

[12] The quoted language may be found online at http://www.epa.gov/region3/chesapeake/uaasupport/executivesummary8_3.pdf . It was last accessed on 03/17/2010 and is attached as Appendix S.

11/19/2010 02:48 PM EST 2-4579Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision [13] The quoted language may be found online at http://www.epa.govlregion6/water/ecopro/watershd/standard/recguide.htm . It was last accessed on 03/17/2010 and is attached as Appendix T. 

# Comment ID 1530.001.058

Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority The BMAP and reasonable assurance plan assessment include determining the level of control and process to achieve the level of control needed to achieve WQS. In the preamble to the Proposed Rule, at pages 4181- 4182 and 4221, EPA recognized the usefulness of the BMAP process and the data the BMAP process can provide related to establishing a plan of action for addressing impaired waters. The reasonable assurance process has similar capabilities, and FDEP has developed and issued guidance for the reasonable assurance process and notes the purpose of the process is to ensure: ... there is sufficient reasonable assurance that: 1) proposed pollution control mechanisms (typically described in watershed management or restoration plans) addressing impaired waters will result in the attaimnent of applicable water quality standards (designated uses) at a clearly defined point in the future, and 2) reasonable progress towards restoration of designated uses will be made by the time the next 303(d) list of impaired waters for the basin with the impaired water is due to be submitted to the Enviromnental Protection Agency (EPA). (see http://www.dep.state.fl.us/water/watersheds/docs/bmap/Reasonable AssuranceGuide.pdf) FDEP guidance also states: [h]owever, the pollution control mechanisms or watershed restoration plan must provide reasonable assurance that designated uses will be met at some time in the future. As such, the documentation submitted to the Department must provide a specific date by which time designated uses are expected to be restored. In cases where designated uses will not be met for many years, the documentation should also provide justification as to why the specified time is needed to restore designated uses. Because it will usually take many years to fully restore the designated uses of an impaired water, interim water quality targets will often be needed to measure whether reasonable progress is being made towards the restoration of designated uses. (see http://www.dep.state.fl.us/water/watersheds/docs/bmap/Reasonable AssuranceGuide.pdf) Both the BMAP process and reasonable assurance process provide the data and information necessary for a plan to achieve attaimnent of WQS. These data can be applied to developing a compliance schedule that lays out the necessary steps for achieving compliance with effluent limits, and on a larger scale sources achieving WQS.

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# Comment ID 1563-1.001.013

Author Name: Ward G. Organization: Coastal-Environmental Given that rumor has it that Section VI. Proposed Restoration Water Quality Standards (WQS) Provisions may be eliminated, therefore the Administrative Procedures Act certainly requires another round of Notice and Comments. We look forward to such after you have digested and reported the Public's comments so far this year. 

# Comment ID 1616-1.001.001

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida The following comments are submitted on behalf of Northwest Environmental Advocates and the Clean Water Network of Florida. These comments are limited to Sections V and VI of the proposed rule. 75 Fed. Reg. 4173 (January 26, 2010)(hereinafter "Fed. Reg."). Understanding EPA's interest in maintaining the goals of the Clean Water Act with regard to nutrient pollution in Florida's waters, while providing some relief to sources that will require substantial periods of time to come into compliance with those goals, we propose an alternative approach to EPA's proposed restoration standards. This approach, a Florida nutrient-specific variance, would share many of the attributes of the restoration standards but it would be focused on the specific sources that required the relief rather than changing the underlying uses and criteria that apply to all sources. This proposal is set out most completely on page 7 of these comments. 

# Comment ID 1616-1.001.007

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida A. Recommended Limitations on Phased Implementation As EPA notes, in some cases, waters impaired by nutrients have a large difference between their actual water quality and the criteria and elsewhere the impairment is considerably less. Fed. Reg. at 4219. We believe that, if EPA proceeds with the restoration standards, it should limit the use of the phased restoration standards to those instances where attainment is believed to require 20 years (or more). First, it is antithetical to the goal of both the Clean Water Act and EPA's proposed standards to apply an attenuated attainment schedule where it is not needed. Going backwards is not a goal for water quality that Congress has endorsed. Second, since the establishment of a restoration standard requires a UAA, and a UAA requires that point sources meet effluent limits required under sections 301(b) and 306 of the Act and nonpoint sources use cost-effective and reasonable best management practices, by definition waters that are moderately impaired can be brought considerably closer to attainment by implementation of those appropriate practices and requirements for point sources.

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# Comment ID 1616-1.001.013

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida F. EPA's Eight Requirements for Restoration Standards EPA sets out eight requirements for the development of restoration standards for Florida nutrients. Fed. Reg. 3220; proposed 40 C.F.R. § 141.43(g)(1)-(8). We support all eight of these requirements, although in some cases we strongly urge EPA to do far more to ensure that these restoration standards actually achieve the intended goal. Our support for these is within the caveats established by our comments herein.
1. Demonstration for Interim Uses. We support using the UAA provisions to establish interim designated uses. Without those provisions, at a minimum, EPA's proposal would be inconsistent with the Clean Water Act.
2. Ultimate Designated Uses. We support the specification of the highest attainable designated uses and associated criteria that will apply at the end of the phased use period and that these uses are consistent with CWA Sec. 101(a)(2) uses. Without this provision, EPA's proposal would simply be a gigantic rollback of Florida's standards. Should Florida seek that as a goal, it should attempt to do it without EPA's stepping in and endorsing it in advance.



# Comment ID 1616-1.001.026

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida Conclusion For the reasons elaborated above, we urge EPA to move forward with a Florida nutrient-specific variance process that mirrors the requirements of compliance schedules in lieu of its proposed restoration standards. We also urge EPA to adopt the specific clarifying requirements we have recommended for other aspects of the Florida nutrient standards. 

# Comment ID 1616-1.001.029

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida

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5. Geographic Extent. We agree with EPA that the standards must be explicit as to the geographic extent of application and that they must, at a minimum, ensure protection of downstream water quality and downstream uses. 6. Use Designation Requirements. We agree with EPA that the public process must meet existing requirements and that interim uses cannot be less than existing uses or the source control requirements of 40 C.F.R. § 131.10(h)(2). However, we urge EPA to provide significantly more direction to the State as described elsewhere in these comments. The devil is in the details. 7. Immediate Effectiveness of Ultimate Uses and Criteria. We support the use of an immediate effectiveness provision that would revert standards to the ultimate uses and criteria. However, as EPA notes in this section, Florida will always be free to adopt, subject to EPA approval, alternate use designations and associated criteria. For this reason, EPA should not rely alone on the "20-year axe" that it has created in the restoration standard but must include the types of restrictions discussed elsewhere in these comments, specifically focused on restrictions on NPDES permits and TMDL allocation schemes similar to those employed in EPA's GLI rule. Otherwise, nonpoint sources will maintain the inadequate status quo of pollution controls. 8. 303(d) Listings Based on Ultimate Standards. As explained elsewhere in these comments, we support EPA's proposal that 303(d) listings remain based on the ultimate designated uses and associated criteria rather than on any interim uses and criteria. To do otherwise would subvert the Clean Water Act and the goals of this proposed rulemaking. 

# Comment ID 1616-1.001.031

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida As a result of the issues discussed above, we believe that if EPA finalizes the restoration standards approach, it should limit the use of the restoration standard with its phased uses and associated criteria to only those waters that are exceptional in that they will require solutions that are not readily known or available. For instance, in urban areas, class III creeks have become little more than conveyance ditches to larger water bodies. In cases like this, some type of regional stormwater treatment and pollution prevention system will be required to remove pollutants before they end up in downstream lakes, bayous, bay, coastal waters, etc. The location, funding, and other factors related to the regional stormwater treatment systems may take many years to identify and implement. This could be an appropriate use of a restoration standard. In addition, an interim limit or target could be established that is based on "lowhanging- fruit" type technologies. For instance, rain-barrel programs could reduce run-off from residential and commercial sites, fertilizer ordinances could reduce nutrient loading after rains, pet ordinances could greatly reduce animal waste run-off, etc. These types of best management practices could provide some interim improvement until a permanent treatment plan was funded, constructed, and fully functional. For example, one city, Portland Oregon, where significant funding has been required over a 20-year period to address stormwater entering combined systems and causing combined sewer overflows (CSO), found use of drainpipe disconnection, for example, to be a very cost-effective way to reduce the overall volume of water requiring treatment. Other municipalities have enacted bans on the use of certain lawn and garden products. See, e.g., "Surrey joins widening cosmetic pesticide ban; Advocates calling for province-wide ban on sale of products," April 14, 2010, http://www.cbc.ca/canada/britishcolumbia / story/2010/04/14/bc-surrey-pesticideban.html?ref=rss (pesticides used for cosmetic reasons on lawns and gardens will likely be banned in this town as they have been from Vancouver, Richmond, and two dozen other British Columbia municipalities).

11/19/2010 02:48 PM EST 2-4583Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision



# Comment ID 1640.001.005

Author Name: Pugh T. Organization: Source, Inc. If the water quality standards are to change, I urge you to implement a schedule for phasing in the new standards. This will give the regulatory agency charged with enforcing the new standards time to catalog and contact the individuals and entities that would be subject to a violation notice if the new standards were in force, giving them an opportunity to develop a schedule to revise their operations to enable them to comply with the new rules. 

# Comment ID 1688-2.001.002

Author Name: Brooks J. Organization: Florida Department of Environmental Protection Proposed Restoration Water Quality Standards [40 CFR 131.43(g)] (g) Restoration Water Quality Standards (WQS). The State may, at its discretion, adopt restoration WQS to allow attainment of a designated use over phased time periods where the designated use is not currently attainable as a result of nutrient pollution but is attainable in the future. In establishing restoration WQS, the State must: (1) Demonstrate that the designated use is not attainable during the time periods established for the restoration phases based on one of the factors identified in Sec. 131.10(g)(1) through (6); (2) Specify the designated use to be attained at the termination of the restoration period, as well as the criteria necessary to protect such use, provided that the final designated use and corresponding criteria shall include, at a minimum, uses and criteria that are consistent with CWA section 101(a)(2) ; (3) Establish interim restoration designated uses and water quality criteria, that apply during each phase that will result in maximum feasible progress toward the highest attainable designated use and the use identified in paragraph (g)(2) of this section. Such interim uses and criteria may not provide for further degradation of a water body and may be revised prior to the end of each phase in accordance with Sec. Sec. 131.10 and 131.20 and submitted to EPA for approval; (4) Establish the time periods for each restoration phase that will result in maximum feasible progress toward the highest attainable use and the designated use identified in paragraph (g)(2) of this section, except that the sum of such time periods shall not exceed twenty years from the initial date of establishment of the restoration WQS under this section; (5) Specify the spatial extent of applicability for all affected waters; (6) Meet the requirements of Sec. Sec. 131.10 and 131.20; and

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(7) Include, in its State water quality standards, a specific provision that if the interim restoration designated uses and criteria established under paragraph (g)(3) of this section are not met during any phased time period established under paragraph (g)(4) of this section, the restoration WQS will no longer be applicable and the designated use and criteria identified in paragraph (g)(2) of this section will become applicable immediately. (8) Provide that waters for which a restoration water quality standard is adopted will be recognized as impaired for the purposes of listing impaired waters under section 303(d) of the CWA until the use designated identified in paragraph (g)(2) of this section is attained. 

# Comment ID 1688-2.001.003

Author Name: Brooks J. Organization: Florida Department of Environmental Protection Overall Comment: The proposed standard is not a useful tool for implementing restoration activities. In EPA’s Proposed Rule, EPA creates a “Restoration Water Quality Standard” to be codified at 40 C.F.R. 131.43(g). In suggesting this new Restoration WQS, EPA is attempting to give the State of Florida another mechanism to deal with the significant challenges that sources would face in meeting the new numeric nutrient criteria for Florida. However, as currently structured, the Restoration WQS is not sufficiently streamlined to be a more efficient, and thus, a more useful tool to the State compared to existing regulatory permitting vehicles. The Clean Water Act and EPA’s implementing regulations contains a number of mechanisms to deal with sources that are not currently achieving water quality criteria; most notably variances, temporary standards and schedules of compliance. The Restoration WQS is most akin to temporary standard procedure. EPA has described temporary standards as a variance for entire water body segments or portions of water body segments. [1] 1998 ANPRM, 63 Fed. Reg. 36741, 36760 (July 7, 1998). Among other things, a temporary standard requires a UAA, interim numerical criteria, a “remediation plan,” and a specific expiration date. Id. at 36761. Although a temporary standard must be reviewed every three years and does not apply to any new discharges, the similarities between a temporary standard and a Restoration WQS are not sufficiently significant to justify the Restoration WQS as currently configured. A more enlightening comparison is a Restoration WQS to a standard variance, which reveals a number of shortcomings with the practicality of a Restoration WQS. Although both require a use attainability analysis (UAA) pursuant to 40 C.F.R. 131(10)(g), EPA regulations for a standard variance allow the variance to be renewed indefinitely (as long as conditions justifying the original variance have not changed), and do not explicitly contain the myriad of additional legal hurdles and conditions that must be overcome to put in place a Restoration WQS. See 75 Fed. Reg. 4174, 4219 (Jan. 26, 2010).

[1] EPA has expressed a preference for temporary standards over the permanent downgrading of the designated use of a water body because“[i]n this way, the States have maintained designated use and underlying criteria for other pollutants while recognizing that existing ambient conditions for certain pollutants are not correctable in the short term.

11/19/2010 02:48 PM EST 2-4585Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision In such cases, the temporary standards provide a basis for permit limits in the shorter term. The temporary standards approach is then used by these States as the basis for remediation of damaged water resources because the underlying designated use and criteria to protect that actively drive water quality improvements in the long-term.” 1998 ANPRM, 63 Fed. Reg. 36741, 36760 (July 7, 1998). 

# Comment ID 1768-1.001.008

Author Name: Armingeon N. Organization: St. Johns River Keeper

• The 20-year "Restoration Water Quality Standards" proposed by EPA are not clearly explained in legal terms. It should be made clear that implementation would only allow pollution if a proper Use Attainability Analysis is performed. 

# Comment ID 1768-1.001.016

Author Name: Armingeon N. Organization: St. Johns River Keeper Restoration Steps

• We believe that if EPA proceeds with the restoration standards, it should limit the use of the phased restoration standards to those instances where attainment is believed to require 20 years. In addition, since the establishment of a restoration standard requires a UAA, and a UAA requires that point sources meet effluent limits required under sections 301(b) and 306 of the Act and nonpoint sources use cost-effective and reasonable best management practices, by definition waters that are moderately impaired can be brought considerably closer to attainment by implementation of those appropriate practices. 

# Comment ID 1768-1.001.018

Author Name: Armingeon N. Organization: St. Johns River Keeper

• We strongly believe that a wholesale use of restoration standards is antithetical to the goal of both the Clean Water Act and EPA's proposed standards to apply an attenuated attainment schedule where it is not needed. 

# Comment ID 1768-1.001.019

Author Name: Armingeon N.

11/19/2010 02:48 PM EST 2-4586Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision Organization: St. Johns River Keeper

• EPA should limit the use of the restoration standard with its phased uses and associated criteria to only those waters that are exceptional in that they will require solutions that are not readily known or available. 

# Comment ID 1768-1.001.020

Author Name: Armingeon N. Organization: St. Johns River Keeper

• EPA sets out eight requirements for the development of restoration standards for Florida nutrients. We support all eight of these requirements, although in some cases we strongly urge EPA to do far more to ensure that these restoration standards actually achieve the intended goal. 

# Comment ID 1768-1.001.021

Author Name: Armingeon N. Organization: St. Johns River Keeper

• Ultimately if EPA proceeds to finalize the restoration standards, we support EPA's concept that the current designated uses would remain as the ultimate designated uses under the restoration standard proposal. We strongly support EPA's statement that any interim uses designated uses would have to meet the requirements in current EPA rules that existing uses be protected and that some minimum point and nonpoint source controls be required. 40 C.F.R. § 131.10(g) & (h). 

# Comment ID 1781-1.001.006

Author Name: Roy N. Organization: Clean Water Network We also have serious concerns regarding the "alternative regulatory approaches and implementation mechanisms" and "proposed restoration water quality standards provision" of the rules. 

# Comment ID 1782-1.001.058

Author Name: Childs D. Organization: Hopping Green & Sams, P.A., on behalf of Florida Rural Water Association, Florida Water Environment Association Utility Council, and Florida Section of the American Water Works Association Utility Council

11/19/2010 02:48 PM EST 2-4587Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision With respect to the proposed restoration standard concept, Florida would be forced to "restore" unimpaired waters until they each match EPA's broad brushed criteria. EPA has not explained how Floridians are to restore biologically healthy waters to nutrient levels they would not naturally meet. 

# Comment ID 1785-1.001.006

Author Name: Hall T. Organization: Lee County Board of County Commissioners Southwest Florida

• Lee County is very progressive and has made great progress in reducing nutrient levels through investment in water quality improvement and nutrient reduction programs. However, the County is concerned about the loss of its investment of time and money for this progress and requests that EPA's implementation of the proposed Rule not penalize the County's previous efforts. Lee County suggests that EPA allow a phased, step-wise approach for implementation that builds upon existing infrastructure. 

# Comment ID 1786-1.001.052

Author Name: Kirk K. Organization: National Association of Clean Water Agencies EPA's New Restoration Standard Concept Shows Promise, Needs More Work For the first time, EPA is proposing a new implementation option for Florida that NACWA understands may be rolled out nationally at some point. EPA notes in the proposal that some states have already tried to provide additional time using variances in an effort to restore a particular waterbody, in lieu of changing the ultimate designated use via a UAA. EPA is seeking comment on an explicit regulatory mechanism that will preserve the current designated use and compensate from some of the limitations of the variance process. EPA proposes using a new restoration standard, in lieu of granting variances which "often lack specific milestones and a transparent set of expectations for the public, dischargers, and stakeholders," that would set certain expectations for achieving "incremental progress in a step-wise fashion" toward the ultimate water quality goal. NACWA appreciates EPA's willingness to provide implementation flexibility, and believes the concept of a restoration standard is beneficial and could be a valuable tool in other states as well. The concept of a restoration standard would provide states with the ability to establish long-term plans for its waters and ensure the state's water quality standards continue to reflect the mandates of the CWA and EPA's implementing regulations. 

# Comment ID 1786-1.001.053

Author Name: Kirk K. Organization: National Association of Clean Water Agencies

11/19/2010 02:48 PM EST 2-4588Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision However, the restoration concept as described in the proposal presents a tremendous level of burden that may limit its viability. NACWA is concerned about implementation and the consequences for not meeting interim goals, but commits to working with EPA to develop an implementable restoration standard concept. 

# Comment ID 1786-1.001.054

Author Name: Kirk K. Organization: National Association of Clean Water Agencies In essence, EPA is proposing that Florida go through a comprehensive UAA process, that in reality could comprise a suite of UAAs, one for each interim milestone. The resulting analysis would be more complex than a UAA used to permanently change a designated use, and could result in significant consequences for point sources. If interim designated uses and criteria are not met, and the state has not conducted a new use attainability analysis, then the use and criteria that were to apply at the end of the restoration period would become effective immediately, putting even those dischargers that had done what was required under the restoration standard out of compliance. 

# Comment ID 1786-1.001.060

Author Name: Kirk K. Organization: National Association of Clean Water Agencies EPA's newly proposed restoration standard approach appears similar to a water quality variance. The restoration standard approach allows for an extension of full compliance by phasing for eventual attainment of water quality standards. The restoration standards concept appears to place greater emphasis on beneficial use attainment in the watershed in phased milestone steps, and less emphasis on the exceptions qualifying for variances, such as economic hardship. Restoration standards would have a substantial burden in building the justification that would include demonstrating that standards are not attainable, and defining interim milestones, beneficial uses, and "maximum feasible progress." EPA appears to be framing restoration standards to consider broader watershed issues including nonpoint source controls and innovative and flexible approaches. 

# Comment ID 1803-1.001.005

Author Name: Bowman J. Organization: Nature Conservancy TNC also supports the establishment of a new adaptive management process for setting standards in a manner that drives water quality improvements in already impaired waters via the creation of "restoration standards". This new framework for developing "restoration standards" for impaired waters should work to set control measures that protect aquatic life in lakes and flowing waters, including canals, within the State of Florida. This provision will allow Florida to retain full aquatic life protection (uses and criteria) for its water bodies while establishing a transparent phased WQS

11/19/2010 02:48 PM EST 2-4589Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision process that would result in planned implementation of enforceable measures and requirements to improve water quality over a specified time period to ultimately meet the long-term designated aquatic life use. 

