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 document 
Chapter 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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Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

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 

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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 

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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. 

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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 

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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 

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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 

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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:
 

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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. 

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[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. 

11/19/2010 02:48 PM EST 2-4580
 
Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

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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Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

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 2-4583
 
Chapter 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. 

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Chapter 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. 

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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 

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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 

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Chapter 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 

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Chapter 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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Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

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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Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

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 2-4592
 
Chapter 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-surreypesticideban.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 

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Chapter 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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Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

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. 

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Chapter 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? 

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Chapter 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 

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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 2-4598
 
Chapter 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 

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Chapter 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 

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Chapter 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 2-4601
 
Chapter 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. 

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Chapter 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. 

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Chapter 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. 

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Chapter 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 

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Chapter 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 2-4606
 
Chapter 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 

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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 enforceable 

because 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. 

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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. 

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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 

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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 

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Chapter 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 2-4612
 
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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, 

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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 

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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 or 

feasible, 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 

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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 

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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. 

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Chapter 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 

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Chapter 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 

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Chapter 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 

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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. 

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Chapter 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 enforceable 

because 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 

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Chapter 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 

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Chapter 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 2-4624
 
Chapter 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 

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Chapter 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 

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Chapter 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 

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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 

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Chapter 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, 

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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. 

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Chapter 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 . 

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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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Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

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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Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

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 

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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 

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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 

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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 

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Chapter 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 restoration 

designated 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) 

11/19/2010 02:48 PM EST 2-4640
 
Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

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 2-4641
 
Chapter 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. 

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Chapter 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 

11/19/2010 02:48 PM EST 2-4643
 
Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

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 

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Chapter 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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Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

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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Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

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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Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

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 

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Chapter 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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Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

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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Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

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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Chapter 2 - Comment Documents Proposed Restoration Water Quality Standards (WQS) Provision 

• 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. 

11/19/2010 02:48 PM EST 2-4652