# Comment ID 1810-1.001.016

Author Name: Young L. Organization: Clean Water Network of Florida The following comments are for Sections V and VI of the proposed rule. 75 Fed. Reg. 4173 (January 26, 2010)(hereinafter "Fed. Reg."). Understanding EPA's interest in maintaining the goals of the Clean Water Act with regard to nutrient pollution in Florida's waters, while providing some relief to sources that will require substantial periods of time to come into compliance with those goals, we propose an alternative approach to EPA's proposed restoration standards. This approach, a Florida nutrient-specific variance, would share many of the attributes of the restoration standards but it would be focused on the specific sources that required the relief rather than changing the underlying uses and criteria that apply to all sources. This proposal is set out most completely below. 

# Comment ID 1810-1.001.021

Author Name: Young L. Organization: Clean Water Network of Florida A. Recommended Limitations on Phased Implementation As EPA notes, in some cases, waters impaired by nutrients have a large difference between their actual water quality and the criteria and elsewhere the impairment is considerably less. Fed. Reg. at 4219. We believe that, if EPA proceeds with the restoration standards, it should limit the use of the phased restoration standards to those instances where attainment is believed to require 20 years (or more). First, it is antithetical to the goal of both the Clean Water Act and EPA's proposed standards to apply an attenuated attainment schedule where it is not needed. Going backwards is not a goal for water quality that Congress has endorsed. Second, since the establishment of a restoration standard requires a UAA, and a UAA requires that point sources meet effluent limits required under sections 301(b) and 306 of the Act and nonpoint sources use cost-effective and reasonable best management practices, by definition waters that are moderately impaired can be brought considerably closer to attainment by implementation of those appropriate practices and requirements for point sources.



# Comment ID 1810-1.001.028

Author Name: Young L. Organization: Clean Water Network of Florida

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F. EPA’s Eight Requirements for Restoration Standards EPA sets out eight requirements for the development of restoration standards for Florida nutrients. Fed. Reg. 3220; proposed 40 C.F.R. § 141.43(g)(1)-(8). We support all eight of these requirements, although in some cases we strongly urge EPA to do far more to ensure that these restoration standards actually achieve the intended goal. Our support for these is within the caveats established by our comments herein. 1.�Demonstration for Interim Uses. We support using the UAA provisions to establish interim designated uses. Without those provisions, at a minimum, EPA’s proposal would be inconsistent with the Clean Water Act. 

# Comment ID 1810-1.001.029

Author Name: Young L. Organization: Clean Water Network of Florida 2.�Ultimate Designated Uses. We support the specification of the highest attainable designated uses and associated criteria that will apply at the end of the phased use period and that these uses are consistent with CWA Sec. 101(a)(2) uses. Without this provision, EPA’s proposal would simply be a gigantic rollback of Florida’s standards. Should Florida seek that as a goal, it should attempt to do it without EPA’s stepping in and endorsing it in advance.



# Comment ID 1810-1.001.032

Author Name: Young L. Organization: Clean Water Network of Florida 5.�Geographic Extent. We agree with EPA that the standards must be explicit as to the geographic extent of application and that they must, at a minimum, ensure protection of downstream water quality and downstream uses. 

# Comment ID 1810-1.001.033

Author Name: Young L. Organization: Clean Water Network of Florida 6.�Use Designation Requirements. We agree with EPA that the public process must meet existing requirements and that interim uses cannot be less than existing uses or the source control requirements of 40 C.F.R. § 131.10(h)(2). However, we urge EPA to provide significantly more direction to the State as described elsewhere in these comments. The devil is in the details.

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# Comment ID 1810-1.001.035

Author Name: Young L. Organization: Clean Water Network of Florida 8.�303(d) Listings Based on Ultimate Standards. As explained elsewhere in these comments, we support EPA’s proposal that 303(d) listings remain based on the ultimate designated uses and associated criteria rather than on any interim uses and criteria. To do otherwise would subvert the Clean Water Act and the goals of this proposed rulemaking. 

# Comment ID 1810-1.001.047

Author Name: Young L. Organization: Clean Water Network of Florida Conclusion For the reasons elaborated above, we urge EPA to move forward with a Florida nutrient-specific variance process that mirrors the requirements of compliance schedules in lieu of its proposed restoration standards. We also urge EPA to adopt the specific clarifying requirements we have recommended for other aspects of the Florida nutrient standards. 

# Comment ID 1810-1.001.051

Author Name: Young L. Organization: Clean Water Network of Florida As a result of the issues discussed above, we believe that if EPA finalizes the restoration standards approach, it should limit the use of the restoration standard with its phased uses and associated criteria to only those waters that are exceptional in that they will require solutions that are not readily known or available. For instance, in urban areas, class III creeks have become little more than conveyance ditches to larger water bodies. In cases like this, some type of regional stormwater treatment and pollution prevention system will be required to remove pollutants before they end up in downstream lakes, bayous, bay, coastal waters, etc. The location, funding, and other factors related to the regional stormwater treatment systems may take many years to identify and implement. This could be an appropriate use of a restoration standard. In addition, an interim limit or target could be established that is based on "lowhanging-fruit" type technologies. For instance, rain-barrel programs could reduce run-off from residential and commercial sites, fertilizer ordinances could reduce nutrient loading after rains, pet ordinances could greatly reduce animal waste run-off, etc. These types of best management practices could provide some interim improvement until a permanent treatment plan was funded, constructed, and fully functional. For example, one city, Portland Oregon, where significant funding has been required over a 20-year period to address stormwater entering combined systems and causing combined sewer overflows (CSO), found use of drainpipe disconnection, for example, to be a very cost-effective way to reduce the

11/19/2010 02:48 PM EST 2-4592Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision overall volume of water requiring treatment. Other municipalities have enacted bans on the use of certain lawn and garden products. See, e.g., "Surrey joins widening cosmetic pesticide ban; Advocates calling for province-wide ban on sale of products," April 14, 2010, http://www.cbc.ca/canada/britishcolumbia/story/2010/04/14/bc-surrey

pesticideban.html?ref=rss (pesticides used for cosmetic reasons on lawns and gardens will likely be banned in this town as they have been from Vancouver, Richmond, and two dozen other British Columbia municipalities). 

# Comment ID 1836.001.047

Author Name: Moore D. Organization: Southwest Florida Water Management District F. Proposed Restoration Water Quality Standards Provision 36.The Restoration Water Quality Standards Provision proposed by USEPA should incorporate groundwater travel times in allocating time periods for the restoration phase in springs and spring runs. The Water Quality Standards approach is reasonable in that it provides the State with an explicit regulatory mechanism for directing resources to achieve incremental progress in a step-wise fashion (page 4219, proposed rule) . However, consideration must be given to groundwater travel times when limiting the sum of time periods for the restoration phase. This specifically applies to springs and spring runs. Studies have shown that water discharging from the springs in Kings Bay entered the groundwater system as many as 50 years ago (Jones et al . 1994). Other studies of Florida springs systems have noted similar or longer groundwater residence times (Katz 2004). 

# Comment ID 2233-1.001.032

Author Name: Kovach C. Organization: CF Industries 8. Restoration Standards·· 40 C.F.R. § 131.43(g) CF supports EPA's proposal of a mechanism to account for that fact that properly derived numeric nutrient criteria cannot be fully implemented upon their effective date. However, the proposed Restoration Standards are the product of a very cumbersome process that combines elements of a variance, a Use Attainability Analysis (UAA), the SSAC process and Clean Water Act § 303(c) review. The end result is a process more complicated and burdensome than any of its individual elements. Therefore, CF submits that this provision does not provide the relief intended and most likely will not be utilized. As proposed, the State would have to perform a UAA under 40 C.F.R. § 131.43(f)(1) and then pursue the State rulemaking process to promulgate an interim designated use and applicable criteria under (f)(3) followed by the submission of those uses and criteria to EPA for § 303(c) review. As noted when commenting upon EPA's proposed provision addressing SSACs, state rulemaking is subject to administrative challenges, judicial appeals and then federal APA claims once the Florida DEP submits its approved rule to EPA. Again, CF applauds EPA's attempt to provide a

11/19/2010 02:48 PM EST 2-4593Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision phased approach to implementation of the proposed criteria but is concerned that the process is too vulnerable to delay and disruption by third parties. EPA may wish to consider simply setting the 20-year compliance period as part of its proposed rule allowing individual facilities to take whatever actions are necessary and unique to its operations over the 20-year period so long as the Florida DEP acknowledges that each permittee is making reasonable further progress toward its goal with each permit renewal. 

# Response

Comment IDs: All Response: Please refer to section V.E of the preamble for a discussion of why EPA is not finalizing restoration water quality standards. 

# VI.Q.2 - PROPOSED RESTORATION WATER QUALITY STANDARDS (WQS) PROVISION QUESTION 2 Comment ID 1087-1.001.003

Author Name: Pearson S. Organization: City of Gainesville Public Works Department

- Should EPA allow the subsequent restoration phases to become applicable on the schedule adopted in the restoration WQS and supported by the original UAA demonstration, even if the interim use and criteria are not fully achieved on schedule? EPA should allow this element of the process as a matter of expediency to achieving the nutrient reduction goals. If this is not allowed and the 'final designated use and criteria' become the applicable standard, inevitability regulatory enforcement in the form of litigation and/or fines will result from the disparity between the reality and the rule. These sorts of activities demonstrate the regulators force of will to achieve the nutrient reduction but take away scarce fiscal resources needed by the agencies implementing the restoration. 

# Comment ID 1464-1.001.030

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. I. Responses to EPA Queries on Section VI: Restoration Standards EPA poses the following questions in the text of Section VI, "Proposed Restoration Water Quality Standards Provision," 75 Fed. Reg. 4221:

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1. Alternative Approaches to Subsequent Phases "Alternatively, EPA considered an option of allowing the subsequent restoration phases to become applicable on the schedule adopted in the restoration WQS and as supported by the original UAA. . . . EPA solicits comment on this alternative approach."(p.4221) We believe that if the interim targets are not met, the restoration WQS should no longer be applicable and the standard should be implemented to the extent possible. 

# Comment ID 1616-1.001.019

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida III. EPA Queries on Section VI: Restoration Standards EPA poses the following questions in the text of Section VI, "Proposed Restoration Water Quality Standards Provision," 75 Fed. Reg. 4221:
A. Alternative Approaches to Subsequent Phases "Alternatively, EPA considered an option of allowing the subsequent restoration phases to become applicable on the schedule adopted in the restoration WQS and as supported by the original UAA. . . . EPA solicits comment on this alternative approach." Attainment of standards requires pollution controls on point and nonpoint sources. The State of Florida holds nearly all the cards when it comes to deciding how much pollution reduction to expect from nonpoint sources. The only mechanism that will drive the orderly progress towards achievement of water quality and protection of uses from nonpoint sources is EPA's keeping pressure on Florida to restrict point sources. Any action EPA takes in establishing federal standards for nutrients in Florida's waters must take that into account. Likewise, point sources in Florida are responsible for much of the nutrient pollution. The costs and technological considerations pose a significant hurdle for some, but not all, point sources and it is reasonable to provide some flexibility in achieving the CWA's goals by providing an appropriately attenuated time frame in which to accomplish them. Yet allowing some flexibility for point sources runs the risk of undermining any opportunity at all that EPA has to influence the control of nonpoint sources. Therefore, the most important thing EPA can do is to keep point sources on strict schedules for increasingly stringent pollution controls. Whether the goalpost moves an increment or to the ultimate goal may not be as important as all the other restrictions EPA can impose through this process. 

# Comment ID 1810-1.001.040

Author Name: Young L.

11/19/2010 02:48 PM EST 2-4595Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision Organization: Clean Water Network of Florida III. EPA Queries on Section VI: Restoration Standards EPA poses the following questions in the text of Section VI, “Proposed Restoration Water Quality Standards Provision,” 75 Fed. Reg. 4221:
A. Alternative Approaches to Subsequent Phases “Alternatively, EPA considered an option of allowing the subsequent restoration phases to become applicable on the schedule adopted in the restoration WQS and as supported by the original UAA. . . . EPA solicits comment on this alternative approach.” Attainment of standards requires pollution controls on point and nonpoint sources. The State of Florida holds nearly all the cards when it comes to deciding how much pollution reduction to expect from nonpoint sources. The only mechanism that will drive the orderly progress towards achievement of water quality and protection of uses from nonpoint sources is EPA’s keeping pressure on Florida to restrict point sources. Any action EPA takes in establishing federal standards for nutrients in Florida’s waters must take that into account. Likewise, point sources in Florida are responsible for much of the nutrient pollution. The costs and technological considerations pose a significant hurdle for some, but not all, point sources and it is reasonable to provide some flexibility in achieving the CWA’s goals by providing an appropriately attenuated time frame in which to accomplish them. Yet allowing some flexibility for point sources runs the risk of undermining any opportunity at all that EPA has to influence the control of nonpoint sources. Therefore, the most important thing EPA can do is to keep point sources on strict schedules for increasingly stringent pollution controls. Whether the goalpost moves an increment or to the ultimate goal may not be as important as all the other restrictions EPA can impose through this process. 

# Response

Comment IDs: All Response: Please refer to section V.E of the preamble for a discussion of why EPA is not finalizing restoration water quality standards. 

# VI.Q.3 - PROPOSED RESTORATION WATER QUALITY STANDARDS (WQS) PROVISION QUESTION 3 Comment ID 1087-1.001.004

Author Name: Pearson S. Organization: City of Gainesville Public Works Department

- Are the "restoration WQS" useful?

11/19/2010 02:48 PM EST 2-4596Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision Yes. From a philosophical perspective the WQS approaches the correction of a problem in a methodical and pragmatic manner when unencumbered from some of the eight requirements listed on page 4420 of the publication. Requirements 1, 2, 3 and 4 seem to originate around the generation of the UAA (use attainability analysis) which is judged to be a moderately difficult to difficult task to complete. Of these, number 4 is the most disconcerting: "The sum of these time periods may not exceed twenty years." In the Case Study that follows it is projected that the Stormwater Utility will need on the order of $81 million to achieve the desired restoration while only having about $22.6 million in capital resources over the twenty year forecast period. The resulting analysis indicates that either the time required for the restoration will be on the order of 80 years (due to a cash limitation) or the capital portion Stormwater Fee will have to increase another $3 per month per billing unit starting in fiscal year 2011. The new monthly rate would be $10.90 and the increase represents a 38% increase. In view of the anemic economy in the nation and Florida the DPW judges that it may be possible to get some additional revenue for capital several years from now but that it will not be possible to get the additional $3 immediately. Traditionally the capital portion of the fee is increased in $0.25 increments per year. Thus if no increments are allowed in the next two years and then the increments begin, it will be14 years until the utility begins collecting all the needed revenue.


# Comment ID 1217-2.001.029

Author Name: Voyles J. Organization: Mosaic Fertilizer LLC However, the RWQS provisions should be revised to provide greater flexibility and to render them more responsive to the actual circumstances and needs of Florida waterbodies. 

# Comment ID 1350-1.001.014

Author Name: Schwartz J. Organization: American Forest & Paper Association F. Restoration Standards EPA also proposes a new implementation option called "restoration standards." 75 Fed. Reg. at 4219. AF&PA appreciates EPA's willingness to provide implementation flexibility, and believes the concept of restoration standards is beneficial. However, as described, we do not believe that this is an option that will be useful for Florida facilities. In essence, EPA is proposing that FDEP undertake both a use attainability and a TMDL analysis to develop restoration standards. The restoration standard would be a series of interim criteria based on a series of interim designated uses. Thus, the use attainability analysis to support restoration standards would be even more complex than one used to permanently change a designated use. In addition, EPA is proposing that a restoration standard cannot last longer than 20 years. If interim designated uses and criteria are not met, and the State has not conducted a new use attainability analysis, EPA's promulgated criteria would become immediately effective, putting dischargers out of compliance. 75

11/19/2010 02:48 PM EST 2-4597Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision Fed. Reg. at 4220. The complexity of this approach and the constraints placed on it would create an incentive to permanently remove the designated use rather than attempt to use the new restoration standards concept. In EPA's proposal, restoration water quality standards would be based on an inventory of point and nonpoint sources within the watershed and an evaluation of the ambient conditions and the necessary reductions needed to achieve interim numeric criteria. 75 Fed. Reg. at 4221. This is essentially the same analysis that is required to develop nutrient TMDLs. EPA acknowledges that Florida uses the same analysis when developing Basin Management Action Plans (BMAPs) and suggests that FDEP use information from existing BMAPs to develop restoration standards. AF&PA believes that overlaying restoration standards on top of existing Florida TMDLs and BMAPs is duplicative and is not an efficient use of resources. In summary, given their complexity, EPA's proposed restoration standards are not likely to provide a meaningful mechanism to address the flaws in EPA's proposed criteria. 

# Comment ID 1464-1.001.031

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. 2. Usefulness of Restoration Standards "EPA requests comments on the usefulness of the ‘restoration WQS' proposal for Florida." We do not believe that the restoration proposal is useful given the available alternatives. As explained above, EPA should establish a special variance policy for Florida that builds on the existing variance policy set out in past EPA guidance and memoranda. 

# Comment ID 1474-1.001.050

Author Name: Herz W. Organization: The Fertilizer Institute In proposing a mechanism to establish restoration standards, EPA appears to suggest that variances cannot be used to provide relief to multiple dischargers and cannot be used beyond three years. Id. TFI asks EPA to acknowledge that Florida, like the states discussed above, can adopt a regulation creating state-wide or multiple-discharger variances that can be renewed and apply to multiple permit terms. In proposing a new implementation option, EPA should not be seen to limit the applicability of another. In essence, EPA is proposing that Florida go through both a use attainability and a TMDL analysis to develop restoration standards. The restoration standard would be a series of interim criteria based on a series of interim designated uses. Thus, the use attainability analysis to support restoration standards would be even more complex than one used to permanently change a designated use. In addition, EPA is proposing that a restoration standard cannot last

11/19/2010 02:48 PM EST 2-4598Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision longer than 20 years. If interim designated uses and criteria are not met, and the State has not conducted a new use attainability analysis, then the hammer falls and EPA's criteria would become immediately effective, putting dischargers out of compliance. 75 Fed. Reg. at 4220. The complexity of this approach and the constraints placed on it make is counterproductive, as proposed, creating an incentive to permanently remove the designated use rather than attempt achievement over the long term. In EPA's proposal, restoration water quality standards would be based on an inventory of point and nonpoint sources within the watershed and an evaluation of the ambient conditions and the necessary reductions needed to achieve interim numeric criteria. 75 Fed. Reg. at 4221. This is essentially the same analysis that Florida is employing when developing nutrient TMDLs, except that under Florida's approach, the criteria are based on the actual needs of the waterbody. EPA acknowledges that Florida uses the same analysis when developing Basin Management Action Plans (BMAPs) and suggests that Florida use information from existing BMAPs to develop restoration standards. TFI believes that overlaying restoration standards on top of existing Florida TMDLs and BMAPs is inappropriate and a waste of resources. Florida is implementing its TMDL program to protect existing designated uses. It should not be required to revise those uses through the complex process proposed by EPA to meet inappropriate state-wide federal nutrient criteria. 

# Comment ID 1616-1.001.020

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida B. Usefulness of Restoration Standards "EPA requests comments on the usefulness of the ‘restoration WQS' proposal for Florida." We do not support the restoration standards as a method of introducing some flexibility while ensuring that water quality in Florida reaches the ultimate goal of full support of its designated uses. Instead, EPA should establish a special variance policy for Florida that builds on the existing variance policy set out in past EPA guidance and memoranda. Should EPA proceed with finalizing the restoration standards, we believe it will only work to achieve EPA's stated goals if serious deficiencies in the method used by Florida to establish its 303(d) listings are remedied, if TMDLs are issued for each phase of the restoration standards to clearly articulate the allocations to the sources, if BPJ is used to drive minimum required technology for point sources, and if EPA clarifies many otherwise unclear aspects of the rule and its existing rules such as how to identify existing uses and to establish the meaning of "cost-effective and reasonable BMPs." There are other such caveats found through our comments. 

# Comment ID 1688-2.001.001

Author Name: Brooks J. Organization: Florida Department of Environmental Protection

11/19/2010 02:48 PM EST 2-4599Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision Abstract: In EPA's Proposed Rule, EPA creates a "Restoration Water Quality Standard" to be codified at 40 C.F.R. 131.43(g). In suggesting this new Restoration WQS, EPA is attempting to give the State of Florida another mechanism to deal with the significant challenges that sources would face in meeting the new numeric nutrient criteria for Florida. However, as currently structured, the Restoration WQS is not sufficiently streamlined to be a more efficient, and thus, a more useful tool to the State compared to existing regulatory permitting vehicles. 

# Comment ID 1688-2.001.006

Author Name: Brooks J. Organization: Florida Department of Environmental Protection A streamlined Restoration WQS procedure serves the purposes of the Clean Water Act by promoting reasonable, feasible progress towards achievement of the proposed numeric nutrient criteria, while simultaneously recognizing that Florida is bearing a burden that is not currently being required of any other state. The alternatives suggested herein would accomplish the worthy objectives. Without substantial revisions to the proposed Restoration WQS procedure, the Restoration WQS will not be a useful mechanism in Florida or in any other state. Rather than abandoning the concept, the Department encourages EPA to restructure the Restoration WQS so that it becomes a valuable regulatory tool. 

# Comment ID 1810-1.001.041

Author Name: Young L. Organization: Clean Water Network of Florida B. Usefulness of Restoration Standards “EPA requests comments on the usefulness of the ‘restoration WQS’ proposal for Florida.” We do not support the restoration standards as a method of introducing some flexibility while ensuring that water quality in Florida reaches the ultimate goal of full support of its designated uses. Instead, EPA should establish a special variance policy for Florida that builds on the existing variance policy set out in past EPA guidance and memoranda. Should EPA proceed with finalizing the restoration standards, we believe it will only work to achieve EPA’s stated goals if serious deficiencies in the method used by Florida to establish its 303(d) listings are remedied, if TMDLs are issued for each phase of the restoration standards to clearly articulate the allocations to the sources, if BPJ is used to drive minimum required technology for point sources, and if EPA clarifies many otherwise unclear aspects of the rule and its existing rules such as how to identify existing uses and to establish the meaning of “cost-effective and reasonable BMPs.” There are other such caveats found through our comments. 

# Response

Comment IDs: All

11/19/2010 02:48 PM EST 2-4600Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision

Response: Please refer to section V.E of the preamble for a discussion of why EPA is not finalizing restoration water quality standards. 

# VI.Q.4 - PROPOSED RESTORATION WATER QUALITY STANDARDS (WQS) PROVISION QUESTION 4 Comment ID 0786.001.005

Author Name: Veaudry K. Organization: Florida Native Plant Society Without the numeric nutrient standards inplace, it is harder to define limits of regulation to establish a framework for Florida developed restoration standards for impaired waters. This is one of our main missions, and we want to see something done to be able to scientifically create these standards. 

# Comment ID 1087-1.001.005

Author Name: Pearson S. Organization: City of Gainesville Public Works Department -How will restoration WQS operate in conjunction with listing impaired waters, and establishing NPDES permit limitations, and nonpoint source control strategies, as well as how these requirements should be reflected in regulatory language? DPW has every confidence that the consortium of individuals bringing this proposal to this stage of development is also capable of putting together a unified methodology that will allow all those that would be regulated by the proposal, should it become law, to begin and progress through the restoration process in a cost feasible and responsible manner. The existing Basin Management Action Planning process as part of the National Pollutant Discharge Elimination System permit works well to achieve restoration goals. 

# Comment ID 1217-2.001.019

Author Name: Voyles J. Organization: Mosaic Fertilizer LLC As an initial matter, RWQS appear to apply only where a waterbody cannot meet a designated use. See § 131.43(g)(1) and (2). (This contrasts with an SSAC, which is available where a waterbody can meet its designated use but cannot meet the criteria.) However, there may be instances under this Rule where a waterbody is meeting its designated uses,

11/19/2010 02:48 PM EST 2-4601Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision but still does not meet the criteria of this Rule. In such cases, RWQS would apparently not apply (e.g., because a waterbody already meeting its designated uses would need to put forward a proposal for interim steps to meet its designated uses). Moreover, in many such instances an SSAC may not be feasible or achievable. For example, a discharger may be able to establish that the waterbody meets its designated uses, but may be unable within the time available to develop a specific scientifically-justified alternative criteria. Alternatively, a discharger may plan to remove or reduce discharges over time, thus enabling compliance over a longer time frame, but otherwise not able to establish the basis for an SSAC. For these reasons, Mosaic proposes revising Section 131.43(g) to make it available for waterbodies that either cannot achieve a designated use or that cannot meet a criterion. 

# Comment ID 1217-2.001.031

Author Name: Voyles J. Organization: Mosaic Fertilizer LLC Second, the RWQS proposal appears significantly duplicative of existing State programs aimed at restoring the biological health of impaired waters. Under Florida law (Fla. Stat. § 403.067), impaired waters are addressed through the Total Maximum Daily Load ("TMDL") process, with the development of Basin Management Action Plans ("BMAPs") specifically designed to address nutrient enrichment issues. From a resource management perspective, BMAPs are analogous to RWQS in that they provide for specific actions and timelines to bring a water body into compliance with applicable criteria. In order to avoid unnecessary duplication of effort, Mosaic proposes that the Rule be revised to enable the State to use the TMDL/BMAP process to meet the criteria of, or to function as, an RWQS. To streamline the implementation of RWQS, Mosaic recommends that the RWQS be modified to align with Florida's Impaired Waters Rule, Fla. Admin. Code r. § 62-303, and BMAP process, Fla. Stat. § 403.067(7)(a), and to allow explicitly for the State to use BMAPs as RWQS, with minimal modification. Alignment of the two processes will ensure consistent consideration of water bodies that are found to exceed nutrient criteria under the statutory process in Florida and the federal process. In light of existing Florida law, the only modification to the existing Florida TMDL/BMAP process necessary to achieve the goal of EPA's RWQS process is a provision for identifying and justifying interim numeric nutrient levels to be achieved within a specific timeframe as steps toward achieving full compliance with the numeric criteria. Therefore, we recommend revision of the pertinent Rule language as follows: (g) Restoration Water Quality Standards (WQS). The State may, at its discretion, adopt restoration WQS to allow attainment of a designated use over phased time periods where the designated use is not currently attainable as a result of nutrient pollution but is attainable in the future. In establishing restoration WQS, the State may utilize the processes established through Florida's Impaired Waters Rule (Fla. Admin Code. r. 62-303) and Basin Management Action Plan (BMAP) process (Fla. Stat. § 403.067(7)), with the necessary addition of a step in the BMAP process to identify specific interim nutrient levels, termed Restoration WQS. In establishing WQS, the State must: [continue with remaining Rule language] 

# Comment ID 1217-2.001.064

Author Name: Voyles J.

11/19/2010 02:48 PM EST 2-4602Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision Organization: Mosaic Fertilizer LLC With those goals in mind, the language of Section 131.43(g) should be revised as follows: 131.43(g) Restoration Water Quality Standards (WQS). The State may, at its discretion, adopt restoration WQS to allow attainment of a designated use or attainment of one or more water quality criteria over phased time periods where the designated use or the water quality criteria are not currently attainable as a result of nutrient pollution but are attainable in the future. In establishing restoration WQS, the State must: (1) Demonstrate that the designated use or the water quality criteria are not attainable during the time periods established for the restoration phases based on one of the factors identified in § 131.10(g)(1) through (6); (2) Specify the designated use or water quality criteria to be attained at the termination of the restoration period, as well as the criteria necessary to protect such use, provided that the final designated use and corresponding criteria shall include, at a minimum, uses and criteria that are consistent with CWA section 101(a)(2); (3) Establish interim restoration designated uses and water quality criteria, that apply during each phase that will result in maximum feasible progress reasonably achievable towards the highest attainable designated use and the use identified in paragraph (g)(2) of this section, or that will result in maximum feasible progress reasonably achievable towards the water quality criteria identified in paragraph (g)(2) of this section. Such interim uses and criteria may not provide for further degradation of a water body and may be reviewed prior to the end of each phase in accordance with §§ 131.10 and 131.20 and submitted to EPA for approval (4) Establish the time periods for each restoration phase that will result in maximum feasible progress reasonably achievable toward the highest attainable use and the designated use, or towards the water quality criteria, identified in paragraph (g)(2) of this section, except that the sum of such time periods shall not exceed twenty years from the initial date of establishment of the restoration WQS under this section. 

# Comment ID 1464-1.001.020

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. E. EPA Should Propose a Florida Nutrient Variance As discussed further below, we urge EPA not to promulgate final Florida water quality standards with the proposed restoration water quality standards. Instead, we recommend a more targeted proposal that will meet the needs of dischargers seeking flexibility and longer-term relief, but that will also create a high degree of certainty that water quality standards will be met. Specifically EPA should propose a Florida nutrient variance with the following attributes: First, the Florida nutrient variance would, like other variances, be required to go through the same essential UAA process as EPA proposes for the restoration standards. This is necessary to maintain the legality of the standards and to ensure that existing uses are protected and that which can be attained is attained.

11/19/2010 02:48 PM EST 2-4603Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision

Second, the Florida nutrient variance should incorporate all of the aspects of a compliance schedule except the date certain and final water quality based effluent limit ("WQBEL"). In other words, either sources themselves or the permitting agency would be required to produce a plan for interim requirements and dates for their achievement that the permitting agency would assure meets federal requirements for compliance schedules. This plan of steps and dates by which they would be taken would be incorporated into the enforceable NPDES permit (and subject to public comment and review by EPA). Unlike a compliance schedule, a Florida nutrient variance would not require a final effluent limit but it would establish an effluent goal which the actions, on their timeline, were intended to attain. Florida nutrient variances would be required, as with compliance schedules, to provide a rationale why the timeline would meet that effluent goal "as soon as possible" and the timeline was "appropriate." The findings regarding whether the provisions were appropriate would be identical to the compliance schedule requirements. Third, a reopener would be required in each NPDES permit with such a variance to ensure that if the timeline were longer than five years and the permit were administratively extended, the permit could and would be reopened to incorporate any and all provisions relating to future years. (For example, a plan might be less specific in years five through ten because those actions would be based on evaluations and other actions that preceded that timeframe.) Fourth, the final effluent goal and the enforceable steps to achieve that goal would be based on TMDL predictions of load reductions by other sources. In the event that those load reductions failed to take place on the timeline established in the TMDL, the Florida nutrient variance issued to a source would be revised to increase the load reductions expected from the regulated entity. In no instance would these increased pollution control requirements be used to justify backsliding in the variance terms but it could prolong the timeframe for the variance because it was simultaneously requiring a greater load reduction. Finally, towards the end of the Florida nutrient variance plan, it should become clear what is necessary to meet a final WQBEL. At this point, the source would be regulated under a compliance schedule. This final regulatory action would provide certainty that the last steps would be taken without a source requesting further variances associated with nutrient discharges. By establishing a Florida-specific nutrient variance, EPA could target its approach to the pollution sources that present the most difficult CWA regulatory problem, namely point sources, for which pollution controls will be very costly, the technological solutions are currently unknown, the time to implement those solutions will be extremely attenuated (e.g., changes to urban infrastructure), or a combination of all of those.

11/19/2010 02:48 PM EST 2-4604Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

# Comment ID 1464-1.001.021

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. VI. Section VI: Restoration Standards We believe that EPA should abandon the restoration standards proposal and, instead, create a specific process to tailor variances to NPDES sources of nutrient loading to Florida's waters as discussed above. Such a variance process, combined with properly implemented use designations and compliance schedules, would provide all the regulatory flexibility needed to fashion legal, effective and workable solutions to the problem of nitrogen and phosphorus pollution to Florida waters. However, should EPA proceed to issue final water quality standards for Florida that include the restoration standards, EPA should make significant improvements in them. 

# Comment ID 1464-1.001.022

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. A. Recommended Limitations on Phased Implementation As EPA notes, in some cases, waters impaired by nutrients have a large difference between their actual water quality and the criteria, while elsewhere the impairment is considerably less. Fed. Reg. at 4219. If EPA proceeds with the restoration standards, it should limit the use of the phased restoration standards to those instances where attainment is believed to require 10 years (or more). It is in conflict with the goal of both the CWA and EPA's proposed standards to apply an attenuated attainment schedule where it is not needed. Actually, the establishment of a restoration standard requires a UAA, and a UAA requires that point sources meet effluent limits required under sections 301(b) and 306 of the Act and that nonpoint sources use cost-effective and reasonable best management practices. By definition then, waters that are moderately impaired can be brought considerably closer to attainment by implementation of those appropriate practices and requirements. In any case where standards can be met without using the flexibility afforded by the restoration standards, EPA should instead require Florida to issue compliance schedules to NPDES permit holders that specify a time by which a discharger must come into compliance. Compliance schedules offer the advantages to permittees of terms that can be considerably longer than variances and that do not focus on the types of use protection and attainability inherent in the variance process. The use of compliance schedules will also provide certainty to those concerned about finally achieving full protection of Florida's designated uses and associated water quality. Such compliance schedules would facilitate long-term planning for many facilities that need long planning windows, such as municipalities. 

# Comment ID 1464-1.001.023

11/19/2010 02:48 PM EST 2-4605Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. B. Taking Incremental Steps Should EPA proceed to finalize the restoration standards, we support EPA's concept that the current designated uses would remain as the ultimate designated uses under the restoration standard proposal. We strongly support EPA's statement that any interim designated uses would have to meet the requirements in current EPA rules that existing uses be protected and that some minimum point and nonpoint source controls be required. 40 C.F.R. § 131.10(g) & (h). We urge EPA to spell out how these requirements will have to be met. 

# Comment ID 1464-1.001.026

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. E. Avoiding Layers of Non-Attainment As EPA mentions, NPDES dischargers would retain the ability to obtain variances and compliance schedules to meet the interim water quality standards. Fed. Reg. at 4219. While use of compliance schedules is a practical and reliable solution to ensuring that NPDES sources take the steps necessary on an established timeframe to meet WQBELs at a date certain, the notion that some point sources will obtain variances to the interim criteria is troubling. We are concerned that variances, compliance plans and restoration standards could be stacked so as to avoid compliance with water quality standards being achieved for many decades. 

# Comment ID 1464-1.001.027

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. F. Effect of Restoration Standards on NPDES Permitting EPA states that the intent of the restoration standards is "to allow imposition of the maximum feasible point source controls and nonpoint source nutrient reduction strategies to be phased in." Fed. Reg. at 4220. It is unclear how this will be implemented in practice and further guidance is needed. EPA refers to the use of "technology that has been successfully implemented in comparable situations" and "all existing and new technology that will help achieve the ultimate highest attainable use." Fed. Reg. at 4220. We urge EPA to make explicit that best professional judgment (BPJ) must be required for sources that are regulated under the restoration standards over and above any national effluent limitation guidelines that may exist. We are concerned that

11/19/2010 02:48 PM EST 2-4606Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision EPA may be discussing BPJ only in situations that require "treatment upgrades" and urge EPA to clarify that BPJ must be used in all phases and to all facilities. 

# Comment ID 1464-1.001.028

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. G. Use of Sufficient Best Management Practices for Nonpoint Sources EPA states that the Phase I of the restoration standards would require "cost-effective and reasonable BMPs for nonpoint sources." Fed. Reg. at 4220. We agree that the act of determining the minimum required designated use is dictated by, among other considerations, what can be attained through the use of cost-effective and reasonable BMPs for nonpoint sources. 

# Comment ID 1464-1.001.029

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. H. 303(d) Listing Procedures We strongly support EPA's proposal to maintain waters on the Sec. 303(d) list of impaired waters during the timeframe of the restoration standards and in proposed 40 C.F.R. § 131.43(d)(2)(iii). 

# Comment ID 1464-1.001.032

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. 3. How Restoration Standards will Operate in Conjunction with 303(d) and Source Controls "EPA requests comment on how restoration WQS will operate in conjunction with listing impaired waters, and establishing NPDES permit limitations, and nonpoint source control strategies, as well as how these requirements should be reflected in regulatory language." We believe that listings of impaired waters would need to be based on the ultimate standards, we believe that nonpoint sources should be held to meeting those standards, and we are concerned about whether EPA has considered the implications of asking NPDES permit holders to meet one set of standards, only to have to retrofit to another in future years. While that is the nature of water quality-based regulation under the CWA, and the uncertainty that is created by

11/19/2010 02:48 PM EST 2-4607Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision triennial reviews that revisit the science behind state standards, to knowingly plan for this outcome seems ill-conceived. It would make more sense to establish interim effluent limits and actions, on a timeframe, aimed at eventually meeting water quality standards. 

# Comment ID 1616-1.001.006

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida II. Section VI: Restoration Standards For reasons explained in our comments in the section immediately above, we believe that EPA should abandon the restoration standards proposed and, instead, create a specific process to tailor variances to NPDES sources of nutrient loading to Florida's waters. However, should EPA proceed to issue final water quality standards for Florida that include the restoration standards, we believe that EPA should make significant improvements in them and we have provided comments to this effect below. We urge EPA, however, not to promulgate final Florida water quality standards with this restoration standards proposal. Instead, we strongly recommend a more targeted proposal that will meet the needs of dischargers seeking flexibility and longer-term relief at the same time as creating a high degree of certainty that water quality standards will be met. Specifically EPA should propose a Florida nutrient-specific variance with the following attributes. First, the Florida nutrient-specific variance would, like other variances, be required to go through the same essential UAA process as EPA proposes for the restoration standards. This is necessary to maintain the legality of the standards and to ensure that existing uses are protected and that which can be attained is attained. With the safeguards we have recommended for that process elsewhere in these comments, we think this will produce a reasonable outcome. Second, the Florida nutrient-specific variance should incorporate all of the aspects of a compliance schedule save the date- and WQBEL-certain. In other words, either sources themselves or the permitting agency would be required to produce a plan for interim requirements and dates for their achievement that the permitting agency would assure meets federal requirements for compliance schedules. This plan of steps and dates by which they would be taken would be incorporated into the enforceable NPDES permit (and subject to public comment and review by EPA). The level of detail should be spelled out by EPA in advance (i.e., by rule) to ensure that the plans are sufficiently detailed to, for example, collect adequate data; to evaluate the efficacies and costs of treatment, operations, and pollution prevention options; and to include financial evaluations, etc. to say nothing of installing and implementing various types of pollution controls, process changes, and pollution prevention approaches. Each of these actions or operations would be enforceablebecause they would be incorporated into the NPDES permit. Unlike a compliance schedule, however, a Florida nutrientspecific variance would not require a final effluent limit but it would establish an effluent goal which the actions, on their time line, were intended to attain. Florida nutrient-specific variances would be required, as with compliance schedules, to provide a rationale why the time line would meet that effluent goal "as soon as possible" and the time line was "appropriate." The findings regarding whether the provisions were appropriate would be identical to the compliance schedule requirements.

11/19/2010 02:48 PM EST 2-4608Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision Third, a reopener would be required in each NPDES permit with such a Florida nutrient-specific variance to ensure that if the time line were longer than five years and the permit were administratively extended, the permit could and would be reopened to incorporate any and all provisions relating to future years. (For example, a plan might be less specific in years five through ten because those actions would be based on evaluations and other actions that preceded that time frame.) Alternatively, if EPA and/or the state believe that reopeners cannot be used on permits that have been administratively extended, the terms of the Florida nutrient-specific variance must be incorporated into the NPDES permit such that they continue in the event of an extension. Fourth, the final effluent goal and the enforceable steps to achieve that goal would be based on TMDL predictions of load reductions by other sources. In the event that those load reductions were not taking place on the time line established in the TMDL, or to meet the predicted date of attainment, the Florida nutrient-specific variance issued to a source would be revised to increase the load reductions expected from the regulated entity. In no instance would these increased pollution control requirements be used to justify backsliding in the variance terms but it could prolong the time frame for the variance because it was simultaneously requiring a greater load reduction. Finally, towards the end of the Florida nutrient-specific variance plan, it would likely be clear what was necessary to meet a final water quality based effluent limit at which point, the source could be regulated under a compliance schedule to assure timely completion of the pollution controls. This final regulatory action would provide certainty that the last steps would be taken without a source's requesting further variances associated with nutrient discharges. By establishing a Florida-specific nutrient variance, EPA could target its approach to the pollution sources that present the most difficult CWA regulatory problem, namely point sources, for which pollution controls will be very costly, the technological solutions are currently unknown, the time to implement those solutions will be extremely attenuated (e.g., changes to urban infrastructure), or a combination of all of those. By targeting the solution to the problem, EPA can avoid loosening the water quality standards that should continue to apply to NPDES sources that can relatively easily achieve WQBELs under compliance schedules, those that need short-term variances, and nonpoint sources that are not sufficiently regulated by water quality standards that any changes are needed to accommodate them. It would also focus on waters heavily impaired by nutrients and leave in place the expectation that Florida will clean up the mildly or moderately impaired waters using its existing programs. As a result of this targeted approach, Floridians would remain cognizant of the goals of their water quality standards, TMDLs could be done once (assuming they did not need to be revised), and there would be no question about whether EPA was letting Florida's poor and deteriorating water quality drive loopholes into the Clean Water Act. 

# Comment ID 1616-1.001.008

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida B. Taking Incremental Steps EPA discusses the benefits of states' being able to express downgraded designated uses as interim goals "to allow the state and stakeholders necessary time to take incremental steps." Fed. Reg. at 4219. As discussed elsewhere in these comments, EPA's comments regarding the shortcoming of variances to encourage pollution reductions are correct.

11/19/2010 02:48 PM EST 2-4609Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision Variances do not include specific milestones and expectations. However, EPA can, as it did in the GLI rule, require variances issued for nutrients (and possibly intimately related parameters) in Florida be required to take on all the attributes of a compliance schedule save the one - that is, a Florida nutrient-specific variance would provide a schedule with load reductions and other related actions - less the requirements of a compliance schedule that bind a source to meeting the WQBELs by a date certain. There is, in fact, no policy rationale for variances and compliance schedules to be so different in what they require of a source in terms of pollution outcomes, particularly in the circumstances EPA intends to target through the restoration standards. Rather they should be more similar, with compliance schedules only being used when the permittee and the permit issuer have confidence in the effluent quality and date by which it will be achieved. Regardless of how EPA views variances for states under its existing regulations (which, as we know fall short of clearly spelling out EPA's requirement that variances be subject to the same regulations as UAAs) it has the opportunity in this federal promulgation to do something different. Rather than focusing on ways to loosen requirements, it should focus on ways to keep existing requirements tightly focused on attainment of existing uses, designated uses, and criteria. It can do that by redefining the variance for Florida as a path to pollution reduction for point sources. NPDES permittess would then have the opportunity to use compliance schedules or variances, or even a combination of the two, but the outcome for public waters would be more similar than different. And this approach would provide more certainty that water quality would be attained in the foreseeable future and uses fully supported. Most important, EPA's proposed concept is flawed. There is no reason to believe that having the interim steps as uses and associated criteria will, by itself, result in achieving milestones or enhancing enforceability. In actuality, no additional legal authorities are created by the establishment of "an explicit regulatory mechanism for directing state efforts to achieve incremental progress in a step-wise fashion, applicable to all sources, as part of its WQS," despite the implication of that statement. Fed. Reg. 4219. For this reason, there is no reason to believe that anything in the status quo will change other than NPDES permittees will be given WQBELs they are more likely to be able to achieve in the shorter term. Certainly, as nonpoint sources are not held to any meaningful requirement to meet water quality standards, lowering the standards will not induce more pollution controls from those sources or the agencies with immediate control over them. Should EPA proceed to finalize the restoration standards, however, we support EPA's concept that the current designated uses would remain as the ultimate designated uses under the restoration standard proposal. We strongly support EPA's statement that any interim designated uses would have to meet the requirements in current EPA rules that existing uses be protected and that some minimum point and nonpoint source controls be required. 40 C.F.R. § 131.10(g) & (h). We are dismayed, however, that EPA has not spelled out how these requirements will have to be met, for the reasons discussed above. Saying that existing uses must be protected is nowhere close to identifying exactly what rigor will be required to ensure they are identified and protected. Likewise, EPA has not done the difficult work of establishing how the State will identify effluent limits required under sections 301(b) and 306 of the Act and the required "cost effective and reasonable best management practices for nonpoint source control," also as discussed elsewhere in these comments. Yet, EPA notes that it is the product of this analysis that will "demonstrate that the interim uses and criteria, as well as the timeframe, are based on a UAA evaluation of what it attainable and by when." Without that specific direction on how to analyze the efficacy and speed of pollution reductions from point and nonpoint sources, as well as how to clearly identify the existing uses as the starting point, the floor below which Florida may not sink, the restoration standards have the potential to be considerably less than legally required and desired for Clean Water Act goals. Finally, should EPA proceed to finalize the restoration standards, it should adopt a strict nondegradation standard for

11/19/2010 02:48 PM EST 2-4610Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision any water body that is not meeting the ultimate uses and ultimate criteria. This permanent prohibition on any new or expanded discharges from point sources or load increases from nonpoint sources should ensure that if attainment is achieved, it is never degraded again in the future. 

# Comment ID 1616-1.001.012

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida E. Enhancing the Establishment of Enforceable Long-Term Plans EPA states in its notice that it believes interim uses and associated criteria "could support efforts by Florida to formally establish enforceable long-term plans for different watersheds or stream reaches to attain the ultimate designated use and the associated criteria." Fed. Reg. at 4219. EPA does not, however, support this statement with any rationale for its belief that a phased set of criteria are different from, for example, a phased Total Maximum Daily Load (TMDL) with interim milestones, as has been done elsewhere. Nor does EPA explain how the interim uses/criteria by themselves will lead to enforceable plans or an increased political will in the state to address sources not directly regulated under federal law. In fact, without a TMDL corresponding to each phase of the restoration standards, it is not clear how Florida will establish the expectations for load reductions for each sector and source. In its notice, EPA calls for an inventory of point and nonpoint sources within an affected watershed, an evaluation of existing conditions, and identification of the necessary load reductions to meet the numeric criteria in order to establish the restoration standards. Fed. Reg. at 4221. EPA goes on to say that this process would also include determining the combinations of control strategies and management practices available, how likely they are to produce results, and the resources needed to implement them. At this point, the State would be in a good position to determine how much pollution reduction is likely to be attainable under what timeframes. Fed. Reg. at 4221. All of this taken together is largely the same analysis that comprises a TMDL and a TMDL would make the allocations to the point and nonpoint sources to preclude any ambiguity as to which sources were to reduce what. However, the absence of a TMDL raises the significant question: what does EPA have in mind in its stead? We cannot imagine any other process that could allocate the loads, assess the time lines, and ensure they were achieved. This argues strongly for the concurrent adoption of TMDLs with the restoration standards and a provision that requires a new or revised TMDL be adopted for each phase of the restoration standards. Identifying the problem is much easier than proposing a solution, considering EPA's lack of authority over nonpoint sources. However, we would suggest that EPA, as it did in the GLI rules, focus attention on point sources and make it clear, in a regulatory fashion, that NPDES permittees will bear the burden for the State's failure to control nonpoint sources. This is the only authority that EPA has (other than funding, requiring antidegradation implementation methods and plans, etc.) and EPA must use it. So, for example, EPA should include requirements not only that TMDLs be done so that load reduction allocations are made in a clear and transparent fashion, but it should increase the requirements on the State to justify waste load allocations to regulated point sources by requiring Florida to demonstrate exactly how

11/19/2010 02:48 PM EST 2-4611Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision it willachieve the load allocations for nonpoint sources. Specifically, EPA must put Florida on notice that the State can no longer put down nearly any verbiage as "reasonable assurances" that nonpoint source controls will be implemented such that wasteload allocations will result in attainment of standards and still obtain approval for its TMDLs and the wasteload allocations that are then implemented in NPDES permits. Instead, EPA must require first that nutrient TMDLs establish expected load reductions from nonpoint sources based on existing pollutant loadings unless Florida is able to demonstrate that load reductions will realistically result from enforceable actions by the State or designated management agencies. If changes, i.e. reductions, are not expected to occur from nonpoint sources, then Florida TMDLs must squarely put the burden on Florida's point sources. Only in this fashion will the state wake up to its responsibility. EPA must also require that NPDES permits issued in Florida contain permit reopener provisions that are linked to nonpoint source load reductions and are applicable in the event that a permit is administratively extended for a long period of time. In fact, EPA's rule must trigger the generic reopener in existing Florida permits. The reason is simple: there are significant industrial discharges, such as paper mills, discharging under NPDES permits in Florida that have been administratively extended for at least 16 years. This fact, combined with Florida's rules, create an untenable situation whereby no progress is made and permittees are allowed to pollute at levels that are no longer acceptable. In particular, Florida statute calls for the following restrictions on incorporating waste load allocations from TMDLs into existing permits: The department shall not impose limits or conditions implementing an adopted total maximum daily load in an NPDES permit until the permit expires, the discharge is modified, or the permit is reopened pursuant to an adopted basin management action plan. Fla. Stat. § 403.067(7)(b)2 (emphasis added). EPA can and should address this problem through its federal promulgation. To do otherwise not only jeopardizes the very goals it espouses but creates an unfair situation as between NPDES sources, some of which seem to have virtually unlimited administrative extensions and others which do not. Finally, if EPA finalizes a federal promulgation with restoration standards, EPA must include the following additional requirements: (1) a requirement that any variance issued for an NPDES permittee demonstrate reasonable progress towards attaining standards and include a plan for doing so and a requirement those milestones be incorporated as conditions in the NPDES permit and a method for reopening permits with variances if they are administratively extended; (2) an explicit reference to the requirement to meet the antidegradation policy; and (3) an absolute prohibition against variances for any new or recommencing dischargers or existing dischargers for load increases. We disagree with EPA that it can rely on the Florida Basin Action Management Plans (BMAP) to achieve attainment of restoration standards. Fed. Reg. at 4221. As EPA notes, BMAPs includes plans that are developed by local stakeholders. This generally means that BMP requirements are and will continue to be inadequate to meet necessary load reductions and/or the plans and that the BMPs are too ambiguous to be enforceable. In other words, the quoted language in the federal notice that BMAPs are enforceable is not the end of the story. The questions are: are they sufficient, are they clear enough to be readily enforced, and can they be enforced? Moreover, these questions beg, of course, whether Florida has the political will to carry out enforcement against nonpoint sources. We would argue on the basis of what has not transpired over the last few decades, that Florida quite clearly lacks the political will. And finally,

11/19/2010 02:48 PM EST 2-4612Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision this lack of political will has been translated by the Florida legislature into the following relevant statutory provision: Implementation, in accordance with rules adopted under this paragraph, of practices that have been initially verified to be effective, or verified to be effective by monitoring at representative sites, by the department, shall provide a presumption of compliance with state water quality standards and release from the provisions of s. 376.307(5) for those pollutants addressed by the practices, and the department is not authorized to institute proceedings against the owner of the source of pollution to recover costs or damages associated with the contamination of surface water or groundwater caused by those pollutants. Fla. Stat. § 403.067(7)(c)(3) (emphasis added). In other words, Florida has chosen to ensure that the FDEP does not have the statutory authority to enforce against nonpoint sources operating under a presumption of compliance. For this reason, EPA must presume non-enforcement of nonpoint source controls as a starting point in setting any restoration standards it might finalize. We believe that EPA can promulgate a rule that alters Florida's politically-inspired restrictions on controlling nonpoint sources. Quite simply, it can do two things. First, it can increase the clarity of the expectations established for nonpoint source control. The more it is clear what nonpoint sources must do, the increased likelihood that someone will make them do it. And, as explained elsewhere in these comments, strict controls on point sources will substantially increase the likelihood that the State nonpoint source program will become far more effective. EPA will find that sources under NPDES program regulation with its limits and citizen enforcement tools will begin demand nonpoint source reductions to relieve them of the burden of cleaning Florida's waters, a burden it should share with other sources. Since, fundamentally, the barrier to nonpoint source control is a political one, EPA must, 35 years after Congress counted on states to do the job, use politics to obtain the result needed to meet the goals of the Clean Water Act. If EPA finalizes the restoration standards, we also strongly urge that it have some regular checkin points, the same kind of time and achievement checks that are supposed to be a part of variances, for example, and which are clearly a part of compliance schedules under federal law. 

# Comment ID 1616-1.001.014

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida G. Avoiding Layers of Non-Attainment As EPA mentions, NPDES dischargers would retain the ability to obtain variances and compliance schedules to meet the interim water quality standards. Fed. Reg. at 4219. While use of compliance schedules is a practical and reliable solution to ensuring that NPDES sources take the steps necessary on an established time frame to meet WQBELs at a date certain, the notion that some point sources will obtain variances to the interim criteria is troubling. This has the potential to undermine the very progress EPA intends the restoration standards to achieve. Moreover, since the UAAs will have been completed by the State in order to justify the interim designated uses, variances will be significantly less expensive and less onerous to obtain, the technical justification being similar to that of the completed UAAs and the regulations identical. In other words, the plan runs the risk of resulting in innumerable variances for NPDES sources,

11/19/2010 02:48 PM EST 2-4613Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision subject to unlimited renewals, combined with the possibility - already what one might term a probability - that nonpoint source controls will fail. The ultimate result would be failure to make any progress at all. Controlling nonpoint sources is at the heart of problems with pollution controls. The federal requirement that UAAs not be allowed to downgrade uses that could be achieved through the implementation of "cost-effective and reasonable best management practices for nonpoint source control" sets a floor on how low the designated uses can go, putting aside protecting existing uses since 1975. But, as described elsewhere in these comments, EPA has declined to provide Florida or other States with direction on setting these BMPs. Moreover, in the notice, EPA discusses the "opportunity for different parties to work together, exchange information and determine what is actually attainable within a particular time frame." Fed. Reg. at 4219. While that sounds like a good public process, it is also most likely to provide an outcome that supports the position of nonpoint sources that they can tolerate little or no practices beyond whatever little they may or may not be doing at the present time. In other words, rather than the State, with EPA guidance, determining what BMPs are the minimum starting point, it will be those with a vested interest in ensuring they have to do very little to protect public waters. While we agree that the BMPs should be realistic, we see nothing in EPA's notice that explains how, exactly, these BMPs will be aggressive enough to ensure that any progress in load reductions is made in a timely fashion. Without these details, we fear that the restoration standards while lofty will result in little more than the status quo: no progress at all. 

# Comment ID 1616-1.001.015

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida H. Existing Use Protection Identifying the existing uses that must be protected pursuant to 40 C.F.R. §§ 131.10(g), (h)(1), and 131.13(a)(1) is essential to ensuring the restoration standards and any other methods of establishing use designations and criteria do not undermine the goals of the Clean Water Act. We appreciate EPA's several explicit references to these requirements but we are extremely concerned that without significantly more direction, the requirements will be nullified in practice. We also bring EPA's attention to one place in its notice where it appears to ignore the existing use protection requirement, its description of the UAA process which merely states that the UAA process under the restoration standard must "reflect the highest attainable aquatic life use." Fed. Reg. at 4219. That is incorrect because it fails to mention the requirement to protect existing uses, currently attained or not. Likewise, EPA says explicitly that existing uses have to be protected but then in its discussion of the first phase of restoration standards mentions that "the State would identify current conditions and establish the principle that there can be no further degradation. Fed. Reg. at 4220. The reference to "current conditions" appears to undercut the definition of existing uses that date to 1975 and that it is existing uses and the water quality needed to support them that are the floor of the non-degradation requirement. Because of the fundamental importance of properly identifying the existing uses and the water quality necessary to support them, we urge EPA to provide significantly more guidance to the State on how to do this and we would look forward to an opportunity assist EPA in setting out this process. 

# Comment ID 1616-1.001.016

11/19/2010 02:48 PM EST 2-4614Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida I. Effect of Restoration Standards on NPDES Permitting EPA states that the intent of the restoration standards is "to allow imposition of the maximum feasible point source controls and nonpoint source nutrient reduction strategies to be phased in." Fed. Reg. at 4220. We are concerned that if EPA allows Florida to determine the point source responsibilities to end at what is feasible, technologically speaking, it may stop short of what it must demand from its only regulated sources. In other words, while it may not be either fair orfeasible, EPA must establish that point sources are responsible for source reduction in any case when un- or underregulated nonpoint sources are not attaining the reductions needed. This pressure will likely result in what EPA refers to as "more innovative ways to reach the requirements of the next phase, thus possibly reducing costs or allowing new approaches to resolve complex technological issues." Id. In the absence of such pressure, EPA's hoped for innovation will fail. But, if at any point, EPA or Florida cap the load reduction requirements on NPDES sources, it will undermine the pressure needed to drive either innovative approaches or nonpoint source controls instituted by those who own and operate nonpoint sources. Our concern in this regard is heightened by comments such as, "[f]or treatment upgrades to point sources, EPA expects careful scrutiny of technology[.]" Fed. Reg. at 4220. What does EPA mean by "treatment upgrades"? Is EPA limiting the careful scrutiny of technology to only those times when NPDES sources are upgrading for other purposes, such as expanded sewage treatment needs? We understand that municipal systems may be among the most difficult sources to control and require the longest period of time in which to come into compliance, along with large industrial facilities. At the same time, we are concerned that any large sources maintain the goal of meeting the ultimate uses and criteria, not just focus on the near term interim uses and criteria. Because of their very long term planning windows, municipal sources must both meet the interim criteria and aim for the ultimate criteria. Of course, this would be true for other public and private entities for which costs of increasing treatment are substantial. It is unclear how EPA intends for these sources to factor in the need to reach ultimate criteria given that permit limits "would include effluent limits as stringent as necessary to meet the applicable interim designated use and numeric water quality criteria." Fed. Reg. at 4220. How will these permits incorporate longterm planning goals and anticipate the changes in the criteria and their associated WQBELs? Put another way, how will EPA ensure maximum feasible progress and will that progress be capped by economic or technological restrictions even if nonpoint sources are not pulling their weight? EPA partially answers this with regard to the first phase where it states that "necessary control actions that . . . can be implemented . . . must be reflected in the interim targets for the first restoration phase." Fed. Reg. at 4220. It goes on to apparently capture the requirement of 40 C.F.R. § 131.10(h)(2) with regard to nonpoint source controls. Id. However, EPA says about point sources, which C.F.R. § 131.10(h)(2) says must be at the level of "implementing effluent limits required under sections 301(b) and 306 of the Act," that it requires "all technology-based requirements for point sources." Id. (emphasis added). This is simply incorrect. Section 301(b)(1)(C) requires point sources to achieve, among other things "any more stringent limitation, including those necessary to meet water quality standards." In issuing an NPDES permit under the Clean Water Act, the permit issuing agency "is under a specific obligation to require that level of effluent control which is needed to implement existing water quality standards without regard to the limits of practicability." Defenders of Wildlife v. Browner, 191 F.3d 1159, 1163 (9th Cir. 1999). Therefore, EPA cannot set the requirements of Florida Phase I restoration standards to be limited to "all technology-based requirements for point

11/19/2010 02:48 PM EST 2-4615Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision sources." We urge EPA to correct this error. We applaud EPA's reference to the use of "technology that has been successfully implemented in comparable situations" and "all existing and new technology that will help achieve the ultimate highest attainable use." Fed. Reg. at 4220. We urge EPA to make explicit that best professional judgment (BPJ) must be required for sources that are regulated under the restoration standards over and above any national effluent limitation guidelines that may exist. There are several reasons for this. First, the national guidelines are frequently outdated and are rarely updated and so represent past technology. Past technology is not sufficient or equivalent to that required to make significant inroads into Florida's nutrient problems, let alone reasonable further progress or maximum feasible progress. Second, the national effluent guidelines apply in any case so nothing in this rule about them is progressive if more is not required. Third, the issue here is meeting the more stringent requirements of water quality needs, as expressed in water quality standards, so to the extent that the interim requirements for NPDES permit holders represent a compromise between technological feasibility and the demands of water quality standards, BPJ is the appropriate way to resolve the problem. As stated above, we are extremely concerned that EPA may be discussing BPJ only in situations that require "treatment upgrades" and urge EPA to clarify that BPJ must be used in all phases and to all facilities. Moreover, EPA must address what appears to be an underlying assumption that permits will reissued in a timely fashion and not be subject to extended administrative extensions. This, however, may be a very misplaced assumption and EPA should include some specific regulatory solution to this problem. Equally important, EPA has not included the BPJ requirements in the proposed rule language, which is essential. Otherwise, the requirements of 40 C.F.R. §125.3(c)(2)&(3) will preclude the use of BPJ in instances where national effluent guidelines have been promulgated that are applicable to the source. The need for BPJ needs to be addressed in the specific context of this phased restoration standards. Including BPJ as part of the definition of "maximum feasible progress" would be a good idea but we also urge that certain permitting issues be explicitly in the rule. 

# Comment ID 1616-1.001.017

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida J. Use of Sufficient Best Management Practices for NonPoint Sources EPA states that the Phase I of the restoration standards would require "cost-effective and reasonable BMPs for nonpoint sources." Fed. Reg. at 4220. We agree that the act of determining the minimum required designated use is dictated by, among other considerations, what can be attained through the use of cost-effective and reasonable BMPs for nonpoint sources but EPA errs in capping the BMPs required for Phase I in this fashion. Instead, logically, the BMPs that should be required in each phase, including Phase I, are those necessary to meet the interim criteria. In fact, requiring the BMPs that are assumed in the outcome of the UAA process pursuant to 40 C.F.R. § 131.10(h)(2) does not add that much to Florida's assessment of what it must require of its nonpoint sources. Those are the minimum; EPA must require that Florida require and identify the BMPs necessary to meet the interim criteria. This should clarified in the definition of maximum feasible progress. If, instead, EPA believes that BMPs should be set at a lower level, EPA must make clear it expects the NPDES sources to take on a proportionally higher share of load reduction responsibilities. Further, the relative proportions of responsibility must be set out in a TMDL in order to track the

11/19/2010 02:48 PM EST 2-4616Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision effectiveness of point and nonpoint source controls. 

# Comment ID 1616-1.001.018

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida K. 303(d) Listing Procedures We strongly support EPA's proposal to maintain waters on the Sec. 303(d) list of impaired waters during the time frame of the restoration standards and in proposed 40 C.F.R. § 131.43(d)(2)(iii). First, the waters are not in attainment, they require TMDLs, and they should be identified as such. Second, the regulatory restrictions that are associated with waters on the 303(d)(1) list must be triggered under the restoration standards, should EPA finalize them, in order that water quality not actually degrade more. We are, in addition, very concerned with EPA's reference to Florida's dubious 303(d) listing procedures. Proposed 40 C.F.R. § 131.43(d)(2)(iii). EPA says that Florida may use its highly constrained listing process "where such procedures are consistent with the level of protection provided by the criteria established in this section." This leads to many ambiguities and, we are certain, a lack of protection commensurate with the proposed EPA ultimate criteria. In fact, Florida listing procedures are not consistent with the goal of restoring the State's waters as has been spelled out extensively in a comment letter prepared by the Clean Water Network of Florida and attached hereto. 

# Comment ID 1616-1.001.021

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida C. How Restoration Standards will Operate in Conjunction with 303(d) and Source Controls. "EPA requests comment on how restoration WQS will operate in conjunction with listing impaired waters, and establishing NPDES permit limitations, and nonpoint source control strategies, as well as how these requirements should be reflected in regulatory language." As stated above, we believe that listings of impaired waters would need to be based on the ultimate standards, we believe that nonpoint sources should be held to meeting those standards, and we are concerned about whether EPA has considered the implications of asking NPDES permit holders to meet one set of standards, only to have to retrofit to another in future years. While that is the nature of water quality-based regulation under the Clean Water Act, and the uncertainty that is created by triennial reviews that revisit the science behind state standards, to knowingly plan for this outcome seems ill-conceived. It would make more sense to establish interim effluent limits and actions, on a time frame, aimed at eventually meeting water quality standards rather than simply pushing the goalpost further away.

11/19/2010 02:48 PM EST 2-4617Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

# Comment ID 1616-1.001.030

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida In any case where standards can be met without using the flexibility afforded by the restoration standards, EPA should instead require Florida to issue compliance schedules to NPDES permit holders which require time to come into compliance. Compliance schedules offer the advantages to permittees of terms that can be considerably longer than variances and that do not focus on the types of use protection and attainability inherent in the variance process. The use of compliance schedules will also provide certainty to those concerned about finally achieving full protection of Florida's designated uses and associated water quality. And, EPA has already been very clear about regulatory matters concerning the issuance of compliance schedules. See Hanlon memo, supra. Such compliance schedules would facilitate long-term planning for many facilities that need long planning windows, such as municipalities. The only drawback to compliance schedules is that in providing certainty to public waters, they bind point sources to outcomes and dates certain. This, then, is the only circumstance the restoration standards need to address with regard to NPDES sources. As we discuss elsewhere in these comments, we believe that a more targeted variance procedure would be far preferable to EPA's proposed restoration standard approach. 

# Comment ID 1688-2.001.005

Author Name: Brooks J. Organization: Florida Department of Environmental Protection A Restoration WQS based on a blanket compliance schedule would provide the FDEP the time to deal with nonpoint source discharges that are otherwise unregulated under the Clean Water Act, but are the primary source of excess nutrients in Florida's surface waters.[2] EPA has previously approved state water quality standards that incorporate a reasonable "statutory" schedule of compliance, which determination was subsequently upheld by the federal courts. See Friends of the Everglades v. U.S. E.P.A., Case No. 01-16482 (11th Cir. July 19, 2002) (unpublished opinion approving a 12-year statutory compliance schedule as part of water quality standards) affirming Friends of the Everglades v. U.S. E.P.A., Case No. 00-935-Civ-Seitz, DE 77 (S.D. Fla. October 18, 2001)(Approving EPA's 1999 Determination). As such, there is no legal impediment to this concept.

[2] In addressing nonpoint source pollution, FDEP is recognized as a national leader and, to a large extent, has already implemented laws that are the obvious first steps in dealing with these otherwise unregulated sources. For instance, since the early 1980s all new development in Florida has been required to address water quality issues associated with their stormwater. See, e.g., Fla. Admin. Code R. 62-40.432(2)(a); Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District, Section 5. Florida law also requires agricultural operations in many portions of the state to undertake nutrient best management practices. See, e.g., sections 373.4592(4), 373.4595(3)(c), and 403.067(7)(c), Fla. Stat. With respect to fertilizer use, a statewide urban turf fertilizer rule has been adopted in Florida Administrative Code Rule 5E-1.003, and local governments within impaired watersheds must enact local ordinances to restrict fertilizer use. See section 403.9337(2), Fla. Stat. Many of these

11/19/2010 02:48 PM EST 2-4618Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision initiatives are associated with Florida's Basin Management Action Plans, which go far beyond the floor set by the Clean Water Act's TMDL program. In restoring 303(d) impaired waters, these comprehensive watershed-based plans require reductions from all sources of pollutant loadings, whether from point or non-point sources, and may include government-funded projects for additional treatment and restoration. Section 403.067, Fla. Stat. Besides these plans, the Florida legislature has enacted many mandatory restoration programs for specific waterbodies including the Everglades, Lake Okeechobee, and Lake Apopka. See, e.g., sections 373.4592, 373.4595 and 373.461, Fla. Stat. Consequently, the low hanging fruit, in dealing with non-point sources in Florida, has already been picked. 

# Comment ID 1688-2.001.014

Author Name: Brooks J. Organization: Florida Department of Environmental Protection Specific Comments As currently proposed, the additional burdens associated with a Restoration WQS make it unlikely that this new regulatory tool will be utilized. To transform the Restoration WQS into a viable regulatory option, the following procedural aspects associated with obtaining a Restoration WQS either need to be streamlined, modified or deleted: 1.� A Restoration WQS effectively requires approval of a restoration plan for that waterbody and needs to include interim milestones during the pendency of the Restoration WQS. See 75 Fed. Reg. at 4221 (discussing the evaluation of control strategies and management practices needed to achieve the interim and final criteria, and referencing FDEP's Basin Management Action Plans as an example of a sufficient demonstration). While the requirement of a restoration plan as part of the procedure for obtaining a Restoration WQS is theoretically appropriate, from a practical prospective the Department lacks the resources to generate technically feasible restoration plans for the numbers of impaired waters that will likely result from EPA's promulgation of the proposed nutrient criteria. 2.� 40 C.F.R. 131.43(g)(7) requires the elimination of the Restoration WQS if the interim milestones established by the Restoration WQS are not met during any restoration phase, at which time the final numeric nutrient criteria will immediately go into effect. This is not the case when implementing a standard variance (or a temporary standard). If a temporary water quality standard associated with a standard variance is not achieved, the non-attainment is handled through standard enforcement and permitting procedures. The variance is not automatically rescinded. The Department suggests that violation of a Restoration WQS interim criterion be handled in the same way as a violation of a variance. 3.� Given the significant uncertainty typically associated with water quality attainment analyses and the difficulty in redressing the ubiquitous nutrient problem associated with both point and nonpoint sources, besides estimating with any reasonable accuracy the timeframes for achieving each phase of nutrient pollution reductions, it is not possible to determine with any confidence the attainment of interim criteria by future date-certain deadlines. See 75 Fed. Reg. at 4219 (The State would need to demonstrate that the interim criteria and timeframes are based on a UAA evaluation of what is attainable and by when.). Using a traditional use change or standard variance, adaptive management techniques are available to periodically evaluate the water quality condition and ratchet down the standard when necessary and appropriate. With Restoration WQS, however, EPA imposes "a significant burden on the state to demonstrate what changed to alter the initial analysis and associated expectations for what was attainable for that phase. 75 Fed. Reg. at 4220. The impractical precision of the expectations articulated by EPA in setting, revising and achieving interim criteria under a Restoration WQS, coupled with the elimination of the Restoration WQS if unattained by an interim deadline, make this aspect of EPA's proposal nearly, if not totally, impractical. 4.� The requirement to keep the waters for which a Restoration water quality standard is adopted listed as impaired under section 303(d) of the CWA is illogical, counterproductive to the intent of a Restoration WQS and inconsistent with the requirements of Section

11/19/2010 02:48 PM EST 2-4619Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 303(d). By definition in EPA's proposal, a waterbody with an established Restoration WQS must attain all interim criteria for the Restoration WQS to remain in effect. Waterbodies that attain water quality standards do not belong on the 303(d) list and do not require a TMDL. Furthermore, why would a waterbody that has a restoration standard need a TMDL given that it must attain the interim water quality standard and the pollution reduction measures necessary to meet the final standard have been approved as part of the approval process for the Restoration WQS? As a result of these impediments, it is not clear why the FDEP or any individual discharger would seek a Restoration WQS over a variance, schedule of compliance, or even a permanent change to the designated use. While the FDEP is supportive of the general concept of a Restoration WQS, the FDEP suggests that the procedures to obtain the Restoration WQS be simplified to make this new mechanism a preferred vehicle over existing regulatory tools. Such actions are appropriate given the considerable challenge of being the first-in-the-nation with adopted numeric nutrient criteria for all flowing waters and lakes within the entire state. Moreover, this leap forward is really two massive leaps-the unprecedented setting of comprehensive numeric nutrient criteria-as well as the setting of downstream protection values for the first time anywhere nationwide. As such, the Department suggests that the requirements for a UAA and restoration plans be streamlined in EPA's proposed procedures for obtaining a Restoration WQS. 

# Comment ID 1688-2.001.016

Author Name: Brooks J. Organization: Florida Department of Environmental Protection For most NPDES facilities, a schedule of compliance or a standard variance will be the preferred option over the more onerous requirements associated with a Restoration WQS, especially given that the required upgrades will undoubtedly take years before they have been constructed and are operational. 

# Comment ID 1768-1.001.017

Author Name: Armingeon N. Organization: St. Johns River Keeper

• We generally do not support restoration standards where NPDES discharges are currently in place. An NPDES permit holders should be allowed one 5-year cycle to comply with proposed NNS limits. 

# Comment ID 1786-1.001.055

Author Name: Kirk K. Organization: National Association of Clean Water Agencies For point sources, additional certainty and/or off-ramps from the restoration process are needed. EPA's proposal indicates that technology-based requirements for point sources would be targeted in the first phase, noting that technology that has been successfully implemented in comparable situations and is feasible would be the focus. If

11/19/2010 02:48 PM EST 2-4620Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision wastewater treatment plants are required to install technology, whether biological nutrient removal, enhanced nutrient removal, or limit of technology removal, during the first phase of the restoration standard, they must be given assurances that more will not be asked of them during the restoration period. These technologies are not easily implemented and will require years to install and years if not decades to recover the capital investment made. Publicly owned treatment works (POTWs) working to meet their restoration standard obligations would need concrete milestones based on actions implemented (i.e., treatment technology installed) rather than whether the water quality criteria are met. POTWs will need assurances that they will not be deemed out of compliance if the restoration standard fails to meet an interim or final goal if the POTW has met its implementation obligations. Again, NACWA believes that the restoration standard concept is promising, but more details and more discussion are needed before it can be successfully implemented on a large scale. 

# Comment ID 1807-1.001.003

Author Name: Shertzer R. Organization: Pennsylvania Department of Environmental Protection 2. According to the preamble of the Florida rule (but not stated in the text of the regulation), interim uses cannot be less stringent than existing uses. Existing uses are defined in federal regulation as those uses actually attained in the water body on or after November 28, 1975. Does this mean that if the waterbody ever attained a use, but then became impaired, interim uses (i.e., restoration standards) may not be used? What tool should states use to assess all uses to determine whether they were attained anytime from 1975 to the present? A paucity of data, especially in larger states with a greater number of surface waters, makes it difficult to argue that a waterbody did not actually attain a use. 

# Comment ID 1807-1.001.004

Author Name: Shertzer R. Organization: Pennsylvania Department of Environmental Protection 3. To determine what water uses are attainable and by when, the R-WQS tool requires a demonstration that the uses will be attained by implementing effluent limits for point sources and cost-effective and reasonable Best Management Practices for nonpoint source control. What tools are states and EPA currently using to evaluate point sources and nonpoint sources under131.1 0(h)(2) and 131.1 O(d)? How will nonpoint source controls be required to be met as part of interim targets? If nonpoint source controls are not mandatory, how will the lack of such controls be factored into point source compliance with the interim standard? 

# Comment ID 1810-1.001.020

Author Name: Young L.

11/19/2010 02:48 PM EST 2-4621Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision Organization: Clean Water Network of Florida II. Section VI: Restoration Standards For reasons explained in our comments in the section immediately above, we believe that EPA should abandon the restoration standards proposed and, instead, create a specific process to tailor variances to NPDES sources of nutrient loading to Florida's waters. However, should EPA proceed to issue final water quality standards for Florida that include the restoration standards, we believe that EPA should make significant improvements in them and we have provided comments to this effect below. We urge EPA, however, not to promulgate final Florida water quality standards with this restoration standards proposal. Instead, we strongly recommend a more targeted proposal that will meet the needs of dischargers seeking flexibility and longer-term relief at the same time as creating a high degree of certainty that water quality standards will be met. Specifically EPA should propose a Florida nutrient-specific variance with the following attributes. First, the Florida nutrient-specific variance would, like other variances, be required to go through the same essential UAA process as EPA proposes for the restoration standards. This is necessary to maintain the legality of the standards and to ensure that existing uses are protected and that which can be attained is attained. With the safeguards we have recommended for that process elsewhere in these comments, we think this will produce a reasonable outcome. Second, the Florida nutrient-specific variance should incorporate all of the aspects of a compliance schedule save the date- and WQBEL-certain. In other words, either sources themselves or the permitting agency would be required to produce a plan for interim requirements and dates for their achievement that the permitting agency would assure meets federal requirements for compliance schedules. This plan of steps and dates by which they would be taken would be incorporated into the enforceable NPDES permit (and subject to public comment and review by EPA). The level of detail should be spelled out by EPA in advance (i.e., by rule) to ensure that the plans are sufficiently detailed to, for example, collect adequate data; to evaluate the efficacies and costs of treatment, operations, and pollution prevention options; and to include financial evaluations, etc. to say nothing of installing and implementing various types of pollution controls, process changes, and pollution prevention approaches. Each of these actions or operations would be enforceablebecause they would be incorporated into the NPDES permit. Unlike a compliance schedule, however, a Florida nutrientspecific variance would not require a final effluent limit but it would establish an effluent goal which the actions, on their time line, were intended to attain. Florida nutrient-specific variances would be required, as with compliance schedules, to provide a rationale why the time line would meet that effluent goal "as soon as possible" and the time line was "appropriate." The findings regarding whether the provisions were appropriate would be identical to the compliance schedule requirements. Third, a reopener would be required in each NPDES permit with such a Florida nutrient-specific variance to ensure that if the time line were longer than five years and the permit were administratively extended, the permit could and would be reopened to incorporate any and all provisions relating to future years. (For example, a plan might be less specific in years five through ten because those actions would be based on evaluations and other actions that preceded that time frame.) Alternatively, if EPA and/or the state believe that reopeners cannot be used on permits that have been administratively extended, the terms of the Florida nutrient-specific variance must be incorporated into the NPDES permit such that they continue in the event of an extension. Fourth, the final effluent goal and the enforceable steps to achieve that goal would be based on TMDL predictions of

11/19/2010 02:48 PM EST 2-4622Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision load reductions by other sources. In the event that those load reductions were not taking place on the time line established in the TMDL, or to meet the predicted date of attainment, the Florida nutrient-specific variance issued to a source would be revised to increase the load reductions expected from the regulated entity. In no instance would these increased pollution control requirements be used to justify backsliding in the variance terms but it could prolong the time frame for the variance because it was simultaneously requiring a greater load reduction. Finally, towards the end of the Florida nutrient-specific variance plan, it would likely be clear what was necessary to meet a final water quality based effluent limit at which point, the source could be regulated under a compliance schedule to assure timely completion of the pollution controls. This final regulatory action would provide certainty that the last steps would be taken without a source's requesting further variances associated with nutrient discharges. By establishing a Florida-specific nutrient variance, EPA could target its approach to the pollution sources that present the most difficult CWA regulatory problem, namely point sources, for which pollution controls will be very costly, the technological solutions are currently unknown, the time to implement those solutions will be extremely attenuated (e.g., changes to urban infrastructure), or a combination of all of those. By targeting the solution to the problem, EPA can avoid loosening the water quality standards that should continue to apply to NPDES sources that can relatively easily achieve WQBELs under compliance schedules, those that need short-term variances, and nonpoint sources that are not sufficiently regulated by water quality standards that any changes are needed to accommodate them. It would also focus on waters heavily impaired by nutrients and leave in place the expectation that Florida will clean up the mildly or moderately impaired waters using its existing programs. As a result of this targeted approach, Floridians would remain cognizant of the goals of their water quality standards, TMDLs could be done once (assuming they did not need to be revised), and there would be no question about whether EPA was letting Florida's poor and deteriorating water quality drive loopholes into the Clean Water Act. 

# Comment ID 1810-1.001.022

Author Name: Young L. Organization: Clean Water Network of Florida B. Taking Incremental Steps EPA discusses the benefits of states' being able to express downgraded designated uses as interim goals "to allow the state and stakeholders necessary time to take incremental steps." Fed. Reg. at 4219. As discussed elsewhere in these comments, EPA's comments regarding the shortcoming of variances to encourage pollution reductions are correct. Variances do not include specific milestones and expectations. However, EPA can, as it did in the GLI rule, require variances issued for nutrients (and possibly intimately related parameters) in Florida be required to take on all the attributes of a compliance schedule save the one - that is, a Florida nutrient-specific variance would provide a schedule with load reductions and other related actions - less the requirements of a compliance schedule that bind a source to meeting the WQBELs by a date certain. There is, in fact, no policy rationale for variances and compliance schedules to be so different in what they require of a source in terms of pollution outcomes, particularly in the circumstances EPA intends to target through the restoration standards. Rather they should be more similar, with compliance schedules only being used when the permittee and the permit issuer have confidence in the effluent quality and date by which it will be achieved. Regardless of how EPA views variances for states under its existing regulations (which, as we know fall short

11/19/2010 02:48 PM EST 2-4623Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision of clearly spelling out EPA's requirement that variances be subject to the same regulations as UAAs) it has the opportunity in this federal promulgation to do something different. Rather than focusing on ways to loosen requirements, it should focus on ways to keep existing requirements tightly focused on attainment of existing uses, designated uses, and criteria. It can do that by redefining the variance for Florida as a path to pollution reduction for point sources. NPDES permittess would then have the opportunity to use compliance schedules or variances, or even a combination of the two, but the outcome for public waters would be more similar than different. And this approach would provide more certainty that water quality would be attained in the foreseeable future and uses fully supported. Most important, EPA's proposed concept is flawed. There is no reason to believe that having the interim steps as uses and associated criteria will, by itself, result in achieving milestones or enhancing enforceability. In actuality, no additional legal authorities are created by the establishment of "an explicit regulatory mechanism for directing state efforts to achieve incremental progress in a step-wise fashion, applicable to all sources, as part of its WQS," despite the implication of that statement. Fed. Reg. 4219. For this reason, there is no reason to believe that anything in the status quo will change other than NPDES permittees will be given WQBELs they are more likely to be able to achieve in the shorter term. Certainly, as nonpoint sources are not held to any meaningful requirement to meet water quality standards, lowering the standards will not induce more pollution controls from those sources or the agencies with immediate control over them. Should EPA proceed to finalize the restoration standards, however, we support EPA's concept that the current designated uses would remain as the ultimate designated uses under the restoration standard proposal. We strongly support EPA's statement that any interim designated uses would have to meet the requirements in current EPA rules that existing uses be protected and that some minimum point and nonpoint source controls be required. 40 C.F.R. § 131.10(g) & (h). We are dismayed, however, that EPA has not spelled out how these requirements will have to be met, for the reasons discussed above. Saying that existing uses must be protected is nowhere close to identifying exactly what rigor will be required to ensure they are identified and protected. Likewise, EPA has not done the difficult work of establishing how the State will identify effluent limits required under sections 301(b) and 306 of the Act and the required "cost-effective and reasonable best management practices for nonpoint source control," also as discussed elsewhere in these comments. Yet, EPA notes that it is the product of this analysis that will "demonstrate that the interim uses and criteria, as well as the timeframe, are based on a UAA evaluation of what it attainable and by when." Without that specific direction on how to analyze the efficacy and speed of pollution reductions from point and nonpoint sources, as well as how to clearly identify the existing uses as the starting point, the floor below which Florida may not sink, the restoration standards have the potential to be considerably less than legally required and desired for Clean Water Act goals. Finally, should EPA proceed to finalize the restoration standards, it should adopt a strict non- degradation standard for any water body that is not meeting the ultimate uses and ultimate criteria. This permanent prohibition on any new or expanded discharges from point sources or load increases from nonpoint sources should ensure that if attainment is achieved, it is never degraded again in the future. 

# Comment ID 1810-1.001.026

Author Name: Young L. Organization: Clean Water Network of Florida

11/19/2010 02:48 PM EST 2-4624Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision Identifying the problem is much easier than proposing a solution, considering EPA’s lack of authority over nonpoint sources. However, we would suggest that EPA, as it did in the GLI rules, focus attention on point sources and make it clear, in a regulatory fashion, that NPDES permittees will bear the burden for the State’s failure to control nonpoint sources. This is the only authority that EPA has (other than funding, requiring antidegradation implementation methods and plans, etc.) and EPA must use it. So, for example, EPA should include requirements not only that TMDLs be done so that load reduction allocations are made in a clear and transparent fashion, but it should increase the requirements on the State to justify waste load allocations to regulated point sources by requiring Florida to demonstrate exactly how it will achieve the load allocations for nonpoint sources. Specifically, EPA must put Florida on notice that the State can no longer put down nearly any verbiage as “reasonable assurances” that nonpoint source controls will be implemented such that wasteload allocations will result in attainment of standards and still obtain approval for its TMDLs and the wasteload allocations that are then implemented in NPDES permits. 

# Comment ID 1810-1.001.027

Author Name: Young L. Organization: Clean Water Network of Florida Instead, EPA must require first that nutrient TMDLs establish expected load reductions from nonpoint sources based on existing pollutant loadings unless Florida is able to demonstrate that load reductions will realistically result from enforceable actions by the State or designated management agencies. If changes, i.e. reductions, are not expected to occur from nonpoint sources, then Florida TMDLs must squarely put the burden on Florida’s point sources. Only in this fashion will the state wake up to its responsibility. EPA must also require that NPDES permits issued in Florida contain permit reopener provisions that are linked to nonpoint source load reductions and are applicable in the event that a permit is administratively extended for a long period of time. In fact, EPA’s rule must trigger the generic reopener in existing Florida permits. The reason is simple: there are significant industrial discharges, such as paper mills, discharging under NPDES permits in Florida that have been administratively extended for at least 16 years. This fact, combined with Florida’s rules, create an untenable situation whereby no progress is made and permittees are allowed to pollute at levels that are no longer acceptable. In particular, Florida statute calls for the following restrictions on incorporating waste load allocations from TMDLs into existing permits: The department shall not impose limits or conditions implementing an adopted total maximum daily load in an NPDES permit until the permit expires, the discharge is modified, or the permit is reopened pursuant to an adopted basin management action plan. Fla. Stat. § 403.067(7)(b)2 (emphasis added). EPA can and should address this problem through its federal promulgation. To do otherwise not only jeopardizes the very goals it espouses but creates an unfair situation as between NPDES sources, some of which seem to have virtually unlimited administrative extensions and others which do not. Finally, if EPA finalizes a federal promulgation with restoration standards, EPA must include the following additional requirements: (1) a requirement that any variance issued for an NPDES permittee demonstrate reasonable progress towards attaining standards and include a plan for doing so and a requirement those milestones be incorporated as

11/19/2010 02:48 PM EST 2-4625Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision conditions in the NPDES permit and a method for reopening permits with variances if they are administratively extended; (2) an explicit reference to the requirement to meet the antidegradation policy; and (3) an absolute prohibition against any new discharges or recommencing dischargers or existing dischargers for load increases. We disagree with EPA that it can rely on the Florida Basin Action Management Plans (BMAP) to achieve attainment of restoration standards. Fed. Reg. at 4221. As EPA notes, BMAPs includes plans that are developed by local stakeholders. This generally means that BMP requirements are and will continue to be inadequate to meet necessary load reductions and/or the plans and that the BMPs are too ambiguous to be enforceable. In other words, the quoted language in the federal notice that BMAPs are enforceable is not the end of the story. The questions are: are they sufficient, are they clear enough to be readily enforced, and can they be enforced? Moreover, these questions beg, of course, whether Florida has the political will to carry out enforcement against nonpoint sources. We would argue on the basis of what has not transpired over the last few decades, that Florida quite clearly lacks the political will. And finally, this lack of political will has been translated by the Florida legislature into the following relevant statutory provision: Implementation, in accordance with rules adopted under this paragraph, of practices that have been initially verified to be effective, or verified to be effective by monitoring at representative sites, by the department, shall provide a presumption of compliance with state water quality standards and release from the provisions of s. 376.307(5) for those pollutants addressed by the practices, and the department is not authorized to institute proceedings against the owner of the source of pollution to recover costs or damages associated with the contamination of surface water or groundwater caused by those pollutants. Fla. Stat. § 403.067(7)(c)(3) (emphasis added). In other words, Florida has chosen to ensure that the FDEP does not have the statutory authority to enforce against nonpoint sources operating under a presumption of compliance. For this reason, EPA must presume non-enforcement of nonpoint source controls as a starting point in setting any restoration standards it might finalize. We believe that EPA can promulgate a rule that alters Florida’s politically-inspired restrictions on controlling nonpoint sources. Quite simply, it can do two things. First, it can increase the clarity of the expectations established for nonpoint source control. The more it is clear what nonpoint sources must do, the increased likelihood that someone will make them do it. And, as explained elsewhere in these comments, strict controls on point sources will substantially increase the likelihood that the State nonpoint source program will become far more effective. EPA will find that sources under NPDES program regulation with its limits and citizen enforcement tools will begin demand nonpoint source reductions to relieve them of the burden of cleaning Florida’s waters, a burden it should share with other sources. Since, fundamentally, the barrier to nonpoint source control is a political one, EPA must, 35 years after Congress counted on states to do the job, use politics to obtain the result needed to meet the goals of the Clean Water Act. If EPA finalizes the restoration standards, we also strongly urge that it have some regular check- in points, the same kind of time and achievement checks that are supposed to be a part of variances, for example, and which are clearly a part of compliance schedules under federal law. 

# Comment ID 1810-1.001.036

11/19/2010 02:48 PM EST 2-4626Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision

Author Name: Young L. Organization: Clean Water Network of Florida G. Avoiding Layers of Non-Attainment - As EPA mentions, NPDES dischargers would retain the ability to obtain variances and compliance schedules to meet the interim water quality standards. Fed. Reg. at 4219. While use of compliance schedules is a practical and reliable solution to ensuring that NPDES sources take the steps necessary on an established time frame to meet WQBELs at a date certain, the notion that some point sources will obtain variances to the interim criteria is troubling. This has the potential to undermine the very progress EPA intends the restoration standards to achieve. Moreover, since the UAAs will have been completed by the State in order to justify the interim designated uses, variances will be significantly less expensive and less onerous to obtain, the technical justification being similar to that of the completed UAAs and the regulations identical. In other words, the plan runs the risk of resulting in innumerable variances for NPDES sources, subject to unlimited renewals, combined with the possibility – already what one might term a probability – that nonpoint source controls will fail. The ultimate result would be failure to make any progress at all. Controlling nonpoint sources is at the heart of problems with pollution controls. The federal requirement that UAAs not be allowed to downgrade uses that could be achieved through the implementation of “cost-effective and reasonable best management practices for nonpoint source control” sets a floor on how low the designated uses can go, putting aside protecting existing uses since 1975. But, as described elsewhere in these comments, EPA has declined to provide Florida or other States with direction on setting these BMPs. Moreover, in the notice, EPA discusses the “actually attainable within a particular time frame.” Fed. Reg. at 4219. While that sounds like a good public process, it is also most likely to provide an outcome that supports the position of nonpoint sources that they can tolerate little or no practices beyond whatever little they may or may not be doing at the present time. In other words, rather than the State, with EPA guidance, determining what BMPs are the minimum starting point, it will be those with a vested interest in ensuring they have to do very little to protect public waters. While we agree that the BMPs should be realistic, we see nothing in EPA’s notice that explains how, exactly, these BMPs will be aggressive enough to ensure that any progress in load reductions is made in a timely fashion. Without these details, we fear that the restoration standards while lofty will result in little more than the status quo: no progress at all. 

# Comment ID 1810-1.001.037

Author Name: Young L. Organization: Clean Water Network of Florida H. Existing Use Protection Identifying the existing uses that must be protected pursuant to 40 C.F.R. §§ 131.10(g), (h)(1), and 131.13(a)(1) is essential to ensuring the restoration standards and any other methods of establishing use designations and criteria do not undermine the goals of the Clean Water Act. We appreciate EPA’s several explicit references to these requirements but we are extremely concerned that without significantly more direction, the requirements will be nullified in practice. We also bring EPA’s attention to one place in its notice where it appears to ignore the existing use protection requirement, its description of the UAA process which merely states that the UAA process under the restoration standard must “reflect the highest attainable aquatic life use.” Fed. Reg. at 4219. That is incorrect because it fails to mention the requirement to protect existing uses, currently attained or not. Likewise, EPA says explicitly that existing

11/19/2010 02:48 PM EST 2-4627Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision uses have to be protected but then in its discussion of the first phase of restoration standards mentions that “the State would identify current conditions and establish the principle that there can be no further degradation. Fed. Reg. at 4220. The reference to “current conditions” appears to undercut the definition of existing uses that date to 1975 and that it is existing uses and the water quality needed to support them that are the floor of the non-degradation requirement. Because of the fundamental importance of properly identifying the existing uses and the water quality necessary to support them, we urge EPA to provide significantly more guidance to the State on how to do this and we would look forward to an opportunity assist EPA in setting out this process.

I. Effect of Restoration Standards on NPDES Permitting EPA states that the intent of the restoration standards is “to allow imposition of the maximum feasible point source controls and nonpoint source nutrient reduction strategies to be phased in.” Fed. Reg. at 4220. We are concerned that if EPA allows Florida to determine the point source responsibilities to end at what is feasible, technologically speaking, it may stop short of what it must demand from its only regulated sources. In other words, while it may not be either fair or feasible, EPA must establish that point sources are responsible for source reduction in any case when un- or under-regulated nonpoint sources are not attaining the reductions needed. This pressure will likely result in what EPA refers to as “more innovative ways to reach the requirements of the next phase, thus possibly reducing costs or allowing new approaches to resolve complex technological issues.” Id. In the absence of such pressure, EPA’s hoped for innovation will fail. But, if at any point, EPA or Florida cap the load reduction requirements on NPDES sources, it will undermine the pressure needed to drive either innovative approaches or nonpoint source controls instituted by those who own and operate nonpoint sources. Our concern in this regard is heightened by comments such as, “[f]or treatment upgrades to point sources, EPA expects careful scrutiny of technology[.]” Fed. Reg. at 4220. What does EPA mean by “treatment upgrades”? Is EPA limiting the careful scrutiny of technology to only those times when NPDES sources are upgrading for other purposes, such as expanded sewage treatment needs? We understand that municipal systems may be among the most difficult sources to control and require the longest period of time in which to come into compliance, along with large industrial facilities. At the same time, we are concerned that any large sources maintain the goal of meeting the ultimate uses and criteria, not just focus on the near term interim uses and criteria. Because of their very long term planning windows, municipal sources must both meet the interim criteria and aim for the ultimate criteria. Of course, this would be true for other public and private entities for which costs of increasing treatment are substantial. It is unclear how EPA intends for these sources to factor in the need to reach ultimate criteria given that permit limits “would include effluent limits as stringent as necessary to meet the applicable interim designated use and numeric water quality criteria.” Fed. Reg. at 4220. How will these permits incorporate long- term planning goals and anticipate the changes in the criteria and their associated WQBELs? Put another way, how will EPA ensure maximum feasible progress and will that progress be capped by economic or technological restrictions even if nonpoint sources are not pulling their weight? EPA partially answers this with regard to the first phase where it states that “necessary control actions that . . . can be implemented . . . must be reflected in the interim targets for the first restoration phase.” Fed. Reg. at 4220. It goes on to apparently capture the requirement of 40 C.F.R. § 131.10(h)(2) with regard to nonpoint source controls. Id. However, EPA says about point sources, which C.F.R. § 131.10(h)(2) says must be at the level of “implementing effluent limits required under sections 301(b) and 306 of the Act,” that it requires “all technology-based requirements for point sources.” Id. (emphasis added). This is simply incorrect. Section 301(b)(1)(C) requires point sources to achieve, among other things “any more stringent limitation, including those necessary to meet water quality standards.” In issuing an

11/19/2010 02:48 PM EST 2-4628Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision NPDES permit under the Clean Water Act, the permit issuing agency “is under a specific obligation to require that level of effluent control which is needed to implement existing water quality standards without regard to the limits of practicability.” Defenders of Wildlife v. Browner, 191 F.3d 1159, 1163 (9th Cir. 1999). Therefore, EPA cannot set the requirements of Florida Phase I restoration standards to be limited to “all technology-based requirements for point sources.” We urge EPA to correct this error. We applaud EPA’s reference to the use of “technology that has been successfully implemented in comparable situations” and “all existing and new technology that will help achieve the ultimate highest attainable use.” Fed. Reg. at 4220. We urge EPA to make explicit that best professional judgment (BPJ) must be required for sources that are regulated under the restoration standards over and above any national effluent limitation guidelines that may exist. There are several reasons for this. First, the national guidelines are frequently outdated and are rarely updated and so represent past technology. Past technology is not sufficient or equivalent to that required to make significant inroads into Florida’s nutrient problems, let alone reasonable further progress or maximum feasible progress. Second, the national effluent guidelines apply in any case so nothing in this rule about them is progressive if more is not required. Third, the issue here is meeting the more stringent requirements of water quality needs, as expressed in water quality standards, so to the extent that the interim requirements for NPDES permit holders represent a compromise between technological feasibility and the demands of water quality standards, BPJ is the appropriate way to resolve the problem. As stated above, we are extremely concerned that EPA may be discussing BPJ only in situations that require “treatment upgrades” and urge EPA to clarify that BPJ must be used in all phases and to all facilities. Moreover, EPA must address what appears to be an underlying assumption that permits will reissued in a timely fashion and not be subject to extended administrative extensions. This, however, may be a very misplaced assumption and EPA should include some specific regulatory solution to this problem. Equally important, EPA has not included the BPJ requirements in the proposed rule language, which is essential. Otherwise, the requirements of 40 C.F.R. §125.3(c)(2)&(3) will preclude the use of BPJ in instances where national effluent guidelines have been promulgated that are applicable to the source. The need for BPJ needs to be addressed in the specific context of this phased restoration standards. Including BPJ as part of the definition of “maximum feasible progress” would be a good idea but we also urge that certain permitting issues be explicitly in the rule. 

# Comment ID 1810-1.001.038

Author Name: Young L. Organization: Clean Water Network of Florida J. Use of Sufficient Best Management Practices for NonPoint Sources EPA states that the Phase I of the restoration standards would require “cost-effective and reasonable BMPs for nonpoint sources.” Fed. Reg. at 4220. We agree that the act of determining the minimum required designated use is dictated by, among other considerations, what can be attained through the use of cost-effective and reasonable BMPs for nonpoint sources but EPA errs in capping the BMPs required for Phase I in this fashion. Instead, logically, the BMPs that should be required in each phase, including Phase I, are those necessary to meet the interim criteria. In fact, requiring the BMPs that are assumed in the outcome of the UAA process pursuant to 40 C.F.R. § 131.10(h)(2) does not add that much to Florida’s assessment of what it must require of its nonpoint sources. Those are the minimum; EPA must require that Florida require and identify the BMPs necessary to meet the interim criteria. This should clarified in the definition of maximum feasible progress. If, instead,

11/19/2010 02:48 PM EST 2-4629Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision EPA believes that BMPs should be set at a lower level, EPA must make clear it expects the NPDES sources to take on a proportionally higher share of load reduction responsibilities. Further, the relative proportions of responsibility must be set out in a TMDL in order to track the effectiveness of point and nonpoint source controls. 

# Comment ID 1810-1.001.039

Author Name: Young L. Organization: Clean Water Network of Florida K. 303(d) Listing Procedures We strongly support EPA’s proposal to maintain waters on the Sec. 303(d) list of impaired waters during the time frame of the restoration standards and in proposed 40 C.F.R. § 131.43(d)(2)(iii). First, the waters are not in attainment, they require TMDLs, and they should be identified as such. Second, the regulatory restrictions that are associated with waters on the 303(d)(1) list must be triggered under the restoration standards, should EPA finalize them, in order that water quality not actually degrade more. We are, in addition, very concerned with EPA’s reference to Florida’s dubious 303(d) listing procedures. Proposed 40 C.F.R. § 131.43(d)(2)(iii). EPA says that Florida may use its highly constrained listing process “where such procedures are consistent with the level of protection provided by the criteria established in this section.” This leads to many ambiguities and, we are certain, a lack of protection commensurate with the proposed EPA ultimate criteria. In fact, Florida listing procedures are not consistent with the goal of restoring the State’s waters as has been spelled out extensively in a comment letter prepared by the Clean Water Network of Florida and attached hereto. 

# Comment ID 1810-1.001.042

Author Name: Young L. Organization: Clean Water Network of Florida C. How Restoration Standards will Operate in Conjunction with 303(d) and Source Controls. “EPA requests comment on how restoration WQS will operate in conjunction with listing impaired waters, and establishing NPDES permit limitations, and nonpoint source control strategies, as well as how these requirements should be reflected in regulatory language.” As stated above, we believe that listings of impaired waters would need to be based on the ultimate standards, we believe that nonpoint sources should be held to meeting those standards, and we are concerned about whether EPA has considered the implications of asking NPDES permit holders to meet one set of standards, only to have to retrofit to another in future years. While that is the nature of water quality-based regulation under the Clean Water Act, and the uncertainty that is created by triennial reviews that revisit the science behind state standards, to knowingly plan for this outcome seems ill-conceived. It would make more sense to establish interim effluent limits and actions, on a time frame, aimed at eventually meeting water quality standards rather than simply pushing the goalpost further away.

11/19/2010 02:48 PM EST 2-4630Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

# Comment ID 1810-1.001.050

Author Name: Young L. Organization: Clean Water Network of Florida In any case where standards can be met without using the flexibility afforded by the restoration standards, EPA should instead require Florida to issue compliance schedules to NPDES permit holders which require time to come into compliance. Compliance schedules offer the advantages to permittees of terms that can be considerably longer than variances and that do not focus on the types of use protection and attainability inherent in the variance process. The use of compliance schedules will also provide certainty to those concerned about finally achieving full protection of Florida's designated uses and associated water quality. And, EPA has already been very clear about regulatory matters concerning the issuance of compliance schedules. See Hanlon memo, supra. Such compliance schedules would facilitate long-term planning for many facilities that need long planning windows, such as municipalities. The only drawback to compliance schedules is that in providing certainty to public waters, they bind point sources to outcomes and dates certain. This, then, is the only circumstance the restoration standards need to address with regard to NPDES sources. As we discuss elsewhere in these comments, we believe that a more targeted variance procedure would be far preferable to EPA's proposed restoration standard approach. 

# Comment ID 1878-1.001.005

Author Name: Reese T. Organization: Attorney At Law et al. Restoration Criteria We disagree with EPA that it can rely on the Florida Basin Action Management Plans (BMAP) to achieve attainment of restoration standards. Florida's BMAPs are based upon a severely inadequate water quality information base. T he extent of the information and data available affects not only the type of TMDL methodology to be used, it also affects the accuracy of the TMDL calculation of the margins of safety for compliance with water quality standards. See, 64 Fed.Reg. 68788, center column. Presently most of Florida's estuaries listed as impaired on EPA's Section 303(d) list of impaired water bodies have been impaired in significant part by MS4 discharges. These MS4 discharges have little or no fresh water flow data, no sediment oxygen demand data, no identification of sub-basins and discharge pipes with the highest levels of pollutants, and no analysis of the impacts of stormwater discharges on estuaries during the stormwater discharge events. There is also only limited information and data on nutrient effects on the health of estuaries and the physical alternations of estuaries by the deposition of polluted stormwater sediments into estuaries. Currently there is a "paucity" of chemical, biological and physical data for TMDL development for estuarine water bodies impaired by stormwater discharges, and the TMDLs which Florida has developed have wrongly been rudimentary due to data limitations, a fact known to the EPA Defendants since at least 2002. See, EPA Office of Water Memorandum, November 22, 2002 concerning TMDLs for stormwater discharges.

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# Response

Comment IDs: All Response: Please refer to section V.E of the preamble for a discussion of why EPA is not finalizing restoration water quality standards. 

# VI.Q.5 - PROPOSED RESTORATION WATER QUALITY STANDARDS (WQS) PROVISION QUESTION 5 Comment ID 0884.001.002

Author Name: Wertephy A. Organization: Palm Beach County MS4 Program 5. On Page 4220, U.S. EPA proposes a timetable of a maximum of 20 years to obtain final use and criteria. However, there are a number of issues raised by the Proposed Rule, the resolution of which will have an impact on the timeframe. These issues require development of more realistic cost estimates for the restoration of all point and non-point discharges and confirmation of the availability of technology to achieve the proposed nutrient criteria. The timeframe may more likely be a minimum of 20 years. 

# Comment ID 0891.001.003

Author Name: Hushon J. Organization: The proposed Numeric Nutrient Criteria are attainable with adequate pollution prevention and source control, as well as the extended "Restoration Water Quality Standard" 20-year compliance timeline offered by EPA. However, these extended timeframes should only be allowed where waterbodies have been determined to be so severely degraded and retrofitting opportunities so limited, that they justify this lengthy compliance schedule. 

# Comment ID 1011.001.003

Author Name: Todd, Jr. K. Organization: Palm Beach County The implementation schedule calls for total achievement of the criteria within 20 years. It goes on to say that an entity can select a milestone that will be achieved within a shorter time period . However, if that milestone is not achieved within the specified time period, the entity would then have to achieve the ultimate goal within the next time period .

11/19/2010 02:48 PM EST 2-4632Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision That approach will ensure that many municipalities are out of compliance at some time during the 20 years. A better approach would be to set a more realistic goal within a specific time frame and to re-evaluate the plan prepared for a specific area (watershed) based on achieved results and the availability of technology to achieve more stringent criteria, if desired, after each established time increment. 

# Comment ID 1087-1.001.006

Author Name: Pearson S. Organization: City of Gainesville Public Works Department Is the proposed 20-year limit on the schedule to attain the final use and criteria realistic? The preceding summary of the Case Study for the City of Gainesvilles fiscal needs and resources analysis suggests 80 years may be needed for Gainesville to comply with the proposed standards if no new revenue is allocated. Based on the data and the resulting projections it does not appear that the 20 year schedule is realistic. It has taken 141 years to get to todays environmentally impaired condition and to set a „deadline without consideration of where the funding is to come from is not prudent. EPA has established the 20 year limit as a best estimate of the time needed to complete the nutrient restoration based on the criteria, the fiscal resources and a number of other variables present in the dynamic of this activity. DPW took the opportunity to compare the capital cost of its watershed restoration to the cost of the nutrient rule capital cost as included in the Federal Register. The upper range of the EPA estimates is $140.1 million per year. Prorating that amount on the basis of population, Gainesville has 0.67% of the 18.7 million people in Florida, yields that Gainesville should be spending about $950,000 per year for 20 years to solve the nutrient overload. However the disparity between the EPA estimates and the results of the Case Study suggests that the EPA cost estimate is several orders of magnitude low with respect to the Gainesville study.



# Comment ID 1217-2.001.028

Author Name: Voyles J. Organization: Mosaic Fertilizer LLC Solution: Revise Restoration Water Quality Standards to Be More Flexible Mosaic supports the concept of interim steps to achieve desired water quality conditions, which concept EPA has embraced in the proposed Restoration Water Quality Standards ("RWQS"). Mosaic also supports the 20-year time limit on RWQS. (EPA specifically requested comment on the proposed RWQS at 75 Fed. Reg. 4,221).

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# Comment ID 1359-1.001.024

Author Name: Andes F. Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality Coalition In addition, EPA is proposing that a restoration standard cannot last longer than 20 years. If interim designated uses and criteria are not met, and the State has not conducted a new use attainability analysis, then the "hammer falls," and EPA's criteria would become immediately effective, putting dischargers out of compliance. 75 Fed. Reg. at 4220. The complexity of this approach and the constraints placed on it make it counterproductive, as proposed, creating an incentive to permanently remove the designated use rather than attempt to achieve the use over the long term. 

# Comment ID 1464-1.001.033

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. 4. 20-Year Limit "EPA also requests comment on the proposed 20-year limit on the schedule to attain the final use and criteria." We think the 20-year timeframe is a reasonable compromise between feasibility and environmental needs. However, we think it should only apply to moderately or severely impaired waters and that the ultimate criteria should be used for less impaired waters. 

# Comment ID 1464-1.001.045

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. 4. Timeframe for Phases. We support the overall 20-year timeframe for the restoration standards' schedule as an adequate balance between sufficient pressure on point and nonpoint sources to modify practices and installations with the needs of human health and the environment affected by nutrients. 

# Comment ID 1465-1.001.009

Author Name: Ornberg K. Organization: Seminole County Public Works 4. Implementation Schedule should be consistent with FDEP's Basin Management Action Plan (BMAP)

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The implementation schedule spelled out by EPA, which calls for achieving load reductions within twenty years, is arbitrary and not achievable for all waterbodies, specifically for those waterbodies where natural conditions are driving the impairment listing as calculated by the proposed NNC. It is recommended that implementation follow FDEP's established BMAP process, whereby the implementation schedules and load reductions are written into the County's National Pollutant Discharge Elimination System (NPDES) permit and reflect realistic and technically sound projects to achieve load reductions. 

# Comment ID 1530.001.060

Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority The following address issues that need further clarification. On Page 4220, under item 4 of the 8 requirements for Restoration WQS EPA states, "The sum of these times periods may not exceed twenty years." Later on page 4221 EPA specifically requested comment on this 20-year limit. Given the fact EPA has provided no basis for how it chose the time limit, it is very difficult to provide any comment. This seems to be a very arbitrary number (20 years) and therefore EPA must explain its basis and re-propose the rule. 

# Comment ID 1616-1.001.022

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida D. 20-Year Limit "EPA also requests comment on the proposed 20-year limit on the schedule to attain the final use and criteria." We think the 20-year time frame is a reasonable compromise between feasibility and environmental needs. However, we think it should only apply to moderately or severely impaired waters and that the ultimate criteria should be used for less impaired waters in order not to prolong the actions needed to attain standards where it is not needed. EPA would need to adopt far more safeguards than it has proposed to ensure that the 20-year outcome would be as it desires. 

# Comment ID 1616-1.001.028

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida 4. Time frame for Phases. We support the overall 20-year time frame for the restoration standards' schedule as an adequate balance between sufficient pressure on point and nonpoint sources to modify practices and installations with

11/19/2010 02:48 PM EST 2-4635Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision the needs of human health and the environment affected by nutrients. However, as noted elsewhere in these comments, we think the restoration standards should be reserved for those waters that need a 20-year schedule and, even then, not in all instances. If waters are not significantly impaired by nutrient pollution, existing implementation methods such as compliance schedules and variances, with reasonable progress provisions, should be sufficient to lead to attainment. As with item no. 3 above, we urge that EPA ensure through its regulations that Florida make scientifically-based determinations of what pollution controls are needed during each phase rather than to defer to stakeholder processes unlikely to result in sufficient controls. 

# Comment ID 1688-2.001.004

Author Name: Brooks J. Organization: Florida Department of Environmental Protection As an alternative to streamlining the UAA and restoration plan requirements, the FDEP proposes that the restoration WQS could be structured more in the vein of a blanket schedule of compliance. A regulatory schedule of compliance could extend for up to 20 years depending on applicable factors such as the current ambient conditions of the water body and the sources of excessive nutrients to that surface water. 

# Comment ID 1688-2.001.009

Author Name: Brooks J. Organization: Florida Department of Environmental Protection Response to Additional EPA Questions EPA requests comment on the usefulness of the "restoration WQS" proposal for Florida, which was covered above. In addition, EPA requested comments on the following:

• The proposed 20-year limit on the schedule to attain the final use and criteria - This basis for this timeframe is not apparent. The Department would suggest using a qualitative statement such at that used for compliance schedules, "as soon as possible." 

# Comment ID 1788-1.001.004

Author Name: Fisher D. Organization: Osceola County 2. Implementation Schedule should be consistent with FDEP's Basin Management Action Plan (BMAP) The implementation schedule spelled out by EPA, which calls for achieving load reductions within twenty years, is arbitrary and not achievable for all waterbodies, specifically for those waterbodies where natural conditions are driving

11/19/2010 02:48 PM EST 2-4636Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision the impairment listing as calculated by the proposed NNC. It is recommended that implementation follow FDEP's established BMAP process, whereby the implementation schedules and load reductions are written into the County's National Pollutant Discharge Elimination System (NPDES) permit and reflect realistic and technically sound projects to achieve load reductions. 

# Comment ID 1810-1.001.031

Author Name: Young L. Organization: Clean Water Network of Florida 4.�Time frame for Phases. We support the overall 20-year time frame for the restoration standards’ schedule as an adequate balance between sufficient pressure on point and nonpoint sources to modify practices and installations with the needs of human health and the environment affected by nutrients. However, as noted elsewhere in these comments, we think the restoration standards should be reserved for those waters that need a 20-year schedule and, even then, not in all instances. If waters are not significantly impaired by nutrient pollution, existing implementation methods such as compliance schedules and variances, with reasonable progress provisions, should be sufficient to lead to attainment. As with item no. 3 above, we urge that EPA ensure through its regulations that Florida make scientifically-based determinations of what pollution controls are needed during each phase rather than to defer to stakeholder processes unlikely to result in sufficient controls. 

# Comment ID 1810-1.001.034

Author Name: Young L. Organization: Clean Water Network of Florida 7.�Immediate Effectiveness of Ultimate Uses and Criteria. We support the use of an immediate effectiveness provision that would revert standards to the ultimate uses and criteria. However, as EPA notes in this section, Florida will always be free to adopt, subject to EPA approval, alternate use designations and associated criteria. For this reason, EPA should not rely alone on the “20-year axe” that it has created in the restoration standard but must include the types of restrictions discussed elsewhere in these comments, specifically focused on restrictions on NPDES permits and TMDL allocation schemes similar to those employed in EPA’s GLI rule. Otherwise, nonpoint sources will maintain the inadequate status quo of pollution controls. 

# Comment ID 1810-1.001.043

Author Name: Young L. Organization: Clean Water Network of Florida D. 20-Year Limit “EPA also requests comment on the proposed 20-year limit on the schedule to attain the final use and criteria.”

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We think the 20-year time frame is a reasonable compromise between feasibility and environmental needs. However, we think it should only apply to moderately or severely impaired waters and that the ultimate criteria should be used for less impaired waters in order not to prolong the actions needed to attain standards where it is not needed. EPA would need to adopt far more safeguards than it has proposed to ensure that the 20-year outcome would be as it desires. 

# Comment ID 1836.001.044

Author Name: Moore D. Organization: Southwest Florida Water Management District 33. USEPA should extend timelines for meeting numeric nutrient criteria for springs based on groundwater travel times (page 4220, proposed rule). Water may spend 50 or more years in the underground aquifer system before it emerges as spring discharge (Jones et al. 1994 ; Katz 2004). Therefore, the quality of spring water discharging today represents a legacy effect of practices that may have occurred many years prior. Any nitrate-nitrite criterion, if developed, should incorporate an appropriate time lag for meeting the standard. SWFWMD recommends an extension to the "not to exceed twenty years" limit in those basins dominated by ground water inflow. 

# Response

Comment IDs: All Response: Please refer to section V.E of the preamble for a discussion of why EPA is not finalizing restoration water quality standards. 

# VI.Q.6 - PROPOSED RESTORATION WATER QUALITY STANDARDS (WQS) PROVISION QUESTION 6 Comment ID 1087-1.001.007

Author Name: Pearson S. Organization: City of Gainesville Public Works Department -How will a restoration WQS process be coordinated with the TMDL program and whether the transparency and review procedures for the two approaches, including the conditions under which a State or EPA would be required to develop a TMDL, are comparable? The WQS and its associated schedule appear to be a series of successive targets for nutrient reduction that 'should' end with the outcome of reducing the excess nutrients to the amount desired to achieve the TMDL. DPW suggests that the Nutrient goals be applied successively to water bodies which have been assigned priorities similar to the TMDL

11/19/2010 02:48 PM EST 2-4638Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision classification system (e.g. High-Priority Waters, Medium-Priority Water, etc.). This approach allows the use of TMDL program and breaks down the impaired waters into more manageable groups. DPW also suggests that the initial five year period for a group of waters be allocated for completing the necessary studies, fiscal analysis and public outreach necessary for any project of this magnitude and then the compliance time (20 to (?) years) would begin at the end of the 5 year planning period. This process would apply first to the High-Priority Waters then in the next 5 years to the next class of water, and so on. 

# Comment ID 1359-1.001.025

Author Name: Andes F. Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality Coalition In EPA's proposal, restoration water quality standards would be based on an inventory of point and nonpoint sources within the watershed and an evaluation of the ambient conditions and the necessary reductions needed to achieve interim numeric criteria. 75 Fed. Reg. at 4221. This is essentially the same analysis that Florida is employing when developing nutrient TMDLs, except that under Florida's approach, the criteria are based on the actual needs of the waterbody. EPA acknowledges that Florida uses the same analysis when developing Basin Management Action Plans (BMAPs) and suggests that Florida use information from existing BMAPs to develop restoration standards. The Coalition believes that overlaying restoration standards on top of existing Florida TMDLs and BMAPs is inappropriate and a waste of resources. Florida is implementing its TMDL program to protect existing designated uses. It should not be required to revise those uses through the complex process proposed by EPA to meet inappropriate statewide federal nutrient criteria. 

# Comment ID 1464-1.001.034

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. 5. Coordination with TMDL Program "EPA also requests comments on how a restoration WQS process would be coordinated with the TMDL program and whether the transparency and review procedures for the two approaches, including the conditions under which a State or EPA would be required to develop a TMDL are comparable." It is unclear from the proposal what EPA intends with regard to TMDL development, only that it intends waters that are impaired by nutrients as measured against the ultimate standards to be listed on the 303(d) list. We urge EPA to require that TMDLs be done as a part of the UAA/restoration standards setting process. As explained above, a TMDL is the appropriate CWA process by which point and nonpoint source load reduction expectations can be established. Even the BMPs to which EPA refers is predicated on an underlying TMDL. In the absence of a TMDL it is not clear what transparent and binding mechanism will be used to identify the steps that need to be taken. By re-issuing a new TMDL concurrent with each new Phase of the restoration standards, the regulatory agency can make adjustments based on

11/19/2010 02:48 PM EST 2-4639Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision how well the previous allocations were implemented by the identified sources. 

# Comment ID 1530.001.059

Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority On page 4220, EPA attempts to describe how this new approach may work. The descriptions however seem to track how a TMDL would be implemented or what would be contained in a TMDL implementation plan. The descriptions are similar to what EPA is telling states in the Chesapeake Bay that they are "required" under threat of consequences to develop in order to implement a TMDL being developed by EPA.[14] On page 4220, EPA states, "This is intended to allow imposition of the maximum feasible point source controls and nonpoint source nutrient reduction strategies to be phased in within the overall context of restoration activities within the watershed." On page 4221, EPA states: The next part of the process would involve determining the combinations of control strategies and management practices available, how likely they are to produce results, and the resources needed to implement them. At this point, the State would be in a good position to determine how much pollution reduction is likely to be attainable under what timeframes. The State could use this information to establish the time periods for each restoration phase consistent with the maximum feasible and attainable progress toward meeting the numeric criteria, establish interim restorationdesignated uses and water quality criteria, and make the necessary demonstration that it is infeasible to attain the longterm designated use during the time periods established and that the interim phases reflect the highest attainable uses and associated criteria. And EPA also states: In Florida, many of the steps described above occur in the context of Basin Management Action Plans (BMAPs).... * * *the "blueprint" for restoring impaired waters by reducing pollutant loadings to meet the allowable loadings established in a Total Maximum Daily Load (FMDL). It represents a comprehensive set ofstrategies-permit limits on wastewaterfacilities, urban and agricultural best management practices, conservation programs, financial assistance and revenue generating activities, etc.-designed to implement the pollutant reductions established by the TMDL. ... (emphasis supplied). To the extent necessary, FDEP could potentially use aspects of the BMAP process and plans such as these to help form the basis for restoration WQS. All of this points to the fact that this process, establishing Restoration WQS, is already addressed by the TMDL program and through the use of compliance schedules. EPA's acknowledgement of Florida's BMAP program clearly supports this statement. Why is EPA suggesting this very burdensome process of developing Restoration WQS when the same issues are already addressed through the use of TMDLs and compliance schedules?

[14] Letter to Chesapeake Bay Program Principals Staff Committee Outlining EPA's Expectations for Watershed Implementation Plans (see http://www.epa.gov/reg3wapdJpd£ipdCchesbay / tmdljmplementationJetter_II 0409.pdf; attached as Appendix U)

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# Comment ID 1616-1.001.023

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida E. Coordination with TMDL Program. "EPA also requests comments on how a restoration WQS process would be coordinated with the TMDL program and whether the transparency and review procedures for the two approaches, including the conditions under which a State or EPA would be required to develop a TMDL are comparable." It is unclear from the proposal what EPA intends with regard to TMDL development, only that it intends waters that are impaired by nutrients as measured against the ultimate standards to be listed on the 303(d) list. We urge EPA to require that TMDLs be done as a part of the UAA/restoration standards setting process. As explained above, a TMDL is the appropriate Clean Water Act process by which point and nonpoint source load reduction expectations can be established. Even the BMAPs to which EPA refers is predicated on an underlying TMDL. In the absence of a TMDL it is not clear what transparent and binding mechanism will be used to identify the steps that need to be taken. By re-issuing a new TMDL concurrent with each new Phase of the restoration standards, the regulatory agency can make adjustments based on how well the previous allocations were implemented by the identified sources. 

# Comment ID 1688-2.001.010

Author Name: Brooks J. Organization: Florida Department of Environmental Protection

• Restoration WQS process coordination with the TMDL program - The procedures and requirements for getting a restoration water quality standard, as proposed, fit seamlessly into the TMDL program as a 4b demonstration. The TMDL program allows entities to make a demonstration that water quality standards will be attained in the future, thus averting the need for a total maximum daily load [40 CFR 130.7(b)(1)(iii)]. If a restoration water quality standard is approved, a TMDL would not be needed. As the list of waterbodies requiring TMDLs is periodically reviewed (the 303(d) list), the two program will again review the current status of the restoration water quality standards, and attainment thereof, for consideration of needing a TMDL. 

# Comment ID 1807-1.001.001

Author Name: Shertzer R. Organization: Pennsylvania Department of Environmental Protection The Pennsylvania Department of Environmental Protection (DEP) appreciates the opportunity to comment on EPA's proposed rule relating to the establishment of a framework for Florida to develop Restoration Water Quality Standards

11/19/2010 02:48 PM EST 2-4641Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision (R-WQSs) for impaired waters. DEP recognizes that there is a need to evaluate implementation of water quality-based effluent limits, developed as wasteload allocations in Total Maximum Daily Loads (TMDLs), where technology does not presently exist for point sources to meet their water quality obligations. For example, DEP is presently involved in discussions with partuer states and the Delaware River Basin Commission (DRBC) regarding the cleanup of polychlorinated biphenyls (PCBs) in the Delaware River. Even with the implementation of pollution minimization plans, it is difficult to predict what decade the water quality standards will be met. This proposed rule opens the door for a dialogue on when it is appropriate to consider phased implementation and what needs to change in the legal framework to accommodate such an approach. 

# Comment ID 1807-1.001.002

Author Name: Shertzer R. Organization: Pennsylvania Department of Environmental Protection The focus of these comments is on the Use Attainability Analysis (UAA) and whether it is the appropriate vehicle to manage phased implementation. DEP does not believe this proposal represents a useful framework for restoration of its waterbodies. Through this comment letter, DEP is requesting more information on how this regulation might be applied and would like the following concerns addressed:
1. Although EPA has not yet revealed the relationship between TMDLs and restoration standards, a National Pollutant Discharge Elimination System (NPDES) permit will likely contain either a wasteload allocation or, if no TMDL, an effluent limitation based on a restoration standard for the waterbody. Each restoration standard requires the establishment of interim uses and critieria, based on feasiblity and a UAA. The workload associated with developing UAAs and criteria is considerable and the timeframe for adopting such standards as regulations is protracted, making the proposal impractical. The development of these additional regulations will make it difficult for states to keep pace with assessments for integrated reports and TMDL development. Additionally, if an interim standard is not met during a specified phase, the final designated use becomes applicable immediately. This will likely result in the need for additional surface water assessments to determine water use attainment for each interim use, creating an even larger burden on already limited state agency resources. 

# Comment ID 1810-1.001.025

Author Name: Young L. Organization: Clean Water Network of Florida E. Enhancing the Establishment of Enforceable Long-Term Plans EPA states in its notice that it believes interim uses and associated criteria “could support efforts by Florida to formally establish enforceable long-term plans for different watersheds or stream reaches to attain the ultimate designated use and the associated criteria.” Fed. Reg. at 4219. EPA does not, however, support this statement with any rationale for its belief that a phased set of criteria are different from, for example, a phased Total Maximum Daily Load (TMDL) with interim milestones, as has been done elsewhere.

11/19/2010 02:48 PM EST 2-4642Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision Nor does EPA explain how the interim uses/criteria by themselves will lead to enforceable plans or an increased political will in the state to address sources not directly regulated under federal law. In fact, without a TMDL corresponding to each phase of the restoration standards, it is not clear how Florida will establish the expectations for load reductions for each sector and source. In its notice, EPA calls for an inventory of point and nonpoint sources within an affected watershed, an evaluation of existing conditions, and identification of the necessary load reductions to meet the numeric criteria in order to establish the restoration standards. Fed. Reg. at 4221. EPA goes on to say that this process would also include determining the combinations of control strategies and management practices available, how likely they are to produce results, and the resources needed to implement them. At this point, the State would be in a good position to determine how much pollution reduction is likely to be attainable under what timeframes. Fed. Reg. at 4221. All of this taken together is largely the same analysis that comprises a TMDL and a TMDL would make the allocations to the point and nonpoint sources to preclude any ambiguity as to which sources were to reduce what. However, the absence of a TMDL raises the significant question: what does EPA have in mind in its stead? We cannot imagine any other process that could allocate the loads, assess the time lines, and ensure they were achieved. This argues strongly for the concurrent adoption of TMDLs with the restoration standards and a provision that requires a new or revised TMDL be adopted for each phase of the restoration standards. 

# Comment ID 1810-1.001.044

Author Name: Young L. Organization: Clean Water Network of Florida E. Coordination with TMDL Program. "EPA also requests comments on how a restoration WQS process would be coordinated with the TMDL program and whether the transparency and review procedures for the two approaches, including the conditions under which a State or EPA would be required to develop a TMDL are comparable." It is unclear from the proposal what EPA intends with regard to TMDL development, only that it intends waters that are impaired by nutrients as measured against the ultimate standards to be listed on the 303(d) list. We urge EPA to require that TMDLs be done as a part of the UAA/restoration standards setting process. As explained above, a TMDL is the appropriate Clean Water Act process by which point and nonpoint source load reduction expectations can be established. Even the BMAPs to which EPA refers is predicated on an underlying TMDL. In the absence of a TMDL it is not clear what transparent and binding mechanism will be used to identify the steps that need to be taken. By re-issuing a new TMDL concurrent with each new Phase of the restoration standards, the regulatory agency can make adjustments based on how well the previous allocations were implemented by the identified sources. 

# Response

Comment IDs: All Response: Please refer to section V.E of the preamble for a discussion of why EPA is not finalizing restoration water quality

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standards. 

# VI.Q.7 - PROPOSED RESTORATION WATER QUALITY STANDARDS (WQS) PROVISION QUESTION 7 Comment ID 0655.001.003

Author Name: Aschauer F. Organization: Clay County Utility Authority The EPA has in its preamble indicated that it would like to see or offers as an alternative a water quality restoration -- or restoration water quality standard. I submit to you that you underestimate the Florida APA and the time it will take to institute restoration water quality standards. Indeed, any restoration water quality standard would undoubtedly be challenged by many interests, some of whom are represented in this room. That would have to go through a process whereby an administrative law judge -- if a Florida agency such as DEP seeks it, an administrative law judge would have a hearing on it, conduct it. There would be a recommended order -- proposed recommended orders actually submitted by the parties, recommended order, final order. It's a lengthy process. So the first thing that the Clay County Utility Authority would ask the EPA to consider is a grace period, allowing the state to attempt to adopt water quality -­ restoration water quality standards, if that's the State's desire. So we'd ask that you consider a grace period as part of the rule. 

# Comment ID 1087-1.001.008

Author Name: Pearson S. Organization: City of Gainesville Public Works Department What are the unintended consequences of this approach for any of its water quality programs? No comment. 

# Comment ID 1464-1.001.024

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. C. The Relationship of Nutrients to Other Parameters EPA states that the proposed restoration standard approach - with its temporary removal of designated uses - would "appl[y] only to WQS for nutrients in Florida waters." Fed. Reg. 4219. However, high levels of nutrients allowed by the nutrient criteria would have the effect of decreasing dissolved oxygen levels. EPA has not addressed whether it

11/19/2010 02:48 PM EST 2-4644Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision believes the existing criteria for dissolved oxygen, and possibly others such as transparency, will also need to be adjusted to correspond to the interim use designations for nutrients. Such parameters as these that are affected by higher nutrients might also require changes in criteria. 

# Comment ID 1464-1.001.035

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. 6. Unintended Consequences "EPA also requests comments on any unintended adverse consequences of this approach for any of its water quality programs." We are concerned the restoration standard concept will become another vague provision that is used to avoid requiring compliance with water quality standards as quickly as feasible. For this reason, we believe that the existing provisions for UAAs, compliance schedules and a more tightly defined variance provision is preferable to creating this potential new avenue for delay. 

# Comment ID 1616-1.001.009

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida C. The Effect of Downgrading Uses on Other Parameters EPA states that the proposed restoration standard approach - with its temporary downgrade of designated uses - would "appl[y] only to WQS for nutrients in Florida waters." Fed. Reg. 4219. EPA has not explained how use designations can be downgraded temporarily but only affect one set of criteria. How will EPA prevent the State of Florida from using the results of these nutrient-driven UAAs to permanently downgrade uses and permanently adjust the applicable criteria for other parameters, related or unrelated to nutrient pollution? The effect of the restoration standard could be a wolf in sheep's clothing if Florida, ostensibly to implement an environmentally beneficial step-wise approach to water quality restoration, uses the results of the restoration UAAs to permanently lower the goals for state waters. While that is not EPA's intent, there is nothing that would prevent Florida from doing so because EPA is holding Florida restoration standard UAAs to the same legal requirements as any other UAA. In fact, Florida is currently in the process of conducting rulemaking for a new classification of waters that would be called "Class III limited," which would be available to any man-made water body or a natural system that was altered before 1975. The downgrade of any current designated use to this new classification would require a UAA and site-specific criteria, which would be determined on a case by case basis by the Florida DEP. The criteria that will be established for the Class III limitd waters are not limited to nutrients but, instead, will be available for all parameters except toxics.

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# Comment ID 1616-1.001.011

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida D. The Relationship of Nutrients to Other Parameters EPA states that the proposed restoration standard approach - with its temporary downgrade of designated uses - would "appl[y] only to WQS for nutrients in Florida waters." Fed. Reg. 4219. However, high levels of nutrients allowed by the nutrient criteria would have the effect of decreasing dissolved oxygen levels. EPA has not addressed whether it believes the existing criteria for dissolved oxygen, and possibly others such as transparency, will also need to be adjusted to correspond to the interim use designations for nutrients. Such parameters as these that are affected by higher nutrients might also require changes in criteria. EPA must be careful of the slippery slope it creates in any effort to loosening and resetting, on a temporary basis, the goals Florida must meet for its waters. 

# Comment ID 1616-1.001.024

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida F. Unintended Consequences. "EPA also requests comments on any unintended adverse consequences of this approach for any of its water quality programs." It would be helpful if EPA would comment on why there are differences between a "restoration variance," as used by Maryland for the Chesapeake Bay and the "restoration standards" proposed for Florida nutrient water quality standards. EPA states twice in its notice that the Florida proposal is in response, not only to the need to develop Florida nutrient standards but in response to nationwide concerns about meeting water quality standards. It states that "EPA and states face questions about what pollution control measures will meet the WQS, how long it might take, and whether it is feasible to attain the WQS established to meet the goals of the Act." Fed. Reg. at 4221. EPA goes on to say that these questions are difficult to answer. We would add that one reason they are difficult to answer is that EPA has allowed States to develop TMDLs - mostly driven by a spate of citizens groups' litigation - that fudge the allocations between point and nonpoint sources. Across this country point source waste load allocations and WQBELs are based on wildly inappropriate expectations of nonpoint source controls. Not that those nonpoint source controls should not be implemented but because the States and EPA know the states have no intention of implementing them. In addition, many states have for decades, and with impunity, failed to issue water quality-based permits to NPDES sources. Now some sector of the public is asking whether water quality standards can be met and EPA and States feel uncomfortable? With rare exception, nobody has even tried. In other words, it is vastly too soon to encourage a wholesale change in use designations to downgrade the expectations for protection public health and the environment. This country has made only baby steps towards controlling most sources of pollution.

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# Comment ID 1688-2.001.015

Author Name: Brooks J. Organization: Florida Department of Environmental Protection Based on the FDEP's analysis of EPA's currently proposed criteria (including consideration of the draft downstream protection values for estuaries), it appears that the vast majority of waters within the state will be impaired for nutrients. As a practical matter there is no feasible way for derivation of traditional UAAs and restoration plans in a reasonable timeframe for the thousands of waters likely to be categorized as impaired under EPA's proposed standards. Because of these real world limitations, individual dischargers will seek the most efficient permitting mechanism to obtain the requisite time to accumulate the capital and construct the new infrastructure needed to comply with the rigorous standards. 

# Comment ID 1810-1.001.023

Author Name: Young L. Organization: Clean Water Network of Florida C. The Effect of Downgrading Uses on Other Parameters EPA states that the proposed restoration standard approach - with its temporary downgrade of designated uses - would "appl[y] only to WQS for nutrients in Florida waters." Fed. Reg. 4219. EPA has not explained how use designations can be downgraded temporarily but only affect one set of criteria. How will EPA prevent the State of Florida from using the results of these nutrient-driven UAAs to permanently downgrade uses and permanently adjust the applicable criteria for other parameters, related or unrelated to nutrient pollution? The effect of the restoration standard could be a wolf in sheep's clothing if Florida, ostensibly to implement an environmentally beneficial step-wise approach to water quality restoration, uses the results of the restoration UAAs to permanently lower the goals for state waters. While that is not EPA's intent, there is nothing that would prevent Florida from doing so because EPA is holding Florida restoration standard UAAs to the same legal requirements as any other UAA. In fact, Florida is currently in the process of conducting rulemaking for a new classification of waters that would be called "Class III limited," which would be available to any man-made water body or a natural system that was altered before 1975. The downgrade of any current designated use to this new classification would require a UAA and site-specific criteria, which would be determined on a case by case basis by the Florida DEP. The criteria that will be established for the Class III limited waters are not limited to nutrients but, instead, will be available for all parameters except toxics. 

# Comment ID 1810-1.001.024

Author Name: Young L. Organization: Clean Water Network of Florida

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D. The Relationship of Nutrients to Other Parameters EPA states that the proposed restoration standard approach - with its temporary downgrade of designated uses - would "appl[y] only to WQS for nutrients in Florida waters." Fed. Reg. 4219. However, high levels of nutrients allowed by the nutrient criteria would have the effect of decreasing dissolved oxygen levels. EPA has not addressed whether it believes the existing criteria for dissolved oxygen, and possibly others such as transparency, will also need to be adjusted to correspond to the interim use designations for nutrients. Such parameters as these that are affected by higher nutrients might also require changes in criteria. EPA must be careful of the slippery slope it creates in any effort to loosening and resetting, on a temporary basis, the goals Florida must meet for its waters. 

# Comment ID 1810-1.001.045

Author Name: Young L. Organization: Clean Water Network of Florida F. Unintended Consequences. “EPA also requests comments on any unintended adverse consequences of this approach for any of its water quality programs.” It would be helpful if EPA would comment on why there are differences between a “restoration variance,” as used by Maryland for the Chesapeake Bay and the “restoration standards” proposed for Florida nutrient water quality standards.

EPA states twice in its notice that the Florida proposal is in response, not only to the need to develop Florida nutrient standards but in response to nationwide concerns about meeting water quality standards. It states that “EPA and states face questions about what pollution control measures will meet the WQS, how long it might take, and whether it is feasible to attain the WQS established to meet the goals of the Act.” Fed. Reg. at 4221. EPA goes on to say that these questions are difficult to answer. We would add that one reason they are difficult to answer is that EPA has allowed States to develop TMDLs – mostly driven by a spate of citizens groups’ litigation – that fudge the allocations between point and nonpoint sources. Across this country point source waste load allocations and WQBELs are based on wildly inappropriate expectations of nonpoint source controls. Not that those nonpoint source controls should not be implemented but because the States and EPA know the states have no intention of implementing them. In addition, many states have for decades, and with impunity, failed to issue water quality-based permits to NPDES sources. Now some sector of the public is asking whether water quality standards can be met and EPA and States feel uncomfortable? With rare exception, nobody has even tried. In other words, it is vastly too soon to encourage a wholesale change in use designations to downgrade the expectations for protection public health and the environment. This country has made only baby steps towards controlling most sources of pollution. 

# Response

Comment IDs: All

11/19/2010 02:48 PM EST 2-4648Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision Response: Please refer to section V.E of the preamble for a discussion of why EPA is not finalizing restoration water quality standards. 

# VI.Q.8 - PROPOSED RESTORATION WATER QUALITY STANDARDS (WQS) PROVISION QUESTION 8 Comment ID 1087-1.001.009

Author Name: Pearson S. Organization: City of Gainesville Public Works Department What is a potential definition of "maximum feasible progress"? DPW offers the definition: Maximum feasible progress for nutrient reduction is the regular and periodic reduction of the pollutants causing impairments so the effected ecological community is restored on a schedule consistent with the availability of fiscal resources. 

# Comment ID 1217-2.001.030

Author Name: Voyles J. Organization: Mosaic Fertilizer LLC Mosaic also proposes that the RWQS program be framed in terms of reasonable achievability, not merely "maximum feasibility." Without some general standard of reasonable achievability, the program could well be doomed to become an empty shell, because that which is "maximally feasible" disregards what is practical and reasonable to accomplish. 

# Comment ID 1464-1.001.036

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. 7. Definition of Maximum Feasible Progress "Finally EPA requests comment on potential definitions of ‘maximum feasible progress." We believe that, consistent with 40 CFR 131.10(g)(6) this term may be defined as the highest rate of progress that will not cause "substantial and widespread economic and social impact." While this phrase is also imprecise, there is a body of regulatory law and guidance that gives greater meaning to the term including the March 1995 Interim Economic Guidance for Water Quality Standards (EPA-823-95-002).

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# Comment ID 1464-1.001.044

Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. 3. Maximum Feasible Progress. We support the establishment of interim uses and associated criteria based on the maximum feasible progress during each phase of the restoration standards.

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# Comment ID 1530.001.061

Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority Also on page 4220, EPA states, "EPA will require the maximum feasible progress." Admittedly "feasible" is a word EPA has used in many regulations without definition, in this context EPA must provide a clear definition of how it will assess progress and what cost models will be applied. 

# Comment ID 1616-1.001.025

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida G. Definition of Maximum Feasible Progress. "Finally EPA requests comment on potential definitions of ‘maximum feasible progress." We believe that, consistent with 40 CFR 131.10(g)(6) this term may be defined as the highest rate of progress that will not cause "substantial and widespread economic and social impact." While this phrase is also imprecise, there is a body of regulatory law and guidance that gives greater meaning to the term, including the March 1995 Interim Economic Guidance for Water Quality Standards (EPA-823-95-002). 

# Comment ID 1616-1.001.027

Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida 3. Maximum Feasible Progress. We support the establishment of interim uses and associated criteria based on the maximum feasible progress during each phase of the restoration standards. However, as discussed elsewhere in these comments, we urge EPA to add requirements to ensure that the pollution controls are, in fact, "maximum feasible" because there is a much greater likelihood that Florida will establish minimal requirements due to political pressure from both point and nonpoint sources. 

# Comment ID 1688-2.001.011

Author Name: Brooks J. Organization: Florida Department of Environmental Protection

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• Comment on possible definitions of "maximum feasible progress" - It may not be necessary to define this. The evaluation of this can reference the 131.10(g) factors as the method for determining the maximum feasible progress. 

# Comment ID 1810-1.001.030

Author Name: Young L. Organization: Clean Water Network of Florida 3.�Maximum Feasible Progress. We support the establishment of interim uses and associated criteria based on the maximum feasible progress during each phase of the restoration standards. However, as discussed elsewhere in these comments, we urge EPA to add requirements to ensure that the pollution controls are, in fact, “maximum feasible” because there is a much greater likelihood that Florida will establish minimal requirements due to political pressure from both point and nonpoint sources. 

# Comment ID 1810-1.001.046

Author Name: Young L. Organization: Clean Water Network of Florida G. Definition of Maximum Feasible Progress. “Finally EPA requests comment on potential definitions of ‘maximum feasible progress.” We believe that, consistent with 40 CFR 131.10(g)(6) this term may be defined as the highest rate of progress that will not cause “substantial and widespread economic and social impact.” While this phrase is also imprecise, there is a body of regulatory law and guidance that gives greater meaning to the term, including the March 1995 Interim Economic Guidance for Water Quality Standards (EPA-823-95-002). 

# Response

Comment IDs: All Response: Please refer to section V.E of the preamble for a discussion of why EPA is not finalizing restoration water quality standards.

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